Exhibit 10.6
1, 2, 4, 5, 7, 00 XXXXXX XXXXXX, 0 XXXX XXXXXXXXX XXXXX
XXX 0 XXXXXX XXXXXX AVENUE
AGREEMENT
THIS AGREEMENT is made and entered into as of the 5th day of December,
1997 by and among the PWCCW, a New Jersey general partnership having its
principal office at Scarborough Properties, 00 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxxxx 00000 ("PWCCW"), Xxxxxx X. Xxxxxxxxxxx ("RKS") and the
Paint Works Management Corporation ("PWMC"), the general partners of PWCCW
(collectively, the "PWCCW Partners"), Brandywine Realty Trust, a Maryland real
estate investment trust (the "Trust"), and Brandywine Operating Partnership,
L.P., a Delaware limited partnership or its nominee, having an address at
Newtown Square Corporate Campus, 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx 00000 (the "Partnership").
RECITALS
A. PWCCW is the owner of a certain tract of land being comprised of 12
parcels of property, being Lot 1.07, Block 19.01 known as 0 Xxxxxx Xxxxxx, Lot
3.05, Block 8.01 known as 0 Xxxxxx Xxxxxx, Xxx 0.00, Xxxxx 8.01 being 0 Xxxxxx
Xxxxxx, part of Lot 1.07, Block 19.01 being 0 Xxxxxx Xxxxxx, Xxx 0.00, Xxxxx
19.01 being 0 Xxxxxx Xxxxxx, Xxx 0.00, Xxxxx 8.01 being 00 Xxxxxx Xxxxxx and 0
Xxxx Xxxxxxxxx Xxxx, Lot 3.01, Block 8.01 being 0 Xxxxxx Xxxxxx Xxxxxx and
Silver Lake, Lot 16.05, Block 7.04, being a parking lot on the North side of
Gibbsboro Road, and Xxxx 0, 0 xxx 0, Xxxxx 19.01, being the vacant property
south of 0 Xxxxxx Xxxxxx, together with the buildings and improvements thereon,
including one office building containing approximately 24,800 square feet,
commonly known as 0 Xxxxxx Xxxxxx, one office building containing approximately
50,761 square feet commonly known as 0 Xxxxxx Xxxxxx, one office building
containing approximately 23,400 square feet commonly known as 0 Xxxxxx Xxxxxx,
one office building containing approximately 2,000 square feet commonly known as
0 Xxxxxx Xxxxxx, one office building containing approximately 19,225 square feet
commonly known as 0 Xxxxxx Xxxxxx, one office building containing approximately
25,119 square feet commonly known as 00 Xxxxxx Xxxxxx, one office building
containing approximately 66,500 square feet commonly known as 0 Xxxx Xxxxxxxxx
Xxxx and historical smoke stacks and catering tent commonly known as 0 Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx as more fully described on Exhibit A
attached hereto; and
B. PWCCW desires and hereby agrees to sell or contribute, and the
Partnership desires and hereby agrees to acquire or accept, all of PWCCW 's
right, title and interest in and to the Property (as hereinafter defined),
subject to and on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions Of Certain Terms. For all purposes of this
Agreement, the following terms shall have the respective meanings set forth
below:
"Agreement" shall mean this document entitled "Agreement", all
exhibits and schedules attached hereto or made a part hereof and all amendments
to this Agreement which are agreed to in writing and signed by all of the
parties hereto.
"Assignments" shall have the meaning ascribed to that term in
Paragraph 5(f) hereof.
"Closing" shall have the meaning ascribed to that term in
Paragraph 4 hereof. The date upon which the Closing actually occurs shall be
the "Closing Date."
"Common Shares" shall mean the common shares of beneficial
interest, par value $.01 per share, of the Trust.
"Contracts" shall mean all contracts and agreements with respect
to the management (excluding property management agreements), operation, supply,
maintenance, repair or construction affecting any of the Property, to the extent
assignable by PWCCW, all as described in Exhibit "B" attached hereto and made a
part hereof.
"Deposit" shall mean the Deposit delivered by the Partnership to
Escrow Agent pursuant to Paragraph 3(a) hereof, together with all interest
earned thereon, if any.
"Due Diligence Termination Date" shall mean 5:00 p.m. E.S.T. on
December 9, 1997.
