Exhibit 10.7
AGREEMENT OF PURCHASE AND SALE
BETWEEN
BOWPL PARK, LLC
AS SELLER
AND
BRANDYWINE OPERATING PARTNERSHIP, L.P.
AS BUYER
December 15, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.......................................................1
Section 1.2 Terms Generally...................................................6
ARTICLE II
PURCHASE AND SALE OF PROPERTY
Section 2.1 Sale..............................................................6
Section 2.2 Purchase Price....................................................7
Section 2.3 Due Diligence. ...................................................9
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Buyer's Obligation to Purchase......................9
Section 3.2 Conditions to Seller's Obligations to Sell.......................11
Section 3.3 Termination......................................................12
Section 3.4 Waiver by Buyer..................................................12
Section 3.5 [Intentionally omitted]..........................................12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
BUYER'S EXAMINATION OF THE PROPERTY
Section 4.1 Representations and Warranties of Seller.........................12
Section 4.2 Estoppels........................................................15
Section 4.3 Limitation on Claims; Survival of Representations and Warranties.15
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Section 4.4 Representations and Warranties of Buyer..........................16
Section 4.5 Buyer's Independent Investigation................................17
Section 4.6 Entry and Indemnity; Limits on Government Contacts...............20
Section 4.7 Release..........................................................22
ARTICLE V
TITLE
Section 5.1 Conveyance of Title..............................................22
Section 5.2 Evidence of Title................................................24
ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 Brokers..........................................................24
Section 6.2 Expenses.........................................................24
ARTICLE VII
INTERIM OPERATION OF THE PROPERTY
Section 7.1 Interim Operation of the Property................................24
Section 7.2 [Intentionally omitted.].........................................26
Section 7.3 Seller's Maintenance of the Property.............................26
Section 7.4 Lease Enforcement................................................26
Section 7.5 Lease Termination Prior to Closing...............................26
Section 7.6 Tenant Notices...................................................26
Section 7.7 Risk of Loss and Insurance Proceeds..............................26
Section 7.8 Notifications....................................................27
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 Escrow Instructions..............................................27
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Section 8.2 Closing..........................................................28
Section 8.3 Deposit of Documents.............................................28
Section 8.4 Estoppel Certificates............................................30
Section 8.5 Prorations.......................................................31
Section 8.6 Tax Certiorari Proceedings.......................................33
Section 8.7 Tenant Obligations...............................................34
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices..........................................................35
Section 9.2 Entire Agreement.................................................36
Section 9.3 Time.............................................................36
Section 9.4 Attorneys' Fees..................................................36
Section 9.5 No Merger........................................................36
Section 9.6 Assignment.......................................................36
Section 9.7 Counterparts.....................................................37
Section 9.8 Governing Law; Jurisdiction and Venue............................37
Section 9.9 Waiver of Trial by Jury..........................................37
Section 9.10 Confidentiality and Return of Documents.........................38
Section 9.11 Interpretation of Agreement.....................................40
Section 9.12 Amendments......................................................40
Section 9.13 No Recording....................................................40
Section 9.14 No Third Party Beneficiary......................................40
Section 9.15 Severability....................................................40
Section 9.16 Drafts not an Offer to Enter into a Legally Binding Contract....41
Section 9.17 Further Assurances..............................................41
Section 9.18 [Intentionally omitted].........................................41
Section 9.19 Exculpation.....................................................41
Section 9.20 Counterparts....................................................41
EXHIBITS
EXHIBIT A REAL PROPERTY DEED
EXHIBIT B [INTENTIONALLY OMITTED]
EXHIBIT C INTENTIONALLY OMITTED
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EXHIBIT D INTENTIONALLY OMITTED
EXHIBIT E ▇▇▇▇ OF SALE
EXHIBIT F ASSIGNMENT OF LEASES
EXHIBIT G ASSIGNMENT OF CONTRACTS, WARRANTIES AND
GUARANTEES AND OTHER INTANGIBLE PROPERTY
EXHIBIT H DESIGNATION AGREEMENT
EXHIBIT I BUYER'S AS-IS CERTIFICATE
EXHIBIT J TENANT ESTOPPEL CERTIFICATE
EXHIBIT K INTENTIONALLY OMITTED
EXHIBIT L SELLER'S AFFIDAVIT
EXHIBIT M [INTENTIONALLY OMITTED]
EXHIBIT N ESCROW AGREEMENT
SCHEDULES
SCHEDULE 1 SELLER
SCHEDULE 2.1.1 PROPERTY DESCRIPTION
SCHEDULE 2.1.3 EXISTING LEASES
SCHEDULE 2.1.5 PURCHASE RIGHTS
SCHEDULE 2.2.2 WIRING INSTRUCTIONS
SCHEDULE 4.1.1 REQUIRED CONSENTS
SCHEDULE 4.1.2 NON-TERMINABLE CONTRACTS
SCHEDULE 4.1.3 PENDING LITIGATION
SCHEDULE 4.1.4 MUNICIPAL VIOLATION NOTICES
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AGREEMENT OF PURCHASE AND SALE
AGREEMENT OF PURCHASE AND SALE, dated as of December 15, 1997 (this
"Agreement"), between BOWPL Park, LLC, a Maryland limited liability company
("Seller"), and Brandywine Operating Partnership, L.P., a Delaware limited
partnership ("Buyer").
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below, which meanings shall be
applicable equally to the singular and plural of the terms defined:
"Additional Rents" shall have the meaning set forth in Section 8.5(a).
"Affiliate" shall mean with respect to any Person (i) any other Person
that directly or indirectly through one or more intermediaries controls or
is controlled by or is under common control with such Person, (ii) any
other Person owning or controlling 10% or more of the outstanding voting
securities of or other ownership interests in such Person, (iii) any
officer, director or partner of such Person, or (iv) if such Person is an
officer, director or partner, any other company for which such Person acts
in any such capacity.
"Agreement" shall have the meaning set forth in the first paragraph of
this Agreement.
"Assignment of Contracts" shall have the meaning set forth in Section
8.3(a).
"Assignment of Leases" shall have the meaning set forth in Section
8.3(a).
"▇▇▇▇ of Sale" shall have meaning set forth in Section 8.3(a).
"Business Day" shall mean any day other than a Saturday, a Sunday, or
a federal holiday recognized by the Federal Reserve Bank of New York.
"Buyer" shall have the meaning set forth in the first paragraph of
this Agreement and shall include any assignee of Buyer (including, without
limitation, any Permitted Assignee).
"Buyer Party" or "Buyer Parties" shall have the meaning set forth in
Section 4.6.
"Claim Notice" shall mean a written notice delivered by Buyer or a
Permitted Assignee to Seller setting forth (i) the identity of the Property
with respect to which a breach or inaccuracy of a representation or
warranty is alleged to have occurred, (ii) a reasonably detailed
description of the claimed breach or inaccuracy, including reasonably
detailed information as to the adverse effect on the value of the Property
to which such claimed breach relates, (iii) the specific provision of this
Agreement under which such breach is claimed and (iv) complete and detailed
evidence of the satisfaction of the conditions to Buyer's or a Permitted
Assignee's recovery set forth in Section 4.3.
"Claims" shall have the meaning set forth in Section 4.3(a).
"Closing" shall have the meaning set forth in Section 2.2(b).
"Closing Date" shall have the meaning set forth in Section 8.2.
"Closing Documents" shall have the meaning set forth in
Section 4.3(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended, or
any corresponding provision(s) of any succeeding law.
"Confidential Information" shall have the meaning set forth in Section
9.10(c).
"Confidentiality Agreement" shall mean the Confidentiality Agreement,
dated October 8, 1997, between Brandywine Realty Trust and Seller.
"Construction Contract" shall mean that certain Design/Building and
Development Agreement, dated May 3, 1997, between GMH Development Group,
Inc. ("Contractor") and Seller.
"Contracts" shall have the meaning set forth in Section 2.1(e).
"Deed" shall have the meaning set forth in Section 5.1(a).
"Deposit" shall have the meaning set forth in Section 2.2(a).
"Designation Agreement" shall have the meaning set forth in Section
8.3(a).
"Document Delivery Date" shall have the meaning set forth in Section
8.3.
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"Due Diligence Materials" shall mean all of the documents and other
materials delivered to, or made available for inspection by, Buyer, its
Permitted Assignees and their representatives including, without
limitation, materials delivered to Buyer and its representatives on or
about November 21, 1997 and on-site materials made available to Buyer for
inspection.
"Effective Date" shall mean the date of this Agreement.
"Evaluation Material" shall have the meaning set forth in
Section 9.10(a).
"Existing Lease" shall mean that certain Lease Agreement, dated May
30, 1997, as amended by letter agreement dated May 22, 1997, between
Seller, as landlord, and Ameridata, Inc., as tenant, as the same may be
amended or modified from time to time in accordance with Section 7.1(b) of
this Agreement.
"Fee Parcel" shall have the meaning set forth in Section 2.1(a).
"Governmental Authority" shall mean any federal, state, county or
municipal government, or political subdivision thereof, any governmental
agency, authority, board, bureau, commission, department, instrumentality,
or public body, or any court or administrative tribunal.
"Hazardous Materials" shall mean materials, wastes or substances that
are (A) included within the definition of any one or more of the terms
"hazardous substances," "hazardous materials," "toxic substances," "toxic
pollutants" and "hazardous waste" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Resource Conservation and Recovery Act of 1976
(42 U.S.C. Section 6901, et seq.), the Clean Water Act (33 U.S.C. Section
1251, et seq.), the Safe Drinking Water Act (14 U.S.C. Section 1401, et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801,
et seq.), and the Toxic Substance Control Act (15 U.S.C. Section 2601, et
seq.) and the regulations promulgated pursuant to such laws, (B) regulated,
or classified as hazardous or toxic, under federal, state or local
environmental laws or regulations, (C) petroleum, (D) asbestos or
asbestos-containing materials, (E) polychlorinated biphenyls, (F) flammable
explosives or (G) radioactive materials.
"Improvements" shall have the meaning set forth in Section 2.1(a).
"Indemnified Party" shall have the meaning set forth in Section 6.1.
"Initial Deposit Date" shall mean the first Business Day after the
Effective Date.
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"Intangible Property" shall have the meaning set forth in Section
2.1(h).
"Leasing Costs" shall have the meaning set forth in Section 7.2.
"Licenses and Permits" shall have the meaning set forth in Section
2.1(h).
"Non-Terminable Contracts" shall have the meaning set forth in Section
4.1(h).
"Order" shall mean an order or decree of any Governmental Authority.
"Permitted Assignee" shall have the meaning set forth in Section 9.6.
"Permitted Exceptions" shall have the meaning set forth in Section
5.1.
"Person" shall mean any individual, partnership, corporation, limited
liability company, trust or other legal entity.
"Personal Property" shall have the meaning set forth in Section
2.1(c).
"Prescribed Form" shall have the meaning set forth in Section 8.4.
"Prime Rate" shall mean the prime (or base) rate of interest publicly
announced by Citibank, N.A. or its successors from time to time.
"Property" shall have the meaning set forth in Section 2.1.
"Purchase Price" shall have the meaning set forth in Section 2.2(a).
"Real Estate Taxes" shall have the meaning set forth in Section
4.5(b).
"Real Property" shall have the meaning set forth in Section 2.1.
"Records and Plans" shall have the meaning set forth in Section
2.1(g).
