AGREEMENT OF PURCHASE AND SALE
between
Brandywine Operating Partnership, L.P., Purchaser,
and
RREEF USA Fund-I, Seller
King of Prussia Business Park
King of Prussia, Upper Merion Township, Xxxxxxxxxx County, Pennsylvania
Table of Contents
1. Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Deposit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Review of the Property. . . . . . . . . . . . . . . . . . . . . . . . 2
4. Title and Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Representations and Warranties. . . . . . . . . . . . . . . . . . . . 4
5.1 Representations and Warranties of Seller.. . . . . . . . . 4
5.2 Representations and Warranties of Purchaser. . . . . . . . 7
5.3 Limitations. . . . . . . . . . . . . . . . . . . . . . . 7
5.4 Condition of Property. . . . . . . . . . . . . . . . . . . 8
6. Closing Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Title Insurance. . . . . . . . . . . . . . . . . . . . . . 9
6.2 Estoppel Letters . . . . . . . . . . . . . . . . . . . . . 9
6.3 Representations and Warranties . . . . . . . . . . . . . . 10
6.4 Seller Performance . . . . . . . . . . . . . . . . . . . . 10
7. Other Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.1 Closing of Sale. . . . . . . . . . . . . . . . . . . . . . 10
8.2 Prorations; Adjustments. . . . . . . . . . . . . . . . . . 11
8.3 Proration of Service Charges.. . . . . . . . . . . . . . . 12
8.4 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . 12
8.5 Possession.. . . . . . . . . . . . . . . . . . . . . . . . 12
8.6 Seller's Closing Documents.. . . . . . . . . . . . . . . . 12
8.7 Purchaser's Closing Documents. . . . . . . . . . . . . . . 13
8.8 Joint Deliveries.. . . . . . . . . . . . . . . . . . . . . 14
9. Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9.1 Modifications. . . . . . . . . . . . . . . . . . . . . . . 14
9.2 Casualty and Condemnation. . . . . . . . . . . . . . . . . 14
9.3 Time of Essence. . . . . . . . . . . . . . . . . . . . . . 15
9.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.5 Parties Bound. . . . . . . . . . . . . . . . . . . . . . . 16
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9.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . 16
9.7 Continuation Until Closing; Leasing. . . . . . . . . . . . 16
9.8 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.9 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . 17
9.10 Remedies for Non-Performance.. . . . . . . . . . . . . . . 17
9.11 Brokers Commission.. . . . . . . . . . . . . . . . . . . . 17
9.12 Survival of Covenants. . . . . . . . . . . . . . . . . . . 18
9.13 Seller's Investment Committee Approval.. . . . . . . . . . 18
9.14 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.15 Entry and Indemnity. . . . . . . . . . . . . . . . . . . . 18
9.16 Release. . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.17 Confidential Information. . . . . . . . . . . . . . . . . 19
9.18 Calculation of Time Periods. . . . . . . . . . . . . . . . 20
9.19 Entire Agreement.. . . . . . . . . . . . . . . . . . . . . 20
9.20 Severability.. . . . . . . . . . . . . . . . . . . . . . . 20
9.21 Facsimile Signatures.. . . . . . . . . . . . . . . . . . . 20
9.22 Further Assurances.. . . . . . . . . . . . . . . . . . . . 20
9.23 Offer. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.24 Seller Exculpation Clause. . . . . . . . . . . . . . . . . 21
9.25 Purchaser Exculpation Clause.. . . . . . . . . . . . . . . 21
9.26 SEC Reporting (8-K) Requirements.. . . . . . . . . . . . . 21
List of Schedules and Exhibits . . . . . . . . . . . . . . . . . . . . . . 23
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AGREEMENT OF PURCHASE AND SALE
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Purchaser") agrees to purchase, and RREEF USA FUND-I, a California group
trust ("Seller") agrees to sell, that certain improved real property,
hereinafter referred to as the "Property", situated in the City of King of
Prussia, Upper Merion Township, Xxxxxxxxxx County, Commonwealth of
Pennsylvania, legally described on Exhibit A attached hereto and made a part
hereof, consisting of twelve (12) buildings and one vacant parcel, all as
listed on Exhibit A-1 attached hereto and hereby made a part hereof, together
with all rights, privileges, easements and appurtenances thereto, including
any and all mineral rights, development rights, air rights, and the like; all
personal property owned by the Seller and located on or used in conjunction
with the Property (specifically excluding furniture, fixtures and equipment
owned by RREEF Management Company and located in the RREEF Management Company
office, as well as the 000 Xxxx Xxxxxx canopy and canopy structure); any and
all intangible personal property owned by Seller and used in the operation of
the Property, including the right to use the name of the property (but not
the name "RREEF"), to the extent assignable, but excluding computer software
and related licenses; contract rights, "Leases" of all or any part of the
Property, all licenses, permits and other written authorizations necessary
for the use, operation and ownership of the Property, records, security
deposits and prepaid rent, if any, and the benefit of any guaranties of the
Leases.
1. Purchase Price. The purchase price for the Property ("Purchase
Price") is Forty-Six Million Three Hundred Sixty Thousand Dollars
($46,360,000.00), payable by wire transfer of immediately available funds at
Closing as defined in Paragraph 8.1.
2. Deposit.
2.1 Purchaser has previously deposited, pursuant to this
Agreement and pursuant to the Other Agreements (defined in Paragraph 7
below), the amount of Five Hundred Fifty Thousand Dollars ($550,000.00) (the
"Deposit") with Commonwealth Land Title Insurance Company ("Escrow Holder")
as xxxxxxx money to secure Purchaser's performance hereunder and under the
Other Agreements. The Deposit may be invested at the direction of Purchaser
with the approval of Seller. All investment income earned from the
investment of the Deposit, less investment fees, if any, will be added to and
become a part of the Deposit and will be applied toward the Purchase Price if
Closing is completed in accordance with this Agreement; otherwise all
interest will be paid to the party entitled to the Deposit. The escrow
instructions to Escrow Holder will be in the form of Schedule 2.1 attached
hereto (the "Escrow Instructions"). If Purchaser does not elect to
terminate this Agreement pursuant to Section 3 below, prior to the end of the
Review Period (defined in Section 3.4), on or before one business day after
last day of the Review Period Purchaser shall deposit an additional $500,000
with Escrow Holder, which shall be added to and become a part of the Deposit
for all purposes hereunder.
2.2 Of the total Deposit, the sum of $150,000 is agreed to be
non-refundable, and shall be refunded to Purchaser only (i) if Purchaser
terminates this Agreement under Section 3.4, under the circumstances set
forth in Section 3.4.1, or (ii) if the Agreement is terminated or if the
Closing fails to occur by reason of Seller's default. Under all other
circumstances, wherever under this Agreement and the Other Agreements the
Deposit is to be returned to Purchaser, $150,000 out of the Deposit shall be
paid to Seller, to be retained by Seller as fully earned.
3. Review of the Property.
3.1 From and after the "Effective Date" (as defined in Paragraph
9.23), Seller agrees to provide Purchaser and its agents or consultants with
access to the Property to inspect each and every part thereof to determine
its present condition and to conduct such physical and environmental studies
(including a mechanical and roof study and Phase I environmental assessment)
as it deems appropriate.
3.2 Within three (3) business days after the Effective Date
Seller will make available to Purchaser for inspection and copying, all to
the extent in the possession of Seller or its managing agent, a copy of each
existing Lease and equipment lease, service contract and maintenance or
other contract pertaining to the operations of the Property that will survive
Closing, a copy of each real estate tax bills for 1994-1996, both inclusive,
and unaudited financial statements for the Property for the years 1994-1996,
both inclusive.
3.3 Within three (3) business days after the Effective Date
Seller will make available to Purchaser for inspection and copying at the
office of Seller's managing agent, all to the extent in the possession of
Seller or its managing agent:
3.3.1 a copy of each environmental reports relating to
the Property prepared by third party consultants since January 1, 1995.
3.3.2 a copy of each current franchises, business or
other licenses, bonds, permits, certificates, authorizations and other
evidences of consent, approval, authorization or permission relating to or
affecting the Project of or from any person, including any governmental
authority, held by Seller, including any pending applications.
3.3.3 a copy of each material third party warranties and
guaranties, if any, which are in effect with respect to the Property.
3.4 Purchaser has until 5:00 p.m. CST on February 2, 1998 (the
"Review Period"), to determine in its sole discretion whether all matters
relating to the Property (except title and survey, which are governed by
Paragraph 4), are acceptable, and to obtain the approval of the transaction
contemplated herein by Seller's Board of Directors. If Purchaser concludes
that any matter relating to the Property is not acceptable or that its Board
has disapproved the
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transaction, Purchaser will so notify Seller (the "Termination Notice") prior
to the expiration of the Review Period (which notice shall contain a copy of
Purchaser's roof/structural report and other reports or studies, other than
environmental reports, obtained in connection with Purchaser's due
diligence). Upon timely delivery of the Termination Notice, this Agreement
will terminate without liability on the part of Seller or Purchaser, other
than Purchaser's indemnity contained in Paragraph 9.15 hereof and the
obligation to deliver to Seller a copy of any environmental report obtained
by Purchaser if requested by Seller within ten (10) days after receipt of the
Termination Notice. In the event that Purchaser does not timely so notify
Seller, Purchaser will be deemed to have concluded that all matters relating
to the Property are acceptable and to have elected to proceed with the
transaction upon the terms and conditions contained in this Agreement
(including the obligation to increase the amount of the Deposit by an
additional $500,000) without regard to this Paragraph 3.4.
3.4.1 If this Agreement is terminated pursuant to
Paragraph 3.4, the Deposit, less $150,000, will be returned to Purchaser as
provided in the Escrow Instructions. This $150,000 shall be paid to Seller,
unless Purchaser's termination resulted from (i) Seller's default, (ii) a
material deviation from the economics of the Property as presented in
Seller's offering memorandum (it being understood and agreed that Seller
makes no warranty or representation as to said offering memorandum), or (iii)
any material structural or environmental defect in the Property not known or
disclosed to Purchaser before December 22, 1997.
3.5 Purchaser agrees that any information obtained by Purchaser
or its authorized agents in the conduct of its due diligence will be treated
as confidential pursuant to Paragraph 9.17.
