AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 11th
day of December, 1996, by and between Berwind Property Group, Inc., a
Pennsylvania corporation ("Purchaser"), and WRGSB Associates, an Illinois
limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Twenty Million, Five Hundred Thousand Dollars ($20,500,000)
("Purchase Price"), and on the terms and conditions hereinafter set forth, the
property commonly known as the GSB Building, One Belmont Avenue, Bala Cynwyd,
Pennsylvania, consisting of the following:
1.1 All of Seller's right, title and interest in the real property
("Land") and all buildings and other improvements ("Improvements") situated on
the Land, as more particularly described on Exhibit A attached hereto and made
a part hereof (the Land and the Improvements are sometimes referred to herein
together as the "Property"), together with all easements and appurtenances
thereunto belonging and all of Seller's right, title and interest in and to all
streets, alleys and public ways adjacent thereto, if any, and together with all
of Seller's right, title and interest in and to all strips and gores located on
or adjacent to the Property or located between any parcels constituting the
Land, if any;
1.2 The personal property set forth on Exhibit B attached hereto
("Personal Property");
1.3 The tenant leases described in the rent roll set forth on Exhibit C
attached hereto and made a part hereof together with such other tenant leases
of the Property as may be made prior to Closing (as hereinafter defined) in
accordance with the terms (including any applicable Purchaser approval rights)
of Paragraph 12 of this Agreement ("Leases"), and all unapplied security
deposits deposited by tenants under the Leases;
1.4 If and to the extent assignable and to the extent of Seller's
interest therein, if any: (a) all guarantees, warranties and indemnifications,
if any, received from suppliers, contractors, materialmen or subcontractors
arising out of, or in connection with, the installation, construction or
maintenance of the Property including, without limitation, the right to ▇▇▇ any
obligor for any breach of any covenant, agreement, representation, warranty or
guarantee contained therein; (b) all licenses, permits, certificates of
occupancy and franchises issued by any federal, state, county or municipal
authority relating to the use, maintenance or operation of the Property running
to or in favor of Seller or pertaining to the Property; (c) all trade styles,
and trade names, including, without limitation, the name "GSB Building", and
all contract rights, brochures, manuals, lists of prospective tenants,
advertising material, books and records, utility contracts and telephone
numbers; (d) the plans and specifications for the Improvements and all
unexpired claims and sureties, if any, received in connection with the
construction, improvement or equipment of the Improvements; and (e) those
service and maintenance contracts set forth in Exhibit D ("Service Contracts")
which are Assumed Contracts (hereafter defined).
1.5 Notwithstanding anything contained in this Agreement to the contrary,
Seller is not conveying or assigning to Purchaser the items described in
Paragraph 15.3 hereof.
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1 Upon the execution of this Agreement, the sum of Four Hundred
Thousand Dollars ($400,000) ("▇▇▇▇▇▇▇ Money"), by check payable to the escrow
agent, to be held in escrow by and in accordance with the provisions of the
Escrow Agreement ("Escrow Agreement") attached hereto as Exhibit E; and
2.2 On the Closing Date (as hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 2:00 p.m. Chicago time. Any
provisions herein providing for the delivery of the ▇▇▇▇▇▇▇ Money to either
party hereof are intended to mean the ▇▇▇▇▇▇▇ Money plus any interest earned
thereon and less all escrow and investment fees.
3. TITLE COMMITMENT AND SURVEY.
3.1 Attached hereto as Exhibit F is a copy of a title commitment for an
owner's standard title insurance policy issued by Charter Title Company, as
agent for Lawyers Title Insurance Corporation, (hereinafter referred to as
"Title Insurer"), dated August 23, 1996 for the Property ("Title Commitment").
For purposes of this Agreement, "Permitted Exceptions" shall mean: (a) general
ad valorem real estate taxes for the year 1996 and subsequent years not yet due
and payable; (b) matters shown on the Survey (as hereinafter defined); (c)
judgments against Purchaser and liens and other matters caused solely by the
affirmative action of Purchaser or the failure of Purchaser to pay for any
services or materials provided to Purchaser; (d) the title exceptions set forth
in Schedule B of the Title Commitment as Numbers 7-12; (e) the rights of
tenants under Leases; and (f) liens or encumbrances of a definite or
ascertainable amount which may be removed or insured over (but with respect to
liens or encumbrances to be insured over, not to exceed $25,000 without
Purchaser's prior consent, which shall not be unreasonably withheld) by the
payment of money or other security at the Closing Date, and which Seller
removes or causes to be insured over at the Closing Date in accordance with
Paragraph 5 hereof. All other exceptions to title shall be referred to as
"Unpermitted Exceptions". On the Closing Date, Title Insurer shall deliver to
Purchaser a standard title policy in conformance with the previously delivered
Title Commitment, together with endorsements requested by Purchaser (to the
extent available) and subject only to Permitted Exceptions (excluding, however,
the Permitted Exceptions described in subclause (f) above) and Unpermitted
Exceptions waived in writing by Purchaser ("Title Policy"). The Title Policy
shall be conclusive evidence of good title as therein shown as to all matters
to be insured by the Title Policy, subject only to the exceptions and
requirements therein stated. Purchaser and Seller shall share equally the
costs of the Title Commitment and Title Policy and Purchaser shall pay for the
cost of any endorsements to, or extended coverage on, the Title Policy as
requested by Purchaser or Purchaser's lender.
3.2 Purchaser has received a survey of the Property dated October 25,
1996 prepared by ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. under Order Number B4588 ("Survey").
Purchaser and Seller shall share equally the cost of the Survey. Purchaser
hereby acknowledges that all matters disclosed by the Survey are acceptable to
Purchaser and are Permitted Exceptions for purposes of Paragraph 3.1 above.
3.3 The obligations of Purchaser and Seller to pay various costs set
forth in Paragraphs 3.1 and 3.2 shall survive the termination of this
Agreement.
4. PAYMENT OF CLOSING COSTS.
4.1 In addition to the costs set forth in Paragraphs 3.1 and 3.2,
Purchaser and Seller shall share equally the costs of the documentary or
transfer stamps to be paid with reference to the Deed (as hereinafter defined)
and all other stamps, intangible, transfer, documentary, recording, sales tax
and surtax imposed by law with reference to any other sale documents delivered
in connection with the sale of the Property to Purchaser.