"Related Purchase Agreements" shall mean those four Agreements of
Purchase and Sale, each of even date herewith, between Buyer, as buyer,
and one of the following persons, as seller: (i) The Berkshire Group, a
Pennsylvania limited partnership, (ii) University Plaza, LP, a Delaware
limited partnership, (iii) Trend Associates, a Pennsylvania limited
partnership and (iv) Park 80, L.L.C., a New Jersey limited liability
company.
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"Rent Rolls" shall have the meaning set forth in Section 4.1(g).
"Representatives" shall have the meaning set forth in Section 9.10(a).
"Required Deletion Items" shall have the meaning set forth in
Section 3.1(c).
"Required Percentage" shall have the meaning set forth in Section
8.4(a).
"Schedule of Contracts" shall have the meaning set forth in Section
4.1(h).
"Seller" shall have the meaning set forth in the first paragraph of
this Agreement.
"Seller Party" shall have the meaning set forth in Section 4.7(a).
"Seller's Affidavit" shall have the meaning set forth in
Section 8.3(a)(ix).
"Survey" shall have the meaning set forth in Section 4.5(a).
"Tenant" shall mean the tenant under the Existing Lease.
"Threshold Amount" shall have the meaning set forth in Section 4.3.
"Title Commitment" shall have the meaning set forth in Section 3.1(c).
"Title Company" shall have the meaning set forth in Section 2.2(b).
"Title Policy" shall have the meaning set forth in Section 5.2.
"Warranties" shall have the meaning set forth in Section 2.1(f).
Section 1.2 Terms Generally. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(b) the words "including" and "include" and other words of similar
import shall be deemed to be followed by the phrase "without limitation"; and
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(c) any consent, determination, election or approval required to be
obtained, or permitted to be given, by or of any party hereunder, shall be
granted, withheld or made (as the case may be) by such party in the exercise of
such party's sole and absolute discretion.
ARTICLE II
PURCHASE AND SALE OF PROPERTY
Section 2.1 Sale. Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, subject only to the Permitted Exceptions and to all
other terms, covenants and conditions set forth herein, all of Seller's right,
title and interest in and to the following: (a) each parcel of land described
in Schedule 2.1.1 attached hereto (each, a "Fee Parcel") identified as being
owned by Seller on Schedule 2.1.1, together with any and all rights, privileges
and easements appurtenant thereto owned by Seller (including any rights of
Seller as declarant), together with all buildings, improvements and fixtures
(other than fixtures owned or removable by Tenant or any third party) located
thereon (collectively, the "Improvements"; each Fee Parcel, together with the
Improvements thereon, the "Real Property"); (b) [intentionally omitted]; (c) all
tangible personal property not owned or removable by any Tenant or third party,
if any, located on the Real Property and owned by Seller and used in the
operation or maintenance of the Real Property (the "Personal Property"); (d) (i)
Seller's interest, as landlord in the Existing Lease and (ii) to the extent
assignable, any guarantees, letters of credit or other instruments that secure
or guarantee the performance of the obligations of Tenant; (e) to the extent
assignable, all service contracts, maintenance contracts, operating contracts,
warranties, guarantees, listing agreements, parking contracts and like contracts
and agreements relating to the Real Properties, and commission agreements,
equipment leases, contracts, subcontracts and agreements relating to the
construction of any unfinished tenant improvements (collectively, the
"Contracts"); (f) to the extent assignable, all warranties and guaranties made
by or received from any third party with respect to any building, building
component, structure, fixture, machinery, equipment or material situated on the
Real Property, or contained in any or comprising a part of any Improvement or
Leasehold Improvement (collectively, the "Warranties"); (g) to the extent Seller
currently has such items in its possession and to the extent assignable, all (i)
preliminary, final and proposed building plans and specifications (including
"as-built" floor plans and drawings) and tenant improvement plans and
specifications for the Improvements, and (ii) surveys, grading plans,
topographical maps, architectural and structural drawings and engineering,
soils, seismic, geologic and architectural reports, studies and tests relating
to the Real Property ((g)(i) and (g)(ii) collectively, the "Records and Plans");
and (h) to the extent transferable, any intangible personal property now or
hereafter owned by Seller and used in the ownership, use or operation of the
Real Property and/or the Personal Property, excluding materials or information
which in Seller's judgment is privileged or confidential information, the name
of Seller and related names and proprietary computer equipment, software and
systems, but including all (i) licenses, permits,
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building inspection approvals, certificates of occupancy, approvals, subdivision
maps and entitlements issued, approved or granted by Governmental Authorities in
connection with the Real Property, (ii) unrecorded covenants, conditions and
restrictions, reciprocal easement agreements, area easement agreements and other
common or planned development agreements or documents affecting the Real
Property and (iii) licenses, consents, easements, rights of way and approvals
obtained from private parties to make use of utilities and to ensure vehicular
and pedestrian ingress and egress for the Real Property ((h)(i), (h)(ii) and
(h)(iii) collectively, the "Licenses and Permits") or other rights relating to
the ownership, use or operation of the Real Property or the Personal Property
(collectively, the "Intangible Property"). The Real Property, together with the
Personal Property, the Leases, the Contracts, the Warranties, the Records and
Plans and the Intangible Property relating thereto are referred to herein as a
"Property".
Section 2.2 Purchase Price.
(a) The purchase price of the Property is Sixteen Million Three
Hundred Fifty Dollars ($16,350,000) (the "Purchase Price"), subject to
prorations, credits and adjustments as set forth herein.
(b) The Purchase Price shall be paid by Buyer as follows:
(i) By 3:00 P.M. (Eastern Standard Time) on the Initial Deposit
Date, Buyer shall deposit by wire transfer (made in accordance with the wiring
instructions set forth on Schedule 2.2.2 attached hereto) of immediately
available funds, in escrow with Commonwealth Land Title Insurance Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(the "Title Company"), a cash payment in the amount of $817,500. The Deposit
shall be held by the Title Company pursuant to an escrow agreement among Buyer,
Seller and the Title Company in the form of Exhibit N attached hereto.
(ii) The Deposit shall be held in an interest bearing account
reasonably designated by Buyer and all interest thereon shall be deemed a part
of the Deposit. If the sale of the Property as contemplated hereunder is
consummated, then the Deposit (including the interest accrued on the Deposit)
shall be paid to Seller at the consummation of the purchase and sale of the
Property contemplated hereunder (the "Closing") and credited against the
Purchase Price.
(iii) The balance of the Purchase Price over and above the
Deposit, as adjusted pursuant to Section 8.5, shall be deposited by Buyer, by
wire transfer (made in accordance with the wiring instructions set forth on
Schedule 2.2.1 attached hereto) of immediately available funds, with the Title
Company and paid to Seller at the Closing.
(c) (i) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO THE
FAILURE OF ANY CONDITION TO BUYER'S OBLIGATION TO PURCHASE OR
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SELLER'S INABILITY TO PERFORM OR SELLER'S DEFAULT HEREUNDER, THEN THE DEPOSIT
SHALL BE RETURNED TO BUYER, AND BUYER'S SOLE REMEDY, AT LAW OR IN EQUITY, SHALL
BE THE RETURN OF THE DEPOSIT, PROVIDED, THAT IF THE SALE OF THE PROPERTY IS NOT
CONSUMMATED BECAUSE OF SELLER'S FAILURE TO CLOSE WHEN OBLIGATED TO DO SO UNDER
THIS AGREEMENT, BUYER MAY EITHER (A) TERMINATE THIS AGREEMENT BY WRITTEN NOTICE
OF TERMINATION TO SELLER ON THE CLOSING DATE, WHEREUPON THE DEPOSIT SHALL BE
IMMEDIATELY RETURNED TO BUYER AND SELLER SHALL BE OBLIGATED TO REIMBURSE BUYER
FOR ITS OUT OF POCKET EXPENSES (NOT TO EXCEED $25,000) OR (B) CONTINUE THIS
AGREEMENT PENDING BUYER'S ACTION FOR SPECIFIC PERFORMANCE, IN WHICH LATTER EVENT
BUYER, AS A CONDITION TO SUCH ACTION, SHALL NOT ACCEPT RETURN OF THE DEPOSIT AND
SHALL PLACE THE FULL AMOUNT OF THE PURCHASE PRICE ABOVE THE DEPOSIT INTO ESCROW.
(ii) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED AS A RESULT OF A DEFAULT BY
BUYER HEREUNDER, THEN, AS ITS SOLE AND EXCLUSIVE REMEDY, SELLER SHALL RETAIN THE
DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL
DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER'S
DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER
NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A
REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY
PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF
THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT
BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 4.6(a), 6.1, 9.4 AND 9.10(a) OR
SELLER'S OBLIGATIONS UNDER SECTIONS 6.1 OR 9.4.
INITIALS: Seller ___________ BUYER ___________
(d) In the event that Buyer fails to fund within one Business Day
after the Initial Deposit Date or the Additional Deposit Date (with time being
of the essence) the full amount of the Initial Deposit or the Additional
Deposit, as the case may be, for any or no reason whatsoever in accordance with
the terms of Section 2.2(b)(i), this Agreement shall immediately and
automatically terminate. Upon any termination of this Agreement pursuant to
this Section 2.2(d) or Section 2.3, no party shall have any further rights or
obligations hereunder, except as provided in Sections 4.6(a), 6.1, 9.4 and
9.10(a).
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Section 2.3 Due Diligence. Buyer has reviewed, accepted and approved
(and all representations and warranties of Seller made herein shall be subject
to and qualified by) all of the Due Diligence Materials. Notwithstanding
anything to the contrary herein, Seller shall have no liability whatsoever to
Buyer with respect to any matter disclosed to or actually known by Buyer or its
agents prior to the Closing Date.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Buyer's Obligation to Purchase. Buyer's
obligation to purchase the Property is conditioned upon the satisfaction (or
Buyer's written waiver) on or prior to the Closing Date of the following
conditions:
(a) There shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Seller from consummating the transactions
contemplated hereby with respect to the Property.
(b) All consents required to be obtained from, or filing required to
be made with, any Governmental Authority or third party in connection with the
execution and delivery of this Agreement by Seller or the consummation by Seller
of the transactions contemplated hereby shall have been obtained or made.
(c) The Title Company has committed to issue, upon payment of the
applicable premium therefor, a 1992 ALTA Owner's Policy of Title Insurance
(provided, that in jurisdictions where local regulations require a form of
policy other than a 1992 ALTA Owner's Policy, such other required form shall be
used) with respect to the Real Property in the form of the title insurance
commitment (each, a "Title Commitment") obtained by Buyer from the Title Company
and delivered to Seller prior to the effective date, showing title to the Real
Property vested in Buyer, subject only to the Permitted Exceptions. It shall
not be a condition to Closing that Buyer obtain any endorsements or coverages
not set forth in the applicable Title Commitment. Seller shall be entitled, by
notice to Buyer, to adjourn the Closing one or more times for an aggregate
period not to exceed thirty (30) days in order to remove any exceptions to title
that are not Permitted Exceptions. Nothing contained herein shall require
Seller to bring any action or proceeding or otherwise to incur any expense to
correct, discharge or otherwise remove title exceptions or defects with respect
to the Property or to remove, remedy or comply with any other grounds for
Buyer's refusing to approve title, provided that Seller shall be obligated to
remove or discharge, or otherwise cause the Title Company to omit as an
exception to title or to insure against collection thereof from or against the
Property any mortgages or monetary liens created by Seller, any mechanics' liens
or judgment liens that are the obligation of Seller (as
9
opposed to Tenant or other third party) and any liens and encumbrances
voluntarily created by Seller in violation of Section 7.1 (collectively, the
"Required Deletion Items"). If on the Closing Date there are any Required
Deletion Items, Seller may use any portion of the Purchase Price payable
pursuant to Section 2.2(b) to satisfy same, provided the Title Company shall
omit such lien or encumbrance as an exception to title.
