Exhibit 10.5
PURCHASE OPTION AGREEMENT
THIS AGREEMENT is made as of the 3rd day of November, 1997, by and
between TOWER BRIDGE LAND HOLDING ASSOCIATES II, a Pennsylvania limited
partnership ("Seller") and FIVE TOWER BRIDGE ASSOCIATES, a Pennsylvania
limited partnership ("Buyer").
WITNESSETH
A. Seller is the owner in fee simple of title to certain tracts of
land located in the Borough of West Conshohocken, County of Xxxxxxxxxx,
Commonwealth of Pennsylvania, as more fully described on Exhibit "1" attached
hereto and incorporated herein by reference, together with the improvements
thereon (collectively, the "Property"). For purposes of this Agreement,
"Property" shall also include all of the Seller's right, title and interest
in and to all easements, rights-of-way, privileges and appurtenances thereto,
property and property rights to be assigned or transferred pursuant to the
"Terms and Conditions of Sale" attached hereto as Exhibit "2" and made a part
hereof (the "Terms and Conditions of Sale").
B. Seller desires to sell and grant to Buyer, and Buyer desires to
purchase and receive from Seller, a right and option to purchase the Property
for the purchase price and upon and subject to the terms and conditions
hereinafter set forth.
NOW THEREFORE, for and in consideration of the payments, covenants
and agreements hereinafter specified, the parties hereto, intending to be
legally bound hereby, covenant and agree as follows:
1. Grant of Option. Seller hereby grants to Buyer or Buyer's
assignee(s) or nominee(s) a right and option ("Option") to purchase the
Property upon and subject to the terms and conditions hereinafter set forth
and as set forth in the Terms and Conditions of Sale.
2. Term of Option.
(a) The Option to purchase the Property granted hereunder
shall commence on the date entered in the caption of this Agreement (the
"Execution Date") and shall, subject to Section 2(b) and Section 8 hereof,
extend thereafter until 11:59 P.M. on the date which is the day preceding the
first anniversary of the Execution Date (such date, as the same may be
extended as provided for herein, the "Expiration Date"). If Buyer shall not
have exercised the Option in the manner provided in Paragraph 3 hereof as of
the Expiration Date, then the Option shall thereupon terminate and be null
and void, and neither party hereto shall have any further rights or
obligations hereunder. The period from the Execution Date through the day
preceding the first anniversary of the Execution Date is hereinafter referred
to as the First Option Year.
(b) Notwithstanding anything to the contrary contained herein,
if Buyer pays the Second Year Option Payment, as hereinafter defined, on or
before the Expiration Date provided for under subsection 2(a) hereof, the
Expiration Date of this Option shall be extended to be the day preceding the
second anniversary of the Execution Date. The period from and after the day
preceding the first anniversary of the Execution Date through the day
preceding the second anniversary of the Execution Date is hereinafter
referred to as the "Second Option Year."
3. Exercise of Option. To exercise the option, Buyer shall so
notify Seller in writing (in the manner provided in Paragraph 1 of the Terms and
Conditions of Sale) not later than the Expiration Date, as the same may be
extended as herein set forth and, if such exercise is prior to the payment of
the Second Year Option Payment, deposits the Deposit as provided in such
paragraph 1 of the Terms and Conditions of Sale. Upon such written notice, this
Agreement shall become an Agreement of Sale and Purchase for the Property,
binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns, and Seller shall sell and convey the
Property to Buyer,
and Buyer shall purchase and accept the Property from Seller, upon the terms
and conditions set forth herein and in the Terms and Conditions of Sale.
4. Option Payment.
(a) In consideration of the Option granted hereunder by
Seller, Buyer hereby agrees to pay to Seller (the "First Year Option
Payment") all Carrying Costs, as hereinafter defined, for the First Option
Year. Upon execution hereof, Buyer shall pay Seller the sum of Forty-Eight
Thousand Dollars ($48,000) on account of the First Year Option Payment, which
shall be allocated to the estimated Carrying Costs as set forth in Exhibit
"3" hereto. As such Carrying Costs are incurred, the First Year Option
Payment by Buyer shall be adjusted in the manner set forth in Section 5 below.
(b) If Buyer desires to extend the Expiration Date of this
Option from the day preceding the first anniversary of the Execution Date to
the day preceding the second anniversary of the Execution Date, Buyer shall
pay to Seller, prior to the Expiration Date set forth in Subsection 2(a), an
amount equal to Three Hundred Thousand Dollars ($300,000.00) (the "Second
Year Option Payment"). Seller shall be responsible to pay Carry Costs for
the Second Option Year. The Second Year Option Payment, less the Carrying
Costs for the Second Option Year, shall be credited against the Purchase
Price for the Property if Buyer purchases the Property after payment of the
Second Year Option Payment.
(c) The capitalized term "Option Payments", as used herein,
shall mean the First Year Option Payment and the Second Year Option Payment,
collectively.
(d) The Option Payments shall not be refundable except as
expressly set forth in this Agreement and in the Terms and Conditions of
Sale. The Option Payments shall only be credited against the Purchase Price
for the Property to the extent set forth herein.
5. Taxes and Insurance.
(a) The term "Carrying Costs", as used herein, shall mean all
Taxes, Insurance and Maintenance Costs, as hereinafter defined.
(b) The term "Taxes", as used herein, shall mean all ad
valorem real property taxes which are levied or assessed against the Property
by the school district, borough and county in which the Property is located,
and any other taxes however described which are levied or assessed against
the Property or its owner in addition to or in lieu of a general property tax
or increase in general property tax and including any special taxing district
assessments or other municipal impositions for security, police or other
municipal services. In no event shall Taxes refer to any corporate franchise
tax, estate, inheritance, succession or capital levy imposed upon Seller or
any of its constitute partners or any income, excess profits or revenue tax
or any other tax, assessment, charge or levy based upon or measured by the
net income or capital stock of Seller or any of its constituent partners.
