AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
ADVENT REALTY LIMITED PARTNERSHIP II
("SELLER")
AND
BRANDYWINE OPERATING PARTNERSHIP, L.P.
("PURCHASER")
Date: January 28, 1998
Property: Three ▇▇▇▇▇▇▇▇▇ Centre
Wilmington, New Castle County, Delaware
EXHIBITS
Exhibit A - Legal Description
Exhibit B - Due Diligence Documents to be Delivered by Seller
Exhibit C - Form of Tenant Estoppel Certificate
Exhibit D - Permitted Exceptions
Exhibit E - Schedule of Inventory
Exhibit F - Environmental Reports
Exhibit G - Rent Roll
Exhibit H - Deed
Exhibit I - Form of General Assignment
Exhibit J - Form of Notice Letter to Tenants
Exhibit K - Non-Foreign Entity Certificate
Exhibit L - Seller's Estoppel
Exhibit M - Seller's Insurance Certificate
Exhibit N - List of Contracts
Exhibit O - Leasing Costs
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made and
entered into as of the 28th day of January, 1998, by and between ADVENT REALTY
LIMITED PARTNERSHIP II, a Delaware limited partnership (hereinafter referred
to as "Seller"), and BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership (hereinafter referred to as "Purchaser").
In consideration of the mutual promises, covenants and agreements
hereinafter set forth and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
agree as follows:
ARTICLE I.
Sale of Property
1.1 Sale of Property. Seller hereby agrees to sell, assign and convey
to Purchaser and Purchaser agrees to purchase from Seller, all of Seller's
right, title and interest in and to, the following:
1.1.1. Land and Improvements. That certain real property
lying and being situated in the City of Wilmington, County of New Castle,
State of Delaware, known as Three ▇▇▇▇▇▇▇▇▇ Centre and located at ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, being more particularly described on Exhibit A attached hereto
and incorporated herein by reference thereto (the "Land"), together with any
improvements located thereon (the "Improvements");
1.1.2. Leases. All leases, subleases, licenses and other
occupancy agreements, together with any and all amendments, modifications or
supplements thereto, are hereafter referred to collectively as the "Leases"
being more particularly described on Exhibit G attached hereto, and all
prepaid rent attributable to the period following the Closing, and subject to
Section 4.2.4 below, the security deposits under such Leases (collectively,
the "Leasehold Property");
1.1.3. Real Property. All rights, privileges and easements
appurtenant to Seller's interest in the Land and the Improvements, if any,
including, without limitation, all of Seller's right, title and interest, if
any, in and to all mineral and water rights and all easements, licenses,
covenants and other rights-of-way and privileges, and rights to any land lying
in the bed of any street, road or avenue, open or proposed, adjoining thereto,
and all other appurtenances used in connection with the beneficial use and
enjoyment of the Land and the Improvements (the Land, the Improvements and all
such easements and appurtenances are sometimes collectively referred to herein
as the "Real Property").
1.1.4. Personal Property. All personal property (including
furniture, furnishings, machinery and equipment), if any, owned by Seller and
located on the Real Property as of the date hereof, all inventory located on
the Real Property on the date of Closing (hereinafter defined), and all
fixtures (if any) owned by Seller and located on the Real Property as of the
date hereof, including, without limitation: all of Seller's right, title and
interest to the items listed on the Schedule of Inventory attached hereto as
Exhibit E; renderings; awnings; and all architects', engineers', surveyors'
and other real estate professionals' plans and specifications (the "Personal
Property"); and
1.1.5. Intangible Property. All non-exclusive trademarks,
trade names and logos, if any, used or useful in connection with the Real
Property, but only to the extent that the same are not trademarks or trade
names of Seller or any of Seller's affiliated companies (collectively, the
"Trade Names"), together with the Seller's interest, if any, in and to any
service, equipment, supply and maintenance contracts (the "Contracts"),
guarantees, licenses, approvals, certificates, permits and warranties relating
to the property, to the extent assignable (collectively, the "Intangible
Property"). (The Real Property, the Leasehold Property, the Personal Property,
the Trade Names and the Intangible Property are sometimes collectively
hereinafter referred to as the "Property"). It is hereby acknowledged by the
parties that Seller shall not convey to Purchaser claims relating to any real
property tax refunds or rebates for periods accruing prior to the Closing,
existing insurance claims and any existing claims against previous tenants of
the Property, which claims shall be reserved by Seller.
ARTICLE II.
Purchase Price
2.1 Purchase Price. The purchase price for the Property shall be
Fifty Million Six Hundred One Thousand Fifty and No/100ths Dollars
($50,601,050.00) (the "Purchase Price"). The Purchase Price, as adjusted by
all prorations as provided for herein, shall be paid to Seller by Purchaser at
Closing, as herein defined, by wire transfer of immediately available federal
funds.
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ARTICLE III.
Deposit
3.1 Initial Deposit. Upon the Effective Date, as defined in Section
16.4 of this Agreement and as a condition precedent to the formation of this
Agreement, Purchaser shall deposit Two Hundred Thousand and No/100ths Dollars
($200,000.00) (the "Initial Deposit") with Commonwealth Land Title Insurance
Company (National Title Service) (the "Escrow Agent") in immediately available
federal funds, the receipt of which is hereby acknowledged by Escrow Agent's
execution hereof. If Purchaser shall fail to deposit the Initial Deposit
within the time period provided for above, Seller may at any time prior to the
deposit of the Initial Deposit, terminate this Agreement, in which case this
Agreement shall be null and void ab initio and in such event Escrow Agent
shall immediately deliver to Seller all copies of this Agreement in its
possession and thereafter, neither party shall have any further rights or
obligations to the other hereunder, except as otherwise set forth in this
Agreement.
3.2. Additional Deposit. If Purchaser elects not to terminate this
Agreement in accordance with Section 5.5 herein, then on or before the
expiration of the Feasibility Period (as defined herein), time being of the
essence, Purchaser shall make an additional deposit in the amount of Eight
Hundred Thousand and No/100ths Dollars ($800,000.00) (the "Additional
Deposit") in immediately available federal funds, with Escrow Agent. The
Initial Deposit and the Additional Deposit (together with any interest
thereon, regardless of whether the payment of interest is herein otherwise
specified) are collectively referred to herein as the "Deposit."
3.3. Application Upon Default. If the Closing occurs, the Deposit
shall be paid to Seller and credited against the Purchase Price at Closing. If
the Closing does not occur in accordance with the terms hereof, the Deposit
shall be held and delivered as hereinafter provided.
3.4. Interest Bearing. The Deposit shall (i) be held in an
interest-bearing escrow account by Escrow Agent in an institution as directed
by Purchaser and reasonably acceptable to Seller and (ii) shall include any
interest earned thereon. To allow the interest bearing account to be opened,
Purchaser's and Seller's tax identification or social security numbers are set
forth below their signatures.
3.5. Escrow Agent. Escrow Agent is executing this Agreement to
acknowledge Escrow Agent's responsibilities hereunder, which may be modified
only by a written amendment
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signed by all of the parties. Any amendment to this Agreement that is not signed
by Escrow Agent shall be effective as to the parties thereto, but shall not be
binding on Escrow Agent. Escrow Agent shall accept the Deposit with the
understanding of the parties that Escrow Agent is not a party to this Agreement
except to the extent of its specific responsibilities hereunder, and does not
assume or have any liability of the performance or non-performance of Purchaser
or Seller hereunder to either of them. Additional provisions with respect to the
Escrow Agent are set forth in Article XVI.
ARTICLE IV.
Closing, Prorations and Closing Costs
4.1. Closing. The closing of the purchase and sale of the Property
shall occur on or before 10:00 a.m. local time on a date which is not later
than ten (10) days following the expiration of the Feasibility Period (as
defined herein) (subject to extension by Seller in accordance with the
provisions of Section 10.2.4 hereof), and shall be conducted pursuant to
escrow arrangements with the Title Company (as hereinafter defined) or at such
other place agreed to by Seller and Purchaser. "Closing" shall be deemed to
have occurred when the Title Company has been instructed by both parties to
release escrow and to record the Deed. Time is of the essence. The date of
Closing is referred to in this Agreement as the "Closing Date."
4.2. Prorations. All matters involving prorations or adjustments to
be made in connection with Closing and not specifically provided for in some
other provision of this Agreement shall be adjusted in accordance with this
Section 4.2.
Except as otherwise set forth herein, all items to be prorated pursuant
to this Section 4.2 shall be prorated as of midnight of the day immediately
preceding the Closing Date, with Purchaser to be treated as the owner of the
Property, for purposes of prorations of income and expenses, on and after the
Closing Date.
4.2.1. Taxes. Real estate and personal property taxes and special
assessments, if any, shall be prorated as of the Closing Date. Seller shall pay
all real estate and personal property taxes and special assessments attributable
to the Property to, but not including, the Closing Date. If the real estate
and/or personal property tax rate and assessments have not been set for the year
in which the Closing occurs, then the proration of such taxes shall be based
upon the rate and assessments for the preceding tax year and such proration
shall be adjusted in cash between Seller and Purchaser upon presentation of
written evidence that the actual taxes paid for the year in which the Closing
occurs, differ from the amounts used in the Closing in accordance with the
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provisions of Section 4.2.5 hereof. All taxes imposed due to a change of use of
the Property after the Closing Date shall be paid by the Purchaser.