(d) Buyer shall have received the estoppel certificate required by
Section 8.4.
(e) Each of the documents required to be delivered by Seller pursuant
to Section 8.3 shall have been delivered as provided therein and Seller shall
not otherwise be in material default of its material obligations hereunder, and
all of Seller's representations and warranties contained herein shall be true
and correct in all material respects as of the Closing Date (except that any
representations and warranties which are made as of a specified date shall be
true and correct as of such specified date).
(f) Buyer shall not have previously terminated this Agreement
pursuant to and in accordance with Section 7.7.
(g) Seller shall have substantially completed construction of the
"Lessor's Improvements" (as defined in the Existing Lease), excluding punch list
items, and the Commencement Date under (and as defined in) the Existing Lease
shall have occurred.
(h) GMH Development Group, Inc., Contractor under that certain
Design/Build and Development Agreement dated May 30th 1997 with Seller, shall
have delivered to Buyer a written acknowledgment that it has been paid all
amounts due and owing under such agreement other than final retainage amounts
and amounts on account of the completion of "punch list" items then remaining to
be completed as agreed upon with Seller.
(i) Subject to Buyer's rights under Section 7.1(b) below, Seller and
Tenant shall have executed and delivered a Lease Amendment Agreement to the
Existing Lease.
Section 3.2 Conditions to Seller's Obligations to Sell. Seller's
obligation to sell the Property is conditioned upon the satisfaction (or
Seller's written waiver) on or prior to the Closing Date of the following
conditions:
(a) There shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Buyer from consummating the transactions
contemplated hereby with respect to the Property.
(b) All consents required to be obtained from, or filings required to
be made with, any Governmental Authority or third party in connection with the
execution and delivery of
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this Agreement by Buyer or the consummation by Buyer of the transactions
contemplated hereby shall have been obtained or made.
(c) Seller shall have actually received the Purchase Price in cash.
(d) Buyer shall not otherwise be in material default of its material
obligations hereunder.
(e) Each of the documents required to be delivered by Buyer pursuant
to Section 8.3 shall have been delivered as provided therein, and all of Buyer's
representations and warranties contained herein shall be true and correct in all
material respects as of the Closing Date.
(f) Closing shall have occurred under each of the Related Purchase
Agreements in accordance with the respective terms thereof.
Section 3.3 Termination. In the event that any condition set forth
in Section 3.1 or Section 3.2 is not satisfied on or prior to the Closing Date,
then the party to this Agreement whose obligations are conditioned upon the
satisfaction of such condition may in its sole and absolute discretion terminate
this Agreement, subject to Section 2.2(c), by written notice delivered to the
other party at or prior to the occurrence of the Closing. Upon any termination
of this Agreement pursuant to this Section 3.3, no party shall have any further
rights or obligations hereunder, except as provided in Sections 2.2(c), 4.6(a),
6.1, 9.4 and 9.10(a).
Section 3.4 Waiver by Buyer. If Buyer and/or its Permitted
Assignees, with knowledge of (i) a default in any of the covenants, agreements
or obligations to be performed by Seller under this Agreement and/or (ii) any
breach of or inaccuracy in any representation or warranty of Seller made in this
Agreement, nonetheless elects to proceed to Closing, then, upon the consummation
of the Closing, Buyer and/or its Permitted Assignees shall be deemed to have
waived any such default and/or breach or inaccuracy and shall have no claim
against Seller with respect thereto.
Section 3.5 [Intentionally omitted]
11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
BUYER'S EXAMINATION OF THE PROPERTY
Section 4.1 Representations and Warranties of Seller. Subject to
(i) the provisions of Sections 2.3, 4.2 and 4.3 and (ii) the information
disclosed in the Due Diligence Materials (except that the representations and
warranties in clauses (a), (b), (c) and (d) of this Section 4.1 shall not be
subject to the information disclosed in the Due Diligence Materials), Seller
hereby makes the following representations and warranties:
(a) Seller has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of any of the Property or all, or
substantially all, of Seller's other assets, (iv) suffered the attachment or
other judicial seizure of the Property or all, or substantially all, of Seller's
other assets, (v) admitted in writing its inability to pay its debts as they
come due, or (vi) made an offer of settlement, extension or composition to its
creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445 of
the Code and any related regulations.
(c) Seller is duly organized and validly existing and in good
standing under the laws of its state of formation. Seller further represents
and warrants that this Agreement and all documents executed by Seller that are
to be delivered to Buyer at Closing (i) are, or at the time of Closing will be,
duly authorized, executed and delivered by Seller, (ii) do not, and at the time
of Closing will not, violate any provision of any agreement or judicial order to
which Seller is a party or to which Seller or the Property owned by Seller is
subject and (iii) constitute (or in the case of Closing documents will
constitute) a valid and legally binding obligation of Seller, enforceable in
accordance with its terms.
(d) Seller has full and complete power and authority to enter into
this Agreement and, subject to obtaining any consents or waivers required to be
obtained prior to Closing, to perform its obligations hereunder.
(e) Seller is not aware of any consents required for the performance
of Seller's obligations hereunder except as set forth on Schedule 4.1.1.
(f) The Due Diligence Materials contain true, correct and complete
copies of the Existing Lease, all material Contracts and all environmental and
structural reports in the
12
possession of Seller. This representation shall not be deemed breached by
virtue of any Leases or Contracts entered into after the Effective Date in
accordance with Section 7.1.
(g) Except as included in the Due Diligence Materials (including the
rent rolls, dated October 9, 1997, delivered to Buyer (the "Rent Rolls")),
(i) there are to Seller's knowledge no leases, license agreements or occupying
agreements (or any amendments or supplements thereto) encumbering, or in force
with respect to, the Property and (ii) as of the Effective Date, Seller has not
received written notice from Tenant that Seller has not performed its material
obligations under the Existing Lease.
(h) To Seller's knowledge, the only Contracts and amendments thereto
that will be in effect on the Closing Date that are not terminable without cause
or penalty on sixty (60) days notice with respect to the Property (the
"Non-Terminable Contracts") are as set forth in Schedule 4.1.2 (the "Schedule of
Contracts") or as entered into in accordance with Section 7.1.
(i) As of the Effective Date, Seller has not received any written
notice of any pending or threatened condemnation of all or any portion of the
Property.
(j) Seller has not received written notice of any litigation that is
pending or threatened with respect to the Property, except (i) litigation fully
covered by insurance policies (subject to customary deductibles) or (ii)
litigation set forth in Schedule 4.1.3.
(k) As of the Effective Date, except as set forth in Schedule 4.1.4,
Seller has not received any written notice from any Governmental Authority that
all or any portion of the Property is in material violation of any applicable
building codes or any applicable environmental law (relating to clean-up or
abatement), zoning law or land use law, or any other applicable local, state or
federal law or regulation relating to the Property, which material violation has
not been cured or remedied prior to the Effective Date.
(l) Except as set forth in Schedule 2.1.5 or Schedule 4.1.1 attached
to this Agreement, Seller has not granted any option or right of first refusal
or first opportunity to any party to acquire any fee or ground leasehold
interest in any portion of the Property.
(m) Employees. Seller will have no employees at Closing, and any
employees of Seller existing on the date hereof shall have been terminated by
Seller prior to Closing in accordance with all applicable law, non-compliance
with which could result in a claim against Buyer. Buyer will not be responsible
for, nor assume any liabilities of Seller regarding, any such employees.
Each of the representations and warranties of Seller contained in this
Section 4.1: (1) is made as of the Effective Date (subject to the information
disclosed in the Due Diligence
13
Materials); (2) other than clauses (i) and (k) above (which, in the case of
clause (i) above, the parties acknowledge shall be governed by Section 7.7 with
respect to events occurring after the Effective Date) shall be deemed remade by
Seller, and shall be true in all material respects, as of the Closing Date
(except that any representations and warranties which are made as of a specified
date, shall have been true and correct as of such specified date) subject to
(A) the information disclosed in the Due Diligence Materials, (B) litigation
that is not reasonably likely to have a material adverse effect on the Property,
and (C) other matters expressly permitted in this Agreement or otherwise
specifically approved in writing by Buyer; and (3) shall survive the Closing
only as and to the extent expressly provided in Section 4.2 and Section 4.3.
Section 4.2 Estoppels. The representations and warranties of Seller
regarding Leases in Section 4.1(f) or 4.1(g) or in any estoppel delivered by
Seller pursuant to Section 8.4 shall terminate to the extent specifically
confirmed by a tenant estoppel certificate delivered by Tenant.
Section 4.3 Limitation on Claims; Survival of Representations and
Warranties.
(a) Notwithstanding any provision to the contrary herein or in any
document or instrument (including, without limitation, any deeds or assignments)
executed by Seller and delivered to Buyer or any Permitted Assignee at or in
connection with the Closing (collectively, "Closing Documents"), Seller shall
have no liability whatsoever with respect to any suits, actions, proceedings,
investigations, demands, claims, liabilities, fines, penalties, liens,
judgments, losses, injuries, damages, expenses or costs, including, without
limitation, attorneys' and experts' fees and costs and investigation, and
remediation costs (collectively "Claims") under, and Buyer shall be barred from
bringing any Claims with respect to, any of the representations and warranties
contained in this Agreement or in any Closing Document, except to the extent
(and only to the extent) that (i) with respect to Claims for breach of
representations and warranties relating to the Property, the amount of such
Claims exceeds $150,000 ("Threshold Amount") and, in such case, such Claims
shall only be valid (and the Seller shall only be liable) for the portion that
exceeds the Threshold Amount; provided, however, notwithstanding any provision
to the contrary herein or in any Closing Document, the (i) total liability of
Seller for any or all Claims (inclusive of Claims with respect to any estoppel
certificates delivered by Seller pursuant to Section 8.4(a)) with respect the
Property shall not exceed two and three quarters percent (2.75%) of the Purchase
Price. Further notwithstanding any provision to the contrary herein or in any
Closing Document, Seller shall have no liability with respect to any Claim under
any of the representations and warranties contained in this Agreement or in any
Closing Document, which Claim relates to or arises in connection with (1) any
Hazardous Materials (except solely to the extent that Seller has breached its
representation in Section 4.1(k)), (2) the physical condition of the Property
(except solely to the extent that Seller has breached its representation in
Section 4.1(k)) or (3) any other matter not expressly set forth in the Seller's
representations and warranties set forth in Section 4.1. Buyer shall not make
any Claim or
14
deliver any Claim Notice unless it in good faith believes the Claims would
exceed the Threshold Amount provided in this Section 4.3(a).
(b) Except as otherwise specifically set forth in this Agreement, the
representations and warranties of Seller contained herein or in any Closing
Document shall survive only until July 6, 1998. Any Claim that Buyer may have
at any time against Seller for a breach of any such representation or warranty,
whether known or unknown, with respect to which a Claim Notice has not been
delivered to Seller on or prior to July 6, 1998 shall not be valid or effective.
For the avoidance of doubt, on July 6, 1998, Seller shall be fully discharged
and released (without the need for separate releases or other documentation)
from any liability or obligation to Buyer, any Permitted Assignee and/or their
successors and assigns with respect to any Claims or any other matter relating
to this Agreement, any Closing Document or the Property, except solely for those
matters that are then the subject of a pending Claim Notice delivered by Buyer
to Seller. Any Claim that Buyer may have at any time against Seller for a
breach of any such representation or warranty, whether known or unknown, with
respect to which a Claim Notice has been delivered to Seller on or prior to July
6, 1998 may be the subject of subsequent litigation brought by Buyer against
Seller, provided that such litigation is commenced against Seller on or prior to
October 6, 1998. For the avoidance of doubt, on October 6, 1998, Seller shall
be fully discharged and released (without the need for separate releases or
other documentation) from any liability or obligation to Buyer and/or its
successors and assigns with respect to any Claims or any other matter relating
to this Agreement, any Closing Document or the Property, except solely for those
matters that are the subject of a litigation by Buyer against Seller that is
pending on October 6, 1998.
