EXHIBIT 10.54
AGREEMENT OF SALE
PARCEL II
AIRPORT BUSINESS CENTER
TINICUM TOWNSHIP, PA
THIS AGREEMENT is made this 23rd day of October, 1996, by and among
▇▇▇▇▇▇▇▇▇/TINICUM PARTNERSHIP ("H/T Partnership"), a Pennsylvania general
partnership, INTERNATIONAL COURT II LIMITED PARTNERSHIP ("International Court
II, LP"), a Pennsylvania limited partnership, INTERNATIONAL COURT III JOINT
VENTURE ("International Court III, JV"), a Pennsylvania general partnership,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & SON ("▇▇▇▇▇▇▇▇▇ & Son"), a Pennsylvania general
partnership, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"), an individual, (H/T
PARTNERSHIP, INTERNATIONAL COURT II, L.P., INTERNATIONAL COURT III, J.V.,
▇▇▇▇▇▇▇▇▇ & SON, AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, are sometimes hereinafter collectively
referred to as "Sellers" and each individually as "Seller"), and CALI REALTY
ACQUISITION CORPORATION ("Buyer"), a Delaware corporation.
RECITALS:
A. H/T Partnership is the owner of certain real property and
improvements thereon located in Tinicum Township, Delaware County, Pennsylvania,
containing approximately 12.7 acres of land and improved with a three-story
building consisting of approximately 95,000 rentable square feet and commonly
known as "International Court I", all as more fully described on Exhibit "A-1",
attached hereto and made a part hereof (the "International Court I Building").
B. International Court II, LP is the owner of certain real property and
improvements thereon located in Tinicum Township, Delaware County, Pennsylvania,
containing approximately 13.6 acres of land and improved with a four-story
building consisting of approximately 208,000 rentable square feet and commonly
known as "International Court II", all as more fully described on Exhibit "A-2",
attached hereto and made a part hereof (the "International Court II Building").
C. International Court III, JV is the owner of certain real property
and improvements thereon located in the Township of Tinicum, Delaware County,
Pennsylvania, containing approximately 4 acres of land and improved with a
three-story building consisting of approximately 68,000 rentable square feet and
commonly known as "International Court III", all as more fully described on
Exhibit "A-3", attached hereto and made a part hereof (the "International Court
III Building").
▇. ▇▇▇▇▇▇▇▇▇ & Son and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ are the owners, as tenants in
common, of a certain unimproved parcel of land located in Tinicum Township,
Delaware County, Pennsylvania, containing approximately 12.7 acres of land, all
as more fully described on Exhibit "A-4", attached hereto and made a part hereof
(the "Parcel").
E. International Court I Building, International Court II Building,
International Court III Building and the Parcel make up an office park commonly
known as "Parcel II, Airport Business Center". International Court I Building,
International Court II Building, International Court III Building are sometimes
hereinafter referred to collectively as, the "Buildings" and individually as, a
"Building". (References to lot size for the Buildings and the Parcel are for
description only and are not representations as to actual size and dimension.)
F. H/T Partnership desires to sell to Buyer, and Buyer desires to
purchase from H/T Partnership, the International Court I Building.
G. International Court II, LP desires to sell to Buyer and Buyer
desires to purchase from International Court II, LP, the International Court II
Building.
H. International Court III, JV desires to sell to Buyer and Buyer
desires to purchase from International Court III, JV, the International Court
III Building.
▇. ▇▇▇▇▇▇▇▇▇ & Son and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ desire to sell to Buyer, and
Buyer desires to purchase from ▇▇▇▇▇▇▇▇▇ & Son and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the Parcel.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises and covenants contained herein, and each intending to be legally bound
hereby, agree as follows:
1. Sale of Property.
A. Subject to and upon the terms and conditions set forth in this
Agreement, each Seller agrees to sell, assign, transfer, deliver and convey to
Buyer, and Buyer agrees to purchase, acquire and accept from each Seller, all of
each Seller's right, title, and interest in the Building or the Parcel, as the
case may be, which it owns, as set forth in the Recitals above for the purchase
price hereinafter set forth.
B. Buyer agrees to pay to each Seller and each Seller agrees to accept
as the purchase price for its Building or the Parcel, as the case may be, the
following sum:
Property Price
-------- -----
International Court I Building $12,020,000
International Court II Building $23,100,000
International Court III Building $ 7,880,000
Parcel $ 2,000,000
Each of the foregoing sums is sometimes hereinafter referred to as the
"Individual Purchase Price" for the Building or the Parcel designated opposite
such sum, and the sum of all of them, being Forty-Five Million Dollars
($45,000,000.00), is sometimes hereinafter referred to as the "Purchase Price".
C. Each Seller agrees to sell, convey, assign and transfer as part of
this Agreement, with respect to its Building or the Parcel, as the case may be,
the following:
(1) All open parking areas and improvements, including without
limitation, all mechanical, electrical, heating, ventilation, air conditioning
and plumbing fixtures, systems and equipment as well as all compressors, engines
and elevators, if any; and
(2) All leases and other agreements with respect to the
occupancy of the Building or the Parcel, together with all amendments and
modifications thereto ("Leases"), and rents, additional rents, reimbursements,
profits, income and receipts with respect to the period commencing on the date
of Closing and continuing thereafter as set forth below, and Security Deposits,
as hereinafter defined, thereunder and all of Seller's right, title and interest
in and to those contracts and agreements for the servicing, maintenance and
operation of the Building or the Parcel ("Service Contracts") to the extent
Buyer elects to assume same as provided in Paragraph 3.D. herein; and
(3) All right, title and interest, if any, of the Seller in
and to those certain fixtures, equipment, furniture and other items of personal
property affixed to or appurtenant to the Building or the Parcel owned by Seller
and constituting either a part of a Building or the Parcel or used in the
operation thereof, including, without limitation, all carpets, drapes and other
furnishings; maintenance equipment and tools, all fixtures, machinery,
transformers, apparatus, fittings, freezing, lighting, laundry, incinerating and
power equipment and apparatus, all engines, pipes, pumps, tanks, motors,
conduits, switchboards, plumbing, lifting, cleaning, fire prevention and fire
extinguishing and refrigerating equipment and apparatus; shades, blinds,
awnings, screens, storm doors and windows, cabinets, partitions, ducts and
compressors, rugs, furniture and furnishings, hot water heaters, garbage
receptacles and containers above and below ground, keys to locks on or in the
Building, and all other machinery, equipment, meters, boilers, repair parts,
fixtures and tangible personal property of every kind and character and all
accessions and additions thereto owned by and in the possession of Seller and
attached to or located upon and used in connection with the ownership,
maintenance, or operation of the Building or the Parcel which are not the
property of Tenants of the Building or of other persons (the "Personal
Property") (As used in this Agreement, the term "Tenant" shall mean any and all
occupants of the Building or the Parcel.); and
(4) All right, title and interest, if any, of the Seller in
and to any land lying in the bed of any public street, any interest in any
public or private road, alley, easements, rights of way, water, water courses,
sewer rights, hereditament or avenue opened or proposed, in front of or
adjoining said Building or the Parcel, as the case may be, including all strips
and gores between the Building or the Parcel, as the case may be, and abutting
property, to the center line thereof all appurtenances to the Building or the
Parcel; and
(5) All right, title and interest of Seller, if any, in and to
all current or proposed site plans, and all surveys, soil and substrata studies,
architectural drawings, plans and specifications, engineering plans and studies,
floor plans, landscape plans, operating or maintenance manuals and other plans
and studies of any kind owned by Seller, if any, with respect to the Building or
the Parcel or the Personal Property ("Plans"); and
(6) All books, records, promotional material, tenant data,
leasing material and forms, current rent rolls, market studies, keys, and other
materials of any like kind owned by Seller, if any, which are or may be used in
Seller's ownership or use of the Building or the Parcel or the Personal Property
(to the extent any such material or information is contained in a document that
also contains material or information with respect to a property other than a
Building or the Parcel, then Seller shall retain ownership of the document and
provide to Buyer a copy thereof, redacted to remove information relating to such
other property) during the three (3) year period immediately preceding the date
of Closing; Seller shall retain the originals of such for purposes of
record-keeping and shall provide true and correct copies to Buyer ("Books and
Records"); and
(7) All right, title and interest of Seller, if any, in and to
the use of the names, "International Court" and a license to use the name
"Airport Business Center" as such relates to the Buildings and the Parcel, but
Seller shall retain such right, title and interest, if any, in and to the use of
such name as such relates to other property owned by any Seller, and any other
name by which the property is commonly known, and all goodwill, if any, related
to the name by which the Buildings are commonly known ("Trade Names"); and
(8) All right, title and interest of Seller, if any, in and to
any and all licenses and permits owned or held by Seller (including any
certificates of occupancy) to the extent such are assignable and in any way used
in connection with the ownership or operation of the Building or the Parcel or
the Personal Property (collectively, "Licenses and Permits"); and
(9) All other rights, privileges and appurtenances owned by
Seller, if any, and in any way related to the rights and interests described
above in this Section; provided, however, that if such rights, privileges and
appurtenances also benefit or relate to property constituting the Airport
Business Center owned by Seller other than the Buildings and the Parcel, then
Seller shall retain an ownership interest therein and shall grant and convey to
Buyer such interest and right as may be necessary or desirable for Buyer's use
and enjoyment of the Buildings and the Parcel.
(The foregoing Buildings, the Parcel, rights and interests set forth or
described in subsections (1) through (9) of this Section are hereinafter
collectively referred to as the "Property".)
2. Payment of Purchase Price.
A. Simultaneously with the execution and delivery of this Agreement by
each Seller, Buyer shall deliver to Commonwealth Land Title Insurance Company
("Title Company"), as escrow agent, a cash deposit in the amount of Two Hundred
Fifty Thousand Dollars ($250,000.00) to be held by Title Company as the security
for the performance of Buyer's obligations hereunder (together with all interest
earned thereon, the "Initial Deposit") pursuant to the provisions set forth in
Paragraph 19.
