EXHIBIT 10.44
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
BETWEEN XXXXX XXXXXXX NO. 33, L.P.
AND
XXXXX OPERATING PARTNERSHIP, L.P.
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 30th day of November, 1998, by and between
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XXXXX XXXXXXX NO. 33, L.P., a Pennsylvania limited partnership (hereinafter
referred to as "Seller") and XXXXX OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership (hereinafter referred to as "Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten and No/100 Dollars ($10.00) in hand
paid by Purchaser to Seller at and before the sealing and delivery of these
presents and for other good and valuable consideration, the receipt, adequacy,
and sufficiency of which are hereby expressly acknowledged by the parties
hereto, the parties hereto do hereby covenant and agree as follows:
1. Definitions and Meanings. In addition to any other terms whose
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definitions are fixed and defined by this Agreement, each of the following
defined terms, when used in this Agreement with an initial capital letter or
letters, shall have the meaning ascribed thereto in this Paragraph 1:
"Agreement" means this Agreement for the Purchase and Sale of Property,
together with all exhibits attached hereto and made a part hereof.
"Architect" means the architectural firm of VOA Associates.
"Architect's Agreement" means the agreement between the Seller and the
Architect under which the Architect has been engaged to prepare architectural
designs, plans, drawings and specifications for the Project and to render other
services in connection with the design and construction of the Project.
"Building" means the first-class, single tenant, four-story office
building, containing approximately 81,859 square feet of gross floor area which
the Seller is currently developing and constructing upon the Land.
"Closing" means the consummation of the purchase and sale contemplated by
this Agreement by the deliveries required under Paragraphs 11, 12 and 13 hereof.
"Completion Date" means the first day on which all of the following have
occurred: (i) the construction and equipping of the Project has been
substantially completed in accordance with the Plans and Specifications,
inclusive of landscaping plans, and excepting
only Punch List Items which will cost less than $30,000.00 in order to complete
and/or correct, as evidenced by a certificate to such effect from the Architect,
(ii) the Tenant Improvements for the space in the Building to be occupied by
Tenant (other than the Specialty Space) have been completed in accordance with
the working drawings and specifications for such space, as evidenced by a
certificate to such effect from the Architect, and any Punch List Items have
been completed to the satisfaction of Tenant, except for Punch List Items which
will cost less than $70,000.00 in order to complete and/or correct, (iii) all
facilities and improvements required to be constructed and installed on the Land
under any of the Permitted Exceptions have been constructed, installed and
completed in a good and workmanlike manner and in compliance with the terms,
provisions and requirements of the Permitted Exceptions, (iv) permanent or
temporary certificates of use and occupancy or their equivalent have been issued
by the appropriate Governmental Authority with respect to the base building and
with respect to the space in the Building to be occupied by Tenant (other than
the Specialty Space), (v) the Initial Term Commencement Date under the Lease has
occurred, Tenant is occupying its premises for business purposes, and Tenant has
commenced to pay monthly Base Rent and Additional Rent payable by Tenant under
the Lease, (vi) Tenant has executed and delivered to the "Landlord" under the
Lease an estoppel certificate substantially in the form attached to the Lease as
Exhibit 19.9 thereto, stating the date that the Lease Term commenced and that
Tenant has accepted the premises and possession thereof, and certifying as to
the matters set forth therein without any material qualifications or exceptions,
including any exception for any Punch List Items costing more than $100,000.00
in the aggregate to complete or correct (i.e., not more than $30,000 with
respect to the base building work and not more than $70,000 with respect to
Tenant Improvements), (vii) any sums or amounts payable to the Tenant under
Section 2.6 of the Lease have been paid in full, (viii) Purchaser has received
copies of all Warranties issued with respect to the Project and a final
Contractor's Affidavit and Lien Waiver from Xxxxxx Western Contractors, Ltd.,
and (ix) Seller has received either a certificate of compliance from the
Committee under the Declaration and has provided a copy thereof to Purchaser, or
Seller has obtained and delivered to Purchaser a certificate from the Architect,
addressed to Purchaser, stating that Architect has reviewed the approval of the
plan and specifications relating to the Project granted by the Committee under
the Declaration and that the Project has been constructed in accordance with the
plans and specifications approved by such Committee. Notwithstanding the
foregoing to the contrary, in the event the Title Company is unwilling to issue
an owner's title insurance policy to Purchaser without exception for unfiled or
inchoate mechanics', laborers' or materialmen's liens until all Punch List Items
have been completed, the Completion Date shall not occur until the Punch List
Items have been completed.
"Construction Agreements" means, collectively, the construction contracts
between the Seller and the Contractors with respect to the Project.
"Contractors" means, collectively, Xxxxxx Western Contractors, Ltd. and all
other firms, engineers or consultants employed by Seller as a general contractor
or as a special purpose contractor with respect to the Project; and singly any
such general or special purpose contractor.
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"Declaration" means the Declaration of Covenants, Conditions and
Restrictions by Xxxxxxx X. Xxxxx, Declarant, dated December 1, 1979, and
recorded December 25, 1979, in Record Book 91, page 362, Dauphin County,
Pennsylvania Recorder's Office.
"Xxxxxxx Money" means the amounts deposited by the Purchaser with the
Escrow Agent as Xxxxxxx Money as provided in Paragraph 3 hereof.
"Effective Date" means the date on which this Agreement is duly executed by
both Seller and Purchaser, and said date shall be inserted in the first
paragraph on page 1 hereof.
"Environmental Laws" means the following, as the same may have been
amended: the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. (S) 9601, et seq.; the Resource Conservation Act of 1976,
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42 U.S.C. (S) 6921, et seq.; the Toxic Substances Control Act, 15 U.S.C. (S)
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2601, et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
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(S) 136; the Federal Water Pollution Control Act, 33 U.S.C. (S) 1251, et seq.;
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the Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801, et seq.; the
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Federal Solid Waste Disposal Act, 42 U.S.C. (S) 6901, et seq.; the Clean Air
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Act, 42 U.S.C. (S) 7401, et seq.; and any other legislation or ordinance of any
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Governmental Authority identified by its terms as pertaining to hazardous
substances or waste.
"Environmental Report" means the Phase I Environmental Site Assessment
Final Report prepared for Xxxxx, Xxxxxxx & Company by Xxxxxx and Xxx, Inc.,
dated August 1997.
"Escrow Agent" means Ticor Title Insurance Company.
"Existing Loan Documents" means the documents and instruments evidencing or
securing the construction loan made to Seller with respect to the Improvements
"Good and Marketable Title" means fee simple title to the Land and the
Improvements insurable by the Title Company at its standard rates on American
Land Title Association (ALTA) Owner's Policy Form B-1992 without exception,
except for the Permitted Exceptions and standard exceptions (which standard
exceptions shall be deleted or insured over at Closing based upon the Seller's
affidavit and the Survey).
"Governmental Authority" means any federal, state, or municipal government,
branch, authority, district, agency, court, tribunal, department, officer,
official, board, commission or other instrumentality having jurisdiction with
respect to the Property or the matter in issue, as the case may be.
"Hazardous Substances" means petroleum, including crude oil or any fraction
thereof, asbestos, polychlorinated biphenyls, and any other substance identified
as hazardous substances or hazardous materials in the Environmental Laws.
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"Improvements" means the approximately 81,859 gross square foot office
building and related structures, the Site Improvements, and other improvements
constructed and to be constructed located on the Land as contemplated by the
Plans and Specifications.
"Inspection Period" means the period from the Effective Date through the
date which is thirty (30) days after the Effective Date.
"Intangible Personal Property" means all intangible personal property owned
by Seller and now, or hereafter, located upon the Land or used in connection
with the Property, including, without limitation, all (i) tradenames, (ii)
logos, (iii) warranties and guaranties given in connection with the construction
and repair of the Improvements or the purchase of any Personal Property, and
(iv) certificates of occupancy (or the local equivalents), permits, licenses,
approvals and authorizations issued by any Governmental Authority.
"Land" means that certain tract or parcel of land containing approximately
10.5 acres, located in Susquehanna Township, Dauphin County, Pennsylvania, and
being described in Exhibit "A" attached hereto and by reference made a part
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hereof.
"Lease" means that certain Build to Suit Office Lease Agreement between
Seller and Tenant (and joined in by Xxxxx, Xxxxxxx & Company) dated as of
September 26, 1997, as amended by Amendment No. 1 to Build-to-Suit Lease
Agreement dated September 15, 1998.
"Lease Guaranty" means that certain Guaranty dated September 26, 1997,
executed by Vanguard in favor of Seller as "Landlord" under the Lease.
"Leasing Agents" means Xxxxxx/Xxxxxx, Ball & Xxxxx, Inc. in cooperation
with Gelcor Realty, Inc.
"Permitted Exceptions" means the exceptions listed on Exhibit "E" attached
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hereto and by reference made a part hereof and any Title Objections to which
Purchaser fails to object or which Purchaser waives pursuant to Paragraph 8
hereof.
"Personal Property" means all tangible personal property owned by Seller
and now, or hereafter, located upon the Land or used in connection with the
ownership, operation, management or maintenance of the Property, including,
without limitation, all machinery, apparatus, equipment, engines, motors,
appliances, office equipment, furniture, coverings, blinds, curtains, vehicles,
accessories, and the property described on Exhibit "F" attached hereto and by
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reference made a part hereof.
"Plans and Specifications" means those certain working drawings, plans and
specification described on Exhibit "G" attached hereto and by reference made a
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part hereof.
"Project" means the Building, the Tenant Improvements and the Site
Improvements, collectively.