"Effective Date" shall mean the date on which this Agreement has
been fully executed and delivered by all parties hereto to each other.
"Environmental Claim" shall mean any written or oral demand,
directive, administrative order, claim, suit, action, expense (including
consequential damages and counsel fees), cause of action, investigation or
notice by any person or entity alleging actual or potential liability
(including, without limitation, potential or actual liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or penalties).
"Environmental Laws" shall mean all federal, state and local laws
and regulations relating to pollution or protection of human health or the
environment (including,
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without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), including, without limitation, the New Jersey Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq., the Water
Pollution Control Act, N.J.S.A. 58:10A-1, et seq., the New Jersey Solid Waste
Management Act, N.J.S.A. 13:1E-1, et seq., the New Jersey Industrial Sites
Recover Act, N.J.S.A. 13:1K-6, et seq., Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C.A. Sections 9601, et
seq., the Resource Conversation and Recovery Act ("RCRA"), 42 U.S.C.A.
Sections 6901, et seq., the Clean Water Act, 33 U.S.C.A. Sections 1251, et
seq., the Clean Air Act 42 U.S.C.A. Sections 7401, et seq., and laws and
regulations relating to emissions, spills, leaks, discharges, releases or
threatened releases of Materials of Environmental Concern, or otherwise
relating to the manufacture, possession, distribution, use, treatment,
storgage, disposal, transport or handling of Materials of Environmental
Concern.
"Escrow Terms" shall mean the escrow agreement to be entered into
of even date herewith between the Escrow Company, PWCCW and the Partnership.
"Escrow Agent" shall mean Commonwealth Land Title Insurance
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
"Improvements" shall mean those certain buildings and other
improvements constructed and located on the Land as described on Exhibit "A".
"Land" shall mean that certain parcel of real property located at
1, 2, 4, 5, 7 and 00 Xxxxxx Xxxxxx, 0 Xxxx Xxxxxxxxx Xxxx xxx 0 Xxxxxx Xxxxxx
Avenue and the parking lots appurtenant thereto and Silver Lake, Gibbsboro, New
Jersey, being Xxx 0.00, Xxxxx 00.00, Xxx 0.00, Xxxxx 8.01, Lot 3.05, Block 8.01,
Xxx 0.00, Xxxxx 00.00, Xxx 0.00, Xxxxx 19.01, Lots 3.03, 3.06 and 3.01, Block
8.01, Xxxx 0, 0 xxx 0, Xxxxx 19.01 and Lot 16.05, Block 7.04.
"Leases" shall mean those certain leases (and guarantees thereof,
if any) listed on Exhibit "C" attached hereto and made a part hereof, or
hereafter entered into by PWCCW, as landlord, in accordance with the terms of
this Agreement, for any space within any of the Improvements located on any of
the Land.
"Licenses" shall mean the licenses, permits, approvals and
agreements affecting any of the Real Property.
"Materials of Environmental Concern" shall mean any toxic,
reactive, corrosive, carcinogenic, flammable or hazardous pollutant or other
substance, including, but not limited to, any "hazardous substance," or
"hazardous waste," as defined in Environmental Laws, petroleum and petroleum
products, natural gas or synthetic gas, material that is a source, special
nuclear or by-product material, as defined by the Atomic Energy Act of 1954, 42
U.S.C.A. Sections 3011 et seq., and the regulations promulgated thereto and
"hazardous chemical," as defined in 29 C.F.R. Part 1910.
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"Permitted Exceptions" shall mean with respect to any of the Real
Property (i) the lien of real estate taxes, water rent and sewer charges that
are not due and payable on the Closing Date, (ii) the printed exclusions,
conditions and stipulations contained in the Commitment (as hereinafter
defined), (iii) additional exceptions to title set forth in Exhibit "D" to this
Agreement, (iv) special assessments which become a lien on any of the Real
Property on or after the Closing Date, and (v) such other title matters existing
on the Closing Date which are accepted or deemed accepted by the Partnership
pursuant to Paragraph 5 hereof; and (vii) the rights of Tenants of any of the
Real Property pursuant to the Leases for all or any portion of any of the Real
Property.
