PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
1. IDENTIFICATION OF PARTIES.
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THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this "Agreement") is entered into as of December 4, 1997, by and between
BRANDYWINE REALTY TRUST, a Maryland real estate investment trust
("Purchaser"), and TCW REALTY FUND IV PENNSYLVANIA TRUST, a Pennsylvania
business trust ("Seller").
2. DESCRIPTION OF THE PROPERTY.
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Seller agrees to sell, assign and convey to Purchaser, and Purchaser
agrees to purchase from Seller, all of Seller's right, title and interest in
and to the following:
(a) That certain real property located at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇▇▇, Commonwealth of
Pennsylvania, more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Land"), together with any
improvements located thereon (the "Improvements");
(b) All of Seller's interest as lessor in all leases covering the
Land and Improvements (said leases, together with any and all amendments,
modifications or supplements thereto, are hereinafter referred to
collectively as the "Leases" and are identified on the Schedule of Leases
attached hereto as Exhibit B);
(c) All rights, privileges, easements and appurtenances to the Land
and the Improvements, if any, including, without limitation, all of
Seller's right, title and interest, if any, in and to all mineral and water
rights and all easements, rights-of-way and other appurtenances used or
connected with the beneficial use or enjoyment of the Land and the
Improvements (the Land, the Improvements and all such easements and
appurtenances (including, without limitation, Seller's interest as lessor
under the Leases) are sometimes collectively hereinafter referred to as the
"Real Property");
(d) All personal property and fixtures (if any) owned by Seller and
located on the Real Property (the "Personal Property"); and
(e) All non-exclusive trademarks and trade names (if any) used or
useful in connection with the Real Property, but only to the extent that
the same are not trademarks or trade names of Seller or any of Seller's
affiliated companies (collectively, the "Trade Names"), together with
Seller's interest (if any) in and to any service contracts, guarantees,
licenses, approvals, certificates, permits and warranties relating to the
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Property, to the extent assignable (collectively, the "Intangible
Property"). (The Real Property, the Personal Property, the Trade Names and
the Intangible Property are sometimes collectively hereinafter referred to
as the "Property").
3. THE PURCHASE PRICE.
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The purchase price for the Property is Twenty-Six Million Seven
Hundred Fifty Thousand and no/100s Dollars ($26,750,00.00) (the "Purchase
Price") and shall be paid to Seller by Purchaser at the Closing (as that
term is defined in Section 14 below) as follows:
(a) Within one (1) business day after execution of this Agreement by
all parties, Purchaser shall deposit in escrow with Commonwealth Land Title
Insurance Company ("Escrow Company") an initial ▇▇▇▇▇▇▇ money deposit in
immediately available funds in the amount of Five Hundred Thousand and
no/100s Dollars ($500,000.00) (the "Initial Deposit").
(b) On the same day as the expiration of the Due Diligence Period (as
defined in Section 5(a) below), Purchaser shall deposit in escrow with
Escrow Company an additional ▇▇▇▇▇▇▇ money deposit in immediately available
funds in the amount of Five Hundred Thousand and no/100s Dollars
($500,000.00) (the "Additional Deposit"). The Initial Deposit and the
Additional Deposit are sometimes hereinafter collectively referred to as
the "Deposit." The Deposit paid by Purchaser pursuant to the terms hereof
shall be held by Escrow Company in an interest bearing account insured by
the federal government in an institution as directed by Purchaser and
reasonably acceptable to Seller. If the purchase and sale of the Property
is consummated as contemplated hereunder, the Deposit plus all interest
accrued thereon shall be paid to Seller and credited against the Purchase
Price. If the purchase and sale of the Property is not consummated because
of the failure of any Purchaser's Condition Precedent (as defined in
Section 9 below) or any other reason except for a default under this
Agreement on the part of Purchaser, the Deposit plus all interest accrued
thereon shall be immediately refunded to Purchaser. If the purchase and
sale of the Property is not consummated because of a default under this
Agreement on the part of Purchaser, the Deposit plus all interest accrued
thereon shall be paid to and retained by Seller pursuant to Section 17(b)
below.
(b) The balance of the Purchase Price over and above the amounts paid
by or credited to Purchaser pursuant to Sections 3(a) and (b) above shall
be paid to Seller by wire transfer of immediately available funds at the
Closing, plus or minus all prorations as provided herein.
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4. TITLE.
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(a) Seller ordered from Commonwealth Land Title Insurance Company
("Title Company") a title commitment pertaining to the Real Property (the
"Commitment"), together with copies of all documents relating to the title
exceptions referred to in such Commitment. The Commitment, together with
copies of all documents relating to the title exceptions referred to in
such Commitment, has been delivered to Purchaser.
(b) In the event that Purchaser elects to do so, Purchaser may obtain
an updated survey of the Real Property (the "Survey") prior to the Closing.
A copy of such Survey shall be promptly delivered to Seller and Title
Company. The Survey shall be sufficient to enable Title Company to update
the Commitment to: (i) delete the standard survey exception, (ii) add any
new title exceptions which are revealed by said Survey and an inspection of
the Real Property, and (iii) enable Title Company at the Closing to issue
an owner's policy of title insurance (with mechanic's lien coverage), and
shall be certified to Seller, Purchaser and Title Company. The Survey
shall be at Purchaser's sole cost and expense.
(c) As soon as possible after the execution of this Agreement,
Purchaser shall confer with the Title Company and attempt to resolve title
matters which Purchaser might otherwise disapprove. No later than three
(3) days prior to the expiration of the Due Diligence Period, Purchaser
shall notify Seller ("Purchaser's Disapproval Notice") in writing of any
title exceptions identified in the Commitment which Purchaser reasonably
disapproves. Any exception not disapproved in writing no later than three
(3) days prior to the expiration of the Due Diligence Period shall be
deemed approved by Purchaser, and shall constitute a "Permitted Exception"
hereunder. Purchaser and Seller agree that (i) all non-delinquent property
taxes and assessments, (ii) the rights of the tenants under the Leases,
(iii) all conditions, covenants, restrictions and easements of record which
do not unreasonably interfere with the current use of the Property, and
(iv) all matters created by or on behalf of Purchaser, including, without
limitation, any documents or instruments to be recorded as part of any
financing for the acquisition of the Property by Purchaser, shall
constitute "Permitted Exceptions." Within four (4) days after receipt of
Purchaser's Disapproval Notice, Seller shall notify Purchaser in writing of
any disapproved title exceptions which Seller is unable or unwilling to
cause to be removed or insured against prior to or at Closing and, with
respect to such exceptions, Purchaser then shall elect, by giving written
notice to Seller and Escrow Company within two (2) business days
thereafter, (x) to terminate this Agreement, or (y) to waive its
disapproval of such exceptions, in which case such exceptions shall then be
deemed to be Permitted Exceptions. Purchaser's failure to give such notice
shall be deemed an election to waive the disapproval of any such exception.
If Purchaser elects to terminate this Agreement in accordance with clause
(x) above, the Deposit, plus all interest accrued thereon, shall be
immediately refunded to Purchaser; provided, however, that Purchaser and
Seller each
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shall be responsible for one-half of any title or escrow cancellation fees
("Cancellation Fees").
