EXHIBIT 10.4(a)
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Upper Dublin Township
▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania
PURCHASE AND SALE AGREEMENT
by and between
B.R. PROPERTIES OWNER, LP
a Pennsylvania Limited Partnership
as Seller
and
MIDLANTIC PARTNERSHIP, LP
a Delaware Limited Partnership
or its nominee
as Purchaser
PURCHASE AND SALE AGREEMENT
1. PARTIES.
This Purchase and Sale Agreement (this "CONTRACT" or "AGREEMENT") is made
between B.R. PROPERTIES OWNER, LP, a Pennsylvania limited partnership
("SELLER"), and MIDLANTIC PARTNERSHIP, LP, a Delaware limited partnership or its
nominee ("PURCHASER") as of July 21, 2005 (the "EFFECTIVE DATE").
2. PROPERTY.
On the terms and conditions stated in this Contract, Seller hereby agrees
to sell to Purchaser and Purchaser hereby agrees to purchase from Seller all of
the following described property (collectively, the "PROPERTY"):
2.1 LAND. Seller's interest in and to all of that certain tract of
land located at 600-601 Office Center Drive, Fort Washington, Upper Dublin
Township, ▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania, subject to the existing
condominium regime, and described more particularly in EXHIBIT A attached
hereto and incorporated herein by reference, together with all of Seller's
right, title and interest appurtenant to such land, including, without
limitation, all of Seller's right, title and interest, if any, in and to
(i) all minerals, oil, gas, and other hydrocarbon substances thereon, (ii)
all adjacent strips, streets, roads, alleys and rights-of-way, public or
private, open or proposed pertaining thereto, (iii) all easements,
privileges, and hereditaments pertaining thereto, whether or not of
record, and (iv) all access, air, water, riparian, development, and
utility, and solar rights pertaining thereto (collectively, the "LAND").
2.2 IMPROVEMENTS. The office buildings and all other improvements
and structures constructed on the Land (collectively, the "IMPROVEMENTS").
The Land and Improvements are referred to herein as the "REAL PROPERTY."
2.3 PERSONAL PROPERTY. All of Seller's right, title and interest, if
any, in the following additional property ("PERSONAL PROPERTY"):
2.3.1. TANGIBLE PROPERTY.
(i) mechanical systems, fixtures and equipment comprising a
part of or attached to or located upon the Improvements,
(ii) maintenance equipment and tools owned by Seller, located
on the Land and used exclusively in connection with the Improvements,
(iii) site plans, surveys, plans and specifications, marketing
materials and floor plans in Seller's possession which relate exclusively to the
Real Property,
(iv) all signs, supplies, appliances, security systems,
decorations, furniture, furnishings, machinery, landscaping and other tangible
personal property owned by Seller, located at and/or used in connection with the
leasing, management, operation, maintenance and/or repair of the Property,
(v) pylons and other signs located on the Land, and
(vi) other tangible property of every kind and character owned
by Seller and located in or on the Real Property (collectively, the "TANGIBLE
PROPERTY").
2.3.2. LEASE RIGHTS. Leases and rental agreements with tenants
occupying space in the Improvements (the "Leases"), and any guaranties or other
security applicable thereto and all security deposits, advance rental, or like
payments, if any, held by Seller in connection with the Leases.
2.3.3. OTHER CONTRACT RIGHTS. To the extent assignable or
transferable, only the contracts or agreements as set forth on the Certification
of Operating Contracts (collectively, the "CONTRACT RIGHTS") related to the Real
Property, Tangible Property or Leases (other than insurance policies),
including, without limitation, Seller's interest in all management, employment,
maintenance, construction, commission, architectural, parking,
telecommunication, supply or service contracts, warranties, guarantees and bonds
and other agreements related to the Improvements, Tangible Property, or Leases
(collectively, the "OPERATING CONTRACTS") and that Purchaser elects to assume by
delivery of written notice to Seller of Purchaser's Contract Assumption Notice
as set forth in Exhibit D within ten (10) days of the receipt of the Assumption
Approval as set forth in Section 9.1(a) below.
2.3.4. PERMITS. To the extent assignable or transferable, all
permits, licenses, certificates of occupancy, and governmental approvals which
relate to the Real Property, Tangible Property, Leases, the Contract Rights or
the Operating Contracts (collectively, the "Permits" and any pending
applications thereon or the renewal thereof).
2.3.5. CLAIMS AND AWARDS. Any pending or future award made with
respect to condemnation of the Land or Improvements, any award or payment for
damage to the Real Property or claim or cause of action against third parties
for damage, injury or loss with respect to the ownership, maintenance and
operation of the Real Property.
2.3.6. BOOKS AND RECORDS. Any and all data, books and records
related to the Property and the operations of the Property, including without
limitation, clients and tenant lists, market reports, operations manuals,
service and warranty records, correspondence and property tax records.
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3. PURCHASE PRICE.
3.1 PAYMENT. The purchase price (the "PURCHASE PRICE") for the Property
will be the sum of Forty Six Million Seven Hundred Fifty Four Thousand Dollars
($46,754,000.00) The Purchase Price will be payable in accordance with Sections
4 and 9 hereof. The cash portion of the Purchase Price will be payable by wire
transfer of US Dollar funds immediately available at the Closing (hereinafter
defined).
4. CONSIDERATION.
4.1 DEPOSIT NOTE AND TITLE COMPANY. Within three (3) business days after
the execution of this Contract by all parties hereto, Purchaser will deposit
with First American Title Insurance Company (the "TITLE COMPANY"), as ▇▇▇▇▇▇▇
money, a non interest bearing demand promissory note payable to Seller in the
amount of Two Million Three Hundred Thirty Seven Thousand Seven Hundred Dollars
($2,337,700.00) representing five percent (5%) of the Purchase Price (the
"DEPOSIT NOTE").
4.1 (a) The Purchase Price, plus or minus other adjustments
required under this Agreement, shall be paid at Closing by (i) assumption
of the existing loan which is secured by a mortgage on the Property (the
"EXISTING LOAN"), and (ii) the balance of the Purchase Price, after
crediting the principal balance and accrued interest of the Existing Loan
as of Closing, by wire transfer of funds in such amount in accordance with
the written instructions delivered by Seller to Purchaser at least two (2)
business days prior to Closing.
4.2 APPLICATION OF DEPOSIT NOTE. The Deposit Note shall be in the form of
Exhibit "B" attached hereto. The Deposit Note shall be cancelled (i) at
the time of Closing or (ii) upon the occurrence of a material default by
Seller or the failure of a condition precedent to Purchaser's obligation
to close hereunder. Upon the occurrence of a material default by Purchaser
which leads to the termination of this Agreement, the Deposit Note shall
be delivered by Escrow Agent to Seller, and the Deposit Note shall
constitute liquidated damages, as set forth in Section 10.2 hereof.
4.3 DISPUTE AS TO DEPOSIT NOTE. In the event of a dispute with respect to
the right to receive the Deposit Note, the Title Company may deliver the
Deposit Note into a court of competent jurisdiction located within the
State within which the Property is located in an interpleader proceeding.
All attorneys' fees and costs and Title Company's costs and expenses
incurred in connection with such interpleader will be assessed against the
party that is not awarded possession of the Deposit Note.
5. TITLE AND SURVEY.
5.1 STATE OF TITLE TO BE CONVEYED. Title to the Property shall be
conveyed to Purchaser at Closing in fee simple by a Special Warranty Deed
(as hereinafter more particularly set forth), free and clear of any and
all liens, mortgages, deeds of trust, security interests and other
encumbrances, except for those items identified in the
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owner's title insurance commitment and not contained in the Purchaser's
Title and Survey Objections as defined below .
5.1.1. Purchaser has received an owner's title insurance commitment
(the "TITLE COMMITMENT") and copies of certain of the title exception documents
referred to therein from the Seller and Purchaser will deliver to Seller within
ten (10) business days from the Effective Date d written notice to Seller
identifying the title exception documents referred to in the title commitment
not received by Purchaser ("EXCEPTION NOTICE"). Within Forty -five (45) days
after the Effective Date, Seller will send to Purchaser a copy of an updated
survey for the Property (the "SURVEY") and copies of the title exception
documents contained in the Exception Notice . Within ten (10) business days
after Purchaser's receipt of the updated survey for the Property and any
previously identified missing title exception documents ("OBJECTION PERIOD"),
Purchaser shall notify Seller in writing of any objections it has to the state
of title or survey of the Property ("PURCHASER'S TITLE AND SURVEY OBJECTIONS").