"Personal Property" shall (except as specifically excluded on
Exhibit "E" hereto) mean all of PWCCW's right, title and interest in and to the
tangible personal property including, without limitation, furniture, artwork,
furnishings, equipment, machinery and fixed and movable fixtures, together with
all component and replacement parts, owned by PWCCW, situated on any of the Real
Property on the Closing Date, and all artwork, renderings, flags, awnings and
trade dress; all architects', engineers', surveyors' and other real estate
professionals' plans, specifications, certifications, reports, data or other
technical descriptions (including, without limitation, all environmental,
structural and mechanical inspection reports) to the extent the same are in
PWCCW's possession and are not proprietary in nature, and all building names and
PWCCW's rights, if any, in and to the name "500 Scarborough Drive."
"Property" shall mean the Real Property and such of the
Contracts, Leases, Licenses, Personal Property and other rights, titles,
interests and obligations which pertain to the Real Property and are intended to
be contributed, conveyed, sold or otherwise transferred to the Partnership by
PWCCW pursuant to this Agreement.
"Real Property" shall mean the Land and the Improvements.
"Tenants" shall mean the tenants under the Leases.
"Trust" shall mean Brandywine Realty Trust, a Maryland real
estate investment trust, the sole general partner of the Partnership.
"Underlying Shares" shall mean the Common Shares issuable upon
the conversion or redemption of, or otherwise pursuant to, the Units issuable
hereunder.
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2. Acquisition Of The Property. On the Closing Date, and subject to
the terms and conditions set forth in this Agreement, PWCCW shall sell or
contribute, at PWCCW's sole discretion, assign, transfer and convey to the
Partnership and the Partnership shall purchase or accept, as the case may be,
from PWCCW the following:
(a) All right, title and interest of PWCCW in and to all of the
Real Property;
(b) All right, title and interest of PWCCW, if any, in any land
lying in the bed of any street, road, avenue or alley, open or closed, in front
of or adjoining any of the Land, to the center line thereof;
(c) All right, title and interest of PWCCW, if any, in any
easements, covenants, rights of way, privileges, hereditaments and other rights
appurtenant to any of the Real Property;
(d) to the extent assignable to the Partnership and approved by
the Partnership, all right, title and interest of PWCCW in and to the Contracts
and the Licenses relating to any of the Real Property;
(e) all right, title and interest of PWCCW in and to the Leases;
and
(f) all right, title and interest of PWCCW in and to the
Personal Property.
3. Consideration And Time Of Payment. The consideration (the
"Consideration") to be received by PWCCW from the Partnership in exchange for
the Property shall be Six Million Seven Hundred Fifty Thousand Dollars
($6,750,000), the net amount remaining after deducting $1,850,000 (the amount of
principal and accrued interest secured by a mortgage on the Property being
paid-off at the Closing) from the contribution price of Eight Million Six
Hundred Thousand Dollars ($8,600,000), as adjusted pursuant to Paragraph 7 of
this Agreement which shall be paid to PWCCW in the following manner:
(a) On the Effective Date, the Partnership shall deliver a
check, subject to collection, in the amount of Twenty Thousand Dollars ($20,000)
to the Escrow Agent, which check shall be payable to the order of the Escrow
Agent and shall be held and disbursed pursuant to the Escrow Terms. Thereafter,
within two (2) business days following the Due Diligence Expiration Date, the
Partnership shall deliver a check, subject to collection, in the amount of Ten
Thousand Dollars ($10,000) to the Escrow Agent, which check shall be payable to
the order of the Escrow Agent and shall be held and disbursed pursuant to the
Escrow Terms. In the event that PWCCW elects, pursuant to subparagraph (c)
below, to receive all of the Consideration in Units in exchange for the
contribution of the Property, the Escrow Agent shall release the Deposit to the
Partnership at the Closing.
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(b) The balance of the Consideration shall be paid to PWCCW at
the Closing by wire transfer of immediately available funds to an account
designated by PWCCW.