B. Within five (5) days after the end of the Inspection Period, as
hereinafter defined, Buyer shall at its sole option deliver to Title Company, as
escrow agent, either an additional cash deposit in the amount of Two Hundred
Fifty Thousand Dollars ($250,000.00), together with all interest earned thereon
(the "Second Deposit") or an irrevocable and unconditional, domestic letter of
credit (the "Letter of Credit"), issued by a financial institution reasonably
acceptable to Sellers for the account of Buyer and naming Title Company as
beneficiary, in the sum of Five Hundred Thousand Dollars ($500,000.00), payable
on December 10, 1996, in form reasonably acceptable to Sellers (the "Letter of
Credit Deposit"), to be held by Title Company as the security for the
performance of Buyer's obligations hereunder pursuant to the provisions set
forth in Paragraph 19. (The Initial Deposit and the Second Deposit, if and when
made, are sometimes hereinafter collectively referred to as the "Deposit".) In
the event Buyer elects to and does deliver the Letter of Credit Deposit, the
Initial Deposit shall be promptly returned to Buyer by the Escrow Agent,
notwithstanding anything to the contrary set forth in Paragraph 19 or otherwise
in this Agreement, and the Letter of Credit Deposit shall be deemed to be the
Deposit for the purposes of this Agreement.
C. At the time of Closing, the Deposit, if not in the form of the
Letter of Credit Deposit, shall be applied to the Purchase Price.
D. Buyer shall pay to each Seller the balance of the Individual
Purchase Price for its Building or Parcel, as the case may be, plus or minus any
credits and adjustments as may be provided herein, and less the application of
the Deposit, if not in the form of the Letter of Credit Deposit, in cash or by
wire transfer of the immediately available federal funds to such Seller's order.
E. In the event that the Parcel Closing, as hereinafter defined, is not
held on the same date as the Closing, as hereinafter defined, but is held on or
before the first anniversary of the date of Closing, the Individual Purchase
Price for the Parcel shall be Two Million Dollars ($2,000,000.00); if the Parcel
Closing is held on a date that is after the first anniversary of the Closing but
before the second anniversary of the Closing, the Individual Purchase Price for
the Parcel shall be Two Million Fifty Thousand Dollars ($2,050,000.00); and if
the Parcel Closing is held on a date that is after the second anniversary of the
Closing, the Individual Purchase Price for the Parcel shall be Two Million One
Hundred Thousand Dollars ($2,100,000.00), subject to adjustment as provided
herein. The parties' respective rights and obligations with respect to the
Parcel are more fully set forth in Paragraph 26 hereof.
3. Certain Conditions.
The following shall be conditions precedent to Buyer's obligations to
close hereunder:
A. Buyer shall have thirty (30) days, commencing with the date of this
Agreement, in which to review all Leases, contracts, income, expenses, Service
Contracts, Plans, Books and Records, business records, including, without
limitation, engineering and environmental reports, to conduct or retain third
parties to conduct physical inspections, soil tests and borings, environmental
surveys and tests, ground water tests and investigations, marketing surveys and
such other tests, inspections and surveys as Buyer deems relevant or necessary
to this purchase ("Inspection Period"). In the event Buyer, in its sole
discretion is not satisfied for any reason with the results of said review,
tests, reports, or inspections, this Agreement shall terminate as of the end of
the Inspection Period. In the event Buyer elects to continue with the purchase
of the Property under this Agreement, Buyer shall provide notice of such
election to Seller prior to the expiration of the thirty (30) day Inspection
Period. The failure by Buyer to timely provide written notice to Seller of its
election to continue with the purchase shall be evidence of Buyer's termination
of this Agreement. For purposes of the notice referred to above, only, Buyer may
provide notice to Seller by hand delivery to Seller's address set forth in
Paragraph 18 hereof, and such shall be deemed good notice on the date so
delivered. Buyer may elect not to proceed under this Agreement within said time
period for any reason whatsoever or no reason. In the event this Agreement
terminates by operation of this Paragraph, Buyer will deliver to Seller at the
time that the Deposit is returned to Buyer, copies of all environmental and
engineering reports and tests that it has received or caused to be made, the
Deposit shall be returned to Buyer, this Agreement shall become null and void
and neither Seller nor Buyer shall have any further rights or obligations under
this Agreement.
(1) Seller hereby agrees that Buyer, its agents and
contractors, shall have the right to enter onto the Buildings and the Parcel and
Seller agrees to permit inspections, tests, borings, investigations, and studies
by Buyer, its agents and contractors, of or related to the Buildings and the
Parcel, as Buyer, in its sole discretion may deem necessary or desirable,
including without limitation, tests involving the roof, HVAC and other
structural elements of each of the Buildings, as well as soil borings and tests
and ground water tests and investigations. Prior to undertaking any test that
will result in any material damage to the Real Property, Buyer shall obtain
Seller's written consent, which consent shall not be unreasonably withheld or
delayed. If such consent is not denied within twenty-four (24) hours after the
written request therefor is delivered to Seller, the consent shall be deemed
granted. Seller shall advise Buyer of any conditions which exist, that due to
the nature of the test, boring or investigation to be performed by or on behalf
of Buyer pose a dangerous condition to Buyer or any other person. Seller shall
cooperate with Buyer and shall use reasonable efforts to secure the cooperation
of Tenants, contractors and engineers with Buyer's inspections. Seller shall
allow free access to the grounds and the common and Building system areas of the
Buildings and to the Parcel during normal business hours, subject to the rights
of Tenants under law and the Leases. Tenant areas will be subject to
investigation with permission of Tenants, who generally will not permit
inspection during normal business hours. Seller will, with the permission of
Tenants, make available to Buyer its personnel to assist in obtaining access to
Tenant areas during evening and weekend hours. Seller will deliver to Buyer
documents in its possession concerning any Plans and/or surveys, current rent
roll, Licenses and Permits, Books and Records of the last three years, Leases,
Service Contracts, ground water tests and investigations, soil tests and
borings, and hazardous waste reports which Seller has in Seller's possession or
subject to Seller's control, in regard to the Property and such other documents
in Seller's possession, if any, which Buyer may reasonably desire to inspect
within three (3) business days after written request therefor is delivered to
Seller.
(2) Buyer agrees that it shall indemnify and hold Seller
harmless from any and all actions, causes of actions, claims, suits, costs and
expenses, including reasonable counsel fees, as a result of personal injury or
damage to property, including the Property, to the extent arising out of or
occurring as a result of the actions or failure to act of Buyer, its servants,
agents or employees and contractors in the course of having access to the
Premises and or performing the tests and inspections permitted hereunder, except
to the extent caused by Seller, Tenants or their respective agents, servants and
employees or other third parties over whom Buyer has no control. Buyer further
agrees that if it undertakes any tests in which portions of Buildings,
improvements or land are damaged, displaced or removed, Buyer, at its cost, will
promptly restore such to its condition prior to the performing of such tests or
inspections.
B. All of Seller's representations shall be true and correct as of the
date of Closing, unless expressly limited to the date of this Agreement.
C. As of Closing, the title to the Property shall comply with the
requirements specified in Paragraph 4 hereof.
D. Buyer, at least thirty-five (35) days prior to Closing, shall
identify in writing to Seller those Service Contracts that Buyer wishes to
assume ("Elected Service Contracts"). Seller shall cause all Service Contracts,
other than the Elected Service Contracts, to be terminated so that there shall
be no contracts or agreements for supplies or services to the Property
outstanding on the date of Closing. Buyer shall, in writing, on terms reasonably
acceptable to Seller, agree to assume the Elected Service Contracts and release
Seller of all liability for obligations or occurrences arising therefrom after
the date of Closing.
E. Seller shall have performed all of its covenants, agreements and
obligations set forth herein and shall have complied with all conditions
required by this Agreement to be performed or complied with by Seller on or
before the date of Closing.
F. Seller shall have delivered to Buyer all of the documents required
to be delivered as set forth in Paragraph 12 hereof.
G. In the event the zoning classification of any Building is changed
prior to Closing without Buyer's written approval, Buyer shall have the right to
cancel this Agreement and to receive the Deposit, whereupon neither party shall
have any further rights, duties or obligations under this Agreement.
H. Valid and final certificates of occupancy shall have been issued for
each Building and for each of the spaces leased to Tenants and no space in any
Building shall have been leased or occupied in violation of any such
certificate.
I. As of Closing, there shall be no sewer moratorium affecting any of
the Buildings or the Parcel.
J. The Property shall be in compliance with all Environmental Laws (as
hereinafter defined).
4. Title.
A. At the Closing and the Parcel Closing hereunder, title to the
Buildings and to the Parcel, shall be transferred in fee simple, good and
marketable, free and clear of all liens, encumbrances, easements and
restrictions, except for those items set forth on Exhibit "B" hereto attached
and made a part hereof, or those to which Buyer agrees in writing to take
subject to ("Permitted Exceptions") and shall be insurable as good and
indefeasible fee simple title to the Property, subject only to the Permitted
Exceptions, at standard rates by a responsible title insurance company in the
Philadelphia and Delaware County area. There shall be no restrictions which
would prohibit the use of the Buildings or the Parcel as offices, office
buildings, or an office park. Each Seller shall use its diligent efforts to
deliver title as required hereunder, subject to the provisions of this
Agreement.
B. Each Seller shall inform Buyer within ten (10) days after the date
of this Agreement of the existence of any mortgage liens on the Building or the
Parcel, which it owns, and the outstanding principal balance and accrued
interest due and owing thereon. Each Seller shall use a portion of the Closing
proceeds to satisfy any amounts due under such mortgages. Any such mortgage lien
shall be discharged or satisfied prior to or at Closing by Seller. If any such
mortgage lien is not held by an institutional lender, then Seller shall be
obligated to present at Closing a fully executed discharge and satisfaction
piece in recordable form and an original of such mortgage properly endorsed for
cancellation.
C. If, at or before Closing, it appears that any Building or the Parcel
may be or is subject to mechanics' or materialmen's liens or the lien of
decedent's debts, the Seller owning such Building or Parcel shall, at Seller's
cost and expense, provide special insurance against such lien and upon so doing
the same shall be considered good delivery of title with respect thereto under
this Agreement. Each Seller shall discharge at Closing all monetary liens that
it voluntarily has agreed to attach to the Property in exchange for any monetary
benefit (each such lien is sometimes referred to hereinafter as a "Voluntary
Lien").