(c) The term "Insurance", as used herein, shall mean the
following insurance coverages with respect to the Property: general
liability coverage, including broad form endorsement, on an occurrence basis,
in combined policy limits of One Million Dollars ($1,000,000.00) per person
for bodily injury and One Hundred Thousand Dollars ($100,000) for property
damage with respect to the Property, carried with Seller's current insurance
companies or such other insurance companies as are selected by Seller.
(d) The term "Maintenance Costs", as used herein, shall mean the
actual, documented costs of maintaining the Property, including, but not limited
to, landscaping, snow plowing and related costs, any sums due under Sections 4
and 5 of the Declaration of Easements and Protective Covenants (the
"Declaration") as recorded with the Xxxxxxxxxx County Recorder of Deeds in Deed
Book 5076, page 2342, and any interest, but not principal, due the Redevelopment
Authority of the County of Xxxxxxxxxx, Pennsylvania under the loan in the
original principal amount
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of $225,000 secured by the mortgage recorded in Mortgage Book 7577, page 151
(the "RDA Loan"), as the same may be modified or extended (provided, however,
the principal amount of the RDA Loan shall not be increased).
Notwithstanding the foregoing, Buyer shall have no obligation to make or pay
for any capital repair, replacement or improvements.
(e) Seller represents that the estimated Carrying Costs for
the First Option Year will be approximately $48,000, as set forth on Exhibit
"3" attached hereto.
(f) If during the First Option Year, Seller determines in good
faith that the estimated Carrying Costs set forth in Exhibit "3" hereto will
exceed $48,000, Seller shall give written notice thereof to Buyer, specifying
the amount of such excess and Buyer shall have a period of thirty (30) days
thereafter to pay the amount of such excess to Seller. The amount of such
excess shall be an integral part of the First Year Option Payment and, if
Buyer fails to pay such sum to Seller within thirty (30) days following
receipt of such notice, Buyer shall be in default hereunder and, if such
default shall continue for five (5) days following written notice thereof
given to Buyer by or on behalf of Seller, this Agreement and the rights of
Buyer hereunder shall terminate absolutely. Within thirty (30) days
following the end of the First Option Year (or the Closing Date, if the
Closing Date occurs during the First Option Year), Seller shall send an
accounting of Carrying Costs to Buyer, together with a repayment of any
excess of the First Year Option Payments over the actual Carrying Costs for
the First Option Year, or an invoice for any deficiency of the actual
Carrying Costs for the First Option Year over the First Year Option Payments.
If Buyer shall fail to pay any such deficiency within thirty (30) days
following receipt of Seller's invoice therefor, Buyer shall be in default
hereunder and, if such default shall continue for five (5) days after written
notice thereof given to Buyer by or on behalf of Seller, this Agreement and
Buyer's rights hereunder shall terminate absolutely.
6. Access to the Property. Commencing on the Execution Date and
continuing thereafter until the earlier of the completion of Closing under
the Terms and Conditions of Sale, the Expiration Date or the termination of
this Agreement, Seller agrees that Buyer and its agents, employees and
contractors shall have access to and the right of entry upon the Property and
any part thereof for the purpose of making surveys, plans, soil tests and
borings, water tests and other engineering and environmental tests and
studies, as Buyer may reasonably require, in all cases using reasonable care
to avoid damage to the Property. Buyer shall indemnify and hold harmless
Seller from any injury to persons or damage to property arising from the acts
or omissions of Buyer, its agents, employees or contractors in making any
such surveys, plans, tests or studies on the Property. In addition,
immediately following execution of this Agreement, Seller will deliver to
Buyer, without charge, all plans, maps, surveys, descriptions, title reports,
environmental assessments and engineering reports respecting the property, if
any, presently in the possession of Seller, which material shall be returned
to Seller if Buyer does not elect to purchase the Property hereunder. During
the term of this Agreement, Seller shall provide to Buyer such additional
information in Seller's possession with respect to the Property as Buyer may
request from time to time.
7. Submission and Application. Commencing on the Execution Date
and continuing thereafter until the earlier of the completion of Closing, the
Expiration Date or the termination of this Agreement, Buyer shall have the
right to prepare and submit applications, plans and other materials for
approval by governmental authorities having jurisdiction over the Property
and Buyer's plans for the development, improvement and operation of the
Property, and for the provision to the Property of water, sewer, electric and
other utility or governmental services to the Property for Buyer's proposed
development. Seller agrees, but without expense to Seller, to cooperate with
Buyer and Buyer's efforts to obtain all necessary or desirable subdivision,
zoning, site plan, building and environmental approvals, permits and waivers
or approvals, permits, licenses, variances and any other governmental action
or approvals with respect to the Property and Buyer's proposed development
thereon during the period between the Execution Date and Closing, the
Expiration Date or the earlier termination of this Agreement, and Seller
agrees, at no cost to Seller, to execute and join in (and voice no objections
to) any applications to any governmental bodies for any such approvals,
permits, licenses, waivers or variances deemed necessary or desirable by
Buyer. Notwithstanding the foregoing, Buyer shall not agree to make any
public improvements or make any payments to governmental authorities in
connection with the future development of the Property which are or would be
binding on Seller or the Property if Buyer fails to exercise its Option
hereunder, or having exercised its Option, fails to close hereunder.
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8. Other Offers; Right of First Refusal. It is the anticipation
of the parties hereto that Seller shall not actively market the Property to
third parties during the First Option Year or the Second Option Year.
Notwithstanding the foregoing, if, prior to Buyer's exercise of the Option,
Seller receives a Bona Fide Third Party Offer to purchase the Property which
Seller desires to accept, Seller shall so notify Buyer and deliver a copy of
such Bona Fide Third Party Offer to Buyer. Simultaneously with such notice,
Seller shall offer to Buyer the right to purchase the Property on the terms
and conditions contained in the Bona Fide Third Party Offer.
