AGREEMENT OF SALE
for
200 and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
between
CHRISTIANA CENTER OPERATING COMPANY II LLC
and
GENDER ROAD JOINT VENTURE
Dated: September 19, 1997
AGREEMENT OF SALE
INDEX
Section Page
1. PROPERTY BEING SOLD.......................................................5
1.1 Real Property......................................................5
1.2 Personal Property..................................................6
1.3 Leases.............................................................6
1.4 Right to Names.....................................................6
2. PURCHASE PRICE AND MANNER OF PAYMENT......................................6
2.1 Purchase Price.....................................................6
2.2 Manner of Payment..................................................6
2.2.1 Deposit....................................................6
2.2.2 Additional Deposit.........................................7
2.2.3 Cash Balance...............................................7
2.3 Intentionally Omitted..............................................7
3. TITLE.....................................................................7
4. COVENANTS.................................................................7
4.1 Maintenance........................................................7
4.2 Alterations........................................................7
4.3 Lease..............................................................7
4.4 Intentionally Omitted..............................................7
4.5 Intentionally Omitted..............................................7
4.6 Notice to Buyer....................................................8
4.7 Intentionally Omitted..............................................8
4.8 Intentionally Omitted..............................................8
4.9 No New Agreements..................................................8
4.10 Tax Disputes.......................................................8
4.11 Intentionally Omitted..............................................9
5. REPRESENTATIONS AND WARRANTIES............................................9
5.1 Seller's Authority For Binding Agreement...........................9
5.2 Employment.........................................................9
5.3 Service Contracts..................................................9
5.4 Condemnation.......................................................9
5.5 No Tax Assessments.................................................9
5.6 Leases.............................................................9
5.7 Compliance with Law...............................................10
5.8 No Brokers........................................................11
5.9 Utilities.........................................................11
5.10 Permits Approvals and Certificates................................11
5.11 Good Title to Property............................................11
5.12 All Taxes and Assessments Paid....................................11
5.13 FIRPTA............................................................12
5.14 Mechanic's Liens..................................................12
5.15 Rights to Purchase................................................12
5.16 No Outstanding Obligations........................................12
5.17 Rollback Taxes....................................................12
5.18 Development Agreements............................................12
5.19 Correct Copies of Documents.......................................12
5.20 No Lawsuits.......................................................12
6. POSSESSION...............................................................13
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY..........................13
7.1 Title Binder......................................................13
7.2 Survey............................................................13
7.3 Physical and Financial Inspection.................................14
7.3.1 Intentionally Omitted.....................................14
7.3.2 Contracts, Licenses,Permits...............................14
7.3.3 Intentionally Omitted.....................................14
7.3.4 Intentionally Omitted.....................................14
7.3.5 Intentionally Omitted.....................................15
7.3.6 Three Years' Tax Bills....................................15
7.3.7 Intentionally Omitted.....................................15
7.3.8 Schedule of Violations....................................15
7.3.9 Schedule of Notices.......................................15
7.3.10 Intentionally Omitted.....................................15
7.3.11 Zoning, Site Plan, Subdivision Plan or Plat...............15
7.3.12 Intentionally Omitted.....................................15
7.3.13 Takings or Changes........................................15
7.3.14 Tax Assessments, Appeals and Increases....................15
7.3.15 Litigation................................................15
7.3.16 Insurance Policies........................................15
7.3.17 Intentionally Omitted.....................................15
7.3.18 Title Information.........................................16
7.4 Seller's Failure to Deliver.......................................16
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES...............................16
9. INTENTIONALLY OMITTED....................................................16
10. CONDEMNATION.............................................................16
11. Expense Allocations......................................................16
ii
12. CLOSING..................................................................17
12.1 Time and Date and Place...........................................17
12.2 Documents.........................................................17
12.2.1 Seller's Documents and Other Items........................17
12.2.1.1 Deed............................................17
12.2.1.2 ▇▇▇▇ of Sale....................................17
12.2.1.3 Intentionally Omitted...........................17
12.2.1.4 Original Licenses, Contract Documents and Other
Personal Property...............................17
12.2.1.5 Intentionally Omitted...........................17
12.2.1.6 Assignment of Licenses, Contract Documents and
Other Personal Property.........................17
12.2.1.7 FIRPTA Certificates.............................17
12.2.1.8 Intentionally Omitted...........................17
12.2.1.9 Estoppel Certificate from Municipality. ........17
12.2.1.10 Title Insurance Certificates....................18
12.2.1.11 Intentionally Omitted...........................18
12.2.1.12 Seller Certificate..............................18
12.2.1.13 Organization Certifications.....................18
12.2.1.14 Intentionally Omitted...........................18
12.2.1.15 Tax Bills.......................................18
12.2.1.16 Tax Reduction Rights............................18
12.2.1.17 Intentionally Omitted...........................18
12.2.1.18 Leasing Agreement...............................19
12.2.2 Buyer's Documents.........................................19
12.2.2.1..................................................19
12.2.2.2..................................................19
12.2.2.3..................................................19
12.2.2.4..................................................19
12.2.3 Title Insurance...........................................19
12.2.4 Necessary Documents.......................................19
13. DEFAULT; REMEDIES........................................................19
13.1.....................................................................19
13.2.....................................................................20
13.3 Buyer's Out-of-Pocket Costs.........................................20
14. CONDITIONS PRECEDENT TO CLOSING..........................................20
14.1 Correctness of Warranties and Representations.....................21
14.2 Compliance with Terms and Conditions..............................21
14.3 Buyer's Satisfaction with Inspection..............................21
14.4 Trustee Approval..................................................21
15. PRORATIONS...............................................................21
15.1 Operating Expenses..................................................21
15.1.1 Intentionally Omitted.....................................21
iii
15.1.2 Taxes.....................................................21
15.1.3 Deposits..................................................21
15.1.4 Water and Sewer Charges...................................21
15.1.5 Assigned Contracts........................................22
15.1.6 Electricity, gas, steam and fuel..........................22
15.1.7 Intentionally Omitted.....................................22
15.2 Custom and Practice...............................................22
15.3 Future Installments of Taxes......................................22
15.4 Application of Prorations.........................................22
15.5 Schedule of Prorations............................................22
15.6 Intentionally Omitted.............................................22
15.7 Readjustments.....................................................22
15.8 Indemnification for Seller's Tax Obligations......................22
15.9 Survival..........................................................22
16. BROKERS..................................................................22
17. ESCROW AGENT.............................................................23
17.1 Payment to Seller.................................................23
17.2 Notice of Dispute.................................................23
17.3 Escrow Subject to Dispute.........................................23
17.4 Escrow Agent's Rights and Liabilities.............................23
18. GENERAL PROVISIONS.......................................................24
18.1 Notices...........................................................24
18.2 Binding Effect....................................................25
18.3 Entire Agreement..................................................25
18.4 Governing Law.....................................................25
18.5 No Recording......................................................25
18.6 Tender............................................................25
18.7 Execution in Counterparts.........................................25
18.8 Further Instruments...............................................25
18.9 Time..............................................................26
18.10 Designation of Nominee; Assignment of Agreement...................26
18.11 Effective Date....................................................26
18.12 Time for Acceptance...............................................26
18.13 Confidentiality...................................................26
18.14 Delivery of Documents.............................................26
19. SEC REPORTING (8-K) REQUIREMENTS.........................................26
20. INDEMNIFICATION..........................................................27
21. EXCULPATION..............................................................28
22. AS-IS....................................................................28
iv
23. OTHER TRANSACTIONS.......................................................29
v
AGREEMENT OF SALE
200, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ made this 19th day of September, 1997, between CHRISTIANA
CENTER OPERATING COMPANY II LLC, a Delaware limited liability company, its
permitted assignee or nominee, having its principal office at c/o Gender Road
Joint Venture, c/oThe Commonwealth Group, ▇▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Buyer"), and GENDER ROAD JOINT VENTURE, a Delaware partnership, having
its principal office at c/o The Commonwealth Group, ▇▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. Seller is the owner of two certain parcels of land being comprised of
4.82+/- and 6.13+/- acres, respectively, known or to be known as 200 and ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in the City of Newark, New Castle County, Delaware; and
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the property referred to in this Agreement, upon the terms and conditions
set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to he legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the Closing Date
(as hereinafter defined),
1.1 Real Property. Fee simple interest in two (2) certain parcels of
land being comprised of 4.82+/- acres and 6.13+/- acres, respectively, all as
more fully described on Exhibit "A" hereto, in New Castle County, Delaware, and
all of the easements, licenses, rights of way, privileges, hereditaments,
appurtenances, and rights to any land lying in the beds of any street, road or
avenue, open or proposed, adjoining thereto, and inuring to the benefit of said
land (hereinafter collectively referred to as the "Premises"); and
1.2 Personal Property. All equipment, fixtures, machinery and
personalty of Seller, of every description attached to or used in connection
with the Premises (and not owned by tenants under leases of the Premises), if
any, including, without limitation, those listed on the Schedule of Inventory
attached hereto as Exhibit "B", and to the extent legally assignable, all
intangible personal property owned by the Seller and used in connection with the
ownership, operation and maintenance of the land, improvements and other
property, excluding cash on hand, but including, without limitation, all
contract rights, guaranties and warranties of any nature, all architects',
engineers', surveyors' and other real estate professionals' plans,
specifications, certifications, contracts, reports, data or other technical
descriptions, reports or audits (including, without limitation, all
environmental, structural and mechanical inspection reports), and all marketing
materials ("Contract Documents"), all governmental permits, licenses,
certificates, and approvals in connection with the ownership of the Premises
("Licenses"), all security deposits, utility deposits, escrow accounts,
instruments, documents of title, general intangibles, all computers, computer
software programs and data and business records pertaining to the Premises, all
telephone, communications and security systems and equipment, and all of
Seller's rights, claims, and causes of action if any, to the extent they are
assignable, under any warranties and/or guarantees of manufacturers, contractors
or installers, all rights against tenants and others relating to the Premises or
the operation or maintenance thereof, including to the extent applicable, any
warranties from any previous owners of the Premises (hereinafter collectively
referred to as "Personal Property"); and
1.3 Leases. All leases, licenses and other occupancy agreements for
any part of the Premises, if there be any, and all prepaid rent and unapplied
security deposits (the "Leases"); and
1.4 Right to Names. Any and all right, title and interest of Seller
in and to the name(s) of 200 and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the right to all
printing styles, trademarks and logos ("Names").
