AGREEMENT OF SALE
THIS AGREEMENT OF SALE, made as of the 2nd day
of December, 1997, by and between BERKSHIRE
REALTY ENTERPRISE LIMITED PARTNERSHIP, a
Massachusetts Limited Partnership, d/b/a
BERKSHIRE PROPERTY MANAGEMENT, ("Agent"), and
KEJACK, INC., a Delaware corporation, and its
permitted assigns ("Buyer').
WITNESSETH:
A. Agent is the duly-authorized agent for
each of the owners of all those certain
separate parcels of land and properties listed
on Exhibit List of Properties hereto, together
with the buildings and other improvements
situate thereon, and together with the
appurtenances thereto (including, without
limitation, all easements, rights-of-way,
ancillary and/or adjacent lands and other real
property rights and benefits belonging to or
running with the owner of the properties
listed on Exhibit List of Properties hereto
(each an "Individual Property" and,
individually and collectively, as the context
permits, the "Property"). All of said owners
are herein collectively referred to as the
"Seller" and, individually, each of said
owners is referred to as an "Owner."
B. Seller desires to sell and convey and the
Buyer desires to purchase and accept, the
Property according to the terms and conditions
of this Agreement of Sale.
NOW THEREFORE, in consideration of the mutual
covenants and agreements contained herein and
intending to be legally bound hereby, the
parties agree as follows:
1. Sale and Purchase,
(a) Seller hereby agrees to sell and convey
to Buyer, which hereby agrees, subject to the
conditions set forth herein, to purchase from
Seller, the Property. (As used in this
Agreement, capitalized terms shall have the
meanings given to such terms in this
Agreement, including, without limitation, the
meanings given in Exhibit Seller's Deliveries
attached hereto and made a part hereof.)
(b) The Property shall include, and Seller
agrees to sell to Buyer, all right, title and
interest, if any, of Seller in and to land
lying in the bed of any streets, roads,
avenues, alleys or passageways, opened or
proposed, bounding or abutting any Individual
Property. The Property shall also include,
and Seller agrees to sell to Buyer, all of
Seller's right, title and interest, if any, in
and to any leases, easements, rights of way,
or passageways appurtenant to each Individual
Property, and all tenements, hereditaments and
appurtenances.
(c) Without limitation of the foregoing, to
the extent owned by the Seller, all heating,
ventilating, air-conditioning, lighting,
electrical, plumbing and other systems
appurtenant to each Individual Property and
forming a part thereof, as well as all other
fixtures, and all trees, shrubbery and
plantings now in or on the land which forms a
part of each Individual Property shall be a
part of each Individual Property and shall be
included in the Purchase Price.
(d) The Property shall include, without
limitation, and Seller agrees to sell to
Buyer:
(1) All tangible personalty (the
"Personalty") owned by Seller in connection
with the Property, including, but not limited
to, all such furniture, equipment, fixtures,
fittings, appliances, supplies, machinery, and
replacements thereof, now or hereafter affixed
to, attached to, placed upon or used at and in
connection with the use, enjoyment, occupancy
or operation of the Property.
(2) All the contracts ("Operating Contracts")
relating to the maintenance, management,
operation, leasing or repair of the Property,
to the extent such Operating Contracts are
assignable.
(3) All warranties and guarantees, in favor
of or assigned to Seller in connection with
the ownership, construction, maintenance or
operation of the Property or Personalty, to
the extent such warranties or guarantees are
assignable.
(4) All drawings, plans, specifications,
surveys, operating records and files relating
to the ownership, construction, maintenance
and operation of the Property excepting only
any corporate records of Seller.
(5) All permits, regulatory licenses and
occupancy permits of Seller necessary for the
occupancy and operation of the Property, to
the extent such permits, regulatory licenses
and occupancy permits are assignable.
(6) The exclusive right to use any name or
trade name ("Trade Names") by which any
Individual Property is known or operated.
(e) Notwithstanding that the Property
consists of real property and improvements at
various locations, the Property shall be sold
by Seller and purchased by Buyer under this
Agreement only as an entirety, and not in
separate parts and (except as otherwise
provided herein) simultaneous closing on all
parts of the Property and interests therein is
a condition precedent to the obligations of
Seller and Buyer under this Agreement.
2. Purchase Price.
The purchase price for the Property
shall be One Hundred Forty Million Dollars
($140,000,000.00) (the "Purchase Price") and
shall be allocated as shown on Exhibit
Allocations. The Purchase Price shall be paid
by the Buyer as follows:
(a) Concurrently with the execution of this
Agreement, the amount of One Million and
00/100 Dollars ($1,000,000.00) shall be
deposited by Buyer's check, subject to
collection, in escrow with Saul, Ewing, ▇▇▇▇▇▇
and ▇▇▇▇ LLP ("Escrow Agent") to be held in
escrow by the Escrow Agent and disbursed in
accordance with Paragraph 17 of this
Agreement.
(b) If required pursuant to Section 3(a)
below, on or before 12:00 Noon on December 31,
1997, an additional One Million Five Hundred
Thousand Dollars ($1,500,000) shall be
deposited by Buyer's check, subject to
collection, in escrow with the Escrow Agent,
to be held in escrow by the Escrow Agent and
disbursed in accordance with Paragraph 17 of
this Agreement.
(c) All amounts paid to the Escrow Agent
under this Agreement shall be held in escrow
by Escrow Agent which shall place the same in
a federally insured interest bearing account.
As used in this Agreement, the term "Deposit"
shall mean all monies including all interest,
held at any time by Escrow Agent in escrow.
The Deposit shall be disbursed in accordance
with Paragraph 17 of this Agreement.
(d) At Closing, the balance of the Purchase
Price shall be payable by delivery of
immediately available wire transfer funds to
Seller to such account as shall be designated
by Seller.
3. Closing.
(a) The conveyance of the Property, the
payment of the Purchase Price and the
completion of all other transactions
contemplated by this Agreement ("Closing")
shall take place at the offices of ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇ LLP, Wilmington, Delaware. The
Closing shall commence at 10:00 a.m. December
31, 1997 (the "Closing Date"). However,
provided that Buyer shall have purchased that
certain Individual Property commonly known as
▇▇▇▇▇▇▇▇▇ Square Mall no later than December
31, 1997 and Buyer shall have timely made the
additional deposit pursuant to Section 2(b)
above, the Closing Date shall be extended to
January 14, 1998. In the event the Closing is
bifurcated as set forth above, the terms and
provisions of this Agreement shall apply to
the Closing of ▇▇▇▇▇▇▇▇▇ Square Mall and to
the Closing of all Individual Properties other
than ▇▇▇▇▇▇▇▇▇ Square Mall and shall be
interpreted in accordance with the bifurcated
closing schedule set forth above. Buyer shall
have the right, at Buyer's option, to
designate an earlier Closing Date by giving to
Seller at least ten (10) days prior written
notice of such earlier Closing Date.
(b) At Closing, each Owner shall deliver or
cause to be delivered to Buyer the following
in respect of each Individual Property, in
form and substance reasonably acceptable to
Buyer and its counsel:
(1) Deed. Special Warranty Deed executed by
Seller, in recordable form conveying each
Individual Property free and clear of all
liens, claims and encumbrances except the
Permitted Exceptions.
(2) General Assignment. Assignment (without
warranty) to and assumption by Buyer of all
right, title and interest of Seller and its
agents in and to the Governmental Approvals,
Plans, Contracts, Major Repair Contracts and
Operating Contracts.
(3) Keys. Keys and security codes to all
locks and alarm systems located in each
Individual Property to the extent in Seller's
possession or control.
(4) Tax Bills. Copies of the most currently
available Tax Bills.
(5) Entity Transfer Certificate. Entity
Transfer Certification confirming that Seller
is a "United States Person" within the meaning
of Section 1445 of the Internal Revenue Code
of 1986, as amended.
(6) Possession. Physical possession of each
Individual Property.
(7) Assignment of Leases. Assignment
(without warranty) to and assumption by Buyer
of all title and interest of Seller in and to
the Leases and Guaranties, including, without
limitation, any security deposits, together
with an original, executed copy or certified
photocopy of each of the Leases and Guaranties
(to the extent Seller has in its files a copy
which is original and executed), and a letter
addressed to each tenant and guarantor
informing them of the sale.
(8) Seller's Deliveries. Originals of all
documents identified under Exhibit Seller's
Deliveries, all certified by Seller as true
and complete to the best of Seller's
knowledge.
(9) Estoppels. Estoppels (substantially in
form and content as provided in Exhibit Tenant
Estoppel) from tenants of the Property (other
than the multi-family Individual Property) as
hereinafter set forth. Seller agrees to
deliver copies of tenant estoppels to Buyer
prior to Closing if, as, and when received by
Seller. Seller covenants to use commercially
reasonable efforts to obtain estoppels from
tenants occupying not less than fifty percent
(50%) of the gross rentable square feet leased
of each Individual Property. In the event
Seller has not obtained the required estoppels
in a timely fashion as aforesaid, Buyer, at
its sole discretion, may elect (I) to accept
such estoppels as have been obtained and deem
this requirement of Closing satisfied, or (ii)
to extend the Closing Date for a period of
fourteen (14) days in order to facilitate
obtaining further estoppels. If and to the
extent Seller has not, after its good faith
efforts to obtain the same, obtained an
estoppel from those tenants as required
aforesaid, during said fourteen (14) day
extension, in Buyer's sole and absolute
discretion, (x) Seller may be relieved and
excused of its obligation to deliver such
missing estoppels, and this condition to
Closing shall be deemed satisfied, or (y)
Buyer shall deem this Agreement terminated,
and the Deposit shall be paid to Buyer.