D. If, at or before Closing, it appears that any Building or the Parcel
is subject to the possible lien of unsettled corporate taxes or will be subject
to possible corporate tax liability of the Seller owning such Building or
Parcel, that Seller will enter into an agreement satisfactory to Title Company
or deposit funds or security with Title Company as required to induce Title
Company to insure title to the subject Building or the Parcel free and clear of
loss or damage by reason of the nonpayment of such unsettled and other corporate
taxes and the same shall be considered good delivery of title with respect
thereto under this Agreement.
E. In the event any monetary liens (other than a mortgage lien or
mechanic's or materialmen's lien or a Voluntary Lien) exist against the
Property, which individually or in the aggregate are less than or equal to Three
Hundred Fifty Thousand Dollars ($350,000.00), then Seller shall discharge such
lien or liens prior to or at Closing, by payment or by posting a bond with the
court having jurisdiction over such lien. If Seller desires to contest said lien
and cannot discharge the lien by bonding, then Seller shall post an amount equal
to the lien, plus interest payable thereon, if any, with Title Company and
Buyer, in escrow. Seller shall execute and deliver an agreement, as may be
required by Title Company to insure over such lien, and as may be required by
Buyer, to provide for the use of such funds to satisfy such lien in the event
that any action to execute thereon is initiated against the encumbered Building
or Parcel, or in connection with any financing or sale of such Building or
Parcel by Buyer. If such lien or liens are individually or in the aggregate with
the cost of compliance as set forth in Paragraph 11.J hereof, more than Three
Hundred Fifty Thousand Dollars ($350,000.00), then Buyer shall have the option
of either (i) terminating this Agreement and receiving back the Deposit, or (ii)
completing Closing hereunder and receiving from Seller a Three Hundred Fifty
Thousand Dollar ($350,000.00) credit against the Purchase Price.
5. Closing.
A. Closing on the purchase of the Buildings, and or the Parcel, if held
concurrently, (the "Closing") shall occur at the offices of Seller or such other
location as shall be mutually agreed upon by the parties, between December 2,
1996, and December 6, 1996, and in no event shall Closing be held prior to
December 2, 1996.
B. As more fully set forth below in Paragraph 26, Buyer may elect to
close on the purchase of the Parcel on a date other then the Closing. Closing on
the purchase of the Parcel if not concurrently with the Closing, shall occur by
the parties at any time within three (3) years after the Closing upon ten (10)
days written notice from Buyer to Seller at the offices of Seller or such other
location as shall be mutually agreed upon (the "Parcel Closing"), and any term,
covenant, representation or warranty made or given herein with respect to or
applicable to the Parcel shall extend to and be applicable to the date of the
Parcel Closing, and this Agreement shall remain in full force and effect with
respect to the Parcel, unless specifically provided otherwise herein.
C. Except as set forth in Paragraphs 4.C. and 4.D., all title insurance
fees and premiums shall be borne by Buyer.
6. Apportionments at Closing.
A. The payment of all realty transfer taxes shall be the obligation of
Seller and shall be paid at Closing.
B. The following items with respect to each Building and the Parcel are
to be apportioned as of 11:59 P.M. on the date preceding the Closing:
(1) Rents and percentage rents payable by Tenants as and when
collected. Any rent from a Tenant received by Buyer after Closing for the month
in which Closing occurs, shall be pro-rated on a per diem basis based on the
actual number of days in such month, and Buyer shall, within thirty (30) days
after receipt of such rent, provide to Seller its proportionate share thereof.
All other monies received from Tenants from and after the Closing shall belong
to Buyer and shall be applied by Buyer to current rents and other charges under
the Leases. After application of such monies to current rents and charges, Buyer
agrees to remit to Seller any excess amounts paid by a Tenant to the extent that
such Tenant was in arrears in the payment of rent prior to the Closing, not in
excess of one (1) month's rent. The provisions of this subsection shall survive
the Closing.
(2) Utility charges payable by Seller, including without
limitation, electricity, water charges and sewer charges. If there are meters on
the Building, Seller will cause readings of all said meters to be performed not
more than five (5) days prior to the Closing.
(3) Amounts payable under the Elected Service Contracts.
(4) Real estate taxes due and payable.
(5) Income from vending machines, if any, and all other
income, if any, other than rents.
C. At the Closing Seller shall deliver to Buyer a certified statement
for each Tenant of the Tenant's Operating Allowance, the Operating Lease Year
and the Estimated Operating Expenses (as defined in the Leases) with respect to
any Operating Lease Year for which the expenses have not been reconciled,
setting forth Seller's expenses passed through to Tenant for such Operating
Lease Year including, but not limited to, expenses common to all Tenants such as
real estate taxes, insurance costs, common area utility costs and other common
area operating expenses as well as those charges specific to a particular Tenant
("Additional Rent") as well as the amount Seller has paid or incurred, monthly
and in the aggregate, for each item of Additional Rent to the date of Closing.
In the event that Seller has expended more than the amount billed to Tenant,
Buyer shall pay Seller the difference between the amount expended or incurred
and the amount billed to the Tenant. In the event Tenant has been billed more
than the expenses which Seller has paid or incurred, Buyer shall be entitled to
a credit against the Purchase Price in the amount of such difference. Buyer
agrees to remit said amount to each Tenant as shown on the statement. Seller
acknowledges its obligation to each Tenant with respect to any claims of
overpayment of Additional Rent for any period to the date of Closing other than
as set forth on said statement, and that such obligation shall survive Closing.
In the event that a Tenant subsequently disputes the amount of such expenditures
by Seller, Seller shall provide Buyer with copies of the invoices and evidences
of payment of the invoices for the purposes of resolving such dispute. In the
event Buyer is unable to resolve such dispute amicably, Buyer may request Seller
to provide counsel for any litigation which may ensue.
D. Except as otherwise provided in this Agreement, the adjustments
shall be made in accordance with the customs in respect to closings in the
Commonwealth of Pennsylvania.
E. Any errors in calculations or adjustments shall be corrected or
adjusted as soon as practicable after the Closing.
7. Allocation of Purchase Price.
The parties agree that the price for the three Buildings shall be
allocated among the Buildings as set forth in Paragraph 1.B. above, and that
such division of the purchase price is a fair allocation of the relative market
values of the Buildings.
The parties agree that notwithstanding the aforesaid, the Agreement for
the sale of the Buildings is indivisible and all Buildings must be purchased or
the Agreement is subject to cancellation by either party hereto regardless of
the reason for the liability, failure, or refusal to offer to convey or accept
less than all the Buildings, provided, however, that no Seller may terminate
this Agreement due to the failure or refusal of another Seller to comply with
the terms hereof and Buyer may not terminate this Agreement as to any Building
unless Buyer terminates this Agreement as to all Buildings and the Parcel.
Neither Buyer nor Seller may select any one or more of the Buildings for sale or
purchase at the allocated prices.
8. As-Is Purchase.
The parties hereto agree that, except as otherwise represented or
warranted in this Agreement, the sale of the Parcel and Buildings is on an
"as-is" basis. Buyer agrees that it will complete the purchase only on the basis
of its own inspection of the Property, tests and inspections by engineers and
other consultants, its analysis of the Leases and Tenants, and verification of
the income and operating expenses and not in reliance upon any representations
or statements made by Seller, its employees and agents, or Broker, as
hereinafter defined, its agents, servants or employees, other than those
contained in this Agreement or in any instrument or document delivered pursuant
hereto.
9. Seller's Representations.
A. As a material inducement to cause Buyer to enter into this
Agreement, each Seller hereby makes the following covenants, warrants and
representations with respect to it and its respective Property:
(1) Each Building and the Parcel is zoned BCD - Business
Center District.
(2) With reference to the items of Personal Property, if any,
sold pursuant to this Agreement, Seller, as to such items, if any, applicable to
its Building or Parcel, is the sole and absolute owner thereof, free and clear
of all security interests, bills of sale, chattel mortgages, security
agreements, liens and encumbrances, except for security interests granted in
favor of the holder of any mortgage to be paid off on or before Closing.
(3) Annexed hereto as Exhibit "C" (the "Rent Roll") is a true,
complete and correct schedule of all Leases, which Leases are valid and bona
fide and are now in full force and effect. Seller has delivered to Buyer true,
correct and complete copies of all of the Leases. Except as disclosed on the
Rent Roll, to the best of Seller's knowledge, no defaults exist under any Lease.
The Leases constitute all of the leases, tenancies or occupancies affecting the
Buildings or the Parcel on the date hereof; all Tenants have commenced
occupancy; other than the Leases, there are no agreements which confer upon any
Tenant or any other person or entity any rights with respect to the Buildings or
the Parcel; no Tenant is entitled now or in the future to any concession,
rebate, offset, allowance or free rent for any period, nor has any such claim
been asserted by any Tenant; no Tenant is in arrears for the payment of rent for
any months preceding September, 1996; all work, alterations, improvements or
installations required to be made for or on behalf of all Tenants under the
Leases have in all respects been carried out, performed and complied with, and
there is no agreement with any Tenant for the performance of any work to be done
in the future.
(4) The Rent Roll sets forth: (i) the total number of Tenants
at the Buildings and the Parcel; (ii) the name of each Tenant; (iii) fixed rent
actually being collected; (iv) expiration date of the Leases (including all
rights or options to renew); all deposits posted under the Leases and all other
deposits, if any, in the nature of security for performance by a Tenant under
its Lease ("Security Deposits"); (vi) arrangements under which any Tenant is
occupying space on the date hereof or will in the future, occupy such space
(other than under a Lease); (vii) any written notices given by any Tenant of an
intention to vacate space in the future; and (viii) the operating lease year(s)
and base year(s) and operating lease year amounts and base year amounts for all
items of rent or Additional Rent. Seller has performed all of the obligations
and observed all of the covenants required of the landlord under the terms of
the Leases.
(5) There are no service, maintenance, employment or other
contracts affecting the Property or any portion thereof which will not have been
terminated as of Closing, other than the Elected Service Contracts. Without
Buyer's consent, Seller shall not enter into any other contracts which cannot be
terminated prior to Closing. True, accurate and complete copies of the Service
Contracts have been initiated by the parties. All of the Elected Service
Contracts are and will on the date of Closing be unmodified and in full force
and effect without any default or claim of default by any party thereto. All
sums presently due and payable by Seller under the Elected Service Contracts
have been fully paid and all sums which become due and payable between the date
hereof and the date of Closing shall be fully paid on the day of Closing, unless
Seller is, in good faith, disputing the payment of such sum. Seller shall
provide to Buyer prompt notice of any dispute with or default by any vendor of
an Elected Service Contract but failure to do so will not constitute a breach of
this covenant.