Upon the expiration of the Objection Period, except for Purchaser's Title and
Survey Objections, Purchaser shall be deemed to have accepted the form and
substance of the title commitment and the Survey (the accepted Title Commitment
and the accepted Survey shall hereinafter be referred to as the "ACCEPTED
TITLE")
5.1.2. Seller shall take any reasonable steps or bring any
reasonable action or proceeding to eliminate or modify any of Purchaser's Title
and Survey Objections, provided that Seller shall in no event be obligated to
expend sums in excess of $100,000.00 in connection with the elimination or
removal of any Purchaser's Title and Survey Objections. In addition, Seller
shall pay off or bond at Closing, as the case may be, to the extent of the net
proceeds available at Closing, any mortgages on the Property, other than any
Existing Loan being assumed by Purchaser pursuant to Section 4.1(a) hereof,
other monetary liens or monetary encumbrances against the Property, mechanic's
liens for work requested by Seller (as opposed to tenants of the Property), and
any judgments and federal tax liens against Seller. Seller, at its sole option,
may attempt to eliminate or modify all or a portion of Purchaser's Title and
Survey Objections to Purchaser's reasonable satisfaction prior to the Closing
Date or within such additional period of time (up to thirty (30) days in the
aggregate thereafter), for which Seller shall have the right to adjourn the
Closing. In the event Seller is unable or unwilling to attempt to eliminate or
modify all of Purchaser's Title and Survey Objections to the reasonable
satisfaction of Purchaser, Seller shall provide written notice to Purchaser of
those objections Seller will not attempt or be able to cure ("SELLER'S NOTICE")
within ten (10) business days after Seller's receipt of Purchaser's Title and
Survey Objections. Thereafter, Purchaser shall have the option (as its sole and
exclusive remedy) to (x) terminate this Agreement by delivering written notice
to Seller of Purchaser's election to terminate this Agreement (the "TERMINATION
NOTICE") by the earlier to occur of (i) the Closing Date (as the same may be
adjourned as provided in this Agreement), or (ii) five (5) business days after
receipt of Seller's Notice, time being of the essence to the giving of
Purchaser's notice or (y) proceed to Closing without adjustment to the Purchase
Price. If Purchaser shall duly issue the Termination Notice, then this Agreement
shall thereupon terminate, and upon such termination, Purchaser shall be
entitled to the return of the Deposit Note, together with reimbursement for its
reasonable third party out-of-pocket costs (not in excess of $10,000), and
neither party shall have any obligation hereunder other than the Surviving
Obligations.
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5.1.3. Purchaser may, at or prior to Closing, notify Seller in
writing of any objection to title (i) raised by the Title Company between the
expiration of the Objection Period and the Closing and (ii) not disclosed by the
Title Company or otherwise known to Purchaser prior to the expiration of the
Objection Period; provided that Purchaser must notify Seller of such new
objection to title within two (2) business days of being made aware of the
existence of such matter. If Purchaser sends such notice to Seller, Purchaser
and Seller shall have the same rights and obligations with respect to such
notice as apply to Purchaser's Title and Survey Objections under Section 5.1.2
above.
6. DUE DILIGENCE.
6.1 ITEMS TO BE DELIVERED BY SELLER. Seller, at Seller's sole cost
and expense, has delivered to Purchaser the following items:
6.1.1. OPERATING CONTRACTS. Copies of all of the Operating
Contracts, as they may have been modified, supplemented or amended along with a
list of all Operating Contracts certified by Seller (the "CERTIFICATION OF
OPERATING CONTRACTS").
6.1.2. LEASES. Copies of all of the Leases along with a rent roll
identifying all of the Leases of space within the Property together with a
schedule identifying for each tenant, the date, term, rent, demised premises and
lease expiration for all of the Leases (the "RENT ROLL") and all lease
guaranties, estoppels and subordination, nondisturbance and attornment
agreements in Seller's possession affecting such Leases.
6.1.3. TAX STATEMENTS. Copies of the real estate and personal
property tax statements covering the Property for the three (3) previous tax
years and, if received by Seller, the valuation notice issued with respect to
the Real Property for the year of Closing.
6.1.4. TESTS AND INSPECTIONS. Copies of soils, structural,
environmental and other engineering inspections, tests, surveys, studies and
reports in Seller's possession pertaining to the Real Property.
6.1.5. PERMITS. Copies of all Permits.
6.1.6. WARRANTIES. Copies of all unexpired warranties and guaranties
covering the Tangible Property and the roof, elevators, heating and air
conditioning system and any other component of the Improvements and third party
bonds, warranties and guaranties which will be in effect after Closing with
respect to the Property.
6.1.7. UTILITY BILLS. Copies of all utility bills received during
the last year of Seller's ownership of the Property and a list of all utility
deposits or bonds.
6.1.8. INCOME AND EXPENSE STATEMENTS. Copies of income and expense
statements with respect to the Property, including capital expenditures, for the
three (3) most recent calendar years.
6.1.9. OPERATING BUDGETS. An operating budget for the Property, not
including capital expenditures, for the year immediately preceding the current
year.
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6.1.10. NOTICES OF VIOLATIONS. Copies of notices of violation
received by Seller with respect to the Property from any governmental authority,
if any.
6.1.11. LITIGATION. Copies of filed pleadings in any litigation
related to the Property that is on-going as of the Effective Date (as
hereinafter defined)
6.1.12. LOAN DOCUMENTS. Copies of the documents with respect to the
Existing Loan as set forth on Exhibit L attached hereto (the "LOAN DOCUMENTS").
6.1.13. LITIGATION. A certificate of Seller (the "LITIGATION
CERTIFICATE") identifying any claim, demand, suit, unfilled lien, proceedings,
or litigation of any kind, pending or outstanding, before any court or
administrative, governmental or regulatory authority, agency or body, domestic
or foreign, or to any order, judgment, injunction or decree of any court,
tribunal or other governmental authority, or to the knowledge of Seller,
threatened or likely to be made or instituted, which individually or in the
aggregate would have a material adverse effect on the business or financial
condition of the Property or in any way be binding upon Purchaser or its
successors or assigns or affect or limit Purchaser's or its successors' or
assigns' full use and enjoyment of the Property or which would limit or restrict
in any way any of Seller's rights or abilities to enter into this Agreement, any
ancillary agreements or any agreement, document and instrument executed and
delivered by or on behalf of Seller pursuant to this Agreement and consummate
the assignments, transfers, conveyances and any other transaction contemplated
hereby or thereby.
6.2 ITEMS AVAILABLE TO PURCHASER. Seller shall also make available to
Purchaser promptly after the Effective Date at a central location the following
items in Seller's possession, which may be reviewed and copied at Purchaser's
sole cost and expense:
6.2.1. PLANS AND SPECIFICATIONS. Copies of any surveys, site plans,
subdivision plans, and as-built plans and specifications for the Real Property.
6.2.2. FILES. Copies of all correspondence and working files
maintained by the manager of the Property relating to the Property.
The items set forth above in Sections 6.1 and 6.2 are collectively referred to
herein as the "PROPERTY INFORMATION."
6.3 DUE DILIGENCE. Within thirty (30) days of the Effective Date,
Purchaser shall have the right to terminate this Agreement by notice to Seller
in Purchaser's sole discretion based in good faith on its due diligence of the
Property.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
7.1 As a material inducement to Purchaser to enter into this
Agreement and to consummate the transactions contemplated hereby, Seller
hereby makes to Purchaser each of the representations, warranties and
covenants set forth in this Section 7.1 which representations and
warranties are true as of the date hereof and as of the date of the
Closing. As a condition to Purchaser's obligation to complete the purchase
of the
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Property (i) such representations and warranties must continue to be true
as of the date of the Closing and (ii) such Seller shall have complied
with all of the covenants contained herein. The term "Seller's knowledge"
or "to the knowledge of Seller" shall mean the actual knowledge, or
knowledge obtained following due inquiry of the manager of the Property,
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ the CEO and Director of Asset
Management of Seller, without any other investigation on their part to
determine the existence or absence of such facts.
(a) TITLE. Seller owns the Property, free and clear of all
Encumbrances other than those Encumbrances set forth in the Title Commitment .
Except for the Property Seller will own no assets other than the Property.
(b) AUTHORITY. Seller has full right, authority, power and capacity:
(i) to enter into this Agreement and each agreement, document and instrument to
be executed and delivered by or on behalf of Seller pursuant to this Agreement,
(ii) to carry out the transactions contemplated hereby and thereby; and (iii) to
transfer, sell and deliver the Property in accordance with this Agreement. This
Agreement, document and instrument executed and delivered by or on behalf of
Seller pursuant to this Agreement constitutes, or when executed and delivered
will constitute, the legal, valid and binding obligation of Seller, enforceable
in accordance with its respective terms. The execution, delivery and performance
of this Agreement, and every document and instrument by or on behalf of Seller:
(x) does not and will not violate Seller's partnership agreement, declaration of
trust, operating agreement, charter or bylaws, if applicable; (y) does not and
will not violate any foreign, federal, state, local or other laws applicable to
Seller or the Property or require Seller to obtain any approval, consent or
waiver of, or make any filing with, any person or authority (governmental or
otherwise) that has not been obtained or made; and (z) does not and will not
result in a breach of, constitute a default under, accelerate any obligation
under or give rise to a right of termination of, any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which Seller is a party or by which the property of
Seller, including, but not limited to, the Property, is bound or affected, or
result in the creation of any Encumbrance on the Property .
(c) NO OTHER AGREEMENTS TO SELL. Seller represents that it has made
no agreement with, and covenants that it will not enter into any agreement with,
and has no obligation (absolute or contingent) to, any other person or firm to
sell, transfer or in any way encumber the Property or any of Seller's interest
in the Property or to not sell the Property or any of Seller's interest in the
Property or to enter into any agreement with respect to a sale, transfer or
encumbrance of or put or call right with respect to the Property. Seller
represents that it has not made any agreement with, and covenants that it will
not enter into any agreement with, and has no obligation (absolute or
contingent) to, any other person or firm to sell, transfer or in any way
encumber the Property or to sell the Property, or to enter into any agreement
with respect to a sale, transfer or encumbrance of or put or call right with
respect to the Property.
(d) NO BROKERS. Seller represents that it has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or firm which will result in the obligation of
Purchaser to pay any finder's fee, brokerage commission or
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similar payment in connection with the transactions contemplated hereby.