Seller shall reasonably cooperate with Buyer
in attempting to obtain from tenants such
subordination, non-disturbance and attornment
agreements as required by Buyer's lender in
order to facilitate receipt of as many of such
agreements as reasonably possible prior to the
Closing Date. Furthermore, Seller shall, for
a period of up to ninety (90) days following
the Closing, reasonably cooperate with Buyer
in attempting to obtain estoppel certificates
from tenants who have not theretofore
furnished the same.
(10) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale (without
warranty) conveying to Buyer all of Seller's
right, title and interest to all tangible
personal property and intangible personal
property including, without limitation, the
Personalty and Trade Names, being conveyed by
Seller to Buyer.
(11) Lead Paint Disclosure. Appropriate
disclosure forms to be executed by Seller in
order to comply with all applicable lead paint
disclosure laws, regulations and ordinances.
(12) ACM Notice. Notice from Seller to Buyer
in substantially the form attached hereto as
Exhibit ACM Notice pursuant to which Seller
shall provide Buyer with information in
Seller's possession, if any, regarding the
presence and location of asbestos-containing
material ("ACM") and presumed ACM on any
Property to the extent prescribed by
applicable regulations of the Occupational
Safety and Health Administration.
(13) Bulk Sales Certificate. To the extent
applicable to comply with any State law, a
Bulk Sales Certificate or other appropriate
certification or clearance regarding
compliance with any and all applicable bulk
sales laws, regulations and ordinances.
(14) Reaffirmation. A certified reaffirmation
of all of Seller's representations and
warranties set forth in Paragraph 8 hereof,
dated as of Closing.
(15) Miscellaneous. Such other documents
and items as reasonably may be required to be
delivered by Seller to Buyer under the terms
of this Agreement and affidavits of title in
favor of Buyer's title insurance company
reasonably acceptable to Seller's counsel in
order to facilitate the issuance of Buyer's
title insurance policies without exception for
mechanics' and materialmen's liens or for
parties-in-possession (other than as noted on
Exhibit Rent Roll).
(c) (1) Seller, and Buyer shall prorate and
adjust between themselves as of the Closing
Date all utility charges, (including, without
limitation, sewer, water, gas and steam),
rents and other similar items that are
customarily prorated in transactions of this
nature. Except as expressly provided herein,
any item which cannot be accurately pro-rated
as of Closing (including, but not limited to
real estate taxes) shall, at Closing, be pro-
rated on the basis of the parties' good faith
estimates, utilizing bills and receipts
therefor for the comparable period during the
preceding year, and shall be re-pro-rated
after Closing within thirty (30) days after
precise information becomes available. In the
event any efforts or omissions in computing
the apportionment's hereunder shall be
discovered, the parties hereto shall promptly
make adjusting payments to each other.
(2) At Closing, all realty transfer and
recordation taxes and similar taxes such as
grantor's tax with respect to the recordation
of the deeds and mortgage recording taxes
shall be paid by Seller and Buyer in
accordance with local custom in the States
where each of the Individual Properties is
located. Buyer shall pay all title insurance
premiums in connection with the conveyance of
the Property to Buyer by Seller.
(d) (1) Rents and other charges payable by
tenants and collected by Seller. If and to
the extent that there are receivables
attributable to any of the Individual
Properties on The Closing Date (regardless
whether such receivables are for past due or
current rent or other payments due or past due
under any of the Leases), Buyer shall pay to
Seller seventy-five percent (75%) of the
amount of such receivables on the Closing
Date. Thereafter, Buyer shall have all of
Seller's right, title and interest in and to
such receivables and there shall be no further
adjustment between Buyer and Seller with
respect thereto, regardless whether or when
such receivables are collected by Buyer.
(2) All security deposits or other deposits
made by tenants under Leases shall be paid by
Seller to Buyer upon Closing as a credit
towards the Purchase Price payable at Closing,
unless otherwise provided by applicable law.
4. Inspection.
(a) From and after execution of this
Agreement through Closing, Buyer shall have
the right to inspect the Property for the
purpose of undertaking such inspections,
investigations and surveys as Buyer shall
desire in order for Buyer to familiarize
itself with the Property. Buyer also shall
have the right to review such governmental
ordinances, regulations and files as Buyer
shall determine, and in addition, Buyer shall
have the right, at Buyer's sole cost and
expense, to cause such surveys or studies of
the Property (including environmental studies,
engineering inspections and surveys of the
land and improvements comprising the Property)
as Buyer shall determine. In connection with
such investigations, Seller shall deliver to
Buyer, or cause delivery to Buyer of, no later
than three (3) days after the date of this
Agreement, three (3) copies of all documents
listed on Exhibit Seller's Deliveries. Seller
agrees to give Buyer, its agents and
contractors, full access to the Property and
its management office(s) for the purposes of
this Paragraph 4 during regular business hours
or otherwise, as reasonably requested by
Buyer. Prior to providing access to the
Property, Buyer shall deliver to Seller proof
of comprehensive general liability insurance
in an amount not less than One Million Dollars
($1,000,000) per occurrence, and Buyer shall
maintain such insurance through Closing. In
the event Buyer shall disturb the physical
condition of the Property, Buyer promptly
shall restore the disturbed area to its
condition prior to disturbance at Buyer's
expense.
(b) Buyer acknowledges and agrees that the
items listed on Exhibit Seller's Deliveries
constitute appropriate records necessary for
the purpose of this inspection contingency.
Seller shall not be obligated to provide Buyer
with access to Seller's general books and
records except as they relate to the ownership
and operation of the Property.
(c) Buyer acknowledges that all of Buyer's
inspections of the Property are undertaken by
Buyer at Buyer's sole risk, cost and expense.
Buyer shall indemnify, defend and hold
harmless the Seller from and against any loss,
cost, liability or damage, excluding
consequential damages, including court costs
and reasonable attorneys fees, which Seller
may incur directly or indirectly as a result
of Buyer conducting any of the inspections or
investigations which Buyer undertakes in
connection with the Property. Anything in
this Agreement to the contrary
notwithstanding, the provisions of this
Subsection 4(c) shall survive any termination
or expiration of this Agreement.
5. Conditions/Due Diligence Period.
Each of the following shall be a
condition precedent to Buyer's obligation to
complete Closing under this Agreement (any of
which may be waived in whole or in part by
Buyer at or prior to Closing) (collectively,
the "Conditions" and each, individually, a
"Condition"):
(a) All of the representations and warranties
by Seller set forth in this Agreement shall be
true and correct at and as of Closing in all
material respects as though such
representations and warranties were made at
and as of Closing, unless the incorrectness
thereof does not have a materially adverse
effect on the transaction set forth in this
Agreement or the fair market value of the
Property as a whole. Seller shall have
performed, observed and complied with all
covenants, agreements and conditions required
by this agreement to be performed on its part
prior to or as of Closing.
(b) Buyer shall have a period from the Date
hereof through 12:00 Noon on December 31, 1997
(the "Due Diligence Period") to conduct, at
Buyer's sole cost and expense, due diligence
investigations and analysis of the Property
and all information pertaining to the
Property, including without limitation,
reviewing environmental conditions, surveys,
title reports, leases and the physical
conditions of the Property. If Buyer, in its
sole discretion, determines that it does not
desire to acquire all of the Property, with or
without reason, and notifies Seller by 12:00
Noon on the last day of the Due Diligence
Period (the "Due Diligence Expiration Date")
of its election to terminate this Agreement,
the Deposit shall be returned to Buyer, this
Agreement thereupon shall become void and
there shall be no further obligation or
liability on any of the parties hereto except
as otherwise expressly provided
hereinelsewhere.
6. Environmental.
(a) Each Owner warrants that, with respect to
the Individual Property or Individual
Properties owned by such Owner, (I) Exhibit
Environmental Reports lists all environmental
studies and reports prepared for such
Individual Property or Individual Properties,
which Seller has in its possession, and (ii)
Seller has delivered, or, within three (3)
days after the date of this Agreement, shall
deliver, all such studies and reports to
Buyer.
The warranty set forth in this Paragraph 6 is
true and correct as of the date hereof. The
warranty set forth in this Paragraph 6 shall
be true and correct at the time of Closing.
Seller shall, in writing, reaffirm same at
Closing. Such warranty as reaffirmed at
Closing shall survive Closing for a period of
ninety (90) days following the Closing Date.
In the event that Buyer shall not have brought
suit against the Owner as to whom this
warranty has been breached on or before the
one hundred eightieth (180th) day following
the Closing Date, any and all rights of Buyer
with respect to the foregoing warranty shall
be conclusively waived and thereafter no such
suit may be brought on account of any breach
or alleged breach of such warranty at law or
in equity.
7. Title.
(a) At Closing, Seller shall convey the
Property, to Buyer fee simple title, free and
clear of all liens, covenants, restrictions,
easements, encumbrances, judgments, mortgages,
other title exceptions or objections
excepting, however, the Permitted Exceptions
(hereinafter defined). Otherwise, the title
to the Property shall be good and marketable
and such as will be insured by any reputable
title insurance company of Buyer's choice.
