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PURCHASE AND SALE AGREEMENT
BETWEEN
MSA 1600 ASSOCIATES, L.P.,
a Pennsylvania limited partnership
SELLER
AND
HEALTH AND RETIREMENT PROPERTIES TRUST
a Maryland Real Estate Investment Trust
("PURCHASER")
As of March 13, 1998
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 13th
day of March, 1998 (the "Effective Date"), by and between MSA 1600 ASSOCIATES,
L.P., a Pennsylvania limited partnership, c/o ERE Yarmouth, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Seller") and HEALTH AND RETIREMENT
PROPERTIES TRUST, a Maryland real estate investment trust ("Purchaser"), ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
In consideration of covenants, promises and undertakings set forth
herein, intending to be legally bound, and for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, each of Seller and
Purchaser agrees as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell and convey the Property to
Purchaser, and Purchaser agrees to purchase the Property from Seller. The term
"Property" shall mean, collectively, the following:
(a) Certain land ("Land") located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in
Philadelphia, Pennsylvania, more specifically described in Exhibit 1.1(a)
attached hereto;
(b) The buildings and improvements, and now situated on the Land
(the "Improvements");
(c) All furniture, personal property, machinery, apparatus, and
equipment owned by Seller currently and used in the operation, repair and
maintenance of the Land and Improvements and situated thereon (collectively,"
the "Personal Property"), to the extent listed on the inventory attached hereto
as Exhibit 1.1(c). The Personal Property is subject to depletions, replacements
and additions in the ordinary course of Seller's business;
(d) All easements and appurtenances belonging to or inuring to the
benefit of Seller and pertaining to the Land, if any;
(e) The leases which are identified on the Schedule of Leases
attached hereto as Exhibit 1.1(e), and any new leases entered into pursuant to
Section 5.4, which as of the Closing affect all or any portion of the Land or
Improvements ("Leases");
(f) All contracts and agreements ("Operating Agreements") which
are listed on Exhibit 1.1(f) or which Purchaser is deemed to have approved
pursuant to this Agreement relating to the operation or maintenance of the Land,
Improvements or Personal Property, the terms of which extend beyond midnight of
the day preceding the date of the Closing;
(g) Seller's rights, if any, to the name "1600 Market Street";
(h) Assignable warranties and guaranties issued to Seller in
connection with the Improvements or Personal Property; and
(i) All transferable consents authorizations, variances or
waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Land or Improvements.
1.2 Price and Payment.
1.2.1 Purchase Price. The purchase price for the Property
("Purchase Price") is One Hundred Six Million Three Hundred Fifty Thousand
Dollars ($106,350,000) U.S.
1.2.2 Payment. The Purchase Price shall be paid by Purchaser to
Seller as follows:
1.2.2.1 Prior to the execution of this Agreement by
Purchaser, Purchaser has delivered to First American Title Insurance Company
(the "Title Company") Two Million Dollars ($2,000,000) (the "First Deposit"). If
Purchaser does not terminate this Agreement on or before the Approval Date
(hereafter defined), then Purchaser shall deliver to the Title Company on the
day after the Approval Date the additional sum of Two Million Dollars
($2,000,000) (the "Second Deposit"). The First Deposit and the Second Deposit,
together with all interest earned thereon, are herein collectively called the
"Deposit". The Deposit shall be held in escrow by the Title Company in
accordance with the terms hereof. If Purchaser terminates this Agreement on or
prior to the Approval Date, the Title Company shall promptly return the Deposit
and all accrued interest to Purchaser. If Closing occurs, the Title Company
shall pay the Deposit and all accrued interest to Seller on account of the
Purchase Price.
1.2.2.2 At the Closing, Purchaser shall pay to Seller the
Purchase Price (plus or less such amount as shall be the net amount due Seller,
or credited to Purchaser, at Closing as a result of the provisions hereinafter
in this Agreement, but net of the Deposit and accrued interest) by wire transfer
of immediately available funds to one or more bank accounts to be designated by
Seller.
1.3 Closing. Payment of the Purchase Price and the closing hereunder
(the "Closing") will take place on Monday, March 30, 1998 at the offices of
Wolf, Block, ▇▇▇▇▇▇ and
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▇▇▇▇▇-▇▇▇▇▇ LLP commencing at 10:00 a.m. local time, or at such other time and
place as may be agreed upon in writing by Seller and Purchaser.
ARTICLE II
TITLE AND SURVEY
2.1 Title and Survey. Upon signing this Agreement, Purchaser, at its
sole cost and expense, shall order a Commitment for title insurance on the Land
to be issued by the Title Company, a copy of which shall be attached hereto as
Exhibit 2.1 ("Title Commitment"). Purchaser may, at its sole cost and expense,
obtain a survey of the Land ("Survey"). Purchaser shall have until the date
occurring ("Interim Date") ten (10) days after receipt of the Title Commitment
or Survey, as the case may be, (but not later than the Approval Date) to provide
written notice to Seller of any matters shown by the Title Commitment or Survey
which are not satisfactory to Purchaser, which notice ("Title Notice") shall
specify the reason such matter(s) are not satisfactory and the curative steps
necessary to remove the basis for Purchaser's disapproval. Seller and Purchaser
shall then have until the Approval Date to make such arrangements or take such
steps as they shall mutually agree to satisfy Purchaser's objection(s);
provided, however, that Seller shall have no obligation whatsoever to expend or
agree to expend any funds, to undertake or agree to undertake any obligations,
or otherwise to cure or agree to cure any title or survey objections, and Seller
shall not be deemed to have any obligation to cure unless Seller expressly
undertakes such an obligation by a written notice to, or written agreement with,
Purchaser given or entered into on or prior to the Approval Date and which
recites that it is in response to a Title Notice. Purchaser's sole right with
respect to any Title Commitment or Survey matter to which it objects in a Title
Notice given in a timely manner shall be to elect on or before the Approval Date
to terminate this Agreement pursuant to Section 2.4, hereof. All matters shown
on the Title Commitment and/or Survey with respect to which Purchaser fails to
give a Title Notice on or before the last date for so doing, or with respect to
which a timely Title Notice is given but Seller fails to undertake an express
obligation to cure as provided above, shall be deemed to be approved by
Purchaser and "'Permitted Encumbrances" as provided in Section 2.3 hereof,
subject, however, to Purchaser's termination right provided in Section 2.4
hereof.
2.2 Notwithstanding any provision set forth above in Section 2.2 to the
contrary, Seller agrees, at or prior to the Closing:
(i) to furnish pay-off statements, valid through the business
day following Closing, from all holders of mortgages of record, (such mortgages
are herein called the "Seller Mortgage(s)") and to pay in full all Seller
Mortgage(s);
(ii) to deliver to the Title Company an original executed
copy of the Affidavit (as hereinafter defined);
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(iii) subject to the proration provisions set forth in
Section 4.4, to cause to be removed from the Title Commitment the exception for
1998 and prior year real estate taxes, provided that the same are currently due
and payable;
(iv) subject to the proration provisions set forth in Section
4.4, to cause to be removed from the Title Commitment the exception for water
and sewer rent to the date of Closing, provided that the same are currently due
and payable;
(v) subject to the proration provisions set forth in Section
4.4, to cause to be removed from the Title Commitment the exception for fire
service charges, provided that the same are currently due and payable;
(vi) to cause to be removed from the Title Commitment the
requirement for proof with regard to the identity of the general partners in
Seller; and
(vii) to deliver to the Title Company an affidavit that
Seller has not filed an Election under Chapter 7 of Title 39 of the Pennsylvania
Consolidated Statutes, provided that Seller has not filed such Election.