5. CONDITION OF TITLE.
5.1 If, prior to Closing (as hereinafter defined), a date-down to the
Title Commitment discloses any new Unpermitted Exceptions which, in the
aggregate, do not exceed $25,000 (each, a "Minor Unpermitted Exception"),
Seller shall, at Seller's expense, bond over, cure and/or have such Minor
Unpermitted Exceptions removed from the Title Commitment or have the Title
Insurer commit to insure against loss or damage that may be occasioned by such
Minor Unpermitted Exceptions. Notwithstanding the foregoing, if such date down
to the Title Commitment discloses any new Unpermitted Exceptions which, in the
aggregate, equal or exceed $25,000, Seller shall have no obligation to bond
over, cure and/or have such exceptions removed from the Title Commitment or to
have the Title Insurer commit to insure against loss or damage that may be
occasioned by such Unpermitted Exceptions and Purchaser shall have no
obligation to accept title insurance over such Unpermitted Exception. If
Seller fails to bond over, cure or have any Unpermitted Exception removed or
have the Title Insurer commit to insure as specified above within five (5)
business days from the date of the date down to the Title Commitment, or if
Seller offers to insure over any new Unpermitted Exceptions which, in the
aggregate equal or exceed $25,000 but Purchaser refuses to accept insurance
over such Unpermitted Exception, Purchaser may terminate this Agreement upon
written notice to Seller within three (3) days after the expiration of such
five (5) business day period; provided, however, and notwithstanding anything
contained herein to the contrary, if the Unpermitted Exception which gives rise
to Purchaser's right to terminate was recorded against the Property as a result
of the affirmative action of Seller with the intention of preventing the sale
(and not by any unrelated third party) or if Seller is able to bond over, cure
or remove a Minor Unpermitted Exception for a cost not to exceed $25,000 or the
Title Insurer is willing to insure over a Minor Unpermitted Exception for a
cost not to exceed $25,000 in accordance with the terms hereof and Seller fails
to expend such funds in either case, then Purchaser shall have the additional
rights contained in Paragraph 14 herein. Absent notice from Purchaser to Seller
in accordance with the preceding sentence, Purchaser shall be deemed to have
elected to take title subject to said Unpermitted Exception, without any
reduction in or setoff against the Purchase Price as a result thereof. If
Purchaser terminates this Agreement in accordance with the terms of this
Paragraph 5.1, this Agreement shall terminate without further action of the
parties and all ▇▇▇▇▇▇▇ Money theretofore deposited into the escrow by
Purchaser, together with any interest accrued thereon, shall be returned to
Purchaser, and neither party shall have any further liability to the other,
except for those covenants and obligations that specifically survive
termination of this Agreement.
5.2 Seller agrees to convey fee simple title to the Property to Purchaser
by special warranty deed ("Deed") (in the form attached hereto as Exhibit G) in
recordable form subject only to the Permitted Exceptions and any Unpermitted
Exceptions not objected to by Purchaser in accordance with Paragraph 5.1 above.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1 Except as provided in the indemnity provisions contained in Paragraph
7.1 of this Agreement, Seller shall bear all risk of loss with respect to the
Property through the Closing. Seller agrees to maintain its existing "all risk"
replacement cost casualty insurance and rent loss insurance in place until the
Closing Date. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000 (as determined by Seller in good
faith), Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property if such repair or restoration may be
completed prior to the Closing Date or to assign and transfer to Purchaser on
the Closing Date all of Seller's right, title and interest in and to all
insurance proceeds paid or payable to Seller on account of such fire or
casualty plus the amount of Seller's insurance deductible. Seller shall
promptly notify Purchaser in writing of any such fire or other casualty and
Seller's estimate of the cost to repair the damage caused thereby. In the event
of damage to the Property by fire or other casualty prior to the Closing Date,
repair of which would cost in excess of $100,000 (as determined by Seller in
good faith), then this Agreement may be terminated at the option of Purchaser,
which option shall be exercised, if at all, by Purchaser's written notice
thereof to Seller within ten (10) business days after Purchaser receives
written notice of such fire or other casualty from Seller and Seller and
Purchaser agree upon the amount of such damages, and upon the exercise of such
option by Purchaser this Agreement shall terminate without further action by
the parties, the ▇▇▇▇▇▇▇ Money deposited by Purchaser shall be returned to
Purchaser together with interest thereon, and neither party shall have any
further liability or obligations hereunder, except for those covenants and
obligations which expressly survive termination of this Agreement. In the
event that Purchaser does not exercise the option to terminate in accordance
with this Paragraph 6.1, the Closing shall take place on the Closing Date and
Seller shall assign and transfer to Purchaser on the Closing Date all of
Seller's right, title and interest in and to all insurance proceeds paid or
payable to Seller on account of the fire or casualty and shall pay to Purchaser
the amount of Seller's insurance deductible. Notwithstanding anything contained
herein to the contrary, Seller's obligation to transfer all insurance proceeds
paid to Seller as set forth more fully in this Paragraph 6.1 shall survive the
Closing and the recording of the Deed.
6.2 If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Property or the taking or closing of any right of
access to the Property, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Property shall: (i)
impair access to the Property; (ii) impair access to parking or materially
reduce available parking; (iii) cause any non-compliance with any applicable
law, ordinance, rule or regulation of any federal, state or local authority or
governmental agencies having jurisdiction over the Property or any portion
thereof; or (iv) adversely impair the use of the Property as it is currently
being operated (hereinafter collectively referred to as a "Material Event"),
Purchaser may:
6.2.1 terminate this Agreement by written notice to Seller, in
which event the ▇▇▇▇▇▇▇ Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease,
except for those covenants and obligations hereunder which expressly survive
termination of this Agreement; or
6.2.2 proceed with the Closing, in which event Seller shall
assign to Purchaser all of Seller's right, title and interest in and to any
award made or to be made in connection with such condemnation or eminent domain
proceedings. Notwithstanding anything contained herein to the contrary,
Seller's obligation to transfer Seller's interest in such award as set forth
more fully in this Paragraph 6.2.2 shall survive the Closing and the recording
of the Deed.