(b) Within seven (7) days after all of the
deliveries of Seller to Buyer pursuant to
Paragraph 4(a) hereof, Buyer shall apply for a
title insurance commitment (ALTA Form "B")
issued by a nationally recognized title
insurance company of Buyer's choice
("Commitment") agreeing to issue to Buyer,
upon recording of the deeds from Seller to
Buyer, an owner's policy of title insurance
("Title Policy") on the Property in the amount
of the Purchase Price, including, to the
extent applicable, insurance of easements
appurtenant and without exception for unfiled
mechanics' liens, and with such endorsements
as Buyer reasonably requests, including,
without limitation, Comprehensive and Tie-in
endorsements. As used in this Agreement,
"Permitted Exceptions" mean real estate taxes
not yet due and payable and water and sewer
charges not yet due and payable on the Closing
Date, the other title Exceptions listed on
Exhibit Permitted Exceptions attached hereto,
and such other title exceptions that Buyer has
agreed to accept, or is deemed to have
accepted, pursuant to this Paragraph 7(b)
(collectively, "Permitted Exceptions"). If
the Commitment contains title exceptions,
other than the Permitted Exceptions, to which
Buyer objects (which objection may include
material and adverse matters shown on any
updated or re-certified survey which Buyer may
obtain at Buyer's own cost) (including any
such new survey matters, a "Title Defect"),
Buyer shall notify Seller of such fact, which
notice shall specify the Title Defect and
shall be accompanied with sufficient
information to enable Seller to respond.
Buyer's notice shall be given no later than
ten (10) business days after its receipt of
the Commitment. Seller shall notify Buyer,
within five (5) days after Seller's receipt of
Buyer's notice of Title Defects, if
applicable, that Seller will attempt to cause
the removal or discharge of such Title Defect
(subject to the Seller's obligation at all
times and in all circumstances under this
Agreement to remove any and all voluntary
monetary liens at Closing). If Seller does
notify Buyer that it intends to attempt to
cause the removal or discharge of such Title
Defect and if reasonably necessary in order to
permit Seller so to do, Seller may extend the
Closing Date for a period of up to sixty (60)
days in order to accomplish such removal or
discharge. If a Title Defect is not cured as
aforesaid on or before the original Closing
Date or the Closing Date as extended as
aforesaid, Buyer shall have the option, as its
sole and exclusive remedy, (A) of accepting
title to the Individual Property with such
Title Defect without abatement of the Purchase
Price (except that Seller shall discharge, by
bonding or payment, at or before Closing any
voluntary items which can be removed by
payment of money and such items other than
voluntary items which can be removed by
payment of not more than One Million Dollars
($1,000,000) in the aggregate), or (B) of
terminating this Agreement by giving notice to
Seller of such election by the earlier of, (I)
ten (10) business days following the date on
which Buyer shall have received notice from
Seller that it will not cure such Title Defect
prior to Closing, or (ii) the Closing Date (as
the same shall have been extended as
aforesaid), and in the event of such
termination by Buyer, the Deposit shall be
returned to Buyer and the rights and
liabilities of the parties hereto shall cease
and terminate. Notwithstanding the existence
of any Title Defect, Buyer shall be deemed to
have accepted the condition of title and any
such Title Defect unless it has given Seller
timely notice as provided in this Paragraph
7(b), after which time -any such Title Defect
shall be a Permitted Exception.
(c) In any and all events, Seller shall
discharge at or before Closing any mortgage,
or other voluntary lien of an ascertainable
and liquidated amount together with any
interest, penalties or prepayment fees
thereon, if any.
8. Warranties and Representations of Seller,
Except as expressly set forth in this
Agreement, Buyer acknowledges that neither
Seller nor Agent nor any Owner has made any
representations or warranties with respect to
the Property or any Individual Property,
including, without limitation, the value,
quality or character of the same or the
physical or environmental condition thereof.
Buyer further acknowledges that, except as
expressly set forth in this Agreement, neither
Seller nor Agent nor any Owner nor any
officer, employee, consultant or other person
representing or purportedly representing
Seller, Agent or any Owner has made, and none
of the foregoing is liable or bound in any
manner by any express or implied warranties,
guaranties, promises, statements, inducements
or representations pertaining to the physical
or environmental condition or state of repair
of the Property or any Individual Property or
any part thereof, the state of title thereof,
the income collectability or legality of
rents, expenses and operation thereof, the
uses which can be made of the same, or any
other matter or thing with respect thereto.
Without limiting the foregoing, Buyer
acknowledges and agrees that except as
expressly set forth in this Agreement, neither
Seller nor Agent nor any Owner is liable for
or bound by (and Buyer has not relied upon)
any verbal or written statements,
representations or any other information
concerning the Property or any Individual
Property furnished by Seller, Agent or any
Owner or any past or present officer,
employee, consultant or other person
representing or purportedly representing
Seller, Agent or any Owner.
Buyer represents that it will have inspected,
examined and made an independent investigation
of the physical and environmental condition
and value of the Property, that it will know
the condition and the uses thereof and agrees
that Buyer is, except as otherwise expressly
provided herein, purchasing and willing to
accept the conveyance of the Property on an
"AS IS," "WHERE IS" basis. The provisions of
this paragraph and the preceding paragraph
shall survive the Closing and the delivery of
the deeds or the earlier termination of this
Agreement.
To induce Buyer to enter into this Agreement
and to purchase the Property, as of the date
of this Agreement, and at the date of Closing:
(a) Seller represents and warrants to Buyer
that (I) Seller has full power in accordance
with law, and is duly authorized, to enter
into this Agreement and to perform the
covenants and transactions set forth in this
Agreement; (ii) Agent is duly authorized to
enter into this Agreement and to make the
representations and warranties herein on
Seller's behalf and to bind Seller to perform
the covenants and transactions set forth in
this Agreement; and (iii) neither the
execution of this Agreement by Seller, nor the
performance of its terms, nor Closing
hereunder shall constitute a violation or
breach by Seller under any agreement by which
it or the Property is bound or shall result in
the violation by Seller of any judgment,
order, decree or ruling of any court or
governmental or administrative body having
jurisdiction over the Seller, its business or
the Property or shall result in a violation of
any applicable law, rule, order or regulation
of any governmental authority. Agent
represents and warrants to Buyer that Agent is
duly authorized to enter into this Agreement
and to make the representations and warranties
herein on Seller's behalf and to bind Seller
to perform the covenants and transactions set
forth in this Agreement.
(b) Seller's Deliveries. Each Owner
represents and warrants to Buyer, with respect
only to the Individual Property or Individual
Properties to be conveyed to Buyer from such
Owner, Seller's Deliveries listed on Exhibit
Seller's Deliveries pertaining to such
Individual Property or Individual Properties
and all other items delivered by Seller
pertaining to such Individual Property or
Individual Properties pursuant to this
Agreement, are true copies of that which
appears in Seller's files with respect to the
subject matter set forth therein.
(c) Each Owner represents and warrants to
Buyer, only with respect to the Individual
Property or Individual Properties being
conveyed, that there are no management,
employment, service, equipment, supply,
maintenance, water, sewer or other utility or
concession agreements, or agreements with
municipalities (including improvement or
development escrows or bonds) with respect to
or affecting such Individual Property or
Individual Properties which will burden such
Individual Property or Individual Properties
or Buyer after Closing in any manner
whatsoever, except for instruments of record.
(d) Each Owner represents and warrants to
Buyer, only with respect to the Individual
Property or Individual Properties to be
conveyed to Borrower by such Owner, that there
are no existing leases, whether oral or
written, agreements of sale, options,
tenancies, licenses or any other claims to
possession affecting any such Individual
Property or Individual Properties except as
listed in the Rent Roll for the Individual
Property or Individual Properties attached as
Exhibit Rent Roll hereto. Exhibit Rent roll
lists all (A) leases for any portion of such
Individual Property or Individual Properties
and all amendments and any other writings
related thereto in effect on the Date hereof
(the "Leases"), (B) guaranties with respect to
such Leases in effect on the Date hereof (the
"Guaranties") and (C) all security deposits
with respect to such Leases in effect on the
Date hereof. Each of such Leases and
Guaranties is subsisting and in full force and
effect, has not been further amended, modified
or supplemented and the tenant thereunder is
in actual possession in the normal course.
(e) Each Owner represents and warrants to
Buyer, only with respect to the Individual
Property or Individual Properties to be
conveyed to Borrower by such Owner, that the
rents set forth in Exhibit Rent Roll with
respect to such Individual Property or
Individual Properties are the actual rents,
income and charges presently being collected
by Seller. Unless otherwise noted on Exhibit
Rent Roll, no tenant under any of the Leases
is entitled to any concessions, allowances,
rebates or refunds or has prepaid any rents or
other charges for more than the current month.
None of the Leases and none of the rents or
other amounts payable thereunder with respect
to such Individual Property or Individual
Properties have been assigned, pledged or
encumbered by Seller, except to the extent, if
any, that such Owner or its predecessor in
title has made collateral assignments of rents
and leases to the holder of a mortgage on such
Individual Property or Individual Properties.
No security deposits have been paid by any
tenants of such Individual Property or
Individual Properties which have not
heretofore been returned, except as set forth
in Exhibit Rent Roll hereto, if any.