(6) Each of the respective Sellers is the sole owner of fee
simple title of the Building or the Parcel, as set forth in the Recitals, and
has the right to convey by special warranty deed fee simple title to such
Building or to the Parcel, as the case may be.
(7) To the best of Seller's knowledge, there are no violations
of any building codes, zoning codes or other township ordinances applicable to
the Buildings or the Parcel, or the operation thereof. Seller has no knowledge
of any notices, suits, investigations or judgments alleging or relating to any
violations of any laws, ordinances, regulations, codes, decrees, orders or
statutes affecting the Property, or the use and operation thereof, and has no
reason to believe that any governmental agency, authority or board contemplates
the issuance or commencement thereof.
(8) There are no pending legal proceedings, actions, suits,
labor disputes currently pending or, to the best of Seller's knowledge,
threatened against or affecting title to the Property or any part thereof or
Seller, except suits for personal injury to third persons that are covered by
insurance.
(9) There are no leasing commissions due on account of the
original term of all Leases or any extensions and renewals thereof and owing by
the Seller. All commissions, including without limitation, those disclosed to
Buyer, and shall be fully satisfied by Seller prior to Closing.
(10) To the best of Seller's knowledge, the public utilities
available for the operation of the Buildings as an office park or any part
thereof, i.e., water, sewer, gas and electricity, are fully available to the
Buildings and enter the office park through ▇▇▇▇▇▇▇ Drive in accordance with
valid easements which are recorded and which will enure to the benefit of Buyer.
To the best of Seller's knowledge, said utilities, as built, extend to the
cul-de-sac, but do not extend to the edge of the Parcel, except gas service
which does not extend to the cul-de-sac.
(11) There exists no building permits under which work remains
to be completed.
(12) To the best of Seller's knowledge, there are no
underground storage tanks on the Buildings or the Parcel, except one 10,000
gallon tank for heating oil servicing International Court II Building and all
required permits and registrations with respect to such tank have been obtained
by Seller and remain in full force and effect.
(13) ▇▇▇▇▇▇▇▇▇/Tinicum Partnership and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ &
Son are Pennsylvania general partnerships, duly formed and validly existing
under the laws of the Commonwealth of Pennsylvania and the persons executing
this Agreement on behalf the partners of such partnership are authorized to do
so.
(14) International Court II Limited Partnership is a
Pennsylvania limited partnership duly formed and existing under the laws of the
Commonwealth of Pennsylvania. The person or persons executing this Agreement on
behalf of the general partner of such limited partnership are authorized to do
so.
(15) International Court III Joint Venture is a Pennsylvania
general partnership duly formed and validly existing under the laws of the
Commonwealth of Pennsylvania. The persons executing this Agreement on behalf of
the entities comprising the partnership are authorized to do so.
(16) Seller has had a delineation of the wetlands on the
Parcel made by a wetlands consultant. A copy of the wetlands delineation and the
site plan for said Parcel upon which the wetlands have been delineated has been
or will be delivered to Buyer. To the best of Seller's knowledge, such
delineation of the wetlands is accurate and complete.
(17) Under current zoning and land development laws, codes and
ordinances and other laws and regulations applicable to the Parcel, as a matter
of right, without the need for any variance, exception or other relief, there
can be constructed on the Parcel with the wetlands delineation discussed above
in Paragraph 9.A(17), either (i) a minimum of 135,000 square feet of office
space with parking therefor at the ratio of four spaces per 1,000 square feet of
space, or (ii) a minimum of 150,000 square feet of office space with structured
parking as needed to achieve a parking ratio of four spaces per 1,000 square
feet of space. Sewer capacity is available to support the construction and
operation of the amount of space set forth in the immediately preceding
sentence.
(18) All documents delivered by Seller to Buyer in accordance
with the provisions of this Agreement will be true and correct copies of
Seller's records, either maintained by Seller in its or his ordinary course of
business, or delivered to Seller for use in its or his business.
(19) To the best of Seller's knowledge, there are no
outstanding requirements or recommendations, which if not followed could
jeopardize any insurance coverage, by (i) the insurance company(s) which issued
the insurance policies insuring the Buildings; (ii) any board of fire
underwriters or other body exercising similar functions, or (iii) the holder of
any mortgage, which require or recommend any repairs or work to be done on the
Buildings.
(20) The Seller has received no written notice and has no
knowledge of (i) any pending or contemplated annexation or condemnation
proceedings, or private purchase in lieu thereof, affecting or which may affect
the Property, or any part thereof, (ii) any proposed or pending proceeding to
change or redefine the zoning classification of all or any part of the Property,
(iii) any proposed or pending special assessments affecting the Property or any
portion thereof, and (iv) any proposed changes in any road or grades with
respect to the roads providing a means of ingress and egress to the Property.
Seller agrees to furnish Buyer with a copy of any such notice received within
two (2) days after receipt.
(21) All books and records provided by Seller to Buyer are
true, complete and correct.
(22) There are no employees of any Seller working at or in
connection with the Property. There is currently no union agreement affecting
the Property and none will be in effect on the date of Closing.
(23) Seller has all requisite power and authority to execute
and deliver this Agreement and all other documents to be executed delivered by
it hereunder, and to perform its obligations hereunder and under such other
documents and instruments in order to sell its Building or the Parcel and the
Property owned by it in accordance with the terms and conditions hereof and all
necessary actions of the general and limited partners (stockholders and board of
directors) of Seller to confer such power and authority upon the persons
executing this Agreement and all documents which are contemplated by this
Agreement on its behalf have been taken.
(24) This Agreement, when duly executed and delivered, will be
the legal, valid and binding obligation of Seller, enforceable in accordance
with the terms of this Agreement, subject to bankruptcy, insolvency,
reorganization or other laws affecting the rights of creditors generally.
Seller's performance of its duties and obligations under this Agreement and the
transfer documents contemplated hereby will not conflict with, or result in a
breach of or default under, any provision of any of Seller's organizational
documents, any agreements, instruments, decrees, judgments, injunctions, orders,
writs, laws, rules or regulations, or any determination or aware of any court or
arbitrator, to which Seller is a party or by which its or his assets are or may
be bound.
(25) No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit or creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending or
threatened against, or contemplated by Seller.
(26) No person, firm or entity has any rights in, or rights to
acquire all or any part of the Property.
B. All representations and warranties herein made shall be considered
to have been made both as of the date of execution hereof and as of the date of
Closing hereunder, unless the representation is as of the date of this
Agreement, in which event the representation is not as of the date of Closing.
With respect to ▇▇▇▇▇▇▇▇▇ & Son and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the representations,
warranties set forth above in subparagraphs (6), (8), (9), (11), (12), (13),
(18), (20), (21), (22), (23), (24), (25) and (26) and covenants contained herein
shall continue and shall be considered to have been made both as of the date
hereof and as of the date of the Parcel Closing, to the extent applicable to the
Parcel and such Sellers or either, except as may be otherwise provided herein.
10. Signage.
A. Buyer and Seller of Parcel agree that such Seller will not post more
than one (1) sign on the Parcel of the same size as the existing sign until the
date of the Parcel Closing. Said sign shall be limited to advertising the
development or leasing of flex buildings within Seller's remaining acreage in
the Airport Business Center and the name, address and telephone number of
Seller's agent and shall include the descriptive word "industrial". If Buyer
does not close on the purchase of said Parcel as provided herein, Seller's
agreement with respect to the limitation on signage on the Parcel shall
terminate and Seller will not thereafter be bound.
B. Following the Parcel Closing, Seller shall be entitled to post a
sign on the Parcel at the location indicated on the sketch attached hereto and
marked Exhibit "H" for a period of two (2) years ending on the anniversary of
the Parcel Closing; provided however, that if Buyer has entered into an
agreement for the sale or development of said Parcel with a purchaser or lessee
who objects to the continuation of the sign for the balance of said two (2) year
period, said sign shall be removed to a location on the premises of
International Court II Building or International Court III Building at a
location mutually satisfactory to Buyer and Seller and as close to Interstate 95
as the existing sign. The cost of such removal and relocation of said sign shall
be borne by Seller. Said sign after the date of Closing shall be restricted to
the same purposes as that agreed upon prior to the date of the Parcel Closing.
In no event shall the sign located on Parcel II of the Airport Business Center
be used by Seller to advertise the sale or leasing of Seller's office space,
wherever located. Seller at its cost shall comply with all applicable codes,
rules, regulations, orders, laws, and statutes relating to the construction,
erection and maintenance of such sign. Seller shall maintain with an insurance
company licensed to do business in Pennsylvania, casualty and liability
insurance with respect to such sign in amounts and coverages reasonably
acceptable to Buyer and naming Buyer as an additional insured. Seller shall
provide evidence, reasonably satisfactory to Buyer, of such insurance coverage
prior to the erection of such sign. Following the Parcel Closing, Seller agrees
to indemnify, defend and hold Buyer harmless from and against all claims,
damages, liabilities and actions arising out of damage to property and injuries
to persons, including death, resulting from the negligence or wilful misconduct
of Seller, its employees, agents, servants and independent contractors except to
the extent such damage or injury is caused by the negligence or misconduct of
Buyer, its officers, agents, servants, employees and independent contractors.
The terms of this Paragraph 10 shall survive closing.
11. Other Obligations of Seller.
During the period between the execution of this Agreement and Closing
hereunder and with respect to the Parcel, the Parcel Closing hereunder, each
Seller with respect to its property, covenants and agrees that it shall perform
and observe the following with respect to the Property:
A. Seller shall keep and maintain the Buildings in the same condition
as they now are, ordinary wear and tear and damage by accident or casualty
excepted.
B. Seller will operate and maintain the Buildings in the ordinary
course of business and use reasonable efforts to maintain the existing
relationships of Seller and Seller's Tenants, suppliers, managers, employees and
others having on-going relationships with the Buildings. Seller will not
commence any capital expenditure program. Seller will not manage the Buildings
differently, due to the pending sale of the Buildings.