4.2.2. Insurance. There shall be no proration of Seller's
insurance premiums or assignment of Seller's insurance policies. Purchaser shall
be obligated (at its own election) to obtain any insurance coverage deemed
necessary or appropriate by Purchaser. Except as otherwise expressly set forth
in Article XII pursuant to an assignment by Seller, Purchaser shall have no
interest in or be deemed to be a beneficiary under Seller's insurance policies.
4.2.3. Utilities. Purchaser and Seller hereby acknowledge and
agree that the amounts of all telephone, electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills and
all other operating expenses relating to the Property and allocable to the
period prior to the Closing Date shall be determined and paid by Seller before
Closing, if possible, or shall be paid thereafter by Seller or adjusted between
Purchaser and Seller at Closing based upon the last meter readings, if
available, and then adjusted as necessary immediately after the same have been
determined. Seller shall attempt to have all utility meters read as of the
Closing Date. Purchaser shall cause all utility services to be placed in
Purchaser's name as of the Closing Date. All utility deposits in Seller's name
shall be assigned to Purchaser as of the Closing Date and Seller shall receive a
credit therefor at Closing.
4.2.4. Rents. Rents (including, without limitation, estimated
9pass-through payments, payments for 1998 common area maintenance
reconciliations and all additional charges payable by tenants under the Leases,
(collectively, "Rents")) collected by Seller prior to Closing shall be prorated
as of the Closing Date. During the period after Closing, Purchaser shall deliver
to Seller any and all Rents accrued but uncollected as of the Closing Date to
the extent subsequently collected by Purchaser; provided, however, Purchaser
shall apply Rents received after Closing first to payment of current Rent then
due, and thereafter to delinquent Rents (other than "true up" payments received
from tenants attributable to a year-end reconciliation of actual and budgeted
pass-through payments which shall be allocated among Seller and Purchaser pro
rata in accordance with their respective period of ownership as set forth in
Section 4.2.5 below). Seller shall have the right, after Closing, to proceed
against tenants for delinquent Rents allocable to the period of Seller's
ownership of the Property; provided, however, that Seller shall have no right to
seek to evict or dispossess tenants or to terminate their respective leases.
Purchaser agrees that it shall use commercially reasonable efforts to collect
all pass-through rents payable by tenants and any delinquent Rents (provided,
however, that Purchaser shall have no obligation to institute legal proceedings,
including an action for unlawful detainer, against a tenant owing delinquent
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Rents). The amount of any unapplied security deposits under the Leases held by
Seller in cash shall be credited against the Purchase Price; accordingly, Seller
shall retain the actual cash deposits. If any security deposits are in the form
of a letter of credit, Seller shall assign its interest in the letter of credit
to Purchaser (to the extent assignable) and deliver the original letter of
credit to Purchaser at Closing.
4.2.5. Calculations. For purposes of calculating prorations,
Purchaser shall be deemed to be in title to the Property, and, therefore,
entitled to the income therefrom and responsible for the expenses thereof for
the entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have elapsed
as of the day of the Closing and based upon the actual number of days in the
month and a three hundred sixty five (365) day year. The amount of such
prorations shall be initially performed at Closing but shall be subject to
adjustment in cash after the Closing as and when complete and accurate
information becomes available, if such information is not available at the
Closing. Seller and Purchaser agree to cooperate and use their best efforts to
make such adjustments no later than sixty (60) days after the Closing (or as
soon thereafter as may be practicable, with respect to common area maintenance
and other additional rent charges (including pass-throughs for real estate and
personal property taxes and special assessments) payable by tenants under
leases). Except as set forth in this Section 4.2, all items of income and
expense which accrue for the period prior to the Closing will be for the account
of Seller and all items of income and expense which accrue for the period on and
after the Closing will be for the account of Purchaser. The provisions of
Section 4.2 shall survive the Closing.
4.2.6. Leasing Commissions and Leasing Costs. Except as set forth
in the last sentence of this Section 4.2.6, Seller shall be responsible for
those leasing and brokerage commissions and other leasing costs (including,
without limitation, tenant improvement costs, required capital improvements,
free rent credits and holdover rents) (i) for which Seller is the responsible
party as set forth on Exhibit O hereto and (ii) arising after the Feasibility
Period but prior to Closing to the extent that such obligations do not relate to
Approved New Leases (as hereinafter defined). Provided that Closing occurs,
Purchaser shall be responsible for all other leasing and brokerage commissions
and other leasing costs (including, without limitation, leasing commissions,
tenant improvement costs, required capital improvements and free rent credits
arising in connection with expansions and extensions exercised by a tenant after
the Effective Date and all other leasing commissions, tenant improvement costs,
required capital improvements, free rent credits and holdover rents), including
those for which Purchaser is the responsible party as set forth on Exhibit O
hereto. With respect to the unfunded $177,200.00 tenant improvement costs
associated with the 7,088 square feet of space leased to Brandywine Asset
Management effective as of November 11, 1996, Seller shall pay such
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amount to Purchaser upon receipt by Seller of notice from Purchaser that
Brandywine Asset Management has requested such payment from Purchaser.
4.2.7. Prepaid Items. Any prepaid items, including, without
limitation, fees for licenses which are transferred to the Purchaser at the
Closing and annual permit and inspection fees to the applicable governmental
authorities shall be apportioned between the Seller and the Purchaser at the
Closing.
4.3. Closing Costs. Seller and Purchaser shall each pay one half of any
applicable state or county documentary stamps and transfer and recordation taxes
on the Deed. Purchaser shall pay escrow fees, title examination costs, title
insurance premiums, survey costs and all other costs associated with Purchaser's
due diligence. Each party shall be responsible for its own attorney's fees. Any
other fees or expenses resulting from the Closing shall be split between Seller
and Purchaser in accordance with local practices.
ARTICLE V.
Purchaser's Right of Inspection; Feasibility Period
5.1. Right to Evaluate. Commencing on the Effective Date and continuing
until 5:00 p.m. Eastern time on that day which is twenty five (25) days after
the Effective Date (the "Feasibility Period"), Purchaser and its agents shall
have the right during business hours (with reasonable advance notice to Seller
and subject to the rights of the tenants in possession), at Purchaser's sole
cost and expense and at Purchaser's and its agents' sole risk, to perform
inspections and tests of the Property and to perform such other analyses,
inquiries and investigations as Purchaser shall deem necessary or appropriate;
provided, however, that in no event shall (i) such inspections or tests
unreasonably disrupt or disturb the on-going operation of the Property or the
rights of the tenants at the Property, or (ii) Purchaser or its agents or
representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Property (or any part or portion
thereof) including, without limitation, any ground borings or invasive testing
of the Improvements (collectively, "Physical Testing"), without Seller's prior
written consent, which consent may be given or withheld in Seller's sole and
absolute discretion. In the event Purchaser desires to conduct any such Physical
Testing of the Property, then Purchaser shall submit to Seller, for Seller's
approval, a written detailed description of the scope and extent of the proposed
Physical Testing, which approval may be given or withheld in Seller's sole and
absolute discretion. If Seller does not approve the Physical Testing or approves
only a portion thereof, Purchaser may, at its option, by sending written notice
to Seller, elect to, either (i) terminate this Agreement or (ii) conduct during
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the Feasibility Period that portion of the Physical Testing approved by Seller,
if any, or if Seller disapproves the entire proposed Physical Testing,
affirmatively agree to forego any Physical Testing of the Property. In the event
Purchaser terminates this Agreement as aforesaid, the Deposit, plus all interest
accrued thereon, shall be immediately refunded to Purchaser and this Agreement
shall terminate and be of no further force and effect other than the Surviving
Termination Obligations (as hereinafter defined). In no event shall Seller be
obligated as a condition of this transaction to perform or pay for any
environmental remediation of the Property recommended by any such Physical
Testing. After making such tests and inspections, Purchaser agrees to promptly
restore the Property to its condition prior to such tests and inspections (which
obligation shall survive the Closing or any termination of this Agreement).
Prior to Purchaser entering the Property to conduct the inspections and tests
described above, Purchaser shall obtain and maintain, at Purchaser's sole cost
and expense, and shall deliver to Seller evidence of, the following insurance
coverage, and shall cause each of its agents and contractors to obtain and
maintain, and, upon request of Seller, shall deliver to Seller evidence of, the
following insurance coverage: general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of One Million and No/100 Dollars
($1,000,000.00) combined single limit for personal injury and property damage
per occurrence, such policy to name Seller as an additional insured party, which
insurance shall provide coverage against any claim for personal liability or
property damage caused by Purchaser or its agents, employees or contractors in
connection with such inspections and tests. Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its agents
do not unreasonably interfere with Purchaser's inspection.