(c) This Section 4.3 shall survive the Closing.
Section 4.4 Representations and Warranties of Buyer. Buyer hereby
makes the following representations and warranties:
(a) Buyer is a limited partnership duly organized and validly
existing and in good standing under the laws of the State of Delaware. Buyer
further represents and warrants to Seller that this Agreement and all documents
executed by Buyer that are to be delivered to Seller at Closing (i) are, or at
the time of Closing will be, duly authorized, executed and delivered by Buyer,
(ii) do not, and at the time of Closing will not, violate any provision of any
agreement or judicial order to which Buyer is a party or to which Buyer or the
property owned by Buyer is subject and (iii) constitutes (or in the case of
Closing Documents will constitute) a valid and legally binding obligation of
Buyer, enforceable in accordance with its terms.
(b) Buyer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing, of any involuntary petition by Buyer's creditors, (iii) suffered the
appointment of a receiver to take possession of all, or
15
substantially all, of Buyer's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Buyer's assets, (v) admitted
in writing its inability to pay its debts as they come due, or (vi) made an
offer of settlement, extension or composition to its creditors generally. As of
the Closing Date, Buyer will have sufficient funds to pay the Purchase Price and
consummate the transactions contemplated by this Agreement.
(c) Buyer has full and complete power and authority to enter into
this Agreement and to perform its obligations hereunder.
(d) Buyer (i) is a sophisticated investor, (ii) is represented by
competent counsel and (iii) understands the assumptions of risk and liability
set forth in this Agreement.
(e) No consents are required to be obtained from, and no filings are
required to be made with, any Governmental Authority or third party in
connection with the execution and delivery of this Agreement by Buyer or the
consummation by Buyer of the transactions contemplated hereby.
Each of the representations and warranties of Buyer contained in this
Section (i) is made on the Effective Date; (ii) shall be deemed remade by Buyer
and/or its assignee(s), as applicable and appropriate, and shall be true in all
material respects, as of the Closing Date; and (iii) shall survive the Closing
until July 6, 1998.
Section 4.5 Buyer's Independent Investigation.
(a) Buyer, for itself and any successors or assigns (including any
Permitted Assignees), acknowledges and agrees that it has been given the full
opportunity to inspect and investigate each and every aspect of the Property,
either independently or through agents, representatives or experts of Buyer's
choosing, as Buyer considers necessary or appropriate, and that Buyer is
completely satisfied with such independent investigation (but the foregoing will
not constitute a waiver of any breach of representation or warranty set forth in
Section 4.1 unless such breach is disclosed in the Due Diligence Materials or is
otherwise known by Buyer and/or any Permitted Assignee before the Closing Date
and Buyer and/or such Permitted Assignee(s) elect to proceed with the Closing).
Such independent investigation by Buyer may include, without limitation:
(i) all matters relating to title to the Property;
(ii) all matters relating to governmental and other legal
requirements with respect to the Property, such as taxes, assessments, zoning,
use permit requirements and building codes;
16
(iii) all zoning, land use, building, environmental and other
statutes, rules, or regulations applicable to the Real Property;
(iv) the physical condition of the Real Property, including,
without limitation, the interior, the exterior, the square footage of the
Improvements and of each tenant space therein, the structure, the roof, the
paving, the utilities, and all other physical and functional aspects of the Real
Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting the Real
Property;
(vi) the Leases with respect to the Real Property and all
matters in connection therewith, including, without limitation, the ability of
the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of
significance affecting the Property;
(viii) all matters that would be revealed by an ALTA as-built
survey (a "Survey"), a physical inspection or an environmental site assessment
of the Real Property;
(ix) all matters relating to the income and operating or capital
expenses of the Property and all other financial matters; and
(x) all other matters of significance affecting, or otherwise
deemed relevant by Buyer with respect to, the Property.
(b) The Due Diligence Materials heretofore delivered or made
available to Buyer for its review and approval include:
(i) to the extent in the possession of Seller, a copy of a Survey
of the Real Property;
(ii) [intentionally deleted];
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for the Real
Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of
Seller;
17
(vi) to the extent in the possession of Seller or Seller's
property manager, reports, studies, assessments, investigations and other
materials related to the presence of Hazardous Materials at, on or under the
Real Property and the compliance of the Real Property with all environmental
laws, including recent Phase I (and, in some cases, Phase II) environmental
surveys; and
(vii) to the extent in the possession of Seller or Seller's
property managers, copies of (i) the bills issued for the most recent year for
the Real Property for all real estate taxes and assessments, water rates, water
meter charges, sewer rates, sewer charges, and similar matters, imposed by any
Governmental Authority ("Real Estate Taxes") and personal property taxes and
(ii) all notices or documents for any assessments or bonds relating to the Real
Property.
(c) Buyer acknowledges and agrees that (i) it has completed its
independent investigation of the Property and the Due Diligence Materials and
has obtained, reviewed and approved a Title Commitment for the Property, (ii) it
is acquiring the Property based on such independent investigation and subject to
all information disclosed in the Due Diligence Materials (and also in reliance
on Seller's representations and warranties contained herein) and (iii) Buyer
shall have no right to terminate this Agreement based on any further
investigations of the Property or the Due Diligence Materials. Buyer has
approved each and every aspect of the Property. The preceding sentence is not
intended to relieve, and shall not relieve, Seller from any of its obligations
under Section 4.1.
(d) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT (i) SELLER SHALL
SELL AND BUYER SHALL PURCHASE THE PROPERTY "AS IS, WHERE IS AND WITH ALL
FAULTS," (ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER
ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER, NOR
ANY PARTNER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLER, AS TO ANY
MATTER, CONCERNING THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE
DILIGENCE MATERIALS (INCLUDING WITHOUT LIMITATIONS, THE COMPLETENESS THEREOF),
INCLUDING WITHOUT LIMITATION: (i) the quality, nature, habitability,
merchantability, use, operation, value, marketability, adequacy or physical
condition of the Property or any aspect or portion thereof, including, without
limitation, structural elements, foundation, roof, appurtenances, access,
landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage,
and utility systems, facilities and appliances, soils, geology and groundwater,
(ii) the dimensions or lot size of the Real Property or the square footage of
the Improvements thereon or of any tenant space therein, (iii) the development
or income potential, or rights of or relating to, the Real Property, or the Real
Property's use, habitability, merchantability, or fitness, or the suitability,
value or
18
adequacy of the Real Property for any particular purpose, (iv) the zoning or
other legal status of the Real Property or any other public or private
restrictions on the use of the Real Property, (v) the compliance of the Real
Property or its operation with any applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions and restrictions of any Governmental
Authority or of any other person or entity (including, without limitation, the
Americans with Disabilities Act), (vi) the ability of Buyer to obtain any
necessary governmental approvals, licenses or permits for Buyer's intended use
or development of the Real Property, (vii) the presence or absence of Hazardous
Materials on, in, under, above or about the Real Property or any adjoining or
neighboring property, (viii) the quality of any labor and materials used in any
Improvements, (ix) the condition of title to the Real Property, (x) the Leases,
Contracts or any other agreements affecting the Real Property or the intentions
of any party with respect to the negotiation and/or execution of any lease or
contract with respect to the Real Property, (xi) Seller's ownership of the
Property or any portion thereof or (xii) the economics of, or the income and
expenses, revenue or expense projections or other financial matters, relating
to, the operation of the Real Property. Without limiting the generality of the
foregoing, except as otherwise set forth herein, Buyer expressly acknowledges
and agrees that Buyer is not relying on any representation or warranty of
Seller, nor any partner, officer, employee, attorney, agent or broker of Seller,
whether implied, presumed or expressly provided at law or otherwise, arising by
virtue of any statute, common law or other legally binding right or remedy in
favor of Buyer. Buyer further acknowledges and agrees that Seller is under no
duty to make any inquiry regarding any matter that may or may not be known to
Seller or any partner, officer, employee, attorney, agent or broker of Seller.
This Section 4.5(d) shall survive the Closing, or, if the Closing does not
occur, beyond the termination of this Agreement.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE
RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT THERE IS NO OBLIGATION ON THE
PART OF SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO
CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER.
BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY
OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY OF THE PROPERTY AND
FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER'S SOLE
COST AND EXPENSE.
Section 4.6 Entry and Indemnity; Limits on Government Contacts.
(a) In connection with any entry by Buyer, its Permitted Assignee(s)
or any of their agents, employees or contractors (collectively, the "Buyer
Parties" and each a "Buyer Party") onto the Real Property, Buyer shall give
Seller reasonable advance notice of such entry and shall conduct such entry and
any inspections in connection therewith so as to minimize, to the greatest
extent possible, interference with Seller's business and the business of the
Tenants
19
and otherwise in a manner reasonably acceptable to Seller. Without limiting the
foregoing, prior to any entry to perform any necessary on-site testing, Buyer
shall give Seller written notice thereof, including the identity of the company
or persons who will perform such testing and the proposed scope of the testing
and the party performing the testing. Seller shall approve or disapprove any
proposed testing and the party performing the same within three (3) Business
Days after receipt of such notice. If a Buyer Party takes any sample from the
Real Property in connection with any such approved testing, Buyer shall provide
to Seller a portion of such sample being tested to allow Seller, if it so
chooses, to perform its own testing. Seller or its representative may be
present to observe any testing, or other inspection performed on the Real
Property. Buyer shall promptly deliver to Seller copies of any reports relating
to any testing or other inspection of the Real Property performed by or on
behalf of any Buyer Party. Buyer shall maintain, and shall ensure that its
contractors maintain, public liability and property damage insurance insuring
the Buyer Parties against any liability arising out of any entry or inspections
of the Real Property pursuant to the provisions hereof. Such insurance
maintained by Buyer shall be in the amount of Ten Million Dollars ($10,000,000)
combined single limit for injury to or death of one or more persons in an
occurrence, and for damage to tangible property (including loss of use) in an
occurrence. The policy maintained by Buyer shall insure the contractual
liability of Buyer covering the indemnities herein and shall (i) name Seller
(and their successors, assigns and Affiliates) as additional insureds,
(ii) contain a cross-liability provision, and (iii) contain a provision that
"the insurance provided by Buyer hereunder shall be primary and noncontributing
with any other insurance available to Seller." Buyer shall provide Seller with
evidence of such insurance coverage prior to any entry or inspection of the Real
Property. Buyer shall indemnify and hold the Seller Parties harmless from and
against any Claims arising out of or relating to any entry on the Real Property
by any Buyer Party, in the course of performing any inspections, testings or
inquiries. The foregoing indemnity shall survive the Closing, or, if the
Closing does not occur, beyond the termination of this Agreement.
(b) Notwithstanding any provision in this Agreement to the contrary,
neither Buyer nor any other Buyer Party shall contact any Governmental Authority
regarding any Hazardous Materials on or the environmental condition of the Real
Property without Seller's prior written consent thereto; provided that if Buyer
or Buyer's consultant is unconditionally obligated by applicable law to notify a
Governmental Authority regarding any Hazardous Materials on, or the
environmental condition of, the Real Property discovered by Buyer's
environmental testing, Buyer shall first provide prior written notice to Seller
and shall not contact any Governmental Authority except in conjunction with
Seller. In addition, if Seller's consent is obtained by Buyer, Seller shall be
entitled to receive at least five (5) Business Days prior written notice of the
intended contact and to have a representative present when Buyer has any such
contact with any governmental official or representative.