C. Seller shall not:
(1) Enter into any agreement requiring Seller to do work for
any Tenant after the date of Closing without first obtaining the prior written
consent of Buyer; or
(2) Accept the surrender of any Service Contract or Lease, or
grant any concession, rebate, allowance or free rent, without the consent of
Buyer, which consent shall not be unreasonably withheld.
D. Seller shall not, between the date hereof and the date of Closing,
apply against rent due any Security Deposits with respect to any Tenant in
occupancy on the date of Closing, unless such Tenant has vacated the Building.
E. Between the date hereof and the date of Closing, Seller will not
renew, extend or modify any of the Elected Service Contracts without the prior
written consent of the Buyer in each instance first had and obtained. At the
Closing, Seller will cancel or will have previously cancelled (effective on the
date of Closing) all Service Contracts except the Elected Service Contracts,
with all cancellations at Seller's sole cost and expense. The snow removal
contract expires at the end of October, 1996. Seller will attempt to negotiate
the snow removal contract for the year commencing November, 1996, subject to the
approval of Buyer, which shall not be unreasonably withheld. If Buyer does not
approve such contract as negotiated by Seller, then Seller shall not enter into
such contract unless by its terms such contract can be terminated effective at
the time of Closing.
F. Seller shall not remove any of its Personal Property located in or
on the Buildings or the Parcel, except as may be required for repair and
replacement. All replacements shall be free and clear of liens and encumbrances
and shall be of quality at least equal to the replaced items and shall be deemed
included in this sale, without cost or expense to Buyer.
G. Seller shall, upon the request of Buyer at any time after the date
hereof, assist Buyer in its preparation of audited financial statements,
statements of income and expense, and such other documentation as Buyer may
reasonably request, covering the period of Seller's ownership of the Property.
H. Seller shall not voluntarily cause the Buildings or the Parcel, or
any interest therein, to be alienated, mortgaged, or otherwise be transferred.
I. Up to and including the date of Closing, Seller agrees to maintain
and keep in full force and effect hazard and casualty insurance policies in such
amounts and for such coverages as set forth on Exhibit "D", attached hereto and
made a part hereof.
J. All violations of laws, statutes, ordinances, regulations or orders
affecting the Buildings or the Parcel, whether or not such violations are now
noted in the records of or have been issued by any governmental authorities will
be complied with by Seller and the Buildings and the Parcel will be conveyed
free of any such violations, provided that the cost of compliance, individually
or in the aggregate, is less than or equal to Three Hundred Fifty Thousand
Dollars ($350,000.00). In the event that the cost of compliance, individually or
in the aggregate with the cost of compliance as set forth in Paragraph 4.E
hereof, is more than Three Hundred Fifty Thousand Dollars ($350,000.00), then
Buyer shall have the option of either (i) terminating this Agreement and
receiving back the Deposit, or (ii) completing Closing hereunder and receiving
from Seller a Three Hundred Fifty Thousand Dollar ($350,000.00) credit against
the Purchase Price. Seller shall provide to Buyer notice of any violation
received by Seller within two (2) days after Seller's receipt thereof. Seller
shall provide to Buyer at least ten (10) days prior to Closing, evidence of
Seller's payment or of Seller's correction of any violation made after the date
of this Agreement. Provided that if following Closing, the existence of such
violation shall not prohibit Buyer or any Tenant from using and enjoying the
Building, the Parcel or any part thereof, then if Seller disputes its liability
for or the applicability of any violation, Seller shall have the right to
contest said violation by appropriate measures. In connection with any such
contest, Seller shall post with the court or agency having jurisdiction over
such contest, or shall deposit in escrow with Title Company for the benefit of
Buyer pursuant to an escrow agreement satisfactory to Buyer and Title Company,
an amount equal to the estimated cost necessary to correct such violation, plus
ten percent (10%). Seller shall have the right to continue such contest after
Closing until a final determination thereof by the appropriate court or agency,
provided Seller also agrees in writing, in form and substance acceptable to
Buyer, to indemnify, defend and hold Buyer harmless from and against all
actions, causes of actions, fines, penalties, expenses, damages and costs, which
Buyer may incur resulting from such violation or contest.
12. Documents to be Delivered at Settlement.
A. At Closing, each Seller, as to its Building or Parcel and itself, at
its sole cost and expense, will deliver to Buyer the following, all in form and
substance reasonably satisfactory to Buyer:
(1) The originals of all Leases, together with all amendments
and modifications thereof and other documents pertaining thereto;
(2) Originals of all Permits and Licenses Seller has obtained
pertaining to the operation and maintenance of the Buildings;
(3) A copy of the notice to the Tenants under the Leases
advising them of sale hereunder and instructing such Tenants to make all future
rent payments to Buyer or its designee, as Buyer may direct;
(4) Copies of the income and expense records for the Buildings
for the previous two years
(5) To the extent they are in Seller's possession, original
copies of the Building's plans and working drawings at the time of construction,
together with final "as built" surveys of the Buildings showing all improvements
now existing thereon.
(6) Original Certificates of Occupancy for the Buildings and
each of the spaces leased by Tenants.
(7) Assignments, in form acceptable to Buyer, of all
warranties and guarantees in Seller's possession in connection with construction
or maintenance of the Buildings.
(8) A certified statement to Buyer setting forth the amount of
all Security Deposits, and prepaid rents, together with any interest required to
be paid thereon, if any, paid by the Tenants under the Leases. Seller shall
retain the Security Deposits and Buyer shall receive a credit against the
Purchase Price in an amount equal to all Security Deposits and prepaid rents,
together with any interest required to be paid thereon, if any, paid by the
Tenants under Leases.
(9) A letter ("Estoppel Letter") signed by each Tenant under
the Leases as reflected on the list of Tenants attached as Exhibit "C" hereto,
dated as no more than three weeks prior to Closing, in substantially the form
attached hereto as Exhibit "E", or if such Tenant refuses to execute fully such
an Estoppel Letter, in such form as may be set forth in the Lease for such
Tenant.
(10) A Special Warranty Deed for each Building, and, if
appropriate, the Parcel, duly executed and acknowledged by Seller.
(11) A duly executed and acknowledged ▇▇▇▇ of Sale for the
Personal Property.
(12) A FIRPTA Certificate duly executed by each Seller.
(13) A Rent Roll for the Buildings, certified by Seller to be
true and correct as of the date of Closing, setting forth the names and
locations of Tenants, and whether any Tenants are in arrears in the payment of
rent under such Tenant's Lease and the amount of such arrearage.
(14) An affidavit, or such other documents as required by
Title Company, executed by Seller certifying (i) against any work done or
supplies delivered to the Buildings or the Parcel which might be grounds for a
materialman's or mechanic's lien under or pursuant to Pennsylvania law, in form
sufficient to enable Title Company to affirmatively insure Buyer against any
such lien, (ii) that the signatures on the Deeds are sufficient to bind Seller
and convey the Property to Buyer, (iii) that the conveyance is not prohibited or
restricted in any way under the laws of the Commonwealth of Pennsylvania, and
(iv) the Rent Roll.
(15) Any and all fact affidavits and other previously executed
instruments or documents (including but not limited to all organizational
documents of the Seller and Seller's general partner including limited
partnership agreements, certificates of partnership, by laws, articles of
incorporation, and good standing certificates) which Title Company shall
reasonably require in order to insure title to Buyer, subject to no exceptions
other than the Permitted Exceptions.
(16) Originals of all Plans, and copies of all Books and
Records for the past three years.
(17) All proper instruments as shall be reasonably required
for (i) the conveyance of title to the appurtenances, and (ii) the assignment of
and/or collection rights to any condemnation or eminent domain claims, awards or
payments, as well as the right to claim or collect damages resulting from damage
to the Buildings or any part thereof by reason of the changing of grade or
closing of any street, road, highway or avenue.
(18) All such realty transfer tax affidavits and statements of
value and such transfer and other tax declarations and returns and information
returns, duly executed and sworn to by Seller as may be required of Seller by
law in connection with the conveyance of the Property to Buyer, including but
not limited to, Internal Revenue Service forms 1099-S and 1096.
(19) The Seller's closing certificate with respect to the
representations and warranties given herein and recertifying that same are true
and correct on the date of Closing and containing a limitation on survival
consistent with Paragraph 22(M) hereof.
(20) A letter from Tinicum Township certifying that the
Buildings comply in all respects with the current zoning ordinances, if Tinicum
Township issues such letters as a matter of course.
(21) Such further documents or instruments in form suitable
for recording, if appropriate, as necessary to effectuate the provisions hereof.
B. At Closing, Buyer, at its sole cost and expense, will deliver to
Seller the following, all in form and substance reasonably satisfactory to
Seller:
(1) A certificate from its corporate secretary certifying the
resolutions of Buyer authorizing the transactions contemplated by this
Agreement, and Buyer's articles of incorporation and bylaws; and
(2) A copy of the most recently filed Form 10K by Cali Realty
Corporation ("Cali").
C. At Closing, Buyer and each Seller, as to its Building or Parcel and
itself, at a shared cost, will deliver to each other the following, all in form
and substance reasonably satisfactory to them:
(1) A separate assignment and assumption agreement duly
executed and acknowledged by Seller and Buyer, pursuant to which Seller shall
assign to Buyer, and Buyer shall assume from Seller, all of Seller's interest in
and liability for future performance of the Leases, Security Deposits, Plans,
Licenses and Permits, and Trade Names, all as more fully set forth above;
(2) An assignment and assumption agreement, duly executed and
acknowledged by Seller and Buyer, pursuant to which Seller shall assign to
Buyer, and Buyer shall assume from Seller, all of Seller's interest in the
Elected Service Contracts; and
(3) A duly signed statement setting forth the Purchase Price
with all adjustments, credits and prorations shown thereon.
13. Possession.
Possession of the Property will be transferred to the Buyer at Closing
by Special Warranty Deed and by keys to all of the Buildings and access to all
areas of the Property.