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"Property" means, collectively, the Real Estate, the Personal Property, and
the Intangible Property.
"Punch List Items" means the details of construction, decoration,
landscaping and mechanical adjustment which remain to be performed or completed
after substantial completion of the Project in accordance with the Plans and
Specifications and which, in the aggregate, are minor in character and do not
and will not interfere with Tenant's use or enjoyment of the Project, as
determined by the Architect.
"Purchase Price" means the amount which Purchaser shall pay to consummate
the purchase and sale of the Property as provided in Paragraph 4 of this
Agreement.
"Real Estate" means (i) the Land, (ii) the Improvements, and (iii) all
rights, members, rights-of-way, easements, mineral rights, privileges, options,
leases, licenses, and appurtenances in any manner belonging to, or pertaining
to, the Land and the Improvements.
"Service Contracts" means the contracts entered into by or on behalf of
Seller for the maintenance and operation of the Property, as listed on Exhibit
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"H" attached hereto and by reference made a part hereof.
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"Site Improvements" means the surface level parking facilities, sufficient
to accommodate approximately 371 automobiles, any and all on and off-site road
improvements, walkways, complete utilities and drainage systems, landscaping
work, exterior lighting, ground-mounted signs and other site improvements to be
constructed and installed and upon the Land pursuant to the Plan and
Specifications, the Lease and the Permitted Exceptions.
"Specialty Space" means the so called Display Area, Learning Center/White
Coats Room and Network Services Center located on the second floor of the
Building, containing not more than 4,750 square feet of usable area in the
aggregate, and as to which Seller and Tenant have agreed in writing that Tenant,
and not Seller, is responsible for the completion of tenant improvements therein
at Tenant's cost.
"Tenant" means Pennsylvania Cellular Telephone Corp., a North Carolina
corporation.
"Lease Amendment" means the amendment to the Lease to be executed by Tenant
with respect to the Lease, as provided in Paragraph 10(d) hereof, such amendment
to be in the form attached hereto as Exhibit "D" and incorporated herein by this
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reference.
"Tenant Improvements" means all improvements constructed and to be
constructed by the "Landlord" under the Lease on or within the Building for use
or operation by the Tenant under or pursuant to the Lease, including the
"Initial Interior Build-Out" (as defined in the Lease) but excluding the "Tenant
Work" (as defined in the Lease) to be performed by Tenant.
"Title Commitment" means a title insurance commitment issued by the Title
Company for issuance to Purchaser, at regular rates, of an owner's policy of
title insurance in
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accordance with American Land Title Association (ALTA) Owner's Policy Form B-
1992 pursuant to which Purchaser's Good and Marketable Title to the Real Estate
shall be insured in the amount of the Purchase Price upon the Closing. Such
Title Commitment shall include coverage against matters of survey (other than
the matters disclosed on the as-built survey to be obtained by Seller as
provided herein) and a commitment to provide affirmative title insurance
coverage for all easements, if any, appurtenant to the Land and/or Improvements,
and such Title Commitment will provide assurance that the Owner's Policy issued
pursuant thereto will include a comprehensive endorsement, assurance of lack of
encroachments (PA endorsement 301), assurance that the Owner's Policy will
describe the same Land as that set forth in the as-built survey to be obtained
by Seller as provided herein and assurance that the Land abuts upon and has
access to Interstate Drive, a publicly dedicated street.
"Title Company" means Ticor Title Insurance Company.
"Title Objection" and Title Objections mean any mortgages, deeds of trust,
deeds to secure debt, liens, financing statements, security interests,
easements, leases, restrictive covenants, agreements, options, claims, clouds,
encroachments, rights, taxes, assessments, mechanics' or materialmen's liens
(inchoate or perfected), liens for federal or state estate or inheritance taxes
and other encumbrances of any nature whatsoever, whether existing of record or
otherwise, together with any and all matters of any kind or description,
including, without limitation, matters of survey and any litigation or other
proceedings affecting Seller and which affect title to the Real Estate or the
right, power and authority of the Seller to convey Good and Marketable Title to
the Real Estate to Purchaser in accordance with the terms of this Agreement,
other than the exceptions listed on Exhibit "E" attached hereto and by reference
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made a part hereof.
"Vanguard" means Vanguard Financial Corporation, a North Carolina
corporation.
"Warranties" means all warranties and guaranties relating to the
construction, operation, maintenance, repair, and use of the Improvements and
Personal Property.
2. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell the
Property to Purchaser and Purchaser hereby agrees to purchase the Property from
Seller.
3. Xxxxxxx Money. Within two (2) business days after the full execution
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of this Agreement, Purchaser shall deliver to Escrow Agent, whose offices are at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Purchaser's
check, payable to Escrow Agent, in the amount of Two Hundred Fifty Thousand and
No/100 ($250,000.00) (the "Xxxxxxx Money"), which Xxxxxxx Money shall be held
and disbursed by Escrow Agent pursuant to a written Escrow Agreement and Escrow
Instructions, copies of which are attached hereto as Exhibit "B" and by this
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reference made a part hereof. The Xxxxxxx Money shall be paid by Escrow Agent to
Seller at Closing (as hereinafter defined) and shall be applied as a credit to
the Purchase Price (as hereinafter defined). All interest and other income from
time to time earned on the Xxxxxxx Money shall belong to Purchaser and shall be
disbursed to Purchaser at any time or from time to time as Purchaser shall
direct Escrow Agent, all as provided in the
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Escrow Agreement. In no event shall such interest or other income be deemed a
part of the Xxxxxxx Money.
4. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be Twelve Million Two Hundred
Ninety-One Thousand Two Hundred and No/100 Dollars ($12,291,200.00). The amount
of the Purchase Price has been determined by Seller and Purchaser based upon the
assumption that the annual Base Rent (as defined in the Lease) payable by the
Tenant under the Lease for the first ten (10) Lease Years (as defined in the
Lease) shall be in the amounts set forth on Exhibit "L" attached hereto and by
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reference made a part hereof. At the Closing, Purchaser will pay the Purchase
Price to Seller by cashier's check or by wire transfer of immediately available
federal funds, less the Xxxxxxx Money to be paid to Seller at Closing and
subject to adjustments and prorations for which provisions are made in this
Agreement.
In the event all Punch List Items have not been completed and/or corrected
as of the date of Closing, or in the event the permanent certificates of use or
occupancy or their equivalent have not been issued by the appropriate
Governmental Authority with respect to the base building and with respect to the
space in the Building to be occupied by Tenant, Seller shall deposit with the
Title Company in escrow, such portion of the Purchase Price equal to one hundred
fifty percent (150%) of the costs and expenses of completing and/or correcting
such Punch List Items, and/or obtaining such permanent certificates of
occupancy, as reasonably estimated by the Architect. The amount of the Purchase
Price paid by Seller into escrow at Closing shall be paid to Seller by the Title
Company upon the completion and/or correction of all such Punch List Items and
the receipt by Purchaser of such permanent certificates of occupancy.
Seller shall deposit $25,000.00 of the Purchase Price in escrow with the
Title Company at Closing to ensure Seller's compliance with Landlord's
obligation under Section 2.7 of the Lease to use its reasonable commercial
efforts to furnish to Tenant three (3) copies of any and all service contracts,
warranties, equipment specifications, manufacturer's information and operating
instructions in connection with the Initial Improvements (as that term is
defined in the Lease), as the same may be reasonably available to Landlord from
its suppliers. Such amount of the Purchase Price paid by Seller into escrow at
Closing, including all interest accrued thereon, shall be paid to Seller by the
Title Company upon Seller's satisfaction of those obligations. Such escrowed
amount, including all interest accrued thereon, shall be paid by Title Company
to Purchaser on the date which is five (5) months after the Closing if Seller
fails prior to such date to satisfy those delivery obligations.
In the event any "Scope Change" or "Scope Changes" (as such terms are
defined in the Lease) shall have occurred and shall have resulted in one or more
written "Change Orders" (as defined in the
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Lease) having the effect (as certified by Seller and acknowledged by Tenant,
each in writing) of increasing or decreasing the Base Rent payable by the Tenant
as provided in Section 2.4 of the Lease, the Purchase Price shall be adjusted as
follows: In the event the Base Rent (as defined in the Lease) shall decrease as
a result of the Change Orders, the Purchase Price shall decrease by an amount
equal to the quotient derived by dividing the amount of such decrease in the
annual Base Rent for the first Lease Year (as defined in the Lease) by .10125.
In the event the Base Rent shall increase as a result of Change Orders, the
Purchase Price shall increase by an amount equal to the quotient derived by
dividing the amount of such increase in the annual Base Rent for the first Lease
Year by .10125; provided, however, in no event shall the Purchase Price be so
increased by more than $72,125.93.