(c) In lieu of receiving the Consideration pursuant to
subparagraphs (a) and (b) above, PWCCW may elect, at its option, to receive all
or a portion of the Consideration in the form of Class A Units of Limited
Partnership Interest ("Units") in the Partnership in exchange for the
contribution to the Partnership of all or a portion, as the case may be, of the
Property. PWCCW may make such election by providing the Partnership written
notice no later than thirty (30) days prior to the Closing Date. Such election
notice shall state the dollar amount of the Consideration to be received in
Units. The number of Units issuable in satisfaction of the applicable portion
of the Consideration that PWCCW elects to be so received shall be computed by
dividing the aggregate dollar amount of such applicable portion of the
Consideration by the Computed Market Price. The term "Computed Market Price"
shall mean the average closing price for the Common Shares as reported by the
New York Stock Exchange (the "NYSE") for the ten (10) trading day period
immediately preceding the Due Diligence Termination Date. The distributions
declared by the Partnership in respect of the Class A Units issuable pursuant to
this Agreement during the initial calendar quarter in which the Closing occurs
shall be pro-rated by the Partnership based on the number of days the Class A
Units are outstanding during such quarter. For example, if the Class A Units
issuable pursuant to this Agreement are issued on December 1, 1997, each of such
Class A Units shall be entitled to receive an amount equal to one-third of the
amount of the distribution payable to a Class A Unit that was outstanding during
the full quarter.
(d) The transaction contemplated by this Agreement is
conditioned upon the closing of the sale of the other properties identified on
Exhibit "F" attached hereto (the "Other Properties"), so that no one or more of
the Other Properties and the Property hereunder may be sold without all of the
Property being sold unless expressly provided for in writing by the parties
hereto and in any event the Deposit hereunder and thereunder shall be deemed a
single deposit for the entire transaction.
4. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be held on or before December 12, 1997, on a
mutually agreed date determined by PWCCW and the Partnership, at the offices of
the Partnership, Plaza 1000 at Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxxxx,
commencing at 10:00 a.m., time being of the essence.
5. Title And Conveyance Of The Property.
(a) At Closing, title to the Real Property shall be insurable at
regular rates by Commonwealth Land Title Insurance Company (the "Title
Insurer"), free and clear of all liens, encumbrances and restrictions other than
the Permitted Exceptions; provided, however, that if title to any of the Real
Property is not insurable as aforesaid, the Partnership's sole right and remedy
shall be as set forth in Paragraph 5(b) below.
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(b) (i) The Partnership has applied for a title insurance
commitment (1992 ALTA Form with Creditor's Rights Exclusion Deleted) to be
issued by the Title Insurer ("Commitment"), agreeing to issue to the
Partnership, upon recording of the Deeds (as hereinafter defined) for each of
the Real Property, an owner's policy of title insurance as above specified
("Title Policy"). Said Commitments shall agree to insure the proposed title of
the Partnership to each of the Real Property subject only to the Permitted
Exceptions and such other title exceptions as the Partnership has agreed to
accept or is deemed to have accepted pursuant to this Paragraph. If any of the
Commitments disclose any title exceptions in addition to the Permitted
Exceptions and the Partnership objects to such additional title exceptions (the
"Title Defects"), the Partnership shall notify PWCCW of such Title Defects with
sufficient specificity to enable PWCCW to respond. The Partnership's notice of
any Title Defects shall be given in writing to PWCCW no later than the date
which is five (5) business days prior to the Due Diligence Termination Date,
together with the Commitments and copies of all matters of record raised therein
as exceptions thereto, after which the Partnership shall be deemed to have
waived any and all Title Defects not so raised, except for Title Defects which
are disclosed to the Partnership in continuations of title issued subsequent to
the issuance of the Commitments, unless the Partnership fails to object to same
in writing within three (3) business days after the Partnership's receipt of the
continuation of title in which the same is disclosed, in which case the
Partnership will be deemed to have waived such additional Title Defects. PWCCW
shall have the right, but not the obligation (except as otherwise specifically
provided), to cure such Title Defects and, if PWCCW elects to attempt to cure
the Title Defects but has not cured same on or before the Closing Date, then the
Closing Date may be extended by PWCCW at its sole option for up to thirty (30)
days to enable PWCCW to effect such cure.