2.3 Permitted Encumbrances. Unless Purchaser timely terminates this
Agreement pursuant to Section 2.4 hereof, Purchaser shall be deemed to have
approved the Property subject to the following (referred to herein collectively
as "Permitted Encumbrances"):
2.3.1 All exceptions to title shown in the Title Commitment or
matters shown on the Survey which Purchaser has approved or is deemed to have
approved pursuant to Section 2.2 hereof;
2.3.2 All contracts and Leases in connection with the Property
which Purchaser has approved or is deemed to have approved pursuant to this
Agreement, including the contracts listed on Exhibit 1.1(f);
2.3.3 The lien of non-delinquent real property, taxes and
assessments (including the Special Services District Assessment);
2.3.4 Rights of parties in possession pursuant to the Leases,
whether or not shown by the public records;
2.3.5 Subject to Purchaser's right to obtain a Survey and send
Seller a Title Notice under Section 2.2, discrepancies, conflicts in boundary
lines, shortages in area, encroachments, and any state of facts which an
inspection of the Property would disclose, whether or not shown by the public
records;
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2.3.6 Subject to Purchaser's right to obtain a Survey and send
Seller a Title Notice under Section 2.2, easements or claims of easements
whether or not shown by the public records;
2.3.7 Subject to the proration provisions of this Agreement, any
service, installation, connection, maintenance or construction charges pursuant
to the Operating Agreement s which Purchaser is required to assume pursuant to
this Agreement, and any charges for sewer and water; and
2.3.8 Leaseholds pursuant to the Leases, rights of vendors and
holders of security interests on personal property installed upon the Property
by tenants, and rights of tenants pursuant to the Leases to remove trade
fixtures at the expiration of the term of the Leases. .
2.4 Purchaser's Right to Terminate. If, as a result of its various
investigations, Purchaser determines that purchasing the Property is not a
suitable investment for its purposes, Purchaser shall have the right, by giving
to Seller written notice ("Termination Notice") on or before Friday, March 27,
1998 ("Approval Date"), to terminate this Agreement. In the event this Agreement
is timely terminated by Purchaser on or prior to the Approval Date, the Escrow
Agent shall promptly return the Deposit and accrued interest to Purchaser, and
neither party shall have any further rights or obligations under this agreement,
except for the obligations which are stated in Section 10.21 to survive a
termination of this Agreement. If for any reason whatsoever the Seller shall not
have received the Termination Notice on or prior to the Approval Date, Purchaser
shall be deemed to have irrevocably waived the right of termination granted
under Section 2.4, and such right of termination shall be of no further force or
effect, and Purchaser shall be bound to proceed to Closing and consummate the
transaction contemplated hereby pursuant to the terms of this Agreement.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser shall
have furnished to Seller a Title Notice, Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first arising between (a)
the date which is the later of (i) the effective date of Purchaser's Title
Commitment referred to above or (ii) the Effective Date, and (b) the Closing
Date. With respect to any objections to title set forth in such notice, Seller
shall have the same option to cure and Purchaser shall have the same option to
accept title subject to such matters or to terminate this Agreement as those
which apply to any Title Notice given by Purchaser before the Interim Date. If
Seller elects to attempt to cure any such matters, the date for Closing shall be
automatically extended by a reasonable additional time to effect such a cure,
but in no event shall the extension exceed sixty (60) days after the date for
Closing set forth in Section 1.3.3 hereof.
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ARTICLE III
INSPECTIONS
3.1 Right of Inspection. Prior to Closing, Purchaser shall have the
right to make a physical inspection of the Property.
3.1.1 Purchaser shall have the right to examine at such place or
places at the Property, in the offices of the property manager or elsewhere as
the same may be located, any operating files maintained by Seller or its
property manager in connection with the leasing, maintenance and/or management
of the Property, including, without limitation, the Leases, lease files,
operating agreements, insurance policies, bills, invoices, receipts and other
general records relating to the income and expenses of the Property,
correspondence, surveys, plans and specifications, warranties for services and
materials provided to the Property, engineering reports, environmental audits
and similar materials.
3.1.2 Purchaser shall not have the right to examine materials not
directly related to the leasing, maintenance and/or management of the Property,
such as Seller's internal memoranda, financial projections, budgets, appraisals,
accounting and tax records and similar proprietary or confidential information.
3.1.3 Purchaser understands and agrees that any on-site
inspections of the Property shall be conducted upon at least twenty-four (24)
hours' prior written notice to Seller and in the presence of Seller or its
representative.
3.1.4 Purchaser agrees to indemnify against and hold Seller
harmless from any claim for liabilities, costs, expenses (including reasonable
attorneys' fees actually incurred), damages or injuries arising out of or
resulting from the inspection of the Property by Purchaser or its agents.
3.1.5 All inspections shall occur at reasonable times agreed upon
by Seller and Purchaser and shall be conducted so as not to interfere
unreasonably with use of the Property by Seller or its tenants.
ARTICLE IV
OBLIGATIONS AT CLOSING
4.1 Seller's Deliveries at Closing. Seller shall deliver at the Closing
the following:
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(a) a duly executed special warranty deed (the "Deed") conveying
the Land and Improvements, subject to the Permitted Exceptions; the warranty of
title in the Deed will be only as to claims made by, through or under Seller and
not otherwise;
(b) a duly executed ▇▇▇▇ of sale conveying the Personal Property,
without warranty of title or use and without warranty, expressed or implied, as
to merchantability and fitness for any purpose (it being acknowledged and
agreed, however, that no agreement has been made between Seller and Purchaser
with respect to an allocation of any portion of the Purchase Price to the
Personal Property);
(c) a duly executed Assignment and Assumption Agreement ("Lease
Assignment Agreement") wherein Seller shall assign to Purchaser, and Purchaser
shall assume, the landlord/lessor interest in and to the Leases and pursuant to
which Purchaser shall indemnify Seller and hold Seller harmless from and against
any and all claims pertaining to the Leases arising from and after the Closing,
including without limitation, claims made by tenants with respect to tenants'
security deposits to the extent paid, credited or assigned to Purchaser;
(d) a duly executed Assignment and Assumption Agreement
("Operating Agreement Assignment Agreement") wherein Seller shall assign to
Purchaser, and Purchaser shall assume, Seller's interest in the Operating
Agreements, to the extent assignable, and Purchaser shall indemnify Seller and
hold Seller harmless from and against any and all claims pertaining to the
Operating Agreements arising from and after the Closing;
(e) the Leases which are still in effect as of Closing and any new
leases entered into pursuant to this Agreement; and a current listing of any
tenant security deposits and prepaid rents held by Seller with respect to the
Property;
(f) copies of all Operating Agreements relating to the Property;
(g) a Certification Statement from the Department of Licenses and
Inspections of the City of Philadelphia regarding outstanding notices of
violations and the legality or illegality of the existing use;
(h) copies of all transferable warranties and guarantees then in
effect, if any, with respect to the Improvements or any repairs or renovations
to the Improvements and Personal Property;
(i) copies of books and records at or relating to the Property
held by or for the account of Seller, including without limitation, plans and
specifications and lease applications, to the extent available;
(j) a Seller's Title Company Affidavit in the form attached hereto
as Exhibit 4.1(j) (the "Affidavit");
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(k) a certificate of Seller to the effect that the representations
and warranties of Seller set forth in Section 5.1 are true and correct in all
material respects as of Closing, or setting forth any material respect in which
any thereof is not true and correct;
(l) partnership and corporate authorizations for Seller in form
and substance reasonably satisfactory to Purchaser;
(m) an incumbency affidavit for Seller in form and substance
reasonably satisfactory to Purchaser;
(n) tenant notice letters in the form attached hereto as Exhibit
4.1(n);
(o) A FIRPTA affidavit in the form attached hereto as Exhibit
4.1(o); and
(p) Such other documents, instruments or other papers or things
necessary to carry out the obligations of Seller hereunder, provided such do not
impose any liability or obligation upon Seller in excess of the liabilities and
obligations they have agreed to bear pursuant to this Agreement.