5. DUE DILIGENCE INSPECTIONS.
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(a) As used in this Agreement, the term "Due Diligence Period" shall
mean the period from the date hereof until 5:00 p.m. Los Angeles time on
December 4, 1997. During the Due Diligence Period, and with reasonable
advance notice to Seller, Purchaser, its agents and representatives shall
be entitled to enter onto the Real Property during reasonable business
hours (subject to the rights of tenants in possession) to review the tenant
files, perform inspections and tests of the Property and the structural and
mechanical systems within any Improvements; provided, however, that in no
event shall (i) such inspections or tests disrupt or disturb the on-going
operation of the Property or the rights of the tenants at the Property, or
(ii) Purchaser or its agents or representatives drill or bore on or through
the surface of the Property without Seller's prior written consent, which
consent may be given or withheld in Seller's sole and absolute discretion.
After making such tests and inspections, Purchaser agrees to promptly
restore the Property to its condition prior to such tests and inspections
(which obligation shall survive the Closing or any termination of this
Agreement). Prior to Purchaser entering the Property to conduct the
inspections and tests described above, Purchaser shall obtain and maintain,
and shall cause each of its contractors and agents to maintain (and shall
deliver to Seller evidence thereof), at Purchaser's sole cost and expense,
general liability insurance, from an insurer reasonably acceptable to
Seller, in the amount of One Million Dollars ($1,000,000) combined single
limit for personal injury and property damage per occurrence, such policies
to name Seller as an additional insured party, which insurance shall
provide coverage against any claim for personal liability or property
damage caused by Purchaser or its agents, employees or contractors in
connection with such inspections and tests. Purchaser agrees to promptly
deliver to Seller copies of all reports, studies and results of tests and
investigations obtained or conducted by Purchaser with respect to the
Property.
(b) Purchaser agrees to keep the Property free from all liens and to
indemnify, defend, and hold harmless Seller, and Seller's officers,
directors, shareholders, beneficiaries, members, partners, agents,
employees and attorneys, and their respective successors and assigns, from
and against all claims, actions, losses, liabilities, damages, costs and
expenses (including, but not limited to, attorneys' fees and costs)
incurred, suffered by, or claimed against Seller by reason of any damage to
the Property or injury to persons caused by Purchaser and/or its agents,
employees or contractors in exercising its rights under this Section 5.
This indemnity shall survive the Closing or any termination of this
Agreement.
(c) Seller shall deliver within three (3) days after execution of
this Agreement (or has previously delivered) to Purchaser copies of the
documents listed in Exhibit C relating to the Property (to the extent the
same are in Seller's possession or control),
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subject to the confidentiality provisions of this Agreement, and the terms
of an Acknowledgment and Disclaimer in the form attached hereto as Annex 1,
which Purchaser shall execute and deliver to Seller together with
Purchaser's executed copy of this Agreement. Purchaser acknowledges and
agrees that the foregoing deliveries will be made by Seller to accommodate
and facilitate Purchaser's investigations relating to the Property, and
that, except as expressly set forth herein, Seller makes no representations
or warranties of any kind regarding the accuracy or thoroughness of the
information contained in the materials delivered to Purchaser.
(d) During the Due Diligence Period and with reasonable advance
notice to Seller, Purchaser, its agents and representatives shall be
entitled to inspect, during Seller's regular business hours, any other
material documents relating to the Property (if any) in Seller's possession
(provided, however, that, except as expressly set forth herein, Seller
makes no representations or warranties of any kind regarding the accuracy
or thoroughness of the information contained in such documents), excluding,
however, Seller's internal appraisals and economic evaluations of the
Property and reports regarding the Property prepared by Seller, Trust
Company of the West, Westmark Realty Advisors L.L.C. and/or TCW Realty
Advisors solely for internal use or for the information of the investors in
Seller.
(e) Purchaser may at any time during the Due Diligence Period
terminate this Agreement in its sole and absolute discretion, by sending to
Seller and Escrow Company written notice indicating Purchaser's election to
so terminate the Agreement. If Purchaser terminates this Agreement during
the Due Diligence Period, the Deposit, plus all interest accrued thereon,
shall be immediately refunded to Purchaser; provided, however, that
Purchaser and Seller each shall be responsible for one-half of any
Cancellation Fees. Purchaser's failure to terminate this Agreement prior
to the expiration of the Due Diligence Period in accordance with the
provisions of this Section 5 shall be deemed approval of the Property and
the matters covered by Purchaser's investigations and inspections thereof
and the only remaining contingencies to Purchaser's obligation to
consummate the transaction contemplated herein shall be Purchaser's
Conditions Precedent as set forth in Section 9(a) below.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller represents and warrants to Purchaser that the following matters
are true and correct as of the execution of this Agreement and will also be true
and correct as of the Closing:
(a) Seller is a business trust, duly organized, validly existing and
in good standing under the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is, and all the documents executed by Seller which
are to be delivered to Purchaser at the Closing will be, duly authorized,
executed, and delivered
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by Seller, and is and will be legal, valid, and binding obligations of
Seller enforceable against Seller in accordance with their respective terms
(except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium and other principles relating to or
limiting the right of contracting parties generally), and does not and will
not violate any provisions of any agreement to which Seller is a party or
to which it is subject.
(c) Except as set forth in the materials delivered to Purchaser
pursuant to Section 5 above or as otherwise disclosed in writing by Seller
to Purchaser prior to the end of the Due Diligence Period, to Seller's
actual knowledge, there are no pending legal proceedings or administrative
actions of any kind or character adversely affecting the Property or
Seller's interest therein.
(d) Except as set forth in the materials delivered to Purchaser
pursuant to Section 5 above, or as otherwise disclosed in writing by Seller
to Purchaser prior to the end of the Due Diligence Period, Seller has
received no written notice from any city, county, state or other government
authority of any violation of any statute, ordinance, regulation, or
administrative or judicial order or holding, whether or not appearing in
public records, with respect to the Property, which violation has not been
corrected.
(e) Except as set forth in the materials delivered to Purchaser
pursuant to Section 5 above, or as otherwise disclosed in writing by Seller
to Purchaser prior to the end of the Due Diligence Period, Seller has
received no written notice from any city, county, state or other government
authority (i) of any order or directive requiring any work of repair,
maintenance or improvement be performed on the Property, or (ii) relating
to defects in the Improvements or relating to noncompliance with any
applicable building code or restriction that has not been corrected, or
relating to any threat of impending condemnation.
(f) Except as set forth in the materials delivered to Purchaser
pursuant to Section 5 above, or as otherwise disclosed in writing by Seller
to Purchaser prior to the end of the Due Diligence Period, Seller has
received no written notice that (i) the Property is in violation of any
federal, state and local laws, ordinances and regulations applicable to the
Property with respect to hazardous or toxic substances or industrial
hygiene (collectively, "Environmental Laws"), which violation has not been
corrected, or (ii) past or current tenants of all or any portion of the
Property have owned, used, generated, manufactured, stored, handled,
released or disposed of any hazardous or toxic substances on the Property
in violation of applicable Environmental Laws. Notwithstanding the
foregoing representations and warranties, the acts, if any, of Seller's
past or current tenants shall not be imputed to Seller.
(g) To Seller's actual knowledge, and except as set forth in the
tenant estoppel certificates delivered to Purchaser pursuant to Section
9(a) below or as otherwise
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specifically disclosed in writing to Purchaser prior to the end of the Due
Diligence Period, (i) the Leases are in full force and effect and have not
been modified, and (ii) there is no current default in the performance of
the obligations of any party under the Leases. Except as disclosed in the
Commitment, there are no outstanding assignments by Seller of Seller's
interest in the Leases. To Seller's actual knowledge, there are no other
leases, service contracts, maintenance agreements or other agreements with
respect to the Property other than those delivered to Purchaser pursuant to
Section 5 hereof.