(ii) In the event that either (a) PWCCW is unable to convey
title in accordance with the terms of this Agreement, (b) PWCCW elects not to
cure or cause the removal of any exception to title, except as required in
subparagraph (iii) below, or (c) if PWCCW is unable to satisfy any other
conditions to the Partnership's obligations under this Agreement, then (except
as otherwise specifically provided in subparagraph (iii) below) the sole
liability of PWCCW shall be to (A) direct the Escrow Agent to return the Deposit
to the Partnership and (B) reimburse the Partnership for the reasonable charges
imposed by the Title Company for preparation of the Commitments (without the
issuance of a policy) and for the reasonable fees paid by the Partnership to
update the existing surveys (collectively "the Partnership's Reasonable Costs"),
and upon such payments being made, this Agreement shall be deemed canceled and
the parties hereto shall be released of all obligations and liabilities
hereunder, except as to any provisions which expressly survive a termination of
this Agreement; and the Partnership shall have no rights of action against PWCCW
in law or in equity, for damages or, except for the purpose of enforcing PWCCW's
contractual obligations under subparagraph (iii) below, for specific
performance. Notwithstanding the foregoing, the Partnership shall have the
right to waive any conditions to the Partnership's obligations hereunder, in
which event PWCCW shall make the deliveries provided for herein to the
Partnership to the extent that PWCCW is able so to do, and there shall be no
reduction in the Consideration in such event.
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(iii) Notwithstanding the provisions of the foregoing
paragraph, if the condition of title to the Real Property at the Closing is
other than that which the Partnership is required or agrees to accept hereunder
solely by reason of any mortgages or other monetary liens (hereinafter referred
to as "Liens") which can be satisfied or remedied by the payment of a liquidated
amount of money not to exceed the Purchase Price, PWCCW shall not have the right
to cancel this Agreement and PWCCW shall either (aa) discharge, satisfy, or bond
the same or (bb) deliver such funds to be held in escrow required by the Title
Company, in either event so that the Title Company shall affirmatively insure
the full and complete discharge of the foregoing and shall agree to omit the
same as an exception to its title insurance policy.
(iv) Notwithstanding anything to the contrary contained in
this Agreement, PWCCW shall have no duty nor be required to take any action, to
institute any proceedings or to incur any expense (other than as may be
expressly required in subparagraph (iii) above) in order to remedy or remove any
objections to title or otherwise to render title in accordance with the terms
called for in this Agreement.
(c) The Partnership expressly understands, acknowledges and
agrees that any failure by the Partnership to notify PWCCW in writing of any
Title Defects on or before the expiration of the Due Diligence, shall for all
purposes be deemed to be an acceptance by the Partnership of such Title Defects
as if they were one or more of the Permitted Exceptions.
(d) At Closing, PWCCW will convey fee simple title to the Real
Property by a Bargain and Sale Deed with covenant against grantor's acts (the
"Deed"), subject in all cases to the Permitted Exceptions, in the forms attached
hereto and made a part hereof as Exhibit "G".
(e) At Closing, PWCCW will transfer all of its right, title and
interest in and to the Personal Property to the Partnership by executing a Xxxx
of Sale ("Xxxx of Sale") in the form attached hereto and made a part hereof as
Exhibit "H".
(f) At Closing, PWCCW will assign all of PWCCW's right, title,
and interest, and the Partnership shall assume all of the obligations from and
after the Closing Date, in, to and under the Leases, Licenses and the Contracts
for the Property, by executing an Assignment and Assumption Agreement in the
form attached hereto and made a part hereof as Exhibit "I" (the "Assignments").
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6. Closing Documents.