4. Title and Survey. Purchaser has ordered, at its expense (and upon
receipt, Purchaser shall promptly deliver copies to Seller): (i) a commitment
for a 1992 form ALTA Owner's title insurance policy with respect to the
Property from Commonwealth Land Title Insurance Company (the "Title Insurer")
in the amount of the Purchase Price, and (ii) copies of all documents
relating to title exceptions referred to therein. Seller has already
ordered, and Purchaser has received, at Purchaser's sole expense, a plat of
survey of the Property made in accordance with Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys (1992) pursuant to the accuracy
standards of an Urban Survey. On or before January 30, 1998, Purchaser
agrees to notify Seller of any objection Purchaser may have to any exceptions
reported in the commitment or any matter shown on the plat of survey (the
"Unacceptable Exceptions"). Seller will be responsible for satisfaction of
the Title Insurer's Schedule B-1 seller requirements. All other exceptions
and survey matters will be deemed acceptable to Purchaser. If Purchaser
fails to give such notice to Seller, the survey and all of the exceptions in
the title commitment will be deemed acceptable to Purchaser. Seller will
have ten (10) days after receipt of Purchaser's notice within which to notify
Purchaser whether Seller elects to either (a) eliminate or induce the Title
Insurer to insure over (subject to Purchaser's consent, not to be
unreasonably withheld) the Unacceptable Exceptions or (b) terminate this
Agreement. If Seller agrees to eliminate or induce to the Title Insurer to
insure over (with Purchaser's consent) the
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Unacceptable Exceptions, Seller will be obligated to do so at its cost on or
prior to Closing. If Seller elects to terminate this Agreement, neither
party will have any further rights or obligations hereunder, except as
provided in Paragraph 9.15. If Seller fails to give any timely notice,
Seller will be deemed to have elected to terminate this Agreement. If any
other recorded exception to title is discovered after the commitment is
delivered to Purchaser, and Purchaser does not elect to waive such exception
upon the first to occur of (a) the Closing or (b) seven (7) days after being
notified of such exception and to proceed with the consummation of the
Closing, Seller will have fifteen (15) days after the expiration of said
seven (7) day period (and Closing will be delayed if necessary, so that it
occurs not earlier than twenty-two (22) days after Purchaser is notified of
such exception) after notifying Purchaser of such discovery in which to use
commercially reasonable efforts to eliminate or to induce the Title Insurer
to insure over (subject to Purchaser's approval, not to be unreasonably
withheld) such exception, and if such exception is not eliminated or insured
over as aforesaid within said 15-day period, Purchaser may terminate this
Agreement, in which event the Deposit will be returned to Purchaser and
neither party will have any further rights or obligations hereunder except as
provided in Paragraph 9.15, or close the sale subject to such exception.
Seller agrees that it will pay off at Closing (and not induce the Title
Insurer to insure over) title exceptions representing monetary liens of a
definite or ascertainable amount voluntarily granted by Seller. In using
commercially reasonable efforts to eliminate or to induce the Title Insurer
to insure over Unacceptable Exceptions, Seller will not be required to
litigate or to expend more than $10,000 in the aggregate. Ad valorem real
estate taxes not yet due and payable and all title and survey matters which
are not Unacceptable Exceptions are hereinafter referred to as Acceptable
Exceptions.
5. Representations and Warranties.
5.1 Representations and Warranties of Seller. As used in this
Paragraph 5.1 and elsewhere in this Agreement, the phrase "to the knowledge
of Seller" or phrases of similar import mean and are limited to the actual
current knowledge, without duty to investigate or inquire, of Seller's
portfolio manager (Xxxxxx Xxxxxxx) and Seller's local manager having ongoing
management responsibility with respect to the Property (Xxxxxxx Xxxxxxxxxx),
and not to any constructive knowledge of any of the foregoing individuals or
of Seller or any investment advisor to Seller, any entity that is a partner
in such investment advisor, or any affiliates of any thereof, or to any
officer, agent, representative, or employee of Seller or such investment
advisor, any such constituent partner, or any such affiliate. Seller hereby
warrants and represents to Purchaser (with such representations and
warranties to be re-made as of Closing pursuant to Paragraph 8.6.10) as
follows:
5.1.1 Pending Proceedings. With the exception of the
items set forth in Schedule 5.1 (the "Disclosure Schedule") to the knowledge
of Seller, Seller has received no written notice of special assessments,
condemnation, environmental, zoning or other land use regulation proceedings,
either pending or planned to be instituted, with respect to the Property or
any part thereof.
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5.1.2 Status of Seller and Closing Documents. Subject to
Paragraph 9.13, this Agreement has been, and all the closing documents to be
delivered by Seller to Purchaser at Closing are or will be, duly authorized,
executed, and delivered by Seller, will be sufficient to convey insurable
title, are legal, valid, and binding obligations of Seller, are enforceable
in accordance with their respective terms, and do not violate any provisions
of any agreement to which Seller or the Property is subject or bound. Seller
is duly organized and validly existing and, if required, duly qualified to
transact business in the State in which the Property is located.
5.1.3 Non-Foreign Status. Seller is not a foreign person
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended.
5.1.4 Compliance with Laws. With the exception of the
items set forth in the Disclosure Schedule, Seller has received no
governmental notice, not heretofore corrected, alleging that the Property or
its current uses are in violation of any zoning, building, health, traffic,
environmental, flood control or all other applicable rules, regulations,
codes, ordinances, or statutes of any local, state and federal authorities or
any other governmental authority (collectively, the "Laws") asserting
jurisdiction over the Property.
5.1.5 Service Contracts. With the exception of the items
set forth in the Disclosure Schedule, to Seller's knowledge, there are no
agreements or contracts affecting the Property (including, without
limitation, any management, leasing, services or maintenance agreements)
which are not terminable at will by Seller without further liability, upon
not more than 30 days' prior written notice. The contracts and agreements to
be assigned to Purchaser pursuant to Paragraph 8.6.5 are listed on Schedule
5.1.5 attached hereto. Seller agrees to terminate the existing management
agreement covering the Property on or before Closing.
5.1.6 No Default. The execution and delivery of this
Agreement, and consummation of the transaction described in this Agreement,
does not and will not constitute a default under any contract, lease, or
agreement to which Seller is a party or by which Seller is bound.
5.1.7 No Suits. Except as set forth in the Disclosure
Schedule and except for personal injury or property damage actions for which
there is adequate insurance coverage and where the insurance carrier has
accepted the tender of the defense without reservation, to Seller's
knowledge, there is no action, suit or proceeding pending or threatened
against or affecting the Property or any portion thereof, or relating to or
arising out of the ownership, management or operation of the Property, in any
court or before or by any federal, state, or municipal department,
commission, board, bureau or agency or other governmental instrumentality.
5.1.8 Environmental Condition. Each of the following
representations contained in this Paragraph 5.1.8 is wholly qualified and
limited by (a) any matters disclosed in
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any materials made available or delivered to Purchaser by Seller pursuant to
Paragraph 3 above or otherwise, (b) any matters disclosed in any
environmental reports or studies obtained by Purchaser, and (c) any other
matters of which Purchaser has actual knowledge. Subject to the foregoing,
Seller represents:
5.1.8.1 With the exception of items listed in the
Disclosure Schedule, and except (i) in amounts customarily found in office
uses and in the other uses for which the Property is suited and used and (ii)
in compliance with applicable law, to Seller's knowledge, Seller has not
released, generated or handled Hazardous Materials on the Property, and
Seller has no knowledge of any release, generation or handling of Hazardous
Materials on the Property by any tenants or the incorporation of Hazardous
Materials by the tenants in any improvements on the Property during the xxxx
Xxxxxx owned the Property. For the purposes hereof, "Hazardous Material"
means any substance, chemical, waste or other material which is listed,
defined or otherwise identified as "hazardous" or "toxic" under any federal,
state, local or administrative agency ordinance or law, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sections 9601 et seq. and the Resource Conservation
and Recovery Act, 42 U.S.C. Sections 6901 et seq., or any regulation, order,
rule or requirement adopted hereunder, as well as any formaldehyde, urea,
polychlorinated biphenyls, petroleum, petroleum product or by-product, crude
oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel or mixture thereof, radon, asbestos, and "source,"
"special nuclear" and "by-product" material as defined in the Atomic Energy
Act of 1985, 42 U.S.C. Sections 3011 et seq.
5.1.8.2 With the exception of items listed in the
Disclosure Schedule, to Seller's knowledge, Seller has not received any
summons, citation, directive, letter or other communication, written or oral,
from the United States Environmental Protection Agency or the State
environmental protection agency having jurisdiction over the Property.
5.1.9 Options. Seller has granted no options or rights
of first refusal to acquire any interest in the Property not set forth in the
Leases delivered to Purchaser or in documents of record disclosed in the
title commitment. The purchase rights of the U.S. Postal Service under its
lease have expired without exercise.
5.1.10 Rent Roll. To Seller's knowledge, the information
set forth on the rent roll attached hereto as Schedule 5.1.10 is true and
accurate in all material respects.
5.1.11 Tenant Rights. There are no termination,
extension, cancellation, or expansion rights under any occupancy arrangements
with respect to the Property except as contained in the Leases.
5.1.12 Leasing Commissions. All leasing commissions, free
rent and tenant improvement allowances due and payable as of the date hereof
by Seller have been paid or will have been paid on or before Closing. To
Seller's knowledge, the only current leases as to
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which commissions, free rent and tenant improvement allowances may become due
in the future are listed on Schedule 5.1.12, which future obligations shall
be expressly assumed by Purchaser.
5.1.13 There are no employees of the Property or Seller
who will become employees of Purchaser or for which Purchaser shall be
responsible in any way.
5.2 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller that this Agreement has been, and
all the documents to be delivered by Purchaser to Seller will be, duly
authorized, executed, and are or will be legal, valid, and binding
obligations of Purchaser, are or will be enforceable in accordance with their
respective terms, and do not and will not at Closing violate any provisions
of any agreement to which Purchaser is subject.
5.3 Limitations. Each of the representations and warranties of
Seller contained in Paragraph 5.1: (i) is made as of the date of this
Agreement; (ii) will be deemed to be remade by Seller, and to be true in all
material respects, as of Closing, subject to other matters expressly
permitted in this Agreement or otherwise specifically approved in writing by
Purchaser; and (iii) will survive for a period of one (1) year after the
Closing Date, as defined in Paragraph 8.1. Any claim that Purchaser may have
at any time against Seller for a breach of any such representation or
warranty, whether known or unknown, which is not asserted by notice from
Purchaser to Seller within such six (6) month period will not be valid or
effective, and Seller will have no liability with respect thereto. Nor will
Seller have any liability to Purchaser for a breach of any representation or
warranty unless the valid claims for all such breaches collectively aggregate
more than One Hundred Thousand Dollars ($100,000.00), in which event the full
amount of such valid claims shall be actionable, subject to the limitation in
Section 9.10. The continued accuracy in all material respects of the
aforesaid representations and warranties is a condition precedent to
Purchaser's obligation to close. If any of said representations and
warranties is not correct in all material respects at the time the same is
made or as of Closing, and Seller had no knowledge of such inaccuracy when
the representation or warranty was made, or when remade at Closing, or if
such warranty or representation becomes inaccurate on or prior to Closing
other than by reason of Seller's default hereunder, Purchaser may, upon being
notified of such occurrence on or prior to Closing either (a) terminate this
Agreement without liability on the part of Seller or Purchaser, other than
Purchaser's indemnity contained in Paragraph 9.15 and the Deposit will be
returned to Purchaser, or (b) waive such matter and proceed to Closing, by
notice to Seller given within ten (10) days after Purchaser is notified of
such occurrence, but in no event later than Closing. If Purchaser fails to
give any notice within the required time period, Purchaser will be deemed to
have elected to waive such matter and to proceed to Closing. If any of said
representations and warranties are not correct in all material respects at
the time the same is made or as of Closing, and Seller had knowledge of such
inaccuracy when the representation or warranty was made, or, by its default
hereunder caused the representation or warranty to be inaccurate when remade
at Closing, Purchaser may either (x) terminate this Agreement subject to its
obligations under Paragraph 9.15, receive a return of the Deposit and recover
from Seller all of Purchaser's actual, reasonable out-of-pocket costs
incurred in connection with its review of
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the Property or (y) waive the breach and its rights under clause (x) and
proceed to Closing, by notice to Seller given within ten (10) days after
Purchaser is notified of such occurrence, but in no event later than Closing.