(h) Exhibit K attached hereto is a complete list of all existing
service, equipment, supply, maintenance and management contracts (including
the current property management agreement and exclusive brokerage or
leasing agreements, which agreements shall be terminated as of the Closing)
with respect to or affecting the Property. Unless otherwise directed by
Purchaser in writing prior to the expiration of the Due Diligence Period
all such other contracts shall not be terminated by the Seller as of the
Closing.
(i) There is no condemnation or eminent domain proceeding pending
with regard to any part of the Property. Seller has received no written
notice from any city, county, state or other government authority relating
to any threat of impending condemnation.
(j) To Seller's actual knowledge, all documentary information
required to be delivered by Seller to Purchaser under this Agreement shall
be true and complete copies of the documents required to be delivered.
(k) There are no employees of Selling working at the Property.
▇▇▇▇▇▇▇ ▇▇▇▇ manages the Property pursuant to an agreement with the Seller
which shall be terminated as of the Closing.
(l) Seller has not granted any person a right of first refusal, right
of first offer, option to purchase or other purchase right with respect to
any of the Property.
(m) Except as set forth in Exhibit L attached hereto or as otherwise
disclosed in writing by Seller to Purchaser prior to the end of the Due
Diligence Period, to Seller's actual knowledge, there are no leasing
commissions, fees or other compensation payable to any broker, leasing
agent or other similar third party with respect to any of the Leases (other
than those that may become due and payable upon the exercise of any option,
extension or renewal of any of the tenants under the Leases, which
commissions, fees or other compensation, to the extent of Seller's actual
knowledge thereof, are also disclosed on Exhibit L). Except as set forth
in Exhibit L attached hereto or as otherwise disclosed in writing by Seller
to Purchaser prior to the end of the Due Diligence Period, to Seller's
actual knowledge, there are no outstanding tenant improvement costs or
allowances which the landlord is responsible for with respect to any of the
Leases.
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(n) To Seller's actual knowledge, the rent roll attached hereto as
Exhibit M is true, correct and complete in all material respects. The rent
roll which Seller shall deliver to Purchaser at the Closing shall, to
Seller's actual knowledge, be true, correct and complete in all material
respects.
As used in this Agreement, the phrase "to Seller's actual
knowledge" or words of similar import shall mean the actual (and not
constructive or imputed) knowledge, without independent investigation
or inquiry, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (and Seller
represents that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is the individual with primary
responsibility for the sale of the Property, and that ▇▇▇▇▇▇ ▇▇▇▇▇▇ is
the individual with the primary responsibility for overseeing the
management and operation of the Property). The express
representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided,
however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of such representations and warranties
shall be commenced and served, if at all, on or before the date which
is six (6) months after the date of the Closing and, if not commenced
and served on or before such date, thereafter shall be void and of no
force or effect. Seller shall have no liability with respect to any
of the foregoing representations and warranties if, prior to the
Closing, Purchaser actually discovers or otherwise learns of
information (from whatever source, including, without limitation, the
tenant estoppel certificates delivered pursuant to Section 9(a) below,
as a result of Purchaser's due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller's
agents and employees) that contradicts any of the foregoing
representations and warranties, or renders any of the foregoing
representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this
Agreement. Purchaser shall be deemed to have actually discovered or
otherwise learned information which was (i) disclosed in writing to
Purchaser by Seller or Seller's agents and employees, (ii) contained
within the tenant estoppel certificates delivered pursuant to Section
9(a) below, (iii) obtained by Purchaser as a result of Purchaser's due
diligence tests, investigations and inspections of the Property,
and/or (iv) delivered to Purchaser pursuant to Section 5.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
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Purchaser represents and warrants to Seller that the following matters
are true and correct as of the execution of this Agreement and will also be true
and correct as of the Closing:
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(a) Purchaser is a real estate investment trust, duly formed, validly
existing and in good standing under the laws of the State of Maryland.
(b) This Agreement is, and all the documents executed by Purchaser
which are to be delivered to Seller at the Closing will be, duly
authorized, executed, and delivered by Purchaser, and is and will be legal,
valid, and binding obligations of Purchaser enforceable against Purchaser
in accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium
and other principles relating to or limiting the right of contracting
parties generally), and does not and will not violate any provisions of any
agreement to which Purchaser is a party or to which it is subject.
(c) That (i) prior to the Closing, Purchaser will have had the
opportunity to investigate all physical and economic aspects of the
Property and to make all inspections and investigations of the Property
which Purchaser deems necessary or desirable to protect its interests in
acquiring the Property, including, without limitation, review of the Leases
(and the rights of the tenants thereunder), building permits, certificates
of occupancy, environmental audits and assessments, toxic reports, surveys,
investigation of land use and development rights, development restrictions
and conditions that are or may be imposed by governmental agencies,
agreements with associations affecting or concerning the Property, the
condition of title, soils and geological reports, engineering and
structural tests, insurance contracts, contracts for work in progress,
marketing studies, cost-to-complete studies, governmental agreements and
approvals, architectural plans and site plans, and (ii) except as otherwise
expressly set forth in this Agreement, neither Seller, nor anyone acting
for or on behalf of Seller, has made any representation, warranty, promise
or statement, express or implied, to Purchaser, or to anyone acting for or
on behalf of Purchaser, concerning the Property or the condition, use or
development thereof. Purchaser further represents and warrants that, in
entering into this Agreement, Purchaser has not relied on any
representation, warranty, promise or statement, express or implied, of
Seller, or anyone acting for or on behalf of Seller, other than as
expressly set forth in this Agreement, and that all matters concerning the
Property have been or shall be independently verified by Purchaser prior to
the Closing, and that Purchaser shall purchase the Property on Purchaser's
own prior investigation and examination of the Property (or Purchaser's
election not to do so); AND THAT, AS A MATERIAL INDUCEMENT TO THE EXECUTION
AND DELIVERY OF THIS AGREEMENT BY
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SELLER, PURCHASER IS PURCHASING THE PROPERTY IN AN "AS IS" PHYSICAL
CONDITION AND IN AN "AS IS" STATE OF REPAIR, WITH ALL FAULTS. Except as
may be set forth in this Agreement, Purchaser waives, and Seller disclaims,
all warranties of any type or kind whatsoever with respect to the Property,
whether express or implied, including, by way of description but not
limitation, those of fitness for a particular purpose and use.
Notwithstanding anything to the contrary herein, Purchaser and Seller
acknowledge that any written disclosures made by Seller prior to the
Closing shall constitute notice to Purchaser of the matter disclosed, and
Seller shall have no further liability thereafter if Purchaser thereafter
consummates the transaction contemplated hereby.
(d) Neither Purchaser nor Brandywine Operating Partnership, L.P.
("BOP"), is an employee benefit plan (a "Plan") subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), nor a
person or entity acting, directly or indirectly, on behalf of any Plan or
using the assets of any Plan to acquire the Property, Purchaser and BOP are
not a "party in interest" (as that term is defined in Section 3(14) of
ERISA) with respect to any Plan that is an investor in Seller (as
identified in Exhibit D attached to this Agreement), and Purchaser's or
BOP's acquisition of the Property will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code.
(e) It is expressly acknowledged by Purchaser that no financing for
this transaction shall be provided by Seller.