(f) Each Owner represents and warrants to
Buyer, only with respect to the Individual
Property or Individual Properties to be
conveyed to Borrower by such Owner, that from
and after the Closing, no brokerage or leasing
commissions or other compensation is or will
be due or payable to any person, firm,
corporation or other entity with respect to or
on account of any of the Leases or any
extensions or renewals thereof for such
Owner's Individual Property or Individual
Properties except as set forth in Exhibit Rent
Roll hereto, if any.
(g) If, after Seller's execution hereof, any
event occurs or condition exists which is not
a result of Seller's malfeasance and which
renders any of the representations contained
herein materially untrue or misleading, Seller
shall promptly notify Buyer, and Buyer shall
be entitled, as Buyer's sole and exclusive
remedy at law and in equity, thereupon to
terminate this Agreement and receive the
Deposit and thereafter neither party shall
have any further liability to the other.
The representations, warranties, and covenants
set forth in Paragraph 8 are true and correct
as of the date of this Agreement and shall be
true and correct at the time of Closing. The
representations, warranties, and covenants set
forth in Paragraph 8 shall survive for a
period of ninety (90) days following the
Closing Date. In the event that Buyer shall
not have given Seller notice stating with
particularity any alleged breach of any of the
representations, warranties and covenants set
forth herein within such ninety (90) day
period and Buyer shall not have brought suit
against each such Owner as to whom this
warranty has been breached on or before the
one hundred eightieth (180th) day following
the Closing Date, any and all rights of Buyer
with respect to the foregoing warranty shall
be conclusively waived and thereafter no such
suit may be brought on account of any breach
or alleged breach of such warranty at law or
in equity. Furthermore, in no event shall
any Owner be liable for any breach of any
representation, warranty or covenant by any
other Owner. The liability of any Owner
hereunder for any breach of any
representation, warranty or covenant shall be
limited to the amount set forth in Exhibit
Owners hereto attached, and all liability in
excess of said amount with respect to such
Owner is hereby expressly waived and released
by Buyer.
9. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to, and
covenants with Seller, as follows, which
representations, warranties, and covenants are
true, correct and complete on the date of this
Agreement, shall be true, correct, and
complete at Closing and shall survive Closing:
(a) Neither its entering into this Agreement
or its consummation of the transactions
contemplated hereby does nor will violate any
indenture, agreement or order by which Buyer
is bound, or any rule, order, or law
applicable to it.
(b) The execution and delivery of this
Agreement has been approved by the directors
or officers, as applicable, of Buyer and no
further corporate action is required on the
part of Buyer to consummate the transaction
contemplated hereby. There are no proceedings
pending or threatened by or against Buyer in
bankruptcy, insolvency or reorganization in
any state or federal court which adversely
affect the ability of Buyer to enter into and
perform its obligations under this Agreement
10. Additional Covenants.
(a) Seller shall not execute any new Lease,
license, or other similar agreement, or amend
any Lease, license or other similar agreement
affecting the ownership or operation of any
Individual Property which is not a multi-
family residential property without Buyer's
prior written consent, not to be unreasonably
withheld or delayed. If Buyer shall fail to
respond to any request for such consent within
five (5) business days following request
therefor, Buyer shall be considered to have
granted its consent in accordance with such
request. Seller shall comply with all of its
obligations under any Lease, license or other
similar agreement affecting the ownership or
operation of any Individual Property. Seller
shall be entitled to lease any units in any
multi-family residential property in
accordance with current practices and
procedures.
(b) Seller shall not amend any Contract or
enter into any new Contract with respect to
the use operation or enjoyment of the Property
that will survive the Closing, without Buyer's
prior written consent, not to be unreasonably
withheld or delayed.
(c) Until Closing, Seller shall operate,
maintain and manage the Property consistent
with present operations and management, and
shall maintain the Property in its present
condition, reasonable wear and tear and damage
by casualty and as a result of eminent domain
excepted. Seller shall deliver the Property
at Closing in substantially the same condition
as it is on the Date of this Agreement,
reasonable wear and tear and damage by
casualty and as a result of eminent domain
excepted. Without expense to Buyer, all
repairs and replacements, structural and non-
structural, ordinary and extraordinary, shall
be made which are required to maintain each
Individual Property in its present condition,
reasonable wear and tear and damage by
casualty and as a result of eminent domain
excepted.
(d) Seller shall promptly notify Buyer of its
receipt of any notice from any party alleging
that Seller is in default of its material
obligations under any Lease or other similar
agreement demising more than 2,500 square feet
or materially affecting the ownership or
operation of any Individual Property which is
not a multi-family residential property.
(e) Except in the ordinary course of conduct
of Seller's business and except as required to
maintain the Property as required herein in
Paragraph 10(c), Seller will not undertake any
action to alter the condition of any
Individual Property, such as, without
limitation, the removal therefrom of soil or
other ground conditions, or making of any
changes or alterations to the buildings and
improvements comprising any Individual
Property.
11. Risk of Loss or Damage.
(a) Seller shall bear the risk of all loss or
damage to the Property from all causes until
Closing. Seller represents that it has, and
will maintain, pending Closing, policies of
fire and extended coverage insurance as
presently insured. Seller will deliver to
Buyer within five (5) days after the date
hereof, a certificate issued by such insurer
evidencing that such policy is in effect.
(b) If at any time prior to Closing any
portion of any Individual Property is
destroyed or damaged as a result of fire or
any other casualty whatsoever (a "loss"),
Seller shall promptly give written notice
thereof to Buyer and if the amount of the loss
exceeds Three Hundred Thousand Dollars
($300,000.00), Buyer shall have the right to
(I) proceed with this Agreement and to notify
Seller that Buyer has elected to purchase such
Individual Property, and Seller shall use any
available insurance proceeds to clear the site
of debris or stabilize the site and all
remaining insurance proceeds shall be paid to
Buyer at Closing. All unpaid claims and
rights in connection with any such losses
shall be assigned to Buyer at Closing (less
the amount expended by Seller pursuant to the
preceding sentence) without in any manner
affecting the Purchase Price; or (ii) Buyer
may terminate this Agreement and the Deposit
shall be returned to Buyer and this Agreement
therefore shall become void and there shall be
no further obligation or liability on any of
the parties hereto. If the amount of the loss
is less than Three Hundred Thousand Dollars
($300,000.00), the parties shall proceed under
the provisions of (I) above.
12. Condemnation.
(a) If prior to Closing any condemnation or
proceeding in the nature of eminent domain is
commenced or any change is made, or proposed
to be made, to the current means of ingress
and egress to any Individual Property or to
the roads or driveways adjoining any
Individual Property, or to change such ingress
or egress or to change the grade thereof,
Seller agrees immediately to notify Buyer
thereof. In the event any such proceeding is
commenced, or in the event any such change is
made or proposed, which materially affects
access to such Individual Property, Buyer
shall have the right, at Buyer's option, to
terminate this Agreement by giving written
notice to Seller within thirty (30) days after
receipt of such notice and the Deposit shall
be returned to Buyer and this Agreement
therefor shall become void and there shall be
no further obligation or liability on any of
the parties hereto. If Buyer does not so
terminate this Agreement, Buyer shall proceed
to Closing hereunder as if no such proceeding
had commenced and will pay Seller the full
Purchase Price in accordance with this
Agreement, the Seller shall assign to Buyer,
all of its right, title and interest in and to
any compensation for such condemnation, and
Buyer shall have the right (in the name of
Buyer or Seller or both) to negotiate for, to
agree to and to contest all offers and awards,
subject to Seller's consent, not to be
unreasonably withheld or delayed.
13. Default.
(a) Default by Seller. If Seller, without
the right to do so and in default of its
obligations hereunder, fails to complete
Closing or otherwise is in default of its
representations or obligations hereunder and
Seller does not cure the default within thirty
(30) days of the Closing Date (said Closing
Date being automatically extended for such
thirty (30) day period in the event of a
default), Buyer may, as its remedy therefor,
either (I) enforce specific performance of
Seller's obligation to convey the Property to
Buyer pursuant hereto, or (ii) terminate this
Agreement and receive the Deposit from Escrow
Agent. The foregoing shall be Buyer's sole
and exclusive remedy against Seller at law and
in equity. Buyer expressly agrees not to file
or otherwise place of public record a lis
pendens or other notice of dispute hereunder
with respect to any of the Property and
acknowledges that any such filing or placement
shall constitute a material default hereunder
by Buyer as to which the limitation on damage
set forth in Subsection 13(b) hereinbelow
shall not apply.
(b) Default by Buyer. If Buyer defaults
under this Agreement, then Seller's sole and
exclusive remedy shall be to cause and direct
the Escrow Agent to deliver the Deposit then
held by Escrow Agent to Seller, the amount
thereof being fixed and liquidated damages (it
being understood that Seller's actual damages
in the event of such default are difficult to
ascertain and that such proceeds represent the
parties' best current estimate of such
damages), and upon payment of the Deposit to
Seller, this Agreement shall terminate and the
parties shall be released from all further
liability or obligation hereunder except as
otherwise stated herein.
(c) In the event either party resorts to
litigation to resolve a dispute hereunder, the
prevailing party shall be entitled to recover
its reasonable attorney's fees and costs from
the other party.