If Purchaser fails to give any notice within the required time period,
Purchaser will be deemed to have elected to waive such matter and to proceed
to Closing.
5.4 Condition of Property. Except as expressly set forth in
this Agreement, Seller has not made and does not hereby make any
representations, warranties or other statements as to the condition of the
Property and Purchaser acknowledges that at Closing it is purchasing the
Property on an "AS IS, WHERE IS" basis and without relying on any
representations and warranties of any kind whatsoever, express or implied,
from Seller, its agents or brokers as to any matters concerning the Property.
Except as expressly set forth in this Agreement, no representations or
warranties have been made or are made and no responsibility has been or is
assumed by Seller or by any partner, officer, person, firm, agent or
representative acting or purporting to act on behalf of Seller as to the
condition or repair of the Property or the value, expense of operation, or
income potential thereof or as to any other fact or condition which has or
might affect the Property or the condition, repair, value, expense of
operation or income potential of the Property or any portion thereof. The
parties agree that all understandings and agreements heretofore made between
them or their respective agents or representatives are merged in this
Agreement and the Schedules and Exhibits hereto annexed, which alone fully
and completely express their agreement, and that this Agreement has been
entered into after full investigation, or with the parties satisfied with the
opportunity afforded for investigation, neither party relying upon any
statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits
annexed hereto. Purchaser acknowledges that Seller has requested Purchaser
to inspect fully the Property and investigate all matters relevant thereto
and, with respect to the condition of the Property, to rely solely upon the
results of Purchaser's own inspections or other information obtained or
otherwise available to Purchaser, rather than any information that may have
been provided by Seller to Purchaser.
6. Closing Conditions. Purchaser's obligation to proceed to Closing
is conditioned upon Seller's performance of the following obligations and
satisfaction of the following conditions, in addition to all of its other
obligations and conditions contained in this Agreement, provided that
Purchaser may in its sole discretion elect to waive failure by Seller to
perform any particular obligation.
6.1 Title Insurance. The Title Insurer is prepared to issue a
policy of title insurance insuring Purchaser's interest in the Property being
conveyed, subject only to Acceptable Exceptions.
6.2 Estoppel Letters. Seller has delivered to Purchaser not
later than the date of Closing, estoppel letters substantially in the form of
Schedule 6.2 ("Required Estoppel Form") or in form otherwise reasonably
acceptable to Purchaser, prepared by Seller and
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addressed to Purchaser, from tenants occupying in the aggregate at least 75%
of the Property, measured by square footage. All estoppel letters must be
dated not more than forty-five (45) days prior to the date of Closing. An
estoppel letter form, even though not in the Required Estoppel Form, will be
deemed reasonably acceptable to Purchaser if said letter contains the
following information: confirming rent, security deposit, square footage and
termination date; that no rent has been paid more than one month in advance;
that the lease is in full force and effect and that a true and correct copy
of the lease with all amendments and modifications is attached; and that all
work to be performed by Landlord has been performed and that the tenant has
no knowledge of any Landlord default.
6.2.1 If Seller is unable to obtain the requisite
estoppel letters as described above, Seller may (but is not required to)
substitute for any unsigned estoppel letter from a tenant other than a Major
Tenant an estoppel letter in the Required Estoppel Form, which may be
completed, executed and delivered by Seller and warranted and represented by
Seller, provided that such substituted estoppel letters will not collectively
represent in excess of 10% of all of the tenants, measured by square footage.
Seller's representations and warranties in the certificates will survive the
Closing subject to the limitations of Paragraph 5.3. In the event that,
following the Closing Date, Seller or Purchaser obtains an estoppel letter
complying with the requirements of Paragraph 6.2 with respect to any lease
for which Seller delivered a substituted estoppel letter, Seller will deliver
such estoppel letter to Purchaser and, upon such delivery, Seller will be
automatically released from any liability or obligation under the substituted
estoppel letter previously delivered by Seller with respect to such lease.
Purchaser may (but shall not be required to) accept a substituted estoppel
letter as to a Major Tenant as well.
6.2.2 If Seller is unable to obtain and deliver
sufficient tenant estoppel certificates as required under Paragraph 6.2, or
if the letters received under Paragraph 6.2 or substituted estoppels
permitted under Paragraph 6.2.1 contain information or omissions unacceptable
to Purchaser in its reasonable discretion, then Seller will not be in default
by reason thereof, but Purchaser may, by notice given to Seller before the
Closing, elect (i) to waive said conditions and proceed with the Closing or
(ii) to terminate this Agreement, and receive a refund of the Deposit. If
Purchaser elects to terminate this Agreement. neither party will have any
further rights or obligations hereunder except as provided in Paragraph 9.15.
6.3 Representations and Warranties. All of Seller's
representations and warranties made pursuant to Paragraph 5.1 remain true and
correct in all material respects.
6.4 Seller Performance. Seller has delivered all of the
documents and other items required pursuant to Paragraph 8.6 and has
performed all other covenants, undertakings and obligations required by this
Agreement, to be performed or complied with by Seller at or prior to Closing.
7. Other Agreements. The obligations of Purchaser and Seller to close
hereunder shall also be conditioned upon the simultaneous closing of (a) the
purchase by Purchaser or an
9
affiliate of Purchaser, of the industrial building commonly known as 000
Xxxxx Xxxxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx, pursuant to that certain
Agreement of Purchase and Sale of even date herewith (the "741 First Avenue
Agreement") between Purchaser, as purchaser, and RREEF MidAmerica/East
Fund-IV ("741 First Avenue Owner"), as seller, and (b) the purchase by
Purchaser or an affiliate of Purchaser, of the industrial building commonly
known as 000 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxx, pursuant to that
certain Agreement of Purchase and Sale of even date herewith (the "Xxxxxxx
Court Agreement"; the 000 Xxxxx Xxxxxx Agreement and the Xxxxxxx Court
Agreement collectively the "Other Agreements") between Purchaser, as
purchaser, and RREEF MidAmerica East-V Six, Inc. ("Xxxxxxx Court Owner"; the
000 Xxxxx Xxxxxx Owner and the Xxxxxxx Court Owner are collectively referred
to as the "Other Owners"), as seller. This condition may be waived by the
parties. Without limiting the generality of the foregoing, if Purchaser
terminates this Agreement pursuant to Section 3 or Section 4, the Other
Owners shall have the right to terminate the Other Agreements as well; or, if
Purchaser terminates one or more of the Other Agreements pursuant to Section
3 or Section 4 of the Other Agreements, Seller shall have the right to
terminate this Agreement as well. A default by Purchaser under one or more
of the Other Agreements shall be deemed a Purchaser default hereunder, and a
default by an Other Owner under one or more of the Other Agreements shall be
deemed a Seller default hereunder.
8. Closing.
8.1 Closing of Sale. The purchase and sale contemplated herein
shall close (herein referred to as the "Closing") at the office of the Title
Insurer, or as otherwise mutually agreed, on a date selected by Seller, which
date (the "Closing Date") shall not be earlier than the date which is fifteen
(15) days after the expiration of the Review Period nor more than thirty (30)
days after expiration of the Review Period, time being of the essence. At
Closing, Seller will deliver to Purchaser a Special Warranty Deed ("Deed") in
the form of Schedule 8.6.1 and other closing documents required hereunder and
Purchaser will cause payment of the Purchase Price to be made to Seller by
wire transfer. The sale (payment of the Purchase Price and delivery of the
Deed) may, at Purchaser's option to be exercised by notice to Seller at least
five (5) days prior to the Closing Date, be closed through escrow with the
Title Insurer in accordance with the general provisions of the usual form of
escrow agreement used in similar transactions by such Title Insurer with
special provisions inserted (i) as may be required to conform with this
Agreement and (ii) to close on a so-called "New York Style" basis.
8.2 Prorations; Adjustments. The parties will prorate taxes,
rental, and other income, and operating or other expenses of the Property as
of 12:01 a.m. on the date after Closing (i.e., Seller is entitled to the
income and responsible for the expenses of the day of Closing). All income
will be prorated on the basis of income actually received by Seller, as
opposed to income which is due or for which Seller has rendered invoices but
which has not been paid (i.e., Seller will not be entitled to any credit for
receivables, and there will be no proration as to such receivables). Any
taxes or other expenses of the Property for any period prior to Closing which
are payable by tenants of the Property subsequent to Closing (e.g., real
estate taxes paid in
10
arrears and not yet billed to tenants), will reduce the credit to Purchaser
for such items (i.e., no credit from Seller for pass-through items for which
Purchaser will later collect from the tenants). To the extent that the taxes
to be prorated are not known with certainty, such proration will be based
upon the most recent tax xxxx or county estimate, to be re-prorated upon
issuance of final bills. Seller also agrees to give Purchaser a credit
against the Purchase Price for all cash security deposits required to be held
pursuant to the Leases (less portions thereof applied by Seller to tenant
defaults and not subsequently restored by the tenant in question) and all
interest due thereon and shall assign to Purchaser any other tenant deposits
held by Seller. Purchaser will pay amounts subsequently received by it from
tenants constituting base rent, capital reimbursements or other income due
from tenants and attributable to Seller's period of ownership, but not
collected as of the date of Closing, to Seller promptly upon receipt;
provided that amounts received from tenants by Purchaser will be first
applied to current charges, and the balance will be applied to payments due
to Seller. Notwithstanding the foregoing, Seller shall expressly reserve the
right to seek to collect, directly from the tenants after Closing and with
Purchaser's cooperation, any delinquencies and other amounts attributable to
Seller's period of ownership, but not collected as of the date of Closing.
To the extent Seller has received amounts from tenants for real estate taxes
and 1997 and 1998 operating expenses in excess of amounts paid by Seller with
respect to such expenses, Seller will credit such excess to Purchaser at
Closing, and Seller will provide adequate backup information in connection
with such credit. On or after the Closing, Seller will have no further
obligations with respect to any Leases or other agreements affecting the
Property, including, without limitation, tenant improvement work, leasing
commissions and free rent.
8.2.1 Seller and Purchaser hereby agree to use their
reasonable efforts to calculate prorations (including real estate tax
prorations) so as to permit settlement thereof on the Closing Date, provided,
however, that if any of such prorations cannot be calculated accurately on
the Closing Date, then the same will be calculated as soon as reasonably
practicable after the Closing Date, but in no event later than the later to
occur of (i) thirty (30) days after Seller receives its final cost
certification for the year in which Closing occurs, or (ii) March 31 of the
year following the year in which Closing occurs, and either party owing the
other party a sum of money based on such subsequent proration(s) shall
promptly pay said sum to the other party, together with interest thereon at
the rate of two percent (2%) per annum over the "prime rate" (as announced
from time to time in the Wall Street Journal) from the Closing Date to the
date of payment if payment is not made within thirty (30) days after delivery
of a xxxx therefor together with reasonable back-up documentation. This
obligation of the parties will survive Closing.