8. CONFIDENTIALITY.
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Except as required by law, Purchaser agrees that it shall keep
confidential the information contained in the materials delivered or provided
for inspection by Seller pursuant to Section 5 above and shall not disclose such
information to any third parties, except that Purchaser shall have the right to
provide such information to its lenders, consultants, attorneys and prospective
investors in connection with Purchaser's acquisition of the Property (provided
that Purchaser shall instruct the aforesaid parties to maintain the
confidentiality of such information). If the transaction contemplated by this
Agreement is not consummated for any reason, Purchaser promptly shall return to
Seller, and instruct its representatives, consultants, attorneys, and
prospective investors to return to Seller, all copies and originals of
information and materials previously provided for inspection by Seller to
Purchaser. The provisions of this Section 8 shall survive any termination of
this Agreement. This Section 8 shall cease to apply to
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Purchaser upon the Closing of the purchase and sale contemplated by this
Agreement.
9. CONDITIONS PRECEDENT TO CLOSING.
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(a) The following shall be conditions precedent to Purchaser's
obligation to consummate the purchase and sale transaction contemplated
herein (the "Purchaser's Conditions Precedent"):
(i) Purchaser shall not have terminated this Agreement in
accordance with Section 4, Section 5, Section 16(a) or Section 16(b)
of this Agreement within the time periods described in said Sections.
(ii) Title Company shall stand ready to issue, at the Closing, an
owner's policy of title insurance on the standard owner's form issued
in the Commonwealth of Pennsylvania (the "Title Policy"), insuring
Purchaser's interest in the Real Property, dated the day of the
Closing, with liability in the amount of the Purchase Price, subject
only to the standard exclusions from coverage and the Permitted
Exceptions.
(iii) Purchaser shall have received and reasonably approved,
prior to the Closing, executed estoppel certificates substantially in
the form of Exhibit C hereto from tenants occupying at least eighty
percent (80%) of the leasable space in the Improvements which is
leased as of the date of this Agreement, provided, however, that if
the form of estoppel certificate attached hereto as Exhibit C requests
information in addition to or different than that required to be given
pursuant to a tenant's Lease, this condition will be satisfied for
such tenant(s) if such tenant(s) executes an estoppel certificate in
the form required pursuant to its Lease. If any of the executed
estoppel certificates including, without limitation, those used to
satisfy the percentage requirement set forth in the preceding
sentence, contains new information which is adverse to Purchaser and
which information was not previously disclosed to Purchaser or
delivered to Purchaser pursuant to Section 5 above, Purchaser shall
have the right to terminate this Agreement and the Deposit, plus all
interest accrued thereon, shall be immediately refunded to Purchaser.
If Seller is unable to obtain an estoppel certificate from any tenant,
then, in lieu thereof, Seller shall provide to Purchaser a certificate
pertaining to that tenant covering the same matters that would have
been set forth in the
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tenant's estoppel certificate (and if, after the Closing, Seller
delivers to Purchaser a tenant estoppel certificate from a tenant for
whom Seller executed a Seller's certification at the Closing, then
Seller thereafter shall be released from said certification). Subject
to the preceding sentence, Seller's liability in connection with any
Seller's certificate shall not merge into any instrument or conveyance
delivered at the Closing; provided, however, that any action, suit or
proceeding with respect to the truth, accuracy or completeness of such
certificate shall be commenced and served, if at all, on or before the
date which is six months (6) months after the date of the Closing and,
if not commenced and served on or before such date, thereafter shall
be void and of no force or effect.
(iv) There shall be no material breach of any of Seller's
representations, warranties or covenants set forth in Section 6 and
Section 10, as of the Closing.
(v) Seller shall have delivered to the Escrow Company the items
described in Section 11.
The conditions set forth in this Section 9(a) are solely for the benefit of
Purchaser and may be waived only by Purchaser. Purchaser shall, at all
times prior to the termination of this Agreement, have the right to waive
any of these conditions.
(b) The following shall be conditions precedent to Seller's
obligation to consummate the purchase and sale transaction contemplated
herein (the "Seller's Conditions Precedent"):
(i) Purchaser shall not have terminated this Agreement in
accordance with Section 4, Section 5, Section 16(a) or Section 16(b)
of this Agreement within the time periods described in said Sections.
(ii) Purchaser shall have delivered to Escrow Company, prior to
the Closing, for disbursement as directed hereunder, all cash or other
immediately available funds due from Purchaser in accordance with this
Agreement.
(iii) There shall be no material breach of any of Purchaser's
representations, warranties or covenants set forth in Section 5 and
Section 7, as of the Closing.
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(iv) Purchaser shall have delivered to Escrow Company the items
described in Section 12.
(v) On or before five (5) business days after the execution of
this Agreement, Seller shall have obtained final approval of the
transaction contemplated by this Agreement from Seller's Investment
Committee. If Seller notifies Purchaser in writing that it has not
received said approval or if Seller fails to notify Purchaser of said
approval, this Agreement shall be null and void and the parties shall
have no further obligations or liabilities hereunder except that (i)
any money or documents in escrow shall be returned to the party
depositing the same and (ii) Seller shall be responsible for any
Cancellation Fees and Purchaser's obligation to restore the Property
under Section 5(a), Purchaser's indemnification obligations under
Section 5(b), and Purchaser's confidentiality obligations under
Section 8 shall survive such termination.
(vi) Seller shall have received a fully executed letter in the
form attached hereto as Exhibit D from the broker(s) identified in
Section 18 below.
The conditions set forth in this Section 9(b) are solely for the benefit of
Seller and may be waived only by Seller. Seller shall, at all times prior
to the termination of this Agreement, have the right to waive any of these
conditions.
10. COVENANTS OF SELLER.
-------------------
Seller covenants with Purchaser, as follows:
(a) After the date hereof and prior to the Closing, no part of the
Property, or any interest therein, will be sold, encumbered or otherwise
transferred without Purchaser's consent.
(b) After the date hereof and prior to the Closing, Seller shall not
enter into any new Leases, or amend, modify or extend any existing Leases,
in any case without the prior written consent of Purchaser (which consent
shall not be unreasonably withheld or delayed). If Purchaser consents to
any such new Lease, or to the amendment, modification or extension of any
existing Lease, Purchaser shall be solely responsible for the payment of
all leasing commissions in connection therewith and any tenant improvement
costs or allowance, move-in allowance and any other payment to the tenant
thereunder (whether coming due prior to the Closing
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(if the transaction contemplated by this Agreement closes, in which case
any such amount shall be payable to Seller at the Closing), or coming due
after the Closing). The preceding sentence shall not apply in the event
that the transaction contemplated by this Agreement is not consummated.
Purchaser and Seller agree to allocation of responsibility for the leasing
commissions and the tenant improvement costs or allowances as summarized on
Exhibit L; provided, however, the transaction contemplated by this
Agreement is consummated.
(c) Until the Closing, Seller shall keep the Property insured against
fire, vandalism and other loss, damage and destruction, provided, however,
that Seller's insurance policies shall not be assigned to Purchaser at the
Closing, and Purchaser shall be obligated to obtain its own insurance
coverage from and after the Closing.
(d) Until the Closing, Seller shall operate and maintain the Property
in the manner being operated and maintained on the date of this Agreement.
(e) Except as otherwise agreed or provided herein, Seller shall be
responsible for the payment of contractors, subcontractors or materialmen
retained by Seller to perform work or provide services or materials
relating to the period prior to the Closing.
11. SELLER'S CLOSING DELIVERIES.
---------------------------
At least one (1) business day prior to the Closing, Seller shall
deliver or cause to be delivered to Escrow Company the following:
(a) A Special Warranty Deed executed by Seller, in the form of
Exhibit E attached hereto, conveying the Real Property to Purchaser free
and clear of all claims, liens and encumbrances except the Permitted
Exceptions and matters arising by or through Purchaser (the "Special
Warranty Deed").