Within fifteen (15) days after receipt of notice from Seller of
the Bona Fide Third Party Offer, Buyer may: (a) exercise the Option pursuant
to the terms and conditions set forth herein,(b) deliver to Seller a notice
agreeing to purchase the Property for the terms and upon the same conditions
contained in the Bona Fide Third Party Offer or (c) decline either to
exercise the Option or agree to purchase the Property upon the same terms and
conditions as the Bona Fide Third Party Offer. If Buyer gives notice under
clause (b) above, Seller and Buyer shall execute an Agreement of Sale for the
Property pursuant to the terms and conditions of the Bona Fide Third Party
Offer (with such modifications as are necessary to reflect the names of the
parties and the passage of time since the presentation of the Bona Fide Third
Party Offer) and Buyer shall no longer have any right to acquire the Property
in accordance with the terms of Sections 1-7 hereof; provided, however, that
in such event, if the Second Year Option Payment has been paid, the Second
Year Option Payment, less Carrying Costs during the Second Option Year, shall
nevertheless be credited to the purchase price payable under the terms of the
Bona Fide Third Party Offer in the same manner as such payment would have
been credited to the Purchase Price if the Option had been exercised and this
Agreement shall terminate and be of no further force and effect.
If Buyer does not elect to purchase the Property under either
clause (a) or clause (b) above within such fifteen (15) day period, Buyer's
rights under this Agreement shall terminate (except as set forth below) and
Seller shall have the right to sell the Property upon the terms and
conditions contained in the Bona Fide Third Party Offer free an clear of this
Agreement and Buyer's Option hereunder; provided, however, that if closing
upon such Bona Fide Third Party Offer shall occur following the payment of
the Second Year Option Payment, Seller shall repay to Buyer an amount equal
to the Second Year Option Payment theretofore paid by Buyer to Seller, less
Carrying Costs to the date of execution of the Agreement of Sale with the
Buyer under the Bona Fide Third Party Offer (the "Third Party Agreement of
Sale"). If Seller does not complete the sale of the Property on the terms
and conditions and in accordance with the Bona Fide Third Party Offer within
the lesser of the period set forth in the Third Party Agreement of Sale or
one hundred eighty (180) days following the date of expiration of this first
refusal as set forth in this paragraph (such time period, the "Lock Out
Period"), the right of Buyer to exercise the Option as set forth in Sections
1 through 7 above shall be reinstated and be exercisable by Buyer, and the
right of first refusal contained in this Section 8 shall be reinstated and
shall apply with respect to any subsequent Bona Fide Third Party Offer to
purchase the Property during the balance of the First Option Period and the
Second Option Period, as set forth herein; provided, however, if the time to
exercise or extend the Option occurred during the Lock Out Period, then Buyer
shall have until thirty (30) days following the expiration of the Lock Out
Period in which to exercise the expired Option or to extend the Option, as
the case may be.
The term "Bona Fide Third Party Offer," as used above, shall
mean an arms-length offer, presented in the form of an agreement of sale
containing all the terms and conditions, including, but not limited to, the
purchase price and other consideration receivable by either party, which
Seller would be willing to accept, executed by the purchaser thereunder,
which purchaser shall be an entity which is not owned or controlled by, in
whole or in part, directly or indirectly, or under common ownership or
control with, in whole or in part, directly or indirectly, Seller or any of
its constituent general partners.
9. Covenants. Seller covenants that during the term of this
Agreement, Seller shall:
(a) Maintain the Property in good condition and repair,
reasonable wear and tear alone excepted, and pay, in the normal course of
business, all sums due for work, materials or service furnished or otherwise
incurred in the ownership of the Property prior to Closing.
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(b) Not make or permit to be made any alterations,
improvements or additions on the Property without the prior written consent
of Buyer, unless Seller shall be required to do so by the Declaration of
Easements and Protective Covenants (the "Declaration") by and among Seller,
Tower Bridge Land Holding Associates I ("TBLHAI") and American Society for
Testing and Materials recorded in the Office of the Xxxxxxxxxx County
Recorder of Deeds in Deed Book 5076, page 2342, or by applicable law or
ordinance.
(c) Not enter into any lease or letter of intent to lease with
respect to the Property.
(d) Notify Buyer promptly of the occurrence of any of the
following from and after this date:
(i) receipt of notice of newly filed eminent domain
proceedings or condemnation of or affecting the Property or any portion
thereof;
(ii) receipt of notice from any governmental or
quasi-governmental agency or authority or insurance underwriter relating to
the condition of the Property, or any portion thereof, or setting forth any
requirements with respect thereto; or
(iii) notice of any actual or threatened litigation
against Seller which affects or relates to the Property or any portion
thereof or which may affect Seller's ability to perform its obligations under
this Agreement.
(e) Except for agreements which can be terminated on not more
than thirty (30) days notice, not enter into any other agreements which shall
bind Buyer or the Property after Closing.
(f) Notify Buyer of any tax assessment disputes (pending or
threatened) prior to Closing, and not agree to any changes in the real estate
tax assessment, nor settle, withdraw or otherwise compromise any pending
claims with respect to prior tax assessments, without Buyer's prior written
consent.
10. Representations and Warranties. In order to induce Buyer to
enter into this Agreement, Seller hereby represents and warrants to Buyer:
(a) Seller is a limited partnership duly organized and validly
subsisting under the laws of Pennsylvania. Seller has full power, right
and authority to own its properties, to carry on its business as now
conducted, and to enter into and fulfill its obligations under this
Agreement. Each of the persons executing this Agreement on behalf of
Seller is authorized to do so. This Agreement is the valid and legally
binding obligation of Seller, enforceable against Seller in accordance with
its terms. The execution and delivery of this Agreement and compliance
with its terms will not conflict with or result in the breach of any law,
judgement, order, writ, injunction, decree, rule or regulation, or conflict
with or result in the breach of any other agreement, document or instrument
to which Seller is a party or by which it or the Property is bound or
affected.
(b) Seller holds good and marketable, indefeasible fee simple
title to the Property, free and clear of liens and encumbrances, other than
the lien of the RDA Loan and the Permitted Exceptions, if any. Title to a
portion of the Property may be subject to a Temporary Construction Staging
Easement Agreement and Soil Deposit Easement Agreement in favor of an
affiliate of Buyer named herein.
(c) Seller is not a "foreign person" as such term is defined in
Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended (the
"Code").