Purchaser shall then notify Seller, within five (5) business days after
Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise
its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be delayed,
if necessary, until Purchaser makes such election. If Purchaser fails to make
an election within such five (5) business day period, Purchaser shall be deemed
to have elected to proceed with Closing in accordance with Paragraph 6.2.2. If
between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1 During the period commencing on the date hereof and ending at 5:00
p.m. Chicago time on December 23, 1996 (said period being herein referred to as
the "Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property to
inspect the Property and to conduct and prepare such studies, tests and surveys
as Purchaser may deem necessary and appropriate, including, without limitation,
a review of the Leases and any additional information reasonably requested by
Purchaser which relates to the Property and is in the possession of Seller or
Affiliates of Seller (defined below). In connection with Purchaser's review of
the Property, Seller has delivered to Purchaser copies of the current rent roll
for the Property, the most recent tax and insurance bills, copies of the
Leases, utility account numbers, a personal property inventory, the Service
Contracts, unaudited annual operating statements for 1995 and year-to-date
monthly unaudited operating statements for 1996.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be subject to the following:
(i) Such tests, inspections and investigations shall take place
during normal business hours upon reasonable notice to Seller or its designated
agents;
(ii) Except as may be required by Purchaser to complete its due
diligence during the Inspection Period or to obtain financing in order to close
this transaction, all information set forth in the documents to be reviewed
hereunder by Purchaser, its employees and agents shall be held in strict
confidence until Closing and thereafter in the event that the Closing does not
occur;
(iii) In the event the Closing does not occur, Purchaser shall
promptly return to Seller any documents obtained from Seller or Seller's
agents;
(iv) Purchaser shall not suffer or permit any lien, claim or
charge of any kind whatsoever to attach to the Property or any part thereof;
and
(v) such tests, investigations and studies shall be at
Purchaser's sole cost and expense, and in the event of any damage to the
Property caused by Purchaser, its agents, engineers, employees, contractors or
surveyors (including, without limitation, pavement, landscaping and surface
damage), Purchaser shall pay the cost incurred by Seller to restore the
Property to the condition existing prior to the performance of such tests,
investigations or studies.
Purchaser shall defend, indemnify and hold Seller and any affiliate or parent
of Seller, and all shareholders, employees, officers, directors and partners of
Seller or Seller's affiliate or parent (hereinafter collectively referred to as
"Affiliates of Seller") harmless from any and all liability, cost and expense
(including without limitation, reasonable attorneys' fees, court costs and
costs of appeal) suffered or incurred by Seller or Affiliates of Seller for
injury to persons or property caused by Purchaser's investigations, tests,
studies and inspections of the Property. Purchaser shall undertake its
obligation to defend set forth in the preceding sentence using attorneys
selected by Purchaser and reasonably acceptable to Seller. Prior to commencing
any such tests, studies and investigations, Purchaser shall furnish to Seller a
certificate of insurance evidencing comprehensive general public liability
insurance insuring the person, firm or entity performing such tests, studies
and investigations and listing Seller and Purchaser as additional insureds
thereunder.
If Purchaser, in its sole discretion, is dissatisfied with the results of
the tests, studies or investigations performed or information received pursuant
to this Agreement, or otherwise, Purchaser shall have the right to terminate
this Agreement by giving written notice of such termination to Seller at any
time prior to the expiration of the Inspection Period. If written notice is
not given by Purchaser pursuant to this Paragraph 7.1 prior to the expiration
of the Inspection Period, then the right of Purchaser to terminate this
Agreement pursuant to this Paragraph 7.1 shall be waived. If Purchaser
terminates this Agreement by written notice to Seller prior to the expiration
of the Inspection Period the ▇▇▇▇▇▇▇ Money deposited by Purchaser shall be
immediately paid to Purchaser, together with any interest earned thereon, less
the sum of One Hundred and No/100 Dollars ($100.00), which shall be paid to
Seller in consideration for such period of inspection, and neither Purchaser
nor Seller shall have any right, obligation or liability under this Agreement,
except for those covenants and obligations which expressly survive the
termination of this Agreement. Notwithstanding anything contained herein to
the contrary, Purchaser's obligation to indemnify Seller and pay the costs of
restoring the Property, as more fully set forth in this Paragraph 7.1, shall
survive Closing and recording of the Deed and the termination of this
Agreement, as applicable.
7.2 Except for the express representations and warranties of Seller set
forth herein, Purchaser acknowledges and agrees that it will be purchasing the
Property and the Personal Property based solely upon its inspections and
investigations of the Property and the Personal Property, and that Purchaser
will be purchasing the Property and the Personal Property "AS IS" and "WITH ALL
FAULTS", based upon the condition of the Property and the Personal Property as
of the date of this Agreement, ordinary wear and tear and loss by fire or other
casualty or condemnation (which is governed by Paragraph 6 above) excepted and
that Seller makes no warranty or representation, express or implied, or arising
by operation of law, including, but not limited to, any warranty of condition,
habitability, merchantability or fitness for a particular purpose, in respect
of the Property. Without limiting the foregoing, Purchaser acknowledges that,
except as may otherwise be specifically set forth elsewhere in this Agreement,
neither Seller nor its consultants, brokers or agents have made any
representations or warranties of any kind upon which Purchaser is relying as to
any matters concerning the Property or the Personal Property, including, but
not limited to: (i) the condition of the Land or any improvements comprising
the Property; (ii) the existence or non-existence of any pollutant, toxic waste
and/or any hazardous materials or substances; (iii) economic projections or
market studies concerning the Property, or the income to be derived from the
Property; (iv) any development rights, taxes, bonds, covenants, conditions and
restrictions affecting the Property; (v) the nature and extent of any right of
way, lease, lien, encumbrance, license, reservation or other title matter;
(vi) water or water rights, topography, geology, drainage, soil or subsoil of
the Property; (vii) the utilities serving the Property; (viii) the suitability
of the Property for any and all activities and uses which Purchaser may elect
to conduct thereon; or (ix) the compliance of the Property with any zoning,
environmental, building or other laws, rules or regulations affecting the
Property. Seller makes no representation or warranty that the Property
complies with the Americans with Disabilities Act or any fire code or building
code. Except as expressly set forth below, Seller makes no representations or
warranties concerning hazardous materials or substances. With the exception of
any liability under any express representation of Seller set forth herein,
Purchaser hereby releases Seller and the Affiliates of Seller from any and all
liability in connection with any claims which Purchaser may have against Seller
or the Affiliates of Seller, and Purchaser hereby agrees not to assert any
claims for contribution, cost recovery or otherwise, against Seller or the
Affiliates of Seller, relating directly or indirectly to the existence of
asbestos or hazardous materials or substances on, or environmental conditions
of, the Property, whether known or unknown. As used herein, the term
"hazardous materials or substances" means (i) hazardous wastes, hazardous
substances, hazardous constituents, toxic substances or related materials,
whether solids, liquids or gases, including but not limited to substances
defined as "hazardous wastes," "hazardous substances," "toxic substances,"
"pollutants, "contaminants," "radioactive materials," or other similar
designations in, or otherwise subject to regulation under, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq.; the Toxic Substance Control Act, 15 U.S.C. Section
2601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section
1802; the Resource Conservation and Recovery Act, 42 U.S.C. Section 9601. et
seq.; the Clean Water Act, 33 U.S.C. Section 1251; the Safe Drinking Water Act,
42 U.S.C. Section 300f et seq; the Clean Air Act, 42 U.S.C. Section 7401 et
seq.; and in any permits, licenses, approvals, plans, rules, regulations or
ordinances adopted, or other criteria and guidelines promulgated pursuant to
the preceding laws or other similar federal, state or local laws, regulations,
rules or ordinance now or hereafter in effect relating to environmental matters
(collectively, "Environmental Laws"); and (ii) any other substances,
constituents or wastes subject to any applicable federal, state or local law,
regulation or ordinance, including any Environmental Law, now or hereafter in
effect, including but not limited to (A) petroleum, (B) refined petroleum
products, (C) waste oil, (D) waste aviation or motor vehicle fuel and (E)
asbestos. Purchaser acknowledges that having been given the opportunity to
inspect the Property, Purchaser is relying solely on its own investigation of
the Property and not on any information provided or to be provided by Seller.