14. Entire Agreement.
This Agreement contains the entire agreement
among Seller and Buyer pertaining to the
Property, and there are no other terms,
obligations, covenants, representations,
statements or conditions, oral or otherwise,
of any kind whatsoever concerning this sale.
Any changes or additions to this Agreement
must be made in writing and executed by the
parties hereto. All Exhibits attached to this
Agreement are made a part of this Agreement.
This Agreement may be executed in
counterparts, each of which is an original,
but all of which are a single instrument.
15. Notices.
All notices, demands, waivers and other
communications required or permitted by this
Agreement shall be in writing and shall be
deemed to have been given if and when sent by
telecopy, personally delivered or one (1)
business day after delivery to a nationally
recognized overnight delivery service, in any
event with evidence of receipt to the
following addresses (or to such other address
as a party may hereafter designate for itself
by notice to the other party):
(a) If to Buyer:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Bros., Ltd.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Saul, Ewing, ▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P. 0. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
(b) If to Seller:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Berkshire Property Management
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
The Berkshire Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
and a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Goulston & Storrs, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
(c) If to Escrow Agent:
▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P. 0. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
16. No Recording.
This Agreement shall not be recorded in any
Clerk's Office, Recorder's Office or in any
office or place of public record. If Buyer
records this Agreement or causes or permits
this Agreement to be recorded, Seller may
elect to treat such act as a breach of this
Agreement and may declare this Agreement
terminated, null and void by recording notice
of such termination in the same records in
which this Agreement has been recorded.
17. Disposition of the Deposit.
The Deposit shall be applied as follows:
(a) If Closing is held, the Deposit then held
by Escrow Agent shall be paid to the Seller
and shall be credited towards the Purchase
Price.
(b) If Closing is not held by reason of
Buyer's default, the Deposit then held by
Escrow Agent shall be paid to the Seller as
Seller's sole and exclusive remedy, as
liquidated damages in satisfaction of all
remedies against Buyer which Seller would
otherwise have available at law or in equity.
(c) If this Agreement is terminated due to a
default hereunder by Seller or if this
Agreement is terminated by Buyer pursuant to
any right to so terminate, the Deposit then
held by Escrow Agent shall be paid to Buyer.
18. Commissions.
Buyer shall be solely responsible for the
payment of a brokerage commission to Colliers,
Lanard and Axilbund ("Broker") pursuant to a
separate agreement between Buyer and Broker.
Buyer represents that it has not dealt with
any brokers except Broker. Seller and Buyer
represent that there are no other brokers
involved in this transaction. Buyer and
Seller will indemnify and defend the other
from any and all claims, actual or threatened,
for compensation by any third party by reason
of breach of its or their representation or
warranty contained in this Section. The
provisions of this Paragraph 18 shall survive
Closing.
19. Time.
All times specified in this Agreement
shall be of the essence of this Agreement.
20. Headings.
The headings preceding the text of the
paragraphs hereof are inserted for convenience
of reference only and shall not constitute a
part of this Agreement, nor shall they affect
its meaning, construction or effect.
21. Governing Law.
This Agreement shall be governed by, and
construed in accordance with, the laws of the
Commonwealth of Massachusetts (without giving
effect to the conflict of law rules of that
state).
22. Binding Effect.
This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and
their respective heirs, executors,
administrators, legal representatives,
successors and assigns. Notwithstanding the
foregoing, however, Buyer may not, except as
set forth in the next sentence hereof, assign
this Agreement or Buyer's rights hereunder
without Seller's prior written consent and any
attempt so to do shall be considered to be a
material default by Buyer hereunder. Buyer
does have the right to assign this Agreement
to any entity in which ▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or either of them) have
voting control or an ownership interest of not
less than twenty percent (20%).
23. Confidentiality.
It is further understood and agreed by
the parties that the terms and conditions of
this Agreement, all communications and
negotiations relating hereto, as well as all
information delivered by either party to the
other or obtained by either party in
connection herewith (including, without
limitation, the Seller's Deliveries and any
Environmental Reports) shall be kept
confidential, and it shall be a material
breach of this Agreement for either Seller or
Buyer to reveal the contents of this Agreement
or any of such information to any third party,
except as provided in this Paragraph 23,
without the written consent of the other first
obtained, unless such information is public
information or disclosure is required by law.
The parties acknowledge that such information
the terms and conditions of this Agreement may
be disclosed to persons or any other body or
entity on a "need to know" basis in connection
with effectuating the terms and provisions of
this Agreement or the completion of any of the
obligations of either Buyer or Seller
hereunder, including without limitation
disclosures to Buyer's potential lenders or
joint venture partners or other investors, to
title companies and examiners, professional
consultants, engineers, experts, workmen,
inspectors or other persons performing
necessary or desirable inspections, work or
functions in connection with the consummation
of the terms and conditions of this Agreement
(all of the foregoing hereinafter referred to
as "Consultants'), provided that all such
Consultants shall first agree to be bound by
the confidentiality provisions of this
Paragraph 23. The parties hereto agree that
Buyer will not, without the prior consent of
Seller, issue any press release or paid
advertisement announcing the sale contemplated
hereby or disclosing any of the terms hereof.
This provision shall survive the closing for a
period of one (1) year.
24. Legal Requirements.
If and to the extent Seller or Buyer
determines, on or prior to the Due Diligence
Expiration Date, that any statement,
certification, representation, agreement,
disclosure or other provision ("Provision")
was or is required to be included in this
Agreement or in any deed or any of the other
documents to be delivered at Closing with
respect to any Individual Property pursuant to
the terms and provisions of any applicable
law, ordinance or other governmental rule or
regulation including, without limitation, any
zoning certification, such party shall have
the right to send to the other party a written
request to amend this Agreement retroactive to
the date of this Agreement (and confirm such
amendment in writing) to include such
Provision and to include such Provision in the
deed or other Closing documents and the party
receiving such request shall approve or deny
such request by giving written notice to the
requesting party within ten (10) days after
receipt of the request, such approval not to
be unreasonably withheld. If the request is
reasonably denied, the requesting party shall
have the right to terminate this Agreement (by
written notice given to the other party within
ten (10) days after the date of receipt of the
notice of denial); and in the event of such
termination neither party shall have any
further rights or obligations under this
Agreement, and the Deposit, shall be returned
to Buyer.
25. Survival.
Except as expressly otherwise set forth
herein, the representations and warranties
contained in this Agreement, covenants,
agreements and indemnities made herein, and
all obligations to be performed under the
provisions hereof do not survive the Closing.
The delivery of the deeds by Seller, and the
acceptance thereof by Buyer, shall be deemed
the full performance and discharge of every
obligation on the part of Seller to be
performed hereunder and the payment by Buyer
of the purchase price, and the acceptance
thereof by Seller, shall be deemed the full
performance and discharge of every obligation
on the part of Buyer to be performed
hereunder, except for any of the respective
obligations of Seller and Buyer specifically
stated to survive the Closing.
26. (a) Indemnity by Seller. (I)
Provided that Closing has taken place
hereunder and provided further that the claim
is made hereunder within ninety (90) days
following the Closing Date and suit is brought
thereon within one hundred eighty (180) days
following the Closing Date, Seller agrees to
indemnify and hold harmless Buyer from and
against, and to reimburse Buyer with respect
to, any and all claims, demands, causes of
action, losses, damages, liabilities, costs
and expenses (including reasonable attorney's
fees and court costs) asserted against or
incurred by Buyer by reason of or arising out
of a breach of any material representation or
warranty of Seller as set forth in this
Agreement.
(ii) Indemnification for Seller's Tax
Obligations. Seller shall indemnify, defend
and save and hold harmless Buyer from any
loss, cost, liability or expense (including,
without limitation, reasonable counsel fees
and court costs) incurred, paid or suffered by
Buyer arising out of or by reason of any claim
made by any State taxing or employment
authorities asserting or indicating any claims
or possible claims for unpaid taxes (other
than realty transfer taxes and real estate
taxes for which adjustment is to be made
hereunder), penalties, interest or court costs
related thereto of Seller.
(b) Indemnity by Buyer. Provided that
Closing has taken place hereunder, Buyer
agrees to indemnify and hold harmless Seller
from and against, and to reimburse Seller with
respect to, any and all claims, demands,
causes of action, losses, damages,
liabilities, costs and expenses (including
reasonable attorney's fees and court costs)
asserted against or incurred by Seller by
reason of or arising out of (a) a breach of
any representation or warranty of Buyer as set
forth in this Agreement, (b) the failure of
Buyer to perform any obligation required by
this Agreement to be performed by it, and (c)
the ownership, maintenance and operation of
the Property after Closing.
All of the provisions of this Section 26 shall
survive Closing for a period of ninety (90)
days.
27. Miscellaneous.
(a) Both parties to this Agreement having
participated fully and equally in the
negotiation and preparation hereof, this
Agreement shall not be more strictly
construed, or any ambiguities within this
Agreement resolved, against either party
hereto.
(b) In the event Buyer elects to terminate
this Agreement, Buyer shall return all of
Seller's Deliveries and shall provide Seller
copies (at Seller's cost for reproduction) of
all reports, inspections, surveys, title
commitments and the like relating to any
Individual Property obtained by Buyer during
the Due Diligence Period of this Agreement.
(c) During the term of this Agreement of
Sale, Seller shall not negotiate with any
third party regarding the sale of all or any
portion of the Property.