8.3 Proration of Service Charges. To the extent Seller, as
opposed to tenants, is responsible for payment of utility charges, Seller
will attempt to have utility meters read as of the Closing Date. To the
extent that this is not possible and to the extent that any other obligation
for continuing services is incurred, and statements are rendered for such
services covering periods both before and after the Closing Date, the amount
will be adjusted between the parties as of the Closing Date on a per-diem
basis. Seller will forward any such statements
11
which it receives to Purchaser and Purchaser will pay the same. Seller will
remit to Purchaser its proportionate share immediately upon demand.
8.4 Closing Costs. Purchaser agrees to pay (i) the Title
Insurer's escrow and/or closing fees (including any payment to the closing
officer of the Title Insurer as may be the local custom at the Closing), (ii)
the cost of the title commitment and basic policy and endorsements, if any,
required to meet Seller's obligations hereunder and the cost of any
endorsements to the title policy required by Purchaser, including extended
coverage, (iii) all recording fees and taxes with respect to the Deed, (iv)
all costs of Purchaser's physical inspections of the Property (environmental,
engineering) and other due diligence activities; (v) all costs of survey,
including fees and charges of Gannett Xxxxxxx Associates (originally engaged
by Seller); (vi) cancellation charges, if applicable, to Coventry Abstract
(originally engaged by Seller); and (vii) one-half (1/2) of applicable
transfer taxes. Seller agrees to pay (i) all recording fees with respect to
clearing Seller's title, and (ii) one-half (1/2) of applicable transfer
taxes. Except as otherwise provided in Paragraph 9.9, each party is
responsible for its own attorneys' and other professional fees. All other
closing costs shall be allocated in accordance with the prevailing local
custom.
8.5 Possession. Subject to the rights of tenants pursuant to
Leases delivered to Purchaser, Seller will deliver possession of the Property
and of any conveyed personal property to the Purchaser on the date of Closing
and Seller will thereupon deliver to Purchaser the originals of all Leases,
all correspondence with tenants, tenant/lease files, operating statements,
plans and specifications, supplies and advertising materials, booklets, keys,
and other items used in connection with operation of the Property.
8.6 Seller's Closing Documents. As part of the Closing, Seller
will deliver to Purchaser:
8.6.1 the Deed, in the form of Schedule 8.6.1
8.6.2 an affidavit in customary form that Seller is not a
foreign person within the meaning of Section 1445(e) of the Internal Revenue
Code of 1986, in the form of Schedule 8.6.2;
8.6.3 such affidavits as are customarily required by
Title Insurer in connection with issuance of the owner's basic title
insurance policy, including a mechanics' lien and judgment affidavit;
8.6.4 an assignment of the Leases in the form of Schedule
8.6.4 ("Lease Assignment");
8.6.5 an assignment of contracts and warranties in the
form of Schedule 8.6.5 ("Contracts Assignment"), assigning to Purchaser all
contracts listed on Schedule 5.1.5,
12
other than those designated by Purchaser for termination by notice to Seller
not less than thirty (30) days prior to Closing;
8.6.6 an assignment of intangibles in the form of
Schedule 8.6.6 ("Intangibles Assignment");
8.6.7 letters, in form to be supplied by Purchaser, to
the tenants at the Property, instructing the tenants to pay rent to
Purchaser and to recognize Purchaser as landlord under their Leases;
8.6.8 a xxxx of sale conveying all personal property of
Seller, if any, located at the Property and used in connection with the
maintenance or operation thereof (specifically excluding furniture, fixtures
and equipment owned by RREEF Management Company and located in the RREEF
Management Company office), in the form of Schedule 8.6.8;
8.6.9 a rent roll, certified by Seller as being true and
correct, to Seller's knowledge, as of the Closing Date, in the form
previously delivered to Purchaser;
8.6.10 a "bring down certificate" stating that Seller's
representations and warranties are true and correct as of the Closing Date,
in the form of Schedule 8.6.10;
8.6.11 estoppel certificates as required by Paragraph 6.2
herein; and
8.6.12 all other documents, instruments or writings which
may be reasonably required to consummate the transactions contemplated herein.
8.7 Purchaser's Closing Documents. As part of the Closing,
Purchaser will deliver to Seller:
8.7.1 good federal funds in an amount equal to the
Purchase Price, less the Deposit and interest thereon and plus or minus
prorations as provided herein and plus funds sufficient to pay Purchaser's
closing costs hereunder;
8.7.2 such affidavits as are customarily required by
Title Insurer in connection with issuance of the owner's title insurance
policy;
8.7.3 executed counterpart of the Lease Assignment;
8.7.4 executed counterpart of the Contracts Assignment;
8.7.5 executed counterpart of the Intangibles Assignment;
13
8.7.6 all other documents, instruments or writings which
may be reasonably required to consummate the transactions contemplated herein.
8.8 Joint Deliveries. At the Closing, Seller and Purchaser will
execute and deliver to each other the following documents in proper form:
8.8.1 Closing Statement;
8.8.2 City, county and state transfer tax declarations or
similar instruments; and
8.8.3 All other documents, instruments or writings which
may be reasonably required to consummate the transactions contemplated herein.
9. Miscellaneous.
9.1 Modifications. This Agreement can be amended only in
writing signed by both of the parties.
9.2 Casualty and Condemnation. Seller agrees to keep its
customary replacement cost insurance covering the Property in effect until
the Closing. If between the Effective Date and the Closing the improvements
on the Property are destroyed or damaged to the extent that repairs cost in
excess of $1,000,000 in the estimate of an architect or contractor selected
by Seller and reasonably acceptable to Purchaser, or if condemnation
proceedings are commenced against the Property, Purchaser may (i) terminate
this Agreement or (ii) elect to accept the Property in its then condition, in
which event Seller will pay or assign to Purchase at Closing all proceeds of
insurance (plus the applicable deductible) or condemnation awards payable to
Seller by reason of such damage or condemnation. In the event Purchaser
makes neither election by the earlier of (a) Closing or (b) ten (10) days
after being advised of such casualty or condemnation, Purchaser will be
deemed to have elected to accept the Property in its then condition. In the
event of any other damage to the Property, Seller may either repair the
damage or give Purchaser a reduction in the Purchase Price equal to the cost
of repairing such damage, as certified by an architect or contractor selected
by Seller and reasonably acceptable to Purchaser. In the event of any damage
where Purchaser does not have the right to terminate and Seller elects to
repair such damage, the Closing Date shall be delayed for the number of days
required to repair the damage, which Seller agrees to do in accordance with
all Laws and in a good and workmanlike manner.
9.3 Time of Essence. Time (including, without limitation, the
date specified as the Closing Date) is of the essence of this Agreement.
9.4 Notices. All notices required or permitted hereunder must
be in writing and shall be served on the parties at the following address:
14
If to Purchaser: Brandywine Realty Trust
Newtown Square Corporate Campus
00 Xxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, President & CEO
Xxxx X. Xxxxxxxx, General Counsel
Facsimile: (610-325-5622)
If to Seller: RREEF USA FUND-I
c/o The RREEF Funds
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx & Xx. Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: RREEF USA FUND-I
c/o The RREEF Funds
000 Xxxx Xxxxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
and a copy to: X'Xxxxxx & Xxxxxx
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx
Facsimile: (000) 000-0000
Any such notices may be sent by (a) certified mail, return receipt requested,
in which case notice will be deemed delivered three (3) business days after
deposit, postage prepaid in the U.S. mail or (b) a nationally recognized
overnight courier, in which case notice will be deemed delivered one business
day after deposit with such courier or (c) facsimile transmission, in which
case notice will be deemed delivered upon electronic verification that
transmission to recipient was completed, provided that notices sent by
facsimile transmission on a day other than a business day, or before 9:00
a.m. or after 5:00 p.m. recipient's time on a business day, shall be deemed
given on the first business day following the date of transmission or (d)
personal delivery. The above addresses and facsimile numbers may be changed
by notice to the other party; provided
15
that no notice of a change of address or facsimile number will be effective
until actual receipt of such notice.
9.5 Parties Bound. Neither party may assign this Agreement
without the prior written consent of the other, and any such prohibited
assignment shall be void; provided that Purchaser may assign this Agreement
without Seller's consent to an Affiliate; provided that the assignee is not a
party-in-interest as described in Paragraph 9.14. Subject to the foregoing,
this Agreement is binding upon and inure to the benefit of the respective
legal representatives, successors, assigns, heirs, and devisees of the
parties. For the purposes of this Paragraph, the term "Affiliate" means (a)
an entity that directly or indirectly controls, is controlled by or is under
common control with the Purchaser or (b) an entity at least a majority of
whose economic interest is owned by Purchaser; and the term "control" means
the power to direct the management of such entity through voting rights,
ownership or contractual obligations.
9.6 Governing Law. The performance and interpretation of this
Agreement is controlled by the law of the Commonwealth of Pennsylvania.
9.7 Continuation Until Closing; Leasing.
9.7.1 Between the Effective Date and the Closing, Seller
agrees to keep and perform all of the obligations to be performed by landlord
under any Leases and Laws. Seller agrees to operate the Property in the same
manner as before the making of this Agreement, the same as though Seller were
retaining the Property. Seller agrees not to convey the Property, nor to
grant any liens or easements with respect thereto.
9.7.2 Seller shall not permit or consent to any new
leases, amendments, extensions, renewals (other than pursuant to tenant
renewal options, if any) or subleases without first submitting them to
Purchaser for Purchaser's approval on an approval form in the form attached
hereto as Schedule 9.7.2, which approval shall not be unreasonably withheld.
Purchaser shall have three (3) business days to notify Seller of its approval
of such leases, amendments, extensions, renewals or subleases, and in the
event that Purchaser does not so notify Seller, the leases, amendments,
extensions, renewals or subleases, as the case may be, shall be deemed
approved.
9.7.3 With respect to any new lease or lease modification
entered into by Seller after December 18, 1997 and approved by Purchaser, by
the terms of which Seller obligates itself to perform or performs or pays or
contracts for any tenant improvement work or additional landlord work
required pursuant to such lease, or pays or contracts for any leasing
commissions or grants any free rent period or other financial concessions,
then such expenses and/or free rent or other concessions, and all other
third-party costs incurred (including attorneys' fees) in connection with
such lease, will be a credit to Seller at Closing to the extent Seller paid
such amounts prior to Closing; otherwise Purchaser agrees to assume liability
for the payment and performance of such obligations in accordance with the
terms thereof.
16
9.8 Brokers. Seller and Purchaser each (i) represents and
warrants to the other that it has not dealt with any broker or finder in
connection with the transaction contemplated by this Agreement other than the
parties, if any, to be paid a commission as specified in Paragraph 9.11, and
(ii) agrees to defend, indemnify and hold the other harmless from and against
any losses, damages, costs, or expenses (including attorneys' fees) incurred
by such other party due to a breach of the foregoing warranty by the
indemnifying party.
9.9 Attorneys' Fees. Notwithstanding any limitation on remedies
or amounts recoverable set forth elsewhere herein, if any action is brought
by either party against the other party, the party in whose favor final
judgment is entered will be entitled to recover court costs incurred and
reasonable attorneys' fees at trial, upon appeal and on any petition for
review.