The Premises, Personal Property, Leases and Names are sometimes
hereinafter referred to as "Property."
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of One Million
($1,000,000) Dollars (hereinafter referred to as the "Purchase Price") subject
to adjustment.
2.2 Manner of Payment. The Purchase Price shall be paid in the
following manner:
2.2.1 Deposit. By delivery, upon Seller's execution and
delivery of this Agreement, of Buyer's good check in the amount of Fifteen
Thousand ($15,000) Dollars to the Title Company (hereinafter referred to as
"Escrow Agent" or "Escrowee"). This sum, the sum specified in Section 2.2.2
below, and all other sums paid by Buyer to the Escrow Agent under this Agreement
(hereinafter referred to as the "Deposit") shall be held by Escrow Agent in a
federally-insured, segregated money market account at an institution to be
designated by Buyer until
2
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or paid to the party otherwise entitled to the
Deposit in the event of the termination of this Agreement prior to Closing.
2.2.2 Additional Deposit. By delivery, within two (2)
business days next following the Inspection Period Expiration Date (as
hereinafter defined), of Buyer's good check in the amount of Thirty Thousand
($30,000) Dollars.
2.2.3 Cash Balance. The balance by delivery to the Seller on
the Closing Date, by wire transfer, the amount of Nine Hundred Fifty Five
Thousand ($955,000) Dollars, subject to adjustment as herein provided.
2.3 Intentionally Omitted.
3. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Premises subject only to those rights of way,
easements, covenants restrictions, and objections to title (hereinafter
"Permitted Exceptions") listed on Exhibit "C" hereto, unless identified by Buyer
as "Title Objections" as hereinafter provided, and subject to the rights of
tenants listed on the rent roll attached hereto as Exhibit "D", which title
shall be insurable at regular rates by a reputable title insurance company
("Title Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy"), with the endorsements and affirmative
insurance specified in Section 12.2.1.10 below. Seller and Buyer consent to
use, at Buyer's option, Commonwealth Land Title Insurance Company, Lawyers Title
Insurance Corporation or Congress Title Insurance Company as the Title Company.
4. COVENANTS. In addition to the covenants contained in the other
Sections of this Agreement, Seller covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date, maintain
the Property in its current condition, reasonable wear and tear and casualty
alone excepted, and pay in the normal course of business prior to Closing, all
sums due for work, materials or service furnished or otherwise incurred in the
ownership and operation prior to Closing.
4.2 Alterations. Not make or permit to be made any alterations,
improvements or additions to the Property without the prior written consent of
Buyer, not to be unreasonably withheld or delayed, except if required by
applicable law or ordinance.
4.3 Lease. Not enter into any Lease, nor amend, modify or terminate
any existing Lease, without Buyer's consent.
4.4 Intentionally Omitted.
4.5 Intentionally Omitted.
4.6 Notice to Buyer. Notify Buyer promptly of the occurrence of any
of the following:
3
(i) a fire or other casualty causing damage to the Property,
or any portion thereof;
(ii) receipt of notice of eminent domain proceedings or
condemnation of or affecting the Property, or any portion thereof;
(iii) receipt of notice from any governmental authority or
insurance underwriter relating to the condition, use or occupancy of the
Property, or any portion thereof, or any real property adjacent to any of the
Property, or setting forth any requirements with respect thereto;
(iv) Intentionally Omitted;
(v) receipt of any notice of default from the holder of any
lien or security interest in or encumbering the Property, or any portion
thereof;
(vi) Intentionally Omitted;
(vii) notice of any actual or threatened litigation against
Seller or affecting or relating to the Property, or any portion thereof; or
(ix) the commencement of any strike, lock-out, boycott or
other labor trouble affecting the Property, or any portion thereof.
4.7 Intentionally Omitted.
4.8 Intentionally Omitted.
4.9 No New Agreements. Except for agreements which can be terminated
on not more than thirty (30) days' notice, not enter into any other agreements
which affect the Property or the transactions contemplated by this Agreement,
without the prior written consent of Buyer, and not permit the creation of any
liability which shall bind Buyer or the Premises after Closing.
4.10 Tax Disputes. Notify Buyer of any tax assessment disputes
(pending or threatened) prior to Closing, and not agree to any changes in the
real estate tax assessment, nor settle, withdraw or otherwise compromise any
pending claims with respect to prior tax assessments, without Buyer's prior
written consent. If any proceedings shall result in any reduction of assessment
and/or tax for the tax year in which the Closing occurs, it is agreed that the
amount of tax savings or refund for such tax year, less the reasonable fees and
disbursements in connection with such proceedings, shall be apportioned between
the parties as of the date real estate taxes are apportioned under this
Agreement.
The parties agree that from and after the execution and delivery of
this Agreement, Buyer, at its sole cost, shall have the right to appeal the
current tax assessment of each tax parcel comprising the Premises. Buyer shall
consult with Seller prior to filing tax appeal documents, and
4
shall afford Seller reasonable advance notice prior to any public hearings or
proceedings at which said appeal will be considered. Seller agrees that Buyer
may file such appeals in its name or in Seller's name, as may be required, and
Seller shall cooperate with Buyer in the prosecution of such appeal; provided,
however, that Buyer agrees to pay the reasonable legal fees incurred by Seller,
if any, in connection with furnishing such cooperation.
4.11 Intentionally Omitted.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter
into this Agreement, Seller hereby represents and warrants to Buyer that the
following representations and warranties are true now and will be true at
Closing:
5.1 Seller's Authority For Binding Agreement. Seller is a duly
authorized and validly existing partnership formed under the laws of the State
of Delaware. Seller has full power, right and authority to own its properties,
to carry on its business as now conducted, and to enter into and fulfill its
obligations under this Agreement. Each of the persons executing this Agreement
on behalf of Seller is authorized to do so. This Agreement is the valid and
legally binding obligation of Seller, enforceable against Seller in accordance
with its terms. The execution and delivery of this Agreement and compliance
with its terms will not conflict with or result in the breach of any law,
judgement, order, writ, injunction, decree, rule or regulation, or conflict with
or result in the breach of any other agreement, document or instrument to which
Seller is a party or by which it or the Property is bound or affected.