4.2 Purchaser's Deliveries at Closing. Purchaser shall deliver at the
Closing the following:
(a) the Purchase Price (by causing the Title Company to disburse
to Seller the Deposit, and by Purchaser paying the balance of the Purchase
Price);
(b) authorizations for Purchaser in form and substance reasonably
satisfactory to Seller;
(c) incumbency affidavits for Purchaser in form and substance
reasonably satisfactory to Seller;
(d) a letter duly executed by Purchaser, confirming that Purchaser
is not acquiring the Property with the assets of an employee benefit plan as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA"); and, in the event Purchaser is unable or unwilling to make such a
representation, Purchaser shall be deemed to be in default hereunder, and Seller
shall have the right to terminate this Agreement and to receive and retain the
Deposit;
(e) a Certificate of Purchaser to the effect that the
representations and warranties of Purchaser set forth in Section 5.5 are true
and correct in all material respects as of Closing, or setting forth any
material respect in which any thereof is not true and correct;
(f) a duly executed Lease Assignment Agreement;
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(g) a duly executed Operating Agreement Assignment Agreement; and
(h) such other documents, instruments or other papers or things
necessary to carry out the obligations of Purchaser hereunder, provided such do
not impose any liability or obligation upon Purchaser in excess of the
liabilities and obligations Purchaser has agreed to bear pursuant to this
Agreement.
4.3 Purchaser's Cooperation. Purchaser shall, at Seller's expense,
cooperate with Seller for a period of seven (7) years after Closing in case of
Seller's need in response to any legal requirement, a tax audit, tax return
preparation or litigation threatened or brought against Seller, by allowing
Seller and its agents or representatives access, upon reasonable advance notice
(which notice shall identify the nature of the information sought by Seller), at
all reasonable times, to examine and make copies of any and all instruments,
files and records which relate to the Property during the period of Seller's
ownership thereof; and during said seven-year period, Purchaser shall retain and
not dispose of said instruments, files and records..
4.4 Credits and Prorations.
4.4.1 The following shall be apportioned between Seller and
Purchaser with respect to the Property as of 12:01 a.m., on the day of Closing,
as if Purchaser were vested with title to the Property during the entire day
upon which Closing occurs:
(a) Rents, if any, as and when collected (the term "rents" as used
in this Agreement includes all payments due and payable by tenants under the
Leases);
(b) real estate taxes and assessments (including the Special
Services District Assessments) levied against the Property;
(c) payments under the Operating Agreements;
(d) vault charges;
(e) water and sewer charges;
(f) gas, electricity, steam and other utility charges for which
Seller is liable, if any, such charges to be apportioned at Closing on the basis
of the most recent meter reading occurring prior to Closing; and
(g) any other operating expenses or other items pertaining to the
Property which are customarily prorated between a purchaser and a seller in the
area in which the Property is located.
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4.5 Additional Financial Obligations. Notwithstanding anything
contained in the foregoing provisions:
(a) At Closing, (A) Seller shall, at Seller's option, either
deliver to Purchaser any security deposits actually held by Seller pursuant to
the Leases or credit to the account of Purchaser the amount of such security
deposits (to the extent such security deposits are not applied against
delinquent rents or otherwise as provided in the Leases), and (B) Purchaser
shall credit to the account of Seller all refundable cash or other deposits
posted with utility companies serving the Property or governmental agencies, or,
at Seller's option, Seller shall be entitled to receive and retain such
refundable cash and deposits.
(b) Any real estate taxes and Special Services District
Assessments paid at or prior to Closing shall be prorated based upon the amounts
actually paid. If such taxes and assessments for the current period have not
been paid before Closing, Seller shall be charged at Closing an amount equal to
that portion of such taxes and assessments which relates to the period before
Closing and Purchaser shall pay the taxes and assessments prior to their
becoming delinquent. Any such apportionment made with respect to a tax year or
assessment period for which the tax rate or assessment, or both, have not yet
been fixed shall be based upon the tax rate and/or assessment last fixed. To the
extent that the actual taxes and assessments for the current year or assessment
period differ from the amount apportioned at Closing, the parties shall make all
necessary adjustments by appropriate payments between themselves following
Closing.
(c) Charges referred to above which are payable by any tenant to a
third party shall not be apportioned hereunder and Purchaser shall look solely
to the tenant responsible therefor for the payment of the same.
(d) Seller shall receive the entire advantage of any discounts for
the prepayment by Seller of any taxes, water rates or sewer rents attributable
to the period of Seller's ownership of the Property.
(e) The Personal Property is included in this sale, without
further charge, except that: (A) Purchaser shall have the option (by notice to
Seller on or prior to the Approval Date) either to (I) purchase from Seller, at
Seller's cost, and pay to Seller at Closing, for any supplies which are in
unopened containers on the Property at the time of Closing, the amount of such
supplies and the cost thereof to be determined as of the day before the date of
Closing by a certificate of an agent or employee of Seller or (II) require
Seller to remove such supplies within 30 days after Closing; and (B) Purchaser
shall have the option (by notice to Seller on or prior to the Approval Date)
either to (I) purchase from Seller, at its fair market value, and pay to Seller
at Closing for the R-11 refrigerant for the chillers in the Improvements, the
fair market value of such R-11 Refrigerant to be reasonably determined by Seller
as of the day before the date of Closing by a certificate of an agent or
employee of Seller or (II) require Seller to remove the R-11 Refrigerant from
the Improvements within thirty (30) days after Closing. If, pursuant to this
subsection, Purchaser shall have required Seller to remove such supplies or
refrigerant, Seller shall be deemed to have abandoned that property if Seller
does not effect such removal within such thirty (30) day period.
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(f) (i) Purchaser shall be responsible for payment of: (A) all
Tenant Inducement Costs (as hereinafter defined) which become due and payable
(whether before or after Closing): (1) as a result of any renewals or expansions
of existing Leases from and after the Effective Date pursuant to renewal or
expansion rights set forth in such existing Leases and (2) under any new Leases,
approved or deemed approved in accordance with Section 5.4 hereof, entered into
between the Effective Date and the date of Closing; and (B) all Tenant
Inducement Costs which become due and payable from and after the date of
Closing.