28. Agent's Leasing Commissions. Agent
agrees that if the Closing shall occur,
neither Agent nor any affiliate of Agent nor
any affiliate of Seller shall seek any
commissions on account of any leases entered
into by any Owner prior to the Closing Date.
29. Employees. Seller, for itself and
its affiliates, agrees that it and its
affiliates shall not seek to, and will not,
employ any current on-site management
personnel involved with the managing of any
Property for a six (6) month period from and
after the Closing Date, absent Buyer's prior
written consent, in its sole discretion.
30. Transition. Seller, for itself and
its affiliates, agrees to cooperate reasonably
with Buyer for a reasonable period of time
after Closing in attempting in good faith to
effectuate an orderly transition of the
ownership and operation of the Property.
31. Liability of Agent. As set forth above,
Agent is executing this Agreement in its
capacity as Agent for Seller. Buyer agrees
that Agent shall have no personal liability
whatsoever pursuant to this Agreement except
with respect to Agent's representation and
warranty set forth in Section 8(a) above.
IN WITNESS WHEREOF, Buyer and Seller have
executed this Agreement, intending to be
legally bound hereby, as of the date and year
first above written.
BUYER:
KEJACK, INC.
By: __________________________ (SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
FOR SELLER:
Berkshire Realty Enterprises Limited
Partnership d/b/a Berkshire Property
Management
By: __________________________ (SEAL)
Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
JOINDER BY ESCROW AGENT
Saul, Ewing, ▇▇▇▇▇▇ & ▇▇▇▇ LLP executes this
Agreement of Sale to evidence its agreement to
act as the Escrow Agent under this Agreement
of Sale.
By their execution of this Agreement, Seller
and Buyer confirm their agreement to the
provisions of this Joinder by Escrow Agent.
The Escrow Agent may act upon any instrument
or other writing believed by Escrow Agent in
good faith to be genuine and to be signed and
presented by the proper person, and shall not
be liable in connection with the performance
of any duties imposed upon the Escrow Agent by
the provisions of this Agreement, except for
the Escrowee's own willful default or gross
negligence. The Escrow Agent shall ▇▇▇▇ no
duties or responsibilities except those set
forth in this Agreement, unless the same is in
writing and signed by Seller and Buyer, and,
if the Escrow Agent's duties hereunder are
affected, unless Escrow Agent shall have given
prior written consent hereto. Seller and
Buyer shall jointly and severally indemnify
and hold Escrow Agent harmless from and
against all costs, claims, and expenses,
including reasonable attorneys' fees, relating
to the performance by Escrow Agent of Escrow
Agent's obligations under this Agreement,
except with respect to Escrow Agent's willful
default or gross negligence.
SAUL, EWING, ▇▇▇▇▇▇ & ▇▇▇▇ LLP
BY: _________________________________
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Print Title: Partner
EXHIBITS
Exhibit List of Properties
Exhibit Allocations
Exhibit Seller's Deliveries
Exhibit Environmental Reports
Exhibit Permitted Exceptions
Exhibit Rent roll
Exhibit ACM Notice
Exhibit Tenant Estoppel
Exhibit Owners
EXHIBIT SELLER'S DELIVERIES
1. Copies of all hazard, rent loss,
liability and other insurance policies
currently in force with respect to the
Property.
2. Copies of all engineering and
architectural plans and specifications,
drawings, studies, floor plans and surveys
relating to the Property (collectively the
"Plans"), in Seller's possession or control,
and copies of any reports or studies
(including, but not limited to, title
commitments or title policies or title
abstracts, environmental reports or studies,
inspection reports of governmental authorities
or insurance carriers), in Seller's possession
or control, in respect of the title to or the
physical condition or operation of the
Property or recommended improvements thereto.
3. Copies of the ▇▇▇▇ or bills issued for
the years 1994, 1995 and 1996 for all real
estate taxes and personal property taxes and
copies of any and all notices pertaining to
real estate taxes or assessments applicable to
the Property (the "Tax Bills"). Seller shall
promptly deliver to Buyer copies of any such
bills or notices received by Seller after the
date of this Agreement, even if received after
Closing.
4. To the extent that Seller shall be party
thereto or shall have any of the following in
Seller's possession or control, copies of all
Leases, Guaranties, brokerage commission,
management, leasing, maintenance, repair,
service, pest control and supply contracts
(including, without limitation, janitorial,
elevator, laundry and landscaping agreements),
equipment rental agreements and master antenna
agreements (if applicable), guaranties and
warranties in any way relating to the
Property, and any other contracts or
agreements relating to or affecting the
Property (other than Major Repair Contracts,
as defined herein), all as amended to date
(collectively, the "Contracts").
5. Copies of all contracts, to which Seller
is party or which are in Seller's possession
for repairs or capital replacements to be
performed at the Property, or covering such
work performed during the two (2) years
immediately preceding the date of this
Agreement for a contract price in excess of
$5,000.00 ("Major Repair Contracts").
6. Copies of all certificates of occupancy,
licenses, permits, authorizations and
approvals in Seller's possession or control
issued by any governmental authority having
jurisdiction thereover in respect of the
Property, or any portion thereof, occupancy
thereof or any present use thereof
(collectively, the "Governmental Approvals").
7. Copies of all Environmental Reports.
8. Copies of operating statements for each
Individual Property for the years 1994, 1995
and 1996 and for the most recent partial
year's reporting period.
EXHIBIT ALLOCATIONS
Alderwood $ ▇▇.▇
▇▇▇▇ ▇▇▇▇▇ $ 1.3
Canyon $ 14.8
Coral Plaza $ 3.1
Encino Oaks $ 4.5
College Plaza $ 6.1
Cumberland $ 7.3
Luria Plaza $ 7.7
▇▇▇▇ Corners $ 6.7
High Point $ 15.2
Northeast Plaza$ 3.8
▇▇▇▇▇▇▇▇▇ Square $20
Spring Valley $30
Tradewinds $ 8.8
$140.00
EXHIBIT PERMITTED EXCEPTIONS
1. All present and future zoning and
building laws, ordinances, codes, restrictions
and regulations of the applicable municipality
and all other governmental authorities having
jurisdiction, and all present or future
violations thereof, if any.
2. Any state of facts: (I) a physical
inspection of the Property would disclose;
(ii) shown on the Survey; or (iii) disclosed
by an update of said survey or by a survey
inspection made by Purchaser's title insurer,
provided such update or inspection does not
disclose any additional state of facts which
would materially restrict or prohibit the
maintenance or use of the Improvements for
their present purposes.
3. All of the Leases.
4. Possible lack of or revocable nature
of the right, or the restricted right, if any,
to construct, maintain or use any space,
facilities or appurtenances outside the
building lines, whether on, over or under the
ground, including, without limitation, all
vaults, conduits, walls, columns, foundations,
vent or fuel pipes, stone, brick or masonry
work or trim, cornices, steps, ▇▇▇▇▇▇,
chimneys, decorations, plantings, flagpoles,
standpipes, doors, sprinkler pipes, marquees,
awnings, signs, and window and sidewalk
openings.
5. Unpaid real estate taxes,
assessments, water or tunnel charges or sewer
charges and other public charges for current
fiscal or other tax years, subject
nevertheless to adjustment with respect
thereto as provided for in the Agreement to
which this Exhibit is attached.
6. All rights, covenants, conditions,
easements, rights of way, agreements and
restrictions of record, provided the same do
not materially restrict or prohibit the
maintenance and use of the Property for
present use and purposes.
7. Easements of, or other rights of any
governmental authorities, and/or any public or
private utility or cable television company to
install, maintain, operate, repair, remove or
replace lines, wires, cables, conduits, pipes,
poles, distribution boxes and other equipment,
fixtures or facilities in, on, over, through
or under the Property.
8. Party walls and party wall
agreements, if any.
9. The effect of all present and future
laws and governmental regulations of the
United States, the State in which each
Individual Property and other governmental
instrumentalities, agencies, subdivisions or
authorities relating to the rights and
obligations of tenants under their respective
Leases and the rents permitted to be charged
them.
10. Rights of the public and adjoining owners
in highways, streets, roads and lanes
bounding, traversing or abutting the Property.
11. Retaining walls or other walls, bushes,
trees, ▇▇▇▇▇▇, fences and the like, extending
from or onto the Property, and any portion of
the Property lying in the bed of any street.
12. The standard printed survey related
exceptions contained in the standard form of
owner's title insurance policy issued by the
Title Company.
EXHIBIT LIST OF PROPERTIES
ATTACHED
EXHIBIT ENVIRONMENTAL REPORTS
ATTACHED
EXHIBIT RENT ROLL
ATTACHED
EXHIBIT PENDING PROCEEDINGS
ATTACHED
EXHIBIT TENANT ESTOPPEL
[LETTERHEAD OF TENANT]
_____________, 1997
Kejack, Inc.'
and its assigns
c/▇ ▇▇▇▇▇▇ Bros., Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Confirmation of Lease Agreement for Premises at
______________________
Gentlemen:
At the request of
_____________________________ ("Landlord") the
undersigned hereby certifies to you and agrees
as follows recognizing that you will rely on
the information contained herein:
1 The undersigned is the tenant under a
lease with Landlord, as described below:
[lease] [date] [premises] [term] [amendments]
and occupies the premises demised thereunder.
