Exhibit 10.3
AGREEMENT OF PURCHASE AND SALE
between
Brandywine Operating Partnership, L.P., Purchaser,
and
RREEF MidAmerica East-V Six, Inc., Seller
000 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxx
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. . . . . . . . . . . . . . . . . . . . . .8
6.2 Estoppel Letters . . . . . . . . . . . . . . . . . . . . .8
6.3 Representations and Warranties . . . . . . . . . . . . . .9
6.4 Seller Performance . . . . . . . . . . . . . . . . . . . .9
7. Other Agreements.. . . . . . . . . . . . . . . . . . . . . . . . . .9
8. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.1 Closing of Sale. . . . . . . . . . . . . . . . . . . . . 10
8.2 Prorations; Adjustments. . . . . . . . . . . . . . . . . 10
8.3 Proration of Service Charges.. . . . . . . . . . . . . . 11
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. . . . . . . . . . . . . . . . . . . . . 14
9.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 14
9.5 Parties Bound. . . . . . . . . . . . . . . . . . . . . . 16
9.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . 16
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9.7 Continuation Until Closing; Leasing. . . . . . . . . . . 16
9.8 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . 16
9.9 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . 17
9.10 Remedies for Non-Performance.. . . . . . . . . . . . . . 17
9.11 Brokers Commission.. . . . . . . . . . . . . . . . . . . 17
9.12 Survival of Covenants. . . . . . . . . . . . . . . . . . 17
9.13 Seller's Investment Committee Approval.. . . . . . . . . 17
9.14 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.15 Entry and Indemnity. . . . . . . . . . . . . . . . . . . 18
9.16 Release. . . . . . . . . . . . . . . . . . . . . . . . . 18
9.17 Confidential Information. . . . . . . . . . . . . . . . 19
9.18 Calculation of Time Periods. . . . . . . . . . . . . . . 19
9.19 Entire Agreement.. . . . . . . . . . . . . . . . . . . . 19
9.20 Severability.. . . . . . . . . . . . . . . . . . . . . . 20
9.21 Facsimile Signatures.. . . . . . . . . . . . . . . . . . 20
9.22 Further Assurances.. . . . . . . . . . . . . . . . . . . 20
9.23 Offer. . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.24 Seller Exculpation Clause. . . . . . . . . . . . . . . . 20
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 MIDAMERICA EAST-V SIX, INC., a
Delaware Corporation ("Seller") agrees to sell, that certain improved real
property, hereinafter referred to as the "Property", situated in Bucks
County, Commonwealth of Pennsylvania, legally described on Exhibit A attached
hereto and made a part hereof, consisting of a single parcel of real estate
improved with a building commonly known as 000 Xxxxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxxxx, 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); 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 Two Million Eight Hundred Thousand Dollars ($2,800,000.00), 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 under the KOP
Agreement (defined in Paragraph 7) 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.
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 twelve industrial and office buildings and a parcel
of vacant land in King of Prussia Business Park, King of Prussia, Pennsylvania,
pursuant to that certain Agreement of Purchase and Sale of even date herewith
("KOP Agreement") between Purchaser, as purchaser, and RREEF USA Fund-I ("KOP
Owner"), as seller, and (b) the purchase by Purchaser or an 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 Agreement"; the KOP Agreement and the
741Agreement collectively the "Other Agreements") between Purchaser, as
purchaser, and RREEF MidAmerica/East Fund-IV ("741 Owner"; the KOP Owner and the
741 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 arrears and
not yet billed to tenants), will reduce the credit to Purchaser for such items
(i.e., no
10
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 which it receives to Purchaser and Purchaser will pay the same.
Seller will remit to Purchaser its proportionate share immediately upon demand.
11
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, other than those designated by Purchaser for
termination by notice to Seller not less than thirty (30) days prior to Closing;
12
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;
8.7.6 all other documents, instruments or writings which may
be reasonably required to consummate the transactions contemplated herein.
13
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 $250,000
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:
If to Purchaser: Brandywine Realty Trust
00
Xxxxxxx Xxxxxx 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 MidAmerica East-V Six, Inc.
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 MidAmerica East-V Six, Inc.
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 that no notice of a change of address or facsimile number will be
effective until actual receipt of such notice.
15
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.
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
16
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, 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
17
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, 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,
18
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.
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,
19
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 MIDAMERICA EAST-V SIX, INC. BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: RREEF America L.L.C., its
investment advisor By: Brandywine Realty Trust, its
authorized general partner
By: --------------------------- By: ---------------------------
Authorized Representative Xxxxxx X. Xxxxxxx
President and Chief Executive
Officer
Dated:-------------------------- 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. A 1996 Environmental Audits was prepared by ATC Environmental,
Inc. for the Property. This Audit has 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 Audit.
2. Possible building code violations disclosed by Seller to Purchaser
by letter dated January 21, 1997 from Xxxxxxxx X. Xxxx to Xxxx X. Xxxxxxxx.
3. Xxxx Atlantic has requested an easement for laying underground
telephone lines, as disclosed by Seller to Purchaser by letter dated January
21, 1997 from Xxxxxxxx X. Xxxx to Xxxx X. Xxxxxxxx.
Schedule 5.1.5
Service Contracts
A.T. BUILDERS
CROWN CONTRACTORS, INC
XXXXXXXX, INC.
XXXXXX SPRINKLER CO.
XXXXXXX XXXXX LANDSCAPING
PHOENIX MECHANICAL INC.
XXXXXX FIRE PROTECTION
Schedule 5.1.10
Rent Roll
Schedule 5.1.12
Future Leasing Commissions, Tenant Improvements and Free Rent
(none)
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 XXXXXXXXXX EAST-V SIX, INC., A Delaware corporation
(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 MIDAMERICA EAST-V SIX,
INC., a Delaware corporation
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 MidAmerica East-V Six, Inc., a Delaware
corporation, 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
CROWN CONTRACTORS, INC
XXXXXXXX, INC.
XXXXXX SPRINKLER CO.
XXXXXXX XXXXX LANDSCAPING
PHOENIX MECHANICAL INC.
XXXXXX FIRE PROTECTION
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
(none)
4
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 of
______________________, 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:
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By:
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Authorized Signatory
EXHIBIT A
Disclosure
Schedule 9.7.2
New Lease Approval Form
Property:
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Tenant:
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Square Feet:
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Location:
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Anticipated Lease Commencement:
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Anticipated Rent Commencement:
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Term:
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FREE RENT:
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Rental Rate: Period PSF Rate Annual Income
------------------- --------------- ------------------
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Note: Above rental rates do not include Tenant Electric
Tenant Improvement Allowance: PSF Amount
--------------------- ----------------
T.I. Mechanism:
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OPTIONS: --------------------------------------------------------------------
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Initial Commission:
BROKER % Amount
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Broker Future Entitlements:
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Other Comments:
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Approved By:
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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 Property situated in the Bucks County, Pennsylvania, commonly
known as 000 Xxxxxxx Xxxxx (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 result of the fact that any of the
statements made herein are in any way inaccurate, untrue or incorrect.
4
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 MIDAMERICA EAST-V SIX, INC.,
a Delaware corporation
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