(d) There are no outstanding agreements, options, rights of
first refusal, conditional sales agreements or other agreements or
arrangements, whether oral or written, regarding the purchase and sale of
the Property, or which otherwise affect any portion of or all the Property,
except rights among the partners of
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Seller pursuant to Seller's partnership agreement which shall be deemed
waived by the execution of this Agreement by the general partners of Seller.
The representations and warranties of Seller set forth herein shall survive
Closing and delivery of the deed for a period of six (6) months.
Notwithstanding anything in this Agreement to the contrary, if Buyer
discovers prior to Closing that a representation or warranty made herein was
untrue, incorrect or misleading in any respect, such representation or
warranty shall be deemed modified by the information so discovered and Buyer
shall only be entitled to rely on the representation or warranty as so
modified.
11. Insurance. Seller shall, without charge to Buyer except as a
part of the Carrying Costs, cause Seller's insurer to endorse Buyer as an
additional insured on all insurance policies respecting the Property on and
as of the Execution Date and such endorsement shall remain in effect until
the earlier of Closing, the Expiration Date or the termination of this
Agreement, and Seller shall deliver to Buyer, within thirty (30) days
following the Execution Date, a Certificate of Insurance evidencing such
insurance and endorsement.
12. Binding Effect. All of the terms and conditions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns, and it is specifically understood and agreed that Buyer shall have
the right to assign this Agreement and Buyer's rights and interest hereunder.
Buyer shall have the further right to nominate a party to receive title to
the Property or any part thereof at Closing in the event Buyer shall elect to
exercise the Option granted to Buyer hereunder.
13. No Recordation. This Agreement shall not be recorded. Buyer
may file a copy of this Agreement with the Securities and Exchange Commission
if Buyer deems such filing necessary or appropriate to comply with applicable
regulations of the Securities and Exchange Commission.
14. No Recourse to Brandywine Realty Trust. No recourse shall be
had for any of the obligations of Buyer hereunder or for any claim based
thereon or otherwise in respect thereof against any past, present or future
trustee, shareholder, officer or employee of 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 of such liability being expressly
waived and released by Seller.
15. Brokers. Each party hereby represents and warrants to the
other that it has not employed or retained any broker or finder in connection
with the transactions contemplated by this Agreement other than Xxxxxx X.
Xxxxx & Company, pursuant to an Agreement dated as of October 15, 1997, to
whom Buyer alone shall be responsible to pay such fee or commission as may be
due and that neither has had any dealings with any other person or party
which may entitle that person or party to a fee or commission. Each party
shall indemnify the other of and from any claims for commissions by any
person or party claiming such commission by or through the indemnifying party.
16. General Provisions.
(a) Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing,
and shall be deemed effective when (i) sent by nationally-recognized
overnight courier, (ii) facsimile with original following by regular mail, or
(iii) deposited in the United States mail and sent by certified mail, postage
prepaid, addressed as follows:
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If to Buyer, addressed to:
Four Tower Bridge Associates
Four Xxxxxx Tower Associates, Managing Partner
c/o Oliver Xxxxxx Xxxxxx Corporation
One Tower Bridge
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX No. 000-000-0000
with a copy in each instance to:
Xxxxx X. Xxxxxxx, Esquire
Hangley, Aronchick, Xxxxx & Xxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX No. 000-000-0000
and to:
Xxxx X. Xxxxx, Esquire
Pepper, Xxxxxxxx & Xxxxxxx, LLP
3000 Two Xxxxx Square
Eighteenth and Xxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
FAX No. 000-000-0000
If to Seller, addressed to:
Provident Mutual Life Insurance Company
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Vice President, Mortgage
Loans and Real Estate
FAX No. 000-000-0000
and to:
TB Land Associates Limited Partnership
c/o The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Vice President
FAX No. 000-000-0000
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and to:
Tower Bridge Land Holding Associates I
c/o Oliver Xxxxxx Xxxxxx Corporation
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX No. 000-000-0000
with a copy in each instance to:
Xxxxxxxx X. Xxxxx, Esquire
Drinker Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX No. 000-000-0000
and to:
Xxxxxx Xxxx Xxxxxxxx, Esquire
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX No. 000-000-0000
If to Escrow Agent, addressed to:
Lawyers Title Corporation
Xxx Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esquire
FAX No. 000-000-0000
or to such-other address or addresses and to the attention of such other
person or persons as any of the parties may notify the other in accordance
with the provisions of this Agreement.
(b) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(c) Entire Agreement. All Exhibits attached to this Agreement
are incorporated herein and made a part hereof. This Agreement constitutes
the entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit
the scope or intent of the terms of this Agreement.
(d) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the Commonwealth of Pennsylvania.
(e) Tender. Tender of Deed by Seller and of the Purchase
Price by Buyer, are hereby mutually waived.
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(f) Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the parties reflected
hereon as the signatories.
(g) Further Instruments. Seller will, whenever and as often
as it shall be reasonably request so to do by Buyer, and Buyer will, whenever
and as often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent
and purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The
provisions of this Section shall survive the Closing and shall be subject to
all of the terms, conditions and provisions of this Agreement.
(h) Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States
or the Commonwealth of Pennsylvania, the time for such performance will be
extended to the next succeeding business day. Time periods under this
Agreement will exclude the first day and include the last day of such time
period.
17. Consent of Partners. By the execution of this Agreement by the
General Partners of Seller, each of such General Partners hereby consent to
the Option granted hereunder and, upon the exercise of the Option, the sale
of the Property upon the terms and conditions set forth herein as this
Agreement may hereafter be amended in a writing signed by all such General
Partners and such General Partners hereby waive any and all rights which any
of them may have under Seller's Agreement of Limited Partnership, as amended,
or otherwise, to purchase the Property or any part thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
intending to be legally bound hereby, as of the day and year first above
written.
SELLER:
TOWER BRIDGE LAND HOLDING ASSOCIATES, II, a
Pennsylvania limited partnership
By Xxxxxx Tower Land Holding Associates
By Xxxxxx Xxxxxx Xxxxxx Corporation
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
By Provestco, Inc.