5.2. Inspection Obligations and Indemnity. Purchaser and its agents and
representatives shall: (a) not unreasonably disturb the tenants of the
Improvements or interfere with their use of the Real Property pursuant to their
respective Leases; (b) not interfere with the operation and maintenance of the
Real Property; (c) not damage any part of the Property or any personal property
owned or held by any tenant; (d) not injure or otherwise cause bodily harm to
Seller, its agents, contractors and employees or any tenant; (e) promptly pay
when due the costs of all tests, investigations and examinations done with
regard to the Property; (f) not permit any liens to attach to the Property by
reason of the exercise of its rights hereunder; (g) restore the Improvements and
the surface of the Real Property to the condition in which the same was found
before any such inspection or tests were undertaken; and (h) not reveal or
disclose any information obtained during the Feasibility Period concerning the
Property to anyone outside Purchaser's organization other than its agents,
consultants, representatives and lenders and its and their legal counsel, or as
otherwise required by applicable law. Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Property and Physical Testing. Purchaser shall, and does hereby agree to
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indemnify, defend and hold the Seller, its partners, officers, directors,
employees, agents, attorneys and their respective successors and assigns,
harmless from and against any and all claims, demands, suits, obligations,
payments, damages, losses, penalties, liabilities, costs and expenses (including
but not limited to reasonable attorneys' fees) arising out of Purchaser's or
Purchaser's agents' actions taken in, on or about the Property in the exercise
of the inspection right granted pursuant to Section 5.1, including, without
limitation, (i) claims made by any tenant against Seller for Purchaser's entry
into such tenant's premises or any interference with any tenant's use or damage
to its premises or property in connection with Purchaser's review of the
Property, and (ii) Purchaser's obligations pursuant to this Section 5.2. This
Section 5.2 shall survive the Closing and/or any termination of this Agreement.
5.3. Seller Deliveries. Seller shall use its reasonable, good faith
efforts to deliver to Purchaser or make available at the Property, at Seller's
option, all of the items specified on Exhibit B, attached hereto (the
"Documents"), within five (5) days after the Effective Date; provided, however,
except as otherwise expressly set forth in Section 7.1 hereof, Seller makes no
representations or warranties of any kind regarding the accuracy, thoroughness
or completeness of or conclusions drawn in the information contained in such
documents, if any, relating to the Property. Purchaser hereby waives any and all
claims against Seller arising out of the accuracy, completeness, conclusions or
statements expressed in materials so furnished and any and all claims arising
out of any duty of Seller to acquire, seek or obtain such materials.
Notwithstanding anything contained in the preceding sentence, Seller shall not
deliver or make available to Purchaser Seller's internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Property, and reports regarding the Property prepared by
Seller or its affiliates solely for internal use or for the information of the
investors in Seller. Purchaser acknowledges that any and all of the Documents
that are not otherwise known by or available to the public are proprietary and
confidential in nature and will be delivered to Purchaser solely to assist
Purchaser in determining the feasibility of purchasing the Property. Other than
as may be required by law, Purchaser agrees not to disclose such non-public
Documents, or any of the provisions, terms or conditions thereof, to any party
outside of Purchaser's organization other than its agents, consultants,
representatives and lenders, and its and their legal counsel. Purchaser shall
return all of the Documents, on or before three (3) business days after the
first to occur of (a) such time as Purchaser notifies Seller in writing that it
shall not acquire the Property, or (b) such time as this Agreement is terminated
for any reason. This Section 5.3 shall survive any termination of this Agreement
without limitation.
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5.4. Independent Examination. Purchaser hereby acknowledges that it has
been, or will have been given, prior to the termination of the Feasibility
Period, a full, complete and adequate opportunity to make such legal, factual
and other determinations, analyses, inquiries and investigations as Purchaser
deems necessary or appropriate in connection with the acquisition of the
Property. Purchaser is relying upon its own independent examination of the
Property and all matters relating thereto and not upon any statements of Seller
(excluding the limited matters expressly represented by Seller in Article VII
hereof, or as otherwise expressly set forth herein) or of any officer, director,
employee, agent or attorney of Seller with respect to acquiring the Property.
Seller shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser. The provisions of this Section 5.4 shall survive Closing
and/or termination of this Agreement.
5.5. Termination Right. In the event that Purchaser determines that it
does not desire to acquire the Property as a result of its analyses, inquiries,
tests, investigations or inspections under Section 5.1, Purchaser shall provide
written notice to Seller upon or before the end of the Feasibility Period, and
subject to the Surviving Termination Obligations (as defined in Section 16.12
herein) this Agreement shall terminate, the Deposit shall be delivered to
Purchaser and thereupon neither party shall have any further rights or
obligations to the other hereunder. If Purchaser shall fail to timely notify
Seller in writing of its election to terminate this Agreement on or before the
expiration of the Feasibility Period, time being of the essence, the termination
right described in this Section 5.5 shall be immediately null and void and of no
further force or effect. Purchaser's failure to provide such notice on or before
the end of the Feasibility Period shall constitute Purchaser's waiver of the
herein-described termination right.
5.6. Copies of Reports. As additional consideration for the transaction
contemplated herein, Purchaser agrees that it will provide to Seller, within
five (5) days following a written request therefore, copies of any and all final
reports, tests or studies relating to the Property, including but not limited to
those involving environmental matters. Purchaser shall provide Seller with a
list of the reports, tests and studies to be undertaken on Purchaser's behalf
and the additional cost, if any, of having each such report addressed to both
Seller and Purchaser and Seller may elect to pay such additional cost, in which
event Purchaser shall cause such report(s) to be addressed to both parties.
Notwithstanding any provision of this Agreement, no termination of this
Agreement shall terminate Purchaser's obligations pursuant to the foregoing
sentence.
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ARTICLE VI.
Title and Survey Matters
6.1. Title. Purchaser hereby acknowledges receipt of copies of Seller's
most recent title insurance commitment and/or policy covering the Property.
Purchaser has applied for a title insurance commitment (the "Commitment") for an
Owner's Policy of Title Insurance, issued by Commonwealth Land Title Insurance
Company (National Title Service) (the "Title Company"), covering the Real
Property, together with a copy of all exceptions set forth therein. Purchaser
shall notify Seller not later than twenty (20) days after the Effective Date in
writing of any title exceptions identified in the Commitment which Purchaser
disapproves. Any exception not disapproved in writing within such time period
shall be deemed approved by Purchaser and shall constitute a "Permitted
Exception" hereunder. Purchaser and Seller hereby agree that (i) all
non-delinquent property taxes and assessments, (ii) the rights of the tenants
under the Leases and Approved New Leases, and (iii) all matters created by or on
behalf or Purchaser, including, without limitation, any documents or instruments
to be recorded as part of any financing for the acquisition of the Property by
Purchaser shall constitute "Permitted Exceptions" (subject to appropriate
prorations for taxes and assessments as hereinabove provided). Without Seller's
prior written consent, Purchaser shall not make any application to any
governmental agency for any permit, approval, license or other entitlement for
the Property or the use or development thereof, other than a township or
municipal officer's zoning certificate, for which Purchaser may apply, provided
that (i) such application or certificate does not by its terms require an
inspection of the Property and (ii) Purchaser does not receive prior notice from
the zoning authority that a request for such certificate will cause an
inspection of the Property. It is acknowledged that the matters on Exhibit D
attached hereto are exceptions to title as shown on Seller's title policy.
Seller shall have no obligation in connection with this Agreement to modify such
matters, and Purchaser shall have no obligation to accept such matters unless
Purchaser shall fail to object thereto in accordance with this Agreement. Not
later than five (5) business days after receipt of notice of disapproval from
Purchaser, Seller shall notify Purchaser in writing of any disapproved title
exceptions which Seller is unable or unwilling to cause to be removed or insured
against prior to or at Closing and, with respect to such exceptions, Purchaser
then shall elect, by giving written notice to Seller within three (3) days
thereafter, (x) to terminate this Agreement, or (y) to waive its disapproval of
such exceptions, in which case such exceptions shall then be deemed to be
Permitted Exceptions. Purchaser's failure to give such notice shall be deemed an
election to waive the disapproval of any such exception. In the event Purchaser
elects to terminate this Agreement in accordance with clause (x) above, the
Deposit, plus all interest accrued thereon, shall be immediately refunded to
Purchaser; provided, however, that Purchaser shall be responsible for any title
fees. Seller shall be obligated to cause to be discharged, insured against or
bonded over any monetary liens encumbering the Property prior to Closing;
provided, however, Seller may only bond over or insure over liens in an amount
less than or equal to $1 million (other than liens which are insured over by the
title company pursuant to a pay-off letter from an institutional mortgage lender
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which shall not be subject to the $1 million limitation). Notwithstanding the
foregoing, in the event such title encumbrance results from a matter willfully
caused by Seller from and after the Effective Date, Seller shall take
affirmative action to cure such title defect. The parties hereby acknowledge
that there currently exists a mortgage encumbering the Property held by Seller.
Seller and Purchaser shall, prior to the end of the Feasibility Period, agree in
writing as to whether Seller shall assign all of its right, title and interest
in and to the Mortgage to Purchaser at Closing or whether Seller shall cause the
discharge of the Mortgage in order to effect Closing hereunder.