(ii) Seller shall be responsible for the payment to PNC, any
real estate brokers or other entitled third parties, of all Tenant Inducement
Costs (whether before or after Closing) resulting from the exercise by PNC Bank,
NA of its expansion option for floors 6 through 10.
(iii) If, as of the date of Closing, Seller shall have paid
any Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing.
(iv) In addition, Purchaser shall pay to Seller the sum of
Four Million Six Hundred Thirty-Four Thousand Nine Hundred Ninety-One Dollars
($4,634,991) at Closing, being an amount representing Tenant Inducement Costs
anticipated to have been incurred prior to the Effective Date.
(v) For purposes hereof, the term "Tenant Inducement Costs"
shall mean: (A) any out-of-pocket payments required under a Lease to be paid by
the landlord thereunder to or for the benefit of the tenant thereunder,
including, without limit thereto, tenant improvement costs, tenant allowances,
lease buy out costs, and moving, design, refurbishment and club membership
allowances and (B) any leasing commissions relating to any lease.
(g) Unpaid and delinquent rent collected by Seller and Purchaser
after the date of Closing shall be delivered as follows: (a) if Seller collects
any unpaid or delinquent rent for the Property, Seller shall, within fifteen
(15) days after the receipt thereof, deliver to Purchaser any such rent which
Purchaser is entitled to hereunder relating to the date of Closing and any
period thereafter, and (b) if Purchaser collects any unpaid or delinquent rent
from the Property, Purchaser shall, within fifteen (15) days after the receipt
thereof, deliver to Seller any such rent which Seller is entitled to hereunder
relating to the period prior to the date of Closing. Seller and Purchaser agree
that (i) all rent received by Seller or Purchaser within the first ninety (90)
day period after the date of Closing shall be applied first to delinquent
rentals, if any, in the order of their maturity, and then to current rentals,
and (ii) all rent received by Seller or Purchaser after the first ninety (90)
day period after the date of Closing shall be applied first to current rentals
and then to delinquent rentals, if any, in inverse order of maturity. Purchaser
will collect all rents in the usual course of Purchaser's operation of the
Property, but Purchaser will not be obligated to institute any lawsuit or other
collection procedures to collect delinquent rents. In the event that there shall
be any rents or other charges under any Leases which, although relating to a
period prior to Closing, do not become due and payable until after Closing or
are paid prior to Closing but are subject to adjustment after
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Closing (such as year end common area expense reimbursements and the like), then
any rents or charges of such type received by Purchaser or its agents or Seller
or its agents subsequent to Closing shall, to the extent applicable to a period
extending through the Closing, be prorated between Seller and Purchaser as of
Closing and Seller's portion thereof shall be remitted promptly to Seller by
Purchaser.
(h) Pursuant to the provisions of the Lease between Seller and ▇.
▇▇▇▇▇▇▇, Seller has agreed to provide to the tenant an allowance for tenant
improvements at the rate $26.00 per square foot. The actual cost of the tenant
improvements for ▇. ▇▇▇▇▇▇▇ will exceed $26.00 per square foot and Seller has
entered into a construction contract for the construction of the tenant
improvements for a contract sum in excess of $26.00 per square foot. ▇. ▇▇▇▇▇▇▇
has agreed to reimburse the Seller for the amount by which the actual cost of
the tenant improvements exceeds the allowance of $26.00 per square foot. Seller
shall retain at Closing the right to receive this reimbursement from ▇. ▇▇▇▇▇▇▇
and if it is not received by Seller prior to Closing, it shall be treated
pursuant to subsection (g) above as if it were delinquent rent due prior to
Closing.
4.6 Closing Costs.
(a) Seller shall pay (i) the fees of any counsel representing it
in connection with this transaction; and (ii) one-half (1/2) of any escrow fee
charged by the Title Company.
(b) Purchaser shall pay (i) the fees of any counsel representing
Purchaser in connection with this transaction; (ii) the fee for the title
examination and the Title Commitment and the premium for the Owner's Policy of
Title Insurance to be issued to Purchaser by the Title Company at Closing; (iii)
the cost of the Survey; (iv) the fees for recording the deed conveying the
Property to Purchaser; (v) all Realty Transfer Taxes and/or fees, documentary
stamp taxes or similar taxes which become payable by reason of the transfer of
the Property; and (vi) one-half (1/2) of any escrow fee charged by the Title
Company.
(c) All other costs and expenses incident to this transaction and
the closing thereof shall be paid by the party incurring same.
4.7 Conditions Precedent to Obligation of Purchaser. The obligation of
Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items
required to be delivered to Purchaser pursuant to the terms of this Agreement.
(b) (i) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with appropriate modifications permitted under this
Agreement or not materially adverse to Purchaser).
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(ii) In no event shall Seller be liable to Purchaser for, or
be deemed to be in default hereunder by reason of, any breach of a
representation or warranty which results from any change that (i) occurs between
the Effective Date and the date of Closing and (ii) is expressly permitted under
the terms of this Agreement or is beyond the reasonable control of Seller to
prevent; provided, however, that the occurrence of a change which is not
permitted hereunder or is beyond the reasonable control of Seller to prevent
shall, if materially adverse to Purchaser, constitute the non-fulfillment of the
condition set forth in this Section 4.7(b). If, despite changes or other
matters, the Closing occurs, Seller's representations and warranties set forth
in this Agreement shall be deemed to have been modified by such changes or other
matters.
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Seller as of the date of Closing.
4.8 Conditions Precedent to Obligation of Seller. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the items
required to be delivered to Seller pursuant to the terms of this Agreement.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with appropriate modifications permitted by this
Agreement or not materially adverse to Seller).
(d) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby makes the
following representations and warranties to Purchaser as of the Effective Date:
5.1.1 Organization and Authority. Seller is a limited partnership
duly organized and is validly existing under the laws of the Commonwealth of
Pennsylvania, has the full right and authority to enter into this Agreement and,
subject to the provisions of Section 10.6 hereof,
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to transfer all of the Property to be conveyed by Seller pursuant hereto and to
consummate or cause to be consummated the transactions contemplated herein to be
made by Seller. The person signing this Agreement on behalf of Seller is
authorized to do so.
5.1.2 Pending Actions. To Seller's knowledge, there is no action,
suit, arbitration, unsatisfied order or judgment, governmental investigation or
proceeding pending against the Property or the transactions contemplated by this
Agreement, which, if adversely determined, could individually or in the
aggregate have a material adverse effect on the Property or any portion thereof
or which could in any material way interfere with the consummation by Seller of
the transaction contemplated by this Agreement.
5.1.3 Leases.
(a) Seller is the lessor or landlord or the successor lessor or
landlord under the Leases.
(b) To Seller's knowledge, the Leases are in full force and effect
and true, correct and complete copies thereof have been delivered to Purchaser.
(c) Except as expressly provided in this Agreement or the Leases,
to Seller's knowledge, Seller has no outstanding obligation to provide any
tenant with an allowance to construct, or to construct, at its own expense, any
tenant improvements.