5. Purchaser's Inspection and Review Rights. Commencing on the Effective
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Date of this Agreement and continuing through the Inspection Period, upon at
least one (1) full day prior verbal notice to Seller in each case, Purchaser and
its agents, engineers, or representatives, with Seller's cooperation, shall have
the privilege of going upon the Property as needed to inspect, examine, test,
and survey the Property at all reasonable times and from time to time. Such
privilege shall include the right to make borings and other tests to obtain
information necessary to determine surface and subsurface conditions, provided
that such activities do not materially interfere with the business operations of
the Tenant on the Property. Purchaser shall also have the right following the
Inspection Period to conduct a pre-closing inspection of the Property. Purchaser
hereby agrees to hold Seller harmless from any liens, claims, liabilities, and
damages incurred through the exercise of such privilege granted in this
Paragraph 5 (but excluding any liability arising out of the existing
environmental condition of the Property and excluding any claims arising out of
a release of existing or in-place Hazardous Substances on or under the Property
unless caused by the negligence of Purchaser or its agents, engineers or
representatives), and Purchaser further agrees to repair any damage to the
Property caused by the exercise of such privilege (excluding any damage arising
out of a release of existing or in-place Hazardous Substances on or under the
Property unless caused by the negligence of Purchaser or its agents, engineers
or representatives). Purchaser's obligations under the preceding sentence shall
survive the Closing and any termination of this Agreement. Within three (3) days
after the Effective Date of this Agreement, to the extent not already provided
to Purchaser, Seller shall provide to Purchaser complete copies of all Service
Contracts, if any, copies of all existing environmental reports (including the
Environmental Report), wetlands reports, soil reports and other reports from any
tests and studies obtained by Seller or any affiliate of Seller, evidence of the
existing zoning of the Land (including a zoning letter from the appropriate
jurisdiction and a copy of the zoning ordinance), evidence of satisfaction of
subdivision requirements, if any, copies of property tax assessments and
property tax bills for the Property for the period of Seller's ownership,
evidence of availability of all required utilities, a copy of the written
approval of the Plans and Specifications by the Committee under the Declaration,
copies of all permits obtained with respect to the Improvements, a written
inventory and listing of the Personal Property and Seller's operating budget
with respect to the Property for the 1999 calendar year. In addition, at all
reasonable times during the Inspection Period, Seller shall make available to
Purchaser, or Purchaser's agents and representatives, at Seller's office in
Chicago, Illinois, and for copying at Purchaser's expense, all records and files
relating to the acquisition, operation and leasing of the Property, including,
without limitation, title matters, tenant files, including correspondence to and
from the Tenant, commission agreements, tax bills, warranties and guaranties in
effect with respect to the Improvements and Personal Property, plans and
specifications, engineering reports and reports of insurance carriers insuring
the Property, and other information relating to the Property (but excluding any
construction contracts or development budgets relating to the Property). Seller
further agrees to in good faith assist and cooperate with Purchaser in coming to
a thorough understanding of such records and files relating to the Property as
to which access shall be provided as herein required.
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6. Special Condition to Closing. Purchaser shall have the right during
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the Inspection Period, on the basis of its investigations, examinations,
inspections, market studies, feasibility studies, lease reviews, and tests
relating to the Property and the operation thereof, to determine, in Purchaser's
sole opinion and discretion, the suitability of the Property for acquisition by
Purchaser. Purchaser shall have the right to terminate this Agreement at any
time prior to the expiration of the Inspection Period by giving written notice
to Seller of such election to terminate. If Purchaser fails to timely terminate
this Agreement as provided herein, such termination right under this Paragraph 6
shall be of no further force or effect. In the event Purchaser so elects to
terminate this Agreement, Escrow Agent shall pay to Seller from the Xxxxxxx
Money the sum of Twenty-Five Dollars ($25.00) and the balance of the Xxxxxxx
Money shall be refunded by Escrow Agent to Purchaser, whereupon, except as
expressly provided to the contrary in this Agreement, no party hereto shall have
any other or further rights or obligations under this Agreement. Seller
acknowledges that the sum of $25.00 is good and adequate consideration for the
termination rights granted to Purchaser hereunder.
7. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to the conditions to Purchaser's obligations set forth in
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Paragraph 6 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing, any of which may be
waived by written notice from Purchaser to Seller:
(a) The Completion Date has occurred, and Seller has complied with
and otherwise performed each of the covenants and obligations of Seller set
forth in this Agreement.
(b) All representations and warranties of Seller as set forth in this
Agreement shall be in all respects true and correct in all material
respects as of the date of Closing.
(c) There has been no adverse change to the title to the Property
which has not been cured and the Title Company has issued the Title
Commitment on the Real Estate and is prepared to issue to Purchaser upon
the Closing a fee simple ALTA owner's title insurance policy on the Real
Estate pursuant to the Title Commitment and without exception to matters
other than Permitted Exceptions.
(d) The Tenant shall not be in default (without regard to the
expiration of any applicable cure period provided in the Lease with such
Tenant) under the terms of the Lease as of the date of Closing.
(e) Seller shall have obtained an executed Lease Amendment from the
Tenant in the form attached hereto as Exhibit "D" and by reference made a
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part hereof.
(f) Seller shall have obtained an executed Estoppel Certificate from
the Tenant, addressed to Purchaser, in the form attached to the Lease as
Exhibit 19.9
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thereto, and Seller shall have obtained an executed Guarantor Estoppel
Certificate from Vanguard in the form attached hereto as Exhibit "M" and by
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reference made a part hereof, each dated no more than thirty (30) days
prior to Closing. The Estoppel Certificate from the Tenant shall state the
date that the Lease Term commenced and that Tenant has accepted the
premises and possession thereof, and the certifications made by the Tenant
in such Estoppel Certificate shall not be subject to any material
qualifications or exceptions, except that Tenant may make an exception for
the Punch List Items with respect to Tenant Improvements which will cost
less than $70,000 in order to complete and/or correct and Punch List Items
with respect to base building work which will cost less than $30,000 in
order to complete and/or correct.
(g) Seller shall have obtained and delivered to Purchaser the as-
built survey which complies with the minimum detail requirements for land
title surveys as adopted by the American Land Title Association and
American Congress on Surveying and Mapping, adopted in 1992, and the other
items described in Paragraph 10(e) below.
In the event Purchaser shall reasonably determine that any of the foregoing
conditions have not been satisfied or waived in writing by Purchaser at or prior
to the Closing, Purchaser shall have the right to terminate this Agreement by
giving written notice of such election to Seller, whereupon the Xxxxxxx Money
shall be disbursed in the same manner as provided in Paragraph 6 above.
8. Title to the Property. Good and Marketable Title to the Real Estate
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shall be conveyed by Seller to Purchaser by Special Warranty Deed, free and
clear of all liens, easements, restrictions, and encumbrances whatsoever,
excepting only the Permitted Exceptions. Within fifteen (15) days after the
Effective Date, Seller shall, at Seller's sole cost and expense, cause the Title
Company to deliver to Purchaser a Title Commitment, together with, copies of all
documents and instruments referred to therein. Purchaser shall have until the
date which is ten (10) days after the receipt of the original such Title
Commitment, together with copies of all documents and instruments referred to
therein, during which to examine the Title Commitment and such title documents
after which Purchaser shall notify Seller of any objections with respect to the
form of the Title Commitment or any defects or objections affecting the record
marketability of the title to the Property, other than the Permitted Exceptions.
If Purchaser fails to give such notice of defects or objections as to any
matters disclosed by such Title Commitment, such matters shall be deemed to be
additional Permitted Exceptions. Seller shall then have ten (10) days after
receipt of such notice of title defects or objections from Purchaser to advise
Purchaser in writing which of such title defects or objections Seller does not
intend to satisfy or cure; provided, however, Seller hereby agrees that Seller
shall satisfy or cure any such defects or objections consisting of taxes,
assessments, mortgages (including the Existing Loan Documents), deeds of trust,
mechanic's or materialmen's liens or monetary encumbrances willfully caused by
Seller. In the event Seller fails to give such written advice to Purchaser
within such ten (10) day period, Seller shall be deemed to have agreed to
satisfy or cure all such defects or objections set forth in Purchaser's notice.
Seller shall have until Closing to satisfy or cure all such defects and
objections which Seller agreed (or is deemed to have agreed) to satisfy or cure
as provided above. In the event there exist defects or objections which are not
required herein to be satisfied or cured by Seller
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prior to Closing or in the event Seller fails or refuses to cure any defects
and objections which are required herein to be satisfied or cured by Seller
prior to the Closing, then, at the option of Purchaser, (i) Purchaser may
terminate this Agreement by written notice to Seller and Escrow Agent, in which
event the Xxxxxxx Money shall be immediately refunded to Purchaser, and this
Agreement shall be deemed of no force and effect and Purchaser and Seller shall
have no further rights, obligations or liabilities hereunder, except as
expressly provided herein, (ii) if any such defect or objection is one that
Seller agreed (or is deemed to have agreed) to satisfy or cure as provided
above, Purchaser may cure such defect or objection, in which event the Purchase
Price payable pursuant to Paragraph 4 hereof shall be reduced by an amount equal
to the actual cost and expense incurred by Purchaser in connection with the
curing of such defect or objection, (iii) Purchaser may accept title to the
Property subject to such defects and objections, or (iv) any combination of
items (ii) and (iii). In the event Purchaser elects to cure any such defects and
objections pursuant to item (ii) hereof, Purchaser at its option, upon giving
notice to Seller, may extend the date of Closing until the curing of such
defects or objections or thirty (30) days from and after the previously
scheduled date of Closing, whichever shall first occur. If any defect or
objection shall not have been cured within such period, Purchaser may exercise
its option under either item (i) or (iii) hereof. Purchaser and Seller agree
that if mechanic's or materialmen's liens in the aggregate amount of less than
$150,000.00 shall exist, in lieu of Seller satisfying such liens as required
above, Seller may elect to cause the Title Company to provide affirmative
insurance coverage to Purchaser with respect to such liens in Purchaser's
owner's title insurance policy issued to Purchaser at Closing, and any
incremental cost of providing such affirmative insurance coverage shall be paid
by Seller at Closing.
From time to time, Purchaser may request an update to the effective date of
the Title Commitment and give notice to Seller of all defects or objections
appearing subsequent to the effective date of the Title Commitment (or previous
update thereof).