6.2. Survey. Purchaser hereby acknowledges receipt of a copy of the
most recent survey for the Property in Seller's possession. Purchaser shall, at
its sole cost and expense, within three (3) days from the Effective Date, order
a survey of the Real Property (the "Survey"). If the Survey discloses any
matters which are unacceptable to Purchaser, Purchaser shall notify Seller in
writing within twenty five (25) days after the Effective Date of any matters
identified on the Survey which Purchaser disapproves. Purchaser shall furnish a
copy of the Survey to Seller and the Title Company. Any survey matter not
disapproved in writing within said time period shall be deemed approved by
Purchaser and shall constitute a "Permitted Exception" hereunder. Seller may,
not later than ten (10) days after receipt of notice of disapproval from
Purchaser, have the matters to which Purchaser has objected removed; provided,
however, in no event will Seller be obligated to incur costs to do so.
ARTICLE VII.
Representations and Warranties of the Seller
7.1. Seller's Representations. Seller represents and warrants that
the following matters are true and correct as of the Effective Date with
respect to the Property to the current actual knowledge of Seller.
7.1.1. Authority. Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
This Agreement has been duly authorized, executed and delivered by Seller, is
the legal, valid and binding obligation of Seller, and does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject. All documents to be executed by Seller which are to be
delivered at Closing (i) will be duly authorized, executed and delivered by
Seller, (ii) will be legal, valid and binding obligations of Seller, and (iii)
will not violate any provision of any agreement or judicial order to which
Seller is a party or to which Seller is subject.
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7.1.2. Bankruptcy or Debt of Seller. Seller has not made a general
assignment for the benefit of creditors, filed any voluntary petition in
bankruptcy, admitted in writing its inability to pay its debts as they come due
or made an offer of settlement, extension or composition to its creditors
generally. Seller has received no written notice of (a) the filing of an
involuntary petition by Seller's creditors, (b) the appointment of a receiver to
take possession of all, or substantially all, of Seller's assets, or (c) the
attachment or other judicial seizure of all, or substantially all, of Seller's
assets.
7.1.3. Environmental Reports. The reports listed on Exhibit F
attached hereto constitute all of the reports prepared by third party
environmental consultants to the express benefit of Seller within the previous
four (4) years in Seller's possession. Seller has received no written notice
from any governmental authority that the Property is in violation of any
federal, state and local laws, ordinances and regulations applicable to the
Property with respect to hazardous or toxic substances (collectively,
"Environmental Laws"), which violation has not been corrected. Notwithstanding
the foregoing representations and warranties, the acts, if any, of Seller's past
or current tenants shall not be imputed to Seller unless Seller shall have
actual knowledge thereof.
7.1.4. Foreign Person. Seller is not a foreign person within the
meaning of Section 1445(f) of the Internal Revenue Code, and Seller agrees to
execute any and all documents necessary or required by the Internal Revenue
Service or Purchaser in connection with such declaration(s).
7.1.5. Employment. Seller has no employees at the Property.
Purchaser shall assume no liability or responsibility for Seller's employees.
7.1.6. Service Contracts. Attached hereto as Exhibit N is a list
prepared by The ▇▇▇▇▇ Company (the "Property Manager") of all Contracts. Unless
otherwise directed by Purchaser on or before the end of the Feasibility Period,
and except as hereinafter expressly provided, the Contracts shall not be
terminated by Seller as of Closing but shall be assigned to and assumed by
Purchaser at Closing. Anything in this Section 7.1.6 to the contrary
notwithstanding, Seller represents and warrants that the management agreement
with the Property Manager and all leasing agreements entered into by Seller or
the Property Manager relating to the Property shall be terminated as of Closing.
7.1.7. Leases. Seller has received no notice of any oral or
written leases affecting the Property other than the leases ("Leases") listed on
the rent rolls attached hereto as Exhibit G. Seller
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has not assigned, pledged, hypothecated or otherwise encumbered the Leases
except as collateral for an existing mortgage upon the Property, if any, which
shall be released of record at or before Closing. In reliance upon a certificate
from the Property Manager and without any independent verification by Seller,
Exhibit G set forth and the current balance of unapplied and unreturned security
deposits from tenants being held by Seller and the amount of any prepaid rents
under any of the Leases.
7.1.8. Compliance With Law. Seller has received no written notice
of any violations issued by a Governmental Authority having jurisdiction over
the Property which violation has not been corrected. Notwithstanding the
foregoing representation and warranty, the knowledge, if any,of Seller's past or
current tenants shall not be imputed to Seller unless Seller shall have actual
knowledge thereof.
7.1.9. Insurance. Attached hereto as Exhibit M is a copy of an
insurance certificate summarizing Seller's insurance coverage with respect to
the Property.
7.1.10 Operating Statement. Seller has previously delivered to
Purchaser copies of Seller's unaudited annual operating statements with respect
to the Property for the prior three (3) fiscal years.
7.1.11. Rights to Purchase. Seller has not entered into any
outstanding written agreements, options, rights of first refusal, conditional
sales agreements or other agreements or arrangements regarding the purchase and
sale of the Property, other than the Leases and such matters of record.
7.1.12. No Litigation. Seller has received no written notice of
any lawsuits pending or threatened against or relating to the Property other
than actions, if any, taken by Seller in connection with Seller's enforcement of
lease obligations relating to tenant defaults set forth on Exhibit G.
7.1.13. Condemnation. Seller has received no written notice of any
condemnation or eminent domain proceeding pending or threatened with regard to
any part of the Property.
7.1.14. No Brokers. Seller has received no written notice of any
unpaid brokerage commissions which will be due and payable to any person, firm,
corporation or other entity with respect to or on account of any Leases except
as indicated on Exhibit O.
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7.1.15. Completion of Tenant Improvement Obligations. In reliance
solely upon a certificate from the Property Manager and without independent
verification by Seller, the Seller has completed the tenant improvements
required to be completed as of the date hereof under the Leases, except as set
forth on Exhibit O.
7.2. Seller's Knowledge. For purposes of this Agreement and any
document delivered at Closing, whenever the phrases "to the best of Seller's
knowledge", "to the current, actual knowledge of Seller" or the "knowledge" of
Seller or words of similar import are used, they shall be deemed to refer to the
actual knowledge only, and not any implied, imputed or constructive knowledge,
without any independent investigation having been made or any implied duty to
investigate, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
7.3. Change in Representation/Waiver. Notwithstanding anything to the
contrary contained herein, Purchaser acknowledges that Purchaser shall not be
entitled to rely on any representation made by Seller in this Article VII to the
extent, prior to Closing, Purchaser shall have or obtain actual knowledge of any
information that was contradictory to such representation or warranty; provided,
however, if Purchaser determines prior to Closing that there is a breach of any
of the representations and warranties made by Seller above or learns of any
pending legal proceedings or administrative actions or any violations of
existing laws, ordinances, regulations and building, codes affecting the
Property which would otherwise enable Purchaser to terminate this Agreement in
accordance with its terms, then Purchaser may, at its option, by sending to
Seller written notice of its election either (i) terminate this Agreement or
(ii) waive such breach and/or conditions and proceed to Closing with no
adjustment in the Purchase Price and Seller shall have no further liability as
to such matter thereafter. In the event Purchaser terminates this Agreement for
the reasons set forth above, the Deposit, plus all interest accrued thereon,
shall be immediately refunded to Purchaser and neither Purchaser nor Seller
shall thereafter have any other rights or remedies hereunder other than under
Section 16.12 hereof. In furtherance thereof, Seller shall have no liability
with respect to any of the foregoing representations and warranties to the
extent that, prior to the Closing, Purchaser discovers or learns of information
(from whatever source, including, without limitation, the property manager, the
tenant estoppel certificates delivered pursuant to Section 10.2.4 below, as a
result of Purchaser's due diligence tests, investigations and inspections of the
Property, or disclosure by Seller or Seller's agents and employees) that
contradicts any of the foregoing representations and warranties, or renders any
of the foregoing representations and warranties untrue or incorrect, and
Purchaser nevertheless consummates the transaction contemplated by this
Agreement.
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7.4. Survival. The express representations and warranties made in this
Agreement shall not merge into any instrument or conveyance delivered at the
Closing; provided, however, that (i) any alleged claim with respect to the
truth, accuracy or completeness of such representations and warranties shall be
brought to the attention of Seller in writing, if at all, on or before the date
which is nine (9) months after the date of the Closing and, if not brought to
the attention of Seller in writing on or before such date, thereafter such
representations and warranties shall be void and of no force or effect; provided
further that in the event Purchaser notifies Seller of an alleged claim within
said nine (9) month period pursuant to this Section 7.4, Purchaser may commence
an action with respect to such claim, if at all, on or before that date which is
twelve (12) months after the date of the Closing and, if not commenced on or
before such date, thereafter such representations and warranties shall be void
and of no force or effect.
ARTICLE VIII.
Representations, Warranties and Covenants of Purchaser
8.1 Representations and Warranties. Purchaser represents and warrants
to Seller that the following matters are true and correct as of the Effective
Date.