(d) To Seller's knowledge, no tenant under the Leases has filed a
petition in bankruptcy or for the approval of a plan of reorganization or
management under the Federal Bankruptcy Code or any similar state law or made an
admission in writing as to the relief therein provided or otherwise become the
subject of any proceeding under any federal or state bankruptcy or insolvency
law, or has admitted in writing its inability to pay its debts as they become
due or made an assignment for the benefit of creditors, or has petitioned for
the appointment of or has had appointed a receiver, trustee or custodian of any
of its property.
(e) Except as set forth in the Lease Schedule attached hereto as
Exhibit 1.1(e), to Seller's knowledge, there are no other leases or occupancy
agreements to which Seller is a party affecting the Property.
(f) Except as otherwise set forth in the Leases, to Seller's
knowledge, no presently effective rent concessions have been given to any
tenants and no rent has been paid in advance by any tenants respecting a period
subsequent to the Closing.
(g) Except as set forth in the Lease Schedules attached hereto as
Exhibit 1.1(e), no tenants have asserted in written notice to Seller any claims,
defenses or offsets to rent accruing from and after the date of Closing.
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(h) Except as set forth in the Lease Schedules attached hereto as
Exhibit 1.1(e), to Seller's knowledge, no monetary default and no other material
default, delinquency or breach exists on the part of any tenant.
(i) Except as set forth in the Lease Schedules attached hereto as
Exhibit 1.1(e), there are no material defaults or breaches on the part of the
landlord under any Lease.
(j) In the event that any Tenant Estoppel delivered to Purchaser
with respect to any Lease shall contain any statement of fact, information or
other matter which is inconsistent with the matters stated in Seller's
representations in this Section 5.1.3, the Tenant Estoppel shall control and
Seller shall have no liability for any claim based upon a breach of
representation regarding such statement of fact, information or other matter
contained in the Tenant Estoppel.
(k) Notwithstanding anything to the contrary contained in this
Agreement, Seller does not represent or warrant that any particular Lease will
be in force or effect at Closing or that the tenants under the Leases will have
performed their obligations thereunder.
(l) Except as otherwise expressly provided in this Agreement, the
termination of any Lease prior to Closing by reason of the tenant's default
shall not affect the obligations of Purchaser under this Agreement in any manner
or entitle Purchaser to an abatement of or credit against the Purchase Price or
give rise to any other claim on the part of Purchaser.
5.1.4 Lease Brokerage. To Seller's knowledge, there are no lease
brokerage agreements, leasing commission agreements or other agreements
providing for payments of any amounts for leasing activities or procuring
tenants with respect to the Property other than as disclosed in Exhibit 5.1.4.
5.1.5 No Violations. Except as set forth on Exhibit 5.1.5, Seller
has not received any written notice from any governmental or public authority
(i) that the Property is in violation of any applicable housing, fire, health,
building, safety, use, occupancy or zoning laws or ordinance where such
violation remains uncorrected and outstanding or (ii) that any work is required
to be done upon or in connection with the Property, where such work remains
outstanding and, if unaddressed, would have a material adverse effect on the use
of the Property as currently owned and operated.
5.1.6 Condemnation. To Seller's knowledge, no eminent domain
proceedings relating to the Property are pending or threatened.
5.1.7 Insurance. To Seller's knowledge, Seller has not received
any written notice from any insurance company or board of fire underwriters of
any defects or inadequacies in or on the Property or any part or component
thereof that would materially and adversely affect the
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insurability of the Property or cause any material increase in the premiums for
insurance for the Property that have not been cured or repaired.
5.1.8 Environmental Matters.
(a) Except as set forth in any environmental assessment reports in
Seller's possession and disclosed to Purchaser or as otherwise disclosed to
Purchaser, to Seller's knowledge, Seller has received no written notification
from any governmental or quasi-governmental authority that it has determined
that there are any violations of environmental statutes, ordinances or
regulations affecting the Property.
(b) As used herein, "Hazardous Substances" means all hazardous or
toxic materials, substances, pollutants, contaminants, or wastes currently
identified as a hazardous substance or waste in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (commonly known as "CERCLA"),
as amended, the Superfund Amendments and Reauthorization Act (commonly known as
"▇▇▇▇"), the Resource Conservation and Recovery Act (commonly known as "RCRA"),
or any other federal, state or local legislation or ordinances applicable to the
Property.
(c) Purchaser waives and releases Seller from any present or
future claims by Purchaser arising from or relating to the presence or alleged
presence of any Hazardous Substances in, on, under or about the Property
including, without limitation, any claims under or on account of (i) CERCLA,
▇▇▇▇, RCRA, and similar state statutes, and any regulations promulgated
thereunder, (ii) any other federal, state or local law, ordinance, rule or
regulation, now or hereafter in effect, that deals with or otherwise in any
manner relates to, environmental matters of any kind, or (iii) the common law.
5.1.9 The zoning classification of the Property is C-5 Commercial
and the present use of the Property is in compliance with the applicable
provisions of the Philadelphia Zoning Code.
5.1.10 Agreements, Etc. Other than the Leases, the Permitted
Encumbrances and the Operating Agreements, Seller has not entered into any
contract or agreement with respect to the Property which will be binding on
Purchaser after the Closing, other than contracts and agreements which Purchaser
has agreed in writing to assume prior to the Approval Date or which are
terminable upon thirty (30) days notice without payment of premium or penalty.
5.2 Knowledge Defined. References to the "knowledge" of Seller shall
refer only to the current actual knowledge of the Designated Employees (as
hereinafter defined) and shall not be construed, by imputation or otherwise, to
refer to the knowledge of Seller, or any affiliate of Seller, to any property
manager, or to any other officer, agent, manager, representative or employee of
Seller, or any affiliate of Seller, or to impose upon such Designated Employees
any duty to investigate the matter to which such current actual knowledge, or
the absence thereof, pertains. As used herein, the term "Designated Employees"
shall refer to the following persons: (a) ▇▇▇▇▇▇ ▇.
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▇▇▇▇▇▇, Jr., and; (b) ▇▇▇▇ ▇▇▇▇▇▇▇▇, who are the Property Asset Manager's
principal employees responsible for the management of the Property.
5.3 Survival of Seller's Representations and Warranties.
(a) The representations and warranties of Seller set forth in this
Agreement as updated by the Certificate of Seller delivered to Purchaser at
Closing pursuant to subsection 4.1(k) shall survive Closing for a period of 180
days.
(b) No claim for a breach of any representation or warranty of
Seller shall be actionable or payable: (i) if the breach in question results
from or is based on a condition, state of facts or other matter which was known
to Purchaser prior to Closing; or (ii) unless the valid claims for all such
breaches collectively aggregate more than Fifty Thousand Dollars ($50,000), in
which event, the full amount of such claims shall be actionable; and (iii)
unless written notice containing a description of the specific nature of such
breach shall have been given by Purchaser to Seller prior to the expiration of
said 180 day period and an action shall have been commenced by Purchaser against
Seller within 270 days of Closing.
5.4 Continuing Obligations of Seller. Seller hereby agrees with
Purchaser as follows:
5.4.1 From the Effective Date until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to operate
and maintain the Property in a manner generally consistent with the manner in
which Seller has operated and maintained the Property prior to the date hereof.