5.2 Employment. There are no persons or parties employed by Seller
in connection with the Property.
5.3 Service Contracts. There are no service, equipment, supply or
maintenance contracts with respect to or affecting the Property not terminable
on thirty (30) days notice.
5.4 Condemnation. There are no condemnation or eminent domain
proceedings pending with regard to any part of the Property, and to the best of
the Seller's knowledge, no such proceedings are proposed.
5.5 No Tax Assessments. There are no public improvements in the
nature of off-site improvements, or otherwise, which have been ordered to be
made and/or which have not heretofore been assessed, and, to the Seller's
knowledge, there are no special or general assessments currently affecting or
pending against the Property.
5.6 Leases. There are no oral or written leases or rights of
occupancy or grants or claims of right, title or interest in any portion of the
Property or outstanding letters of intent to lease the Property, or any portion
thereof except as set forth in the CSC Lease (as defined in Section 12.2.2.3).
5.7 Compliance with Law.
5
(i) To the best of Seller's knowledge, information and
belief, the development of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Tax Parcel #09 033.00 42) as a
three (3)-story, 64,000 +/- sf. office building with accessory on-site parking
for a minimum of 217 parking spaces (inclusive of 6 handicapped spaces) and the
development of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Tax Parcel #09.033.00 043) as a three (3)
story 43,200]+/- sf. office building with accessory on-site parking for a
minimum of 181 spaces (inclusive of 2 handicapped spaces) in accordance with the
Record Minor Subdivision Plan recorded in the Office of the Recorder of Deeds in
and for New Castle County, Delaware, at Microfilm No. 11239, is permitted by all
applicable federal, state and local law, and by the requirements of
governmental and quasi-governmental agencies and authorities having jurisdiction
thereof, and there are no outstanding notices of any violations issued by any
governmental or quasi-governmental agency or authority having jurisdiction over
the Property. The zoning classification of the Property is "O-2". Not more
than ten (10) days prior to the Closing, the Seller shall provide Buyer with an
estoppel certificate from the zoning code enforcement (or other appropriate)
officer of New Castle County, confirming that the zoning of the Property and
that the proposed development of the site as hereinabove provided is in
compliance with such zoning.
(ii) To the best of the Seller's knowledge, (1) no Hazardous
Substances (defined below) and no Hazardous Wastes (defined below) are present
on the Property including, without limitation, asbestos, flammable substances,
explosives, radioactive materials, hazardous wastes, toxic substances,
pollutants, pollution, contaminant, polychlorinated byphenyls ("PCBs"), urea
formaldehyde foam insulation, radon, corrosive, irritant, biologically
infectious materials, petroleum product, garbage, refuse, sludge, hazardous or
waste materials, and (2) there has been no use of the Property that may, under
any federal, state or local environmental statute, ordinance or regulation,
require, at any time, any closure or cessation of the use or occupancy of the
Property and/or impose, at any time, upon the owner of the Property any clean-up
or other monetary obligation. The Seller has not been identified in any
litigation, administrative proceeding or investigation as a responsible party or
potentially responsible party for any liability for clean-up costs, natural
resource damages or other damages or liability for prior disposal or release of
Hazardous Substances, Hazardous Wastes or other environmental pollutants or
contaminants, and no lien or superlien has been recorded, filed or otherwise
asserted against any real or personal property of the Seller for any clean-up
costs or other responses costs incurred in connection with any environmental
contamination that is attributable, in whole or in part, to the Seller. The
Seller hereby indemnifies and holds the Buyer harmless of, from and against any
and all liability, loss or damage suffered or incurred as a result of a claim,
demand, cost or judgment in favor of a third party, including, without
limitation, any governmental authority, arising from the deposit, storage,
disposal, burial, dumping, injecting, spilling, leaking, or other placement or
release in or on the Property of Hazardous Substances or Wastes first occurring
during the Seller's period of ownership. For purposes of this Agreement,
"Hazardous Substances" means those elements and compounds which are designated
as such in Section 101(14) of the Comprehensive Response, Compensation and
Liability Act (CERCLA), 42 U.S.C. Section 9601 (14), as amended, all petroleum
products and by-products, and any other hazardous substances as that term may be
further defined in any and all applicable federal, state and local laws; and
"Hazardous Wastes" means any hazardous waste, residential or household waste,
solid waste, or other waste as defined in applicable federal, state and local
laws. The Seller has not received any summons, citation, directive, letter or
other communication, written or oral, from any
6
governmental or quasi-governmental authority concerning any intentional or
unintentional action or omission on the Seller's part which (a) resulted in the
releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of
Hazardous Substances or Hazardous Wastes, or (b) related in any way to the
generation, storage, transport, treatment or disposal of Hazardous Substances or
Hazardous Wastes. To the best of the Seller's knowledge, neither the Property
nor any portion thereof, has been identified on the federal CERLIS, the National
Priorities List (40 C.F.R. Part 300, App. B) or any state or local list of
potential hazardous waste disposal sites or as an industrial establishment. The
Seller has conducted a complete and thorough inspection and test of the
underground storage tanks located on the Property, if any, and the Seller has
confirmed that the results thereof show compliance with all requirements of the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sections 6901 et seq.
and all other applicable federal, state and local laws, and the Seller has taken
all other necessary and appropriate action to comply fully therewith.
5.8 No Brokers. Except as disclosed on Schedule 5.8 attached hereto,
no brokerage or leasing commissions or other compensation is now, or will upon
or after the Closing, be due or payable to any person, firm, corporation, or
other entity.
5.9 Utilities. Adequate utilities, useable public sanitary and storm
sewers, public water facilities, electric facilities and, if any, gas facilities
(collectively, the "Utilities"), are available at the lot lines of the Property.
All Utilities required for the operation of the Property either enter the
Property through adjoining public streets or, if they pass through adjoining
public land, do so in accordance with valid public easements or private
easements which will inure to the benefit of the Buyer at no cost to the owner
of the Property.
5.10 Permits Approvals and Certificates. Seller has obtained record
site plan approval from New Castle County, but has not yet obtained the other
licenses, permits, approvals and authorizations necessary for the development of
the Property as provided in Section 5.7(i) above. Seller has no knowledge,
however, of any facts or circumstances, or other reason why all requisite
licenses, permits, approvals and authorizations necessary for such development
will not be obtained in the ordinary course once applications therefore are made
and fees therefore are paid.
5.11 Good Title to Property. The Seller presently holds, and
immediately following the Closing, the Buyer shall hold, good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the lien of any existing mortgage held by WSFS, which
shall be paid and discharged at or before the Closing.
5.12 All Taxes and Assessments Paid. The Seller will have paid prior
to the Closing, all taxes and assessments, including assessments payable in
installments, which are to become due and payable and/or a lien on the Property,
except for taxes for the current year which shall be prorated between the Seller
and the Buyer as of the Closing.
5.13 FIRPTA The Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended
(the "Code").
7
5.14 Mechanic's Liens. No work has been performed or is in progress
at, and no materials have been furnished to the Property which, though not
presently the subject of, might give rise to construction, mechanic's,
materialmen's, or other liens against the Property or any portion thereof,
except that for which full and complete releases have been obtained. If any
lien for any such work is filed before or after the Closing, the Seller shall
promptly discharge the same.
5.15 Rights to Purchase. There are no outstanding agreements,
options, rights of first refusal, conditional sales agreements or other
agreements or arrangements, whether oral or written, regarding the purchase and
sale of the Property.
5.16 No Outstanding Obligations. All debts, liabilities, and
obligations of the Seller arising out of the Property including, but not limited
to, construction costs, salaries, taxes, accounts payable and the like, have
been paid as they became due and payable and shall continue to be so paid from
the date hereof until the Closing. No debts, liabilities, claims, or
obligations (whether known or unknown, accrued, absolute, contingent, or
otherwise) of the Seller arising out of the Property shall be outstanding as of
the Closing.