Purchaser further acknowledges that the information provided and to be provided
with respect to the Property was obtained from a variety of sources, and that
Seller (x) has not made any independent investigation or verification of such
information and (y) makes no representations as to the accuracy or completeness
of such information, except as provided herein.
7.3 Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Except for the express representations
and warranties of Seller set forth herein, Seller makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller and the Affiliates of Seller from
any liability with respect to such historical information.
7.4 Seller has provided to Purchaser the reports and materials shown on
Exhibit O attached hereto and made a part hereof ("Existing Reports"). Seller
makes no representation or warranty concerning the accuracy or completeness of
the Existing Reports. Purchaser hereby releases Seller and the Affiliates of
Seller from any liability whatsoever with respect to the Existing Reports,
including, without limitation, the matters set forth in the Existing Reports,
and the accuracy and/or completeness of the Existing Reports. Furthermore,
Purchaser acknowledges that it will be purchasing the Property with all faults
disclosed in the Existing Reports.
7.5 Notwithstanding anything contained herein to the contrary, the
acknowledgements, agreements, waivers and releases of Purchaser set forth in
this Paragraph 7 shall survive Closing and recording of the Deed and the
termination of this Agreement as applicable.
8. CLOSING. The closing of this transaction ("Closing") shall be on
January 23, 1997 ("Closing Date"), at the Philadelphia office of Purchaser's
attorneys, or at Seller's option, at the office of the Title Insurer in
Philadelphia, Pennsylvania, at which ▇▇▇▇ ▇▇▇▇▇▇ shall deliver possession of
the Property to Purchaser. This transaction shall be closed in accordance with
the provisions of a deed and money escrow agreement to be entered into among
Purchaser, Seller and the Title Insurer. All joint order ▇▇▇▇▇▇▇ Money escrow
fees (exclusive of investment fees which will be paid by Purchaser) and all
deed and money escrow fees (including, so-called "New York style" closing fees)
shall be shared equally by Purchaser and Seller.
9. CLOSING DOCUMENTS.
9.1 On the Closing Date, Seller and Purchaser shall execute and deliver
to one another a joint closing statement. In addition, Purchaser shall deliver
to Seller the balance of the Purchase Price, an assumption of the documents set
forth in Paragraph 9.2.3 and 9.2.4, counterparts of any transfer tax
declarations and such other documents as may be reasonably required by the
Title Insurer and not inconsistent with the terms of this Agreement in order to
consummate the transaction as set forth in this Agreement.
9.2 On the Closing Date, Seller shall deliver to Purchaser the following:
9.2.1 the Deed, subject to Permitted Exceptions and those Unpermitted
Exceptions waived by Purchaser in writing or not objected to by Purchaser in
accordance with Paragraph 5.1 hereof;
9.2.2 a special warranty ▇▇▇▇ of sale conveying the Personal Property
(in the form of Exhibit H attached hereto);
9.2.3 assignment and assumption (with respect to periods from and
after the Closing) of intangible property (in the form attached hereto as
Exhibit I);
9.2.4 an assignment and assumption (with respect to periods from and
after the Closing) of Leases and security deposits (in the form attached hereto
as Exhibit J);
9.2.5 non-foreign affidavit (in the form of Exhibit K attached
hereto);
9.2.6 originals, and/or copies (if originals are not available) of,
the Leases in Seller's possession (unless Seller elects to leave such documents
in the on-site management office);
9.2.7 all documents and instruments reasonably required by the Title
Insurer to issue the Title Policy;
9.2.8 possession of the Property to Purchaser, subject to the Leases
and the Permitted Exceptions;
9.2.9 evidence of the termination of the management agreement between
Seller and Insignia Commercial Group, Inc., along with a lien waiver executed
by the property manager, if applicable;
9.2.10 notice to the tenants of the Property of the transfer of title
and assumption by Purchaser of the landlord's obligation under the Leases and
the obligation to refund the refundable security deposits (in the form of
Exhibit L);
9.2.11 an updated rent roll certified by Seller to be true and
correct, subject to the provisions of Paragraph 17.1 and Paragraph 18 hereof;
9.2.12 a Broker's Lien Waiver signed by Insignia Mortgage and
Investment Company ("Insignia"), if required by the Title Insurer;
9.2.13 an Owner's Title Affidavit or ALTA extended coverage statement
in form reasonably acceptable to Seller and Title Insurer;
9.2.14 such formative and authorization documents of Seller as may be
reasonably required by Title Insurer;
9.2.15 copies of all books and records as may be necessary to
calculate tenant escalations and reconciliations (unless Seller elects to leave
such documents in the on-site management office);
9.2.16 Tenant Certificates as required by Paragraph 10 hereof to the
extent the same have been obtained by Seller;
9.2.17 evidence of Seller's authority to enter into the transactions
contemplated hereby; and
9.2.18 a Certificate of Seller affirming representations and
warranties as of the Closing Date, with appropriate modifications to cover any
matters related to any new Leases entered into after the date hereof in
accordance with Paragraph 12 hereof.
10. ESTOPPEL CERTIFICATES. Seller agrees to use reasonable efforts to obtain
tenant estoppel certificates in the form of Exhibit M ("Tenant Certificates")
from each tenant occupying space within the Property. Purchaser's obligation
to close the transaction contemplated herein is contingent upon the delivery to
Purchaser without any Qualification (hereafter defined) of (i) a Tenant
Certificate from each Major Tenant (hereinafter defined); and (ii) Tenant
Certificates from tenants occupying at least 50% of the remaining occupied
square footage of the Property (exclusive of the square footage occupied by
Major Tenants). As used herein, "Qualification" means any information which
has a material, adverse effect on (i) the use or value of the Property or (ii)
the obligations of the tenant or the rights of the landlord under any Lease, to
the extent such information is not disclosed on the Rent Roll attached hereto
as Exhibit C or in the copies of the Leases delivered to Purchaser.