9.10 Remedies for Non-Performance. Purchaser's remedies
regarding breach of warranty or representation by Seller are governed by
Paragraph 5.3. In the event of any other default by Seller hereunder,
Purchaser may, as its sole and exclusive remedy, either (i) terminate this
Agreement and seek damages, subject to performance of Purchaser's indemnities
set forth in Paragraph 9.15, and receive back the Deposit or (ii) seek
specific performance. If said sale is not consummated because of a default
under this Agreement on the part of Purchaser, the Deposit will be paid to
and retained by Seller as Seller's sole and exclusive remedy. Seller and
Purchaser acknowledge that the Deposit is a reasonable forecast of just
compensation for the harm that could be caused by Purchaser's default and
that the harm suffered by Seller is difficult or impossible to accurately
ascertain or predict. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT
TO THE CONTRARY, SELLER'S TOTAL LIABILITY FOR DAMAGES FOR BREACH OF THE
COVENANTS, AGREEMENTS, WARRANTIES AND REPRESENTATIONS UNDER THIS AGREEMENT
AND THE OTHER AGREEMENTS, COLLECTIVELY, SHALL NEVER EXCEED TWO MILLION
DOLLARS ($2,000,000.00), AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL,
EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES.
9.11 Brokers Commission. Seller agrees to pay the brokerage
commission due The Xxxxx Company pursuant to a separate agreement.
9.12 Survival of Covenants. All covenants hereunder which, by
their terms, are intended to survive Closing will survive Closing hereunder.
9.13 Seller's Investment Committee Approval. This condition has
been satisfied.
9.14 ERISA. Purchaser represents and warrants to Seller that
none of Purchaser's assets are "plan assets," (as that term is defined by 29
CFR Section 2510.3-101) because all plans that are subject to the provisions
of the Employee Retirement Income Security Act of 1974,
17
as amended, and which have invested in Purchaser hold only "equity
interests," (as that term is defined by 29 CFR Section 2510.3-101(b)(1)) that
are "publicly-offered securities," (as that term is defined by 29 CFR Section
2510.3-101(b)(2)). Purchaser further represents and warrants to Seller that
it is not any one of the types of entities listed in 29 CFR Section
2510.3-101(h), the character of which would identify its assets as "plan
assets."
9.15 Entry and Indemnity. In connection with any entry by
Purchaser, or its agents, employees or contractors onto the Property,
Purchaser shall give Seller reasonable advance notice of such entry and shall
conduct such entry and any inspections in connection therewith so as to
minimize, to the greatest extent possible, interference with Seller's
business and the business of Seller's tenants and otherwise in a manner
reasonably acceptable to Seller. Without limiting the foregoing, prior to
any entry to perform any on-site testing, Purchaser shall give Seller notice
thereof, including the identity of the company or persons who will perform
such testing and the proposed scope of the testing. Seller shall approve or
disapprove the scope and methodology of such proposed testing within three
(3) business days after receipt of such notice, such approval to be within
the sole and unfettered discretion of Seller; Seller's failure to notify
Purchaser of its approval or disapproval shall be deemed to be Seller's
disapproval thereof. If Purchaser or its agents, employees or contractors
take any sample from the Property in connection with any such approved
testing, upon Seller's request, Purchaser shall provide to Seller a portion
of such sample being tested to allow Seller, if it so chooses, to perform its
own testing. Seller or its representative may be present to observe any
testing or other inspection performed on the Property. Upon Seller's
request, Purchaser shall promptly deliver to Seller copies of any reports
relating to any testing or other inspection of the Property performed by
Purchaser or its agents, employees or contractors. Purchaser shall maintain,
and shall assure that its contractors maintain, public liability and property
damage insurance in amounts and in form and substance adequate to insure
against all liability of Purchaser, its agents, employees or contractors,
arising out of any entry or inspections of the Property pursuant to the
provisions hereof, and Purchaser shall provide Seller with evidence of such
insurance coverage upon request by Seller. Purchaser shall indemnify, defend
and hold Seller harmless from and against any costs, damages, liabilities,
losses, expenses, liens or claims (including, without limitation, reasonable
attorney's fees) arising out of or relating to any entry on the Property by
Purchaser, its agents, employees or contractors in the course of performing
the inspections, testings or inquiries provided for in this Agreement,
including without limitation damage to the Property or release of hazardous
substances or materials onto the Property, excluding, however, any costs
incurred by Seller in supervising Purchaser's testing. The foregoing
indemnity shall survive beyond the Closing, or if the sale is not
consummated, beyond the termination of this Agreement.
9.16 Release. Except to the extent of the representations and
warranties of Seller expressly set forth in this Agreement, and except to the
extent of a breach by Seller of applicable laws, but otherwise
notwithstanding any other provision of this Agreement to the contrary,
Purchaser, on behalf of itself and its successors and assigns, waives its
right to recover from, and forever releases and discharges, Seller, Seller's
affiliates, Seller's investment manager, the partners, trustees,
shareholders, directors, officers, employees and agents of each of them,
18
and their respective heirs, successors, personal representatives and assigns
(collectively, the "Seller Related Parties"), from any and all demands,
claims, legal or administrative proceedings, losses, liabilities, damages,
penalties, fines, liens, judgments, costs or expenses whatsoever (including,
without limitation, attorneys' fees and costs), whether direct or indirect,
known or unknown, foreseen or unforeseen, which may arise on account of or in
any way be connected with the physical condition of the Property or any law
or regulation applicable thereto, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601 et seq.), the Resources Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act
(33 U.S.C. Section 466 et seq.), the Safe Drinking Water Act (14 U.S.C.
Sections 1401-1450), the Hazardous Materials Transportation Act (49 U.S.C.
Section 1801 et seq.), and the Toxic Substance Control Act (15 U.S.C.
Sections 2601-2629)
9.17 Confidential Information. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, investors, advisors, and affiliates, or as
required by law. No party will make any public disclosure of the specific
terms of this Agreement, except as required by law. Without limiting the
generality of the foregoing, any press release or other public disclosure
regarding this Agreement or the transactions contemplated herein, and the
wording of same, must be approved in advance by both parties. In connection
with the negotiation of this Agreement and the preparation for the
consummation of the transactions contemplated hereby, each party acknowledges
that it will have access to confidential information relating to the other
party. Each party shall treat such information as confidential, preserve the
confidentiality thereof, and not duplicate or use such information, except to
advisors, consultants, investors and affiliates in connection with the
transactions contemplated hereby. In the event of the termination of this
Agreement for any reason whatsoever, Purchaser will return to Seller, at
Seller's request, all documents, work papers, and other material (including
all copies thereof) obtained from Seller in connection with the transactions
contemplated hereby, and each party shall use its best efforts, including
instructing its employees and others who have had access to such information,
to keep confidential and not to use any such information. The provisions of
this Paragraph 9.17 will survive the Closing or, if the purchase and sale is
not consummated, any termination of this Agreement.
9.18 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event,
after which the designated period of time begins to run, is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday, in which event the
period shall run until the end of the next day which is neither a Saturday,
Sunday, or legal holiday (i.e., a day on which federally chartered banks are
not open for business in Chicago, Illinois). The last day of any period of
time described herein shall be deemed to end at 5 p.m. Chicago, Illinois time
on the last day of such period of time. All days other than Saturdays,
Sundays and legal holidays in which national banks are closed in Chicago,
Illinois are business days hereunder.
19
9.19 Entire Agreement. This Agreement and any other document to
be furnished pursuant to the provisions hereof embody the entire agreement
and understanding of the parties hereto as to the subject matter contained
herein. There are no restrictions, promises, representations, warranties,
covenants, or undertakings other than those expressly set forth or referred
to in such documents. This Agreement and such documents supersede all prior
agreements and understandings among the parties with respect to the subject
matter hereof
9.20 Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement, or affecting the validity or
enforceability of any of the terms or provisions of this Agreement.
9.21 Facsimile Signatures. Executed facsimile copies of this
Agreement or any amendments hereto shall be binding upon the parties, and
facsimile signatures appearing hereon or on any amendments hereto shall be
deemed to be original signatures.
9.22 Further Assurances. In addition to the acts and deeds
recited herein and contemplated to be performed, executed and/or delivered by
Seller to Purchaser at Closing, Seller agrees to perform, execute and
deliver, but without any obligation to incur any additional liability or
expense, on or after the Closing any further deliveries and assurances as may
be reasonably necessary to consummate the transactions contemplated hereby or
to further perfect the conveyance, transfer and assignment of the Property to
Purchaser.
9.23 Offer. Execution and delivery of this Agreement by
Purchaser constitutes an offer to purchase the Property on the terms
contained herein. Delivery by Seller of a copy of the fully executed
Agreement by facsimile transmission on or before the Expiration Date,
followed by a manually signed copy thereof delivered the next business day
after transmission of such copy, shall constitute acceptance by Seller as of
the date of the facsimile transmission. The date on which Seller delivers a
fully executed copy of this Agreement to Purchaser, or delivers a copy by
facsimile transmission followed by a manually signed copy as provided in the
preceding sentence is referred to herein as the "Effective Date."
9.24 Seller Exculpation Clause. The obligations of Seller
contained herein are intended to be binding only on the property of the trust
party to this Agreement of Purchase and Sale and shall not be personally
binding upon, nor shall any resort be had to the private properties of, any
of the trustees, investment managers, any general partners thereof, or any
employees or agents of the trustees or investment managers. All documents to
be executed by Seller shall also contain the foregoing exculpation.
20
9.25 Purchaser Exculpation Clause. No recourse shall be had for
any obligation of Brandywine Operating Partnership, L.P. and Brandywine
Realty Trust under this Agreement or under any document executed in
connection herewith or pursuant hereto, or for any claim based thereon or
otherwise in respect thereof, against any past, present or future trustee,
shareholder, officer or employee of Brandywine Operating Partnership, L.P. or
Brandywine Realty Trust, whether by virtue of any statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability being expressly waived and released by the Seller and all parties
claiming by, through or under Seller.
9.26 SEC Reporting (8-K) Requirements. For the period of time
commencing on the date hereof and continuing through the first anniversary of
the Closing Date, and without limitation of other document production
otherwise required of Seller hereunder, Seller shall, from time to time, upon
reasonable advance written notice from Purchaser, provide Purchaser and its
representatives, with (a) access to all financial information pertaining to
the period of Seller's ownership and operation of the Property, which
information is relevant and reasonably necessary, in the opinion of
Purchaser's outside, third party accountants (the "Accountants"), to enable
Purchaser and its Accountants to prepare financial statements in compliance
with any or all of (i) Rule 3-05 or 3-15 of Regulation S-X of the Securities
and Exchange Commission (the "Commission"), as applicable; (ii) any other
rule issued by the Commission and applicable to Purchaser; and (iii) any
registration statement, report or disclosure statement filed with the
Commission, by, or on behalf of Purchaser; and (b) a representation letter,
signed by the
21
individual(s) responsible for Seller's financial reporting, substantially in
the form of Schedule 9.26 attached hereto, which representation letter may be
required by the Accountants in order to render an opinion concerning Seller's
financial statements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates set forth below.
SELLER: PURCHASER:
RREEF USA FUND-I BRANDYWINE OPERATING PARTNERSHIP,
L.P.