9. Representations and Warranties of Seller. Seller hereby makes the
----------------------------------------
following representations and warranties to Purchaser:
(a) Lease. Seller has delivered to Purchaser a complete and accurate
-----
copy of the Lease. The Lease has not been further supplemented or modified
or amended, and there are no agreements or commitments between Seller and
the Tenant relating to the Property other than as expressly set forth in
the Lease. Seller is the "Landlord" under the Lease and owns legal and
beneficial title to the Lease and the rents and other income thereunder
subject only to the Existing Loan Documents.
(b) Lease - Assignment. To the best of Seller's knowledge, the Tenant
------------------
has not assigned its interest in its Lease or sublet any portion of the
premises leased to such Tenant under its Lease.
(c) Lease - Default. (i) Seller has not received any notice of
---------------
termination or default under the Lease, (ii) to the best of Seller's
knowledge, there are no existing or uncured defaults by Seller or by the
Tenant under the Lease, (iii) to the best of Seller's knowledge, there are
no events which with passage of time or notice, or both, would constitute a
default by Seller or by the Tenant under the Lease, and to the best of
11
Seller's knowledge Seller has complied with each and every undertaking,
covenant, and obligation of Seller under the Lease required to be complied
with and/or performed as of the date this representation is made or
reaffirmed, as the case may be, (iv) the Tenant has not asserted any
defense, set-off, or counterclaim with respect to its tenancy or its
obligation to pay rent, additional rent, or other charges pursuant to its
Lease, and (v) neither Seller nor the Tenant has the right to terminate the
Lease pursuant to Section 1.5 thereof. Further, Tenant has not indicated to
Seller either orally or in writing its request or its intent to terminate
its Lease prior to the expiration of the term of the Lease or to reduce the
size of the premises leased by the Tenant.
(d) Lease - Rents and Special Consideration. Except as expressly
---------------------------------------
set forth in the Lease, the Tenant: (i) has not prepaid any rent under the
Lease, (ii) is not entitled to receive any rent concession in connection
with its tenancy under its Lease, and (iii) does not have any option or
other evidence of any right or interest in or to the Property. The sums
required to be paid by Seller to the Tenant under Section 2.1 of the Lease
were paid in full by Seller to the Tenant prior to delinquency.
(e) Lease - Commissions. No rental, lease, or other commissions with
-------------------
respect to the Lease is payable to Seller or any party affiliated with or
related to Seller or will be payable to Seller or any party affiliated with
or related to Seller in connection with any renewal or extension of the
Lease or any expansion of the premises leased by the Tenant. The only
commission obligation of Seller with respect to the Lease is set forth in
the commission agreement between Seller and Leasing Agents dated September
19, 1997, accepted September 22, 1997, a true and complete copy of which
has been provided to Purchaser. Seller has heretofore paid to Leasing
Agents $270,000.00 of the commission payable to Leasing Agents under the
aforesaid commission agreement and the remaining balance of such commission
($270,000.00) shall be due and payable to Leasing Agents as provided in the
aforesaid commission agreement, and shall be paid by Seller at or prior to
Closing. Except for the remaining $270,000.00 of the total commission in
the amount of $540,000.00 payable by Seller to Leasing Agents as provided
in the aforesaid commission agreement, and except as otherwise expressly
provided in such commission agreement, no commission obligations currently
exist with respect to the Lease or will accrue in the future with respect
to the Lease arising out of the acts or agreements of Seller, including any
such commission obligations which may result in the future from the
exercise by the Tenant thereunder of any right or option in the Lease to
extend the term of such Lease or to expand the space leased thereunder.
Seller shall and does hereby indemnify and hold harmless Purchaser from and
against any claim, whether or not meritorious, for any real estate
commission, finder's fee, or like compensation in connection with the Lease
or in connection with the exercise by Tenant thereunder of any right or
option in the Lease to extend the term of such Lease or to expand the space
leased thereunder arising out of any act or agreement by Seller, excepting
only such claim by Leasing Agents under the aforesaid commission agreement.
(f) Intentionally Omitted.
12
(g) Service Contracts. Complete and accurate copies of all of the
-----------------
Service Contracts, if any, will be delivered by Seller to Purchaser as
provided in Paragraph 5 hereof. To the best of Seller's knowledge, (i) all
such Service Contracts are in full force and effect in accordance with
their respective provisions, (ii) all payments required to be made by
Seller or the "Owner" thereunder have been paid in full, and (iii) there is
no default, or claim of default, or any event which with the passage of
time or notice, or both, would constitute a default on the part of any
party to any of such Service Contracts. All such Service Contracts are
terminable without penalty or obligation to pay any severance or similar
compensation on no more than thirty (30) days' notice. Seller agrees to
cancel, effective no later than the Closing, any of the Service Contracts
specified by Purchaser in a written notice to Seller given at least thirty
(30) days prior to the Closing. To the best of Seller's knowledge, all
Service Contracts are assignable by Seller to Purchaser and no Service
Contract prohibits such assignment or provides for any right, claim, or
cause of action against Purchaser or the Property upon such assignment.
Seller has canceled or will cancel, effective as of the Closing, any
agreement in the nature of a management agreement or service contract
between Seller and any partner of Seller or any party affiliated with or
related to Seller or any partner of Seller.
(h) Warranties and Guaranties. Within three (3) days after the
-------------------------
Effective Date of this Agreement, Seller shall provide Purchaser with
complete and accurate copies of all such warranties and guaranties which
are written, which are known by Seller to relate to the Property and which
are in the possession or control of Seller.
(i) No Other Agreements. Other than the Lease, the Existing Loan
-------------------
Documents, the Architect's Agreement, the Construction Agreements, the
Service Contracts, and the Permitted Exceptions, there are no leases,
contracts, service contracts, management agreements, or other agreements or
instruments in force and effect, oral or written, as to which Seller or any
affiliate of Seller is a party, that grant to any person whomsoever or any
entity whatsoever any right, title, interest or benefit in or to all or any
part of the Property, any rights to acquire all or any part of the Property
or any rights relating to the development, use, operation, management,
maintenance, or repair of all or any part of the Property.
(j) No Litigation. There are no actions, suits, or proceedings
-------------
pending, or to the best of Seller's knowledge threatened by any
organization, person, individual, or governmental agency against Seller
with respect to the Property or against the Property, nor does Seller know
of any basis for such action. Seller also has no knowledge of any pending
or threatened application for changes in the zoning applicable to the
Property or any portion thereof.
(k) Condemnation. No condemnation or other taking by eminent domain
------------
of the Property or any portion thereof has occurred and, to the best of
Seller's knowledge, there are no pending or threatened condemnation or
eminent domain proceedings (or proceedings in the nature or in lieu
thereof) affecting the Property.
13
(l) Proceedings Affecting Access. There are no pending or, to the
----------------------------
best of Seller's knowledge, threatened proceedings that could have the
effect of impairing or restricting access between the Property and adjacent
public roads.
(m) No Roll-Back Taxes. To the best of Seller's knowledge, the
------------------
has not been classified under any designation authorized by law to obtain a
special low ad valorem tax rate or to receive a reduction, abatement or
deferment of ad valorem taxes which, in such case, will result in
additional, catch-up or roll-back ad valorem taxes in the future in order
to recover the amounts previously reduced, abated or deferred.
(n) No Assessments. To the best of Seller's knowledge, no special
--------------
assessments have been made against the Property, whether or not they have
become liens, and all impact fees, permit fees, storm drainage area fees,
sewer connection fees, exactions or similar charges or sums payable as
result of the construction of the Improvements have been paid in full or
will be paid in full prior to the Closing.
(o) Permits. Seller has obtained all licenses, permits and approvals
-------
required to be obtained from Governmental Authorities in order to construct
and install the Project, and to the best of Seller's knowledge, the Project
has been constructed in compliance with all such licenses, permits and
approvals.
(p) Plans and Specifications. The Plans and Specifications are
------------------------
consistent with and include all of the "Final Plans" (as defined in the
Lease) and have been approved in writing by the Tenant as provided in
Section 2.2 of the Lease. To the best of Seller's knowledge, the Plans and
Specifications comply with the requirements of the Lease, including the
standards applicable to the Final Plans set forth in Section 2.2 of the
Lease.
(q) Conditions of Improvements. Seller is not aware of any
--------------------------
structural or other defects, latent or otherwise, in the Improvements,
except for Punch List Items. The heating, ventilating, air conditioning,
electrical, plumbing, water, elevator, roofing, storm drainage and sanitary
sewer systems at or servicing the Land and Improvements are, to the best of
Seller's knowledge, in good condition and working order and Seller is not
aware of any defects or deficiencies, latent or otherwise, therein, except
for Punch List Items. Except for Punch List Items, to the best of Seller's
knowledge, the Improvements have been constructed and installed in
accordance with the Plans and Specifications and the requirements and
conditions of all governmental permits applicable thereto and any private
restrictive covenants affecting the Property.
(r) Compliance With Governmental Requirements. To the best of
-----------------------------------------
Seller's knowledge, there are no violations of law, municipal or county
ordinances, or other legal requirements with respect to the Property, and
the Improvements and Tenant Improvements, when construction thereof is
completed in accordance with the Plans and Specifications, will comply with
(i) all applicable legal requirements with respect to the construction
thereof, including, without limitation, the Americans with
14
Disabilities Act, and (ii) the Permitted Exceptions. The Property is
currently zoned in a classification such as will permit the operation of
the Property for the uses thereof permitted in the Lease, and the
conditions, if any, to the granting of the zoning of the Property have been
satisfied. To the best of Seller's knowledge, the Property is not located
in a wetland area or in a designated or recognized flood plain, flood plain
district, flood hazard area or area of similar characterization.