(e) LEASES. The Rent Roll is a true, correct and complete schedule
of all leases, subleases and rights of occupancy in effect with respect to the
Property (the "LEASES"). Except as set forth on the Rent Roll, there are no
other leases, subleases, tenancies or other rights of occupancy in effect with
respect to the Property. True, correct and complete copies of the Leases,
together with all amendments and supplements thereto and all other documents and
correspondence relating thereto, have been delivered or made available to
Purchaser and its agents and underwriters. Except as set forth on the Rent Roll,
all such Leases are valid and enforceable and as of the date of the Rent Roll
are in full force and effect, and none of the Leases have been assigned and all
brokerage commissions payable under any of the Leases have been paid or will be
paid prior to the Closing. Neither the Seller nor to Seller's knowledge, any
lessee under any Lease, is in default under such Lease, and Seller does not know
of any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under such Leases, except such defaults that
would not, individually or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Property. No tenant under any of the Leases has an
option or right of first refusal to purchase the premises demised under such
Leases. The consummation of the transactions contemplated by this Agreement will
not give rise to any breach, default or any event which, but for the passage of
time or the giving of notice, or both, would constitute a default under any of
the Leases. Each of the Leases is assignable by the Seller to the Purchaser and,
except as disclosed on the Rent Roll, none of the Leases requires the consent or
approval of any party in connection with the transactions contemplated by this
Agreement.
(f) [Intentionally Omitted.]
(g) NO CONTRACTS. No agreements, undertakings or contracts affecting
the Property, written or oral, will be in existence as of the Closing, except as
set forth on the Certification of Operating Contracts, and true and correct
copies of such contracts have been delivered to Purchaser. With respect to any
such contracts set forth on the Certification of Operating Contracts, each such
contract is valid and binding on the Seller and is in full force and effect in
all material respects. Neither Seller and to the knowledge of Seller, no other
party to any such contract has breached or defaulted under the terms of such
contract, except for such breaches or defaults that would not, individually or
in the aggregate, have a material adverse effect on the business or operations
of the Property.
(h) LIABILITIES; INDEBTEDNESS. Except as set forth on EXHIBIT L, the
Seller has not incurred any indebtedness related to the Property except in each
instance for trade payables and other customary and ordinary expenses in the
ordinary course of business that will be paid and discharged in full as of the
Closing.
(i) INSURANCE. The Seller currently maintains or causes to be
maintained all of the usual and customary public liability, casualty and other
insurance coverage with respect to the Property. All such insurance coverage
shall be maintained in full force and effect through the Closing and all
premiums due and payable thereunder have been, and shall be, fully paid when
due.
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(j) PERSONAL PROPERTY. All equipment, fixtures and personal property
located at or on the Property shall remain and not be removed prior to the
Closing, except for equipment that becomes obsolete or unusable, which may be
disposed of or replaced in the ordinary course of business.
(k) CLAIMS OR LITIGATION. Except for those matters disclosed on the
Seller Litigation Certification, neither the Seller, or the Property is subject
to any claim, demand, suit, unfiled lien, proceeding, or litigation of any kind,
pending or outstanding, before any court or administrative, governmental or
regulatory authority, agency or body, domestic or foreign, or to any order,
judgment, injunction or decree of any court, tribunal or other governmental
authority, or to the knowledge of Seller, threatened or likely to be made or
instituted, which individually or in the aggregate would have a material adverse
effect on the business or financial condition of the Property or in any way be
binding upon Purchaser or its successors or assigns or affect or limit
Purchaser's or its successors' or assigns' full use and enjoyment of the
Property or which would limit or restrict in any way any of Seller's rights or
abilities to enter into this Agreement, any ancillary agreements or any
agreement, document and instrument executed and delivered by or on behalf of
Seller pursuant to this Agreement and consummate the assignments, transfers,
conveyances and any other transaction contemplated hereby or thereby.
(l) ENVIRONMENTAL CONDITIONS.
(i) As of the date of this Agreement and as of the CLOSING, and except as set
forth in the environmental reports and materials previously delivered to
Purchaser (collectively, "ENVIRONMENTAL REPORTS"), the Property (which shall
include all leased and vacant space, land surface water, groundwater and any and
all improvements located on, in or under the Property) is now and will be at the
Closing free of all contamination which exists as or has arisen from, directly
or indirectly:
(a) any "hazardous waste," "underground storage tanks," "petroleum,"
"regulated substance," or "used oil" as defined by the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.),
as amended ("RCRA"), or by any regulations promulgated thereunder;
(b) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601, et seq.), as amended ("CERCLA"), or by any regulations
promulgated thereunder (including asbestos, radon, mold and lead based
paint);.
(c) any "oil" or other "hazardous substance" as defined by the Oil and
Hazardous Substance Control Act of 1976, as amended, or by and regulations
promulgated thereunder;
(d) any substance the presence of which on, in or under the Property is
prohibited or regulated by any federal, state or local environmental law
(an "ENVIRONMENTAL LAW"); and
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(e) any other hazardous materials as to which remedial action is required
under applicable Environmental Laws (together with substances described in
subsections (a) - (d) above, "HAZARDOUS MATERIALS").
(ii) As of the date of this Agreement and as of the Closing, and except as set
forth in the Environmental Reports delivered to Purchaser:
(a) the Property is now and will be at the Closing free from
asbestos and any asbestos containing materials (including the
presence of any asbestos in the insulation or other materials used
comprising any part of the improvements), mold, radon and lead based
paint that would have a material adverse effect on the Property;
(b) the Seller has not placed, located, sited or buried any
underground storage tanks at the Property and to the knowledge of
Seller, no underground storage tanks are located on, at or under the
Property;
(c) to the knowledge of Seller, the Property does not appear on any
state or federal CERCLA, RCRA, Superfund or other similar lists and,
to the knowledge of Seller, the Property is not proposed to be
included on any such list;
(d) the Seller has never used any part of the Property as a sanitary
landfill, waste dump site or for the treatment, storage or disposal
of hazardous waste as defined in RCRA and to the knowledge of
Seller, no part of the Property has ever been used as a sanitary
landfill, waste dump site or for the treatment, storage or disposal
of hazardous waste as defined in RCRA;
(e) no notice of violation or other written communication has been
received by the Seller or to the knowledge of Seller by any
predecessor in title from a governmental agency or other entity or
person, alleging or suggesting any violation of any Environmental
Law on or with respect to the Property;
(f) neither the Seller nor to the knowledge of Seller, have any of
such Seller's agents, licensees or invitees placed or permitted the
placement of any Hazardous Materials in, on, under or over the
Property in violation of any Environmental Law;
(g) to the knowledge of Seller, no other party has placed any
Hazardous Material in, on, under or over any of the Property in
violation of any Environmental Law; and
(h) to the knowledge of Seller, the Property is not subject to any
federal, state or local lien (including any "Superfund" lien),
proceedings, claim, liability, or action, or the threat or
likelihood thereof, relating to the clean-up, removal or remediation
of any Hazardous Material from the Property and the Seller Entity
has not received any request or information from the United States
Environmental
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Protection Agency or any other public, governmental or quasi
governmental agency or authority with jurisdiction over any
Environmental Law.
(m) FINANCIAL CONDITION OF THE PROPERTY. The income statements for
the Property previously provided to Purchaser fairly present in all material
respects the results of operations and corresponding income or losses for the
Property in the three (3) year period ended December 31, 2004, in accordance
with generally accepted accounting principles in the United States. Except as
set forth on Schedule 7.1 (m) attached hereto, there has been no material
adverse change since December 31, 2004, financial or otherwise, in the financial
condition of the Property.
(n) COMPLIANCE WITH LAWS. The Seller possesses such certificates,
approvals, licenses, authorities or permits issued by the appropriate local,
state or federal agencies or bodies necessary to conduct the business to be
conducted by it, and, to the knowledge of Seller, the Seller has not received
any written notice of proceedings relating to the revocation or modification of
any such certificate, approval, license, authority or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling, or finding,
would materially and adversely affect the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Property. To the
knowledge of Seller, it has not received any written or other notice of any
violation of any applicable zoning, building or safety code, rule, regulation or
ordinance, or of any employment, environmental, wetlands or other regulatory
law, order, regulation or other requirement, including without limitation the
Americans With Disabilities Act ("ADA") or any restrictive covenants or other
easements, encumbrances or agreements, relating to the Property, which remains
uncured. The Property has been constructed and is operated in accordance with
all applicable laws, ordinances, rules and regulations. The Zoning
classifications of the property is "Commercial". All approvals regarding zoning,
land use, subdivision, environmental and building and construction laws,
ordinances, rules and regulations have been obtained, and such approvals will
not be invalidated by the consummation of the transactions contemplated by this
Agreement; provided, however, the Property (including, all improvements) is
substantially in compliance with the ADA.
(o) CONDEMNATION AND MORATORIA. Except as set forth on Schedule
7.1(o), there are (i) no pending or threatened condemnation or eminent domain
proceedings, or negotiations for purchase in lieu of condemnation, which affect
or would affect any portion of the Property; (ii) no pending or, to the
knowledge of Seller, threatened moratoria on utility or public sewer hook-ups or
the issuance of permits, licenses or other inspections or approvals necessary in
connection with the construction or reconstruction of improvements, including
without limitation tenant improvements, which affect or would affect any portion
of the Property; and (iii) no pending or, to the knowledge of Seller, threatened
proceeding to change adversely the existing zoning classification as to any
portion of the Property. No portion of the Property is a designated historic
property or located within a designated historic area or district and there are
no graveyards or burial grounds located within the Property.