20
Section 4.7 Release.
(a) Without limiting the provisions of Section 4.5, Buyer, for
itself and any successors and assigns of Buyer (including, without
limitation, any Permitted Assignee), waives its right to recover from, and
forever releases and discharges, and covenants not to ▇▇▇, Seller, Seller's
Affiliates, Seller's asset manager, any lender to Seller, the partners,
trustees, shareholders, LLC members, controlling persons, directors,
officers, attorneys, employees and agents of each of them, and their
respective heirs, successors, personal representatives and assigns (each a
"Seller Party", and collectively, the "Seller Parties") with respect to any
and all Claims, whether direct or indirect, known or unknown, foreseen or
unforeseen, that may arise on account of or in any way be connected with the
Property including, without limitation, the physical, environmental and
structural condition of the Real Property or any law or regulation applicable
thereto, including, without limitation, any Claim or matter relating to the
use, presence, discharge or release of Hazardous Materials on, under, in,
above or about the Real Property; provided, however, Buyer does not waive its
rights, if any, to recover from, and does not release or discharge or
covenant not to ▇▇▇ Seller for (i) any act that is found by a court of
competent jurisdiction to constitute fraud, (ii) any breach of Seller's
representations or warranties set forth in Section 4.1 or in Seller's
estoppel certificate delivered pursuant to Section 8.4, subject to the
limitations and conditions provided in this Agreement, or (iii) any breach of
Seller's obligations set forth in this Agreement that expressly survive
Closing.
(b) This Section 4.7 shall survive the Closing indefinitely.
ARTICLE V
TITLE
Section 5.1 Conveyance of Title. Buyer has obtained a Title
Commitment for the Property. A copy of each Title Commitment delivered to
Buyer has been delivered to Seller and its counsel. At the Closing, as a
condition precedent to Buyer's obligation to close, Seller shall have
delivered to Buyer a deed for the Property in the form of Exhibit A (each, a
"Deed"), each subject to no exceptions other than the following (the
"Permitted Exceptions"):
(i) Interests and rights of Tenant under the Existing Lease,
including, without limitation, those Tenant purchase rights listed on
Schedule 2.1.5;
(ii) Liens for Real Estate Taxes that are apportioned as
provided in Section 8.5 (including special assessments and special
improvement district or local improvement district bonds);
21
(iii) Any exceptions, exclusions and other matters set forth
in or disclosed by the Title Commitment for the Real Property or other
documents made available to Buyer and any other exceptions to title that
would be disclosed by an inspection and/or survey of the Real Property,
including those disclosed on a Survey;
(iv) Any and all present and future laws, ordinances,
restrictions, requirements, resolutions, orders, rules and regulations of any
Governmental Authority, as now or hereafter existing or enforced (including,
without limitation, those related to zoning and land use), and all notes or
notices of violation of any such laws, ordinances, rules or regulations set
forth in the Due Diligence Materials or in any title reports, commitments or
updates delivered to Buyer.
(v) Any lien or encumbrance encumbering the Property as to
which Seller shall deliver to Buyer, or the Title Company, at or prior to the
Closing, proper instruments, in recordable form, canceling such lien or
encumbrance, together with funds to pay the cost of recording and canceling
the same;
(vi) Such other exceptions as the Title Company shall commit
to insure over in a manner reasonably satisfactory to Buyer, without any
additional cost to Buyer, whether such insurance is made available in
consideration of payment, bonding or indemnity by Seller or otherwise;
(vii) Uniform Commercial Code filings that have expired or
terminated by operation of law on or prior to the Closing Date;
(viii) Any exceptions caused by Buyer, its agents,
representatives or employees; and
(ix) Any other matters affecting title to the Property that
have been approved or waived by Buyer pursuant to the terms hereof.
The acceptance by Buyer of the Deeds shall be deemed to be a full performance
and discharge of every obligation on the part of Seller to be performed under
this Agreement with respect to the Property, other than those that are
specifically stated herein to survive the Closing.
Section 5.2 Evidence of Title. Delivery of title in accordance
with the foregoing shall be evidenced by the Title Company issuing, or to
committing to issue, at Closing, upon payment of the applicable premium
therefor, a 1992 ALTA Owner's Policy of Title Insurance (provided, that in
jurisdictions where local regulations require a form of policy other than a
1992 ALTA Owner's Policy, such other required form shall be used) in the
amount of the Purchase
22
Price showing title to the Property vested in Buyer or its Permitted Assignee
or designee, subject only to the Permitted Exceptions (the "Title Policy").
ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 Brokers. Seller and Buyer represent and warrant to
each other that no broker or finder was instrumental in arranging or bringing
about this transaction and that there are no claims or rights for brokerage
commissions or finders' fees in connection with the transactions contemplated
hereby by any person or entity. If any person brings a claim for a commission
or finder's fee based upon any contact, dealings or communication with Buyer
or Seller, then the party through whom such person makes its claim shall
defend the other party (the "Indemnified Party") from such claim, and shall
indemnify the Indemnified Party and hold the Indemnified Party harmless from
any and all costs, damages, claims, liabilities or expenses (including
without limitation, reasonable attorneys' fees and disbursements) incurred by
the Indemnified Party in defending against the claim. The provisions of this
Section 6.1 shall survive the Closing or, if the Closing does not occur, any
termination of this Agreement.
Section 6.2 Expenses. Except as provided in Section 8.5(e), each
party hereto shall pay its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby.
ARTICLE VII
INTERIM OPERATION OF THE PROPERTY
Section 7.1 Interim Operation of the Property.
(a) Except as otherwise contemplated or permitted by this Agreement
or approved by Buyer in writing, from the Effective Date to the Closing Date,
Seller agrees that it will (i) substantially perform its obligations under
the Existing Lease, (ii) operate, maintain, repair and lease the Real
Property in the ordinary course, on an arm's-length basis and consistent with
Seller's past practices and (iii) will not dispose of or encumber the
Property, except for dispositions of personal property in the ordinary course
of business or as otherwise permitted by Section 7.1 or Section 7.3. Without
limiting the foregoing, Seller shall, in the ordinary course, enforce the
Existing Lease in all material respects, perform in all material respects all
of landlord's obligations under the Lease and pay all costs and expenses of
the Property, including without limitation debt service and Real Estate Taxes.
23
(b) Seller shall not, without the Buyer's consent, amend or modify
the Existing Lease. Any consent to be given by Buyer pursuant to this
Section 7.1(b) shall not be unreasonably withheld or delayed and shall be
deemed granted if Buyer does not respond in writing to Seller's request for
consent within three (3) Business Days.
(c) Seller shall not enter into or terminate any operating
agreement or any contract, agreement or other commitment of any sort
(including any contract for capital items or expenditures, but excluding any
liens or other encumbrances on title other than Permitted Exceptions), with
respect to the Property that (A) will survive Closing, (B) requires payments
to or by Seller in excess of $50,000 per annum, or the performance of
services by Seller the value of which is in excess of $50,000 per annum and
(C) is not terminable without cause and without penalty on thirty (30) days'
notice or less; provided that Seller, in its good faith but sole discretion,
believes such contract is on market terms and will benefit the Property. At
least three (3) Business Days prior to becoming legally bound with respect to
any such matter, Seller shall consult with and seek the consent of Buyer, and
shall provide reasonable detail to Buyer (including, at Buyer's request,
copies of the relevant documentation), with respect thereto. Any consent to
be given by Buyer pursuant to this Section 7.1(c) shall not be unreasonably
withheld or delayed and shall be deemed granted if Buyer does not respond in
writing to Seller's request for consent within three (3) Business Days.
(d) Except for agreements entered into in accordance with this
Section 7.1, Seller shall not enter into any agreement to create a lien or
encumbrance on the Property without Buyer's prior written consent (which
consent shall not be unreasonably withheld or delayed with respect to any
utility or similar easement necessary for the operation of a Property, and
which shall be deemed granted if Buyer does not respond in writing to
Seller's request for consent within three (3) Business Days).
(e) Prior to the Closing Date or the earlier termination of this
Agreement, Seller shall not sell the Property or portion thereof without
Buyer's prior written consent.
(f) Within three (3) days after the execution thereof, Seller shall
provide Buyer with copies of all Contracts entered into by Seller after the
Effective Date affecting the Property (other than Contracts terminable on 30
days' notice or less), and all operating statements, rent rolls, receivable
aging reports, leasing reports and other periodic reports prepared by or
delivered to Seller.
Section 7.2 [Intentionally omitted.]
Section 7.3 Seller's Maintenance of the Property. Between the
Effective Date and the Closing Date, Seller shall (a) cause the Contractor to
substantially perform its obligations under the Construction Contract; (b)
continue to maintain its existing insurance coverage; and (c)
24
not grant any voluntary liens or encumbrances affecting the Property other
than Permitted Exceptions of the type described in clauses (i) and (ix) of
Section 5.1.
Section 7.4 Lease Enforcement. Subject to the provisions of
Section 7.1, prior to the Closing Date, Seller shall have the right, but not
the obligation, to enforce the rights and remedies of the landlord under the
Existing Lease, by summary proceedings or otherwise, and to apply all or any
portion of any security deposits then held by Seller toward any loss or
damage incurred by Seller by reason of any defaults by Tenant.
Section 7.5 Lease Termination Prior to Closing. The bankruptcy or
default of Tenant or the termination of the Existing Lease or the removal of
Tenant by reason of a default by Tenant (by summary proceedings or otherwise)
or by operation of the terms of the Existing Lease or New Lease shall not
affect the obligations of Buyer under this Agreement in any manner or entitle
Buyer to a reduction in, or credit or allowance against, the Purchase Price
or give rise to any other claim on the part of Buyer.
Section 7.6 Tenant Notices. At the Closing, Seller shall furnish
Buyer with a signed notice to be given to Tenant. Such notice shall disclose
that the Property has been sold to Buyer and that, after the Closing, all
rents should be paid to Buyer.
Section 7.7 Risk of Loss and Insurance Proceeds. Buyer shall be
bound to purchase the Property for the full Purchase Price as required by the
terms hereof, without regard to the occurrence or effect of any damage to the
Real Property or destruction of any improvements thereon or condemnation of
any portion of the Property, provided that upon the Closing, there shall be a
credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of
any such damage or destruction or condemnation, plus the amount of any
insurance deductible or any uninsured amount or retention, less any sums
reasonably expended by Seller prior to the Closing for the restoration or
repair of the Property. Seller has provided Buyer with a certificate of
insurance for Seller's casualty insurance policy so that Buyer can confirm
its satisfaction with such policy. Seller agree that it will maintain such
policy in full force and effect until the Closing. If the proceeds or awards
have not been collected as of the Closing, then such proceeds or awards shall
be assigned to Buyer, except to the extent needed to reimburse Seller for
sums it reasonably expended prior to the Closing for the restoration or
repair of the Property. Notwithstanding the foregoing, (i) Seller shall not
settle, compromise or otherwise stipulate any award or recovery in connection
with any damage, destruction or condemnation, in each case if such damage,
destruction or condemnation impairs the value of the Property by at least
$250,000 without the prior written approval of Buyer, which approval shall
not be unreasonably withheld, (ii) Buyer shall have the right to participate
in any such settlement or other proceedings, and (iii) if the amount of the
damage or destruction as described in this Section 7.7 exceeds ten percent
(10%) of the Purchase Price, then Buyer may, at its option to be exercised
within five (5)
25
Business Days of Seller's written notice of the occurrence of the damage or
destruction, either terminate this Agreement or consummate the purchase for
the full Purchase Price as required by the terms hereof. If Buyer elects to
terminate this Agreement, then the Deposit shall be immediately returned to
Buyer and neither party shall have any further rights or obligations
hereunder except to the extent set forth in Sections 4.6(a), 6.1, 9.4 and
9.10(a). If Buyer elects to proceed with the purchase, then upon the
Closing, Buyer shall be entitled to a credit against the Purchase Price and
shall receive an assignment of any uncollected proceeds or awards, all as set
forth in this Section 7.7 above. The provisions of this Section 7.7 shall
survive the Closing.