By /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
By TB Land Associates
By TB Land Company
By /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
BUYER:
FIVE TOWER BRIDGE ASSOCIATES, a Pennsylvania
limited partnership
By Five Xxxxxx Tower Limited Partnership, a
Pennsylvania limited partnership, managing
general partner
By Five Xxxxxx Tower Corporation, a Pennsylvania
corporation
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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EXHIBIT 1 TO
PURCHASE OPTION AGREEMENT
DESCRIPTION OF PROPERTY
EXHIBIT 2 TO
PURCHASE OPTION AGREEMENT
TERMS AND CONDITIONS OF SALE
-----------------------------
1. MANNER OF EXERCISE. Subject to the provisions of Section 8 of
the Option Agreement, Buyer may exercise the Option by giving Seller written
notice thereof on or before the Expiration Date of the Option, as such
Expiration Date may be extended, together with:
(a) a notification of the time, date (the "Closing Date") and
place of Closing. The Closing Date shall be no earlier than ten (10) days
and no later than the earlier of (i)sixty (60) days following the giving of
such notice or (ii) thirty (30) days following the Expiration Date, as the
same may have been extended, and Closing shall be held at a location within
the five (5) county Philadelphia region; and
(b) if Buyer exercises the Option before the payment of the
Second Year Option Payment, Buyer shall pay to Seller concurrently with the
giving of such notice a good faith deposit (the "Deposit") of $150,000 on
account of the Purchase Price. If Buyer fails to pay the Deposit as provided
herein, Buyer's notice of exercise shall be null and void.
2. PROPERTY BEING SOLD. Seller shall sell, transfer and convey to
Buyer on the Closing Date,
2.1 Real Property. The Property.
2.2 Personal Property. All right, title and interest of
Seller, if any, in all assignable intangible personal property used in
connection with the ownership, development of the Property, including without
limitation, all contract rights, guaranties and warranties of any nature, all
architects', engineers', surveyors' and other real estate professionals'
plans, specifications, certifications, contracts, reports, data or other
technical descriptions, reports or audits relating to the Property
(including, without limitation, all environmental, structural and mechanical
inspection reports) ("Contract Documents"), all state, county and municipal
governmental, quasi-governmental permits, licenses, certificates, and
approvals and correspondence related thereto to be used or which will be
useful in connection with the development of the Property ("Licenses") and
all of Seller's rights, claims, and causes of action if any, to the extent
they are assignable, under any warranties and/or guarantees relating to any
improvements on the Property (hereinafter collectively referred to as
"Personal Property").
2.3 Leases. All right, title and interest of Seller in any
letters of intent to lease any part of the Property (the "Letters of Intent").
2.4 Right to Names. All right, title and interest of Seller,
if any, in and to the name "Five Tower Bridge" (the "Name") and the
non-exclusive right to all printing styles, trademarks and logos used in
connection with the Name; provided, however, Seller shall retain the
non-exclusive right to the name "Tower Bridge" and any variations thereof
other than "Five Tower Bridge".
2.5 FAR. The right to utilize approximately 000,000 xxxxxx
xxxx xx xxxxx xxxx for the gross building area of improvements to be
constructed on the Property (the "FAR"), being the remaining FAR available in
the Tower Bridge Project in West Conshohocken (less the amount, if any, by
which the FAR purchased by Buyer from Tower Bridge Land Holding Associates I
("TBLHAI") exceeds 81,700 square feet of FAR), subject to the requirement
that, if required, Buyer shall join Seller and its affiliates in the
execution of any common or consolidated subdivision plan which allocates FAR
in the manner provided in this Paragraph 2.5.
2.6 Access Easements. Temporary easements for vehicular and
pedestrian access over the bridge and Xxxxxxx Avenue Extension as shown on
the Subdivision Plan until the same have been dedicated to and accepted by
the Borough (the "Access Easements").
2.7 Sewer Rights. The right to use approximately 77,000 GPD
average daily flow of sewer capacity (the "Sewer Allocation") reserved under
the Agreement dated July 18, 1988 by and among the West Conshohocken
Municipal Authority (the "Sewer Authority"), Tower Bridge Associates, Seller,
TBLHAI, Tower Bridge Land Holding Associates III ("TBLHAIII") and Four Falls
Associates ("Four Falls") (the "Sewer Agreement"), subject to the obligation
to pay any unpaid fees allocable to such sewer capacity.
3. PURCHASE PRICE AND MANNER OF PAYMENT.
3.1 Purchase Price. The Purchase Price (the "Purchase Price")
shall be Three Million Dollars ($3,000,000), plus the assumption of the RDA
Loan and the liabilities referred to in Section 8.1.1.5 of these Term and
Conditions of Sale. If TBLHAI has conveyed more than 81,700 square feet of
FAR to Buyer's affiliate pursuant to an Agreement of Sale for Four Tower
Bridge executed concurrently herewith, the Purchase Price for the Property
being sold hereunder shall be reduced by an amount equal to the number of
square feet of FAR sold which is in excess of 81,700 square feet of FAR
multiplied by $14.00.
3.2 Manner of Payment. The Purchase Price, less the Deposit
or the Second Year Option Payment net of Carrying Costs during the Second
Year Option to the Closing Date shall be paid by wire transfer of immediately
available funds on the Closing Date.
4. TITLE. On the Closing Date, Seller shall convey to Buyer good
and marketable fee simple title to the Property subject only to the RDA Loan
and those rights of way, easements, covenants restrictions, and objections to
title (hereinafter "Permitted Exceptions") as exist on the date of this
Option Agreement, which title shall be insurable at regular rates by a
reputable title insurance company ("Title Company") under an ALTA 1970 Form B
(Revised 10/17/70 and 3/30/84) title insurance policy or such other form of
title policy customarily issued by the Title Company ("Title Policy"), with
such endorsements and affirmative insurance reasonably requested by Buyer.
5. POSSESSION. Possession of the Property is to be given to Buyer
on the Closing Date, by delivery of the Deed.