(s) Declaration. Seller has obtained the written approval of the
-----------
Plans and Specifications by the Architectural Control Committee established
under the Declaration, and to the best of Seller's knowledge, no other
approvals are required to be obtained under the Declaration in connection
with the Project. To the best of Seller's knowledge, the Plans and
Specifications comply with all requirements of the Declaration, including
without limitation, requirements relating to design, color scheme,
setbacks, landscaping, floor area ratios, building heights, signs, sewer
systems, water drainage, and irrigation. Seller has not received any
notice, and Seller is not aware, of any default by Seller or with respect
to the Property or any event, or occurrence which, with the giving of
notice or lapse of time, or both, would result in a default of Seller or
with respect to the Property under the Declaration. Seller has paid all
fees with respect to the review and approval of the Plans and
Specifications under Article II, Section 4 of the Declaration. Seller has
not joined in or consented to any modification or amendment to the
Declaration that is not recorded in the Dauphin County, Pennsylvania
Recorder's office, and to the best of Seller's knowledge, the Declaration
has not been modified or amended other than by a document that is of record
in the Dauphin County, Pennsylvania Recorder's office.
(t) Utilities. All utilities necessary for the use of the Property
---------
by the Tenant, including water, sanitary sewer, storm sewer, natural gas,
electricity, and telephone, are installed in accordance with the Plans and
Specifications and are currently operational, and such utilities either
enter the Property through adjoining public streets, or, if they pass
through adjoining private land, do so in accordance with valid public
easements or private easements which inure to the benefit of the Property.
(u) Existing Surveys. Seller has heretofore delivered to Purchaser
----------------
the most current boundary survey of the Land in the possession or control
of Seller.
(v) Initial Utility Charges. All installation and connection charges
-----------------------
for utilities serving the Property have been paid in full or will be paid
in full prior to the Closing.
(w) Employees. There are no employment, collective bargaining, or
---------
agreements or arrangements between Seller and any of its employees or
others which will be binding on Purchaser or any of Purchaser's successors
in title.
(x) Authorization. Seller is a duly organized and validly existing
-------------
limited partnership under the laws of the Commonwealth of Pennsylvania.
This Agreement has been duly authorized and executed on behalf of Seller,
all necessary action on the part of Seller to authorize the transactions
herein contemplated has been taken, and no
15
further action is necessary for such purpose, and this Agreement
constitutes the valid and binding agreement of Seller, enforceable in
accordance with its terms, subject to bankruptcy, insolvency and similar
laws affecting generally the enforcement of creditor's rights. Neither the
execution and delivery of this Agreement nor the consummation of the
transaction contemplated hereby will (i) be in violation of Seller's
partnership agreement, (ii) conflict with or result in the breach or
violation of any law, regulation, writ, injunction or decree of any court
or governmental instrumentality applicable to Seller, or (iii) constitute a
breach of any evidence of indebtedness or agreement of which Seller is a
party or by which Seller is bound.
(y) Seller Not a Foreign Person. Seller is not a "foreign person" which
---------------------------
would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
At Closing, Seller shall reaffirm to Purchaser that all such representations and
warranties of Seller in this Agreement remain true and correct as of the date of
the Closing, except for any changes in any such representations or warranties
that occur and are disclosed by Seller to Purchaser expressly and in writing at
any time and from time to time prior to Closing upon their occurrence, which
disclosures shall thereafter be updated by Seller to the date of Closing. If
there is any change in any representations or warranties and Seller does not
cure or correct such changes prior to Closing, then Purchaser may, at
Purchaser's option, (i) close and consummate the transaction contemplated by
this Agreement, except that after such closing and consummation Purchaser shall
have the right to seek actual monetary damages from Seller for any such changes
willfully caused by Seller or any such representations or warranties willfully
breached by Seller, or (ii) terminate this Agreement by written notice to
Seller, whereupon the Xxxxxxx Money shall be immediately returned to Purchaser,
and thereafter the parties hereto shall have no further rights or obligations
hereunder, except only (1) for such rights or obligations that, by the express
terms hereof, survive any termination of this Agreement and (2) that Purchaser
shall have the right to seek actual monetary damages from Seller for any changes
in such representations and warranties willfully caused by Seller or any such
representations and warranties willfully breached by Seller. Purchaser shall
not have the right to seek or recover consequential damages arising from
Seller's breach or default under this Agreement. As used herein, the term "to
the best of Seller's knowledge" or similar phrase shall mean the actual
knowledge of Xxx XxXxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx XxXxxxxxx and Xxxxxx Xxxx.
10. Seller's Additional Covenants. Seller does hereby further covenant
-----------------------------
and agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
---------------------
Effective Date of this Agreement up to and including the date of Closing,
Seller shall: (i) not negotiate with any third party respecting the sale
of the Property or any interest therein, (ii) except for the Lease
Amendment, not modify, amend, or terminate the Lease without the prior
written consent of Purchaser, (iii) not enter into any new service contract
or other agreement respecting the Property without the prior written
consent of Purchaser, (iv) not waive any rights of Seller under the Lease
or any
16
Service Contract, (v) not voluntarily grant or otherwise create or consent
to the creation of any easement, restriction, lien, assessment, or
encumbrance respecting the Property, without the prior written consent of
Purchaser, (vi) neither transfer nor remove any personal property or
fixtures from the Property except for purposes of replacement thereof, in
which case such replacements shall be properly installed and shall be
comparable in quality to the items being replaced, and (vii) continue to
use all commercially reasonable efforts to cause the Completion Date to
occur within the time period contemplated by this Agreement.
(b) Completion of Construction. Seller shall, from and after the
--------------------------
Effective Date of this Agreement to the date of Closing (and thereafter if
not completed as of the date of Closing), continue to prosecute the
completion of the Punch List Items in accordance with the Plans and
Specifications with all due diligence.
(c) Preservation of Lease. Seller shall, from and after the
---------------------
Effective Date of this Agreement to the date of Closing, use commercially
reasonable efforts to perform and discharge all of the duties and
obligations and otherwise comply with every covenant and agreement of the
landlord under the Lease, at Seller's expense, in the manner and within the
time limits required thereunder. Furthermore, Seller shall, for the same
period of time, use diligent and good faith efforts to cause the Tenant
under the Lease to perform all of its duties and obligations and otherwise
comply with each and every one of its covenants and agreements under the
Lease. Seller's obligations under Section 2.7 of the Lease to (1) assign
and transfer to Tenant, after the conclusion of the Initial Improvements
Warranty Period, all assignable (without cost to Landlord or Contractor)
warranties then in effect which were given to Landlord or Contractor in the
first instance and (2) use its reasonable commercial efforts to furnish to
Tenant three (3) copies of any and all service contracts, warranties,
equipment specifications, manufacturer's information and operating
instructions in connection with the Initial Improvements (as that term is
defined in the Lease), as the same may be reasonably available to Landlord
from its suppliers, shall survive the Closing. Seller will deliver to
Purchaser copies of the documents delivered to Tenant pursuant to the terms
of this paragraph.
(d) Lease Amendment. Prior to Closing, Seller shall use commercially
---------------
reasonable efforts to obtain and deliver to Purchaser a fully completed
Lease Amendment with respect to the Lease in the form attached hereto as
Exhibit "D" and by this reference made a part hereof, duly executed by the
-----------
Tenant, Seller and the "Contractor" thereunder. Contractor agrees to join
in such Lease Amendment.
(e) As-Built Survey. Seller agrees to obtain at Seller's cost and
---------------
deliver to Purchaser, after the Improvements have been substantially
completed, and prior to the Closing, an as-built survey of the Real Estate
prepared for and certified to Purchaser and the Title Company by a
registered land surveyor approved by Purchaser, which approval shall not be
unreasonably withheld. The as-built survey shall be dated not earlier than
one (1) month prior to the Closing. Seller shall use commercially
reasonable efforts to cause the surveyor to prepare the as-built survey in
compliance with the minimum detail requirements for land title surveys as
adopted by the
17
American Land Title Association and American Congress on Surveying and
Mapping, adopted in 1992, and in a manner so as to show the following
items, whether covered by the foregoing minimum detail requirements or not:
(i) The political subdivision, county, and such other
notations as will accurately describe the property surveyed.
(ii) All courses and distances of the boundaries of the Land.
(iii) The location of all Improvements (including measured
dimensions) on the Land with the dimensions in relation to lot and building
lines. If any applicable restrictions, recorded plats, or zoning ordinances
require a building to be set back specified distances from streets or
property lines, the as-built survey must show measured distances from said
building to said streets or lines.
(iv) The location of all rights-of-way, water courses, drains,
sewers, utility easements, driveways, or roads which serve the Real Estate
or to which the Real Estate is subject.
(v) The names and widths of streets with the distance from the
nearest corner to the beginning point of Land surveyed.
(vi) The total acreage or square foot area of the Land and the
location and number of paved parking spaces.
(vii) The names of adjoining owners on all sides of the Land.
(viii) Certification by the surveyor that the real property, as
shown and described in the as-built survey, does not constitute an illegal
subdivision of land under applicable county or city ordinances.
(ix) Certification as to whether or not the Land lies within a
flood zone as determined by the United States Department of Housing and
Urban Development. If the Land lies within a flood zone, the certification
should reflect the flood zone classification.