Section 7.8 Notifications. Between the Effective Date and the
Closing, Seller shall promptly notify Buyer of any condemnation,
environmental, zoning or other land-use regulation proceedings relating to
the Property of which Seller obtains actual knowledge by written notice, any
notices of violations of any legal requirements relating to the Property
received by Seller, any litigation of which Seller obtains actual knowledge
by written notice that arises out of the ownership of the Property unless
fully covered by insurance (subject to customary deductibles), and any other
matters within the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
that would materially affect Seller's representations and warranties
hereunder.
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 Escrow Instructions. Upon execution of this Agreement,
the parties hereto shall deposit an executed counterpart of this Agreement
with the Title Company, and this instrument shall serve as the instructions
to the Title Company as the escrow holder for consummation of the purchase
and sale contemplated hereby. Seller and Buyer agree to execute such
reasonable additional and supplementary escrow instructions as may be
appropriate to enable the Title Company to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control, unless a contrary intent is expressly
indicated in such supplementary instructions.
Section 8.2 Closing. The Closing hereunder shall be held and
delivery of all items to be made at the Closing under the terms of this
Agreement shall be made at the offices of Seller's counsel (or such other
location as the parties may agree) at 10:00 A.M. (Eastern Standard Time) on
February 18, 1998 or such earlier or later date and time as Buyer and Seller
may mutually agree upon in writing (the "Closing Date"), in either case, with
time being of the essence. Except as otherwise permitted under this
Agreement, such date and time may not be extended without the prior written
approval of both Seller and Buyer.
26
Section 8.3 Deposit of Documents.
(a) On or before the December 16, 1997 (the "Document Delivery
Date"), at the offices of Seller's counsel (or such other time and location
as the parties may agree) Seller shall deposit into escrow with the Title
Company the following items (pursuant to escrow instructions reasonably
acceptable to Seller and Buyer):
(i) a duly executed and acknowledged Deed for the Real Property;
(ii) [intentionally omitted];
(iii) [intentionally omitted]
(iv) a duly executed counterpart of a ▇▇▇▇ of Sale in the form
attached hereto as Exhibit E (each, a "▇▇▇▇ of Sale");
(v) a duly executed counterpart of an Assignment and
Assumption of Leases in the form attached hereto as Exhibit F (each, an
"Assignment of Leases");
(vi) a duly executed counterpart of an Assignment and
Assumption of Contracts, Warranties and Guaranties and Other Intangible
Property in the form attached hereto as Exhibit G (each, an "Assignment of
Contracts");
(vii) a duly executed counterpart of an agreement designating
the Title Company as the "Reporting Person" for the transaction contemplated
hereby pursuant to Section 6045(e) of the Federal Code and the regulations
promulgated thereunder, substantially in the form of Exhibit H attached
hereto (the "Designation Agreement");
(viii) a duly executed counterpart of such disclosures and
reports (including withholding certificates) as are required by applicable
state and local law in connection with the conveyance of the Property;
(ix) the Seller's affidavit to the Title Company, in the form
of Exhibit L attached hereto (the "Seller's Affidavit"); and
(x) an affidavit pursuant to Section 1445(b)(2) of the Code,
and on which Buyer is entitled to rely, that Seller is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Code.
(b) On or before the Document Delivery Date, at the offices of
Seller's counsel (or such other time and location as the parties may agree),
Buyer shall deposit into
27
escrow with the Title Company the following items (pursuant to escrow
instructions reasonably acceptable to Seller and Buyer):
(i) [intentionally omitted];
(ii) a duly executed counterpart of each ▇▇▇▇ of Sale;
(iii) a duly executed counterparts of each Assignment of Leases;
(iv) a duly executed counterpart of each Assignment of Contracts;
(v) a duly executed counterpart of the Designation Agreement
(vi) a duly executed counterpart of Buyer's As-Is Certificate
and Agreement, substantially in the form of Exhibit I attached hereto; and
(vii) a duly executed counterpart of such disclosures and
reports as are required by applicable state and local law in connection with
the conveyance of the Property.
(c) On the morning of the Closing Date, Buyer shall effect a wire
transfer of federal funds to the Title Company's escrow account (in
accordance with the wiring instructions set forth on Schedule 2.2.1) in an
amount equal to the sum of (i) the Purchase Price and (ii) the amount (if
any) of the costs, expenses and adjustments payable by Buyer under this
Agreement. The amount of the funds to be wired to the Title Company's escrow
account shall be reduced by the Deposit (including all interest thereon).
After Seller's confirmation of receipt of the Purchase Price (as reduced by
the costs, expenses, prorations and adjustments payable by Seller under this
Agreement) by wire transfer of federal funds by the Title Company to one or
more accounts designated by Seller: (i) the Title Company shall be authorized
to record the Deed for the Real Property, (ii) the Title Company shall
deliver to Buyer all other documents and instruments received by it which, in
accordance with the terms of this Agreement, are to be delivered by Seller to
Buyer on the Closing Date, and (iii) the Title Company shall deliver to Buyer
all other documents and instruments received by it which, in accordance with
the terms of this Agreement are to be delivered by Buyer to Seller on the
Closing Date. Buyer and Seller shall each deposit such other instruments as
are reasonably required by the Title Company or otherwise required to close
the escrow and consummate the purchase and sale of the Property in accordance
with the terms hereof; provided, that Seller shall not be required to provide
any indemnities or affidavits or to escrow any funds other than the Seller's
Affidavit.
(d) Seller shall deliver to Buyer originals of the Leases (or, if
originals are not available, copies), copies of the tenant correspondence
files of the Real Property in Seller's possession, a set of keys to the Real
Property and originals (or copies, if originals are not
28
available) of any other items in Seller's possession relating to the use,
ownership, operation, maintenance, leasing, repair, alteration, management or
development of the Real Property, on the Closing Date (at such location as
Buyer and Seller shall mutually agree). Following the Closing, Buyer shall
make all Leases, Contracts, other documents, books, records and any other
materials in its possession, to the extent the same relate to the period of
Seller's ownership of the Property, available to Seller or its
representatives for inspection and/or copying at Buyer's offices (at Seller's
sole cost and expense) at reasonable times and upon reasonable notice.
Section 8.4 Estoppel Certificates. Seller shall use its reasonable
efforts (without incurring any additional expense) to obtain prior to the
Closing Date tenant estoppel certificates from the Tenant substantially in
the form attached hereto as Exhibit J; provided, however, that if a form of
estoppel certificate is attached to or otherwise prescribed in a particular
lease document, that form (the "Prescribed Form") shall be deemed to be
acceptable to Buyer in the event that any Tenant is unwilling to sign the
form attached hereto as Exhibit J. It shall be a condition to Buyer's
obligation to close the sale and purchase of the Property that on or before
the Closing Seller delivers to Buyer such tenant estoppel certificate
substantially in the form attached hereto as Exhibit J (or in the Prescribed
Form, if applicable). If Seller is unable to obtain the aforesaid tenant
estoppel certificates from Tenants, Seller may, but shall not be obligated
to, provide a certificate to Buyer, with respect to such missing estoppel
certificates, as chosen by Seller, to the effect that (except as disclosed in
the Due Diligence Materials or in the Lease): (i) to Seller's knowledge the
Lease is in full force and effect; (ii) the amount of the Tenants' or
Significant Tenants' security deposits; (iii) the dates through which rent
has been paid; (iv) neither Seller nor, to Seller's knowledge, any of those
Tenants or Significant Tenants (as the case may be) is in default thereunder;
(v) a true, correct and complete copy of the Leases are attached; (vi) the
Lease expires on the date specified and is not subject to any renewal or
extension options, except as specified, and (viii) there are no options to
purchase or rights of first refusal except as specified. Buyer shall be
obligated to accept Seller's certification in lieu of any missing estoppel
certificate. Seller's representations and warranties in the certificate
shall survive the Closing, provided that (i) Buyer must give Seller a Claim
Notice with respect to any claim it may have against Seller for a breach of
any such representation and warranty by July 6, 1998, and must commence
litigation (if any) relating to such Claim Notice not later than October 6,
1998 (and any claim that Buyer may have that is not so asserted, or
litigation by Buyer that is not so commenced, shall be barred and not be
valid or effective and Seller shall have no liability whatsoever with respect
thereto) and (ii) any certificate delivered by Seller pursuant to this
Section 8.4 shall cease to survive the Closing to the extent specifically
confirmed by a tenant estoppel certificate delivered by Tenant. In no event
shall the minimum thresholds to Buyer's recovery set forth in Section 4.3(a)
apply to any certificates delivered by Seller (but Buyer's recovery under any
such certificates shall be limited by the maximum limitations set forth in
Section 4.3(a)).
Section 8.5 Prorations.
29
(a) Rents, including, without limitation, percentage rents,
escalation charges for Real Estate Taxes, parking charges, marketing fund
charges, operating expenses, maintenance escalation rents or charges,
cost-of-living increases or other charges of a similar nature ("Additional
Rents"), and any additional charges and expenses payable under Leases; Real
Estate Taxes and personal property taxes, including refunds with respect
thereto, if any; the current installment (only) of any improvement bond or
assessment that is a lien on any Property or that is pending and may become a
lien on the Property; water, sewer and utility charges; amounts payable under
any existing Contract, Contract entered into after the Effective Date and in
accordance with this Agreement; annual permits and/or inspection fees
(calculated on the basis of the period covered); and any other income or
expenses relating to the operation and maintenance of the Property (other
than any Leasing Costs and free rent which shall be prorated as provided in
Section 7.2), shall all be prorated as of 12:01 a.m. Eastern Standard Time on
the Closing Date, on the basis of a 365-day year, with Buyer deemed the owner
of the Property on the entire Closing Date. Rent which is due but
uncollected as of the Closing Date shall not be adjusted. On the Closing
Date, Seller shall deliver to Buyer a schedule of all such past due but
uncollected rent owed by tenants. Buyer agrees to cause the amount of such
rental arrears to be included in the first bills thereafter submitted by
Buyer to such tenants after the Closing Date. Any rents collected from a
tenant after the Closing Date shall be applied first to the month in which
the Closing Date occurs, next to any rents payable by such tenant after the
Closing Date and thereafter to any arrearage owed by such tenant on the
Closing Date in the inverse order of maturity. Additional rent payments (and
estimated additional rent payments) actually paid by tenants prior to Closing
attributable to real estate taxes and operating costs shall be adjusted as of
the Closing Date. Additional rent payments (and estimated additional rent
payments) attributable to real estate taxes and operating costs to be paid by
tenants after the Closing shall be adjusted upon receipt by Buyer. The
adjustments of additional rent payments shall be based upon the number of
days in the period for which such payment relates that are before or after
the Closing Date. In no event will Buyer be entitled to receive any payments
on or under the promissory notes or other agreements referred to in Section
8.7. Buyer shall use reasonable efforts until October 6, 1998 to collect any
delinquent rents that accrued prior to the Closing Date (but Seller shall
have the right to commence and pursue litigation against Tenant to collect
delinquent rents and/or expense reimbursements, provided that Seller may not
seek as a remedy in any such litigation the termination of any Leases or the
dispossession of Tenant). Seller agrees to forward any rents received by it
after the Closing Date to Buyer for application in accordance with the
provisions hereof. The amount of any security deposits that are required to
be returned to Tenants under Leases shall be credited against the Purchase
Price (and Seller shall be entitled to retain such security deposits). In
the event the Property has been assessed for property taxes purposes at such
rates as would result in reassessment (i.e., "escape assessment" or
"roll-back taxes") based upon the change in land usage or ownership of the
Property resulting from or after the consummation of the transactions
described in this Agreement, as between Buyer and Seller,
30
Buyer hereby agrees to pay all such taxes and to indemnify and save Seller
harmless from and against all claims and liability for such taxes. Such
indemnity shall survive the Closing.