8.1.1. Authority. Purchaser is a limited partnership duly
organized and validly existing under the laws of the State of Delaware. This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or to
which Purchaser is subject. All documents to be executed by Purchaser which are
to be delivered at Closing, at the time of Closing will be duly authorized,
executed and delivered by Purchaser, at the time of Closing will be legal, valid
and binding obligations of Purchaser, and at the time of Closing will not
violate any provision of any agreement or judicial order to which Purchaser is a
party or to which Purchaser is subject.
8.1.2. Bankruptcy or Debt of Purchaser. Purchaser represents and
warrants to Seller that Purchaser has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by Purchaser's creditors, suffered the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser's assets, suffered the attachment or other judicial seizure of all, or
substantially all, of Purchaser's assets, admitted in writing its inability to
pay its debts as they come due or made an offer of settlement, extension or
composition to its creditors generally.
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8.1.3. ERISA Compliance. Purchaser represents and warrants to
Seller that (i) Purchaser is not a "plan" nor an entity holding or deemed to
hold "plan assets" (as those terms are defined under the Employee Retirement
Income Security Act of 1974, as amended, and the applicable regulations issued
thereunder, collectively, "ERISA") and that upon the Closing under this
Agreement, the Property shall not constitute such "plan assets" and (ii)
Purchaser shall not assign the right to acquire the Property pursuant to this
Agreement unless such assignee is not a "plan" nor an entity holding or deemed
to hold "plan assets" (in each case, as defined above), nor a "fiduciary" (as
defined in section 3(21) of ERISA) of any "employee benefit plan" (as defined in
section 3(3) of ERISA), other than for a plan maintained for the benefit of such
assignee's employees, former employees or beneficiaries, or the employees,
former employees or beneficiaries of a member of the "controlled group" that
includes such assignee (as defined in section 412(n)(6)(B) of the Internal
Revenue Code of 1986, as amended). Seller shall not have any obligation to close
the transaction contemplated by this Agreement if the transaction for any reason
constitutes a prohibited transaction under ERISA or if Purchaser's
representation is found to be false or misleading in any respect or if Purchaser
breaches the foregoing covenant relating to assignment. The foregoing
representation, warranty and covenant shall survive the Closing.
8.2. No Financing Contingency. It is expressly acknowledged by
Purchaser that this transaction is not subject to any financing contingency, and
no financing for this transaction shall be provided by Seller. Purchaser has
heretofore delivered to Seller true and correct copies of its most recent annual
financial statements.
8.3. Purchaser's Acknowledgment. Purchaser acknowledges and agrees
that, except as expressly provided in this Agreement, Seller has not made, does
not make and specifically disclaims any representations, warranties, promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to (a) the nature, quality or condition of the
Property, including, without limitation, the water, soil and geology, (b) the
income to be derived from the Property, (c) the suitability of the Property for
any and all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules
and regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular purpose of the
Property, or (f) any other matter with respect to the Property, and specifically
that Seller has not made, does not make and specifically disclaims any
representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of any hazardous substance, as defined by the
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Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, and applicable state laws, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that, except as expressly provided in
this Agreement, having been given the opportunity to inspect the Property,
Purchaser will be relying solely on its own investigation of the Property and
not on any information provided or to be provided by Seller other than as
expressly set forth herein. Purchaser further acknowledges and agrees that any
information provided or to be provided with respect to the Property was obtained
from a variety of sources and that Seller has not made any independent
investigation or verification of such information. Purchaser further
acknowledges and agrees that, except as expressly provided in this Agreement,
and as a material inducement to the execution and delivery of this Agreement by
Seller, the sale of the Property as provided for herein is made on an "AS IS,
WHERE IS" CONDITION AND BASIS "WITH ALL FAULTS." Purchaser acknowledges,
represents and warrants that Purchaser is not in a significantly disparate
bargaining position with respect to Seller in connection with the transaction
contemplated by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction and Purchaser has conferred with such legal counsel
concerning this waiver.
8.4. Purchaser's Release. Effective as of the date of Closing,
Purchaser on behalf of itself and its successors and assigns waives its right to
recover from, and forever releases and discharges, Seller, Seller's affiliates,
Seller's investment manager, property manager, the partners, trustees,
shareholders, beneficiaries, directors, officers, employees, attorneys and
agents of each of them, and their respective heirs, successors, personal
representatives and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liabilities, damages, penalties, fines,
liens, judgments, costs or expenses known or unknown, foreseen or unforeseen,
that may arise on account of or in any way be connected with (i) the physical
condition of the Property, (ii) the condition of title to the Property, (iii)
the presence on, under or about the Property of any Hazardous Substance, or (iv)
the Property's compliance with any applicable federal, state or local law, rule
or regulation, except such as arises out of breach of any of the representations
and warranties of Seller set forth in Article VII or elsewhere in this
Agreement, or Seller's fraud or intentional tortious wrongdoing. The terms and
provisions of this Section 8.4 shall survive Closing and/or termination of this
Agreement.
8.5. Survival. The express representations and warranties made in this
Agreement by Purchaser shall not merge into any instrument of conveyance
delivered at the Closing; provided, however, that any alleged claim with respect
to the truth, accuracy or completeness of such representations and warranties
(except for the representation and warranty set
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forth in Section 8.1.3) shall be brought to the attention of Purchaser in
writing, if at all, on or before the date which is nine (9) months after the
date of the Closing and, if not brought to the attention of Purchaser in writing
on or before such date, thereafter such representations and warranties shall be
void and of no force or effect; provided further that in the event Seller
notifies Purchaser of an alleged claim within said nine (9) month period
pursuant to this Section 8.5, Seller may commence an action with respect to such
claim, if at all, on or before that date which is twelve (12) months after the
date of the Closing and, if not commenced on or before such date, thereafter
such representations and warranties shall be void and of no force or effect. The
representation and warranty set forth in Section 8.1.3 hereof shall survive
Closing and/or termination of this Agreement.
ARTICLE IX.
Seller's Interim Operating Covenants.
9.1. Operations. Seller agrees to continue to operate, manage and
maintain the Improvements through the Closing Date in the ordinary course of
Seller's business and substantially in accordance with Seller's present
practice, subject to ordinary wear and tear and further subject to Article XII
of this Agreement.
9.2. Maintain Insurance. Seller agrees to maintain until the Closing
Date fire and extended coverage insurance and rent loss insurance on the
Property which is at least equivalent in all material respects to the insurance
policies covering the Real Property and the Improvements as of the Effective
Date. Subject to the provisions of Article IV and Article VI hereof, Seller
shall pay, in the ordinary course of business, prior to Closing, all sums due
for work, materials or services furnished to the Property.
9.3. Personal Property. Seller agrees not to transfer or remove any
Personal Property from the Improvements after the Effective Date except for
repair or replacement thereof. Any items of Personal Property replaced after the
Effective Date shall be promptly installed prior to Closing and shall be of
substantially similar quality (and of at least comparable condition) to the item
of Personal Property being replaced.
9.4. No Sales. Except for the execution of tenant Leases pursuant to
Section 9.5, Seller agrees that it shall not convey any interest in the Property
to any third party.
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9.5. Tenant Leases. Seller shall not, from and after the expiration of
the Feasibility Period, (i) grant any consent or waive any material rights under
the Leases, (ii) terminate any Lease, or (iii) enter into a new lease, modify an
existing Lease or renew, extend or expand an existing Lease, in each case
without the prior written approval of Purchaser (an "Approved New Lease"), which
in each case shall not be unreasonably withheld, conditioned or delayed, and
which shall be deemed granted if Purchaser fails to respond to a request for
approval within five (5) business days after receipt of the request therefor
together with a summary of lease terms and credit information of the proposed
tenant. In the event that Seller shall enter into, modify, renew, grant
concessions or terminate a Lease prior to the expiration of the Feasibility
Period, it shall promptly notify Purchaser in writing thereof.
9.6. Alterations. Seller shall not make or permit to be made any
alteration, improvement or addition with a value in excess of Fifty Thousand
Dollars ($50,000.00) without the prior written consent of Purchaser, except
those made by Seller pursuant to the express requirements of this Agreement,
those made by tenants pursuant to the right to do so under their Leases, or by
Seller if required by applicable law or ordinance, or as required under any
Lease or Approved New Lease.
9.7. ▇▇▇▇ Tenants. Seller shall ▇▇▇▇ all tenants for all rent due and
payable under Leases, and shall use commercially reasonable efforts to collect
any rent in arrears.
9.8. Notice to Purchaser. Seller shall instruct the Property Manager to
notify Purchaser of the occurrence of any of the following:
(i) a fire or other casualty causing damage to the Property or any
portion thereof;
(ii) receipt of written notice of eminent domain proceedings or
condemnation of or affecting the Property, or any portion thereof;
(iii) receipt of written notice from any Governmental Authority of
a violation of law;
(iv) receipt of written notice of any actual or threatened
litigation which would affect the Property or any portion thereof after Closing;
or
(v) termination of any lease prior to the expiration of its term.
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9.9 Comply with Leases. Seller shall timely perform all obligations of
landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, subject to the provisions of
Article IV and Article VI hereof.
9.10. No New Agreements. Except for (i) agreements which can be
terminated upon not more than thirty (30) days' notice and (ii) tenant leases
(to the extent permitted under the terms of this Agreement), Seller shall not
enter into any other agreements which affect the Property or the transactions
contemplated by this Agreement, without the prior written consent of Purchaser.