(f) Tenant and Guarantor Estoppel Certificates. Within thirty (30)
------------------------------------------
days prior to Closing, Seller shall obtain and deliver to Purchaser a fully
executed Estoppel Certificate from the Tenant, addressed to Purchaser, in the
form attached to the Lease as Exhibit 19.9 thereto and a fully executed
Guarantor Estoppel Certificate from Vanguard in the form attached hereto as
Exhibit "M" and by reference made a part hereof.
-----------
(g) Insurance. From and after the date of this Agreement to the
---------
date and time of Closing, Seller shall maintain all-risk or special form
property insurance covering the Improvements on the Property in the amount of
the full insurable value thereof, together with loss of rent insurance for a
period of not less than six (6) months.
18
11. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may waive expressly and in
writing, at or prior to Closing, any conditions that are unsatisfied or
unperformed at such time, the consummation of the sale by Seller and purchase by
Purchaser of the Property (herein referred to as the "Closing") shall be held on
or before the date which is seven (7) business days after the later of (i) the
Completion Date or (ii) the expiration of the Inspection Period, at an office in
either Susquehanna Township or Harrisburg, Pennsylvania, at such specific
office, and at such specific time and date as shall be mutually agreed upon by
Purchaser and Seller prior to Closing. In the event Seller and Purchaser fail
to mutually agree upon the date, time and place for Closing, the Closing shall
occur at 1:30 p.m. on the last date for such Closing as provided above, at the
office of The Sentinel Agency, Inc., the agent for the Title Company, at 0000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000. In the event Seller shall
fail to cause the Completion Date to occur prior to January 25, 1998, this
Agreement shall automatically terminate and the Xxxxxxx Money shall be
immediately returned to Purchaser, and unless such failure is due to the default
or breach by Seller of its obligations hereunder, the parties shall have no
further obligations or liabilities hereunder, except for such obligations or
liabilities which expressly survive the termination of this Agreement. The
final date for Closing as provided in this Paragraph 11 is subject to extension
as provided in Paragraph 30 below.
12. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 4 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Deed. A Special Warranty Deed conveying to Purchaser Good and
----
Marketable Title to the Real Estate, together with all rights, members,
easements, and appurtenances thereof, subject only to the Permitted
Exceptions. The legal description set forth in the Special Warranty Deed
shall be identical to Exhibit "A" attached hereto. In the event the as-
-----------
built survey of the Real Estate obtained by Seller as provided in Paragraph
10(e) hereof shall differ from the legal description set forth on Exhibit
-------
"A" hereto, Seller shall execute and deliver to Purchaser a quitclaim deed
---
containing a legal description based upon such as-built survey;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser title to
------------
the Personal Property in the form and substance of Exhibit "I" attached
-----------
hereto and by this reference made a part hereof;
(c) Blanket Transfer. A Blanket Transfer and Assignment in the
----------------
form and substance of Exhibit "J" attached hereto and by this reference
-----------
made a part hereof;
(d) Assignment and Assumption of Lease. An Assignment and
----------------------------------
Assumption of Lease in the form and substance of Exhibit "K" attached
-----------
hereto and by this reference made a part hereof, assigning to Purchaser all
of Seller's right, title, and interest in and to the Lease and the rents
thereunder (provided that the form of
19
such Assignment and Assumption of Lease is subject to modification as
provided in Paragraph 30 below);
(e) Seller's Certificate. A certificate evidencing the
--------------------
reaffirmation of the truth and accuracy of Seller's representations,
warranties, and agreements set forth in Paragraphs 9 and 20 hereof;
(f) Estoppel Certificates. A fully completed Estoppel Certificate
---------------------
with respect to the Lease, addressed to Purchaser, in the form attached to
the Lease as an exhibit thereto, duly executed by the Tenant thereunder,
and a fully completed Guarantor Estoppel Certificate with respect to the
Guaranty in the form attached hereto as Exhibit "M" and by reference made
-----------
a part hereof, duly executed by Vanguard. In the event Seller is unable to
obtain the Tenant Estoppel Certificate and Guarantor Estoppel Certificate
with respect to the Lease and Guaranty, respectively, and if Purchaser's
elects to waive the conditions set forth in Paragraph 7(f) hereof and
proceed to Closing, Seller shall make a written representation and warranty
to Purchaser at Closing with respect to the factual matters set forth in
the form of such Estoppel Certificates;
(g) FIRPTA Certificate. An executed affidavit that Seller is not a
------------------
foreign entity in accordance with the provisions of Section 1445 of the
Internal Revenue Code of 1986, as amended;
(h) Surveys and Plans. Such surveys, site plans, plans and
-----------------
specifications, and other matters relating to the Property as are described
in subparagraph (a) of the Blanket Transfer and Assignment and are in the
possession or control of Seller;
(i) Lease. An original executed counterpart of the Lease and the
-----
Lease Guaranty;
(j) Service Contracts. An original executed counterpart of each
-----------------
Service Contract;
(k) Construction Expense Statements. Statements, certified to be
-------------------------------
complete and accurate by Seller, of construction expenses and other expense
information required in order to compute any adjustments to annual Base
Rent under the Lease;
(l) Corporate Resolution. A copy of a resolution of the Board of
--------------------
Directors each corporate general partner of Seller, certified by the
Secretary or Assistant Secretary of such corporate general partner of
Seller to be in force and unmodified as of the date and time of Closing,
authorizing the execution and delivery of documents required hereunder, and
a certificate of incumbency designating the signatures of the officers or
members of such corporate general partner of Seller who are to execute and
deliver all such documents on behalf of such corporate general partner of
Seller;
20
(m) Partnership Consent. A certified consent to this Agreement, the
-------------------
transactions contemplated herein, and the execution and delivery of the
documents required hereunder, signed by all partners of Seller;
(n) Keys and Records. Any keys to any doors or locks on the
----------------
Property in the possession or control of Seller and the original tenant
files and other books and records relating to the operation, management,
repair and maintenance of the Property in Seller's possession or control;
(o) Tenant Notice. Notice from Seller to the Tenant of the sale of
-------------
the Property to Purchaser in such form as Purchaser and Seller shall
reasonably approve;
(p) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(q) Construction Plans. Seller's construction plans, including but
------------------
not limited to the Plans and Specifications and any and all other surveys,
plans and specifications for engineering, architectural, landscaping,
electrical, civil, sewage, storm water, drainage or elevations, or any
combination thereof with respect to the Land or Improvements thereon or
both Land and Improvements;
(r) Certificates of Occupancy. Original certificates of occupancy
-------------------------
for all space within the Improvements, unless such originals are required
to be (and are) posted in the Building;
(s) Warranties. The originals of all Warranties issued with respect
----------
to the Project or required to be issued with respect to the Project
pursuant to the Plans and Specifications;
(t) Indemnity by Xxxxx, Xxxxxxx & Company. An Indemnification
-------------------------------------
substance of Agreement duly executed by Xxxxx, Xxxxxxx & Company in the
form and Exhibit "N" attached hereto and by reference made a part hereof.
-----------
Xxxxx, Xxxxxxx & Company joins in this Agreement solely for the purpose of
agreeing to execute and deliver such Indemnification Agreement at the
Closing;
(u) Lien Waiver by Leasing Agents. A written acknowledgment by
-----------------------------
Leasing Agents that they have been paid in full the entire leasing
commission in the amount of $540,000.00 payable to Leasing Agents under the
commission agreement relating to the Lease and waiving and releasing any
lien or claim or right to a lien for such commission; and
(v) Other Documents. Such other documents as are customarily and
---------------
reasonably required by the Title Company, including an owner's affidavit.
21
13. Purchaser's Closing Documents. Purchaser shall obtain or execute, at
-----------------------------
Purchaser's expense, and deliver to Seller at Closing the following documents,
all of which shall be duly executed and acknowledged where required and shall
survive the Closing:
(a) Assignment and Assumption of Lease. The Assignment and
----------------------------------
Assumption of Lease in the form and substance of Exhibit "K" attached
-----------
hereto (provided that the form of such Assignment and Assumption of Lease
is subject to modification as provided in Paragraph 30 below);
(b) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "J" attached hereto;
-----------
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(d) Corporate Resolution. A copy of a resolution of the Board of
--------------------
Directors any corporate general partner of Purchaser, certified by the
Secretary or Assistant Secretary of such corporate general partner of
Purchaser to be in force and unmodified as of the date and time of Closing,
authorizing the execution and delivery of documents required hereunder, and
a certificate of incumbency designating the signatures of the officers of
such corporate general partner of Purchaser who are to execute and deliver
all such documents on behalf of such corporate general partner of
Purchaser; and
(e) Other Documents. Such other documents as are customarily and
---------------
reasonably required by the Title Company.
14. Closing Costs. Seller shall pay the cost of obtaining the Title
-------------
Commitment, including the cost of the examination of title to the Property made
in connection therewith, the cost of the as-built survey obtained by Seller as
provided in Paragraph 10(e) hereof, fifty percent (50%) of the cost of any
transfer or documentary tax imposed by the Commonwealth of Pennsylvania or any
county or municipality upon the conveyance of the Property pursuant hereto, the
escrow fees charged by the Title Company for serving as escrow agent with
respect to the portion of the Purchase Price deposited with Title Company to
assure completion of the Punch List Items and obtaining permanent certificates
of occupancy for the Building and the tenant space as provided in Paragraph 4
hereof, and assuring the performance by Seller of its obligations regarding the
transfer of warranties to Purchaser and satisfaction of certain delivery
obligations under Section 2.7 of the Lease as provided in Paragraph 4 hereof,
the attorneys' fees of Seller, and all other costs and expenses incurred by
Seller in closing and consummating the purchase and sale of the Property
pursuant hereto. Purchaser shall pay the recording fees on the Special Warranty
Deed (and quitclaim deed if required pursuant to Paragraph 12[a] hereof) of the
Property from Seller to Purchaser to be recorded in connection with this
transaction, the premium for Purchaser's owner's policy of title insurance and
any endorsements thereto (but excluding any incremental cost for providing
affirmative insurance coverage with respect to any mechanic's or materialmen's
liens), fifty percent (50%) of the cost of any transfer or documentary tax
imposed by the Commonwealth of Pennsylvania or
22
any county or municipality upon the conveyance of the Property pursuant hereto,
the attorneys' fees of Purchaser, and all other costs and expenses incurred by
Purchaser in closing and consummating the purchase and sale of the Property
pursuant hereto.
15. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rent, additional rent, operating costs, and other
-----
income of the Property (other than security deposits) collected by Seller
from the Tenant for the month of Closing. Purchaser shall also receive a
credit against the Purchase Price payable by Purchaser to Seller at Closing
for any rent or other sums (not including security deposits) prepaid by the
Tenant for any period following the month of Closing, or otherwise.
Purchaser shall receive a credit against the Purchase Price payable by
Purchaser to Seller at Closing for the total sum of all security deposits
paid by the Tenant under the Lease and not theretofore applied to
delinquent rent and other charges payable by the Tenant. Seller hereby
acknowledges that Purchaser shall not be legally responsible to Seller for
the collection of any uncollected rent or other income under the Lease that
is past due or otherwise due and payable as of the date of Closing.
Purchaser agrees that if (i) the Tenant is in arrears on the date of
Closing in the payment of rent or other charges under such Tenant's Lease,
and (ii) upon Purchaser's receipt of any rental or other payment from such
Tenant, such Tenant is, or after application of a portion of such payment
will be, current under the Lease in the payment of all accrued rental and
other charges that become due and payable on the date of Closing or
thereafter and in the payment of any other obligations of the Tenant to
Purchaser, then Purchaser shall refund to Seller, out of and to the extent
of the portion of such payment remaining after Purchaser deducts therefrom
any and all sums due and owning it from such Tenant from and after the date
of Closing, an amount up to the full amount of any arrearage existing on
the date of Closing.
(b) Property Taxes. Unless the Tenant is obligated under the Lease
--------------
to pay the same directly to the taxing authority (and not to the Landlord
under the Lease), city, state, county, and school district ad valorem taxes
based on the ad valorem tax bills for the Property, if then available, or
if not, then on the basis of the latest available tax figures and
information. Should such proration be based on such latest available tax
figures and information and prove to be inaccurate on receipt of the ad
valorem tax bills for the Property for the year of Closing, either Seller
or Purchaser, as the case may be, may demand at any time after Closing a
payment from the other correcting such malapportionment. In addition, if
after Closing there is an adjustment or reassessment by any governmental
authority with respect to, or affecting, any ad valorem taxes for the
Property for the year of Closing or any prior year, any additional tax
payment for the Property required to be paid with respect the year of
Closing shall be prorated between Purchaser and Seller and any such
additional tax payment for the Property for any year prior to the year of
Closing shall be paid by Seller. This agreement shall expressly survive the
Closing.
23
(c) Utility Charges. Seller shall pay or cause to be paid all
---------------
utility bills received prior to Closing and shall be responsible for
utilities furnished to the Property prior to Closing. Purchaser shall be
responsible for the payment of all bills for utilities furnished to the
Property subsequent to the Closing. Except to the extent that payment for
utility services directly to the utility supplier is the responsibility of
the Tenant under this Lease, Seller and Purchaser hereby agree to prorate
as of midnight preceding the date of Closing and pay their respective
shares of all utility bills received subsequent to Closing (if they include
a service period prior to the date of Closing), which agreement shall
survive Closing. Seller shall be entitled to all deposits presently in
effect with the utility providers.
(d) Service Contracts. Charges under the Service Contracts shall be
-----------------
prorated as of Midnight preceding the date of Closing.
(e) Other Tenant Charges. Where the Lease contains the Tenant's
--------------------
obligations for taxes, common area expenses, operating expenses or
additional charges of any nature, and where Seller shall have collected on
an estimated basis any portion thereof in excess of amounts owed by Seller
for such items for the period prior to the date of Closing, then there
shall be an adjustment and credit given to Purchaser on the date of
Closing for such excess amounts collected. Purchaser shall apply all such
excess amounts to the charges owed by Purchaser for such items for the
period after the date of Closing, and if required by the Lease, shall
rebate or credit the Tenant with any remainder. If it is determined
subsequent to the Closing that the amount collected during Seller's
ownership period exceeded expenses incurred during the same period by more
than the amount previously credited to Purchaser at Closing, then Seller
shall promptly pay to Purchaser the deficiency. If it is determined
subsequent to Closing that the amount collected during Seller's ownership
period exceeded expenses incurred during the same period by less than the
amount previously credited to Purchaser at Closing, then Purchaser shall
promptly pay to Seller the overpayment.
16. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever except for
obligations which expressly survive the termination of this Agreement. It is
hereby agreed that Seller's damages will be difficult to ascertain and that the
Xxxxxxx Money constitutes a reasonable liquidation thereof and is intended not
as a penalty, but as fully liquidated damages. Seller agrees that in the event
of a default by Purchaser prior to Closing, Seller shall not initiate any
proceeding to recover damages from Purchaser, but shall limit its recovery to
the receipt and retention of the Xxxxxxx Money. The limitations on Purchaser's
liability under this Paragraph 16 shall be inapplicable to the liability of
Purchaser for payments, if any, due by Purchaser to Seller under Paragraphs 5
and 22 hereof.
17. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement occurring prior to Closing, except as otherwise specifically
set forth herein, at Purchaser's option: (i) Purchaser may terminate this
Agreement by written notice to Seller, whereupon the Xxxxxxx Money shall be
immediately returned by Escrow Agent to Purchaser,
24
and the parties hereto shall have no further rights or obligations hereunder
except for rights and obligations hereunder which expressly survive the
termination of this Agreement, or (ii) Purchaser shall be entitled to an
immediate refund of all but $25.00 of the Xxxxxxx Money and to pursue against
Seller any remedy granted to Purchaser at law or in equity, including, without
limitation, specific performance; provided, however, (a) Purchaser shall not
have the right to seek or recover consequential damages arising from Seller's
breach or default under this Agreement, and (b) the damages recoverable against
Seller for any such default occurring prior to Closing shall not exceed
$250,000.00. In the event of any default by Seller occurring after Closing under
any of the terms of this Agreement which survive Closing, Purchaser may pursue
any remedy granted to Purchaser at law or in equity; provided, however,
Purchaser shall not have the right to seek or recover consequential damages
arising from Seller's breach or default under this Agreement.
18. Condemnation. If, prior to the Closing, all or any part of the
------------
Property which Purchaser reasonably determines will interfere with the operation
of the Property is subjected to a bona fide threat of condemnation by a body
having the power of eminent domain or is taken by eminent domain or condemnation
(or sale in lieu thereof), or if Seller has received notice that any
condemnation action or proceeding with respect to the Property is contemplated
by a body having the power of eminent domain, Seller shall give Purchaser
immediate written notice of such threatened or contemplated condemnation or of
such taking or sale, and Purchaser may by written notice to Seller given within
thirty (30) days of the receipt of such notice from Seller, elect to cancel this
Agreement. If Purchaser chooses to cancel this Agreement in accordance with
this Paragraph 18, then the Xxxxxxx Money shall be returned immediately to
Purchaser by Escrow Agent and the rights, duties, obligations, and liabilities
of the parties hereunder shall immediately terminate and be of no further force
and effect, except for such obligations hereunder which expressly survive
termination of this Agreement. If Purchaser does not elect to cancel this
Agreement in accordance herewith, this Agreement shall remain in full force and
effect and the sale of the Property contemplated by this Agreement, less any
interest taken by eminent domain or condemnation, or sale in lieu thereof, shall
be effected with no further adjustment and without reduction of the Purchase
Price, and at the Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title, and interest of Seller in and to any awards
that have been or that may thereafter be made for such taking. At such time as
all or a part of the Property is subjected to a bona fide threat of condemnation
and Purchaser shall not have elected to terminate this Agreement as hereinabove
provided, Purchaser shall be permitted to participate in the proceedings as if
Purchaser were a party to the action. Seller shall not settle or agree to any
award or payment pursuant to condemnation, eminent domain, or sale in lieu
thereof without obtaining Purchaser's prior written consent thereto in each
case.
19. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and if either the estimated cost of repair or
replacement exceeds Two Hundred Thousand Dollars ($200,000.00) or if the cost of
repair or replacement is not fully covered by Seller's casualty insurance, or if
the damage could result in the termination of the Lease, Purchaser may, by
written notice given to Seller within twenty (20) days after receipt of written
notice from Seller of such damage or destruction, elect to terminate this
Agreement, in which event the Xxxxxxx Money shall immediately be returned by
Escrow Agent to Purchaser and the rights, duties, obligations, and liabilities
of all parties hereunder
25
shall immediately terminate and be of no further force or effect, except for
such obligations hereunder which expressly survive termination of this
Agreement. If Purchaser does not elect to terminate this Agreement pursuant to
this Paragraph 19, or has no right to terminate this Agreement (because the
damage or destruction is fully insured, does not exceed $200,000.00 and could
not result in the termination of the Lease), and the sale of the Property is
consummated, Purchaser shall be entitled to receive all casualty insurance
proceeds paid or payable to Seller by reason of such destruction or damage under
the insurance required to be maintained by the Tenant pursuant to the Lease
(less amounts of insurance theretofore received and applied by Seller to costs
actually incurred for restoration). Seller shall not settle or release any
damage or destruction claims without obtaining Purchaser's prior written consent
in each case. All said insurance proceeds received by Seller by the date of
Closing shall be paid by Seller to Purchaser at Closing. In addition, at
Closing, Seller shall pay over to Purchaser, and assign to Purchaser, all
proceeds of any rent loss insurance for the period of time commencing on the
date of Closing. If the amount of said casualty or rent loss insurance proceeds
is not settled by the date of Closing, Seller shall execute at Closing all
proofs of loss, assignments of claim, and other similar instruments in order
that Purchaser receive all of Seller's right, title, and interest in and under
said insurance proceeds.