2 The above lease [, as amended as
aforesaid] (said lease [, as amended the
"Lease"), is in full force and effect and has
not [otherwise] been amended, modified,
supplemented or superseded, and together
herewith constitutes the entire agreement
between the undersigned and Landlord with
respect to said premises. There is no other
agreement (except for the agreements contained
herein) between the undersigned and the
Landlord with respect to said premises or any
other space at the above referenced property.
3 Neither the undersigned nor the Landlord
is in default under the Lease. There is no
defense, offset, claim or counterclaim by or
in favor of the undersigned against Landlord
under the Lease or against the obligations of
the undersigned under the Lease.
4 The undersigned has not received notice
and is not aware of any prior transfer,
assignment, hypothecation or pledge by
Landlord or of any of Landlord's interest in
the Lease, except to you.
5 The monthly [base, minimum] rent due
under the lease has been paid through 19__ and
all additional rent due under the Lease has
been paid through 19__.
6 There are no actions, voluntary or
otherwise, pending or, to the best knowledge
of the undersigned, threatened against the
undersigned under the bankruptcy,
reorganization, moratorium of similar laws of
the United States, any state thereof or any
other jurisdiction.
7 The undersigned has accepted possession, and taken
occupancy of, the premises; the term of the Lease has
commenced; the undersigned has commenced the payment
of rents for all space subject to the Lease; and the
expiration date of the Lease is ____________________.
8 All work to be performed by Landlord
under the Lease has been completed in
accordance with the Lease and has been
accepted by the undersigned and all
reimbursements and allowances due to the
undersigned under the Lease in connection with
any work have been paid in full.
Very truly yours,
[Tenant]
By: ___________________________
Name:
Title:
EXHIBIT ACM NOTICE
[Date of Closing]
[Purchaser's Name and Address]
Re: Transmittal of Information Regarding Asbestos-
Containing
Material and Presumed Asbestos-Containing Materials
Ladies and Gentlemen:
Pursuant to 29 C.F.R. 1910.1001(j) (the
"OSHA Regulations") building owners are
required to provide notice of the presence,
quantity and location of asbestos-containing
material ("ACM") and presumed ACM ("PACM") to
employers of employees who lease space within
the owner's building. In addition, building
owners must keep records of all information
required to be maintained by the regulations
and transfer them to subsequent owners.
In accordance with these regulations,
specifically, 29 C.F.R. 1910.1001(j)(2)(ii),
we are providing to you herewith all
information in our possession regarding ACM
and PACM at the [NAME OF FACILITY], including
copies of notices to tenants and any
applicable asbestos sampling results and
reports in our possession (such information,
notices and reports being referred to herein
collectively as the "Reports") as are required
under the OSHA Regulations.
The undersigned make no representation,
warranty, promise, covenant, agreement or
guaranty of any kind or character whatsoever,
express or implied, oral or written, past,
present or future, of, as to, concerning, or
with respect to the information and
documentation transmitted herewith, including,
without limitation, the accuracy or
completeness of the Reports or the Reports'
compliance with, or the effect of, the OSHA
Regulations.
We request that you acknowledge receipt of
these materials by signing below and
forwarding an executed copy to
________________________.
Sincerely,
[SELLER]
By: ____________________________
Name: ____________________
Title: _____________________
ACCEPTED AND ACKNOWLEDGED
ON ___________________, 199__:
[NAME OF BUYER]
By: _____________________________
Name: _____________________
Title: ______________________
Delaware
EXHIBIT OWNERS
Owners Limit of Liability
▇▇▇▇▇ Realty Limited Partnership - VII $250,000
▇▇▇▇▇ Equity Limited Partnership $250,000
▇▇▇▇▇ Cash Plus Limited Partnership $1,000,000
▇▇▇▇▇ Cash Plus II Limited Partnership $1,000,000
BRI OP Limited Partnership $500,000
Spring Valley Partnership $500,000
MSQ Mall Limited Partnership $500,000
FIRST AMENDMENT TO AGREEMENT OF SALE
THIS FIRST AMENDMENT TO AGREEMENT OF SALE,
made as of the twelfth day of December, 1997,
by and between BERKSHIRE REALTY ENTERPRISES
LIMITED PARTNERSHIP, a Massachusetts Limited
Partnership, d/b/a BERKSHIRE PROPERTY
MANAGEMENT and KEJACK, INC., a Delaware
corporation, and its permitted assigns.
W I T N E S S E T H:
A. The parties hereto are the parties to
that certain Agreement of Sale (the
"Agreement") made as of the 2nd day of
December, 1997, relating to the sale of
certain properties. All capitalized terms not
otherwise defined herein shall have the same
meanings ascribed to such terms in the
Agreement.
B. Seller and Buyer desire to amend the
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of Ten
Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties
hereto agree as follows:
1. On or before January 16, 1998, Buyer
shall deliver to Escrow Agent an additional
One Million Five Hundred Thousand Dollars
($1,500,000), by immediately available good
funds, to be held in escrow, which monies,
together with all interest thereon, shall be
considered to be part of the Deposit.
2. The provisions of Section 2(b) of the
Agreement are hereby deleted.
3. The provisions of Section 3(a) of the
Agreement are hereby deleted, and the
following is substituted therefor:
(a) The conveyance of the Property, the
payment of the Purchase Price, and the
completion of all of the transactions
contemplated by this Agreement ("Closing")
shall take place at the offices of ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇ LLP, Wilmington, Delaware. The
Closing shall commence at 10:00 a.m. on
January 30, 1998 (the "Closing Date").
4. Section 3(b)(1) of the Agreement is
hereby modified by adding the following
sentences at the end thereof:
"In addition, to the extent that any
Individual Property is comprised, in whole or
in part, of a leasehold estate, Seller shall
deliver, in recordable form, an assignment and
assumption agreement in commercially
reasonable form conveying such leasehold
estate, together with the respective Owner's
estoppel certificate substantially in the form
of Exhibit Tenant Estoppel regarding the
leasehold estates. Such assignment and
assumption agreement shall be executed by
Buyer at the Closing."
5. Section 5(b) of the Agreement is hereby
modified by replacing the date in the first
sentence thereof (i.e. "December 31, 1997")
with "January 16, 1998," such that the Due
Diligence Expiration Date is January 16, 1998.
6. Section 7(a) of the Agreement is hereby
modified by adding the following at the end
thereof:
"Two of the Individual Properties
(specifically, those properties commonly known
as ▇▇▇▇ Corners and Vero Beach) are comprised
in part of leasehold estates. At Closing,
Seller shall convey such leasehold estates to
Buyer, subject only to the terms of the leases
effecting such leasehold estates and the
Permitted Exceptions." All transfer and
recordation taxes in connection with the
recordation of an assignment and assumption
agreement shall be paid by Seller and Buyer in
accordance with local custom.
7. Section 7(c) of the Agreement is hereby
modified by adding the following at the end
thereof:
"Reference is made to the fact that the
Individual Property known as ▇▇▇▇ Corners is
presently subject to a mortgage given to ▇▇▇▇
▇▇▇▇▇▇▇ Mutual Life Insurance Company
("▇▇▇▇▇▇▇") or its affiliate. Pursuant to the
terms of said mortgage, said mortgage is not
assumable, nor may it be prepaid on the
Closing Date. Buyer will negotiate with
▇▇▇▇▇▇▇ in order to permit the loan to be
assumed or prepaid. Seller will cooperate
with Buyer in connection with such
negotiations. If the prepayment of the loan
is to be accompanied by any so-called
prepayment premium, said premium shall be the
responsibility of Buyer. If the loan may be
assumed or prepaid, Buyer agrees to assume or
prepay such loan, and the principal amount
thereof shall be deducted from the Purchase
Price and any costs or expenses incident to
such assumption or prepayment shall be borne
by Buyer. If Buyer is not able to cause the
loan to be able to be prepaid or assumed,
Seller may withdraw ▇▇▇▇ Corners from the
purview of the Agreement, and the Purchase
Price will be adjusted by subtracting
therefrom the portion thereof attributable to
▇▇▇▇ Corners, as set forth on Exhibit
Allocations; and notwithstanding the
provisions of Section 1(e) of this Agreement,
the Closing shall take place as scheduled with
respect to the remaining Individual
Properties. If the foregoing withdrawal shall
occur, neither party hereto shall be obligated
to sell or to purchase ▇▇▇▇ Corners."
8. The Exhibits attached hereto are the
Exhibits to the Agreement and include all
Exhibits which were not available at the time
the Agreement was originally executed.
9. To the extent that this instrument is
inconsistent with the Agreement, the terms and
provisions of this instrument shall control.
The Agreement is, in all other respects,
ratified and confirmed.
IN WITNESS WHEREOF, Buyer and Seller have
executed this Agreement, intending to be
legally bound hereby, as of the date and year
first above written.
BUYER:
KEJACK, INC.
By: __________________________ (SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
FOR SELLER:
Berkshire Realty Enterprises Limited
Partnership d/b/a Berkshire Property
Management
By: __________________________ (SEAL)
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
SECOND AMENDMENT
TO
AGREEMENT OF SALE
THIS SECOND AMENDMENT TO AGREEMENT OF SALE, made as of the
14th day of December, 1997, by and between BERKSHIRE REALTY
ENTERPRISES LIMITED PARTNERSHIP, a Massachusetts limited
partnership, d/b/a Berkshire Property Management, and KEJACK, INC.,
a Delaware corporation, and its permitted assigns.