5.4.2 Seller shall use reasonable efforts (but without obligation
to incur any cost or expense) to obtain and deliver to Purchaser prior to
Closing, a written estoppel certificate in the form of Exhibit 5.4.2 attached
hereto or on such other form as may be provided for in any Lease, signed by each
tenant occupying space in the Improvements. The signed certificates are referred
to herein as the "Tenant Estoppels". If, after the use of reasonable efforts,
Seller has not obtained Tenant Estoppels from each of PNC Bank, N.A.; Schnader,
Harrison, ▇▇▇▇▇ & ▇▇▇▇▇; and Peat Marwick, Purchaser shall have the right to
terminate this Agreement by written notice to Seller given on or before the
sooner of (a) the date of Closing or (b) the date occurring two days after the
date on which Seller has notified Purchaser that Seller will not be able to
obtain the Estoppel Certificates from the three tenants designated above. If
Purchaser terminates this Agreement pursuant to the preceding sentence, the
Deposit and all interest accrued thereon shall be returned to Purchaser and
neither party shall have any further rights or obligations under this Agreement,
except as otherwise provided in Section 10.21 below.
5.4.3 A copy of any request by a tenant under any of the Leases
for the agreement of Seller to consent to a renewal or expansion of an existing
Lease (to the extent such consent or approval is required) or to enter into a
new Lease, all for occupancy of 1,000 square feet or more of space in the
Improvements ("Major Lease Transaction") which Seller wishes to grant or
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execute between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. With respect to each such Major Lease
Transaction:
(a) Purchaser agrees to notify Seller in writing within five (5)
business days after its receipt thereof of either its approval or disapproval,
including all Tenant Inducement Costs and leasing commissions to be incurred in
connection therewith.
(b) In the event Purchaser informs Seller that Purchaser does not
approve the Major Lease Transaction, which approval shall not be unreasonably
withheld, Seller shall have the option to cancel this Agreement by written
notice thereof to Purchaser within five (5) business days after Seller's receipt
of written notice of Purchaser's disapproval thereof and, upon refund and
payment of the Deposit to Purchaser, neither party shall have any further
liability or obligation hereunder, unless Purchaser shall, within two (2)
business days after Seller's termination notice, rescind its disapproval of such
Major Lease Transaction.
(c) In the event Purchaser fails to notify Seller in writing of
its approval or disapproval of the Major Lease Transaction within the five (5)
day time period for such purpose set forth above, such failure shall be deemed
the approval by Purchaser.
(d) At Closing, Purchaser shall reimburse Seller for any Tenant
Inducement Costs, leasing commissions and other expenses, including legal fees,
incurred by Seller pursuant to each Major Lease Transaction approved (or deemed
approved) after the Effective Date by Purchaser.
(e) Seller shall have the unrestricted right to enter into new
Leases for less than 1,000 square feet of space in the Improvements or grant its
approval (to the extent required) to a renewal of existing Leases for less than
1,000 square feet so long as such Leases or renewals are within the guidelines
set forth in Exhibit 5.4.3(e).
5.5 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as of the date of this Agreement and as of the
date of Closing:
5.5.1 Purchaser is not acquiring the Property with the assets of
an employee benefit plan as defined in Section 3(3) of ERISA.
5.5.2 Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement, is acting as the principal
in this transaction with the authority to carry out Purchaser's obligations
hereunder, and all requisite action necessary to authorize Purchaser to enter
into this Agreement and to carry out its obligations hereunder have been, or by
the Closing will have been, taken. The person signing this Agreement on behalf
of Purchaser is authorized to do so.
5.5.3 There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending against Purchaser
which, if adversely determined,
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could individually or in the aggregate materially interfere with the
consummation of the transactions contemplated by this Agreement.
5.5.4 No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending
against or contemplated by Purchaser or any of its general partners.
5.5.5 As of the Closing, Purchaser acknowledges and agrees that it
will have inspected the Property fully and completely (to the extent Purchaser
determines to do so in its sole discretion) at its expense and will have
ascertained to its satisfaction the extent to which the Property complies with
applicable zoning, building, environmental, health and safety and all other
laws, codes and regulations.
5.5.6 As of the Closing, Purchaser acknowledges and agrees that it
will have reviewed the Leases, contracts, expenses and other matters relating to
the Property and, based upon its own investigations, inspections, tests and
studies, will have determined whether to purchase the Property.
5.6 Survival of Purchaser's Representations and Warranties. The
representation and warranties of Purchaser set forth in this Agreement, as they
may be updated by the Certificate of Purchaser delivered to Seller at Closing,
pursuant to subsection 4.2(e), shall survive Closing for a period of 270 days.
5.7 Continuing Obligations of Purchaser. Purchaser hereby agrees with
Seller that Purchaser shall, in connection with its investigation of the
Property prior to Closing, inspect the Property for the presence of Hazardous
Substances and shall furnish to Seller copies of any reports received by
Purchaser in connection with any such inspection. Purchaser hereby assumes full
responsibility for such inspections and, except for claims based on
representations or warranties contained in Section 5.1.8, irrevocably waives any
claim against Seller arising from the presence of Hazardous Substances on the
Property. Purchaser shall also furnish to Seller copies of any other reports
received by Purchaser relating to any other inspections of the Property
conducted on Purchaser's behalf, if any (including, specifically, without
limitation, any reports analyzing compliance of the Property with the provisions
of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ss.12101, et seq., if
applicable).
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. If Purchaser fails to complete Closing in
default of Purchaser's obligations under this Agreement, Seller shall be
entitled, as its sole remedy , to terminate this Agreement and receive the
Deposit as liquidated damages for the breach of this Agreement. It is agreed
between the parties hereto that the actual damages to Seller in the event of
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such breach are impractical to ascertain and the amount of the Deposit is a
reasonable estimate thereof.
6.2 Default by Seller. If Seller fails to consummate this Agreement for
any reason (other than Purchaser's default, Seller's inability to perform its
obligations hereunder, or the permitted termination of this Agreement by Seller
or Purchaser as herein expressly provided, (in which event Purchaser's sole
remedy shall be to terminate this Agreement and have the Deposit returned)),
Purchaser shall be entitled, as its sole and exclusive remedy, either (a) to
receive the return of the Deposit and all interest accrued thereon, which return
shall operate to terminate this Agreement and release Seller from any and all
liability hereunder, or (b) to enforce specific performance of or Seller's
obligation to execute the documents required to convey the Property to
Purchaser; it is understood and agreed that the remedy of specific performance
shall not be available to enforce any other obligation of Seller hereunder.
6.2.1 Purchaser expressly waives its rights to seek damages in the
event of or Seller's default hereunder.
6.2.2 Purchaser shall be deemed to have elected to terminate this
Agreement and receive back the Deposit and all interest accrued thereon if
Purchaser fails to file suit for specific performance against Seller in a court
having jurisdiction in Philadelphia, Pennsylvania on or before sixty (60) days
following the date upon which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property or any
portion thereof which is not "major" (as hereinafter defined), this Agreement
shall remain in full force and effect provided Seller performs any necessary
repairs or, at Seller's option, assigns to Purchaser all of Seller's right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards relating to the premises
in question.