(a) At the Closing, as a condition of the Partnership's
obligation to close hereunder, PWCCW shall deliver or cause to be delivered the
following:
(i) The Deed, executed by PWCCW, covering the Real Property
(and separate quitclaim deeds to the Real Property utilizing new ALTA survey
descriptions, if requested);
(ii) The Bills of Sale executed by PWCCW covering the
Personal Property;
(iii) The Assignments, executed by PWCCW;
(iv) As many signed originals (or true and correct copies of
same) of the Contracts, Leases, Licenses, and other items covered by the
Assignments as are in the possession or control of PWCCW;
(v) All machinery and/or equipment operating manuals,
technical data and other documentation relating to the building systems and
equipment, and all machinery, equipment and other building warranties and
guarantees, if any, but only to the extent that any of the same are in the
possession or control of PWCCW;
(vi) All master and duplicate keys, combinations and codes
to all locks and security devices for the Improvements which are in the
possession or control of PWCCW;
(vii) Written notice from PWCCW or PWCCW's managing
agent to each Tenant in form reasonably satisfactory to the Partnership stating
that the Real Property have been sold to the Partnership and that tenant
security deposits (if any) in PWCCW's possession have been transferred to the
Partnership and directing the Tenants to make future rental payments to the
Partnership at the address designated by the Partnership;
(viii) Non-foreign person certification in the form
attached hereto as Exhibit "J";
(ix) All building records and Tenant lease files with
respect to the Real Property which are in the possession of PWCCW;
(x) Each xxxx of current real estate taxes, sewer charges
and assessments, water charges and other utilities and to the extent in PWCCW's
possession or control, bills for each of the same for the three (3) years,
together with proof of payment thereof (to the extent same have been paid);
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(xi) All plans, specifications, as-built drawings, surveys,
site plans, and final, written reports of architects, engineers and surveyors,
and any other Personal Property forming part of the Property or any portion
thereof, but only to the extent that the same exist and are in the possession of
PWCCW or any property manager controlled by PWCCW;
(xii) An affidavit or affidavits of title in favor of
the Title Insurer on the form used by such Title Insurer, in form reasonably
acceptable to PWCCW to enable the Title Insurer to issue the Commitments
described in Paragraph 5(b)(i). The Partnership shall require affirmative
endorsements against mechanic's liens, consistent with PWCCW's obligations under
Paragraph 5(b)(iii), above;
(xiii) A letter, from the New Jersey Department of
Environmental Protection or its successor ("NJDEP") (A) stating that the
provisions of the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., the
regulations promulgated thereunder and any successor legislation and regulations
are inapplicable to the Real Property (the "Non-Applicability Letter") and (B)
granting a covenant not to xxx the Partnership by the NJDEP in the form attached
hereto as Exhibit "K";
(xiv) Subject to the provisions of Paragraph 11(d),
below, Estoppel Letters, if any, received from Tenants;
(xv) Updated rent rolls, which shall be certified by PWCCW
to be correct and complete as of Closing Date;
(xvi) Proof as to the due authorization and execution by
PWCCW of the documents executed and delivered by PWCCW;
(xvii) Such affidavits of title or other certifications
as shall be required by the Title Company to insure the Partnership's title to
the Property as set forth in Section 3, and to provide affirmative endorsements
(a) against mechanic's liens, (b) insuring against any violation of existing
covenants, conditions or restrictions, and insuring that future violation will
not result in forfeiture of title, (c) insuring that all foundations in place as
of the date of such policy are within the lot lines and applicable set back
lines, (d) insuring that the buildings and structures on the Property do not
encroach onto adjoining land or onto any easements, (e) insuring that confirming
that there are no encroachments of improvements from adjoining land onto the
Property (f) removing any exceptions for matters which an accurate survey would
disclose, and (g) providing affirmative insurance with respect to such other
matters as the Partnership or its lender shall specify;
(xviii) A Registration Rights Agreement in the form
attached hereto as Exhibit "L" executed by PWCCW and the PWCCW Partners;
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(xix) The closing certificate required pursuant to
Paragraph 9;
(xx) An executed counterpart to the Agreement of Limited
Partnership of the Partnership (the "Partnership Agreement") signed by each of
the PWCCW Partners;
(xxi) An executed Tax Indemnity Agreement in the form
attached hereto as Exhibit "M";
(xxii) An executed Investor Questionnaire in the form
attached hereto as Exhibit "N"; and
(xxiii) An executed Guaranty in favor of the Partnership
in the form attached as Exhibit "O".
(b) At the Closing, as a condition of PWCCW's obligation to
close hereunder, the Partnership shall deliver or cause to be delivered the
following:
(i) The balance of the Consideration (in immediately
available funds or Units in accordance with Paragraph 3);
(ii) The Assignments, executed by the Partnership;
(iii) An agreement by the Partnership not to sell the
Property for four years, including an indemnity for the Partnership's breach
thereof;
(iv) A Registration Rights Agreement in the form attached
hereto as Exhibit "L" executed by the Trust and a Tax Indemnity Agreement in the
form attached hereto as Exhibit "M"; and
(v) The closing certificate required pursuant to Paragraph
9.