(p) CONDITION OF IMPROVEMENTS. There is no material defect in the
condition of (i) the Property, (ii) the improvements thereon, (iii) the roof,
foundation, load bearing walls or other structural elements thereof, or (iv) the
mechanical, electrical, plumbing and, safety systems
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therein, nor any material damage from casualty or other cause, nor any soil
condition of any nature that will not support all of the improvements thereon
without the need for unusual or new subsurface excavations, fill, footings,
caissons or other installations.
(q) TAXES. Except as set forth on Schedule 7.1(q) attached hereto,
(i) all taxes (including real estate taxes (or similar levies) due and owing
with respect to the Property) required to be paid by the Seller on or before the
date hereof have been paid and all tax or information returns required to be
filed on or before the date hereof by or on behalf of the Seller have been filed
and all such tax or information returns required to be filed hereafter will be
filed on or before the date due in accordance with all applicable laws prior to
the incurrence of any penalties or interest thereon and all taxes shown to be
due on any returns have been paid or will be paid when due; (ii) there is no
action, suit, lien (other than liens for taxes not yet due and payable) or
proceeding pending against or threatened with respect to the Seller or the
Property in respect of any tax, nor is any claim for additional tax asserted by
any taxing authority; (iii) Seller has no employees; and (iv) since its
formation, Seller had not engaged in the sale of goods or services. Except as
set forth on Schedule 7.1(q) attached hereto, neither the Seller nor any of its
federal, state and local income or franchise tax returns are the subject of any
audit or examination by any taxing authority. Except as set forth on Schedule
7.1(q) attached hereto, Seller has not executed or filed with the Internal
Revenue Service or any other taxing authority any agreement now in effect
extending the period for assessment or collection of any income or other taxes.
The Seller is classified a partnership for federal, state and (where applicable)
local income tax purposes. Seller has complied in all material respects with all
applicable laws relating to the withholding and payment of taxes and has timely
withheld from employee wages and paid over to the proper governmental entities
all amounts required to be so withheld and paid over under applicable law.
(r) MANAGEMENT AGREEMENTS. All management, services and similar
agreements relating to the Property that are intended to be assigned by Seller
and to be assumed by Purchaser are described on the Certification of Operating
Contracts (collectively, the "MANAGEMENT AGREEMENTS"), and all such Management
Agreements are terminable as of Closing.
(s) ABSENCE OF CERTAIN CHANGES. Since December 31, 2004, except as
set forth or referred to on Schedule 7.1(s), there has not been with respect to
the Seller:
(a) any material adverse change in the financial condition of
the Seller or the Property;
(b) any change in the condition of the Property or the
business or liabilities of the Seller except normal and usual
changes in the ordinary course of business which have not
been, individually or in the aggregate, materially adverse;
(c) any damage, destruction or loss, whether or not covered by
insurance, individually or in the aggregate, materially and
adversely affecting the Property;
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(d) any change in the accounting methods or practices with
respect to the Property or in depreciation or amortization
policies theretofore used or adopted;
(e) any material liability with respect to the Property,
contingent or otherwise, other than for operating expenses,
obligations under the Operating Contracts incurred for fair
consideration and taxes accrued with respect to operations
during such period, all incurred in the ordinary course of
business; or any other material change in the business of the
Seller.
(t) CONSENTS. Except as disclosed on Schedule 7.1(t), (i) no
consents, approvals, waivers, notifications, acknowledgements or permissions are
required in order for Seller to fully perform its respective obligations under
this Agreement or which, if left unobtained at Closing and thereafter,
individually or in the aggregate, would have a material adverse affect on the
value, operation, occupation, use or development of the Property, and (ii) the
execution and delivery of this Agreement by Seller and the consummation of the
transactions contemplated hereby, including without limitation the execution of
any related agreements, will not require the consent of, or any prior filing
with or notice to or payment to, any governmental authority or other entity.
(u) DISCLOSURE. The representations and warranties contained in this
Agreement (including Schedules and Exhibits) or in any information, statement,
certificate or agreement furnished or to be furnished to Purchaser by Seller in
connection with the Closing pursuant to this Agreement, do not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements and information contained herein or therein, in light of
the circumstances in which they are made, not misleading.
(v) EFFECT OF TRANSACTIONS. After giving effect to the transactions
contemplated by this Agreement, Purchaser will be the sole owner of the Property
free and clear of any Encumbrances, other than the Encumbrances as specifically
provided for in this Agreement.
(w) ERISA. The Seller has no (i) labor agreement to which it is a
party, or by which it is bound, including "employee pension benefit plans" as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"); (ii) employment, profit sharing, deferred compensation,
bonus, pension, retainer, consulting, retirement, welfare or incentive plan,
fund, program or contract to which it is a party, or by which it is bound; (iii)
written or other formal personnel policies; or (iv) plan or agreement under
which "fringe benefits" (including, but not limited to, vacation plans or
programs, sick leave plans or programs, and related benefits) are afforded to
its employees.
(x) ORDINARY COURSE. From the date hereof through the date of
Closing, Seller shall take all actions reasonably necessary within its power to
ensure that the Seller continues to operate the Property in the ordinary course
of business and substantially as operated on the date
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of this Agreement.
(y) ACCESS. From the date hereof through the date of Closing, Seller
shall take all actions reasonably necessary within its power to ensure that the
Seller gives the Purchaser and its respective agents, attorneys and
representatives full access to its books, records and documents, including any
surveys or environmental site assessments related to the Property, and to the
Property as Purchaser may reasonably request; provided however, that until
Closing each party shall not disclose and shall cause its agents, attorneys and
representatives not to disclose to any third party any confidential data or
information secured in connection with the transaction contemplated under this
Agreement and, if Closing does not occur as herein provided, each party, at its
expense, will promptly return to the other parties, all books, records and other
documents and papers obtained from such other parties, and all documents derived
there from, and all copies thereof and shall preserve the confidentiality of any
data or information exchanged or secured in connection with the transaction
contemplated hereunder.
(z) NOTICE OF DEVELOPMENTS. From the date hereof through the date of
Closing, Seller will give prompt written notice to Purchaser of any material
development affecting the Property and the operations and results of operations
related to the Property. Each party hereto will give prompt written notice to
the other parties of any material development affecting the ability of such
party to consummate the transactions contemplated by this Agreement. No
disclosure by any party pursuant to this Section 7.1 (z) however, shall be
deemed to amend or supplement any Schedule or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant.
(aa) BANKRUPTCY. There has not been filed any petition or
application with respect to, or any proceeding commenced by or against, any of
the assets of the Seller under any bankruptcy law, and the Seller has not made
any assignment for the benefit of creditors. The Seller is not "insolvent"
within the meaning of any bankruptcy law. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby
shall render such Seller insolvent.
7.2 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES-
INDEMNIFICATION. The representations and warranties of Seller set forth in
Sections 7.1 (a)-7.1(aa) hereof, the statements contained in the Seller
Estoppel Certificate, if any, and the covenants of Seller set forth in
sections 7.4.1 through 7.4.7 shall survive Closing for a period of time
equal to fifteen (15) months following the last day of the Purchaser's
fiscal year in which Closing takes place. Seller hereby agrees to
indemnify, defend, protect and hold harmless Purchaser, its agents,
representatives, employees, directors, officers and principals from and
against any and all claims, losses, damages, liabilities, costs or
expenses of any kind or character whatsoever (including reasonable
attorneys fees and costs) (such matters being collectively referred to as
"LIABILITIES") arising out of or resulting from a breach of Seller's
representations and warranties as set forth in this Agreement and for any
Liabilities resulting from any inaccuracies in Seller's Estoppel
Certificate if any, and for a breach or non-performance of any of Seller's
Covenants in this Agreement and for Seller's obligation as owner under any
leasing commission agreements, except for claims commissions which arise
as a result of lease renewals
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occurring after Closing. This indemnity shall survive Closing for a period
of time equal to fifteen (15) months following the last day of the
Purchaser's fiscal year in which Closing takes place.
7.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
to Seller that, as of the date hereof:
7.3.1. ORGANIZATION. Purchaser is duly formed, validly existing and
in good standing under the laws of the state of its organization, and is or will
be by the Closing Date duly qualified to transact business in the State in which
the Property is located.
7.3.2. AUTHORITY. Purchaser has all the requisite power and
authority, has taken all actions required by its organizational documents and
applicable law, and has obtained all necessary consents, to execute and deliver
this Contract and to consummate the transactions contemplated in this Contract.
Each individual executing this Contract on behalf of Purchaser is duly
authorized to do so.