6. CONDEMNATION. If between the date of exercise of the Option
and the Closing Date, all or any portion of the Property is taken by
condemnation or eminent domain or a notice of any condemnation or eminent
domain proceedings with respect to the Property or any part thereof is
received by Seller, then Seller shall within five (5) days thereafter give
notice thereof to Buyer and Buyer shall have the option to (a) complete the
purchase hereunder or (b) if such taking, in Buyer's sole and absolute
discretion, adversely affects the Property, its economic viability or its
potential for development as contemplated by Buyer, terminate this Agreement,
in which event, if previously paid, the Second Year Option Payment less
Carrying Costs or the Deposit paid pursuant to Paragraph 1 of these Terms
Conditions of Sale shall be immediately refunded to Buyer, and this Agreement
shall be null and void. Buyer shall deliver written notice of its election
to Seller within ten (10) days after the date upon which Buyer receives
written notice of such condemnation or eminent domain proceedings. If this
Agreement is not so terminated and Buyer closes hereunder, Buyer shall be
entitled to all awards or damages by reason of any exercise of the power of
eminent domain or condemnation with respect to or for the taking of the
Property or any portion thereof occurring after the exercise of the Option.
Any negotiation for, or agreement to, and all contests of any offers and
awards relating to eminent domain proceedings occurring after the exercise of
the Option shall be conducted with the joint approval and consent of Seller
and Buyer.
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7. EXPENSE ALLOCATIONS.
7.1 Seller's Payments. Seller shall pay no closing costs
(except as provided below).
7.2 Buyer's Payments. Buyer shall pay for all applicable
realty transfer taxes, for Buyer's title examination, and survey (if
obtained), for all recording charges (other than charges related to existing
mortgage financing, if any, which shall be discharged at Closing at Seller's
expense), and for Buyer's title premiums.
7.3 Attorney's Fees. Buyer and Seller shall be responsible
for paying their own attorney's fees in connection with this transaction.
8. CLOSING.
8.1 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
8.1.1 Seller's Documents and Other Items. Seller
shall execute and deliver or cause to be executed and delivered to Buyer in
proper form for recording:
8.1.1.1 Deed. A special warranty deed prepared by
Buyer's counsel in form and substance acceptable to Seller (the "Deed"),
conveying the Property and FAR to Buyer and granting Buyer the Access
Easements, duly executed by Seller for recording. The Deed description shall
be based upon the metes and bounds description attached as Exhibit 1 to the
Option Agreement, unless Buyer requests that Seller convey the Property by
the metes and bounds description shown on a new ALTA survey, if any, obtained
by Buyer, in which event the Property shall be so conveyed.
8.1.1.2 Original Licenses, Contract Documents and
Other Personal Property. All original Licenses, Contract Documents, and
other Personal Property described in Paragraph 2.2 of these Terms and
Conditions of Sale.
8.1.1.3 Assignment of Licenses, Contract Documents
and Other Personal Property. An assignment agreement prepared by Buyer's
counsel, in form and substance acceptable to Seller, assigning, conveying and
transferring to Buyer without warranty the Licenses, Contracts Documents and
Other Personal Property, including, specifically, the Names.
8.1.1.4 Assignment of Sewer Allocation. The
assignment to Buyer of approximately 77,000 GPD average daily flow of sewer
capacity.
8.1.1.5 Assumption of Certain Obligations of Buyer.
The assumption by Buyer of all unperformed obligations of Seller or Seller's
affiliates (if any) under: (a) the Declaration (as defined in Section 9 of
the Option Agreement),(b) the Application and Agreement Relating to Traffic
Plan for West Conshohocken dated February 5, 1987 by and among Four Falls,
Xxxxxx Xxxxxx Xxxxxx Corporation and the Borough, as amended December 12,
1989, July 30, 1990, December 30, 1992, April 14, 1994 and as supplemented by
a letter from Xxxxxxx Xxxxxx at Xxxxxx Xxxxxx Xxxxxx Corporation to the
Borough dated April 14, 1994 and a letter from Tower Bridge Land Holding
Associates II to the Borough dated September 12, 1997 (relating to
Balligamingo Road), as the same may hereafter be further amended or
supplemented (the "Traffic Agreement"),(c) the Agreement dated February 13,
1989 by and among the Borough, Seller and TBLHAI, as amended by First
Amendment to Open Space Agreement dated May 2, 1994 and (d) the RDA Loan.
8.1.1.6 FIRPTA Certificates. All certificate(s)
required under Section 1445 of the Code.
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8.1.1.7 Seller's Certificate. A title company's
Seller's Certificate in customary form and such organizational documents as
the Title Company may require.
8.1.1.8 Tax Bills. Current tax bills and, if
available, tax bills for the prior three (3) years of Seller's ownership of
the Property;
8.1.1.9 Tax Reduction Rights. An instrument
assigning to Buyer without warranty any claims for the reduction of real or
personal property taxes assessed against any portion of the Property for the
fiscal year in which the Closing takes place; any refund for such year shall
be prorated when received;
8.1.2 Payment of Purchase Price and Buyer's Documents.
Buyer shall deliver or cause to be delivered to Seller:
8.1.2.1 Purchase Price. Payment of the Purchase
Price in the manner required by Paragraph 3.2 of these Terms and Conditions;
8.1.2.2 Assumptions. Executed original
counterparts of the assumptions by Buyer referred to in Section 8.1.1.6 above.
8.1.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company shall furnish Buyer at Closing with the
Title Policy, in the form required pursuant to Paragraph 4 of these Terms and
Conditions of Sale, in the full amount of the Purchase Price, wherein the
Title Company shall insure fee simple title to the Property in Buyer or its
designee as of the Closing Date containing no exceptions to title other than
Permitted Exceptions and those other exceptions which have been approved by
Buyer and providing the title endorsements reasonably specified by Buyer.
8.1.4 Necessary Documents. Buyer and Seller shall
execute and deliver such other documents and instruments as may be reasonably
necessary to complete the transaction contemplated by these Terms and
Conditions of Sale.