By: RREEF America L.L.C., its By: Brandywine Realty Trust, its
investment advisor authorized general partner
By: By:
---------------------------- -------------------------------
Authorized Representative Xxxxxx X. Xxxxxxx
President and Chief Executive
Dated: Officer
------------------------- Dated:
----------------------------
22
List of Schedules and Exhibits
Schedules
------------
2.1 Escrow Instructions
5.1 Disclosure Schedule
5.1.5 Service Contracts
5.1.10 Rent Roll
5.1.12 Future Leasing Commissions, Tenant Improvements
and Free Rent
6.2 Form of Estoppel Letter
8.6.1 Form of Deed
8.6.2 FIRPTA Certificate
8.6.4 Assignment and Assumption of Leases
8.6.5 Assignment and Assumption of Contracts and
Warranties
8.6.6 Assignment of Intangibles
8.6.8 Xxxx of Sale
8.6.10 Bring-Down Certificate
9.26 SEC Compliance Representation Letter
Exhibits
--------------
A Legal Description of Property
A-1 Descriptive List of the Property
23
Schedule 2.1
XXXXXXX MONEY ESCROW INSTRUCTIONS
(xxxxxxx money escrow instructions previously executed)
Schedule 5.1
DISCLOSURE SCHEDULE
1. The Upper Merion Area school district has filed real estate tax
assessment appeals, seeking to increase the assessments against the
000 Xxxxxxxxx Xxxx and 000 Xxxxxxxxx Xxxx properties for tax years
beginning on and after January 1, 1996. Counsel for Seller has
negotiated a tentative settlement, whereby the School District
would dismiss its appeals, and the 1998 reassessment for 660
Allendale would be increased from $3,566,070 to $4,200,000.
Purchaser hereby concurs with this settlement, and authorizes
Seller to authorize its counsel to proceed to attempt to put this
proposed settlement into effect.
2. 1996 Environmental Audits were prepared by ATC Environmental, Inc.
for the following properties:
1. 000 Xxxx Xxxxxx
2. 000 Xxxx Xxxxxx
3. 000 Xxxxx Xxxxxx
4. 000 Xxxxx Xxxxxx
5. 000 Xxxxx Xxxxxx
6. 000 Xxxxxxxxx Xxxx
7. 000-000 Xxxxxxxxx Xxxx
0. 000 Xxxxxxxxx Xxxx
9. 000 Xxxxx Xxxxxx
10. 000 Xxxxx Xxxxxx
11. 000 Xxxxx Xxxxxx
12. 000-000 Xxxxx Xxxxxx
These Audits have been made available to Purchaser for inspection
and copying, and, each of the Seller warranties of Section 5.1.8
and its subparagraphs are qualified and limited by any matters
disclosed in such Audits.
Schedule 5.1.5
Service Contracts
A.T. BUILDERS
BFI
BERWYN GLASS
XXXXX ELECTRICAL CONTRACTORS
XXXXXXX GLASS COMPANY, INC.
CONTROLLED ENVIRONMENTS
CROWN CONTRACTORS, INC.
XXXXXX X. XXXXX, INC.
XXXXXXX BROTHERS COMPANY
DURASEAL, INC.
XXXXXXXX
FIDELITY ALARM COMPANY
XXXXXXXXX EXCAVATING, INC. (GEI)
GUARDIAN ALARM SYSTEMS
HONEYWELL
MOON LANDSCAPING
XXXXXX SPRINKLER
PENNTEX CONSTRUCTION COMPANY
PHOENIX MECHANICAL, INC.
XXXXX XXXXXXXX XXXXX ASSOCIATES
XXXXXXXXXX HAULING CO.
SECURITY ELEVATOR COMPANY
SYSTEMATIC ROOFING ANALYSIS
TELEPHONE DIAGNOSTIC SERVICES, INC.
TERMINIX INTERNATIONAL CO.
VECTORDYNE
XXXXX XXXXX PLUMBING
Schedule 5.1.10
Rent Roll
Schedule 5.1.12
Future Leasing Commissions, Tenant Improvements and Free Rent
1. If Lockheed Xxxxxx, the tenant of 000-000 Xxxxx Xxxxxx, does not
exercise its termination option, a commission may become due to The
Xxxxx Company and GMH in the aggregate amount of $44,388.00 on October
1, 2000.
2. Seller and Gannett Xxxxxxx (650 Park Avenue) have signed a letter of
intent to extend its lease for seven years and expand to approximately
35,000 square feet. The extended lease would commence July 1, 1998 or
sooner. Base rent is $16.00 gross plus electric, with escalation over
1997 base year and 3% annual increases in base rent. Tenant will be
entitled to a tenant improvement allowance of $15.00 per square foot,
and a leasing commission in the amount of $____________ will be payable
to _____________.
3. Xxxxxx Siltronic Corp. (650 Park Avenue, 1,072 square feet) is extending
its lease. A commission in the amount of $1,326 will be payable to The
Xxxxx Company.
4. The landlord has agreed to pay Metropolitan Fiber Systems of
Philadelphia, Inc. (MFS) (630 Xxxxx Avenue) up to $450,000 for tenant
improvements and roof repairs/replacements. The work has been performed
but the landlord has not yet been billed. This remains a Seller
obligation, and Seller agrees to hold Purchaser from and against any
liability for these amounts, such obligation to survive Closing.
Schedule 6.2
TENANT ESTOPPEL LETTER
__________ __, 1998
Brandywine Realty Trust
Newtown Square Corporate Campus
00 Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer
NationsBank, N.A.,
Real Estate Banking
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, XX 00000
Attention: Xxxx X.X. Xxxx
Re: Lease from ________, for Suite ____, located at
[BUILDING ADDRESS]
[CITY/TOWNSHIP], Pennsylvania (the "Property")
To Whom it May Concern:
The undersigned is the holder of the tenant's interest under the lease
described on Exhibit A attached hereto (the "Lease") demising a portion of
the Property (the "Leased Premises"). We understand that Brandywine Realty
Trust, its assignee or nominee ("Brandywine") intends to acquire the
Property, and that NationsBank, N.A., as Agent for the parties listed on
Schedule 1 attached hereto ("Lender") may be the holder of a first mortgage
on the Property, and that Brandywine and Lender require this certification
from us.
Accordingly, we hereby certify to Brandywine and Lender as follows:
1. The Lease is in full force and effect and has not been modified,
amended or supplemented in any way, except as follows (Insert dates of all
modifications, amendments, or supplements; if none, write "None"):
___________________________________________________________________________
__________________________________.
2. There are no other representations, warranties, agreements,
concessions, commitments, or other understandings between the undersigned and
the Landlord regarding the Property other than as set forth in the Lease or
paragraph 1 above.
3. The landlord under the Lease has completed and delivered, and the
undersigned has accepted, the Leased Premises in the condition required by
the Lease and the term of the Lease commenced on _________. The Leased
Premises consists of approximately ___________ square feet. The undersigned
has taken possession of and is occupying the Leased Premises on a rent-paying
basis and the monthly base rent payable thereunder is $_________, payable in
advance. All improvements and work required under the Lease to be made by the
landlord thereunder and all facilities required under the Lease to be
furnished to the Leased Premises have been completed to the satisfaction of
the undersigned, except as follows (Insert description of any improvements
and work to be completed by the landlord under the Lease; if none, write
"None"): _____________________________.
4. The fixed expiration date set forth in the Lease, excluding
renewals and extensions, is ________________. The undersigned neither has
any option or right to purchase the Property or any portion thereof nor does
the undersigned have any right or option to terminate the Lease or any of its
obligations thereunder in advance of the scheduled termination date of the
Lease as noted above, except as follows (Insert description of any purchase
rights or options, and/or any early termination rights; if none, write
"None"): _______________________________.
5. All rents, additional rents and other sums due and payable under the
Lease have been paid in full and no rents, additional rents or other sums
payable under the Lease have been paid for more than one (1) month in advance
of the due dates thereof.
6. The landlord under the Lease is not in default under any of the
requirements, provisions, terms, conditions or covenants of the Lease to be
performed or complied with by the landlord under the Lease, and no event has
occurred or situation exists which would, with the passage of time and/or the
giving of notice, constitute a default or an event of default by the landlord
under the Lease.
7. The undersigned is not in default under any of the requirements,
provisions, terms, conditions, or covenants of the Lease to be performed or
complied with by the undersigned, and no event has occurred or situation
exists which would, with the passage of time and/or the giving of notice,
constitute a default or an event of default by the undersigned under the
Lease.
2
8. The undersigned has received no notice from any governmental
authority or other person or party claiming a violation of, or requiring
compliance with, any Federal, State or local statute, ordinance, rule,
regulation or other requirement of law, for environmental contamination at
the Leased Premises, to the best knowledge of the undersigned no hazardous,
toxic or polluting substances or wastes have been generated, treated,
manufactured, stored, refined, used, handled, transported, released, spilled,
disposed of or deposited by Tenant on, in or under the Leased Premises.
9. Neither the undersigned nor the landlord under the Lease has
commenced any action or given or received any notice for the purpose of
terminating the Lease.
10. There are no existing defenses, offsets, claims, or credits against
the payment of rent or the performance of the undersigned's obligations under
the Lease.
11. The undersigned has paid to the landlord under the Lease a security
deposit of $____________.
Very truly yours,
By:
--------------------------------------
Name:
Title:
3
Exhibit A
(Description of Lease)
4
Schedule 8.6.1
Form of Deed
SPECIAL WARRANTY DEED:
THIS INDENTURE made this ____ day of ____________ , 0000,
XXXXXXX XXXXX XXX FUND-I, A CALIFORNIA GROUP TRUST
(hereinafter called the Grantor/s), of the one part and
_____________________
(hereinafter called the Grantee/s), of the second part,
WITNESSETH That in consideration of Ten and No/100 Dollars ($10.00) in hand
paid, the receipt whereof is hereby acknowledged, the said Grantor/s do/does
hereby grant, bargain, sell and convey unto the said Grantee/s, his/her/their
successors and /or assigns,
ALL THAT CERTAIN real estate, situated in the County of Xxxxxxxxxx and
Commonwealth of Pennsylvania known and described on the attached Exhibit A
"Legal Description," attached hereto an hereby made a part hereof.
TOGETHER with all and singular the buildings, improvements, ways, streets,
alleys, driveways, passages, waters, water-courses, rights, liberties,
privileges, hereditaments and appurtenances whatsoever unto the hereby
granted premises belonging, or in anywise appertaining, and the reversions
and remainders, rents, issues and profits thereof; and all the estate, right,
title, interest, use, trust, property, possession, claim and demand
whatsoever of Grantor as well at law as in equity, of, in, and to the same.
TO HAVE AND TO HOLD the said lot or piece of ground described with the
buildings and improvements thereon erected, hereditaments and premises hereby
granted, or mentioned and intended so to be, with the appurtenances unto the
said Grantee, and its successors and assigns to and for the only proper use
and behoof of the said Grantee, and its successors and assigns, forever.
AND the said Grantor/s do/does hereby covenant to and with the said Grantee/s
that he/she/they, the said Grantor/s, his/her/their successors and/or
assigns, SHALL AND WILL warrant specially and forever defend the herein above
described premises, with the hereditaments and appurtenances, unto the said
Grantor/s and against every other person lawfully claiming or who shall
hereafter claim the same or any part thereof, by, from and under
his/her/their successors and/or assigns or any of them, subject to validly
and legally existing encumbrances of record.
IN WITNESS WHEREOF, the said Grantor/s has/have caused these presents to be
duly executed, the day and year first above written.