7.4 SELLER'S COVENANTS. Seller agrees that during the period from
the Effective Date through the Closing Date, or earlier termination of
this Contract, Seller will perform the following covenants:
7.4.1. OPERATION OF THE PROPERTY. Seller agrees that from the date
of this Agreement to the Closing, it will: (i) operate the Property only in the
ordinary course and in a commercially reasonable manner, and use its reasonable
efforts to preserve its relations with tenants and others having business
dealings with it; (ii) operate and maintain the Property as required by the
Leases, and otherwise maintain the Property in its present condition, make all
necessary repairs and replacements (including repairs and replacements to
building systems), and deliver the Property as of the Closing substantially in
the condition it is in on the Effective Date, ordinary wear and tear, and damage
by fire or other casualty excepted; (iii) maintain fire and casualty insurance,
with broad form extended coverage on the Improvements, in an amount for the
Property at least equal to the replacement cost for the Improvements on the
Property, with a deductible not in excess of $5,000.00 (such insurance to be
canceled by Seller promptly after the Closing, subject to resolution of any
pending claims thereunder and with tail insurance if such coverage is claims
made coverage); (iv) maintain rental loss insurance in an amount equal to the
reasonably anticipated income from the Property (rent, common area (and building
operation) charges, and real estate tax and insurance contributions) for a
12-month period (such insurance to be canceled by the Seller promptly after the
Closing, subject to resolution of any pending claims thereunder and with tail
insurance if such coverage is claims made coverage); (v) not mortgage or
encumber any part of the Property or take or suffer any other action affecting
title to the Property, nor enter into any loan, or except in the ordinary course
of business, incur any other indebtedness without the prior written consent of
Purchaser; (vi) not make any commitment or incur any liability to any labor
union, through negotiations or otherwise, with respect to the Property; (vii)
not become a party to any new licenses, equipment leases, contracts or
agreements of any kind relating to the Property, except such contracts or
agreements as will be terminated at
15
or prior to Closing without cost or expense to Purchaser or contracts which
Purchaser agrees in its sole discretion to assume at Closing and without having
obtained in each case the prior written consent of Purchaser and only in
compliance with all operating covenants, Leases, loan documents and Encumbrances
contained in the owner's title insurance commitment.
7.4.2. LEASES.
7.4.2.1 Seller agrees that from the date of this Agreement to
the Closing, it will: (i) not cancel or terminate (except for nonpayment of rent
in the case of Tenant Leases), modify or amend any of the Leases, or accept
surrender thereof, enter into any new leases in excess of five thousand (5,000)
square feet, or consent to the assignment, subletting or mortgaging of any lease
or space, without having obtained in each case the prior written consent of
Purchaser, which consent shall not be unreasonably withheld (any such approved
new leases being herein referred to as "NEW LEASES" and the leases to be
modified or amended by any such approved modification or amendment being
referred to herein as the "MODIFIED LEASES"); (ii) execute and deliver in the
ordinary course of business all New Leases and modifications or amendments of
Modified Leases approved by Purchaser in accordance with clause (i); (iii)
comply with and perform all provisions and obligations to the complied with
and/or performed by the Seller under Leases, the New Leases and the Modified
Leases; (iv) promptly provide Purchaser with copies of all written notices
delivered or received under the Leases, New Leases or Modified Leases, and all
sales reports and correspondence received from tenants, neighboring property
owners, any insurance company which carries insurance on the Property, any
governmental authorities, or from any other person or entity with respect to the
Property or any portion thereof; and (v) use good faith reasonable efforts prior
to the Closing Date to satisfy all conditions to Closing.
7.4.2.2 In the event that the Closing occurs hereunder and the
Purchaser shall have approved the Seller's entry into any New Leases or the
modification or amendment of any Lease in accordance with clause (i) of Section
7.4.2.1, then the Purchaser shall pay to the Seller at closing: (a) on account
of each New Lease an amount equal to the sum of the leasing commissions incurred
in connection with such New Lease, plus the amount of all tenant work and tenant
allowances to be paid by the Seller under such New Lease multiplied by the
Purchaser's Portion (as hereinafter defined); and (b) on account of each
Modified Lease, an amount equal to the sum of the leasing commissions incurred
in connection with the modification or amendment of such Modified Lease, plus
the amount of all tenant work and tenant allowances to be paid by the Seller as
a result of the modification or amendment of such Modified Lease multiplied by
the Purchaser's Portion.
7.4.2.3 As used herein, "PURCHASER'S PORTION" means: (1) with
respect to a New Lease, the percentage of the term of any New Lease that falls
after the Closing Date and (2) with respect to a Modified Lease, the percentage
of the period beginning on the date of the modification or amendment of such
Modified Lease and ending on the last day of the term of such Modified Lease.
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7.4.3. NOTICE OF LITIGATION. Seller shall promptly advise Purchaser
of any notice of litigation received or other proceeding by Seller that may
affect the ownership or operation of the Property.
7.4.4. NO ENCUMBRANCES. Except for the Encumbrances contained in the
Accepted Title, Seller shall not suffer or permit encumbrances of the Property.
7.4.5. TENANT ESTOPPEL CERTIFICATES. (a) Seller agrees from and
after receipt of the Assumption Approval as set forth in Section 9.1 and
provided this Agreement is in full force and effect, within five (5) business
days after being requested by Purchaser to do so, to deliver to all tenants of
the Property a request for an estoppel certificate in the form of EXHIBIT D
attached hereto, which form may be revised if so requested by the Existing
Lender. The parties agree that, subject to the provisions of subparagraph (b)
below, it shall be a condition to Purchaser's obligation to close under this
Agreement that an estoppel certificate either substantially in the form of
EXHIBIT D or in the form required by a tenant's Lease, dated not earlier than
ten (10) business days prior to the Closing Date, be delivered to Purchaser no
later than five (5) business days before Closing from tenants under the Leases
occupying, in the aggregate, not less than 75% of the rentable area of the
Property, including all tenants occupying at least a full floor or more of space
(a "TENANT ESTOPPEL"), Seller agrees to use good faith efforts to obtain such
Tenant Estoppels, provided however, Seller shall not be obligated to pay tenants
in order to do so. Notwithstanding the foregoing, if at Closing Seller delivers
such Tenant Estoppels from tenants occupying at least 60% of the rentable area
of the Property, Seller may execute and deliver to Purchaser, at Closing, its
own certificate with respect to tenants occupying up to an additional 15% of the
rentable area of the Property (substantially in the form of EXHIBIT D or in the
form required by a tenant's Lease, appropriately modified to reflect that they
are certificates of Seller and made to Seller's knowledge; hereinafter, the
"SELLER'S ESTOPPEL CERTIFICATE") and the statements of Seller contained therein
shall survive the Closing until the earlier of (a) one hundred and eighty (180)
days after Closing, or (b) the date Purchaser obtains an estoppel certificate
from a tenant for whom Seller delivered a Seller's Estoppel Certificate.
(b) The parties agree that each Tenant Estoppel containing
non-material exceptions, qualifications or modifications shall be deemed to be
an acceptable estoppel certificate for purposes of this Section 7.4.5. In the
event a Tenant Estoppel contains a material exception or qualification or
alleges a material default by Seller (collectively, a "MATERIAL DEFAULT"),
subject to the following provisions of this Section 7.4.5), Purchaser's sole and
exclusive remedy shall be to terminate this Agreement by delivering notice
thereof in writing to Seller, on the earlier of five (5) business days after the
date of delivery to Purchaser of a Tenant Estoppel alleging a Material Default
or the Closing Date (the "ESTOPPEL TERMINATION NOTICE"), time being of the
essence as to the giving of such notice. If Purchaser shall timely give the
Estoppel Termination Notice, then subject to Seller's option set forth below,
this Agreement shall terminate, and upon such termination, Purchaser shall be
entitled to the return of the Deposit Note and all interest thereon, and neither
party shall have any obligation hereunder other than as may be expressly
provided for in this Agreement. Notwithstanding the foregoing, Purchaser shall
not have the right to terminate this Agreement if Tenant Estoppel(s) allege
Material Default(s) if (x) such Material Default(s) can be remedied by the
performance of work costing not more than $50,000 in the aggregate for all such
Tenant Estoppel(s) or the payment of money not exceeding $50,000 in the
aggregate with respect to such tenants and (y) Seller elects
17
(by written notice to Purchaser given simultaneously with Seller's delivery of
such Tenant Estoppel to Purchaser), at Seller's option (but Seller shall have no
obligation), to cure the nonconforming matter set forth in such estoppel by
either performing or causing to be performed the work on or prior to the Closing
Date, by paying the money on or prior to the Closing Date, or by granting
Purchaser a credit against the Purchase Price in an amount reasonably necessary
to perform such work, as reasonably determined by Seller and Purchaser, in which
event Seller shall, at or before the Closing, cure, perform, pay or grant
Purchaser a credit with respect to the same.
7.4.6 LISTINGS AND OTHER OFFERS. Seller shall not list the Property
or any part thereof with any broker or otherwise solicit or make or accept any
offers to sell the Property or any part thereof, engage in any discussions or
negotiations with respect to the sale or disposition of the Property or any part
thereof with any third party, or enter into any contract, agreement or letter of
intent regarding the disposition of the Property or any part thereof.
7.4.7 COVENANT TO REMEDY BREACHES. Without limiting the obligations
of Seller set forth in this Agreement, Seller covenants to use all reasonable
efforts within its control (i) to prevent the breach of any representation or
warranty of Seller hereunder, (ii) to satisfy all covenants of Seller hereunder
and (iii) to promptly cure any breach of a representation, warranty or covenant
of Seller hereunder upon its learning of same. Compliance with this covenant
shall not limit any Seller's liability for a breach of, or failure to perform,
any other representation, warranty or covenant herein.
8. DISCLAIMERS. EXCEPT AS PROVIDED HEREIN, SELLER HEREBY SPECIFICALLY DISCLAIMS
ANY EXPRESS OR IMPLIED WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (I) THE NATURE AND CONDITION
OF THE PROPERTY AND THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, (II) THE NATURE AND EXTENT OF ANY
RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION,
CONDITION OR ANY OTHER MATTER RELATING IN ANY WAY TO THE PROPERTY, (III) THE
COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES OR
REGULATIONS OF ANY GOVERNMENT OR OTHER AUTHORITY OR BODY, OR (IV) THE EXISTENCE
OF ANY TOXIC OR HAZARDOUS SUBSTANCE OR WASTE IN, ON, UNDER THE SURFACE OF OR
ABOUT THE PROPERTY.