5.17 Rollback Taxes. The Property is not subject to any roll-back or
agricultural taxation or other tax abatement program. Any roll-back taxes
payable in connection with the Seller's development of the Property have been
paid in full.
5.18 Development Agreements. The Property and the Seller are in
compliance with and have fully paid and discharged all obligations accrued to
date under any and all development, tri-party and like agreements, and any and
all other agreements with county, municipal and other governmental and
quasi-governmental agencies and authorities respecting the ownership,
development and operation of the Property and all portions thereof.
5.19 Correct Copies of Documents. Where copies of any documents have
been delivered by the Seller to the Buyer, whether prior to or pursuant to this
Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to
the best of the Seller's knowledge, constitute, in each case, the entire
agreement between the parties thereto with respect to the subject matter
thereof, and the original instruments in the form delivered to the Buyer, are
now in full force and effect, and valid and enforceable in accordance with their
respective terms, and no party thereto is in default, and no claim of default by
any party has been made or is now pending and there does not now exist any
default which, after either the giving of notice or the passing of time, or
both, will or may constitute a default, or would excuse performance by any party
thereto; and (iii) have not been changed or amended except for amendments, if
any, specifically referred to therein.
5.20 No Lawsuits. There are no claims, lawsuits or proceedings
pending, or to the best of the Seller's knowledge, threatened against or
relating to Seller or the Property, or which could affect them, or either of
them, in any court or before any governmental agency.
6. POSSESSION. Possession of the Premises is to be given to Buyer by
delivery of the Deed and possession of the Property.
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7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
7.1 Title Binder. On or before five (5) business days from the
execution of this Agreement, Seller shall have delivered to Buyer a copy of its
title commitment or policy for the Property (complete with copies of all
exceptions to title), and within ten (10) business days after the receipt of
same, Buyer shall secure a current title commitment (the "Title Binder") from
the Title Company, and shall have until the Inspection Period Expiration Date
(as hereinafter defined) to examine the condition of title, including the terms
and provisions of all items and documents referred to in the Title Binder, and
all information regarding title as disclosed on the Survey (hereinafter
defined), and to approve or disapprove the same. If Buyer shall disapprove the
condition of title, such disapproval shall be set forth in a notice given to
Seller (the "Disapproval Notice") identifying the condition of title to the
Property or any of the terms, provisions or contents of said items, documents or
Survey which are disapproved by Buyer (the "Title Objections"). Subject to the
provisions of the succeeding portion of this Section 7.1, Seller shall have
until the date which is ten (10) days after the date of the Disapproval Notice
(the "Title Cure Expiration Date") in which to cure or eliminate all items which
Buyer disapproves in the Disapproval Notice, and to furnish evidence
satisfactory to Buyer and the Title Company that all such items have been cured
or eliminated or that arrangements have been made with the Title Company and any
parties in interest to cure or eliminate the same at or prior to the Closing.
If Seller fails to remove any Title Objection in accordance with the provisions
of the immediately preceding sentence, Buyer, nevertheless, may elect (at or
prior to the Closing) to consummate the transaction provided for in this
Agreement subject to any such Title Objection(s) as may exist as of the Closing
with a credit against the Purchase Price equal to the sum necessary to remove
any lien of a fixed or ascertainable amount . If Buyer shall not so elect,
Buyer may terminate this Agreement by notice in writing to Seller, whereupon the
Deposit shall be immediately refunded to Buyer, and this Agreement shall be null
and void, and the parties hereto shall be relieved of all further obligations
and liability under this Agreement.
7.2 Survey. Within ten (10) days after the date of this Agreement,
at Buyer's cost, Seller shall deliver to Buyer a current survey of Property (the
"Survey"), prepared by a duly licensed land surveyor acceptable to Buyer. The
Survey shall be currently dated, shall show the location on the Property of all
buildings and improvements, building and set-back lines, easements,
rights-of-way, encroachments, elevations between public roads providing access
to the Property, and the boundary of the Property, and other such matters
affecting the Property whether physically apparent from the ground, of record in
public offices, or otherwise, and shall contain a legal description of the
boundaries of the Premises by metes and bounds which shall include a reference
to the recorded plat, if any. The surveyor shall certify to Buyer and to the
Title Company and to any lender making a loan to Buyer secured by the Property
that the Survey is correct and was made on the ground; and that there are no
visible discrepancies, conflicts, encroachments, overlapping of improvements,
violations of set-back lines, easements, rights-of-way or other such matters
affecting the Property except as are shown on the Survey, and that the Survey
conforms to all ACTA/ACSM and Pennsylvania Land Title Association standards and
requirements for a Class A Survey. Any and all recorded matters shown on said
Survey shall be legibly identified by appropriate volume and page recording
references with dates of recording noted. Buyer shall have until the Inspection
Period Expiration Date to approve or disapprove the
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material contained thereon. If Buyer shall disapprove such Survey, such
disapproval shall be set forth in a Disapproval Notice as hereinabove provided
in Section 7.1, and the provisions of Section 7.1 with respect to Disapproval
Notices shall apply.
7.3 Physical and Financial Inspection. For a period (the
"Inspection Period") commencing on the second (2nd) business day next following
the date upon which Buyer shall receive from Seller a fully-executed counterpart
of this Agreement, and expiring twenty (20) days thereafter (such date is herein
referred to as the "Inspection Period Expiration Date"), Buyer shall have the
right to have performed a physical and mechanical inspection, measurement and
audit of the Property and an inspection of all books and records and financial
information pertaining thereto, and Seller shall cooperate with Buyer and shall
furnish to Buyer such information, materials and documents as Buyer may
reasonably request and shall have its accountant or internal controller
available throughout such period to assist in Buyer's inspection and review.
The inspection, audit and measurement of the Property's operation, condition and
maintenance shall include, without limitation, such environmental and
engineering inspections, reviews and assessments that Buyer deems appropriate.
If Buyer fails to close hereunder for any reason other than Seller's breach or
default, Buyer shall, to the maximum extent practicable, restore the Property to
the condition existing immediately before such tests and assessments. In the
event Seller shall fail to deliver or make available any item or information
material to Buyer's review of the Property and required to be delivered or made
available pursuant to the terms of this Section within five (5) business days
next following the date upon which Buyer shall receive from Seller a
fully-executed counterpart of this Agreement, then at Buyer's written election,
the Inspection Period Expiration Date (and the Closing Date) shall be extended
by one day for each day that the delivery or availability of such item is
delayed. If Buyer, at Buyer's sole and absolute discretion, shall find such
inspection(s) to be unsatisfactory for any reason whatsoever, Buyer shall have
the right, at its option, to terminate this Agreement on or before the
Inspection Period Expiration Date, and upon such termination, the Deposit shall
be immediately refunded to the Buyer, and thereupon the parties hereto shall
have no further liabilities one to the other with respect to the subject matter
of this Agreement. Buyer agrees that it shall not unreasonably interfere with
tenants in performing its inspection. In connection with such inspection, and
without limiting the generality of Seller's obligations hereunder, Seller agrees
to deliver to Buyer, within five (5) days:
7.3.1 Intentionally Omitted.
7.3.2 Contracts, Licenses, Permits. Copies of the Contract
Documents, the Licenses, insurance policies applicable to the Property and any
other documents evidencing rights described in Section 1.2 hereof;
7.3.3 Intentionally Omitted.
7.3.4 Intentionally Omitted.
7.3.5 Intentionally Omitted
7.3.6 Three Years' Tax Bills. A copy of tax bills (i) for
the current year, and (ii) if available, for the preceding two years;
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7.3.7 Intentionally Omitted.