9. DEFAULT; REMEDIES
9.1 Seller's Default. In the event that Seller shall have
failed to have performed any of the covenants and/or agreements contained in
these Terms and Conditions of Sale which are to be performed by Seller or if
the representations and warranties made by Seller in these Terms and
Conditions of Sale or the Option Agreement are not true and correct in every
material respect (without regard to deemed modifications under Section 10 of
the Option Agreement), Buyer may, at its option, terminate the Option
Agreement by giving written notice of such termination to Seller and Seller
shall immediately thereafter return the Second Year Option Payment less the
Carrying Costs or the Deposit, as the case may be, and thereupon the parties
shall have no further liability to each other hereunder. In the alternative,
in the event of Seller's willful default and refusal to close hereunder,
Buyer may seek specific performance of Seller's obligations; provided
however, any complaint seeking such specific performance must (a) allege with
specificity Seller's willful default and refusal to close under the Option
Agreement on the Closing Date; (b) allege with specificity that Buyer had
sufficient funds to close the transaction on the Closing Date; and (c) allege
that as of the date of the filing such complaint seeking specific
performance, sufficient funds continue to be available to Buyer and will be
available to Buyer for at least thirty-one (31) days following the entry of
an order by a court of competent jurisdiction requiring specific performance
by Seller under the Option Agreement. In the event Buyer terminates this
Agreement after a willful default of Seller, Seller shall reimburse Buyer for
its actual out-of-pocket costs incurred in connection with the entering into
of this Agreement and Buyer's inspection of the Premises. Buyer acknowledges
and agrees that, except as set forth in the immediately preceding sentence,
under no circumstances shall Buyer have any right to seek or collect damages
from Seller, its partners or the officers, directors, employees, agents or
contractors of any of them, whether actual, punitive, consequential or
otherwise as a result of Seller's failure or refusal to close hereunder
and/or as a result of the specific performance hereof.
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9.2 Buyer's Default. Buyer recognizes that the Property will
be removed by Seller from the market during the existence of the Option and
that if the purchase and sale is not consummated following the exercise of
the Option because of Buyer's default, Seller shall be entitled to
compensation for such detriment. Seller and Buyer acknowledge that it is
extremely difficult and impracticable to ascertain the extent of the
detriment, and to avoid this problem, Seller and Buyer agree that if the
purchase and sale contemplated in the Option Agreement is not consummated
because of Buyer's default following the exercise of the Option, Seller shall
be entitled to retain any Option Payment and any Deposit as liquidated
damages. The parties agree that the sum stated above as liquidated damages
shall be in lieu of any other relief to which Seller might otherwise be
entitled, Seller hereby specifically waiving any and all rights which it may
have to damages or specific performance as a result of Buyer's default under
the Option Agreement.
10. PRORATIONS.
10.1 Expenses. The following items shall be prorated at
Closing, as of midnight of the day immediately preceding Closing (the
"Adjustment Date"):
10.1.1 Taxes. Real estate and personal property taxes,
if any, on the basis of the fiscal year for which assessed. If the Closing
shall occur before the tax rate or assessment is fixed, the apportionment of
such real estate and personal property taxes at the Closing shall be upon the
basis of the tax rate for the next preceding year applied to the latest
assessed valuation. Final adjustment will be made upon the actual tax
amount, when determined.
10.1.2 Water and Sewer Charges. Water and sewer
charges if applicable based upon meter readings to be obtained by Seller
effective as of the Adjustment Date, or if not so obtainable, a date not more
than ten (10) days prior to the Adjustment Date, and the unfixed meter
charges based thereon for the intervening period shall be apportioned on the
basis of such last reading. Upon the taking of a subsequent actual reading,
such apportionment shall be readjusted and Seller or Buyer, as the case may
be, will promptly deliver to the other the amount determined to be so due
upon such readjustment. If Seller is unable to furnish such prior reading,
any reading subsequent to the Closing will be apportioned on a per diem basis
from the date of such reading immediately prior thereto and Seller shall pay
the proportionate charges due up to the date of Closing.
10.2 Custom and Practice. Except as set forth in these Terms
and Conditions of Sale, the customs of the State and County in which the
Property are located shall govern prorations.
10.3 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum.
If such prorations result in a payment due Seller, the same shall be added to
the Purchase Price and paid at Closing.
10.4 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
11. PROPERTY "AS-IS".
11.1 No Side Agreements or Representations. No person acting
on behalf of Seller, including without limitation, any partner or officer or
employee of any partner of Seller, is authorized to make, and by execution
hereof, Buyer acknowledges that no person has made any representation,
agreement, statement, warranty, guarantee or promise, express or implied,
regarding the Property or the transaction contemplated herein or the zoning,
construction, physical condition, fitness for use, title or any other matter
or status of the Property except as may be expressly set forth in this
Agreement. No representation, warranty, agreement, statement, guarantee or
promise, if any, made by any person acting on behalf of Seller which is not
contained in this Agreement will be valid or binding on Seller, and Buyer
disclaims the right to rely thereon.
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11.2 AS-IS PURCHASE. BUYER REPRESENTS AND WARRANTS TO SELLER
THAT BUYER HAS INDEPENDENTLY AND PERSONALLY INSPECTED OR, PRIOR TO THE
EXERCISE OF THE OPTION, WILL INSPECT THE PROPERTY AND IMPROVEMENTS, IF ANY,
AND THAT BUYER HAS ENTERED INTO THIS AGREEMENT BASED UPON SUCH PERSONAL
EXAMINATION AND INSPECTION OR THE RIGHT THERETO. BUYER AGREES THAT IF BUYER
EXERCISES THE OPTION AS PROVIDED HEREIN, BUYER WILL ACCEPT THE PROPERTY, AT
CLOSING, IN ITS THEN CONDITION AS-IS AND WITH ALL FAULTS, INCLUDING WITHOUT
LIMITATION, THOSE FAULTS AND CONDITIONS SPECIFICALLY REFERENCED IN THIS
AGREEMENT. THE PURCHASE PRICE HAS BEEN NEGOTIATED WITH THE MUTUAL
UNDERSTANDING THAT BUYER IS PURCHASING THE PROPERTY AS-IS AND THAT BUYER'S
COSTS ASSOCIATED WITH DEVELOPMENT, OPERATION AND MANAGEMENT OF THE PROPERTY
ARE UNCERTAIN. IT IS NOT CONTEMPLATED THAT THE PURCHASE PRICE WILL BE
INCREASED IF THESE COSTS PROVE TO BE LESS THAN EXPECTED NOR WILL THE PURCHASE
PRICE BE REDUCED IF BUYER'S PLAN LEADS TO HIGHER COST PROJECTIONS. EXCEPT AS
PROVIDED HEREIN, THE SOLE REMEDY OF BUYER, IF BUYER IS NOT SATISFIED WITH ANY
ASPECT OF THE PROPERTY, WILL BE NOT TO EXERCISE THE OPTION.