(b) A ▇▇▇▇ of Sale executed by Seller, in the form of Exhibit F
attached hereto, conveying to the Purchaser title to the Personal Property,
if any (the "▇▇▇▇ of Sale").
(c) An affidavit in the form of Exhibit G attached hereto, certifying
that Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Code (the "Certificate of Non-Foreign Status").
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(d) A General Assignment executed by Seller, in the form of Exhibit H
attached hereto, assigning to Purchaser the approved service contracts and
any warranties, guaranties and indemnities relating to the Property, to the
extent that such items are assignable (the "General Assignment").
(e) An Assignment of Leases executed by Seller, in the form of
Exhibit I attached hereto, assigning to Purchaser all of Seller's interest
under the Leases (the "Assignment of Leases").
(f) Any other documents, instruments or agreements reasonably
necessary to effectuate the transaction contemplated by this Agreement.
12. PURCHASER'S CLOSING DELIVERIES.
------------------------------
At least one (1) business day prior to the Closing, Purchaser shall
deliver to Escrow Company:
(a) The balance of the Purchase Price, together with such other sums
as Escrow Company shall require to pay Purchaser's share of the Closing
costs, prorations, reimbursements and adjustments as set forth in Sections
13 and 15 herein, in immediately available funds.
(b) An executed counterpart of the General Assignment and the
Assignment of Leases, whereby Purchaser shall assume the obligations
relating to the matters set forth in such documents.
(c) Any other documents, instruments or agreements reasonably
necessary to effectuate the transaction contemplated by this Agreement.
13. PRORATIONS AND ADJUSTMENTS.
--------------------------
(a) The following shall be prorated and adjusted between Seller and
Purchaser as of the day of the Closing, except as otherwise specified:
(i) General real estate, personal property and ad valorem taxes
and assessments, and any improvement or other bonds encumbering the
Property, for the current tax year for the Property.
(ii) Utility charges, if any, and such other items that are
customarily prorated in transactions of this nature shall be ratably
prorated.
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(iii) Rent and other charges under the Leases (other than
Delinquent Rents (as hereinafter defined)). Rents and other charges
under the Leases which are 30 days or more past due as of the Closing
("Delinquent Rents") shall not be prorated, and rents and other
amounts received by Purchaser or Seller after the Closing from a
tenant owing such Delinquent Rents shall be applied (A) first, to
Purchaser's actual out-of-pocket costs of collection incurred with
respect to such tenant; (B) second, to rents due from such tenant for
the month in which such payment is received by Purchaser; (C) third,
to rents attributable to any period after the Closing which are past
due on the date of receipt; (D) fourth, to Delinquent Rents as of the
Closing (and Purchaser promptly shall remit such amounts to Seller);
and (E) finally, to Seller's costs of collection incurred with respect
to such tenant prior to the Closing. Purchaser agrees that it shall
use commercially reasonable efforts to collect any such Delinquent
Rents (provided, however, that Purchaser shall have no obligation to
institute legal proceedings, including an action for unlawful
detainer, against a tenant owing Delinquent Rents). Seller may pursue
a tenant after the Closing for collection of Delinquent Rents but
Seller shall not have the right to institute any action for unlawful
detainer or eviction or termination of the Lease against such tenant.
(iv) The amount of all unapplied security deposits under the
Leases shall be credited to Purchaser; provided, however, that if any
tenant security deposit is in the form of a letter of credit,
promissory note or similar instrument, Seller shall use its best
efforts to cause such letter of credit, promissory note or other
instrument to be assigned and transferred to Purchaser no later than
sixty (60) days after the Closing, and there shall be no credit
against the Purchase Price at the Closing with respect to any such
tenant security deposit.
(b) For purposes of calculating prorations, Purchaser shall be deemed
to be in title to the Property, and, therefore, entitled to the income
therefrom and responsible for the expenses thereof for the entire day upon
which the Closing occurs. All such prorations shall be made on the basis
of the actual number of days of the month which shall have elapsed as of
the day of the Closing and based upon the actual number of days in the
month and a three hundred sixty-five (365) day year.
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(c) The amount of such prorations shall be initially performed by
Seller and Purchaser at Closing but shall be subject to adjustment in cash
after the Closing outside of escrow as and when complete and accurate
information becomes available, if such information is not available at the
Closing. Seller and Purchaser agree to cooperate and use their best
efforts to make such adjustments no later than sixty (60) days after the
Closing (except with respect to property taxes, which shall be adjusted
within sixty (60) days after the tax bills for the applicable period are
received). Without limiting the generality of the foregoing, Seller and
Purchaser agree that:
(i) with respect to any year-end reconciliations of reimbursable
expenses under the Leases, Seller and Purchaser shall cooperate to
complete such reconciliations as soon as possible after the Closing,
with Seller responsible for amounts owing to tenants under the Leases,
and entitled to amounts payable by tenants under the Leases (as the
case may be), with respect to periods prior to the Closing, and with
Purchaser responsible for amounts owing to tenants under the Leases,
and entitled to amounts payable by tenants under the Leases (as the
case may be), with respect to periods from and after the Closing (and,
with respect to any such amounts payable to Seller, Purchaser agrees
that it shall use commercially reasonable efforts to collect such
amounts, provided, however, that Purchaser shall have no obligation to
institute legal proceedings, including an action for unlawful
detainer, against a tenant owing any such amounts);
(ii) with respect to any property tax appeals or reassessments
filed by Seller for tax years prior to the year in which the Closing
occurs, Seller shall be entitled to the full amount of any refund or
rebate resulting therefrom (subject to any requirement under the
Leases to pay to the tenants thereunder a share of any such refund or
rebate, which shall be Seller's sole obligation), and with respect to
any property tax appeals or reassessments filed by Seller for the tax
year in which the Closing occurs, Seller and Purchaser shall share the
amount of any rebate or refund resulting therefrom (after first paying
to Seller all costs and expenses incurred by Seller in pursuing such
appeal or reassessment) in proportion to their respective periods of
ownership of the Property for such tax year (with Seller and Purchaser
each obligated for any amount of such refund or rebate required to be
paid to the tenants under the Leases for its respective period of
ownership of the Property for such tax year); and
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(iii) in no event will there be any proration of insurance
premiums under Seller's existing policies of insurance relating to the
Property, and Purchaser acknowledges and agrees that none of Seller's
insurance policies (or any proceeds payable thereunder, except as
expressly provided for in Section 16 below) will be assigned to
Purchaser at the Closing, and Purchaser shall be solely obligated to
obtain any and all insurance that it deems necessary or desirable.
(d) Except as set forth in this Section 13, all items of income and
expense which accrue for the period prior to the Closing will be for the
account of Seller and all items of income and expense which accrue for the
period on and after the Closing will be for the account of Purchaser. The
provisions of this Section 13 shall survive the Closing.
14. CLOSING.
Notwithstanding anything to the contrary contained in this Agreement,
the purchase and sale contemplated herein shall close (the "Closing") on such
specific date and time mutually agreed to by the parties, but in no event later
than December 5, 1997. As used herein, the term "Closing" means the date and
time that Escrow Company (i) delivers Seller's Special Warranty Deed to
Purchaser and (ii) Escrow Company commences to wire transfer to Seller the
Purchase Price less Seller's share of the closing costs, reimbursements and
prorations provided for in this Agreement.