8.1 PURCHASER ACKNOWLEDGEMENT. Purchaser acknowledges that this
Contract affords Purchaser the opportunity for investigations,
examinations and inspections of the Property and all Property Information.
8.2 SURVIVAL. The provisions of this Section 8 shall survive the
termination of this Contract and the Closing.
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9. CLOSING.
9.1 CLOSING DATE. Subject to the provisions of this Section 9.1, the
consummation of this transaction (the "CLOSING") will take place at the offices
of HUNTON & ▇▇▇▇▇▇▇▇ LLP, in Washington, D.C., or at such other location upon
which Seller and Purchaser mutually agree, upon a date which is twenty (20) days
following satisfaction of all of the "conditions precedent" set forth in Section
9.5 below (the "CLOSING DATE"), unless Seller and Purchaser mutually agree to an
earlier or later date; provided, however, that this Agreement will terminate if
Closing does not occur prior to December 31, 2005.
Within five (5) days after the Effective Date, Seller and Purchaser
shall each notify the holder of the Existing Loan (the "EXISTING LENDER") of
Purchaser's desire to assume the Existing Loan, and shall promptly and
diligently complete all requested applications. Purchaser agrees to promptly pay
Existing Lender any and all required fees, costs and expenses requested by
Existing Lender in connection with the assumption of the Existing Loan and each
party agrees to provide all documentation reasonably required by Existing Lender
in connection with the conditions of Existing Lender's Assumption Approval. The
Existing Lender's consent permitting Purchaser's assumption of the Existing Loan
(the "ASSUMPTION APPROVAL") shall be a condition precedent to Purchaser's
obligation to acquire the Property. In the event the Assumption Approval is not
received by Purchaser on or before a date which is seventy-five (75) days, from
the Effective Date (other than by reason of Purchaser's default in the terms and
conditions of this Agreement) either Seller or Purchaser may extend the Closing
Date for a period of thirty (30) days (the "EXTENDED CLOSING DATE"). If the
Assumption Approval is not obtained by a date, which is three (3) business days
prior to the Extended Closing Date, Purchaser shall have the right to terminate
this Agreement on or before the Extended Closing Date. It shall be a condition
to Closing and the assumption of the Existing Loan that the Existing Lender
shall deliver a representation that the Existing Loan is not in default, the
current outstanding principal amount, accrued interest and with such other
customary Lender certifications and a release of the liability of Seller under
the Existing Loan from and after the date upon which the Existing Loan is
assumed by Purchaser.
9.2 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller will
do, or cause to be done, the following:
9.2.1. DOCUMENTS. Seller will execute, acknowledge (if necessary),
and deliver the following documents:
9.2.1.1 Special Warranty Deed in the form and substance of
EXHIBIT G (the "DEED");
9.2.1.2 An Assignment and Assumption of Landlord's Interest in
Leases in the form and substance of EXHIBIT H;
9.2.1.3 Blanket Conveyance, ▇▇▇▇ of Sale, and Assignment in
the form and substance of EXHIBIT I;
9.2.1.4 Certificate of Non-Foreign Status in the form and
substance of EXHIBIT J; and
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9.2.1.5 Notification of change of ownership in the form and
substance of EXHIBIT K.
9.2.1.6 An updated Rent Roll certified by Seller as true,
complete and accurate and dated no earlier than five (5) business days prior to
Closing.
9.2.2. ORIGINAL DOCUMENTS. Seller will deliver to Purchaser
originals within Seller's possession or control of all items enumerated in
Section 6.1 and 6.2 of this Contract and copies of all items enumerated in
Section 6.2 for which no originals were delivered.
9.2.3. POSSESSION. Seller will deliver possession of the Property,
subject to the Leases and the Encumbrances as provided for in this Agreement .
9.2.4. ADDITIONAL DOCUMENTS. Seller will execute and deliver or
obtain for delivery to the Title Company any other instruments reasonably
necessary and customarily required to consummate the sale of the Property
pursuant to this Contract, including, by way of example, closing statements and
evidence of the authority of the party executing instruments on behalf of
Seller; provided, however, that Seller shall not be obligated to indemnify the
Title Company.
9.2.5. COSTS. Seller will pay all costs allocated to Seller pursuant
to Section 9.4 of this Contract.
9.3 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing,
Purchaser will do, or cause to be done, the following:
9.3.1. PAYMENT OF CONSIDERATION. Purchaser will timely deposit the
cash portion of the Purchase Price as adjusted in accordance with the provisions
of this Contract with the Title Company.
9.3.2. DOCUMENTS. Purchaser will execute, acknowledge (if
necessary), and deliver the following documents:
9.3.2.1 An Assignment and Assumption of Landlord's Interest in
Leases in the form and substance of EXHIBIT H;
9.3.2.2 Blanket Conveyance, ▇▇▇▇ of Sale, and Assignment in
the form and substance of EXHIBIT I; and
9.3.2.3 Notification of change of ownership in the form and
substance of EXHIBIT K.
9.3.3. ADDITIONAL DOCUMENTS. Purchaser will execute and deliver or
obtain for delivery to the Title Company any instruments reasonably necessary to
consummate the sale of the Property pursuant to this Contract, including, by way
of example, closing statements and evidence of the authority of the party
executing instruments on behalf of Purchaser and all documents required by the
Existing Lender in connection with Assumption of the Existing Loan.
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9.3.4. COSTS. Purchaser will pay all costs allocated to Purchaser
pursuant to Section 9.4 of this Contract.
9.4 COSTS AND ADJUSTMENTS AT CLOSING.
9.4.1. EXPENSES. Purchaser will pay for its costs of obtaining title
insurance. Seller and Purchaser will each be responsible for fifty percent (50%)
of the recording fees and transfer taxes on the Deed and for fifty percent (50%)
of the escrow and closing fees charged by the Title Company. Seller and
Purchaser will be responsible for the fees and expenses of their respective
attorneys. Purchaser shall reimburse Seller for any and all escrow funds held
under the Existing Loan by Existing Lender.
9.4.2. REAL ESTATE TAXES. Real estate taxes on the Property for the
real estate tax fiscal year in which Closing occurs will be prorated between
Seller and Purchaser as of 11:59 p.m. on the day preceding the Closing Date. If
the amount of such taxes is not known at Closing, the proration of such real
estate taxes and assessments will be based on the amount of such taxes and
assessments for the previous real estate tax fiscal period. As soon as the
actual amount of real estate taxes on the Property for the year of Closing is
known, Seller and Purchaser will, if necessary, readjust the amount of such
taxes to be paid by each party with the result that Seller will pay for those
taxes applicable to the Property up to but not including the Closing Date, and
Purchaser will pay for those taxes and assessments applicable to the Property on
and after the date of Closing. The provisions of this Section 9.4.2 will survive
the Closing. Purchaser shall pay the costs of any general and special
assessments.
9.4.3. TENANT REBATES. To the extent that any tenant is entitled to
any rebate, concession, deduction or offset under its Lease, such entitlement
shall be included as a closing adjustment by credit towards the Purchase Price.
Further, to the extent that any tenant is entitled to future tenant improvements
work to be paid for by the landlord under such tenant's Lease, the amount of
landlord's liability for such work shall be included as a closing adjustment by
credit towards the Purchase Price. The Parties agree to initially adjust rents,
tenant charges and operating expenses as of 11:59 P.M. on the last day of the
month immediately preceding the Closing (the "ADJUSTMENT DATE"). On a date that
is forty-five (45) days following Closing ("SUPPLEMENTAL ADJUSTMENT DATE") the
parties agree to further adjust rents, tenant charges and operating expenses as
of the date of Closing on a per diem basis for the month in which Closing
occurs. Payments due on account of the Supplemental Adjustment Date shall be
delivered to the party entitled to such payment within ten (10) days of the
Supplemental Adjustment Date. Rent and such tenant charges which are due but
uncollected as of the Closing shall not be adjusted, but, with respect to
tenants whose rent is no more than six (6) months in arrears, provided Seller
provides in a timely manner all back-up materials, reconciliations and other
information requested by tenants with respect thereto, Purchaser shall remit
promptly to or on behalf of Seller any such amounts actually paid by such
tenants to Purchaser (provided that such amounts shall be in excess of the then
current rent and other charges due) within six (6) months after the Closing.
Purchaser's obligations with respect to such delinquent rent and other charges
shall be limited to billing the applicable tenant therefor on no more than six
(6) occasions. Notwithstanding anything to the contrary in the foregoing, Seller
retains all rights against former tenants whose Tenant Leases have expired or
have been terminated and possession discontinued prior to the Closing; provided,
however, in no event shall Seller be entitled after the Closing to
21
institute any litigation or other proceedings against any tenant that is in
occupancy at the Property as of the Closing with respect to any obligations or
liabilities of such tenant relating to the Property or arising out of such
tenant's occupancy thereof. Purchaser shall have no further obligation or
liability to Seller under this subsection after the expiration of said six (6)
month period. No adjustment shall be made with respect to percentage or overage
rent. Except as otherwise adjusted, Seller shall remain responsible and liable
to Purchaser to refund to tenants (or reimburse Purchaser for any refunds to
tenants of) any excess payments made by tenants for real estate taxes (including
any arising as a result of tax appeals), insurance, utility, common area
maintenance operating expenses and building expenses applicable to the period
prior to the Closing, such responsibility and liability to survive Closing until
such time as all audit rights of tenants under Leases with respect to periods
prior to the Closing shall have expired and all amounts owing to tenants as a
result of any such audits shall have been fully paid by Seller to the applicable
tenant (directly or by reimbursement to Purchaser). The parties agree that in
the event that any tax appeals relating to the Property, whether now existing or
hereafter filed, results in any rebate of real property or other taxes paid for
the Property, such rebate (after deducting therefrom all costs and expenses of
procuring the same) shall be prorated as of the Closing between Seller and
Purchaser based on respective periods of ownership.