Notwithstanding the foregoing, a tenant's deletion or modification of
paragraphs 18 and/or 19 of any Tenant Certificate shall not be deemed a
Qualification.
As used herein, "Major Tenant" means each of Walnut Associates, Levlane
Advertising, Inc., Strategic Marketing Corp., Corestates Bank, N.A., successor
in interest to Germantown Savings Bank, Citybel Corporation and Meredian
Properties.
11. SERVICE CONTRACTS. Prior to the expiration of the Inspection Period,
Purchaser shall notify Seller in writing of all Service Contracts which
Purchaser wishes to assume at Closing ("Assumed Contracts"). All other Service
Contracts shall be terminated by Seller. Seller shall provide notice of such
termination to each contractor under the Service Contracts which are not
Assumed Contracts on the earlier of (i) the waiver by Purchaser of all
conditions to the Purchaser's obligations to close or (ii) the Closing Date.
Seller has advised Purchaser that the Service Contracts are terminable on 30
days prior written notice. With respect to any Service Contracts which are not
Assumed Contracts, Purchaser and Seller shall prorate the payments due under
such Service Contracts as of the Closing Date, with the Purchaser being
responsible for its pro rata share of any payments attributable to the period
after the Closing Date and prior to the termination date of such Service
Contracts. On the Closing Date, Seller shall assign the Assumed Contracts to
Purchaser, and Purchaser shall assume in writing responsibility of the
obligations arising from and after the Closing Date under the Assumed
Contracts. Seller shall use reasonable efforts to obtain any required consent
with respect to the assignment of the Assumed Contracts; provided, however,
that Seller's inability to obtain such approval shall not be a default
hereunder or a condition precedent to Purchaser's obligations to close
hereunder.
12. LEASING OF PROPERTY. Prior to the expiration of the Inspection Period,
Seller shall deliver to Purchaser a copy of any new leases or modifications or
extensions executed by Seller from and including the date hereof through the
end of the Inspection Period, together with information as to any tenant
improvement obligations and leasing commissions, and such other information as
Purchaser may reasonably require. Such new leases or lease modifications and
extensions shall be included in the definition of Leases and Purchaser shall be
responsible to pay for all leasing commissions, tenant improvement costs or
other costs and expenses (including reasonable attorneys' fees) incurred by
Seller with respect to such leases. Notwithstanding anything herein to the
contrary, Purchaser agrees that Purchaser's obligation to pay leasing costs and
expenses as described in the immediately preceeding sentence, shall also apply
to the leases executed prior to the date hereof to the extent listed on Exhibit
Q hereof. After the expiration of the Inspection Period, Seller shall not
enter into any lease for any portion of the Property or any modification,
extension or amendment to any Lease without first obtaining the prior consent
of Purchaser, which consent shall not be unreasonably withheld. If Purchaser
has not responded within five (5) business days of receipt of a request by
Seller, Purchaser's consent shall be deemed given. If Purchaser closes the
transaction contemplated by this Agreement, Purchaser shall be responsible to
pay for all leasing commission, tenant improvement costs or other costs and
expenses (including reasonable attorneys' fees) incurred by Seller with respect
to any such lease approved by Purchaser. Seller agrees to pay any outstanding
brokerage commissions now or hereafter due or payable with respect to the
existing term of any Lease.
13. DEFAULT BY PURCHASER. ALL ▇▇▇▇▇▇▇ MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF PURCHASER OF ITS OBLIGATION
TO CLOSE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, SELLER SHALL RETAIN
ALL OF THE ▇▇▇▇▇▇▇ MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT WITH
RESPECT TO DAMAGES OR ANY OTHER REMEDY, EXCEPT FOR SELLER'S REMEDIES FOR A
BREACH OF THOSE COVENANTS AND OBLIGATIONS OF PURCHASER WHICH EXPRESSLY SURVIVE
TERMINATION OF THIS AGREEMENT. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL
DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY DIFFICULT
OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE
PARTIES ACKNOWLEDGE THAT THE ▇▇▇▇▇▇▇ MONEY HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES FOR A
BREACH OF PURCHASER'S OBLIGATION TO CLOSE.
14. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL ▇▇▇▇▇▇▇ MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, EXCEPT THAT PURCHASER SHALL ALSO
HAVE THE RIGHT TO REIMBURSEMENT FROM SELLER FOR ITS ACTUAL, DOCUMENTED THIRD
PARTY EXPENSES (NOT TO EXCEED $50,000 IN ANY EVENT) INCURRED IN THE NEGOTIATION
OF THIS AGREEMENT AND THE PERFORMANCE OF ITS DUE DILIGENCE HEREUNDER. UPON THE
RETURN OF THE ▇▇▇▇▇▇▇ MONEY AND THE REIMBURSEMENT BY SELLER FOR OUT OF POCKET
COSTS AS PROVIDED ABOVE, THIS AGREEMENT SHALL TERMINATE WITHOUT FURTHER ACTION
OF THE PARTIES AND THE PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT
LAW OR IN EQUITY, EXCEPT FOR THOSE COVENANTS AND OBLIGATIONS WHICH EXPRESSLY
SURVIVE TERMINATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, IF SELLER'S DEFAULT RESULTS FROM (i) ITS (AND NOT AN
UNRELATED THIRD PARTY'S) AFFIRMATIVE ACTION DONE WITH THE INTENTION OF
PREVENTING THE SALE WHICH RESULTS IN THE RECORDING OF AN ENCUMBRANCE AGAINST
THE PROPERTY AND WHICH GIVES RISE TO PURCHASER'S RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO PARAGRAPH 5 HEREOF; (ii) ITS FAILURE TO EXPEND UP TO
$25,000 IF (a) SELLER IS ABLE TO BOND OVER, CURE OR REMOVE A MINOR UNPERMITTED
EXCEPTION FOR A COST NOT TO EXCEED $25,000 OR (b) THE TITLE INSURER IS WILLING
TO INSURE OVER A MINOR UNPERMITTED EXCEPTION FOR A COST NOT TO EXCEED $25,000
IN ACCORDANCE WITH THE TERMS HEREOF OR (iii) ITS REFUSAL TO DELIVER THE DEED,
THEN PURCHASER WILL BE ENTITLED TO ▇▇▇ FOR SPECIFIC PERFORMANCE. IN NO EVENT
SHALL (i) SELLER BE LIABLE FOR ANY ACTUAL, PUNITIVE, SPECULATIVE OR
CONSEQUENTIAL DAMAGES RESULTING FROM ANY DEFAULT BY SELLER, OR (ii) SELLER'S
LIABILITY UNDER ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT, PRORATION,
REPRORATION OBLIGATION OR INDEMNITY MADE HEREUNDER OR UNDER ANY CLOSING
DOCUMENTS EXCEED $500,000 IN THE AGGREGATE ("SELLER'S MAXIMUM LIABILITY");
PROVIDED, HOWEVER, THAT THE LIMITATIONS ON LIABILITY PROVIDED HEREIN SHALL NOT
APPLY TO ANY DAMAGES INCURRED BY PURCHASER AS A RESULT OF THE ACTUAL FRAUDULENT
CONDUCT OF SELLER.