7.3.8 Schedule of Violations. A schedule setting forth all
violations of any law, ordinance, regulation, rule or requirement of any
governmental body having jurisdiction, whether existing or prospective, of which
Seller has received written notice, issued or noted by any governmental body
during the past three years, and copies of any notices, terminations or
correspondence relating thereto;
7.3.9 Schedule of Notices. A schedule of any written
demands, requests, requirements or recommendations regarding the operation,
maintenance, repair or replacement of the Property or any portion thereof, of
which Seller has received notice during the past three years, from the holder of
any mortgage or deed of trust or any insurance company or any board of fire
underwriters or real estate associations or like body, and copies of all
correspondence relating thereto;
7.3.10 Intentionally Omitted.
7.3.11 Zoning, Site Plan, Subdivision Plan or Plat. All
conditional and permanent zoning, site plan, subdivision, building, housing,
safety, fire and health approvals, including, without limitation, the local
governmental applications, resolutions and approvals supporting the same;
7.3.12 Intentionally Omitted.
7.3.13 Takings or Changes. Copies of all written notices to
Seller of proposed or threatened takings or changes with respect to the Property
or major access roads within a reasonable radius which would affect the access
to the Property, or any portion thereof, by prospective occupants;
7.3.14 Tax Assessments, Appeals and Increases. Copies of all
written notices to Seller of all filed, proposed or threatened tax assessment
appeals or tax assessment increases related to the Premises;
7.3.15 Litigation. Copies of all pending and written notices
to Seller of threatened litigation, including litigation affecting the Property
or this transaction;
7.3.16 Insurance Policies. Copies of all insurance policies of
Seller related to the Property;
7.3.17 Intentionally Omitted.
7.3.18 Title Information. Seller's most recently dated title
report or title commitment respecting the Premises.
7.4 Seller's Failure to Deliver. If Seller shall have failed to
deliver to Buyer all material documents required to be delivered under Section
7.3 hereof, Buyer may, at its option, at
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any time on or after such date, but prior to the curing of such failure by
Seller, give Seller a five (5) day written notice specifying such default, and
if Seller fails to cure such default within such five (5) day period, Buyer may
terminate this Agreement, receive the return of the Deposit and pursue any other
remedy available to it pursuant to the provisions hereof.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer and Seller set forth herein shall survive Closing and
delivery of the deed for the applicable period of the statute of limitations
pertaining thereto.
9. INTENTIONALLY OMITTED.
10. CONDEMNATION. If, prior to the Closing Date, all or any portion of
the Premises is taken by eminent domain or a notice of any eminent domain
proceedings with respect to the Premises or any part thereof is received by the
Seller, then Seller shall within five (5) days thereafter give notice thereof to
Buyer and Buyer shall have the option to (a) complete the purchase hereunder or
(b) if such taking, in Buyer's sole and absolute discretion, materially affects
the Premises or its current economic viability, terminate this Agreement, in
which event the Deposit shall be immediately refunded to Buyer, and this
Agreement shall be null and void. Buyer shall deliver written notice of its
election to the Seller within ten (10) days after the date upon which the Buyer
receives written notice of such eminent domain proceedings. If notice of
condemnation is received by Buyer and it fails to deliver said written notice of
its election within said time period, such failure shall constitute a waiver by
Buyer of its right to terminate this Agreement. If this Agreement is not so
terminated, Buyer shall be entitled to all awards or damages by reason of any
exercise of the power of eminent domain or condemnation with respect to or for
the taking of the Premises or any portion thereof, and until such time as
closing has occurred, or this Agreement terminates. Any negotiation for, or
agreement to, and all contests of any offers and awards relating to eminent
domain proceedings shall be conducted with the joint approval and consent of the
Seller and the Buyer.
11. Expense Allocations.
11.1 Seller shall pay for one-half of all applicable realty transfer
taxes related to the execution, delivery and recording of the Deed, ▇▇▇▇ of
Sale, and other Closing Documents, and all related recording charges.
11.2 Buyer shall pay for one-half of all applicable realty transfer
taxes, for Buyer's title examination, the survey and for Buyer's title
examination and premiums.
11.3 Buyer and Seller shall be responsible for paying their own
attorney's fees in connection with this transaction.
12. CLOSING.
12.1 Time and Date and Place. The closing ("Closing") on the sale of
the Property (herein referred to as the "Closing Date") shall take place at a
time specified by Buyer in writing to Seller at least five (5) days prior to the
specified Closing Date, but in any event no later
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than September 19, 1997, at the offices of Pepper, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 3000 Two
▇▇▇▇▇ Square, Eighteenth & Arch Streets, Philadelphia, PA, commencing at 10:00
a.m.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
12.2.1 Seller's Documents and Other Items. Seller shall
execute and deliver or cause to be executed and delivered to Buyer in proper
form for recording:
12.2.1.1 Deed. A special warranty deed prepared by Buyer's
counsel in form acceptable to Seller (the "Deed"), conveying the Premises to
Buyer, duly executed by Seller for recording. The Deed description shall be
based upon the metes and bounds description attached as Exhibit "A", unless
Buyer requests that Seller convey the Premises by the metes and bounds
description shown on the new ALTA/ACSM survey, if any, obtained by Buyer, in
which event the Premises shall be so conveyed.
12.2.1.2 ▇▇▇▇ of Sale. A warranty ▇▇▇▇ of sale prepared by
Buyer's counsel in form acceptable to Seller, assigning, conveying and
transferring to Buyer, all of the Personal Property, if any.
12.2.1.3 Intentionally Omitted
12.2.1.4 Original Licenses, Contract Documents and Other
Personal Property. All original Licenses, Contract Documents, and other
Personal Property described in Section 1.2 of this Agreement, certified by
Seller as being true, correct and complete.
12.2.1.5 Intentionally Omitted
12.2.1.6 Assignment of Licenses, Contract Documents and
Other Personal Property. An assignment agreement prepared by Buyer's counsel,
in form acceptable to Seller, assigning, conveying and transferring to Buyer the
Licenses, Contracts Documents and Other Personal Property, including,
specifically, the Names.
12.2.1.7 FIRPTA Certificates. All certificate(s) required
under Section 1445 of the Code.
12.2.1.8 Intentionally Omitted.
12.2.1.9 Estoppel Certificate from Municipality. All
certificate(s) required by Section 5.7 hereof, and any other certificates
required by New Castle County, or the State of Delaware as a condition of the
conveyance of the Premises or the recording of the Deed.
12.2.1.10 Title Insurance Certificates. Such affidavits of
title or other certifications as shall be required by the Title Company to
insure Buyer's title to the Premises as set forth in Section 3, and to provide
affirmative endorsements (a) against mechanic's
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liens, (b) insuring against any violation of existing covenants, conditions or
restrictions, and insuring that future violation will not result in forfeiture
of title, (c) insuring that all foundations in place as of the date of such
policy are within the lot lines and applicable set back lines, (d) insuring that
the buildings and structures on the Premises do not encroach onto adjoining
land, or onto any easements, (e) insuring that confirming that there are no
encroachments of improvements from adjoining land onto the Premises (f) removing
any exceptions for matters which an accurate survey would disclose, and (g)
providing affirmative insurance with respect to such other matters as Buyer
shall reasonably specify.
12.2.1.11 Intentionally Omitted
12.2.1.12 Seller Certificate. A written certification
confirming that as of Closing no representation or warranty of Seller contained
in this Agreement, nor any document or certificate delivered to Buyer pursuant
to this Agreement or in connection with the transaction contemplated hereby,
contains any untrue statement of a material fact or knowingly omits to state a
material fact necessary to make any representation or warranty contained herein
misleading.
12.2.1.13 Organization Certifications. Confirmation of the
good standing and existence of Seller and the due authority of those executing
for them, including, without limitation, the following documents issued no
earlier than 30 days prior to Closing: (a) good standing certificate in state of
organization and in the State in which the Premises are located, (b) articles of
incorporation, partnership agreement or other formation instrument certified by
the secretary of state of the state of incorporation, (c) a certificate from the
secretary of the corporation or managing general partner of the partnership
confirming the incumbency of the signatories and the current force and effect of
the resolution authorizing their execution of the documents required under this
Agreement.
12.2.1.14 Intentionally Omitted
12.2.1.15 Tax Bills. Current tax bills and, if available,
tax bills for each of the years of Seller's ownership of the Property;
12.2.1.16 Tax Reduction Rights. An instrument assigning to
Buyer any claims for the reduction of real or personal property taxes assessed
against any portion of the Property for the fiscal year in which the Closing
takes place; any refund for such year shall be prorated when received;
12.2.1.17 Intentionally Omitted
12.2.1.18 Leasing Agreement. A leasing agreement
prepared by Buyer's counsel in form acceptable to Seller (the "Leasing
Agreement") duly executed by Buyer and Commonwealth Management Group, Ltd.,
pursuant to which Commonwealth Management Group, Ltd. shall lease the property
on terms and conditions more fully set forth therein..