11.3 Buyer Representations. Without limiting any other
representations or warranties by Buyer hereunder, Buyer represents and
warrants that, except as expressly set forth in this Agreement, (i) Buyer is
a sophisticated purchaser of commercial real estate and is relying solely
upon Buyer's inspection, investigation, and personal knowledge of the entire
Property; (ii) Seller and Seller's agents have made no representations,
warranties or other agreements concerning matters relating to the Property,
including without limitation, the physical and environmental condition of the
Property, except as otherwise expressly stated in this Agreement; (iii)
Seller and Seller's agents have made no agreement or promise to repair, alter
or improve the Property; and (iv) Buyer takes and acquires the Property in
its present condition, "WHERE IS" and "AS IS" and without representations or
warranties of any kind (except as expressly set forth in this Agreement).
12. HAZARDOUS SUBSTANCES
12.1 Definitions. For the purposes of this Agreement, the
following terms have the following meanings:
(a) "Environmental Law" means any federal, state or local
law, statute, ordinance or regulation pertaining to health, industrial
hygiene or the environment including, without limitation CERCLA
(Comprehensive Environmental Response, Compensation and Liability Act of
1980) and RCRA (Resources Conservation and Recovery Act of 1976).
(b) "Hazardous Substance" means any substance, material
or waste which is or becomes designated, classified or regulated as being
"toxic" or "hazardous" or a "pollutant" or which is or becomes similarly
designated, classified or regulated, under any Environmental Law, including
asbestos, petroleum and petroleum products.
(c) "Environmental Assessment" means an environmental
assessment, review or testing of the Property delivered to Buyer by Seller,
performed by Buyer or performed by any third party or consultant engaged by
Buyer to conduct such assessment, review or study.
(d) "Knowledge of Seller" means the actual knowledge of
the parties executing the Option Agreement for Provestco, Inc. and TB Land
Associates Limited Partnership.
12.2 Seller Environmental Assessments. Buyer acknowledges and
agrees that Seller has delivered to Buyer or Buyer's agents or
representatives the Environmental Assessments related to the Property
referred to in the letter dated April 9, 1997 from Xxxxxxx X. Xxxxxx of
Xxxxxx Xxxxxx Xxxxxx Corporation addressed to Xxxxxxx
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X. Xxxxxxxx at McLaren Xxxx, Buyer's consultant. To the knowledge of Seller,
as of the date of the execution of the Option Agreement, there exist no other
Environmental Assessments obtained by Seller.
12.3 Notices Regarding Hazardous Substances. To the knowledge
of Seller, except as are disclosed in the Environmental Assessments and for
the placing of Hazardous Substances on the Property by an affiliate of Seller
during the construction of another portion of Tower Bridge, there has been no
release of a Hazardous Substance from, on or under the Property, nor does
Seller have knowledge of any threatened or pending investigation pertaining
to any release of a Hazardous Substance from, on or under the Property.
During the term of this Agreement, Seller will promptly notify Buyer if
Seller obtains knowledge that any release of a Hazardous Substance from, on
or underneath the Property (other than any Hazardous Substance releases
already disclosed in the Environmental Assessments or these Terms and
Conditions of Sale) or that Seller or the Property may be subject to any
threatened or pending investigation by any governmental agency under any law,
regulation or ordinance pertaining to any Hazardous Substance.
12.4 Indemnity and Release as to Third Party Claims.
(a) If there are any third party claims against Seller
which arise after Closing on account of any release of any Hazardous
Substance from, on or under the Property first occurring after Closing, Buyer
will indemnify, defend (by counsel reasonably acceptable to Seller), protect
and hold Seller harmless from and against any and all claims, liabilities,
penalties, forfeitures, losses or expenses (including reasonable attorneys'
and experts' fees and expenses) arising therefrom.
(b) As used in this Section 12.4, "third party claims"
are defined as any claims or rights of recovery by any person or entity
(including governmental agencies):
(i) which result from injury, damage or loss to or
of any person or property; or
(ii) for cost recovery, removal or remedial action.
Third party claims will also include any costs paid
or payable by either party for damage, loss, injury, investigation, removal,
remediation or other liability in response to any third party claim or in
anticipation of any enforcement or remedial action undertaken or threatened
by any government agency or private party.
(c) Seller will not be liable to Buyer under this
Agreement, and Buyer hereby (i) releases Seller from any and all liability
under any federal, state or local law pertaining to or concerning Hazardous
Substances, (ii) covenants not to xxx or join Seller in any proceeding in
which Buyer is named as a defendant or responsible party and (iii)
indemnifies Seller from and against any third party claims which are
attributable to any environmental condition which:
(i) was specifically described in any Environmental
Assessment delivered to or obtained by Buyer prior to Closing; or
(ii) existed on the Premises prior to Seller's
acquisition of the Premises, or were created or discovered during Seller's
period of ownership of the Premises and disclosed to Buyer in writing prior
to Closing; or
(iii) was otherwise disclosed by Seller to Buyer or
discovered by Buyer at any time prior to Closing.
(d) The provisions of this Subsection 12.4 will survive
Closing hereunder; however, all indemnity obligations shall lapse following
the sale of the Property by Buyer (or such other party to which title to the
Property is transferred at Closing) to an unaffiliated third party.
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EXHIBIT 3 TO PURCHASE OPTION AGREEMENT
ESTIMATED CARRYING COSTS FOR FIVE TOWER BRIDGE
DURING FIRST OPTION YEAR
Real Estate Taxes $33,000
Grass Cutting/Snow Removal 8,000
Interest 4,500
Traffic Lights/Road Maintenance 1,500
Insurance 1,000
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$48,000