9.4.4. PREPAID RENT AND SECURITY DEPOSITS. All prepaid rentals,
tenant security deposits, whether cash or non-cash (including security deposits
for tenants who owe rent or other charges as of the Closing), together with all
interest required to be paid thereon which has accrued through the Closing,
shall be delivered to Purchaser at the Closing. Promptly following the Closing,
Seller shall cause any tenants who have posted letters of credit as security
deposits to have such security deposits amended or re-issued so that they run to
the benefit of Purchaser as landlord under the Leases.
9.4.5. UTILITY DEPOSITS. Seller shall be entitled to retain all
utility deposits and to obtain the return of same. Seller shall cooperate with
Purchaser, at Purchaser's cost, with respect to the transfer of utilities.
9.4.6. OTHER INCOME AND EXPENSES. Except as otherwise expressly
stated herein, all other income and ordinary operating expenses for or
pertaining to the Property, including, but not limited to, public utility
charges, maintenance and service charges, will be prorated as of 12:01 am on the
Adjustment Date.
9.4.7. ADJUSTMENT. To the extent that errors are discovered in, or
additional information becomes available with respect to, the prorations and
allocations made at Closing, Seller and Purchaser agree to make such
post-Closing adjustments as may be necessary to correct any inaccuracy; however,
all prorations (except for prorations and allocations of ad valorem taxes and
tenant reimbursables and for prorations or allocations that have been
specifically identified as disputed and are then currently in dispute) will be
final within sixty (60) days after Closing.
9.5 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS AT CLOSING. The
obligations of the Purchaser to be performed on and after the Closing Date shall
be subject to the fulfillment of each of the conditions set forth below in a
manner satisfactory to the Purchaser or the waiver of such conditions by the
Purchaser.
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9.5.1 Each of the representations and warranties made by the Seller
in this Agreement shall be true and correct as of the Closing Date.
9.5.2 The Seller shall have complied with each and every covenant
made by the Seller herein.
9.5.3 The Assumption Approval is obtained in accordance with Section
9.1.
9.5.4 The effectiveness of the Purchaser's Registration Statement on
Form S-11 (as amended from time to time, the "REGISTRATION STATEMENT") to
be filed with the Securities and Exchange Commission after the execution
of this Agreement and the closing and funding of the public offering
thereunder, is a condition precedent to the obligations of all parties to
this Agreement to effect the transactions contemplated by this Agreement
on the Closing Date (as defined below). This condition may not be waived
by any party to this Agreement.
In the event all of the "conditions precedent" have not been satisfied by the
Closing Date or the Extended Closing Date, this Agreement shall automatically
terminate upon the Closing Date or the Extended Closing Date without the
requirement of either party providing written notice.
10. REMEDIES.
10.1 DEFAULT BY SELLER. Except as specifically provided elsewhere in
this Contract, in the event that Seller fails to consummate this Contract
or if Seller fails to perform any of Seller's other material obligations
hereunder either prior to or at the Closing and such failure or refusal
results from any reason other than the termination of this Contract by
Purchaser pursuant to a right to terminate expressly set forth in this
Contract or Purchaser's failure to perform Purchaser's obligations under
this Contract, Purchaser may as its only remedy either (i) terminate this
Contract by giving written notice thereof to Seller prior to or at the
Closing, in which event Purchaser will be entitled to a return of the
Deposit Note, whereupon neither party hereto will have any further rights
or obligations hereunder, except (a) that Seller will authorize the Title
Company to deliver to Purchaser the Deposit Note and Title Company will
deliver the Deposit Note to Purchaser free of any claims by Seller or any
other person with respect thereto, (b) that Seller shall reimburse
Purchaser for its out of pocket costs associated with the negotiation and
preparation of this Agreement and its examination of the Property,
including, the fees and disbursements of its counsel, advisers, and
agents, and (c) for provisions which survive Closing by their terms or
(ii) enforce specific performance of Seller's duties and obligations under
this Contract, provided that the right to enforce specific performance
shall not require Seller to remove any title encumbrances placed on the
Property after the Effective Date or require Seller to perform any
covenant beyond the then current ability of Seller. In the event Purchaser
fails to file an action for specific performance of this Contract on or
before ninety (90) days after the date of such non-performance, Purchaser
shall be deemed to have elected to proceed under clause (i) above and
shall be deemed to have waived its right to
23
enforce specific performance of this Contract.
10.2 DEFAULT BY PURCHASER. In the event that Purchaser fails or
refuses to consummate the purchase of the Property pursuant to this
Contract and if such failure to consummate results from any reason other
than termination of this Contract by Purchaser pursuant to a right to
terminate expressly set forth in this Contract or Seller's failure to
perform Seller's material obligations under this Contract, then Seller, as
Seller's sole and exclusive remedy, will have the right to terminate this
Contract by giving written notice thereof to Purchaser prior to or at the
Closing, whereupon neither party hereto will have any further rights or
obligations hereunder, except (i) that Purchaser will authorize the Title
Company to deliver the Deposit Note to Seller as liquidated damages and
Title Company will deliver the Deposit Note to Seller free of any claims
by Purchaser or any other person with respect thereto and (ii) for
provisions which survive Closing by their terms. It is agreed that the
amount to which the Seller is entitled under this Section 10.2 is a
reasonable forecast of just compensation for the harm that would be caused
by Purchaser's breach and that the harm that would be caused by such
breach is one that is incapable or very difficult of accurate estimation.
10.3 FEES. In the event either party to this Contract commences
legal action of any kind to enforce the terms and conditions of this
Contract, the prevailing party in such litigation will be entitled to
collect from the other party all costs, expenses and attorneys' fees
incurred in connection with such action. This Section 10 shall survive
Closing or earlier termination of this Contract.
11. RISK OF LOSS, DESTRUCTION, AND CONDEMNATION.
11.1 RISK OF LOSS. Risk of loss for damage to the Property, or any
part thereof, by fire or other casualty from the Effective Date of this
Contract through the Closing Date will be on Seller. Upon Closing, full
risk of loss with respect to the Property will pass to Purchaser.
11.2 CASUALTY.
11.2.1. MAJOR DAMAGE. If, prior to Closing, the Property, or any
portion thereof, is damaged by fire, or any other cause of whatsoever nature,
Seller will promptly give Purchaser written notice of such damage. If the cost
for repairing such damage, in the reasonable judgment of Purchaser, exceeds five
hundred thousand Dollars ($500,000.00), Purchaser will have the option,
exercisable by written notice delivered to Seller within fifteen (15) days of
Seller's notice of damage to Purchaser, either (i) to require Seller to convey
the Property to Purchaser, in its damaged condition and to assign to Purchaser
all of Seller's right, title and interest in and to any claims Seller may have
under the property insurance policies covering the Property and pay any and all
deductibles of such policies or any uninsured portion of the cost of repairing
the damage to Purchaser, in which event Seller will have no further liability or
obligation to repair or replace the Property, or (ii) to terminate this
Contract. If Purchaser elects to terminate this Contract, the ▇▇▇▇▇▇▇ Money
shall be returned to Purchaser, and thereafter neither party hereto will have
any further duties or obligations hereunder except under provisions which
survive termination by their terms.
24
11.2.2. MINOR DAMAGE. If the cost for repairing such damage will
not, in the reasonable judgment of Purchaser, exceed Five Hundred thousand
Dollars ($500,000.00), Purchaser will have the option, exercisable by written
notice delivered to Seller within ten (10) days of Seller's notice of damage to
Purchaser, either (i) to require Seller to repair and restore the Property to
substantially the same condition it was in prior to such casualty, in which
event the Closing Date shall be postponed for a reasonable period of time to
allow Seller to accomplish such repair and restoration, or (ii) to require
Seller to convey the Property to Purchaser on the Closing Date in its damaged
condition and assign to Purchaser all of Seller's right, title and interest in
and to any claims Seller may have under the property insurance policies covering
the Property, in which event Seller will have no further liability or obligation
to repair or replace the Property.
11.2.3. CASUALTY REVEALING DEFECTS. Notwithstanding anything to the
contrary in Sections 11.2.1 or 11.2.2, in the event that prior to Closing, the
Property or any portion thereof is damaged by fire, or any cause of whatsoever
nature, and such casualty or any investigation into the cause of such casualty
reveals that a defect exists in the Property and that such defect may cause a
similar casualty in the future or that the Property is in violation of safety,
environmental, hazardous waste, building code, health, fire, safety or other
laws, orders, ordinances or regulations, then Purchaser will have the option as
its sole and exclusive remedy, exercisable by written notice delivered to Seller
within ten (10) business days of the discovery of such defect or violation, to
terminate this Contract, in which event the Deposit Note shall be returned to
Purchaser, and thereafter neither party hereto will have any further duties or
obligations hereunder except under provisions which survive termination by their
terms.