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12.2.2 Buyer's Documents. Buyer shall deliver or cause to be
delivered to Seller:
12.2.2.1 The amounts required to be paid to Seller pursuant
to this Agreement;
12.2.2.2 Confirmation of the existence and subsistence of
Buyer, and the authority of those executing for Buyer, including, without
limitation, the following documents issued no earlier than thirty (30) days
prior to Closing: Operating Agreement and Certificate of Formation.
12.2.2.3 Leasing Agreement. Buyer shall execute and
deliver the Leasing Agreement, as defined above, pursuant to which Commonwealth
Management Group, Ltd. shall lease the Property on terms and conditions more
fully set forth therein.
12.2.2.4 Assignment Agreement Regarding CSC Lease. An
agreement prepared by Buyer's counsel, in form acceptable to Seller (the "CSC
Expansion Agreement") duly executed by Buyer and Seller, pursuant to which
Seller shall assign and Buyer shall assume certain obligations regarding
expansion rights of Computer Sciences Corporation under Lease dated July 24,
1997 (the "CSC Lease") with respect to ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, all as more fully set
forth in the CSC Expansion Agreement. The foregoing notwithstanding, the
parties agree that they will execute and deliver the CSC Expansion Agreement on
or before closing on Seller's sale of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to Christiana Center
Operating Company I LLC. This provision expressly survives Closing hereunder.
12.2.3 Title Insurance. As a condition to Buyer's obligations
at Closing, Title Company shall furnish Buyer at Closing with the Title Policy,
in the form approved by Buyer pursuant to Section 3, in the full amount of the
Purchase Price, wherein the Title Company shall insure fee simple title to the
Property in Buyer or its designee as of the Closing Date containing no
exceptions to title other than those which have been approved by Buyer in
writing pursuant to Section 3 hereof and providing the title endorsements
specified in Section 12.2.1.10 above.
12.2.4 Necessary Documents. Buyer and Seller shall execute
and deliver such other documents and instruments as may be reasonably necessary
to complete the transaction contemplated by this Agreement.
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13. DEFAULT; REMEDIES
13.1 In the event that any of Seller's representations or warranties
contained in this Agreement are materially or prejudicially untrue or if Seller
shall have failed to have performed any of the covenants and/or agreements
contained in this Agreement which are to be performed by Seller, on or before
the date set forth in this Agreement for the performance thereof, or if any of
the conditions precedent to Buyer's obligation to consummate the transaction
contemplated by this Agreement shall have failed to occur, Buyer may, at its
option, rescind this Agreement by giving written notice of such rescission to
Seller and Seller shall immediately thereafter return the Deposit, and
thereupon, subject to the provisions of Section 13.3 below, the parties shall
have no further liability to each other hereunder. In the alternative, but
without limiting Buyer's right upon any default by Seller hereunder to receive
the prompt return of the Deposit, Buyer may seek to enforce specific performance
of this Agreement.
13.2 Buyer recognizes that the Property will be removed by Seller from
the market during the existence of this Agreement and that if this purchase and
sale is not consummated because of Buyer's default Seller shall be entitled to
compensation for such detriment. Seller and Buyer acknowledge that it is
extremely difficult and impracticable ascertain the extent of the detriment, and
to avoid this problem, Seller and Buyer agree that if the purchase and sale
contemplated in this Agreement is not consummated because of Buyer's default
under this Agreement, Seller shall be entitled to retain the Deposit as
liquidated damages. The parties agree that the sum stated above as liquidated
damages shall be in lieu of any other relief to which Seller might otherwise be
entitled, Seller hereby specifically waiving any and all rights which it may
have to damages or specific performance as a result of Buyer's default under
this Agreement.
13.3 Buyer's Out-of-Pocket Costs. In the event of Seller's
breach or default hereunder which results in Buyer's termination of this
Agreement, or in the event that Seller shall fail to perform any term, covenant
or agreement, or satisfy any condition herein stipulated (including, without
limitation, a failure of title), then, in any such event, upon termination by
Buyer hereunder, in addition to receiving the immediate return of the Deposit,
anything in the Agreement contained to the contrary notwithstanding, Buyer shall
also receive from Seller, upon demand, Buyer's actual, documented out-of-pocket
costs and expenses associated with this Agreement and Buyer's anticipated
acquisition of the Property including, without limitation, Buyer's reasonable
counsel fees and costs, title expenses, survey costs, and other costs and
expenses associated with Buyer's due diligence, including, without limitation,
legal, financial and accounting due diligence, Buyer's structural inspection of
the Property and Buyer's environmental assessment of the Property (collectively,
"Transaction Costs"). The foregoing list is not intended to be exclusive, but
representative of the costs and expenses that the parties anticipate that Buyer
will incur in anticipation of this transaction. Seller's maximum reimbursement
liability under this Section 13.3 shall not exceed Twenty Five Thousand
($25,000) Dollars.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer hereunder are subject to the fulfillment of
the following conditions prior to or on the Closing Date (any one of which may
be waived in whole or in part by Buyer at or prior to the Closing) and in the
event any of the conditions are not complied with,
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Buyer may terminate this Agreement by notifying the Seller and Escrow Agent and
thereupon shall be returned the Deposit and thereafter this Agreement shall be
null and void:
14.1 Correctness of Warranties and Representations. The warranties
and representations made by Seller in this Agreement shall be true and correct
on the Closing Date as though such representations and warranties were made on
the Closing Date (except for changes in the Leases permitted under the terms of
this Agreement).
14.2 Compliance with Terms and Conditions. Seller shall have
performed and complied with all of the terms and conditions required by this
Agreement to be performed and complied with by it prior to or on the Closing
Date.
14.3 Buyer's Satisfaction with Inspection. Buyer shall have notified
Seller of Buyer's satisfaction with the review and inspection performed under
Section 7 of this Agreement, or shall fail to notify Seller on or before the
Inspection Period Expiration Date, of Buyer's dissatisfaction with the results
of such review and inspection.
14.4 Trustee Approval. This Agreement and the transactions
contemplated hereby shall have received formal approval of Buyer's Board of
Trustees at a meeting duly called during the Inspection Period to consider same.
15. PRORATIONS.
15.1 Operating Expenses. The following items shall be prorated at
Closing, as of close of business of the day immediately preceding Closing
"Adjustment Date":
15.1.1 Intentionally Omitted.
15.1.2 Taxes. Real estate and personal property taxes, if
any, on the basis of the fiscal year for which assessed. If the Closing shall
occur before the tax rate or assessment is fixed, the apportionment of such real
estate and personal property taxes at the Closing shall be upon the basis of the
tax rate for the next preceding year applied to the latest assessed valuation.
Final adjustment will be made upon the actual tax amount, when determined.
15.1.3 Deposits. Tax and utility company deposits, if any,
shall be assigned to Buyer.
15.1.4 Water and Sewer Charges. Water and sewer charges and
fire protection and inspection services based upon meter readings to be obtained
by Seller effective as of the Adjustment Date, or if not so obtainable, a date
not more than ten (10) days prior to the Adjustment Date, and the unfixed meter
charges based thereon for the intervening period shall be apportioned on the
basis of such last reading. Upon the taking of a subsequent actual reading,
such apportionment shall be readjusted and Seller or Buyer, as the case may be,
will promptly deliver to the other the amount determined to be so due upon such
readjustment. If Seller is unable to furnish such prior reading, any reading
subsequent to the Closing will be apportioned on
17
a per diem basis from the date of such reading immediately prior thereto and
Seller shall pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or payable in respect
of any service and maintenance contracts assigned to Buyer in accordance
herewith.
15.1.6 Electricity, gas, steam and fuel. Electricity, gas and
steam and fuel oil, if any, based on meter readings or a fuel company letter
showing measurement on the day immediately preceding Closing, and valued at
current prices.
15.1.7 Intentionally Omitted.
15.2 Custom and Practice. Except as set forth in this Agreement, the
customs of the State and County in which the Premises are located shall govern
prorations.