20. Hazardous Substances. Seller agrees and warrants to Purchaser that,
--------------------
to the best of Seller's knowledge, except as disclosed in the Environmental
Report, (i) no Hazardous Substances, nor any other pollutants, toxic materials,
or contaminants have been or shall prior to Closing be discharged, disbursed,
released, stored, treated, generated, disposed of, or allowed to escape on the
Property, (ii) no asbestos or asbestos containing materials have been installed,
used, incorporated into, or disposed of on the Property, (iii) no
polychlorinated biphenyls are located on or in the Property, in the form of
electrical transformers, fluorescent light fixtures with ballasts, cooling oils,
or any other device or form, (iv) no underground storage tanks are located on
the Property or were located on the Property and subsequently removed or filled,
(v) no investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to Hazardous Substances is proposed,
threatened, anticipated or in existence with respect to the Property, and (vi)
the Land has not previously been used as a landfill, cemetery, or as a dump for
garbage or refuse. Seller hereby indemnifies Purchaser and agrees to holds
Purchaser harmless from and against any lost, cost, damage, liability or expense
due to or arising out of the breach of any representation or warranty contained
in this Paragraph 20; provided, however, Purchaser shall not have the right to
seek or recover consequential damages arising out of the breach of any
representation or warranty contained in this Paragraph 20. The representations
and warranties set forth in this Paragraph 20 and the indemnification given
herein shall expressly survive the execution and delivery of the Special
Warranty Deed conveying the Real Estate from Seller to Purchaser as provided in
Paragraph 26 hereof.
21. Assignment. This Agreement and Purchaser's rights, duties, and
----------
obligations hereunder may not be delegated, transferred, or assigned by
Purchaser without the prior written consent of Seller, and any assignee or
transferee proposed by Purchaser shall expressly assume all of Purchaser's
duties, liabilities and obligations under this Agreement by written instrument
delivered to Seller. Notwithstanding the foregoing to the contrary, upon prior
written notice to Seller, this Agreement, and Purchaser's rights and duties
hereunder, may be freely assigned and transferred to any partnership having
Purchaser, Xxxxx Capital, Inc. or Xxx
26
X. Xxxxx, III as a direct or indirect general partner thereof or to The Bank of
New York, as agent for Purchaser or for any partnership having Purchaser, Xxxxx
Capital, Inc. or Xxx X. Xxxxx, III as a direct or indirect general partner
thereof, provided that the original Purchaser shall remain liable for all of the
obligations of the Purchaser hereunder arising or accruing prior to such
assignment.
22. Broker's Commission. Seller has agreed to pay to First Fidelity
-------------------
Mortgage Corporation ("Broker") a real estate sales commission in accordance
with a separate agreement between Seller and Broker. Seller shall and does
hereby indemnify and hold harmless Purchaser from and against any claim, whether
or not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, including any claim asserted by Broker.
Likewise, Purchaser shall and does hereby indemnify and hold harmless Seller
from and against any claim, whether or not meritorious, for any real estate
sales commission, finder's fees, or like compensation in connection with the
sale contemplated hereby and arising out of any act or agreement of Purchaser,
except any such claim asserted by Broker. The obligations of Seller and
Purchaser under this Paragraph 22 shall survive the Closing and any termination
of this Agreement.
23. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by hand, or sent by U.S. registered or
certified mail, return receipt requested, postage prepaid, to the addresses set
out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
PURCHASER: Xxxxx Operating Partnership, L.P.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
with a copy to: Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza, Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxxxxx
SELLER Xxxxx Xxxxxxx No. 33, L.P.
x/x Xxxxx, Xxxxxxx & Xxxxxxx
Xxxxx 000
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx XxXxxxx
27
with a copy to: O'Brien, X'Xxxxxx & Xxxxx
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given or received on the date of delivery, if delivered by hand or
by overnight courier, or otherwise on the third (3rd) business day following the
postmark date of such notice or other communication.
24. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
25. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
26. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement; provided, however, that the
representations and warranties contained in Paragraphs 9, 20 and 28 hereof shall
automatically expire on the date which is one (1) year after the date of
Closing, except to the extent that a notice of breach of any such representation
or warranty has been given prior to such expiration, and except that the
representations and warranties contained in Paragraph 9(e) hereof shall not be
subject to any time limitation.
27. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
28. Purchaser's Authorization. Purchaser represents to Seller that this
-------------------------
Agreement has been duly authorized and executed on behalf of Purchaser and that
this Agreement constitutes the valid and binding agreement of Purchaser,
enforceful in accordance with these terms, subject to bankruptcy, insolvency,
and similar laws affecting generally the enforcement of creditor's rights.
Neither the execution and delivery of this Agreement nor the consummation of the
transaction contemplated hereby will (i) be in violation of Purchaser's
partnership agreement, (ii) conflict with or result in the breach or violation
of any law, regulation, writ, injunction or decree of any court or governmental
instrumentality applicable to Purchaser, or (iii) constitute a breach of any
evidence of indebtedness or agreement of which Purchaser is a party or by which
Purchaser is bound.
28
29. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the
parties hereto unless such amendment is in writing and executed by both Seller
and Purchaser. The provisions of this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, legal
representatives, successors, and assigns. Time is of the essence of this
Agreement. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, but all of which taken together shall
constitute one and the same agreement. The headings inserted at the beginning
of each paragraph are for convenience only, and do not add to or subtract from
the meaning of the contents of each paragraph. This Agreement shall be
construed and interpreted under the laws of the Commonwealth of Pennsylvania.
Except as otherwise provided herein, all rights, powers, and privileges
conferred hereunder upon the parties shall be cumulative but not restrictive to
those given by law. All personal pronouns used in this Agreement, whether used
in the masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
30. Reconciliation with Tenant. As of the date of this Agreement, Seller
--------------------------
and the Tenant under the Lease have not yet reconciled the amount of "Change
Order Costs" payable by the Tenant to the Seller under the Lease. Seller
acknowledges that the Purchaser does not desire to acquire the Property if at
the time of Closing any material dispute exists between Seller and the Tenant
regarding the payment of rent, charges or the "Charge Order Costs" under the
Lease. Purchaser acknowledges that Seller does not desire to sell the Property
if at the time of Closing any material dispute exists between Seller and the
Tenant regarding the payment of rent, charges or "Change Order Costs" under the
Lease, unless Seller reserves certain remedies under the Lease pertaining to the
recovery of such rent, charges and "Change Order Costs". Accordingly, the
obligations of Purchaser under this Agreement shall be conditioned upon Seller's
agreement to delete from the Assignment and Assumption of Lease to be executed
and delivered at Closing that certain language which is underlined and set forth
in bold print in the form of such Assignment and Assumption of Lease attached
hereto as Exhibit "K". Likewise, the obligations of Seller under this Agreement
-----------
shall be conditioned upon Purchaser's agreement to include in the Assignment and
Assumption of Lease to be executed and delivered at Closing that certain
language which is underlined and set forth in bold print in the form of such
Assignment and Assumption of Lease attached hereto as Exhibit "K". Seller
-----------
agrees to keep Purchaser apprised of the status of Seller's efforts to reconcile
with Tenant the amounts of such rents, charges and "Change Order Costs" payable
by Tenant. If by the final date of Closing determined in accordance with
Paragraph 11 above, Seller and Purchaser have not yet determined whether the
language which is underlined and set forth in bold print in the form of said
Assignment and Assumption of Lease will be deleted or included, the Closing
shall be postponed until the date which is three (3) business days after Seller
and Purchaser make such determination; provided, however, in no event shall the
final date for Closing be postponed beyond January 29, 1999. If such
determination is not made by Seller and Purchaser on or before the final date
for Closing (as postponed as
29
provided herein), this Agreement shall terminate, Escrow Agent shall pay to
Seller from the Xxxxxxx Money the sum of Twenty Five Dollars ($25.00) and the
balance of the Xxxxxxx Money shall be refunded by Escrow Agent to Purchaser,
whereupon, except as expressly provided to the contrary in this Agreement, no
party shall have any other or further rights or obligations under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
------
XXXXX XXXXXXX NO. 33, L.P.,
a Pennsylvania limited partnership
By: W/H Real Estate Enterprises Corp., an
Illinois corporation, general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
(CORPORATE SEAL)
"PURCHASER":
---------
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc., a
Maryland corporation, general partnership
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: VP & C/O
------------------------------
(CORPORATE SEAL)
30
The undersigned Xxxxx, Xxxxxxx & Company joins in
this Agreement solely for the purposes set forth
in Paragraphs 10(d) and 12(t) hereof.
XXXXX, XXXXXXX & COMPANY,
an Illinois corporation
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------
Title: President
--------------------------
(CORPORATE SEAL)
31