7.1.1 In the event that Seller elects to perform repairs upon the
Property, Seller shall use reasonable efforts to complete such repairs promptly
and the date of Closing shall be extended a reasonable time in order to allow
for the completion of such repairs. Any such repairs shall be performed to the
reasonable satisfaction of Purchaser.
7.1.2 If Seller elects to assign a casualty claim to Purchaser,
the Purchase Price shall be reduced by the amount applicable to such claim of
any deductible amounts under Seller's insurance policy.
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7.2 Major Damage. In the event of a "major" loss or damage, Purchaser
may terminate this Agreement by written notice to the Seller, in which event the
Deposit (and all interest accrued thereon) shall be returned to Purchaser.
(a) If Purchaser elects not to terminate this Agreement within ten
(10) business days after Seller sends Purchaser written notice of the occurrence
of major loss or damage, then Purchaser shall be deemed to have elected to
proceed with Closing, in which event Seller shall assign to Purchaser all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies or condemnation awards relating
to the premises in question.
7.3 Risk of Loss. Upon Closing, full risk of loss with respect to the
Property shall pass to Purchaser.
7.4 Definition of "Major" Loss or Damage. For purposes of Sections 7.1
and 7.2, "major" loss or damage refers to the following: (i) loss or damage to
the Property or any portion thereof such that the cost of repairing or restoring
the premises in question to a condition substantially identical to that of the
premises in question prior to the event of damage would be, in the opinion of an
architect selected by Seller and reasonably approved by Purchaser, equal to or
greater than Two Million Dollars ($2,000,000), (ii) any loss due to a
condemnation which permanently and materially impairs the current use of the
Property, and (iii) any loss or damage such that any of PNC Bank, N.A.,
Schnader, Harrison, ▇▇▇▇▇ & ▇▇▇▇▇ or Peat Marwick shall have the right to
terminate its lease.
7.5 Casualty Insurance. Seller covenants that it maintains, and, until
Closing, shall continue to maintain so-called "all risk" property insurance on a
replacement cost basis in the amount of $200,710,000.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions.
(a) In the event the transaction contemplated by this Agreement is
consummated, but not otherwise, Seller agrees to pay to Eastdil Realty Company,
L.L.C. (the "Broker") at Closing a brokerage commission pursuant to a separate
written agreement between Seller and Broker.
(b) Each of Seller and Purchaser represents and warrants to the
other that it dealt with no broker or finder in this transaction, other than the
Broker. Each party agrees that should any claim be made for brokerage
commissions or finder's fees by any broker or finder other than the Broker by,
through or on account of any acts of said party or its representatives, or
should
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its representation and warranty in this Section 8.1(b) be untrue, said party
will indemnify and hold the other party free and harmless from and against any
and all loss, liability, cost, damage and expense in connection therewith or by
reason thereof.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein, Seller
makes no representation or warranty as to the truth, accuracy or completeness of
any materials, data or information delivered by or on behalf of Seller to
Purchaser in connection with the transaction contemplated hereby.
9.1.1 Purchaser acknowledges and agrees that all materials, data
and information delivered by or on behalf of Seller to Purchaser in connection
with the transaction contemplated hereby are provided to Purchaser as a
convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein.
9.1.2 Without limiting the generality of the foregoing provisions,
Purchaser acknowledges and agrees that (a) any environmental or other report
with respect to the Property which is delivered by or on behalf of Seller to
Purchaser shall be for general informational purposes only, (b) Purchaser shall
not have any right to rely on any such report delivered by or on behalf of
Seller to Purchaser, but rather will rely on its own inspections and
investigations of the Property and any reports commissioned by Purchaser with
respect thereto, and (c) neither Seller, any affiliate of Seller nor the person
or entity which prepared any such report delivered by or on behalf of Seller to
Purchaser shall have any liability to Purchaser for any inaccuracy in or
omission from any such report.
9.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S SPECIAL WARRANTY OF TITLE TO BE SET FORTH IN
THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING
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SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY
ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY OR ON BEHALF OF SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL
ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS
SPECIFICALLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT. PURCHASER REPRESENTS TO
SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF
AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR
CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON
OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH
RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER AS ARE SPECIFICALLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT. EXCEPT
OTHERWISE AS EXPRESSLY SET FORTH IN THIS AGREEMENT, UPON CLOSING, PURCHASER
SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,
CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT
HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON CLOSING,
SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND
COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH
PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS,
VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY
ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES
OR MATTERS REGARDING THE PROPERTY. PURCHASER AGREES THAT SHOULD ANY CLEANUP,
REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS
ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL
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OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE
COST AND EXPENSE OF PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article IX.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, or the Property, whether obtained before or after the execution
and delivery of this Agreement, and shall not disclose the same to others.
10.1.1 It is understood and agreed that Purchaser may disclose
such data and information to the employees, consultants, accountants, lenders
and attorneys of Purchaser provided that such persons agree in writing to treat
such data and information confidentially. Purchaser may also disclose such
information to the extent required by law or the Securities and Exchange
Commission.
10.1.2 In the event this Agreement is terminated or Purchaser
fails to perform hereunder, Purchaser shall promptly return to Seller any
statements, documents, schedules, exhibits or other written information obtained
from Seller or anyone acting for or on its behalf in connection with this
Agreement or the transaction contemplated herein.
10.1.3 It is understood and agreed that, with respect to any
provision of this Agreement which refers to the termination of this Agreement
and the return of the Deposit to Purchaser, such Deposit shall not be returned
to Purchaser unless and until Purchaser has fulfilled its obligation to return
to Seller the materials described in Section 10.1.2.
10.1.4 In the event of a breach or threatened breach by Purchaser
or its agents or representatives of this Section 10.1, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information.
10.1.5 Nothing herein shall be construed as prohibiting Seller
from pursuing any other available remedy at law or in equity for such breach or
threatened breach.
10.2 Public Disclosure. Any release to the public of information with
respect to the sale contemplated herein or any matters set forth in this
Agreement will be made only in the form approved by Purchaser and Seller and
their respective counsel, which approval shall not be unreasonably withheld,
delayed or conditioned.
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10.3 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
10.4 Assignment.
(a) Purchaser may not assign its rights under this Agreement
without first obtaining Seller's written approval, which approval may be given
or withheld in Seller's sole discretion. Notwithstanding the foregoing,
Purchaser may, upon notice to Seller, assign this Agreement to, or designate to
receive title to the Property, any affiliate of Purchaser; provided that no such
assignment or designation shall relieve Purchaser from its obligations under
this Agreement.
(b) Under no circumstances shall Purchaser have the right to
assign this Agreement to any person or entity owned or controlled by an employee
benefit plan if Seller's or Seller's sale of the Property to such person or
entity would, in the reasonable opinion of Seller's or Seller's ERISA advisor,
create or otherwise cause a "prohibited transaction" under ERISA.
(c) In the event Purchaser assigns this Agreement or transfers any
ownership interest in Purchaser, and such assignment or transfer would make the
consummation of the transaction hereunder a "prohibited transaction" under ERISA
and necessitate the termination of this Agreement then, notwithstanding any
contrary provision which may be contained herein, Seller shall have the right to
pursue any remedy available at law or in equity as a result of such assignment
or transfer.