14. Fire or Other Casualty.
In the event of damage to or destruction of any of the Buildings by
fire or other casualty of 25,000 square feet of rentable office space or more,
Buyer shall have the option of:
(a) terminating this Agreement, in which event the Deposit shall be
returned to Buyer and all rights and obligations of the parties hereunder shall
terminate and shall be null and void; or
(b) of proceeding with Closing, in which event the net proceeds of any
insurance collected prior to Closing will be paid or credited to Buyer at
Closing, and all unpaid claims and rights in connection with losses under any
insurance policies will he assigned to Buyer at Closing and be credited on
account of the Purchase Price and all claims and actions with respect to such
casualty shall be assigned to Buyer. In consideration thereof, Seller agrees to
continue to maintain its present insurance with risks generally known as
extended coverage, at Seller's cost and expense until Closing. Forthwith upon
execution of this Agreement, all of said policies of insurance will be endorsed
or amended to make them payable to Seller and Buyer as their respective
interests may appear. Certificates to this effect from the respective insurance
companies will be delivered to Buyer within twenty (20) days from the date
hereof and such certificates shall provide for at least ten (10) days' written
notice to Buyer in the event of cancellation or material change in coverage in
any of the policies evidenced thereby.
In the event that any of the Buildings is damaged by fire or other
casualty, and less than 25,000 square feet of rentable office space has been so
damaged, this Agreement shall remain in full force and effect. In the event
Seller expends any money in repairing any such casualty damage prior to Closing,
then Seller shall be entitled to a portion of insurance proceeds equal to
Seller's expenditures. Prior to Closing, Seller shall provide to Buyer evidence
of such expenditures. All remaining insurance proceeds shall be assigned to
Buyer and all remaining sums received by Seller in connection therewith shall be
paid over to Buyer, and all rights to claims shall be assigned to Buyer.
Seller shall not settle or compromise any claims without obtaining
Buyer's prior written consent.
15. Eminent Domain.
In the event Seller receives any notice of any condemnation
proceedings, or other proceedings in the nature of eminent domain it will
forthwith send a copy of such notice to Buyer. If ten percent (10%) or more of
any of the Buildings or Parcel or all of them is proposed to be or is taken by
eminent domain, Buyer may, within twenty (20) days of receipt of such notice of
condemnation, upon written notice to Seller, elect to cancel this Agreement, and
in such event the Deposit together with interest earned thereon shall be
returned to Buyer and neither party shall have any further rights or obligations
hereunder and this Agreement shall be null and void. If all or any portion of
the Buildings or Parcel or all of them has been or is hereafter taken or
condemned and this Agreement is not cancelled, Seller shall, at Closing, credit
or assign to Buyer all of Seller's right, title and interest in and to any
actions, claims, awards in condemnation, or damages of any kind, to which Seller
may have become entitled or may thereafter be entitled by reason of any exercise
of the power of eminent domain with respect to or for the taking of the
Buildings, the Parcel or any portion thereof.
16. Default.
A. Buyer's Default.
In the event Buyer defaults in its performance of any term,
covenant, condition or obligation under this Agreement, Seller's sole remedy,
legal and equitable, shall be to retain the Deposit to the extent delivered to
the Title Company at the time of the default, and interest earned thereon as
liquidated damages, it being understood that the exact amount of damages that
Seller will sustain is difficult of determination and that the amount of the
liquidated damages provided herein is a reasonable estimate of the amount of
damages Seller will sustain. Seller waives all other remedies. Buyer consents to
the jurisdiction of the Court of Common Pleas of Delaware County, and of the
United States District Court for the Eastern District of Pennsylvania and agrees
that service may be made upon Buyer by registered or certified U.S. Mail.
B. Seller's Default.
In the event Seller defaults in its obligations to close under
this Agreement, Buyer shall be entitled to (a) enforce specific performance of
this Agreement with an abatement of the Purchase Price in an amount equal to
Buyer's costs and expenses in enforcing its remedy of specific performance,
including without limitation, reasonable attorney's fees, plus the damages
suffered by Buyer as measured by the difference between the return to Buyer of
interest earned on the purchase money and the return from operating income and
rents that Buyer would have earned had the sale been completed as contemplated
hereby, during such period between December 6, 1996, and the date on which
Closing actually occurs; or (b) to terminate this Agreement and to bring suit
for all of Buyer's costs and expenses incurred in connection with this
Agreement, including without limitation, reasonable attorney's fees (both
in-house and outside counsel) and fees of engineers and consultants and to have
the Deposit returned. In the event Seller breaches any representation or
warranty made or given by Seller in this Agreement, Buyer shall be entitled to
bring suit against such Seller or Seller breaching such representations or
warranties for all damages suffered by Buyer, and all costs and expenses,
including without limitation, reasonable attorney's fees (both in-house and
outside counsel) and fees of engineers and consultants; provided, however, in no
event shall the liability of Seller hereunder, in the aggregate of all claims,
exceed Two Million Dollars ($2,000,000). The foregoing shall be the sole
remedies available to Buyer. Seller agrees that service may be made upon Seller
by registered or certified U.S. Mail.
In the event of a default by any one Seller, each other Seller
agrees that this Agreement shall remain in full force and effect against it,
notwithstanding anything to the contrary contained herein, and this Agreement
shall continue and be extended until such time as there is a final,
nonappealable resolution of any claims that Buyer may have against the
defaulting Seller.
17. Notices.
All notices required or permitted to he given hereunder shall be in
writing and sent by registered or certified mail, postage prepaid, or by a
recognized overnight delivery service addressed as follows:
If to Seller: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
PECO Energy Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Buyer: ▇▇▇▇ ▇. ▇▇▇▇
Chief Administrative Officer
Cali Realty Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, Counsel
Cali Realty Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
And with copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Pryor, Cashman, ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
or to such other person or address as the party to be charged with such notice
may designate by notice given in the aforesaid manner. Notices shall be deemed
given on the second day after deposit in the United States Mail or the next
business day after deposit with a recognized overnight delivery service. Notices
given by counsel for the parties shall be deemed given by the party so
represented.
18. Brokerage.
Buyer warrants and represents to Seller that the only brokers of any
kind that Buyer has dealt with in regard to this transaction
are ▇▇▇▇▇▇ Vedejo of ▇▇▇▇▇▇▇ Cross Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of Vanguard
Commercial Mortgage (the "Broker") who have acted as joint brokers on this
transaction. Seller shall be liable for the commission due Broker with respect
to this transaction and for any brokerage, finders or similar feels or
commissions due to any other party by reason by these transactions; and Seller
shall defend, indemnify and hold Buyer harmless from all claims of any such
party claiming to have had contact with Seller with regard to these
transactions. The provisions of this paragraph shall survive Closing.
19. Escrow Agreement.
Upon the signing of this Agreement by the parties, Buyer shall deliver
the First Deposit to the Title Company, as escrow agent. The parties agree that
the First Deposit and the Second Deposit or the Letter of Credit Deposit, as the
case may be, when and if delivered, shall be held by the Title Company in escrow
and disposed of only in accordance with the provisions of this Paragraph 19. The
parties agree that the Deposit shall be invested in an assignable
interest-bearing certificate of deposit, money market fund, treasury ▇▇▇▇ or
other similar security approved by Seller and Buyer, and all interest accruing
thereon shall be paid to Buyer, except as otherwise provided herein. Buyer shall
be responsible for the payment of any taxes due on the interest earned, if any,
on the Deposit.
A. The Title Company will deliver the Deposit to Seller or to Buyer, as
the case may be, under the following conditions:
(1) If not in the form of the Letter of Credit Deposit, to
Seller on the Closing Date for the account of Buyer provided Closing is
completed;
(2) If in the form of the Letter of Credit Deposit, to Buyer
on the Closing Date provided Closing is completed;
(3) If Buyer fails to close, Seller, upon receipt of written
demand therefor, such demand stating that Buyer has defaulted in the performance
of this Agreement and specifically setting forth the basis for such default. The
Title Company shall not honor such demand until more than ten (10) days have
elapsed after the Title Company has mailed a copy of such demand to Seller or
Buyer, as the case may be, nor thereafter if the Title Company shall have
received written notice of objection from Buyer in accordance with the
provisions of clause B of this Paragraph 19; or
(4) To Buyer upon receipt of written demand therefor, such
demand stating that this Agreement has been terminated in accordance with the
provisions hereof, or Seller has defaulted in the performance of this Agreement,
and specifically setting forth the basis for the same. The Title Company shall
not honor such demand until more than ten (10) days have elapsed after the Title
Company has mailed a copy of such demand to Seller or Buyer, as the case may be,
nor thereafter, if the Title Company shall have received written notice of
objection from the other party in accordance with the provisions of clause B of
this Paragraph 19.
B. Upon the filing of a written demand for the Deposit by Buyer or
Seller, pursuant to subclause 3 or 4 of clause A of this Paragraph 19, the Title
Company shall promptly mail a copy thereof to the other party. The other party
shall have the right to object to the delivery of the Deposit by filing written
notice of such objection with the Title Company at any time within ten (10) days
after the mailing of such copy to it, but not thereafter. Such notice shall set
forth the basis for objecting to the delivery of the Deposit. Upon receipt of
such notice, the Title Company shall promptly mail a copy thereof to the party
who filed the written demand. In the event that Closing is not completed by
December 10, 1996, then Title Company shall thereafter promptly make demand upon
the issuer of the Letter of Credit for payment thereof. Upon receipt of the
proceeds, Title Company shall deposit the same in an account as specified in the
first paragraph of this Paragraph 19 and shall hold such proceeds in accordance
with the provisions hereof. In the event that the issuer of the Letter of Credit
refuses to honor payment thereof, Title Company shall promptly notify Buyer and
Sellers, who jointly shall enforce collection thereof. Buyer further guarantees
the payment of the Letter of Credit proceeds from the issuer and will be liable
to make payment immediately if the issuer refuses to do so. If the issuer of the
Letter of Credit fails to pay the proceeds over to Title Company after demand
for honor is made by Title Company, Buyer agrees that interest on the amount of
the Letter of Credit Deposit shall accrue, and if Seller is entitled to the
Deposit, at an annual rate of six percent (6%), until such time as such demand
is honored.
C. In the event the Title Company shall have received the notice of
objection provided for in clause B above and within the time therein prescribed,
the Title Company shall continue to hold the Deposit until (i) the Title Company
receives written notice from Seller and Buyer directing the disbursement of said
Deposit, in which case, the Title Company shall then disburse said Deposit in
accordance with said direction, or (ii) in the event of litigation between
Seller and Buyer, the Title Company shall deliver the Deposit to the Clerk of
the Court or the office of Judicial Support, as the case may be, in which said
litigation is pending, or (iii) the Title Company takes such affirmative steps
as the Title Company may, in the Title Company's reasonable opinion, elect in
order to terminate the Title Company's duties including, but not limited to,
depositing the Deposit with the Court and bringing an action for interpleader,
the costs thereof to be borne by whichever of Seller or Buyer is the losing
party.