15.3 Future Installments of Taxes. If at Closing, the Property or any
part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in installments, then for purposes
of this Agreement, all unpaid installments of any such assessment, including
those which are to become due and payable and to be liens upon the Property
shall be paid and discharged by Seller at Closing.
15.4 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum. If
such prorations result in a payment due Seller, the same shall be paid by
uncertified check at Closing.
15.5 Schedule of Prorations. The parties shall endeavor to jointly
prepare a schedule of prorations for the Property no less than five (5) days
prior to Closing.
15.6 Intentionally Omitted.
15.7 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
15.8 Indemnification for Seller's Tax Obligations. Seller shall
indemnify, defend and save and hold harmless Buyer from any loss, cost,
liability or expense (including, without limitation, reasonable counsel fees and
court costs) incurred, paid or suffered by Buyer arising out of or by reason of
any claim made by any state taxing or employment authorities asserting or
indicating any claims or possible claims for unpaid taxes, penalties, interest
or court costs related thereto of Seller or any related party, due the State of
Delaware or its political subdivisions. The provisions of this Section 15.8
shall specifically survive Closing hereunder.
15.9 Survival. The provisions of this Section 15 shall expressly
survive Closing hereunder.
16. BROKERS. Each party hereby represents and warrants to the other that
it has not employed or retained any broker or finder in connection with the
transactions contemplated by this Agreement, other than CB Commercial, and that
other than CB Commercial, neither party has
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had any dealings with any other person or party which may entitle that person or
party to a fee or commission. Each party shall indemnify the other of and from
any claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
17. ESCROW AGENT. The parties hereto have requested that the Deposit be
held in escrow by the Escrow Agent to be applied at the Closing or prior thereto
in accordance with this Agreement. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be under the following conditions:
17.1 Payment to Seller. To Seller on the Closing Date upon the
consummation of Closing;
17.2 Notice of Dispute. If either Seller or Buyer believes that it is
entitled to the Deposit or any part thereof, it shall make written demand
therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a copy
thereof to the other party in the manner specified in Section 18.1 below. The
other party shall have the right to object to the delivery of the Deposit, by
filing written notice of such objections with the Escrow Agent at any time
within ten (10) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set
forth the basis for objection to the delivery of the Deposit. Upon receipt of
such notice, the Escrow Agent shall promptly deliver a copy thereof to the party
who filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow Agent shall
have received the notice of objection provided for in 17.2 above of this
Section, in the manner and within the time therein prescribed, the Escrow Agent
shall continue to hold the Deposit until (i) the Escrow Agent receives written
notice from both Seller and Buyer directing the disbursement of the Deposit in
which case the Escrow Agent shall then disburse said Deposit in accordance with
said direction, or (ii) litigation arises between Seller and Buyer, in which
event the Escrow Agent shall deposit the Deposit with the Clerk of the Court in
which said litigation is pending, or (iii) the Escrow Agent takes such
affirmative steps as the Escrow Agent may, at the Escrow Agent's option elect in
order to terminate the Escrow Agent's duties including, but not limited to,
deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent shall not be
required to determine questions of fact or law, and may act upon any instrument
or other writing believed by it in good faith to be genuine and to be signed and
presented by the proper person, and shall not be liable in connection with the
performance of any duties imposed upon Escrow Agent by the provisions of this
Agreement, except for Escrow Agent's own willful default or gross negligence.
Escrow Agent shall have no duties or responsibilities except those set forth
herein. Escrow Agent shall not be bound by any modification of this Agreement,
unless the same is in writing and signed by Buyer and Seller, and, if Escrow
Agent's duties hereunder are affected, unless Escrow Agent shall have given
prior written consent thereto. In the event that Escrow Agent shall be
uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent
19
shall be entitled to hold and apply the Deposit, pursuant to Section 17.3, and
may decline to take any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing, and
shall be deemed effective when (i) sent by nationally-recognized overnight
courier, (ii) facsimile with original following by regular mail, or (iii)
deposited in the United States mail and sent by certified mail, postage prepaid,
addressed as follows:
18.1.1 If to Buyer, addressed to:
Brandywine Realty Trust
Newtown Square Corporate Campus
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President and Chief Executive Officer
with a copy in each instance to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Pepper, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
3000 Two ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18.1.2 If to Seller, addressed to:
Gender Road Joint Venture
c/o The Commonwealth Group
▇▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
with a copy in each instance to:
▇▇▇▇▇▇▇ ▇. ▇▇▇, Esquire
Saul, Ewing, ▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20
18.1.3 If to Escrow Agent, addressed to:
Commonwealth Land Title Insurance Company
National Title Service
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such-other address or addresses and to the attention of such other person
or persons as any of the parties may notify the other in accordance with the
provisions of this Agreement.
18.2 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
18.3 Entire Agreement. All Exhibits attached to this Agreement are
incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
18.4 Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of the Commonwealth of Pennsylvania.
18.5 No Recording. This Agreement shall not be recorded in the Office
for the Recording of Deeds or in any other office or place of public record.
18.6 Tender. Tender of Deed by Seller and of the Purchase Price by
Buyer, are hereby mutually waived.
18.7 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
18.8 Further Instruments. Seller will, whenever and as often as it
shall be reasonably request so to do by Buyer, and Buyer will, whenever and as
often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions
of this Article shall survive the Closing.
21
18.9 Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the Commonwealth of Pennsylvania, the time for such performance will be extended
to the next succeeding business day. Time periods under this Agreement will
exclude the first day and include the last day of such time period.
18.10 Designation of Nominee; Assignment of Agreement. Buyer
shall have the right to designate one or more of its subsidiaries or affiliate
entities to acquire title to the Premises hereunder. Except for the foregoing,
Buyer may not assign this Agreement.
18.11 Effective Date. Whenever the term or phrase "effective date
hereof" or "date hereof" or other similar phrases describing the date this
Agreement becomes binding on Seller and Buyer are used in this Agreement, such
terms or phrases shall mean and refer to the date on which a counterpart or
counterparts of this Agreement executed by Seller and Buyer are deposited with
the Escrow Agent.
18.12 Time for Acceptance. This Agreement shall constitute an
offer to buy or sell the Property, as case may be, on the terms herein set forth
only when executed by the Seller or Buyer. This Agreement may be accepted by
the party receiving such executed Agreement only by executing this Agreement and
delivering an original signed copy hereof to the Escrow Agent and an originally
signed copy hereof to the other party hereto within five (5) business days after
such receipt. Failure to accept in the manner and within the time specified
shall constitute a rejection and termination of such officer.
18.13 Confidentiality. Each of the parties hereto covenants and
agrees to hold the nature and content of this Agreement, including without
limitation, the Purchase Price contained herein, in strict confidence prior to
Closing, and other than disclosure required by the SEC and except as may be
necessary to comply with this Agreement, neither party shall disclose prior to
Closing, the nature, content or the Purchase Price of this Agreement without the
express written consent of the other party.
18.14 Delivery of Documents. If this Agreement (or any of the
Exhibits or Schedules hereto) shall have been prepared by Seller or by its
counsel, then promptly upon execution hereof by the parties hereto, Seller shall
deliver to Buyer one (1) "clean" copy of this Agreement, complete with all
Exhibits and Schedules prepared (or obtained) by Seller or its counsel, and a
copy of this Agreement (and said Exhibits and Schedules, if available) on disk,
compatible with WordPerfect 5.1.
19. SEC REPORTING (8-K) REQUIREMENTS.
For the period of time commencing on the date hereof and continuing
through the first anniversary of the Closing Date, and without limitation of
other document production otherwise required of Seller hereunder, Seller shall,
from time to time, upon reasonable advance written notice from Buyer, provide
Buyer and its representatives, with (I) access to all financial and other
information pertaining to the period of Seller's ownership and operation of the
Property, which information is relevant and reasonably necessary, in the opinion
of Buyer's outside, third party accountants (the "Accountants"), to enable Buyer
and its Accountants to
22
prepare financial statements in compliance with any or all of (a) Rule 3-05 or
3-14 of Regulation S-X of the Securities and Exchange Commission (the
"Commission"), as applicable; (b) any other rule issued by the Commission and
applicable to Buyer; and (c) any registration statement, report or disclosure
statement filed with the Commission by, or on behalf of Buyer; and (II) a
representation letter, 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.