9.11. Tax Disputes. Seller shall notify Purchaser of any tax assessment
disputes (pending or threatened) prior to Closing, and shall not consent to any
changes in the real estate tax assessment, nor settle, withdraw or otherwise
compromise any pending claims with respect to prior tax assessments, without
Purchaser's prior written consent. If any proceedings (either prior to or after
Closing) shall result in any reduction of assessment and/or tax for the tax year
in which the Closing occurs, it is agreed that the amount of tax savings or
refund for such tax year, less the reasonable fees and disbursements in
connection with such proceedings, shall be apportioned between the parties as of
the date real estate taxes are apportioned under this Agreement.
ARTICLE X.
Closing Conditions.
10.1. Conditions to Obligations of Seller. The obligations of Seller
under this Agreement to sell the Property and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Closing Date except to the extent that any of such
conditions may be waived by Seller in writing at Closing.
10.1.1. Representations, Warranties and Covenants of Purchaser.
All representations and warranties of Purchaser in this Agreement shall be true
and correct in all material respects as of the Closing Date, with the same force
and effect as if such representations and warranties were made anew as of the
Closing Date. Any changes to such representations disclosed by Purchaser
pursuant to Section 11.1.5 shall be acceptable to Seller, in its sole
discretion, and Purchaser shall have performed and complied with all covenants
and agreements required by this Agreement to be performed or complied with by
Purchaser prior to the Closing Date.
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10.1.2. No Orders. No order, writ, injunction or decree shall have
been entered and be in effect by any court of competent jurisdiction or any
Authority, and no statute, rule, regulation or other requirement shall have been
promulgated or enacted and be in effect, that restrains, enjoins or invalidates
the transactions contemplated hereby.
10.2. Conditions to Obligations of Purchaser. The obligations of
Purchaser under this Agreement to purchase the Property and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.
10.2.1. Representations, Warranties and Covenants of Seller. All
representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date. Any changes to such representations disclosed by Seller pursuant
to Section 11.2.5 shall be acceptable to Purchaser, in its sole discretion, and
Seller shall have performed and complied in all material respects with all
covenants and agreement required by this Agreement to be performed or complied
with by Seller prior to the Closing Date.
10.2.2. No Orders. No order, writ, injunction or decree shall have
been entered and be in effect by any court of competent jurisdiction or any
Governmental Authority, and no statute, rule, regulation or other requirement
shall have been promulgated or enacted and be in effect, that restrains, enjoins
or invalidates the transactions contemplated hereby.
10.2.3. [Intentionally Omitted.]
10.2.4. Tenant Estoppels. Purchaser shall have received Tenant
estoppel certificates substantially in the form attached hereto as Exhibit C
(and reporting information consistent with Seller's representations, herein, if
any, the rent roll attached hereto and the Leases heretofore delivered), from
First USA and Brandywine Asset Management Inc. Notwithstanding the foregoing, at
Seller's sole option, Seller may (i) extend the Closing Date for up to an
additional thirty (30) days in order to satisfy the foregoing requirement in
which event Seller shall deliver notice of such extension to Purchaser not less
than five (5) days prior to the then existing Closing Date, and/or (ii) provide
its own estoppel ("Seller's Estoppel") in the form attached as Exhibit L to
Purchaser with respect to any or all tenants in satisfaction of the foregoing
requirements. In the event that, after the Closing, Seller delivers to Purchaser
a tenant estoppel certificate from a tenant for whom Seller executed a Seller's
Estoppel at the Closing and such tenant estoppel certificate contains no
information which is contradictory to or inconsistent with the information
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contained in the Seller's Estoppel, then Seller thereafter shall be released
from all liability relating to Seller's Estoppel with respect to such tenant's
Lease.
10.2.5. Title Policy. Upon recordation of the Deed and payment of the
title insurance premiums, the Title Company shall be prepared to issue to
Purchaser an Owner's Policy of Title Insurance insuring Purchaser good and
marketable fee simple title to the Property subject only to the Permitted
Exceptions.
10.2.6. Possession of the Property. Delivery by Seller of possession of
the Property, subject to the Permitted Exceptions and the rights of tenants
under the Leases and Approved New Leases.
ARTICLE XI.
Closing
11.1. Purchaser's Closing Obligations. Purchaser, at its sole cost and
expense, shall deliver or cause to be delivered to Seller at Closing the
following:
11.1.1. The Purchase Price, after all adjustments are made at the
Closing as herein provided, by wire transfer or other immediately available
federal funds, which amount shall be received in escrow by the Title Company at
or before 11:00 a.m. Eastern time.
11.1.2. A blanket conveyance and ▇▇▇▇ of sale, substantially in
the form attached hereto as Exhibit I (the "General Assignment"), duly executed
by Purchaser (with reciprocal indemnities by Purchaser and Seller), conveying
and assigning to Purchaser the Personal Property, the Leases, the Contracts, the
records and plans, and the Intangible Property.
11.1.3. Evidence reasonably satisfactory to Seller and the Title
Company that the person executing the Closing documents on behalf of Purchaser
has full right, power and authority to do so.
11.1.4. Written notice executed by Purchaser and addressed to the
tenants, (i) acknowledging the sale of the Property to Purchaser, (ii)
acknowledging that Purchaser has received and is responsible for any security
deposits identified in the rent roll, and (iii) indicating that rent should
thereafter be paid to Purchaser and giving instructions therefor.
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11.1.5. A certificate indicating that the representations and
warranties set forth in Article VIII are true and correct on the Closing Date,
or, if there have been changes, describing such changes.
11.1.6. Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transactions which are the subject
of this Agreement.
11.2. Seller's Closing Obligations. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Purchaser the following:
11.2.1. A deed (the "Deed") in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple subject
only to the Permitted Exceptions, substantially in the form attached hereto as
Exhibit H.
11.2.2. The General Assignment, duly executed by Seller, conveying
and assigning to Purchaser the Personal Property, the Leases, the Contracts, the
records and plans and the Intangible Property.
11.2.3. Written notice executed by Seller and addressed to the
tenants, (i) acknowledging the sale of the Property to Purchaser, (ii)
acknowledging that Purchaser has received and is responsible for any security
deposits identified in the rent roll, and (iii) indicating that rent should
thereafter be paid to Purchaser. substantially in the form attached hereto as
Exhibit J.
11.2.4. Evidence reasonably satisfactory to Purchaser and the
Title Company that the person executing the Closing documents on behalf of
Seller has full right, power and authority to do so.
11.2.5. A certificate indicating that the representations and
warranties set forth in Article VII are true and correct on the Closing Date,
or, if there have been changes, describing such changes.
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11.2.6. A certificate substantially in the form attached hereto as
Exhibit K ("Non-foreign Entity Certification") certifying that Seller is not a
"foreign person" as defined in Section 1445 of the Internal Revenue Code of
1986, as amended.
11.2.7. The following items, to the extent in Seller's possession:
(i) all keys, combinations and security codes for all locks and security devices
on the Property which are in Seller's possession; (ii) all tenant files,
operating reports, plans and specifications and other materials reasonably
necessary to the continuity of operation of the Property; (iii) the originals
(or copies where originals are not available) of the Leases, the service
contracts and the licenses and permits; and (iv) certificates of insurance from
the tenants in Seller's possession. Seller shall certify that a copy of a Lease
is true, correct and complete to its knowledge with respect to those Leases for
which Purchaser has not received an original Lease or a tenant estoppel
certificate so certifying as to such Lease.
11.2.8. Such affidavits of title as shall be required by the Title
Company to insure Purchaser's title to the Property as set forth in Section
10.2.5, and to provide affirmative endorsements against mechanic's liens.
11.2.9. A rent roll updated as of not more than three (3) business
days prior to the Closing Date, certified by Seller as true and correct.
11.2.10. Evidence as required by the title company of the good
standing and existence of Seller and the due authority of those executing for
Seller.
11.2.11. Current tax bills and, if available, tax bills for each
of the past two (2) years of Seller's ownership of the Property.
11.2.12. Such other documents as are specified in this Agreement,
or as may be reasonably necessary or appropriate to effect the consummation of
the transactions which are the subject of this Agreement.
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ARTICLE XII.
Risk of Loss.
12.1. Condemnation and Casualty. If, prior to the Closing Date,all or
any portion of the Property is taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such fact
promptly after Seller obtains knowledge thereof. If such condemnation or
casualty is "Material" (as hereinafter defined), Purchaser shall have the option
to terminate this Agreement upon notice to Seller given not later than fifteen
(15) days after receipt of Seller's notice, or the Closing Date, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except with respect to the
Surviving Termination Obligations. If this Agreement is not terminated, Seller
shall not be obligated to repair any damage or destruction but (x) Seller shall
assign and turn over to Purchaser all of the insurance proceeds or condemnation
proceeds, as applicable, net of any costs of repairs and net of reasonable
collection costs other than attorneys' fees (or, if such have not been awarded,
all of its right, title and interest therein) payable with respect to such fire
or other casualty or condemnation including any rent abatement insurance for
such casualty or condemnation and (y) the parties shall proceed to Closing
pursuant to the terms hereof without abatement of the Purchase Price except for
a credit in the amount of the applicable insurance deductible. Seller hereby
covenants and agrees that after the end of the Feasibility Period if Purchaser
has elected to proceed to Closing and has waived its right to terminate this
Agreement pursuant to Section 5.5, Seller shall be required to obtain
Purchaser's prior approval of the settlement of any insurance or condemnation
proceeds and repairs to the Property resulting from a casualty or condemnation,
such approval not to be unreasonably withheld, conditioned or delayed and which
shall be deemed granted if Purchaser fails to respond to a request for approval
within five (5) business days after receipt of the request therefor.