11.3 CONDEMNATION. If during the pendency of this Contract and prior
to Closing, condemnation proceedings are commenced with respect to all or
any material portion of the Property, Purchaser may, at Purchaser's
election, terminate this Contract by written notice to Seller within
fifteen (15) days after Purchaser has been notified of the commencement of
condemnation proceedings. In the event of such termination, the Deposit
Note will be promptly returned to Purchaser and, thereafter, neither party
will have any further duties or obligations hereunder except under
provisions which survive termination by their terms. If Purchaser does not
exercise such right to terminate within the period prescribed, then Seller
shall transfer to Purchaser its right to appear and to defend Seller's
interests in the Property in such condemnation proceedings, and any award
in condemnation will become the property of Purchaser; provided, however,
the Closing shall not be delayed by reason of any such proceedings.
12. REAL ESTATE COMMISSIONS AND FEES.
Seller represents and warrants to Purchaser that Seller has not contacted
or entered into any written agreement with any real estate broker, agent,
finder, or any party in connection with this transaction. Purchaser hereby
represents and warrants to Seller that Purchaser has not contacted or entered
into any agreement with any real estate broker, agent, finder, or any party in
connection with this transaction. Each party hereby indemnifies and agrees to
hold the other party harmless from any loss, liability, damage, cost, or expense
(including, reasonable attorneys' fees) paid or incurred by the other party by
reason of a breach of the representation
25
and warranty made by such party under this Section 12. Notwithstanding anything
to the contrary contained herein, the indemnities set forth in this Section 12
will survive the Closing.
13. NOTICES.
13.1 WRITTEN NOTICE. All notices, demands and requests which may be
given or which are required to be given by either party to the other party
under this Contract must be in writing.
13.2 METHOD OF TRANSMITTAL. All notices, demands and requests
required to be in writing must be sent by United States certified or
registered mail, postage fully prepaid, return receipt requested, or by
Federal Express or a similar nationally recognized overnight courier
service, or by facsimile with a confirmation copy delivered by a
nationally recognized overnight courier service. Notice will be considered
effective on the earlier to occur of the Business Day of actual receipt or
the Business Day at least twenty-four (24) hours after depositing same
with the overnight courier service.
13.3 ADDRESSES. The addresses for proper notice under this Contract
are as follows:
SELLER: PURCHASER:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. Midlantic Office Trust, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Rockville MD. 20852
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, CEO Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
WITH A COPY TO: WITH A COPY TO:
S. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire Hunton & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
VOICE: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may from time to time by written notice designate a different
address to the other party. Counsel to the parties hereto shall have the right
to issue any notices as provided for in this Agreement.
14. ASSIGNMENT.
Neither party will have the right to assign this Contract; provided,
however, that the Purchaser may assign this Contract, to any Affiliate
(hereinafter defined) of Purchaser or direct
26
Seller to convey the Property to a designee. Notwithstanding any such
assignment, Purchaser shall remain fully liable as a primary obligor for the
performance of all Purchaser's obligations hereunder. The term "AFFILIATE" shall
mean, with respect to Purchaser, (x) an entity that, directly or indirectly,
controls, is controlled by, or is under common control with Purchaser, (y) an
entity, the majority of the economic interest of which is owned by Purchaser or
(2) an entity in which Purchaser has a direct or indirect economic interest
regardless of percentage of the Purchaser's economic interest therein. Any
attempted assignment in violation of this Section 14 shall be void and without
force or effect.
15. INTERPRETATION.
15.1 ENTIRE AGREEMENT. This Contract embodies the entire agreement
between the parties and cannot be varied except by the written agreement
of the parties.
15.2 GENDER AND NUMBER. Words of any gender used in this Contract
will be construed to include any other gender and words in the singular
number will be construed to include the plural, and vice versa, unless the
context requires otherwise.
15.3 CAPTIONS. The captions used in connection with the Articles,
Sections and Subsections of this Contract are for convenience only and
will not be deemed to expand or limit the meaning of the language of this
Contract.
15.4 SUCCESSORS AND ASSIGNS. This Contract will be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns.
15.5 MULTIPLE COUNTERPARTS. This Contract may be executed in several
counterparts, each of which will be deemed an original, and all of which
will constitute but one and the same instrument.
15.6 CONTROLLING LAW. This Contract will be construed under,
governed by and enforced in accordance with the laws of the State within
which the Property is located without regard to conflict of law
principles.
15.7 EXHIBITS. All exhibits, attachments, annexed instruments and
addenda referred to herein will be considered a part hereof for all
purposes with the same force and effect as if copied verbatim herein.
15.8 NO RULE OF CONSTRUCTION: Seller and Purchaser have each been
represented by counsel in the negotiations and preparation of this
Contract; therefore, this Contract will be deemed to be drafted by both
Seller and Purchaser, and no rule of construction will be invoked
respecting the authorship of this Contract.
15.9 SEVERABILITY. All agreements and covenants contained in this
Contract are severable. In the event any agreement or covenant is held to
be invalid by any court,
27
this Contract will be interpreted as if such invalid agreement or covenant
were not contained herein.
15.10 CONSTRUCTION OF CERTAIN WORDS. "ANY" will be construed as "any
and all." "INCLUDING" will be construed as "including but not limited to."
15.11 TIME OF ESSENCE. Time is important to both Seller and
Purchaser in the performance of this Contract, and both parties have
agreed that strict compliance is required as to any date set out in this
Contract.
15.12 BUSINESS DAYS. "BUSINESS DAY" means any day on which business
is generally transacted by banks in the State within which the Property is
located . If the final date of any period which is set out in any
paragraph of this Contract falls upon a day which is not a Business Day,
then, and in such event, the time of such period will be extended to the
next Business Day.
16. CONFIDENTIALITY.
Purchaser and Seller agree not to record this Contract and further agree
to hold all information related to this transaction in strict confidence, and
will not disclose same to any person other than directors, officers, employees
and agents of each, as well as to consultants, banks or other third parties
working with Seller or Purchaser in connection with the transaction ("RELATED
PARTIES") who need to know such information for the purpose of consummating this
transaction. This prohibition will not be applicable to disclosure of
information required by applicable law, rule or regulation but will survive the
Closing for a period of six (6) months. Except as provided in this Section 16,
prior to Closing, any release to the public of information with respect to the
matters set forth in this Contract will be made only in the form approved by
Purchaser and Seller and their respective counsel.
17. IRS REPORTING REQUIREMENTS.
For the purpose of complying with any information reporting requirements
or other rules and regulations of the Internal Revenue Service ("IRS") that are
or may become applicable as a result of or in connection with the transaction
contemplated by this Contract, including, but not limited to, any requirements
set forth in proposed Income Tax Regulation Section 1.6045-4 and any final or
successor version thereof (collectively the "IRS REPORTING REQUIREMENTS"),
Seller and Purchaser hereby designate and appoint the Title Company to act as
the "REPORTING PERSON" (as that term is defined in the IRS Reporting
Requirements) to be responsible for complying with any IRS Reporting
Requirements. The Title Company hereby acknowledges and accepts such designation
and appointment and agrees to fully comply with any IRS Reporting Requirements
that are or may become applicable as a result of or in connection with the
transaction contemplated by this Contract. Without limiting the responsibility
and obligations of the Title Company as the Reporting Person, Seller and
Purchaser hereby agree to comply with any provisions of the IRS Reporting
Requirements that are not identified therein as the responsibility of the
Reporting Person, including, but not limited to, the requirement that Seller and
Purchaser each retain an original counterpart of this Contract for at least four
(4) years following the calendar year of the Closing.
28
18. OFFER.
The submission of a copy of this Contract to the other party shall not
constitute an offer from the submitting party to the other party. This Contract
shall become effective and binding only upon execution and delivery by both
Seller and Purchaser.
19. SECTION 1031 EXCHANGE.
Purchaser agrees to reasonably cooperate with Seller if Seller attempts to
effect an exchange ("EXCHANGE") under Section 1031 of the Internal Revenue Code
of 1986, as amended (the "CODE") in connection with the Seller's sale of the
Property provided the following conditions are satisfied: (1) Seller shall pay
all costs and expenses (including reasonable attorneys' fees and related
expenses) incurred by Purchaser solely because of Seller's attempts to effect an
Exchange in connection with Seller's sale of the Property; (2) the Exchange
shall not affect the Purchase Price or any other amount payable hereunder by
Purchaser, nor shall the exchange change the manner or timing of payment of such
sums, nor shall Purchaser have its rights under this Agreement affected or
diminished in any manner by the exchange, (3) Seller's obligations hereunder to
close the sale of the Property shall not be conditioned or contingent upon
Seller successfully effecting an Exchange; and (4) Seller shall indemnify and
hold harmless Purchaser from and against any loss, cost, damage or expense
(including attorneys' fees and related expenses) incurred by Purchaser as a
result of the cooperation of Purchaser with an actual or contemplated Exchange
and the foregoing indemnification obligation shall survive the closing of such
Exchange. Purchaser shall not be responsible for compliance with or be deemed to
have warranted to Seller that the Exchange in fact complies with Section 1031 of
the Code. This Section shall survive the Closing.
20. LOCAL COUNSEL REVIEW
The parties agree to cooperate in making such reasonable changes to this
Agreement and to the documents required to be delivered hereunder as may be
suggested by Purchaser's Pennsylvania counsel for the purpose of complying with
Pennsylvania or local law requirements.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
IN WITNESS WHEREOF, this Contract has been executed by the Parties hereto.
SELLER:
B.R. PROPERTIES OWNER, LP
By: B.R Properties GP, LLC, General Partner
By: B.R Properties Manager, Inc., Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
Date: July 21, 2005
PURCHASER:
MIDLANTIC PARTNERSHIP, LP
a Delaware limited partnership
By: Midlantic Office Properties, LLC
a Delaware limited liability company
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer,
President, Secretary and Treasurer
Date: July 21, 2005