20. INDEMNIFICATION.
Without limitation of any other Seller indemnity obligations set forth
herein, from and after the Closing Date, Seller shall indemnify, defend and save
and hold harmless Buyer, and its respective trustees, directors, officers and
employees, of, from and against any and all loss, cost, expense, damage, claim,
and liability, including reasonable attorney's fees and court costs, including,
without limitation, attorney's fees and costs associated with the enforcement of
Seller's indemnification obligations hereunder (hereinafter collectively,
"Losses") which Buyer may suffer or incur, resulting from, relating to, or
arising in whole or in part, from or out of (i) any misrepresentation or breach
of a representation or warranty by Seller contained in this Agreement; (ii) any
failure to fulfill any covenant or agreement of Seller contained in this
Agreement; (iii) all litigation set forth in this Agreement and on Exhibit "D";
hereto; and (iv) any and all actions, suits, investigations, proceedings,
demands, assessments, audits, judgments, and/or claims arising out of or
relating to any of the foregoing.
Promptly after receipt by Buyer of written notice of the commencement
of any suit, audit, demand, judgment, action, investigation or proceeding (a
"Third Party Action") or promptly after Buyer incurs a Loss or has knowledge of
the existence of a Loss, Buyer will, if a claim with respect thereto is to be
made against Seller due to Seller's obligation to provide indemnification
hereunder, give Seller written notice of such Loss or the commencement of any
Third Party Action; provided, however, that the failure to provide such notice
within a reasonable period of time shall not relieve Seller of any of its
obligations hereunder, unless Seller is materially prejudiced by such delay.
Promptly after receiving such notice, Seller will, upon notice to Buyer, have
the right to assume and control the defense and settlement of any such Third
Party Action at its own cost and expense; provided, however, that it shall be a
condition precedent to the exercise of such right by Seller that Seller shall
agree in writing that the Loss, or Third Party Action, as the case may be, is
properly within the scope of the indemnification obligation and that as between
the parties, Seller shall be responsible to satisfy and discharge such Third
Party Action. Seller shall not enter into any resolution or other compromise of
a Third Party Action without obtaining the complete release of Buyer for any
liability to all claimants under or pursuant to such Third Party Action. Buyer
shall have the right to participate in any such defense, contest or other
protective action at its own cost and expense.
Notwithstanding the foregoing, Buyer shall have the right to assume
and control the defense and settlement of a Third Party Action (a) if such
action includes claims for equitable relief which, if determined adversely to
Buyer, could reasonably be expected to interfere with its intended business
operations or damage its business reputation or (b) if Seller fails to do so in
a
23
timely manner. In any circumstances in which Buyer undertakes to control the
Third Party Action as provided in this paragraph, it shall (i) not enter into
any resolution or other compromise involving monetary damages without obtaining
the prior written consent of Seller provided that such written consent may not
be withheld if it would interfere with Buyer's business operation and (ii) keep
Seller informed on an ongoing basis of the status of such Third Party Action and
shall deliver to Seller, copies of all documents related to the Third Party
Action reasonably requested by Seller. Buyer shall act to assure that all
attorneys' fees and expenses incurred in connection therewith are reasonable.
21. EXCULPATION.
No recourse shall be had for any obligation of Brandywine Realty Trust
under this Agreement or under any document executed in connection herewith or
pursuant hereto, or for any claim based thereon or otherwise in respect thereof,
against any past, present or future trustee, shareholder, officer or employee of
Brandywine Realty Trust, whether by virtue of any statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such liability
being expressly waived and released by the Seller and all parties claiming by,
through or under Seller.
22. AS-IS.
Buyer acknowledges and agrees that except as herein elsewhere
specifically provided, Seller has not made, does not make and specifically
negates and disclaims any representations, warranties (other than the special
warranty of title as set out in the deed), promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
statutory, oral or written, past, present or future, of, as to, concerning or
with respect to (A) the value, nature, quality or condition of the Property,
including, without limitation, the water, soil, and geology, (B) the suitability
of the Property for any and all activities and uses which Buyer or any tenant
may conduct thereon, (C) the compliance of or by the Property or its operation
with any laws, rules, ordinances or regulations of any applicable governmental
authority or body, (D) the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Property, (E) the
manner or quality of the construction or materials, if any, incorporated into
the Property, (F) the manner, quality, state of repair or lack of repair of the
Property, (G) compliance with any environmental requirements, including the
existence in or on the Property of hazardous materials or (H) any other matter
with respect to the Property. Additionally, no person acting on behalf of
Seller is authorized to make, and by execution hereof, Buyer acknowledges that,
except as herein elsewhere specifically provided, no person has made any
representation, agreement, statement, warranty, guaranty or promise regarding
the Property or the transaction contemplated herein; and no such representation,
warranty, agreement, guaranty, statement or promise, if any, made by any person
acting on behalf of Seller shall be valid or binding upon Seller unless
expressly set forth herein. Buyer further acknowledges and agrees that, except
with respect to information developed by Seller, its
24
principals or affiliates, any information provided or to be provided with
respect to the Property was obtained from a variety of sources, that Seller has
not made any independent investigation or verification of such information and
makes no representations as to the accuracy, truthfulness or completeness of
such information, and the Buyer may not be entitled to rely on any such
information. The foregoing notwithstanding, Seller has no knowledge that any
such information is inaccurate or misleading. Buyer further acknowledges and
agrees that to the maximum extent permitted by law, and except as herein
elsewhere specifically provided, the sale of the Property as provided for herein
is made on an "as is" condition and basis with all faults. It is understood and
agreed that the purchase price has been adjusted by prior negotiation to reflect
that the Property is sold by Seller and purchased by Buyer subject to the
foregoing.
23. Other Transactions. The obligations of the parties to consummate
Closing hereunder shall be expressly conditioned upon (i) Seller and Brandywine
Operating Partnership, L.P., a Delaware limited partnership ("BOP") executing
and delivering a mutually satisfactory operating agreement regarding the
governance of Buyer, (ii) closing by Brandywine Realty Trust, or BOP, as buyer,
and Seller, as seller, under that certain Agreement of Sale dated of even date
herewith regarding the purchase and sale of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, Delaware, (iii) Seller and BOP executing and delivering a
mutually satisfactory operating agreement regarding the governance of Christiana
Center Operating Company I LLC and (iv) the execution and delivery by Seller, as
seller, and the said Christiana Center Operating Company I LLC as buyer of a
mutually satisfactory Agreement of Sale regarding the purchase and sale of that
certain property known as and numbered ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Delaware, each and all upon terms and conditions acceptable to the
parties, failing which neither party hereto shall have any obligation to
consummate Closing hereunder. If either party shall elect to terminate this
Agreement in such instance, then in that event, the Deposit shall be promptly
refunded to the Buyer and thereupon neither party shall have any further
obligation to the other hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
GENDER ROAD JOINT VENTURE, CHRISTIANA CENTER OPERATING
a Delaware partnership COMPANY II LLC, By Its Members
By:_________________(SEAL) BRANDYWINE OPERATING PARTNERSHIP,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Venturer L.P., a Delaware limited partnership, by
Hereunto Duly Authorized Brandywine Realty Trust, a Maryland Real
Estate Investment Trust, its sole
general partner
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President & CEO
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President & CEO
[SIGNATURES CONTINUED ON THE NEXT PAGE]
▇▇
▇▇▇▇▇▇ ▇▇▇▇ JOINT VENTURE,
a Delaware partnership
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Venturer,
Hereunto Duly Authorized
26
Exhibits to Agreement of Sale
"A" - Legal Description
"B" - Schedule of Inventory
"C" - Permitted Encumbrances
"D" - Rent Roll
Schedules to Agreement of Sale
5.8 - Leasing Commissions
ii
EXHIBIT "A"
Legal Description
EXHIBIT "B"
Schedule of Inventory
None
EXHIBIT "C"
Permitted Encumbrances
EXHIBIT "D"
Rent Roll
Not Applicable
vii