(b) Seller and Buyer hereby agree that if any of the aforesaid
prorations cannot be calculated accurately on the Closing Date, then the same
shall be calculated as soon as reasonably practicable after the Closing Date,
and that if Tenant is required to pay Additional Rents and such Additional
Rents are not finally adjusted between the landlord and tenant under the
applicable Lease until after the end of the 1997 calendar year, then such
prorations shall be calculated as soon as reasonably practicable after such
Additional Rents have been finally adjusted. Either party owing the other
party a sum of money based on proration(s) calculated after the Closing Date
shall promptly pay said sum to the other party, together with interest
thereon at the rate of two percent (2%) per annum over the Prime Rate from
the Closing Date to the date of payment, if payment is not made within ten
(10) days after delivery of a ▇▇▇▇ therefor. If the real estate and/or
personal property tax rate and assessments have not been set for the calendar
year in which the Closing occurs, then the proration of such taxes shall be
based upon the rate and assessments for the preceding calendar year, and such
proration shall be adjusted between Seller and Buyer as soon as reasonably
practicable after such tax rate or assessment has been set.
(c) Buyer shall calculate the prorations contemplated by Section
8.5(b). Seller and its representatives and auditors shall be afforded the
opportunity to review all underlying financial records and work papers
pertaining to the preparation of Buyer's proration statements, and Buyer
shall permit Seller and its representatives and auditors during regular
business hours and upon reasonable prior written notice to have reasonable
access to the books and records in the possession of Buyer or any party to
whom Buyer has given custody of the same relating to the Property to permit
Seller to review Buyer's proration statements. Seller shall have sixty (60)
days after receipt of Buyer's calculations to accept or contest such
prorations.
(d) Buyer shall pay for all recording and escrow fees. Buyer shall
also pay the costs of the Title Commitments, Title Policies and all
endorsements thereto, and Surveys and Survey updates, and all costs of any
appraisal, engineering and environmental reports not delivered by Seller.
Buyer and Seller shall divide evenly and pay all transfer, recordation,
excise and deed taxes payable with respect to this transaction. Seller and
Buyer shall each be responsible for paying their respective attorneys' fees
and costs. Buyer and Seller agree that, given the de minimis amount of
Personal Property included within the Property, no portion of the Purchase
Price is allocable or attributable to such Personal Property.
(e) Buyer agrees that for purposes of any appeals relating to Real
Estate Taxes after the Closing Date, Buyer shall not value the Property in a
manner (or otherwise take a position) inconsistent with the Purchase Prices
set forth herein.
31
(f) Notwithstanding anything to the contrary herein, to the extent
set forth in Section 8.6 Seller reserves the right to protest any Real Estate
Taxes relating to the period prior to the Closing Date and to receive and
retain any refunds on account of such Real Estate Taxes.
(h) The obligations of Seller and Buyer under this Section 8.5
shall survive the Closing until October 6, 1998 (except with respect to
prorations of taxes and municipal assessments).
Section 8.6 Tax Certiorari Proceedings. Seller is hereby
authorized, but not obligated, to (a) commence (prior to the Closing Date) or
continue (after the Effective Date and after the Closing Date) any proceeding
for the reduction of the assessed valuation of the Property for any tax year
which, in accordance with the laws and regulations applicable to the
Property, requires that, to preserve the right to bring a tax certiorari
proceeding with respect to such tax year, such proceeding be commenced prior
to the Closing Date and (b) endeavor to settle any such proceeding in
Seller's discretion. After the Closing, with respect to the Property, (i)
Seller shall retain all rights (subject to any rights of Tenants under their
Leases) with respect to any tax year ending prior to the tax year (and all
refunds relating thereto) in which the Closing Date occurs, and shall have
the sole right to participate in and settle any proceeding relating thereto
(provided, that such settlement does not affect the assessed tax value for
any subsequent tax year), and (ii) Buyer shall have all rights (subject to
any rights of Tenants under their Leases) with respect to any tax year (and
all refunds relating thereto) which ends after the Closing Date; provided,
however, that if the proceeding is for a tax year in which the Closing Date
occurs, such settlement shall not be made without Buyer's prior consent,
which consent shall not be unreasonably withheld or delayed. With respect to
any such proceeding for a tax year in which the Closing Date occurs (whether
commenced by Seller or Buyer), any refund or credit of taxes for such tax
year shall be applied first to the unreimbursed out-of-pocket expenses,
including reasonable counsel fees, necessarily incurred in obtaining such
refund or credit, and second, to Tenant entitled to same, and the balance
shall be apportioned between Seller and Buyer as of the Closing Date in
accordance with the proportion of the applicable tax year occurring before
and after the Closing Date. In each case, the party which prosecuted the
proceeding shall deliver to the other copies of receipted tax bills and any
decision or settlement agreement evidencing the reduction in taxes. If any
refund shall be received by Seller which is for the account of Buyer as
provided in this Section 8.6, then Seller shall hold Buyer's share thereof in
trust for Buyer and, promptly upon receipt thereof, pay such share to Buyer
or any other party entitled to same as provided above. If any refund shall
be received by Buyer which is for the account of Seller as provided in this
Section 8.6, then Buyer shall hold Seller's share thereof in trust for Seller
and, promptly upon receipt thereof, pay such share to Seller or any other
party entitled to same as provided above. Each party shall execute any and
all consents or other documents as may be reasonably necessary to be executed
by such party so as to permit the other party to commence or continue any tax
certiorari proceeding which such other party is authorized to commence or
32
continue pursuant to the terms of this Section 8.6, or to collect any refund
or credit with respect to any such tax proceeding. The provisions of this
Section 8.6 shall survive the Closing.
Section 8.7 Tenant Obligations. Notwithstanding anything herein
that may be construed to the contrary (including, without limitation, Section
8.5), promissory notes or other agreements (other than the Leases) delivered
to Seller that evidence, deal with or otherwise relate solely to a Tenant's
rental or expense reimbursement obligations under its Lease that, as of the
Closing Date, are or were past due, shall not be conveyed to Buyer and shall
be retained by Seller. Seller agrees that in enforcing its rights against
Tenants under any such promissory notes or other agreements, Seller will not
seek to exercise any remedies that may be available to it under the affected
Leases.
Section 8.8 Seller Financial Statements. Upon the request of Buyer,
Seller shall make available to Buyer's third party accountants, Seller's
audited financial statements for the 1997 calendar year.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. Any notices required or permitted to be given
hereunder shall be given in writing and shall be delivered (a) in person, (b)
by certified mail, postage prepaid, return receipt requested, (c) by a
commercial overnight courier that guarantees next day delivery and provides a
receipt, or (d) by legible facsimile (followed by hard copy delivered in
accordance with preceding subsections (a)-(c)), and such notices shall be
addressed as follows:
To Buyer: Brandywine Operating Partnership, L.P.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Facsimile No.(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel
c/o Brandywine Realty Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.(▇▇▇) ▇▇▇-▇▇▇▇
To Seller: 15 North 32nd Associates
c/o GMH Associates, Inc.
33
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇
2500 One Liberty Place
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon receipt
(or refusal by the intended recipient to accept delivery). Notices may be
given by attorneys for the notifying partner.
Section 9.2 Entire Agreement. This Agreement, together with the
Exhibits and Schedules hereto, and the Confidentiality Agreement, contains
all representations, warranties and covenants made by Buyer and Seller and
constitutes the entire understanding between the parties hereto with respect
to the subject matter hereof. Any correspondence, memoranda or agreements
between the parties, including, without limitation, or any oral or written
statements made by Seller, its Affiliates, employees or agents, are not
binding on or enforceable against any party, and are superseded and replaced
in total by this Agreement together with the Exhibits and Schedules hereto.
Section 9.3 Time. Time is of the essence in the performance of
each of the parties' respective obligations contained herein.
Section 9.4 Attorneys' Fees. If either party hereto fails to
perform any of its obligations under this Agreement or if any dispute arises
between the parties hereto concerning the meaning or interpretation of any
provision of this Agreement, then the defaulting party or the party not
prevailing in such dispute, as the case may be, shall pay any and all costs
and expenses incurred by the other party on account of such default and/or in
enforcing or establishing its rights hereunder, including, without
limitation, court costs (including costs of any trial or appeal therefrom)
and reasonable attorneys' fees and disbursements.
Section 9.5 No Merger. The obligations contained herein, the
performance of which is contemplated after the Closing, shall not merge with
the transfer of title to the Property but shall remain in effect until
fulfilled.
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Section 9.6 Assignment. Buyer's rights and obligations hereunder
shall not be assignable, directly or indirectly, without the prior written
consent of Seller; provided, that Buyer may, by written notice delivered to
Seller not less than ten (10) Business Days prior to the Closing, designate
any Affiliate of Buyer ("Permitted Assignees") as grantee or assignee, as the
case may be, of one or more of the Property and Seller shall convey at
Closing the Property (on behalf of Buyer) in accordance with such written
instructions. Nothing contained in the preceding sentence shall be deemed to
diminish or otherwise affect the obligations of Buyer hereunder, including
the obligations to pay the Purchase Price at Closing and to indemnify Seller
and the other Seller Parties in accordance with the terms hereof. Subject to
the limitations described herein, this Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns.
Section 9.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
Section 9.8 Governing Law; Jurisdiction and Venue.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. THE PARTIES RECOGNIZE
THAT IT MAY BE NECESSARY FOR THE PARTIES TO COMPLY WITH CERTAIN ASPECTS OF
THE LAWS OF OTHER STATES IN ORDER TO CONSUMMATE THE PURCHASE AND SALE OF THE
PROPERTY PURSUANT HERETO. THE PARTIES AGREE TO COMPLY WITH SUCH OTHER LAWS
TO THE EXTENT NECESSARY TO CONSUMMATE THE PURCHASE AND SALE OF THE PROPERTY.
IT IS THE PARTIES' INTENT THAT THE PROVISIONS OF THIS AGREEMENT BE APPLIED TO
THE PROPERTY IN A MANNER THAT RESULTS IN THE GREATEST CONSISTENCY POSSIBLE.
(b) For the purposes of any suit, action or proceeding involving
this Agreement, Buyer and Seller hereby expressly submit to the jurisdiction
of all federal and state courts sitting in the Commonwealth of Pennsylvania
and consent that any order, process, notice of motion or other application to
or by any such court or a judge thereof may be served within or without such
court's jurisdiction by registered mail or by personal service, provided that
a reasonable time for appearance is allowed, and Buyer and Seller agree that
such courts shall have the exclusive jurisdiction over any such suit, action
or proceeding commenced by any party. In furtherance of such agreement,
Buyer and Seller agree upon the request of the other party to discontinue (or
agree to the discontinuance of) any such suit, action or proceeding pending
in any other jurisdiction.