15. PRORATIONS.
15.1 Water and other utility charges; fuels; prepaid operating expenses;
real and personal property taxes prorated on a "net" basis (i.e. adjusted for
all tenants' liabilities, if any, for such items); tenant reimbursement
obligations for operating expenses paid by Seller for the period prior to the
Closing Date; unpaid operating expenses for the period prior to the Closing
Date prorated on a "net" basis, as set forth above; and all other items of
expense and income shall be adjusted ratably as of 12:01 a.m. on the Closing
Date ("Proration Date"). Seller shall be entitled to a credit for all
transferable utility deposits transferred hereunder, if any, and all other
utility deposits, if any, may be withdrawn by and refunded to Seller and
Purchaser shall make its own replacement deposits for utilities as may be
required by the respective utilities involved. Assessments, excluding regular
ad valorem real estate taxes, payable in installments which are due prior to
the Closing Date shall be paid by Seller. Assessments, excluding regular ad
valorem real estate taxes, payable in installments which are due subsequent to
the Closing Date shall be paid by Purchaser. If the amount of any of the items
to be prorated is not then ascertainable, the adjustments thereof shall be on
the basis of the most recent ascertainable data. If any ongoing real estate
tax contest has not been finalized as of the Closing Date, Purchaser and Seller
agree that the tax ▇▇▇▇ existing prior to the contest, shall be the most recent
data for the tax year being contested and (i) Purchaser agrees to re-prorate
such amount as it relates to the real estate tax proration for the current tax
year to the extent such tax contest is successful. All other prorations will
be final except as provided in Paragraphs 15.2, 15.3 and 15.4.
15.2 All base rent, percentage rent and other common area maintenance, tax
and insurance charges actually paid by tenants under the Leases and all other
items of income actually received from the operation of the Property (all such
charges other than base rent, "Additional Rent") shall be prorated as of the
Proration Date. To the extent the Leases provide for the adjustment of
previously paid estimates of Additional Rent on a date after the Proration
Date, Seller shall be entitled to receive, or shall be responsible to pay, as
the case may be, its pro rata share of any such adjusted amounts which are
applicable to periods ending prior to the Proration Date. If the Additional
Rent due from tenants for 1996 (exclusive of Additional Rent due from
Corestates Bank) is less than $20,000, Seller shall receive a credit from
Purchaser at Closing for such amount due, and such credit shall be final,
irrespective of the amounts actually collected by Purchaser from tenants). If
the Additional Rent due from tenants for 1996 is greater than $20,000
(exclusive of Additional Rent due from Corestates Bank), Purchaser's credit to
Seller for amounts in excess of $20,000 shall be escrowed at Closing, and
disbursed to Seller based on the amount actually collected from tenants.
Notwithstanding the foregoing, Purchaser shall not be obligated to credit
Seller at Closing for any Additional Rent due from Corestates Bank in excess of
$20,000 and any amount due from Corestates Bank in excess of $20,000 shall be
escrowed and disbursed in the same manner provided in the foregoing sentence
with respect to Additional Rent due from other tenants. Purchaser shall
deliver to each tenant of the Property (with a copy of each to Seller) a final
reconciliation of Additional Rent due for calendar year 1996 on or before
March 15, 1996. Purchaser shall use reasonable efforts (without any obligation
to terminate leases or initiate lawsuits) to collect such Additional Rent from
such tenants. On or before June 1, 1996, Purchaser shall provide Seller with a
reconciliation of the amount of all Additional Rent collected from tenants for
calendar year 1996, and the amount so collected shall be promptly disbursed
from the aforementioned escrow to Seller (or paid by Purchaser to Seller from
amounts collected, if the escrowed amount is less than the full amount of
Additional Rent collected for calendar year 1996). Notwithstanding anything to
the contrary herein, the provisions of this Paragraph shall survive the
Closing.
15.3 All basic rent paid following the Closing Date by any tenant of the
Property who is indebted under a Lease for basic rent for any period prior to
the Proration Date in an amount greater than the amount of all current basic
rent owed by said tenant to Purchaser shall be deemed a "Post-Closing Receipt"
until such time as all such indebtedness is paid in full. Within ten (10) days
following each receipt by Purchaser of a Post-Closing Receipt, Purchaser shall
pay such Post-Closing Receipt to Seller. Purchaser shall use its reasonable,
good faith efforts, at no additional cost or expense to Purchaser, to collect
all amounts which, upon collection, would constitute Post-Closing Receipts
hereunder. Within 180 days after the Closing Date, Purchaser shall deliver to
Seller a reconciliation statement of Post-Closing Receipts through the first
150 days after the Closing Date. Upon the delivery of the Post-Closing
Receipts reconciliation, Purchaser shall deliver to Seller any Post-Closing
Receipts owing to Seller and not previously delivered to Seller in accordance
with the terms hereof. Purchaser shall provide Seller with any information
reasonably necessary to verify the accuracy of the Post-Closing Receipts
reconciliation statement and upon the verification of additional funds owing to
Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts.
This Paragraph 15.3 of this Agreement shall survive the Closing and the
delivery and recording of the Deed.
15.4 All refunds in connection with any ongoing real estate tax protests
for the Property initiated by Seller prior to the Closing shall remain the
property of Seller and are not being assigned by Seller to Purchaser pursuant
to this Agreement. In the event any such refunds are paid to Purchaser,
Purchaser agrees to promptly remit all such sums to Seller. Purchaser agrees,
at no cost or expense to Purchaser, to execute any documents reasonably
requested by Seller in connection with such tax protests.
16. BROKER. The parties hereto represent and warrant that no broker commission
or finder fee is due and payable in connection with this transaction, by reason
of their respective actions, other than to Insignia (to be paid by Seller).
Seller's commission to Insignia shall only be payable out of the proceeds of
the sale of the Property in the event the transaction set forth herein closes.