15. CLOSING COSTS.
-------------
Seller shall pay fifty percent (50%) of any documentary transfer tax
due in connection with the consummation of the transaction contemplated herein,
the cost of title curative endorsements which Seller elects to obtain pursuant
to Section 4 above, and fifty percent (50%) of all other escrow and closing
costs. Purchaser shall pay fifty percent (50%) of any documentary transfer tax
due in connection with the consummation of the transaction contemplated herein,
all costs and expenses incurred in connection with obtaining any financing for
the purchase of the Property, including title, escrow, documentation and
appraisal costs relating thereto, the premium for the Title Policy, any
additional title insurance premium payable in connection with Purchaser
obtaining any lender's policy of title insurance, the cost of any title
endorsements which are not title curative endorsements which Seller elects to
obtain pursuant to Section 4 above, the fee for recording the Special Warranty
Deed, and fifty percent (50%) of all other escrow and closing costs. Each party
shall bear the expense of its own counsel. Unless otherwise specified herein,
if the sale of the Property
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contemplated hereunder does not occur because of a default on the part of
Purchaser, all Cancellation Fees shall be paid by Purchaser; if the sale of the
Property does not occur because of a default on the part of Seller, all
Cancellation Fees shall be paid by Seller.
16. RISK OF LOSS.
------------
(a) If prior to the Closing, the Improvements, or any part thereof,
are materially damaged (as set forth in Section 16(d)), Purchaser shall
have the right, exercisable by giving written notice to Seller within ten
(10) days after receiving written notice of such damage or destruction (but
in any event prior to the Closing), either (i) to terminate this Agreement,
in which case neither party shall have any further rights or obligations
hereunder (except as may be expressly provided to the contrary elsewhere in
this Agreement), and any money (including, without limitation, the Deposit
and all interest accrued thereon) or documents in escrow shall be returned
to the party depositing the same and Purchaser and Seller each shall be
responsible for one-half of any Cancellation Fees, or (ii) to accept the
Property in its then condition and to proceed with the Closing without any
abatement or reduction in the Purchase Price and receive an assignment of
all of Seller's right to any insurance proceeds payable by reason of such
damage or destruction. A failure by Purchaser to notify Seller in writing
within such ten (10) day period shall be deemed an election to proceed
under clause (ii) above. If Purchaser elects (or is deemed to elect) to
proceed under clause (ii) above, Seller shall not compromise, settle or
adjust any claims to such proceeds without Purchaser's prior written
consent.
(b) If prior to the Closing, all or any material portion (as set
forth in Section 16(d)) of the Property is subject to a taking by public
authority, Purchaser shall have the right, exercisable by giving written
notice to Seller within ten (10) days after receiving written notice of
such taking (but in any event prior to the Closing), either (i) to
terminate this Agreement, in which case neither party shall have any
further rights or obligations hereunder (except as may be expressly
provided to the contrary elsewhere in this Agreement), and any money
(including, without limitation, the Deposit and all interest accrued
thereon) or documents in escrow shall be returned to the party depositing
the same, and Purchaser and Seller each shall be responsible for one-half
of any Cancellation Fees, or (ii) to accept the Property in its then
condition, without any abatement or reduction in the Purchase Price, and
receive an assignment of all of Seller's rights to any condemnation award
payable by reason of such taking. A failure by Purchaser to notify Seller
in writing within such ten (10) day
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period shall be deemed an election to proceed under clause (ii) above. If
Purchaser elects (or is deemed to elect) to proceed under clause (ii)
above, Seller shall not compromise, settle or adjust any claims to such
award without Purchaser's prior written consent. As used in this Section
16, "taking" shall mean any transfer of the Property or any portion thereof
to a governmental entity or other party with appropriate authority, by
exercise of the power of eminent domain.
(c) If prior to the Closing, any non-material portion of the Property
is damaged or subject to a taking, Purchaser shall accept the Property in
its then condition (without any abatement or reduction in the Purchase
Price) and proceed with the Closing, in which case Purchaser shall be
entitled to an assignment of all of Seller's rights to any insurance
proceeds or any award in connection with such taking, as the case may be.
If any such non-material damage or taking occurs, Seller shall not
compromise, settle or adjust any claims to such insurance proceeds or such
award, as the case may be, without Purchaser's prior written consent.
(d) For the purpose of this Section 16, damage to the Property or a
taking of a portion thereof shall be deemed to involve a material portion
thereof if the reasonably estimated cost of restoration or repair of such
damage or the amount of the condemnation award with respect to such taking
shall exceed Three Hundred Fifty Thousand and no/100s Dollars
($350,000.00).
(e) Seller agrees to give Purchaser notice of any taking, damage or
destruction of the Property promptly after Seller obtains knowledge
thereof.
17. DEFAULT.
-------
(a) In the event that, prior to the Closing, Purchaser discovers or
learns of information (from whatever source, including, without limitation,
the tenant estoppel certificate delivered pursuant to Section 10(a) below,
as a result of Purchaser's due diligence tests, investigations and
inspections of the Property, by disclosure from Seller or Seller's agents
and employees or otherwise) that contradicts any of the representations and
warranties of Seller contained herein, or renders any of such
representations and warranties untrue or incorrect, Purchaser shall have
the right, exercisable by giving written notice to Seller within five (5)
days after receiving notice of such information (but in any event prior to
the Closing), either (i) to terminate this Agreement, in which case neither
party shall have any further rights or obligations hereunder (except as may
be
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expressly provided to the contrary elsewhere in this Agreement), and any
money (including, without limitation, the Deposit and all interest accrued
thereon) or documents in escrow shall be returned to the party depositing
the same and Seller shall be responsible for any Cancellation Fees, or
(ii) to accept the Property notwithstanding such information and
nevertheless consummate the transaction contemplated by this Agreement, in
which event thereafter Seller shall have no liability with respect to such
information and/or any of such representations and warranties contradicted
or made untrue or incorrect thereby. In the event, prior to the Closing,
Seller defaults in any other manner under this Agreement, Purchaser shall
have the right, exercisable by giving written notice to Seller within five
(5) days after the date Purchaser learns of such default (but in any event
prior to the Closing), either (i) to terminate this Agreement, in which
case neither party shall have any further rights or obligations hereunder
(except as may be expressly provided to the contrary elsewhere in this
Agreement), and any money (including, without limitation, the Deposit and
all interest accrued thereon) or documents in escrow shall be returned to
the party depositing the same and Seller shall be responsible for any
Cancellation Fees, or (ii) to accept the Property notwithstanding such
default by waiving such default and nevertheless consummating the
transaction contemplated by this Agreement, in which event thereafter
Seller shall have no liability with respect to such default. In the event
Seller's default consists of Seller's refusal or failure to convey the
Property, Purchaser's sole remedy shall be to elect either (i) to bring an
action for specific performance; provided, however, that in any such
action, Purchaser shall not be entitled to any monetary damages, or (ii) to
terminate this Agreement, in which case neither party shall have any
further rights or obligations hereunder (except as may be expressly
provided to the contrary elsewhere in this Agreement), and any money
(including, without limitation, the Deposit and all interest accrued
thereon) or documents in escrow shall be returned to the party depositing
the same and Seller shall be responsible for any Cancellation Fees. In the
event of any breach or default by Seller, which occurs or which Purchaser
first discovers after the Closing, Purchaser shall be limited to recovering
its actual damages but not any consequential damages.