D. The Title Company 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 it shall not be liable in connection with the performance of
any duties imposed upon the Title Company by the provisions of this Agreement,
except for damage caused by the Title Company's own negligence or willful
default. The Title Company shall have no duties or responsibilities except those
set forth herein. The Title Company shall not be bound by any modification of
this Agreement, unless the same is in writing and signed by Buyer and Seller,
and, if the Title Company's duties hereunder are affected, unless the Title
Company shall have given prior written consent thereto. In the event that the
Title Company shall be uncertain as to the Title Company's duties or rights
hereunder, or shall receive instructions from Buyer or Seller which, in the
Title Company's opinion, are in conflict with any of the provisions hereof, the
Title Company shall be entitled to hold and apply the Deposit pursuant to clause
C above and may decline to take any other action. The Title Company shall not
charge a fee for its services as escrow agent.
E. The Title Company shall not be:
(1) Responsible for any loss or delay occasioned by the
closure or insolvency or the financial institution into which it deposited the
Deposit;
(2) Responsible for the dishonor of any check, money order,
draft, negotiable instrument, or other financial document, received as the
Deposit; and
(3) Liable for any error of judgement or for any act done or
omitted in good faith, or for anything which it may in good faith do or refrain
from doing in connection herewith.
F. Buyer and Sellers hereby indemnify and agree to save the Title
Company harmless from all liability, loss, damage, reasonable attorney's fees
and expenses, arising out of this Paragraph and its duties hereunder; save and
except however any liability, loss, damage, attorney's fees and/or expenses
caused by Title Company's fraud, negligence or willful default.
G. The Title Company shall have the authority to deduct or offset
against the Deposit the following items: (1) Title Company's attorney's fees as
provided under Paragraph 19.F; and (2) Title Company's loss, damage or expenses
as provided under Paragraph 19.F.
20. Entire Agreement.
This Agreement contains the entire agreement between the parties
relating to the purchase and sale of the Property. All prior negotiations
between the parties are merged in this Agreement and there are no promises,
agreements, conditions, undertakings, warranties or representations, oral or
written, express or implied, between them other than as herein set forth. No
change or modification of this Agreement shall be valid unless the same is in
writing and signed by the parties hereto. No waiver of any of the provisions of
this Agreement and other agreements reflected to herein shall be valid unless in
writing and signed by the party against whom it is sought to be enforced.
21. Captions.
The captions contained herein are not a part of this Agreement. They
are only for the convenience of the parties and do not in any modify, amplify,
or give meaning to any of the terms, covenants or conditions of this Agreement.
22. Miscellaneous.
A. This Agreement shall not be recorded in the office for recording of
deeds or in any other office or place of public record.
B. This Agreement shall be construed and interpreted in accordance with
the laws of the Commonwealth of Pennsylvania.
C. In the event any one or more of the provisions contained in this
Agreement are held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability will not affect any other provisions
hereof, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had not been contained herein.
D. This Agreement may be assigned by Buyer in its sole discretion to
any other entity which controls, is controlled by, or which is under common
control with, the Buyer, and may be assigned by Buyer to any other third party
upon the prior written consent of Seller, which such consent shall not be
unreasonably withheld or delayed.
E. Any paragraph headings or captions contained in this Agreement shall
be for convenience of reference only and shall not affect the construction or
interpretation of any provisions of this Agreement.
F. Seller and Buyer hereby agree to cooperate with each other in
accomplishing each and every condition precedent to Closing contemplated
hereunder, and to that end agree, when necessary, to join in all applications
and to execute all other documents, declarations and maps required to be signed
by either of them for such purpose provided that Seller shall be given a
reasonable opportunity to review any documents required in connection hereunder
and such inspection shall involve no cost or expense to Seller.
H. When the context of this Agreement so requires, nouns appearing in
the singular shall have the same effect as if used in the plural and vice versa,
and the proper gender shall be attributed to all pronouns.
I. The date of this Agreement shall be the date on which it is executed
by all parties or, if not executed simultaneously, the date on which it is
executed by the last of the parties, which date will be inserted at the top of
the first page hereof.
J. No waiver by either party or any failure of, or refusal by, the
other party to comply with its obligations under this Agreement shall be deemed
a waiver of any other or subsequent failure or refusal to so comply.
K. The individuals executing this Agreement represent and warrant that
they have full authority and/or have been duly authorized by their respective
parties to do so on behalf of such parties.
L. The parties waive the formal requirements for tender of payment and
deed. The parties agree that all times are of the essence.
M. It is the express intention of the parties that all representations,
warranties and indemnities contained in Paragraphs 9.A. (2), (3), (4), (7), (8),
(9), (13), (14), (15), (18), (20), (21), (22), (23), (24), (25), (26), and (27)
of this Agreement shall survive Closing, or the Parcel Closing, as the case may
be, the delivery of the deed and the conveyance of the Buildings and the Parcel
and shall not merge into the deed, for a period of one (1) year following the
Closing or the Parcel Closing, as appropriate, except as to those
representations, warranties and indemnities of Seller set forth in Paragraph 25
which shall survive for a period of two (2) years from the Closing or the Parcel
Closing, as appropriate. To the extent an Estoppel Letter has been obtained with
respect to a Lease, then the representations and warranties given in Paragraphs
9.A.(3) and (4) as they relate to such Lease, shall not survive Closing. Suit
must be instituted for damages for the breach of such representations,
warranties and indemnities within the one (1) year or two (2) year period
respectively. Suit may not be instituted for such breach unless Closing has been
consummated. If the representations, warranties and covenants contained in
Paragraph 9.A and Paragraph 25 do not survive Closing, then such
representations, warranties and covenants will be deemed conditions of Closing
for which no suit or damages may be brought. If Buyer has actual knowledge of
such breach of representations, warranties and covenants prior to or at Closing,
Buyer may terminate the Agreement for breach of said condition; but if Buyer
closes after such knowledge, Buyer shall be deemed to have waived such breach.
N. This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, administrators, successors,
executors and assigns.
O. The Legislature has established a Real Estate Recovery Fund. The
purpose of the fund is to compensate persons who obtain a judgment because of
the fraud, misrepresentation or deceit of an agent. For further information
concerning the Recovery Fund telephone: (▇▇▇) ▇▇▇-▇▇▇▇.
P. Whenever used in this Agreement, the phrases "to the best of
Seller's knowledge", "Seller has no knowledge of", and like qualifications,
shall mean that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ who
have responsibility for the operation, construction, use and leasing of the
Buildings or Parcel, have actual knowledge or knowledge of any written
information, notice or demand, after reasonable due diligence, with respect to
such referenced fact, condition or circumstances, without any duty to
independently investigate such matter beyond Seller's Books and Records, Plans
and files.
23. Leasing Buildings.
Seller shall not enter into any new leases for the Buildings or elect
to renew or amend any existing Leases without the prior written consent of
Buyer, which consent shall not be unreasonably withheld during the Inspection
Period. In the event Buyer consents to any new lease or any renewal or amendment
of any existing Lease and Closing occurs, the Buyer shall be responsible for the
costs of any tenant improvements and broker commissions due in connection
therewith.
24. Confidentiality.
The parties agree that each of them shall keep as confidential (except
that each may make disclosures to its counsel, advisors, consultants, and
contractors) the negotiations of this transaction, that this Agreement of Sale
has been executed, and all of the details included in this Agreement until such
time as Buyer may be required to make such facts known in accordance with the
rules and regulations of the federal and state securities and exchange
commissions and authorities.
25. Environmental Representations and Indemnity.
A. Each Seller represents and warrants with respect to the Building or
Parcel that it owns that:
(1) Except as may be set forth in the Environmental Reports,
as hereinafter defined, to the best of Seller's knowledge, there is not present,
petroleum or any hazardous or toxic waste or hazardous substance or contaminant
or pollutant (collectively, "Contaminants"), except in compliance with
Environmental Laws, and there has been no discharge, release, spillage,
controlled loss, seepage or filtration or the like of Contaminants (each an
"Environmental Event") as those terms are used in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act,
the Federal Water Pollution Control Act, the Pennsylvania Solid Waste Management
Act, the Pennsylvania Clean Streams Law, or any other federal, state or local
law, rule, regulation, statute or order governing Contaminants, the
construction, use and maintenance of improvements, the discharge or release of
any Contaminants, the fill of any wetland or the installation or use of any
tank, above or below ground, as such laws exist or may be amended from time to
time (collectively, the "Environmental Laws") in, on, over, under or migrating
from the Buildings or the Parcel or any real estate contiguous to the Building
or the Parcel.
(2) Seller has not caused and Seller shall not knowingly
permit to exist, any conditions on the Buildings or the Parcel in violation of
Environmental Laws in, upon, over, under or migrating from or within the
Buildings or the Parcel or on any real estate contiguous to the Buildings or the
Parcel.
(3) Seller has not and shall not knowingly permit any person
or entity to engage in any activity on the Buildings or the Parcel in violation
of an Environmental Law.
(4) Seller has not, and except as may be set forth in the
Environmental Reports, to best of Seller's knowledge no one else has, discharged
any dredge or fill material into any "wetland" or "waters of the United States"
or "waters of the Commonwealth of Pennsylvania" on the Buildings or the Parcel
or property adjacent thereto, as those terms are defined in the rules and
regulations promulgated pursuant to the Clean Water Act or the Dam Safety and
Encroachments Act or other applicable federal, state or local wetland law.
Seller has not received any notices, claims or other correspondence or
communication from the United States Army Corps of Engineers or from any other
governmental authority with respect to wetlands on the Parcel, except such as
are identified in Exhibit F.