ATTEST:
RREEF USA FUND-I, a California
group trust
By:
------------------------------- By: RREEF America L.L.C., a
Delaware limited
liability company, its
investment advisor
By:
-------------------------
Authorized Representative
[Add Pennsylvania address certification]
2
STATE OF )
----------------
) SS.
COUNTY OF )
----------------
I, ____________________________________________________________, a
notary public in and for said County, in the State aforesaid, DO HEREBY
CERTIFY that _______________________ and _______________________________,
personally known to me to be the __________________________ and __________ of
RREEF USA FUND-I, a California group trust, and personally known to me to be
the same persons whose names are subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as such
_____________________________ and __________, they signed and delivered the
said instrument as their free and voluntary act, and as the free and
voluntary act and deed of said trust, for the uses and purposes therein set
forth.
GIVEN under my hand and official seal this ____ day of ___________, 1998.
-------------------------------------------
Notary Public
Commission expires
------------------------------------------------------------
3
EXHIBIT A
Legal Description
Schedule 8.6.2
FIRPTA CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by
__________________________________________, a _______________________
("Seller") hereby certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is 00-0000000; and
3. Seller's principal place of business is 000 Xxxxxxxxxx Xxxxxx, 00xx
xxxxx, Xxx Xxxxxxxxx, XX 00000-0000
Seller understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct
and complete, and I further declare that I have authority to sign this
document on behalf of Seller.
_______________________________________
_______________________________________
By:
------------------------------------
Authorized Representative
Subscribed and sworn to
before me this ____ day of
______, 1998.
------------------------------
Notary Public
Schedule 8.6.4
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment") dated
as the dates of execution set forth below, but effective as of the Conveyance
Date (as herein defined), is between
_________________________________________, a Delaware corporation,
("Assignor") and ________________, a ___________________ ("Assignee").
A. Assignor is the lessor under certain leases executed with respect
to that certain real property and improvements thereon known
as_________________________________, _______________________, and more
particularly described in Exhibit "A" attached hereto (the "Property"), which
leases are described in Exhibit B attached hereto (the "Leases").
B. Assignor and Assignee have entered into an Agreement of Purchase
and Sale with an Effective Date of ______________, 1998 (the "Agreement"),
pursuant to which Assignee agreed to purchase the Property from Assignor and
Assignor agreed to sell the Property to Assignee, on the terms and conditions
contained therein.
C. Assignor desires to assign its interest as lessor in the Leases to
Assignee, and Assignee desires to accept the assignment thereof, on the terms
and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. As of the date on which the Property is conveyed to Assignee
pursuant to the Agreement (the "Conveyance Date")
[SHOULD BE THE DAY FOLLOWING CLOSING], Assignor hereby assigns to Assignee
all of its right, title, and interest in and to the Leases except rents and
other sums due Assignor first accruing on or prior to the Conveyance Date,
and, effective as of the day following the Conveyance Date, Assignee hereby
accepts such assignment.
2. Assignor hereby assumes full responsibility for all obligations and
defaults of landlord under the Leases accruing prior to and including the
Conveyance Date. Assignor also agrees to defend, indemnify and hold Assignee
harmless from any claims, liabilities or costs (including reasonable
attorneys' fees) arising from Assignor's failure to perform said obligations,
provided that Assignee makes a claim hereunder on or before one (1) year
following the Conveyance Date.
3. Assignee hereby assumes full responsibility for all obligations of
landlord under the Leases accruing after the Conveyance Date and Assignee
hereby agrees to defend, indemnify and hold Assignor harmless from any
claims, liabilities or costs (including reasonable attorneys' fees) arising
from Assignee's failure to perform said obligations. Without limiting the
generality
of the foregoing, Assignee assumes full responsibility for the free rent,
unpaid tenant improvement allowances and leasing commissions under the Leases
as listed on Exhibit C.
4. This Assignment shall be governed by the laws of the Commonwealth
of Pennsylvania.
5. This Assignment may be executed in counterparts.
6. The obligations of Assignor contained herein are intended to be
binding only on the property of the Assignor and shall not be personally
binding upon, nor shall any resort be had to the private properties of, any
of the investment managers of Assignor, or any general partners thereof, or
any employees or agents of the investment managers.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Assumption of Leases.
ASSIGNOR: ASSIGNEE:
__________________________________ __________________________________
__________________________________ __________________________________
By: By:
------------------------------- -------------------------------
Authorized Representative
Title:
----------------------------
Dated: Dated:
---------------------------- ----------------------------
2
EXHIBIT A
Legal Description
3
EXHIBIT B
Existing Leases
(rent roll to be attached)
4
EXHIBIT C
Free Rent, Tenant Improvement Allowances and Leasing Commissions
5
Schedule 8.6.5
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND WARRANTIES
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND WARRANTIES (the
"Assignment") dated as the dates of execution set forth below, but effective
as of the Conveyance Date (as herein defined), is between
____________________ ___________________________________, ("Assignor") and
________________, a ___________________ ("Assignee").
A. Assignor and Assignee have entered into an Agreement of Purchase
and Sale with an Effective Date of ______________, 1998 (the "Agreement"),
pursuant to which Assignee agreed to purchase Assignor's interest in the real
property legally described on Exhibit A attached hereto (the "Property"), on
the terms and conditions contained therein.
B. Whereas the execution and delivery of this Assignment is a
condition precedent to the purchase of the Property by the Assignee.
ACCORDINGLY, the parties hereby agree as follows:
1. As of the date on which the Property is conveyed to Assignee
pursuant to the Agreement (the "Conveyance
Date")[SHOULD BE THE DAY FOLLOWING CLOSING] , Assignor hereby assigns to
Assignee all of its right, title, and interest in and to the following:
2. Assignor hereby grants, transfers and assigns to Assignee all the
right, title and interest of Assignor in and to the following:
(a) All contracts listed on Exhibit B attached hereto.
(b) All presently effective and assignable warranties, guaranties,
representations or covenants given to or made in favor of Assignor or
Assignor's affiliates in connection with the acquisition, development,
construction, maintenance, repair, renovation or inspection of the Property.
The foregoing are collectively referred to herein as the "Contracts."
3. Assignor hereby assumes full responsibility for all obligations and
defaults of Assignor under the Contracts accruing to and including the
Conveyance Date. Assignor also agrees to defend, indemnify and hold Assignee
harmless from any claims, liabilities or costs (including reasonable
attorneys' fees) arising from Assignor's failure to perform said obligations,
provided that Assignee makes a claim hereunder on or before one (1) year
following the Conveyance Date.
4. Assignee hereby assumes full responsibility for all obligations of
owner of the Property under the Contracts accruing after the Conveyance Date
and Assignee hereby agrees to defend, indemnify and hold Assignor harmless
from any claims, liabilities or costs (including reasonable attorneys' fees)
arising from Assignee's failure to perform said obligations.
5. This Assignment shall be governed by the laws of the Commonwealth
of Pennsylvania.
6. This Assignment may be executed in counterparts.
7. The obligations of Assignor contained herein are intended to be
binding only on the property of the Assignor and shall not be personally
binding upon, nor shall any resort be had to the private properties of, any
of the investment managers of Assignor, or any general partners thereof, or
any employees or agents of the investment managers.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Assumption of Contracts and Warranties.
ASSIGNOR: ASSIGNEE:
_____________________________ ______________________________
_____________________________ ______________________________
By: By:
--------------------------------- --------------------------------
Authorized Representative Title:
--------------------------------
Dated: Dated:
------------------------------ --------------------------------
2
EXHIBIT A
Legal Description
3
EXHIBIT B
-----------
Contracts
A.T. BUILDERS
BFI
BERWYN GLASS
XXXXX ELECTRICAL CONTRACTORS
XXXXXXX GLASS COMPANY, INC.
CONTROLLED ENVIRONMENTS
CROWN CONTRACTORS, INC.
XXXXXX X. XXXXX, INC.
XXXXXXX BROTHERS COMPANY
DURASEAL, INC.
XXXXXXXX
FIDELITY ALARM COMPANY
XXXXXXXXX EXCAVATING, INC. (GEI)
GUARDIAN ALARM SYSTEMS
HONEYWELL
MOON LANDSCAPING
XXXXXX SPRINKLER
PENNTEX CONSTRUCTION COMPANY
PHOENIX MECHANICAL, INC.
XXXXX XXXXXXXX XXXXX ASSOCIATES
XXXXXXXXXX HAULING CO.
SECURITY ELEVATOR COMPANY
SYSTEMATIC ROOFING ANALYSIS
TELEPHONE DIAGNOSTIC SERVICES, INC.
TERMINIX INTERNATIONAL CO.
VECTORDYNE
XXXXX XXXXX PLUMBING
4
Schedule 8.6.6
ASSIGNMENT OF INTANGIBLES
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLES ("Assignment") dated
as the dates of execution set forth below, but effective as of the Conveyance
Date (as herein defined), is
between____________________________________________________________,
("Assignor") and ________________, a ___________________ ("Assignee").
A. Assignor and Assignee have entered into an Agreement of Purchase
and Sale with an Effective Date of ______________, 1998 (the "Agreement"),
pursuant to which Assignee agreed to purchase Assignor's interest in the real
property legally described on Exhibit A attached hereto (the "Property"), on
the terms and conditions contained therein.
B. Whereas the execution and delivery of this Assignment is a
condition precedent to the purchase of the Property by the Assignee.
ACCORDINGLY, the parties hereby agree as follows:
1. As of the date on which the Property is conveyed to Assignee
pursuant to the Agreement (the "Conveyance
Date")[SHOULD BE THE DAY FOLLOWING CLOSING], Assignor hereby assigns to
Assignee all of its right, title, and interest in and to the following:
(i) All licenses, permits, certificates of occupancy, approvals,
dedications, subdivision maps or plats and entitlements issued, approved
or granted by federal, state or municipal authorities or otherwise in
connection with the Property and its renovation, construction, use,
maintenance, repair, leasing and operation; and all licenses, consents,
easements, rights of way and approvals required from private parties to
make use of utilities, to insure pedestrian ingress and egress to the
Property and to insure continued use of any vaults under public
rights-of-way presently used in the operation of the Property.
(ii) any trade style or trade name used in connection with the
Property; and,
(iii) all correspondence with the tenants under tenant leases, all
booklets and manuals relating to the maintenance and operation of the
Property.
The foregoing are collectively referred to herein as the "Intangibles".
2. Assignor agrees to assume full responsibility for its obligations
under the Intangibles accruing on or prior to the Conveyance Date and
Assignor agrees to defend, indemnify and hold Assignee harmless from any
claims, liabilities or costs arising from
Assignor's failure to perform said obligations, provided that Assignee makes
a claim hereunder on or before one (1) year following the Conveyance Date.
3. Assignee assumes full responsibility for all obligations of the
owner of the property accruing under the Intangibles from the day after the
Conveyance Date and Assignee agrees to defend, indemnify and hold Assignor
and its predecessors in title harmless from all claims, liabilities or costs
arising from Assignee's failure to perform said obligations.