10.5 Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
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If to Seller:
c/o ERE Yarmouth
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
TELECOPY: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
12th Floor Packard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Health and Retirement Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TELECOPY: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TELECOPY: ▇▇▇-▇▇▇-▇▇▇▇
10.6 Binding Effect.
(a) This Agreement shall not be binding in any way upon Seller
unless and until (i) Seller shall execute and deliver the same to Purchaser,
(ii) each stage of Seller's investment approval process has approved this
transaction, and (iii) Seller's respective Investment Committee has thereafter
given its written approval thereof.
(b) If Seller has not given Purchaser written notice (the
"Approval Notice") of the approvals referred to in Section 10.6(a) on or before
the date (the "Approval Deadline") occurring fifteen (15) day after the
Effective Date, or if prior to the Approval Deadline
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Seller notifies Purchaser in writing that this Agreement has been disapproved,
then this Agreement shall be deemed terminated and Purchaser shall be entitled
to the return of the Deposit.
(c) It is understood and agreed that at each stage of Seller's
investment approval process, Seller or its investment advisor, ERE-Yarmouth,
Inc., shall each have the right, in its unfettered discretion, to disapprove the
transaction contemplated by this Agreement for any reason whatsoever, without
obligation thereafter to proceed to the next stage of Seller's investment
approval process. Seller's approval of this Agreement shall be evidenced only by
both Seller's execution of this Agreement and Seller's sending of the Approval
Notice to Purchaser prior to the Approval Deadline and, accordingly, Purchaser
acknowledges and agrees that Purchaser cannot and will not rely upon any other
statement or action of Seller or their representatives as evidence of Seller's
approval of this Agreement or the subject matter hereof. Subject to the
foregoing, Seller agrees to diligently pursue obtaining all required approvals
as promptly as possible.
10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to each and
every tenant of the Property under a Lease thereof a signed statement
acknowledging Purchaser's receipt and responsibility for each tenant's security
deposit (to the extent delivered by Seller to Purchaser at Closing), if any, all
in compliance with and pursuant to the applicable provisions of applicable law.
10.9 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the
Commonwealth of Pennsylvania, in which event the period shall run until the end
of the next day which is neither a Saturday, Sunday or legal holiday. The final
day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. Subject to the provision of Section 10.4,
the terms and provisions of this Agreement shall inure to the benefit of Seller
and its successors and assigns and to the benefit of Purchaser and its permitted
successors and assigns; and shall be binding on Seller and Purchaser and their
respective successors and assigns.
10.11 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter.
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10.12 Further Assurances. Each party agrees that it will, without
further consideration, execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property.
10.13 Counterparts. This Agreement may be executed in counterparts, and
all such executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart containing signatures of all
of the parties to this Agreement in proving this Agreement.
10.14 Severability. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
10.15 Applicable Law; Waiver of Trial by Jury. THIS AGREEMENT IS
PERFORMABLE IN THE COMMONWEALTH OF PENNSYLVANIA AND SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS OF
THE UNITED STATES AND THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. SELLER AND
PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT SITTING IN THE COMMONWEALTH OF PENNSYLVANIA IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED
IN A STATE OR FEDERAL COURT SITTING IN THE COMMONWEALTH OF PENNSYLVANIA. THE
PARTIES TO THIS AGREEMENT WAIVE TRIAL BY JURY.
10.16 No Third Party Beneficiary. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
1.1(a) - Description of Land
1.1(c) - Inventory of Personal Property
1.1(e) - Schedule of Leases
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1.1(f) - List of Operating Agreements
2.1 - Title Commitment
4.1(j) - Seller's Title Company Affidavit
4.1(n) - Tenant Notice Letter Form
4.1(o) - Form of FIRPTA Certificate
5.1.4 - List of Leasing Commission Agreements
5.1.5 - Violation Notice
5.4.2 - Form of Tenant Estoppel Certificate
10.18 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.19 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated in Section 10.21 to survive the
termination of this Agreement.
10.21 Survival. The provisions of the following Sections of this
Agreement shall survive a termination of this Agreement or Closing, and shall
not be merged into the execution and delivery of the Deed: 3.1.4; 4.3; 4.4; 4.5;
4.6; 5.1(limited in duration as stated in Section 5.3 above); 5.5 (limited in
duration as set forth in Section 5.6 above); 5.7; 6.1; 6.2; 7.3; 8.1; 9.1; 9.2;
9.3; 10.3; 10.5; 10.7; 10.10; 10.11; 10.12; 10.14; 10.15; 10.16; 10.17; 10.18;
10.19; 10.20; 10.22; and 10.24.
10.22 Recordation. Purchaser and Seller agree not to record this
Agreement or any Memorandum hereof.
10.23 Proper Execution. The submission by Seller to Purchaser of this
Agreement in unsigned form shall be deemed to be a submission solely for
Purchaser's consideration and not for acceptance and execution. Such submission
shall have no binding force and effect, shall not
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constitute an option, and shall not confer any rights upon Purchaser or impose
any obligations upon Seller irrespective of any reliance thereon, change of
position or partial performance.
10.24 No Partnership. Nothing contained in this Agreement shall be
construed to create a partnership or joint venture between or among the parties
or their successors in interest.
10.26 Financial. Seller shall deliver to Purchaser audited financial
statements for the Property with respect to 1996 and 1997 calendar years and the
period beginning January 1, 1998 and ending March 31, 1998, such financial
statements to be prepared by Seller's regularly engaged independent certified
public accountants. Seller shall also provide Purchaser's accountants with such
certifications with respect to such financial statements as Purchaser may
reasonably request to comply with law or applicable SEC requirements. The
provisions of this Section 10.26 shall survive Closing and shall be subject to
the confidentiality provisions of Section 10.1 and 10.2 above (which for this
purpose shall survive Closing).
10.27 Nonliability of Trustees. THE DECLARATION OF TRUST ESTABLISHING
PURCHASER, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF PURCHASER SHALL BE HELD TO
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, PURCHASER. ALL PERSONS DEALING WITH PURCHASER, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF PURCHASER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION. THE PROVISIONS OF THIS SECTION 10.27 SHALL SURVIVE CLOSING.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
MSA 1600 ASSOCIATES, L.P.,
a Pennsylvania limited partnership
By: Its General Partner
MSA 1600 Associates A-I,
By Its General Partners
MSA 1600 B-I, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President
MSA 1600 B-II, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President
BUYER:
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Exhibit 1.1(a) - Description of Land
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Exhibit 1.1(c) - Inventory of Personal Property
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Exhibit 1.1(e) - Schedule of Leases
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Exhibit 1.1(f) - List of Operating Agreements
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Exhibit 2.1 - Title Commitment
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Exhibit 4.1(j) - Seller's Title Company Affidavit
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Exhibit 4.1(n) - Tenant Notice Letter Form
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Exhibit 4.1(o) - Form of FIRPTA Certificate
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Exhibit 5.1.4 - List of Leasing Commission Agreements
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Exhibit 5.1.5 - Violation Notice
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Exhibit 5.4.2 - Form of Tenant Estoppel Certificate
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