Purchaser and Seller shall indemnify, defend and hold the other party hereto
harmless from any claim whatsoever (including without limitation, reasonable
attorneys' fees, court costs and costs of appeal) from anyone claiming by or
through the indemnifying party any fee, commission or compensation on account
of this Agreement, its negotiation or the sale hereby contemplated other than
to Insignia. Seller shall indemnify, defend and hold Purchaser harmless from
any claim (including, without limitation, reasonable attorneys' fees, court
costs and costs of appeal) for any claim by Insignia for any fee, commission or
compensation on account of this Agreement, its negotiation or the sale hereby
contemplated, other than any claim by Insignia on account of any agreement or
negotiations between Insignia and Purchaser. The indemnifying party shall
undertake its obligations set forth in this Paragraph 16 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 16 will survive the Closing and
delivery of the Deed.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS.
17.1 Any reference herein to Seller's knowledge or notice of any matter or
thing shall only mean such knowledge or notice that has actually been received
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Seller's Representatives"), and any
representation or warranty of Seller is based upon those matters of which
Seller's Representatives have actual knowledge. Prior to the execution of this
Agreement by Seller, Seller's Representatives shall provide a copy of this
Agreement to ▇▇▇▇▇ ▇▇▇▇▇▇▇, Seller's on-site property manager, and Seller shall
review with ▇▇. ▇▇▇▇▇▇▇ the accuracy of each of the representations and
warranties made herein by Seller. Any knowledge or notice given, had or
received by any of Seller's agents, servants or employees shall not be imputed
to Seller, the general partner or limited partners of Seller, the subpartners
of the general partner or limited partners of Seller or Seller's
Representatives.
17.2 Subject to the limitations set forth in Paragraph 17.1, Seller hereby
makes the following representations and warranties, which representations and
warranties are made to Seller's knowledge and which shall survive Closing until
December 1, 1997:
(a) Except as listed on Exhibit N, Seller has no knowledge of any
pending or threatened litigation, claim, condemnation, cause of action or
administrative proceeding concerning the Property and Seller has received no
governmental notice, not heretofore corrected, alleging that the Property or
its current uses are in violation of any zoning, building, health, traffic,
environmental, flood control or other applicable rules, regulations, codes,
ordinances, or statutes of any local, state and federal authorities and any
other governmental authority asserting jurisdiction over the Property.
(b) Seller has the power to execute this Agreement and consummate
the transactions contemplated herein.
(c) The rent rolls attached hereto as Exhibit C and updated as of
the Closing Date are accurate in all material respects as of the date set forth
therein.
(d) Seller has not given or suffered any assignment, pledge or
encumbrance with respect to any of the Leases or its interests thereunder.
(e) The list of Service Contracts attached hereto as Exhibit D is
accurate as of the date hereof and to Seller's knowledge, except as disclosed
to Purchaser in writing, there are no agreements or contracts affecting the
Property (including, without limitation, any management, leasing, services or
maintenance agreements), which are not terminable by the Seller without further
liability, upon not more than 30 days' prior written notice.
(f) Except as listed on Exhibit N, Seller has received no written
notice or claim from any governmental authority having jurisdiction over the
Property relating to an uncured breach or violation of any Environmental Laws
or any other laws in connection with the Property.
(g) Except as disclosed on Exhibit N, Seller has received no notice
of any uncured landlord default from any tenant in connection with any Lease.
(h) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller will
furnish to Purchaser, at Closing, an affidavit in form satisfactory to
Purchaser confirming the same.
(i) The execution and delivery of this Agreement, and consummation
of the transaction described in this Agreement, does not and will not
constitute a default under any contract, lease, or agreement to which Seller is
a party.
(j) Seller has received no notice of violation or notice of
revocation of any licenses, permits, variances, approvals, authorizations,
easements, and rights of way required for the use and operation of the Property
or for vehicular and pedestrian ingress and egress to the Property.
(k) Seller has entered into no outstanding written or oral contracts
with regard to construction of improvements on the Property, which will not be
fully paid for as of Closing.
(l) There are no options or rights of first refusal to acquire any
interest in the Property not set forth in the Leases delivered to Purchaser or
in documents of record disclosed in the title commitment.
(m) Seller has no knowledge that any tenant is currently the subject
of any bankruptcy or insolvency proceeding under state or federal law, or that
any tenant has notified Seller of its intent to terminate its lease prior to
expiration of the term of such lease.
(n) With the exception of any commission costs which are the
responsibility of Purchaser in accordance with Paragraph 12 hereof, all leasing
commissions due and payable as of the date hereof under existing Leases
(exclusive of commissions related to any unexercised options to extend, expand
or renew or related to other events which have not occurred prior to the date
hereof) have been paid or will have been paid on or before Closing. Attached
hereto as Exhibit P is a schedule listing all leasing and brokerage agreements
relating to the Property entered into by Seller (copies of which shall be
delivered to Purchaser prior to the expiration of the Inspection Period).
17.3 Purchaser hereby represents and warrants to Seller that Purchaser has
the full right, power and authority to execute this Agreement and consummate
the transactions contemplated herein.
17.4 Seller covenants to (a) operate, maintain and manage the Property in
the same manner that it has managed, maintained and operated the Property
during the period of Seller's ownership, subject to reasonable wear and tear
and casualty (b) to reserve from any distribution of net proceeds of sale to
its partners an amount equal to Seller's Maximum Liability until the expiration
of the Survival Period (hereafter defined). Seller shall remain liable for any
liability related to the existing claim filed by ▇▇▇▇ ▇▇▇▇▇▇▇▇ in the
proceedings pending in the Court of Common Pleas as disclosed on Exhibit N
attached hereto.
17.5 The representations, warranties and covenants of Seller set forth
herein and in any Closing Document shall survive Closing until December 1, 1997
("Survival Period"). All rights of Purchaser hereunder with respect to any
such surviving representation, warranty or covenant shall be deemed waived if
Purchaser does not, by notice to Seller, advise Seller of any alleged breach
of representation, warranty or covenant prior to the expiration of the Survival
Period. Notwithstanding anything herein to the contrary, Seller's liability
under any representation, warranty or covenant made hereunder or in any Closing
Document shall in no event exceed Seller's Maximum Liability.