WITNESSETH:
A. The parties hereto are parties to
that certain Agreement of Sale made as of the
2nd day of December, 1997, as amended by First
Amendment to Agreement of Sale made as of the
12th day of December, 1997, and modified by
those two letter-agreements dated December 17,
1997 and January 6, 1998, respectively (as so
amended and modified, the "Agreement")
relating to the sale of certain properties.
All capitalized terms not otherwise defined
herein shall have the meanings ascribed to
such terms in the Agreement.
B. Seller and Buyer desire to amend the
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of Ten
Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties
hereto agree as follows:
1. The Agreement is hereby amended by
deleting the first sentence of Article 2 of
the Agreement and replacing it with the
following sentence:
"The purchase price for the Property shall be
One Hundred Thirty-Eight Million Dollars
($138,000,000) (the "Purchase Price") and
shall be allocated as shown on Exhibit
Allocations."
2. The Agreement is hereby amended by
deleting Exhibit Allocations appended to the
Agreement and replacing it with Exhibit
Allocations attached hereto and by this
reference made a part hereof.
3. The Agreement is hereby amended by adding
Paragraph 32, as follows:
(32. Northeast Plaza Shopping Center/Baton
Rouge. The Owner of the Individual Property
known as Northeast Plaza Shopping Center has
entered into a Standard Short Form of
Agreement between Owner and Contractor dated
December 12, 1997, by and between ▇▇▇▇▇ Equity
Limited Partnership and Wastewater Treatment
Systems & Operations, Inc. (the "Contract") in
connection with the installation of a 16,000
G.P.D. concrete treatment plant and closing of
an existing wastewater treatment system, all
as more fully set forth in the Contract, a
copy of which is attached hereto as Exhibit
Contract. The Owner of said Individual
Property will use its good faith efforts to
have the Contract completed on or before
Closing and shall deliver a completely
executed Release of Liens from all contractors
and materialmen involved in connection with
the performance of the Work (as defined in the
Contract), together with a certificate from
the Contractor that Final Completion (as
defined in the Contract) has occurred. In the
event Final Completion has not occurred
pursuant to the terms of the Contract on or
before Closing, funds will be withheld from
Seller (or the aforesaid Individual Property
Owner) in an amount equal to 125% of all
monies reasonably estimated to be then due and
owing under the Contract, which escrowed funds
will be held by the Escrow Agent and will not
be released by the Escrow Agent until such
time as Final Completion has been achieved
pursuant to the terms of the Contract. Upon
presentation of the Contractor's Certificate
of Final Completion and the Engineer's Final
Certificate for Payment, as provided in
Section 2 of the Contract, and final waivers
of liens as set forth in Section 4 of the
Contract, the balance of funds held by the
Escrow Agent shall be released to the Owner of
the Individual Property. The provisions of
this Paragraph 32 shall survive Closing.)
4. The Agreement is amended by adding
Paragraph 33, as follows:
(33. Tax Appeals. The Owner of the Individual
Property known as Spring Valley Market Place
Shopping Center currently has pending one or
more proceedings, assessment appeals and/or
administrative/judicial proceedings
(collectively, the "Appeals") with various
taxing authorities as regards the current and
prior tax assessment and/or taxes due and
owing as regards the aforesaid Individual
Property. At Closing, the Owner of said
Individual Property shall assign all of its
right, title and interest in and to the
Appeals to Buyer and thereafter, neither
Seller nor the aforesaid Owner of the
Individual Property shall have any right,
title or interest in and to the Appeals or any
monies whatsoever that may become due and
owing from any taxing authority in connection
therewith. Buyer shall have the right to deal
with the Appeals in its sole and absolute
discretion to the extent said Owner of said
Individual Property could have dealt with the
Appeals but for said assignment thereof. At
Closing, the Owner of the aforesaid Individual
Property shall execute such documents as
reasonably necessary, in form and content
reasonably satisfactory to counsel to Buyer
and Seller, transferring all right, title and
interest in and to the aforesaid Appeals and
representing to Buyer that there are, on the
date of such documents, no monies due and
payable by such Owner in connection with said
Appeals. Buyer shall execute at Closing such
documents as reasonably necessary in form and
content reasonably satisfactory to counsel to
Buyer and Seller indemnifying and holding
harmless the Owner of said Individual Property
from and against any and all loss, cost and
expense arising out of or in any way connected
with said Appeals.)
5. The Agreement is amended by adding
Paragraph 34, as follows:
(34. Tenant Improvements/Leasing Commissions.
There are ongoing tenant improvements being
undertaken at certain of the Individual
Properties by Seller and/or its agents, as set
forth on Exhibit TBO 1998 attached hereto and
by this reference made a part hereof. Buyer
and Seller have agreed that at Closing there
will be an adjustment to the Purchase Price
(in favor of Buyer) in the amount of Two
Million Seventy-Two Thousand Four Hundred
Eighty-Eight Dollars ($2,072,488) on account
of such tenant improvements which are then
uncompleted or not yet fully paid for and that
such adjustment is intended as full and
complete satisfaction of any and all claims
and a full discharge of all of Seller's
responsibilities with respect to such tenant
improvements. Buyer agrees to indemnify and
hold harmless Seller and each Owner from and
against any and all claims by third parties
with respect to such tenant improvement work.)
6. The Agreement is hereby amended by adding
to Section (e) of Article 8 thereof the
following sentence:
Each Owner further represents and
warrants to Buyer,only with respect to the
Individual Property or Individual Properties
to be conveyed to Buyer by such Owner, that
there exists no tenant improvement work for
which such Owner is responsible for payment
other than any such work described on(Exhibit
TBO 1998.)
7 Escrow Agent joins in the execution
hereof to confirm the receipt of the
additional One Million Five Hundred
Thousand Dollars ($1,500,000) considered
part of the Deposit pursuant to Article 1
of the First Amendment to Agreement of
Sale.
8 To the extent that this instrument is
inconsistent with the Agreement, the
terms and provisions of this instrument
shall control. The Agreement is, in all
other respects, ratified and confirmed.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement
intending to be legally bound hereby as of the day and year first
above written.
BUYER:
KEJACK, INC.
By:_________________________
▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
SELLER:
BERKSHIRE REALTY ENTERPRISES LIMITED PARTNERSHIP d/b/a BERKSHIRE
PROPERTY MANAGEMENT
By:_________________________
Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
JOINDER BY ESCROW AGENT
SAUL, EWING, ▇▇▇▇▇▇ & ▇▇▇▇ LLP executes this instrument solely
for the purposes above stated.
SAUL, EWING, ▇▇▇▇▇▇ & ▇▇▇▇ LLP
By:___________________________
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Print Title: Partner
EXHIBIT CONTRACT
EXHIBIT ALLOCATIONS
Alderwood $10,547,100
▇▇▇▇ Plaza $ 1,281,500
Canyon $14,588,400
Coral Plaza $ 3,055,800
Encino Oaks $ 4,435,700
College Plaza $ 6,012,900
Cumberland $ 7,195,700
Luria Plaza $ 7,590,100
▇▇▇▇ Corners $ 6,604,300
High Point $ 14,982,700
Northeast Plaza $ 3,745,700
▇▇▇▇▇▇▇▇▇ Square $19,714,100
Spring Valley $29,571,700
Tradewinds $ 8,674,300
EXHIBIT TBO 1998
LAW OFFICES OF
SAUL, EWING, ▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
December 17, 1997
Via Telecopier
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Goulston & Storrs
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Kejack, Inc./Berkshire Property Management
Dear ▇▇▇:
Rather than prepare a Second Amendment to the Agreement of Sale, I would
like to utilize this letter as the agreement of our clients to amend the
Agreement of Sale to reflect on Exhibit Owners that VB Holding Corporation also
is one of the Exhibit Owners. As such, the reference to ▇▇▇▇▇ Cash Plus Limited
Partnership should be deemed amended to refer to ▇▇▇▇▇ Cash Plus Limited
Partnership and VB Holding Corporation. This also will avoid having to list
this as a Title Defect.
If the foregoing is satisfactory, I would appreciate your executing a copy
of this letter and returning it to me such that all parties will deem the
Agreement of Sale appropriately amended.
Thank you for your attention to the foregoing.
Sincerely,
s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇ on behalf of
Kejack, Inc.
WSG:sc
cc: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇(via telecopier)
AGREED AND ACCEPTED December, 1997
By: s/s ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, on behalf of
Berkshire Property Management
LAW OFFICES OF
SAUL, EWING, ▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇.▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(302) 421-6813
January 6, 1998
Via Telecopier
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Goulston & Storrs
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Berkshire Property Management
Dear ▇▇▇:
As with a prior amendment to the Agreement of Sale, it appears the owner
of College Plaza is not Berkshire Realty Company, Inc. but, rather, BRI OP
Limited Partnership. I would appreciate your executing a copy of this letter
on behalf of your client to indicate that the Agreement of Sale has been amended
to take into account the proper owner of College Plaza Shopping Center, Ft.
▇▇▇▇▇, Florida.
Sincerely,
s/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
On behalf of Kejack, Inc.
WSG:sc
cc: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (via telecopier)
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (via telecopier)
AGREED & ACCEPTED THIS January, 1998
By: s/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, on behalf of Berkshire Property Management