(b) IF PURCHASER FAILS TO CLOSE THE PURCHASE OF THE PROPERTY FOR ANY
REASON OTHER THAN SELLER'S DEFAULT OR FAILURE OF A PURCHASER'S CONDITION
PRECEDENT, THE DEPOSIT, PLUS ANY INTEREST ACCRUED THEREON, SHALL BE PAID TO
AND RETAINED BY SELLER AS
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LIQUIDATED DAMAGES. THE AMOUNT PAID TO AND RETAINED BY SELLER AS
LIQUIDATED DAMAGES SHALL BE SELLER'S SOLE REMEDY IF PURCHASER FAILS TO
CLOSE THE PURCHASE OF THE PROPERTY. THE PARTIES HERETO EXPRESSLY AGREE AND
ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY
PURCHASER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND
THAT THE AMOUNT OF THE DEPOSIT PLUS ANY INTEREST ACCRUED THEREON REPRESENTS
THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS SECTION 17(b), SELLER AND PURCHASER AGREE
THAT THIS LIQUIDATED DAMAGES PROVISION IS NOT INTENDED AND SHOULD NOT BE
DEEMED OR CONSTRUED TO LIMIT IN ANY WAY PURCHASER'S INDEMNITY OBLIGATIONS
UNDER SECTIONS 5 AND 18.
SELLER'S INITIALS: ____ PURCHASER'S INITIALS: ____
(c) Notwithstanding anything to the contrary contained in this
Agreement other than Section 20(v), Sellers' maximum liability under this
Agreement shall not exceed One Million and no/100s Dollars ($1,000,000.00).
(d) Any action, suit or proceeding brought by Purchaser against
Seller under this Agreement shall be commenced and served, if at all, on or
before the date which is six (6) months after the date of the Closing and,
if not commenced and served on or before such date, thereafter shall be
void and of no force or effect.
18. BROKER'S COMMISSION.
-------------------
Purchaser and Seller each represents and warrants to the other that no
brokerage commission, finder's fee or other compensation is due or payable with
respect to the transaction contemplated hereby other than a commission to be
paid to CB Commercial Real Estate Group, Inc. pursuant to a separate agreement
with Seller, which shall be paid by Seller only upon the Closing of the purchase
and sale contemplated hereby. Purchaser shall indemnify, defend, and hold
Seller harmless from and against any losses, damages, costs and expenses
(including, but not limited to, attorneys' fees and costs) incurred by Seller by
reason of any breach or inaccuracy of the Purchaser's representations and
warranties contained in this Section 18. Seller shall indemnify, defend, and
hold Purchaser harmless from and
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against any losses, damages, costs and expenses (including, but not limited to,
attorneys' fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller's representations and warranties contained in this Section
18. The provisions of this Section 18 shall survive the Closing.
19. ESCROW.
------
(a) Instructions. Within two (2) days after execution of this
Agreement, Purchaser and Seller each shall deposit a copy of this Agreement
executed by such party (or either of them shall deposit a copy executed by
both Purchaser and Seller) with Escrow Company. This Agreement, together
with such further instructions, if any, as the parties shall provide to
Escrow Company by written agreement, shall constitute the escrow
instructions. If any requirements relating to the duties or obligations of
Escrow Company hereunder are not acceptable to Escrow Company, or if Escrow
Company requires additional instructions, the parties hereto agree to make
such deletions, substitutions and additions hereto as counsel for Purchaser
and Seller shall mutually approve, which additional instructions shall not
substantially alter the terms of this Agreement unless otherwise expressly
agreed to by Seller and Purchaser.
(b) Deposits into Escrow. Seller shall make its deposits into escrow
in accordance with Section 11. Purchaser shall make its deposits into
escrow in accordance with Section 12. Escrow Company is authorized to
close the escrow only if and when: (i) Escrow Company has received all
items to be delivered by Seller and Purchaser pursuant to Sections 11 and
12; and (ii) Title Company can and will issue the Title Policy concurrently
with the Closing.
(c) Close of Escrow. Provided that Escrow Company shall not have
received written notice in a timely manner from Purchaser or Seller of the
failure of any condition to the Closing or of the termination of the
escrow, and if and when Purchaser and Seller have deposited into escrow the
matters required by this Agreement and Title Company can and will issue the
Title Policy concurrently with the Closing, Escrow Company shall:
(i) Deliver to Purchaser: (1) the Special Warranty Deed; (2)
the ▇▇▇▇ of Sale; (3) the Certificate of Non-Foreign Status; (4) the
General Assignment; and (5) the Assignment of Leases. After the Closing,
Escrow Company shall cause the Special Warranty Deed to be recorded in the
Official Records of the County of ▇▇▇▇▇▇▇▇▇▇, Commonwealth of
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Pennsylvania and immediately upon recording deliver to Purchaser a conformed
copy of the Special Warranty Deed
(ii) Deliver to Seller: the Purchase Price, after satisfying the
Closing costs, prorations and adjustments and any broker commission to be
paid by Seller pursuant to Sections 13, 15 and 18, respectively.
(iii) Deliver to Purchaser: any funds deposited by
Purchaser, and any interest earned thereon, in excess of the amount
required to be paid by Purchaser hereunder.
(iv) Deliver the Title Policy issued by Title Company to
Purchaser.
(d) Real Estate Reporting Person. Escrow Company is designated the
"real estate reporting person" for purposes of section 6045 of title 26 of
the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Company shall so
provide. Upon the consummation of the transaction contemplated by this
Agreement, Escrow Company shall file Form 1099 information return and send
the statement to Seller as required under the aforementioned statute and
regulation.
20. MISCELLANEOUS.
------------
(a)This Agreement is executed and delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Trustees") not personally but solely as trustees
under and pursuant to that certain Declaration of Trust of TCW Realty Fund
IV Pennsylvania Trust dated as of May 10, 1991, amended. Notwithstanding
anything to the contrary set forth herein, it is expressly understood and
agreed by and between the parties hereto (i) that each of the covenants,
undertakings, obligations, representations, warranties and agreements
herein made on the part of Trustees, while in form purporting to be the
covenants, undertakings, obligations, representations, warranties and
agreements of Trustees, are nevertheless each and every one of them made
and intended not as personal covenants, undertakings, obligations,
representations, warranties and agreements of Trustees for the purpose or
with the intent of binding Trustees personally, but are instead made and
intended for the purpose of binding only the assets of TCW Realty Fund IV
Pennsylvania Trust; (ii) that no personal liability or personal
responsibility is assumed or shall at any time be asserted or enforceable
against Trustees on account of this Agreement or on account of any
covenants, undertakings, obligations, representations, warranties
agreements
-24-
contained in this Agreement, either express or implied, all such personal
liability or personal responsibility (if any) being expressly waived and
released; and (iii) Purchaser agrees to look solely to the assets of TCW
Realty Fund IV Pennsylvania Trust for the enforcement of any claims against
Trustees arising pursuant to this Agreement.
(b) Each individual and entity executing this Agreement represents
and warrants that he, she or it has the capacity set forth on the signature
pages hereof with full power and authority to bind the party on whose
behalf he, she or it is executing this Agreement to the terms hereof.
(c) This Agreement is the entire Agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior
agreements and understandings, whether oral or written, between the parties
with respect to the matters contained in this Agreement. Any waiver,
modification, consent or acquiescence with respect to any provision of this
Agreement shall be set forth in writing and duly executed by or in behalf
of the party to be bound thereby. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
(d) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument. The signature page
of any counterpart may be detached therefrom without impairing the legal
effect of the signature(s) thereon provided such signature page is attached
to any other counterpart identical thereto except having additional
signature pages executed by other parties to this Agreement attached
thereto.