18. LIMITATION OF LIABILITY. None of Seller's beneficiaries, shareholders,
partners, officers, agents, employees, heirs, successors or assigns shall have
any personal liability of any kind or nature for or by reason of any matter or
thing whatsoever under, in connection with, arising out of or in any way
related to this Agreement and the transactions contemplated herein, and
Purchaser hereby waives for itself and anyone who may claim by, through or
under Purchaser any and all rights to ▇▇▇ or recover on account of any such
alleged personal liability.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: WRGSB Associates
▇/▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
TO PURCHASER: Berwind Property Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇
with copies to: Berwind Property Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be deemed
to be delivered or made on the next business day if sent by overnight courier,
or the same day as given if sent via facsimile transmission and received by
5:00 p.m. Chicago time, or on the fourth (4th) business day after the same is
deposited in the United States Mail as registered or certified mail, addressed
as above provided, with postage thereon fully prepaid. Any such notice, demand
or document not given, delivered or made by registered or certified mail or by
overnight courier or by facsimile transmission as aforesaid shall be deemed to
be given, delivered or made upon receipt of the same by the party to whom the
same is to be given, delivered or made. Copies of all notices shall be served
upon the Escrow Agent. All time periods for responses by either party set forth
in this Agreement shall commence upon the receipt of notice as set forth
hereinabove.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied by the ▇▇▇▇▇▇▇ Money payable
to the escrow agent set forth in the Escrow Agreement. Seller will forward one
(1) copy of the executed Agreement to Purchaser and will forward to the escrow
agent the ▇▇▇▇▇▇▇ Money, along with three (3) copies of the Escrow Agreement
signed by the parties with a direction to execute two (2) copies of the Escrow
Agreement and deliver a fully executed copy to each of Purchaser and Seller.
21. MISCELLANEOUS
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions hereof shall extend to and be
obligatory upon and inure to the benefit of the respective heirs, legatees,
legal representatives, successors and assigns of the parties hereto.
(c) The section and paragraph headings of this Agreement are for
convenience only and in no way define, limit or enlarge the scope or meaning of
the language hereof. The terms "hereby," "herein," "hereof," "hereto,"
"hereunder" and any similar terms used in this Agreement refer to this
Agreement. The term "including" shall not be construed in a limiting nature,
but shall be construed to mean "including, without limitation." Words
importing persons shall include firms, associations, partnerships, trusts,
corporations and other legal entities, including public bodies, as well as
natural persons. Words importing the singular shall include the plural and
vice versa. Words of the masculine gender shall be deemed to include
correlative words of the feminine and neuter genders.
(d) This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations and statements,
oral or written, are merged herein. No representations, warranties,
undertakings or promises (whether oral or written, express or implied), can be
made or have been made by Seller or its agents, representatives or brokers to
Purchaser or any other person unless expressly stated herein. No modification
or amendment of this Agreement or any waiver of any provision hereof shall be
effective unless the same is in writing signed by the party against whom
enforcement of such modification, amendment or waiver is sought.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Pennsylvania. If any of the provisions of this
Agreement or the application thereof to any persons or circumstances shall, to
any extent, be deemed invalid or unenforceable, the remainder of this Agreement
and the application of such provisions to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable shall not be
affected thereby, and every provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(g) The submission by Seller of this Agreement to Purchaser for
examination does not constitute an offer by Seller to sell, or a reservation of
or option to purchase the Property. This Agreement shall not become a contract
until executed and delivered by Purchaser and Seller in the manner set forth
herein.
(h) If Purchaser consists of more than one person or entity, then
each such person or entity executing this Agreement as Purchaser shall be
jointly and severally liable for the obligations of Purchaser hereunder.
(i) Purchaser shall not record this Agreement or any memorandum
hereof, and any such recording shall be a default hereunder.
(j) Prior to Closing, Purchaser and Seller shall jointly prepare and
issue all releases of information relating to the sale of the Property, and any
inquiries regarding the transaction contemplated hereby shall be responded to
only after consultation with the other party hereto.
(k) If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party to
such action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation, attorneys
fees and disbursements and court costs.
(l) This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that the Agreement
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
(m) Purchaser shall not have the right to assign its interest in
this Agreement without the prior written consent of Seller. Any assignment or
transfer of, or attempt to assign or transfer, Purchaser's interest in this
Agreement shall be an act of default hereunder by Purchaser and subject to the
provisions of Paragraph 13 hereof. Notwithstanding the foregoing, Purchaser
may make one (1) assignment of its interest in this Agreement without the
consent of Seller to any entity affiliated with or controlled by Purchaser
("Assignee"), provided that Purchaser remains liable for and the Assignee
assumes the obligations of Purchaser hereunder. If the Assignee petitions or
applies for relief under any bankruptcy laws or is adjudicated as a bankrupt or
insolvent, or if Assignee files any petition, application for relief or
answer-seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future federal, state or other statute, law, code or regulation
relating to bankruptcy, insolvency, or other relief for debtors (collectively,
a "Bankruptcy Filing") on or before the Closing Date, said Bankruptcy Filing
shall be a default under this Agreement and Purchaser shall indemnify Seller
for all costs, attorney's fees and expenses of Seller resulting from Seller's
efforts to obtain the ▇▇▇▇▇▇▇ Money as liquidated damages and to clear title to
the Property with respect to any encumbrance resulting from the Bankruptcy
Filing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PURCHASER:
BERWIND PROPERTY GROUP, INC.,
a Pennsylvania corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Its: Vice President
---------------------------------
SELLER:
WRGSB ASSOCIATES, an Illinois limited
partnership
By: Balcor Equity Partners-I, an Illinois
general partnership, its general
partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Its: Authorized Representative
----------------------------------
Insignia Mortgage & Investment Company ("Broker") executes this Agreement in
its capacity as a real estate broker and acknowledges that the fee or
commission ("Fee") due to it as a result of the transaction described in this
Agreement is the amount as set forth in the listing agreement between Broker
and Seller. Broker also acknowledges that payment of the aforesaid Fee is
conditioned upon the Closing and the receipt of the Purchase Price by Seller.
Broker agrees to deliver a receipt to Seller at the Closing for the Fee and a
release stating that no other fees or commissions are due to Broker from Seller
or Purchaser.
INSIGNIA MORTGAGE & INVESTMENT COMPANY
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
LIST OF EXHIBITS
A. Legal Description
B. Personal Property
C. Leases/Rent Roll
D. Service and Maintenance Contracts
E. Escrow Agreement
F. Copy of Title Commitment
G. Limited Warranty Deed
H. Special Warranty ▇▇▇▇ of Sale
I. Assignment and Assumption of Intangible Property
J. Assignment and Assumption of Leases and Security Deposits
K. FIRPTA
L. Tenant Notice Letter
M. Tenant Estoppel Certificate
N. Disclosures
O. Existing Reports
P. Leasing and Brokerage Agreements
Q. Paragraph 12 Leases