4. This instrument may be executed in counterparts.
5. The obligations of Assignor contained herein are intended to be
binding only on the property of the Assignor and shall not be personally
binding upon, nor shall any resort be had to the private properties of, any
of the investment managers of Assignor, or any general partners thereof, or
any employees or agents of the investment managers
IN WITNESS WHEREOF, the parties have executed this Assignment of
Intangibles.
ASSIGNOR: ASSIGNEE:
_____________________________ ________________________________
_________________________________, ________________________________
By: By:
-------------------------------- --------------------------------
Authorized Representative
Title:
--------------------------------
Dated: Dated:
-------------------------------- --------------------------------
2
EXHIBIT A
Legal Description
3
Schedule 8.6.8
XXXX OF SALE
_________________________________________________________________
("Seller"), in consideration of Ten and No/100 Dollars and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby sells, transfers, assigns and sets over unto
__________________ ("Purchaser"), all of its right, title and interest in and
to any and all personal property, which personal property is owned by Seller
and located on the real estate legally described on Exhibit A attached hereto
(the "Personal Property"), including, but not limited to, the Personal
Property listed on Exhibit B.
Seller hereby represents and warrants to Purchaser that Seller is the
absolute owner of the Personal Property free and clear of all liens, charges
and encumbrances, and that Seller has full right, power and authority to sell
the Personal Property and to make this Xxxx of Sale. All warranties of
quality, fitness and merchantability are hereby excluded.
The obligations of Seller contained herein are intended to be binding
only on the property of the Seller and shall not be personally binding upon,
nor shall any resort be had to the private properties of, any of the
investment managers of Seller, or any general partners thereof, or any
employees or agents of the investment managers
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the ___
day of _______, 1998, but effective on the date on which the Property is
conveyed by Seller to Purchaser.
_______________________________
_______________________________
By:___________________________
Authorized Representative
STATE OF _________ )
) SS
COUNTY OF _______ )
The undersigned, a Notary Public in and for said County in the
State aforesaid, DOES HEREBY CERTIFY that ________________, authorized
representative of
_________________________________________________________________, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such authorized representative, appeared before me
this day in person and acknowledged that __he, being duly authorized, signed,
sealed and delivered the said instrument as h___ free and voluntary act, and
as the free and voluntary acts of said corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and Notarial Seal this _____ day of
______________, 1998.
_______________________
Notary Public
My Commission Expires:
____________________, 19___
2
EXHIBIT A
Legal Description
3
EXHIBIT B
-------------
Personal Property
NUMBER ITEM DESCRIPTION
------ -------------------------- ----------------------------------
2 METAL CABINETS ASSORTED PAINT & SUPPLIES, DROP
CLOTHES
1 METAL FILE CABINET ELECTRICAL SUPPLIES
1 LARGE METAL SHELF ASSORTED PLUMBING SUPPLIES
2 SMALL METAL SHELVES ASSORTED DOOR CLOSURES & BALLAST
ASSORTED DROP CLOTHES & COVE BASE
1 WOODEN SHELF AT WORK BENCH ASSORTED NUTS & BOLTS, WASHERS, COFFEE
CANS & SUPPLIES
2 4 FT. STEP LADDERS WOOD & ALUMINUM
2 PUSH BROOMS
1 WORK BENCH & VISE UNDER WORK BENCH-ASSORTED EMPTY PAINT
BUCKETS & DOOR KNOBS & OTHER SUPPLIES.
HAND SOAP DISPENSER PARTS.
2 WET MOPS & BUCKETS
2 CASES F40CW LIGHT BULBS - 4 FT.
1 CASES 8 FT. LIGHT BULBS
1 24 FT. EXTENSION LADDER FIBERGLASS
1 6 FT. STEP LADDER WOOD
2 10 FT. STEP LADDER 1-WOOD, 1-FIBERGLASS
1 8 FT. STEP LADDER
2 SECTIONS OF RUBBER HOSE
ASSORTED BELTS FOR AIR
HANDLERS
1 CASE FILTERS FOR WALL FAN UNITS
1 PAINT SPRAYER
2 XXXXX
1 POST HOLE DIGGER
4
NUMBER ITEM DESCRIPTION
------ -------------------------- ----------------------------------
1 ICE CHOPPER
ASSORTED P.V.C. PIPE
1 SET OF WOODEN TRUSSES
6 5 GALLON CANS ASSORTED PAINTS
6 ELECTRIC MOTORS
(UNDER AIR HANDLER #3)
1 WEED XXXXXX
1 SCAFFOLD
RUBBER CONES
PAINT THINNERS
1 KEYSCAN LOCK SYSTEM COMPUTERIZED SYSTEM TO MONITOR LOCKING
AND UNLOCKING OF DOORS. KEYS ISSUED TO
SELECTED TENANTS
5
Schedule 8.6.10
SELLER'S CLOSING CERTIFICATE
THIS CLOSING CERTIFICATE is made as of the ___________ day of
_______________________, 1998, by and between
________________________________ ______________________ ("Seller"), to and
in favor _____________________________________________________________, a
__________ ("Purchaser"), under and pursuant to that certain Agreement of
Purchase and Sale by and between Seller and __________, with an Effective
Date as defined therein (the "Agreement"), for the purchase and sale of that
certain Property situated in the _________, _______ County, ____________ (as
defined in the Agreement).
Pursuant to Paragraphs 5.3 and 8.6.10 of the Agreement and except
as disclosed on Exhibit A attached hereto and made a part hereof, Seller
hereby reconfirms, remakes and rewarrants to Purchaser as of the date hereof
each of the representations, warranties and covenants given by Seller
contained in Paragraph 5.1 of the Agreement in the same manner as such
representations, warranties and covenants were given in the Agreement, each
of which is incorporated herein and made a part hereof by this reference.
Except as modified hereby, Seller hereby confirms that each of said
representations, warranties and covenants are true and accurate in all
material respect as of the date hereof. Seller's reconfirming, remaking and
rewarranting of its representations, warranties and covenants is subject to
the limitations set forth in Paragraph 5.3 of the Agreement.
The obligations of Seller contained herein are intended to be
binding only on the property of the Seller and shall not be personally
binding upon, nor shall any resort be had to the private properties of, any
of the investment managers of Seller, or any general partners thereof, or any
employees or agents of the investment managers
IN WITNESS WHEREOF, Seller has executed this Closing Certificate on
the day and year first above written, but effective upon the date on which
the Property is conveyed by Seller to Purchaser.
SELLER:
_____________________________
_____________________________
By:
-----------------------------
Authorized Signatory
EXHIBIT A
Disclosure
Schedule 9.7.2
NEW LEASE APPROVAL FORM
Property: ________________________________________________________________
Tenant: ________________________________________________________________
Square Feet:______________________________________________________________
Location: _________________________________
Anticipated Lease Commencement: __________________________________________
Anticipated Rent Commencement: __________________________________________
Term: ___________________________________________________________________
FREE RENT: _______________________________________________________________
Rental Rate: ___________Period _____________ PSF Rate __________Annual Income
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Note: Above rental rates do not include Tenant Electric
Tenant Improvement Allowance: PSF _________ Amount ___________T.I.
Mechanism: ______________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
OPTIONS: _______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Initial Commission:
________ BROKER___________________% ______________________Amount
______________________________________________________________________
______________________________________________________________________
Broker Future Entitlements:___________________________________________
______________________________________________________________________
______________________________________________________________________
Other Comments:_______________________________________________________
______________________________________________________________________
______________________________________________________________________
Approved By: ____________________________
Schedule 9.26
SEC COMPLIANCE REPRESENTATION LETTER
(Accountant Name & Address)
Dear Sirs:
In connection with your audit of the statement of revenues and certain
expenses of the Properties situated in the City of King of Prussia,
Xxxxxxxxxx County, Pennsylvania, commonly known as a portion of the King of
Prussia Business Center (the "Property") for the year ended December 31,
199__ (the "Operating Statement"), prepared for the purpose of complying with
the rules and regulations of the Securities and Exchange Commission, the
undersigned ("Seller") makes the following limited, qualified and specific
representations, which are true to Seller's knowledge (as such phrase is
hereinafter defined):
1. Seller has made available or caused its property manager to make
available to Brandywine Operating Partnership, L.P. ("Buyer"), or
its representatives, Seller's financial records and files in
Seller's actual possession pertaining to the operation of the
Property (such records and files being collectively referred to
herein as the "Files").
2. Except as disclosed in the Files, Seller is not aware of any events
or transactions which have occurred since December 31, 199_ and
prior to the date hereof that would have a material effect on the
Operating Statement for the period then ended.
3. We recognize that, as the Owner of the Property, we are responsible
for directing the fair presentation of the Operating Statement. We
believe the Operating Statement is fairly presented in conformity
with generally accepted accounting principals.
As used in this letter, the words "Seller's knowledge" shall be deemed
to mean, and shall be limited to, the actual (as distinguished from implied,
imputed or constructive) knowledge of Xxxxxx X. Xxxxxxxxxxx and Xxxxxxx
Xxxxxxxxxx without such person having any obligation to make an independent
inquiry or investigation.
Notwithstanding any provision in this letter to the contrary, Seller is
executing this letter solely as an accommodation to and at the request of
Buyer and, except to the extent Seller is liable to Buyer for representations
and warranties expressly set forth in that certain Agreement of Purchase and
Sale, dated _________ 1998, by and between Seller and Buyer (the "Sale
Agreement'), this letter is subject to the condition that Seller shall not be
liable or responsible to Buyer, any parent, subsidiary or other affiliate of
Buyer, or any officer, director, employee, agent, representative,
shareholder, partner or principal of Buyer or any such parent, subsidiary or
other affiliate thereof or any accountant or other professionals engaged by
or on behalf of any of the foregoing, including, without limitation,
[accountant](all of the foregoing being collectively referred to herein as
the "Buyer Parties"), as a result of the fact that any of the statements made
herein are in any way inaccurate, untrue or incorrect. By the acceptance of
this letter, except for rights and remedies that Buyer may have under the
Sale Agreement with respect to representations and warranties expressly set
forth in the Sale Agreement, each of the Buyer Parties shall be deemed to
have waived any and all rights and remedies that any of them may have against
Seller, whether at law or in equity, as a
4
result of the fact that any of the statements made herein are in any way
inaccurate, untrue or incorrect.
Seller has executed this letter for the limited purposes set forth
herein, and for the use of [accountant] only. No other parties may rely on
the statements set forth herein.
Very truly yours,
RREEF USA FUND-I,
a California group trust
By: RREEF America L.L.C.,
a Delaware limited liability company
By:_______________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Its Authorized Representative
By: __________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Its Authorized Representative
5
EXHIBIT A
Legal Description of Property
EXHIBIT A-1
Descriptive List of the Property
King of Prussia Industrial Park, King of Prussia, Pennsylvania
1. 000 Xxxx Xxxxxx
2. 000 Xxxx Xxxxxx
3. 000 Xxxxx Xxxxxx
4. 000 Xxxxx Xxxxxx
5. 000 Xxxxx Xxxxxx
6. 000 Xxxxxxxxx Xxxx
7. 000-000 Xxxxxxxxx Xxxx
0. 000 Xxxxxxxxx Xxxx
9. 000 Xxxxx Xxxxxx
10. 000 Xxxxx Xxxxxx
11. 000 Xxxxx Xxxxxx
12. 000-000 Xxxxx Xxxxxx
13. Allendale Road Development Site