12.2. Condemnation Not Material. If the condemnation is not Material,
then the Closing shall occur without abatement of the Purchase Price and, after
deducting Seller's reasonable costs and expenses incurred in collecting any
award, Seller shall assign all remaining awards or any rights to collect awards
to Purchaser on the Closing Date.
12.3. Casualty Not Material. If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign and turn over to
Purchaser all of the insurance proceeds net of any costs of repairs and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or such
casualty including any rent abatement insurance for such casualty.
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12.4. Materiality. For purposes of this Article XII (i) with respect to
a taking by condemnation or eminent domain, the term "Material" shall mean any
taking whatsoever, regardless of the amount of the award or the amount of the
Property taken, excluding, however, any taking solely of (x) subsurface rights
or takings for utility easements or right of way easements, if the surface of
the Property, after such taking, may be used in substantially the same manner as
though such rights had not been taken, or (y) a lease of less than 25,000
rentable square feet for a term of less than five years, and (ii) with respect
to a casualty, the term "Material" shall mean any casualty such that the cost of
repair, as reasonably estimated by Seller's engineer, is in excess of One
Million Dollars ($1,000,000.00).
ARTICLE XIII.
Default
13.1. Default by Seller. In the event the Closing and the transactions
contemplated hereby do not occur as provided herein by reason of the default of
Seller, Purchaser may elect, as the sole and exclusive remedy of Purchaser, to
(i) terminate this Agreement and receive the Deposit from the Escrow Agent, and
in such event Seller shall not have any liability whatsoever to Purchaser
hereunder other than with respect to the Surviving Termination Obligations or
(ii) enforce specific performance of this Agreement. If specific performance is
not available as a remedy hereunder due solely to Seller's willful or
intentional breach hereunder, then, upon termination of this Agreement by
Purchaser, in addition to receiving the immediate return of the Deposit,
anything in the Agreement contained to the contrary notwithstanding, Purchaser
shall also receive from Seller, upon demand, Purchaser's actual, documented
out-of-pocket costs and expenses associated with conducting its due diligence
relating to the Property (but expressly excluding legal fees incurred in
connection with negotiating this Agreement). Seller's maximum reimbursement
liability under this Section 13.1 shall not exceed Twenty Thousand Dollars
($20,000.00).
13.2. Default by Purchaser. In the event the Closing and the
transactions contemplated hereby do not occur as provided herein by reason of
any default of Purchaser, Purchaser and Seller agree it would be impractical and
extremely difficult to fix the damages which Seller may suffer. Therefore,
Purchaser and Seller hereby agree a reasonable estimate of the total net
detriment Seller would suffer in the event Purchaser defaults and fails to
complete the purchase of the Property is and shall be, as Seller's sole and
exclusive remedy (whether at law or in equity), a sum equal to the Deposit. Upon
such default by Purchaser, Seller shall have the right to receive the Deposit
from the Escrow Agent as its sole and exclusive remedy and thereupon this
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Agreement shall be terminated and neither Seller nor Purchaser shall have any
further rights or obligations hereunder except with respect to the Surviving
Termination Obligations. The amount of the Deposit shall be the full, agreed and
liquidated damages for Purchaser's default and failure to complete the purchase
of the Property, all other claims to damages or other remedies being hereby
expressly waived by Seller. Notwithstanding the foregoing, nothing contained
herein shall limit Seller's remedies at law or in equity as to the Surviving
Termination Obligations.
ARTICLE XIV.
Brokers
14.1. Brokers. Purchaser and Seller each represents and warrants to the
other that it has not dealt with any person or entity entitled to a brokerage
commission, finder's fee or other compensation with respect to the transaction
contemplated hereby other than The ▇▇▇▇▇ Company, whose compensation shall be
the sole responsibility of Purchaser, and who shall be paid only upon the
Closing of the purchase and sale contemplated hereby pursuant to a separate
agreement. Purchaser hereby agrees to indemnify, defend, and hold Seller
harmless from and against any losses, damages, costs and expenses (including,
but not limited to, reasonable attorneys' fees and costs)
incurred by Seller by reason of any breach or inaccuracy of the Purchaser's
(or its nominee's) representations and warranties contained in this Article
XIV. Seller hereby agrees to indemnify, defend, and hold Purchaser harmless
from and against any losses, damages, costs and expenses (including, but not
limited to, reasonable attorneys' fees and costs) incurred by Purchaser by
reason of any breach or inaccuracy of Seller's representations and warranties
contained in this Article XIV. Seller and Purchaser agree that it is their
specific intent that no broker shall be a party to or a third party
beneficiary of this Agreement or the Deposit, that no broker shall have any
rights or cause of action hereunder, and further that the consent of a broker
shall not be necessary to any agreement, amendment, or document with respect
to the transaction contemplated by this Agreement. The provisions of this
Article XIV shall survive the Closing and/or termination of this Agreement.
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ARTICLE XV.
Confidentiality
15.1. Confidentiality. Seller and Purchaser each expressly acknowledges
and agrees that the transactions contemplated by this Agreement, the Documents
that are not otherwise known by or readily available to the public and the
terms, conditions and negotiations concerning the same shall be held in the
strictest confidence by each of them and shall not be disclosed by either party
except to its respective legal counsel, surveyor, title company, broker,
accountants, consultants, lenders and their counsel, officers, partners,
directors, trustees and shareholders, (the "Authorized Representatives") and
except and only to the extent that such disclosure may be necessary for such
party's performance hereunder. Purchaser agrees that it shall instruct in
writing each of its Authorized Representatives to maintain the confidentiality
of such information and that it shall promptly inform Seller of the identity of
each such Authorized Representative. Purchaser further acknowledges and agrees
that, unless and until the Closing occurs, all information and materials
obtained by Purchaser in connection with the Property that are not otherwise
known by or readily available to the public will not be disclosed by Purchaser
to any third persons (other than to its Authorized Representatives) without the
prior written consent of Seller. If the transaction contemplated by this
Agreement does not occur for any reason whatsoever, Purchaser shall promptly
return to Seller, and shall instruct its Authorized Representatives to return to
Seller, all copies and originals of all documents and information provided to
Purchaser. Nothing contained in this Section 15.1 or elsewhere in this Agreement
shall preclude or limit either party from disclosing or accessing any
information otherwise deemed confidential under this Section 15.1 in connection
with the party's enforcement of its rights following a disagreement hereunder or
in response to lawful process or subpoena or other valid or enforceable order of
a court of competent jurisdiction or any filings with Authorities required by
reason of the transactions provided for herein. The provisions of this Section
15.1 shall survive any termination of this Agreement.
15.2. Post Closing Publication. Notwithstanding the foregoing,
following Closing, Purchaser shall have the right to announce the acquisition of
the Property in newspapers and real estate trade publications (including
"tombstones") publicizing the purchase provided that Purchaser shall consult
with Seller with respect to any such notice or publication, and shall reasonably
consider any comments or objections of Seller. The provisions of this Section
15.2 shall survive Closing and/or any termination of this Agreement.
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ARTICLE XVI.
Miscellaneous
16.1. Notices. Any and all notices, requests, demands or other
communications hereunder shall be deemed to have been duly given if in writing
and if transmitted by hand delivery with receipt therefor, by facsimile delivery
(with confirmation by hard copy), by overnight courier, or by registered or
certified mail, return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a communication may
have notified the sender thereof) (the date of such notice shall be the date of
actual delivery to the recipient thereof):
To Purchaser: Brandywine Operating Partnership, L.P.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President and CEO
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Brandywine Operating Partnership, L.P.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Seller: Advent Realty Limited Partnership II
c/o TA Associates Realty
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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To Escrow Agent: Commonwealth Land Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, VP
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
16.2. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of State of Delaware.
16.3. Headings. The captions and headings herein are for convenience
and reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
16.4. Effective Date. This Agreement shall be effective upon delivery
of this Agreement fully executed by the Seller and Purchaser, which date shall
be deemed the Effective Date hereof. Either party may request that the other
party promptly execute a memorandum specifying the Effective Date.
16.5. Business Days. If any date herein set forth for the performance
of any obligations of Seller or Purchaser or for the delivery of any instrument
or notice as herein provided should be on a Saturday, Sunday or legal holiday,
the compliance with such obligations or delivery shall be deemed acceptable on
the next business day following such Saturday, Sunday or legal holiday. As used
herein, the term "legal holiday" means any state or Federal holiday for which
financial institutions or post offices are generally closed in the state where
the Property is located.