(5) Seller has provided Buyer with and shall direct within
three (3) days of the date hereof in writing (a courtesy copy of which will be
provided to Buyer) all of its environmental consultants, engineers and agents to
promptly provide to Buyer copies of all: (A) permits, licenses, certificates,
registrations, approvals, and any amendments thereto acquired for the Buildings
and the Parcel and for the conduct of Seller's activities at or the activities
of any Tenant (to the extent in their respective possession) the Buildings and
the Parcel pursuant to Environmental Laws, which Seller believes constitute all
of the permits, licenses, certificates, registrations, and approvals that Seller
believes are required for the foregoing; (B) applications, reports or other
materials submitted by or on behalf of Seller, or to the extent in their
respective possession, by any Tenant, to any governmental agency in connection
with any Environmental Laws; (C) correspondence, notices of violation,
summonses, orders, administrative, civil or criminal complaints, requests for
information by governmental authorities or other documents received by Seller or
its counsel or environmental consultants pertaining to compliance with
Environmental Laws or the generation, storage, treatment, handling, discharge,
emission, release or migration of any Contaminants on, over, under, from or
affecting the Buildings and the Parcel; (D) records and analyses of any
environmental tests pertaining to the Buildings and the Parcel including,
without limitation, the results of any air, water or soil analyses or tank
integrity testing which are in the possession of Seller or any managing agent
for the Buildings or the Parcel or the existence of which is known to Seller;
and (E) all materials relating to wetlands delineations,permits or
investigations with respect to the Buildings or the Parcel, which are in the
possession, control or custody of Seller or any managing agent responsible for
the management of the Buildings or the Parcel. All of the foregoing (A) through
(E) are sometimes hereinafter referred to as the "Environmental Reports" and are
listed on Exhibit "F", attached hereto and made a part hereof.
(6) No civil, criminal or administrative proceeding is pending
or, to the best of Seller's knowledge, threatened relating to Environmental Laws
or Contaminant in, on, over, under, or migrating from the Property; neither
Seller nor any of its agents has received any notice of violation or of
potential liability regarding the Buildings or the Parcel or activities thereon
relating to Environmental Laws or Contaminants in, on, over, under or migrating
from the Buildings and the Parcel; notwithstanding the foregoing, the parties
recognize that the creek transversing the Buildings or the Parcel may be
contaminated; Seller has not entered into any consent order, consent decree,
administrative order, judicial order or settlement relating to Environmental
Laws or Contaminants in, on, over, under, or migrating from the Buildings and
the Parcel except as may be required in connection with the request for a
Wetlands Delineation (as hereinafter defined) pursuant to Paragraph 26.C.,
copies of which have been or shall be provided to Buyer.
(7) To the best of Seller's knowledge, no underground storage
tanks have been removed from the Buildings or the Parcel.
(8) All permits, licenses, certificates, registrations and
approvals acquired for the Buildings and the Parcel, copies of which were
supplied to Buyer pursuant to Paragraph (5) above, and to the extent
transferrable, shall be transferred with the Property to Buyer, without
additional payment by the Buyer to the Seller but at Buyer's cost (other than
Seller's legal fees), and shall, upon Closing, be transferred to Buyer by
Seller.
B. Seller hereby agrees to indemnify, defend and save Buyer harmless
from and against any and all loss, damage, liability, penalties, fines and the
like, of whatever nature, including without limitation, attorneys' and
environmental expert fees should any of the foregoing representations or
warranties set forth in this Paragraph 25 prove to be untrue or inaccurate.
C. The provisions of this Paragraph 25 shall survive the Closing, as to
the Buildings, and the Parcel Closing, as to the Parcel, for a period of two (2)
years.
26. Parcel Option.
A. In addition to the rights of Buyer set forth above, during the
period commencing on the date of Closing and terminating on the date that is the
day immediately preceding the fourth anniversary of the date of Closing (the
"Option Period"), Buyer shall have the right, from time to time, to acquire the
Parcel by written notice to Seller. Such written notice shall be effectuated by
Buyer forwarding to Seller, a notice (the "Acquisition Notice") setting forth
the purchase price determined in accordance with Subparagraph C. below, and the
entity to which the Parcel is to be conveyed (if different from Buyer). Closing
of title on the Parcel shall take place within ten (10) days following the date
of the Acquisition Notice, but in no event shall said date be later than the
last day of the Option Period.
B. Seller hereby grants Buyer an irrevocable and continuous right of
access to the Parcel during the Option Period. Seller further grants Buyer the
right to pursue any and all course of action in the development of the Parcel or
portions thereof, but not to obtain any final approvals, including without
limitation, the right to apply for and prosecute, subdivisions and land
development applications, approvals, zoning approvals, variances and other
zoning relief, permits, or any other governmental action, license or
certification required in connection with the development of the Parcel. Seller
agrees to cooperate with the Buyer in pursuing the approvals, permits,
variances, etc. outlined above prior to the Parcel Closing and to execute and
deliver such applications, consents, and instruments in connection therewith, as
Buyer may reasonably request; however, under no circumstances is this Agreement
deemed to be conditioned upon the Buyer's success in achieving any such
approval, consent or permit, nor shall the Seller be required to expend any sum
of money in connection with its agreement to cooperate.
C. Prior to the Parcel Closing, ▇▇▇▇▇▇▇▇▇ & Son and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
shall obtain, at their sole cost and expense, a delineation of the wetlands on
the Parcel, concurred with by the United States Army Corps of Engineers (the
"Corps") through a jurisdictional delineation as evidenced by a letter from the
Corps (the "Wetlands Delineation"). In the event that because of the Wetlands
Delineation under zoning and land development and environmental laws, codes and
ordinances and other laws and regulations applicable to the Parcel, as a matter
of right, without the need for any relief ("Development Conditions"), there
cannot be constructed on the Parcel at least 135,000 square feet of office space
in a four-story building with parking therefore at a ratio of four (4) spaces
per 1,000 square feet of space, then the Individual Purchase Price for the
Parcel shall be adjusted downward to be equal to the product of 14.81 multiplied
by the number of square feet of office space with parking therefore at a ratio
of four (4) spaces per 1,000 square feet of space that can be so constructed on
the Parcel. If, with the Wetlands Delineation, less than 80,000 square feet of
office space with parking therefore at a ratio of four (4) spaces per 1,000
square feet of space can be built on the Parcel under the Development
Conditions, then Buyer shall have no obligation whatsoever to purchase the
Parcel. Such determination shall be made by Buyer within sixty (60) days after
Buyer's receipt of the Wetlands Delineation. Except as set forth above, Buyer
shall bear the risk of any change in the zoning of the Parcel.
D. All of the terms and conditions set forth in this Agreement shall
apply to the acquisition of the Parcel pursuant to an Acquisition Notice or a
Put Notice, as hereinafter defined, and shall govern and control unless modified
pursuant to a written instrument executed by both parties. The parties shall
comply with the terms, covenants, conditions, obligations and requirements set
forth above, as and to the extent such are applicable to the Parcel.
E. If Buyer has not acquired the Parcel by the date that is thirty (30)
days prior to the end of the Option Period, Seller shall have the right, but not
the obligation, to give Buyer a written notice (the "Put Notice") requiring
Buyer to purchase and close title on the Parcel by the expiration of the Option
Period. If Buyer fails to close title on the Parcel by the end of the Option
Period, Buyer shall be deemed to be in default hereunder and the Seller shall
have the right to retain the Deposit (as reduced following Closing) as
liquidated damages.
F. The parties agree that between the date hereof and the expiration of
the Option Period, in addition to all of their respective covenants and
agreements contained elsewhere in this Agreement, they shall perform or observe
the following with respect to the Parcel:
(1) Seller shall be responsible for all, and shall pay when
due, real estate taxes on the Parcel until actually conveyed to Buyer.
(2) Seller agrees that it shall not voluntary cause or
voluntary permit the Parcel, or any interest therein, to be mortgaged,
encumbered, transferred, conveyed, leased or assigned during the Option Period.
(3) Buyer shall be responsible for the general maintenance of
the Parcel, including the cutting of grass to the extent Buyer deems necessary
and only to the extent permitted by Environmental Laws.
G. Simultaneous with the execution of this Agreement, the parties shall
execute a memorandum (the "Memorandum"), in recordable form, evidencing the
respective rights and obligations of the parties hereto (other than the
Individual Purchase Price for the Parcel) and either party shall have the right
to cause said memorandum to be recorded in the Recorder of Deed's Office in and
for Delaware County, Pennsylvania only after Closing of title to the Buildings
has taken place and only if, prior thereto, Buyer executed, in proper recordable
form, an agreement terminating the Memorandum ("Termination Agreement") (which
instrument shall evidence a termination and release of the Memorandum) and
places same in escrow with Title Company. The Termination Agreement may be
released by Title Company upon the earlier of (i) Buyer's default hereunder
after notice and a fifteen (15) day opportunity to cure or (ii) ten (10) days
after the end of the Option Period.
F. At the Closing, Buyer shall cause Cali to execute and deliver to
Seller, an agreement by which Cali agrees to guaranty the obligations of Buyer
to purchase the Parcel pursuant to this Paragraph 26, substantially in the form
of Exhibit "G", attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be signed the day and year first above
written.
SELLER:
[corporate seal] ▇▇▇▇▇▇▇▇▇/TINICUM PARTNERSHIP
By: ▇▇▇▇▇▇▇▇▇ DELAWARE CORP., general
partner
Attest:____________________
By:_________________________________
President
[Signatures Continued on Next Page]
[corporate seal] ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORP., general
partner
Attest:____________________
By:_________________________________
President
INTERNATIONAL COURT II LIMITED
PARTNERSHIP
[corporate seal] By: ▇▇▇▇▇▇▇▇▇ INTERSTATE CORP.,
its sole general partner
Attest:____________________
By:_________________________________
President
INTERNATIONAL COURT III JOINT
VENTURE
[corporate seal] By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORP.,
general partner
Attest:____________________
By:_________________________________
President
[corporate seal] ADWIN REALTY COMPANY, general
partner
Attest:____________________
By:_________________________________
Vice-President
[corporate seal] ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & SON
Witness:____________________
By:_________________________________
General Partner
Witness:
By:_________________________________
General Partner
Witness:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
BUYER:
[corporate seal] CALI REALTY ACQUISITION
CORPORATION
Attest:____________________
By:_________________________________
The undersigned joins in this execution of this Agreement for the
limited purposes of acknowledging its receipt of the Deposit and its agreement
to hold the Deposit in escrow in accordance with the terms hereof.
ESCROW AGENT:
[corporate seal]
Attest:_____________________
By:_________________________________