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(c) Buyer and Seller each hereby irrevocably waive any objection
that it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement brought in any
federal or state court sitting in the Commonwealth of Pennsylvania and hereby
further irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 9.9 Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES,
IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON,
UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE
DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS,
DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF
THE FOREGOING.
Section 9.10 Confidentiality and Return of Documents.
(a) As a condition to Seller's agreement to furnish and/or disclose
Evaluation Material (as defined below) to Buyer, any Permitted Assignee(s)
and their Affiliates and representatives for review and inspection, Buyer (on
behalf of itself, any Permitted Assignee(s), and their respective Affiliates
and representatives) hereby agrees to be bound by the terms set forth in this
Section 9.10(a).
(i) "Evaluation Material" shall include all documents, and other
written or oral information, as well as diskettes and other forms of
electronically transmitted data, furnished to Buyer, a Permitted Assignee,
or their respective officers, directors, employees, agents, advisors,
Affiliates or representatives (collectively "Representatives") by Seller or
its Affiliates relating to the Property, as well as written memoranda,
notes, analyses, reports, compilations, or studies prepared by Buyer or its
Representatives (in whatever form of medium) that contain, or are derived
from, such information provided by Seller. Notwithstanding the foregoing,
information provided by Seller shall not constitute "Evaluation Material"
if such information (i) is or becomes generally available to the public
other than as a result of a disclosure by or through Buyer or its
Representatives in contravention of this Section 9.10(a) or (ii) is or
becomes available to Buyer from a source (other than Seller) not bound, to
the knowledge of Buyer, by any legal or contractual obligation prohibiting
the disclosure of Evaluation Material by such source to Buyer.
(ii) Buyer agrees that it and its Representatives will use the
Evaluation Material exclusively for the purpose of evaluating the merits of
a possible purchase of the Property as contemplated by this Agreement and
not for any other purpose whatsoever. Buyer (on behalf of itself and its
Representatives) further agrees that it will not disclose any Evaluation
Material or use it to the detriment of Seller or its Affiliates; provided,
36
however, that Buyer may without liability disclose Evaluation Material
(x) to any Representative of Buyer who needs to know such Evaluation
Material for the purpose of evaluating the transactions described in this
Agreement involving Seller and the Property and Buyer or its Permitted
Assignee(s) (it being understood and agreed that Buyer shall be fully
responsible for any disclosures by any such Person) and (y) pursuant to
administrative order or as otherwise required by law.
(iii) In the event that Buyer desires to disclose Evaluation
Material under the circumstances contemplated by clause (y) of the
preceding paragraph, Buyer will (x) provide Seller with prompt notice
thereof, (y) consult with Seller on the advisability of taking steps to
resist or narrow such disclosure, and (z) cooperate with Seller (at
Seller's cost) in any attempt that Seller may make to obtain an order or
other reliable assurance that confidential treatment will be accorded to
designated portions of the Evaluation Material.
(iv) Buyer agrees that, in the event this Agreement is terminated
prior to the consummation of the purchase and sale contemplated hereunder,
all written Evaluation Material and all copies thereof will be returned to
Seller promptly upon Seller's request. All analyses, compilations, studies
or other documents prepared by or for Buyer and reflecting Evaluation
Material or otherwise based thereon will be (at Buyer's option) either
(x) destroyed or (y) retained by Buyer in accordance with the
confidentiality restrictions set forth in this Section 9.10(a).
(v) Buyer acknowledges that significant portions of the
Evaluation Material are proprietary in nature and that Seller and its
Affiliates would suffer significant and irreparable harm in the event of
the misuse or disclosure of the Evaluation Material. Without affecting any
other rights or remedies that either party may have, Buyer acknowledges and
agrees that Seller shall be entitled to seek the remedies of injunction,
specific performance and other equitable relief for any breach, threatened
breach or anticipatory breach of the provisions of this agreement by Buyer
or its Representatives.
(vi) Buyer agrees to indemnify and hold harmless Seller from and
against all loss, liability, claim, damage and expense arising out of any
breach of this Section 9.10(a) by Buyer or any of its Representatives
(except that Buyer shall not be liable for consequential or punitive
damages unless such breach was intentional).
(vii) This Section 9.10(a) shall survive, if the Closing does not
occur, any termination of this Agreement, but shall terminate upon the
Closing.
(b) Seller and Buyer hereby covenant that (i) prior to the Closing
it shall not issue any press release or public statement (a "Release") with
respect to the transactions
37
contemplated by this Agreement without the prior consent of all parties to
this Agreement, except to the extent required by law or the regulations of
the Securities and Exchange Commission or the New York Stock Exchange, and
(ii) after the Closing, any Release issued by Seller or Buyer shall be
subject to the review and approval of all such parties (which approval shall
not be unreasonably withheld). If Seller or Buyer is required by law to
issue a Release, such party shall, at least two (2) Business Days prior to
the issuance of the same, deliver a copy of the proposed Release to the other
parties for their review. In response to inquiries concerning a Release,
Buyer cannot release any information concerning Seller without Seller's prior
written consent.
(c) Seller agrees for a period of one (1) year after the Closing
Date not to disclose capitalization rates and rates of return relating to the
Property (the "Confidential Information"), provided that such disclosure may
be made (a) to any Person who is a member, partner, officer, director or
employee of Seller or counsel to or accountants of Seller solely for their
use and on a need-to-know basis, provided that such Persons are notified of
Seller's confidentiality obligations hereunder, (b) with the prior consent of
Buyer, or (c) subject to the next sentence, pursuant to legal, regulatory or
administrative process. In the event that Seller shall receive a request to
disclose any Confidential Information under clause (c) of the preceding
sentence, Seller shall (i) promptly notify Buyer thereof, (ii) consult with
Buyer on the advisability of taking steps to resist or narrow such request
and (iii) if disclosure is required or deemed advisable, reasonably cooperate
with Buyer (at no cost to Seller) in any attempt it may make to obtain an
order or other assurance that confidential treatment will be accorded such
Confidential Information.
Section 9.11 Interpretation of Agreement. The article, section and
other headings of this Agreement are for convenience of reference only and
shall not be construed to affect the meaning of any provision contained
herein. Where the context so requires, the use of the singular shall include
the plural and vice versa and the use of the masculine shall include the
feminine and the neuter. The term "person" shall include any individual,
partnership, joint venture, corporation, trust, limited liability company,
unincorporated association, any other entity and any government or any
department or agency thereof, whether acting in an individual, fiduciary or
other capacity.
Section 9.12 Amendments. This Agreement may be amended or modified
only by a written instrument signed by each of Buyer and Seller.
Section 9.13 No Recording. Neither this Agreement nor any
memorandum or short form thereof may be recorded by Buyer.
Section 9.14 No Third Party Beneficiary. The provisions of this
Agreement are not intended to benefit any third parties.
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Section 9.15 Severability. If any provision of this Agreement, or
the application thereof to any person, place or circumstance, shall be held
by a court of competent jurisdiction to be invalid, unenforceable or void,
the remainder of this Agreement and such provisions as applied to other
persons, places and circumstances shall remain in full force and effect.
Section 9.16 Drafts not an Offer to Enter into a Legally Binding
Contract. The parties hereto agree that the submission of a draft of this
Agreement by one party to another is not intended by either party to be an
offer to enter into a legally binding contract with respect to the purchase
and sale of the Property. The parties shall be legally bound with respect to
the purchase and sale of the Property pursuant to the terms of this Agreement
only if and when the parties have been able to negotiate all of the terms and
provisions of this Agreement in a manner acceptable to each of the parties in
their respective sole discretion, including, without limitation, all of the
Exhibits and Schedules hereto, and each of Seller and Buyer have fully
executed and delivered to each other a counterpart of this Agreement.
Section 9.17 Further Assurances. Each party shall, whenever and as
often as it shall be requested to do so by the other party, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all such other documents and do any and all other acts as may be
necessary to carry out the intent and purpose of this Agreement.
Section 9.18 [Intentionally omitted]
Section 9.19 Exculpation. No recourse shall be had for any
obligation under this Agreement , or any document executed and delivered by
Buyer in connection with the Closing, against any past, present or future
trustee, shareholder, officer or employee of Brandywine Realty Trust, whether
by virtue of any statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being expressly waived
and released by Seller and all parties claiming by, through or under Seller
Section 9.20 Counterparts. This Agreement may be executed in
counterparts, all of which taken together shall constitute one and the same
original, and the execution of counterparts by Buyer and Seller shall bind
Buyer and Seller as if they had executed the same counterpart.
39
[Signatures on following page]
40
The parties hereto have executed this Agreement as of the date first
written above.
Buyer: BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, General Partner
By: -------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Seller: BOWPL PARK, LLC
15 NORTH 32ND ASSOCIATES,
a Pennsylvania limited partnership
By: GENERAL ELECTRIC CREDIT
EQUITIES, INC. its general partner
By: -------------------------------------------
Name:
Title
41
EXHIBIT N
ESCROW AGREEMENT
Commonwealth Land Title Insurance Company ("Escrowee") agrees to hold in
escrow pursuant to this Agreement the sum of $817,500 (the "Deposit") to be
deposited by Brandywine Operating Partnership, L.P. ("Buyer") pursuant to a
certain Agreement of Purchase and Sale dated December 15, 1997 ("Agreement"),
between Buyer and BOWPL Park, LLC ("Seller"), the provisions of which
(including, without limitation, the defined terms) are hereby incorporated
herein by reference. The Deposit shall be paid to Seller by Escrowee at the
time of Closing under the Agreement, or if Closing does not take place,
distributed in accordance with the terms of the Agreement. Escrowee shall,
immediately upon receipt of the Deposit, deposit same in an interest bearing,
money market type escrow account with a federally insured bank or savings and
loan association located in Philadelphia, Pennsylvania. All interest which
shall accrue on the Deposit shall be in accordance with the Agreement.
Escrowee shall pay such interest to such party contemporaneously with
Escrowee's payment of the Deposit. Seller and Buyer agree that Escrowee is
an escrow holder only and is merely responsible for the safekeeping of the
Deposit and interest and shall not be required to determine questions of fact
or law. If Escrowee shall receive notice of a dispute as to the disposition
of the Deposit or the interest, then Escrowee shall not distribute the
Deposit or interest except in accordance with written instructions signed by
both Buyer and Seller. Pending resolution of any such dispute, Escrowee is
authorized to pay the Deposit and interest into court. If Escrowee pays the
Deposit and interest into court, it shall be discharged from all further
obligations hereunder. This Escrow Agreement shall be governed by the laws
of the state of New York.
Seller's Federal Tax ID Number is ▇▇-▇▇▇▇▇▇▇.
Buyer's Federal Tax ID Number is ▇▇-▇▇▇▇▇▇▇.
IN WITNESS WHEREOF, Buyer, Seller and Escrowee, for valuable
consideration, each intending to be legally bound and to bind their
respective successors and assigns, have caused this Escrow Agreement to be
executed and delivered as of _______________.
Escrowee: COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: -------------------------------------------
Name:
Title:
Buyer: BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, General Partner
By: -------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Seller: BOWPL PARK, LLC
15 NORTH 32ND ASSOCIATES,
a Pennsylvania limited partnership
By: GENERAL ELECTRIC CREDIT
EQUITIES, INC. its general partner
By: -------------------------------------------
Name:
Title