16.6. Counterpart Copies. This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
16.7. Binding Effect. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.
16.8. Assignment. Purchaser may assign this Agreement to a subsidiary
or affiliate entity, including without limitation, Brandywine Operating
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Partnership, L.P., but otherwise shall not have the right to assign the
Agreement without Seller's prior written consent, which consent may be given or
withheld in Seller's sole and absolute discretion; provided that Purchaser shall
in no event be released from any of its obligations or liabilities hereunder as
a result of any such approved or deemed-approved assignment. Whenever reference
is made in this Agreement to Seller or Purchaser, such reference shall include
the successors and assigns of such party under this Agreement.
16.9. Interpretation. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement.
16.10. Entire Agreement. This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings. Purchaser, Seller and
their agents shall not be bound by any terms, conditions, statements, warranties
or representations, oral or written, not contained herein. No change or
modifications to this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. Each party reserves the right to waive any of the
terms or conditions of this Agreement which are for their respective benefit and
to consummate the transaction contemplated by this Agreement in accordance with
the terms and conditions of this Agreement which have not been so waived. Any
such waiver must be in writing signed by the party for whose benefit the
provision is being waived.
16.11. Severability. If any one or more of the provisions hereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
16.12. Survival. Except as otherwise specifically provided for in
Sections 5.1, 5.2, 5.3, 5.4, 7.4, 8.3, 8.5, 12.1, 14.1, 15.1, 15.2 and 16.16
(collectively, the "Surviving Termination Obligations"), the provisions of this
Agreement and the representations and warranties herein shall not survive after
the conveyance of title and payment of the Purchase Price but be merged therein.
16.13. Exhibits. Exhibits A through N attached hereto are incorporated
herein by reference.
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16.14. Time. Time is of the essence in the performance of each of the
parties' respective obligations contained herein.
16.15. Limitation of Liability. The obligations of Seller are binding
only on Seller and Seller's assets and shall not be personally binding upon, nor
shall any resort be had to, the private properties of any of the partners,
officers, directors, shareholders or beneficiaries of Seller, or of any
partners, officers, directors, shareholders or beneficiaries of any partners of
Seller, or of any of Seller's employees or agents. All documents to be executed
by Seller shall also contain the foregoing exculpation. The obligations of
Purchaser are binding only on Purchaser and Purchaser's assets and shall not be
personally binding upon, nor shall any resort be had to, the private properties
of any of the trustees, partners, officers, directors, shareholders or
beneficiaries of Purchaser or Brandywine Realty Trust, or of any trustees,
partners, officers, directors, shareholders or beneficiaries of any partners of
Purchaser or Brandywine Realty Trust, or of any of Purchaser's or Brandywine
Realty Trust's employees or agents. All documents to be executed by Purchaser
shall also contain the foregoing exculpation.
16.16. Prevailing Party. Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party's
reasonable expenses, including reasonable attorneys' fees and expenses in or out
of litigation and, if in litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in connection therewith, as determined by a
court of competent jurisdiction. The provisions of this Section 16.16 shall
survive Closing and/or any termination of this Agreement.
16.17. Escrow Agreement.
16.17.1. Instructions. Within two (2) days after execution of
this Agreement, Purchaser and Seller each shall deposit a copy of this Agreement
executed by such party (or either of them shall deposit a copy executed by both
Purchaser and Seller) with Escrow Agent, and, upon receipt of the Initial
Deposit from Purchaser, Escrow Agent shall immediately execute this Agreement
where provided below. This Agreement, together with such further instructions,
if any, as the parties shall provide to Escrow Agent by written agreement, shall
constitute the escrow instructions. If any requirements relating to the duties
or obligations of Escrow Agent hereunder are not acceptable to Escrow Agent, or
if Escrow Agent requires additional instructions, the parties hereto agree to
make such deletions, substitutions and additions hereto as counsel for Purchaser
and Seller shall mutually approve, which additional instructions shall not
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substantially alter the terms of this Agreement unless otherwise expressly
agreed to by Seller and Purchaser.
16.17.2. Real Estate Reporting Person. Escrow Agent is hereby
designated the "real estate reporting person" for purposes of Section 6045 of
Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so provide.
Upon the consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to Seller
as required under the aforementioned statute and regulation. Seller and
Purchaser shall promptly furnish their federal tax identification numbers to
Escrow Agent and shall otherwise reasonably cooperate with Escrow Agent in
connection with Escrow Agent's duties as real estate reporting person.
16.18. Liability of Escrow Agent. The parties acknowledge that the
Escrow Agent shall be conclusively entitled to rely, except as hereinafter set
forth, upon a certificate from Purchaser or Seller as to how the Deposit (which,
for purposes of this Section shall be deemed to also include any other escrowed
funds held by the Escrow Agent pursuant to this Agreement) should be disbursed.
Any notice sent by Seller or Purchaser (the "Notifying Party") to the Escrow
Agent shall be sent simultaneously to the other noticed parties pursuant to
Section 16.1 herein (the "Notice Parties"). If the Notice Parties do not object
to the Notifying Party's notice to the Escrow Agent within ten (10) days after
the Notice Parties' receipt of the Notifying Party's certificate to the Escrow
Agent, the Escrow Agent shall be able to rely on the same. If the Notice Parties
send, within such ten (10) days, written notice to the Escrow Agent disputing
the Notifying Party's certificate, a dispute shall exist and the Escrow Agent
shall hold the Deposit as hereinafter provided. The parties hereto hereby
acknowledge that Escrow Agent shall have no liability to any party on account of
Escrow Agent's failure to disburse the Deposit if a dispute shall have arisen
with respect to the propriety of such disbursement and, in the event of any
dispute as to who is entitled to receive the Deposit, disburse them in
accordance with the final order of a court of competent jurisdiction, or to
deposit or interplead such funds into a court of competent jurisdiction pending
a final decision of such controversy. The parties hereto further agree that
Escrow Agent shall not be liable for failure to any depository and shall not be
otherwise liable except in the event of Escrow Agent's gross negligence or
willful misconduct. The Escrow Agent shall be reimbursed on an equal basis by
Purchaser and Seller for any reasonable expenses incurred by the Escrow Agent
arising from a dispute with respect to the Deposit. The obligations of Seller
and Purchaser with respect to the Escrow Agent are intended to be binding only
on Seller and Seller's assets and shall not be personally binding upon, nor
shall any resort be had to, the private properties of any of the partners,
officers, trustees, directors, shareholders or beneficiaries of Seller or
Purchaser , or of any partners, officers, trustees, directors, shareholders or
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beneficiaries of any partners of Seller or Purchaser, or of any of Seller's or
Purchaser's employees or agents.
16.19. No Recording. Neither this Agreement nor any memorandum or short
form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
16.20. Waiver of Trial by Jury. The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.
16.21. SEC Reporting Requirements. For the period of time commencing on
the date hereof and continuing through the first anniversary of the Closing
Date, Seller shall, from time to time, upon reasonable advance written notice
from Purchaser, provide Purchaser and its representatives with (i) access to all
financial and other information pertaining to the period of Seller's ownership
and operation of the Property, which information is relevant and necessary, in
the opinion of Purchaser's outside third party accountants (the "Accountants")
to enable Purchaser and its Accountants to prepare financial statements in
compliance with any or all of (a) Rule 3-05 or 3-14 of Regulation S-X of the
Securities and Exchange Commission (the "Commission"), as applicable; (b) any
other rule issued by the Commission and applicable to the Purchaser; and (c) any
registration statement, report or disclosure statement filed with the Commission
by, or on behalf of Purchaser; and (ii) a representation letter, in form
specified by, or otherwise reasonably satisfactory to the Accountants, signed by
the individual(s) responsible for Seller's financial reporting, as prescribed by
generally accepted auditing standards promulgated by the Auditing Standards
Division of the American Institute of Certified Public Accountants, which
representation letter may be required by the Accountants in order to render an
opinion concerning Seller's financial statements. Purchaser shall indemnify
Seller upon demand for all liabilities, obligations, costs and expenses actually
incurred by Seller in connection with (i) Seller's compliance with its
obligations under this Section 16.21, (ii) any claims made under this Section
16.21 and (iii) any claims made with respect to the representation letter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date or dates set forth below.
SELLER:
ADVENT REALTY LIMITED
PARTNERSHIP II, a Delaware limited
partnership
By: Advent Realty ▇.▇. ▇▇ Limited Partnership,
a Delaware limited partnership, general
partner
By: Advent Realty, Inc., a Massachusetts
corporation, its sole general partner
By: _____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
By: Advent Real Estate Investment Texas
Corporation, a Texas corporation, general
partner
By: _____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Date: January __, 1998
PURCHASER:
BRANDYWINE OPERATING
PARTNERSHIP, L.P., a Delaware limited
partnership
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BY: BRANDYWINE REALTY TRUST, a
Maryland real estate investment trust, its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO
DATE: January __, 1998
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The Escrow Agent hereby executes this Agreement for the sole purpose of
acknowledging receipt of the Initial Deposit and its responsibilities hereunder
and to evidence its consent to serve as Escrow Agent in accordance with the
terms of this Agreement.
ESCROW AGENT:
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By:
Title:
Date: January __, 1998
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