(e) Time is of the essence in the performance of and compliance with
each of the provisions and conditions of this Agreement.
(f) Any communication, notice or demand of any kind whatsoever which
either party may be required or may desire to give to or serve upon the
other shall be in writing and delivered by personal service (including
express or courier service), by electronic communication, whether by telex,
telegram or telecopy (if confirmed in writing sent by registered or
certified mail, postage prepaid, return receipt requested), or by overnight
courier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
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Purchaser: Brandywine Realty Trust
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ &
▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Pepper, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
3000 Two ▇▇▇▇▇ Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Seller: TCW Realty Fund IV Pennsylvania Trust
c/o Westmark Realty Advisors L.L.C.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TCW Realty Fund IV Pennsylvania Trust
c/o Westmark Realty Advisors L.L.C.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Escrow Company: Commonwealth Land Title Company
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Attention: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Title Company: Commonwealth Land Title Company
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Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, ext. 106
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Commonwealth Land Title Company
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Attention: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for notice by written notice given to the
other in the manner provided in this Section. Any such communication,
notice or demand shall be deemed to have been duly given or served on the
date personally served, if by personal service, on the date of confirmed
dispatch, if by electronic communication, or three (3) days after being
placed in the U.S. Mail, if mailed.
(g) The parties agree to execute such instructions to Escrow Company
and Title Company and such other instruments and to do such further acts as
may be reasonably necessary to carry out the provisions of this Agreement.
(h) The making, execution and delivery of this Agreement by the
parties hereto has been induced by no representations, statements,
warranties or agreements other than those expressly set forth herein.
(i) Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law, but, if
any provision of this Agreement shall be invalid or prohibited thereunder,
such invalidity or prohibition shall be construed as if such invalid or
prohibited provision had not been inserted herein and shall not affect the
remainder of such provision or the remaining provisions of this Agreement.
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(j) The language in all parts of this Agreement shall be in all cases
construed simply according to its fair meaning and not strictly for or
against any of the parties hereto. Section headings of this Agreement are
solely for convenience of reference and shall not govern the interpretation
of any of the provisions of this Agreement. References to "Sections" are
to Sections of this Agreement, unless otherwise specifically provided.
(k) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
(l) If any action is brought by either party against the other party,
relating to or arising out of this Agreement, the transaction described
herein or the enforcement hereof, the prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees, costs and expenses
incurred in connection with the prosecution or defense of such action. For
purposes of this Agreement, the term "attorneys' fees" or "attorneys' fees
and costs" shall mean the fees and expenses of counsel to the parties
hereto, which may include printing, photostating, duplicating and other
expenses, air freight charges, and fees billed for law clerks, paralegals
and other persons not admitted to the bar but performing services under the
supervision of an attorney, and the costs and fees incurred in connection
with the enforcement or collection of any judgment obtained in any such
proceeding. The provisions of this Section 20(l) shall survive the entry
of any judgment, and shall not merge, or be deemed to have merged, into any
judgment.
(m) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and to their respective transferees, successors,
and assigns. Neither this Agreement nor any of the rights or obligations
of Seller or Purchaser hereunder shall be transferred or assigned by Seller
or Purchaser without the prior written consent of the non-assigning party;
provided, that, after written notice to Seller, Purchaser may assign its
rights under this Agreement to Brandywine Operating Partnership, L.P. (an
"Approved Designee"), provided, however, in no event shall Purchaser be
released from any liability hereunder as a result of such assignment.
(n) Exhibits A through M, inclusive, and Annex I attached hereto are
incorporated herein by reference.
(o) Notwithstanding anything to the contrary contained herein, this
Agreement shall not be deemed or construed to make the parties hereto
partners or joint venturers, or to render either party liable for any of
the debts or obligations of the other, it being the intention of the
parties to merely
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create the relationship of Seller and Purchaser with respect to the
Property to be conveyed as contemplated hereby.
(p) This Agreement shall not be recorded or filed in the public land
or other public records of any jurisdiction by either party and any attempt
to do so may be treated by the other party as a breach of this Agreement.
(q) Each party agrees that, except as otherwise set forth in this
Agreement or provided by law or unless compelled by an order of a court, it
shall keep the contents of this Agreement and any information related to
the transaction contemplated hereby confidential (except that Purchaser may
disclose such matters in accordance with the provisions of Section 8 above)
and further agrees to refrain from generating or participating in any
publicity statement, press release, or other public notice regarding this
transaction without the prior written consent of the other party unless
required under applicable law or by a court order. The provisions of this
Section 20(q) shall survive the Closing or any termination of this
Agreement and shall not be merged into any instrument or conveyance
delivered at the Closing.
(r) Seller and Purchaser agree that it is their specific intent that
no broker shall be a party to or a third party beneficiary of this
Agreement or the escrow; and further that the consent of a broker shall not
be necessary to any agreement, amendment, or document with respect to the
transaction contemplated by this Agreement.
(s) If any of the dates specified in this Agreement shall fall on a
Saturday, a Sunday, or a holiday, then the date of such action shall be
deemed to be extended to the next business day.
(t) At Purchaser's request, upon prior arrangement with Seller, at
any time during reasonable business hours within six (6) months after the
Closing, Seller shall, at Purchaser's expense, provide to Purchaser's
designated independent auditor, access to the books and records of the
Property, regarding the period for which Purchaser is required by
applicable rules or regulations of the Securities Exchange Commission to
have audited financial statements prepared with respect to the Property, to
the extent that such books, records and related information are in the
Seller's possession or control and relate to the period during which Seller
held title to the Property; provided however, such books and records shall
not include Seller's internal appraisals and economic evaluations of the
Property and reports regarding the Property prepared by Seller, Westmark
Realty Advisors L.L.C. and/or TCW Realty Advisors solely for internal use
or for the information of the investors in Seller, and Seller shall not be
deemed to make any representations or
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warranties of any kind regarding the accuracy or thoroughness of such books
and records.
(u) No recourse shall be had for any obligation of Brandywine Realty
Trust under this Agreement or under any document executed in connection
herewith or pursuant thereto, or for any claim based thereon or otherwise
in respect thereof, against any past, present or future trustee,
shareholder, officer or employee of Brandywine Realty Trust, whether by
virtue of any statute or rule of law, or by enforcement of any assessment
or penalty or otherwise, all such liability being expressly waived and
released by the Seller and all parties claiming by, through or under
Seller.
(v) Seller shall indemnify, defend and save and hold harmless
Purchaser from any actual loss, cost, liability or expense (including,
without limitation, reasonable counsel fees) incurred, paid or suffered by
Purchaser arising out of or by reason of any claim made against Purchaser
or the Property by the Pennsylvania Department of Revenue or by any other
state taxing or employment authorities asserting any claims or possible
claims against Seller for unpaid taxes, penalties, interest or court costs
due the Commonwealth of Pennsylvania or its political subdivisions by
Seller. The preceding sentence shall only apply to claims and/or matters
relating to the period prior to the Closing. Section 20(v) shall
specifically survive the Closing hereunder and Seller's obligations under
this Section 20(v) shall not be limited by any other limitation of Seller's
liability hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
SELLER: TCW REALTY FUND IV PENNSYLVANIA TRUST,
a Pennsylvania business trust
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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not individually but solely as trustee
under Declaration of Trust dated
as of 5/10/91, as amended
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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not individually but solely as trustee
under Declaration of Trust dated
as of 5/10/91, as amended
PURCHASER: BRANDYWINE REALTY TRUST,
a Maryland real estate investment
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President & CEO
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