7. Prorations And Closing Costs. All matters involving prorations
or adjustments to be made to the Consideration in connection with the Closing
and not specifically provided for in any other provision of this Agreement shall
be adjusted as provided below. Except as otherwise set forth herein, all items
to be prorated pursuant to this Paragraph shall be prorated as of the Closing
Date, with the Partnership to be treated as the owner of the Property, for
purposes of prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes, if any,
with respect to the Real Property for the applicable fiscal or calendar year in
which the Closing occurs shall be prorated on a per diem basis. If the amount
of such taxes is not known on the Closing Date, taxes will be prorated on the
basis of the most recently ascertainable tax xxxx. There shall
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be no proration of PWCCW's insurance premiums or assignment of PWCCW's insurance
policies and PWCCW shall be entitled to cancel all of its existing policies as
of the Closing Date. The Partnership shall be obligated (at its own election)
to obtain any replacement policies. The amounts of all telephone, electric,
sewer, water and other utility bills, trash removal bills, janitorial and
maintenance service bills relating to the Property and allocable to the period
prior to the Closing Date shall be determined and paid by PWCCW before Closing,
if possible, or shall be paid promptly thereafter by PWCCW or adjusted between
the Partnership and PWCCW immediately after the same have been determined. The
Partnership and PWCCW shall to the extent necessary enter into an agreement to
such effect at Closing. PWCCW shall attempt to have all utility meters read as
of the Closing Date. PWCCW shall further attempt to obtain from the provider of
same, all other service statements and bills of account adjusted as of the
Closing Date. PWCCW shall be entitled to refunds of all deposits, if any, paid
by PWCCW or PWCCW's predecessor-in-interest prior to Closing and held by
entities providing such service, or, at PWCCW's option, PWCCW shall transfer all
of PWCCW's right, title and interest in and to such deposits to the Partnership
at Closing and shall receive a full credit for the amount of such deposits. All
Contracts and other obligations in connection with the Property, to the extent
the same are intended to be assumed hereunder, shall be prorated as of the
Closing Date.
(b) Special assessments which have been filed as a lien against
any of the Real Property on or before the Closing Date and are not payable in
installments shall be paid by PWCCW. Special assessments which have been filed
as a lien against any of the Real Property, but which are payable in
installments shall be adjusted based upon the installment payment for the fiscal
or calendar year in which Closing takes place and the remaining unpaid
assessments shall be assumed by the Partnership. Special assessments which are
or may be pending, but which have not become a lien on the Real Property as of
the Closing Date, and special assessments which are filed as a lien after the
Closing Date, shall be assumed and paid by the Partnership.
(c) PWCCW shall pay the cost of State and County transfer
taxes or stamps imposed in connection with the recordation of the Deeds for
the Real Property. The Partnership shall pay the expense of the title
searches, title premiums and any other title insurance costs on the owner's
title insurance policies and the cost of obtaining any surveys, if desired by
the Partnership. The Partnership agrees to pay the expense of the legal fees
of its own counsel. The cost of all of the Partnership's Due Diligence
Activities (as defined below) shall be borne solely by the Partnership.
(d) Any base, minimum or similar rents under the Leases
collected by PWCCW for a rental period or portion thereof from or after the
Closing Date shall be credited to the Partnership at Closing on a per diem
basis. In addition, any security deposits held by PWCCW for any Lease, together
with the interest due thereon, if any and if required under the terms of the
Lease or as required by applicable law, shall either be credited or transferred
to the Partnership at Closing at PWCCW's option. If any tenant is in arrears in
the payment of rent or additional rent on the Closing Date, rents received from
such tenant ninety (90) days after the
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Closing Date shall be applied in the following order of priority: (a) to the
Partnership, so long as such tenant is in arrears for current or prior rent
arising after Closing, then (b) to PWCCW for all rent in arrears prior to the
Closing Date; and then (c) to the Partnership with no further claim by PWCCW
thereto. Except as herein provided, the Partnership is not under any obligation
to collect rents in arrears for the benefit of PWCCW. Any rents which are
delinquent or otherwise not paid at the time of Closing, and collected by the
Partnership or PWCCW within ninety (90) days after Closing shall be apportioned
as aforesaid and the portion to which PWCCW is entitled shall be promptly
remitted by the Partnership to PWCCW. PWCCW shall have no claim to rents
collected ninety (90) days after the Closing Date. PWCCW retains the right to
pursue its remedies against Tenants after Closing for any delinquent rents or
other amounts owed to PWCCW (other than proceedings to evict Tenant or terminate
its lease). The Partnership shall not enter into any agreement pursuant to
which any sums owed to PWCCW in respect of any Lease for periods prior to the
Closing are reduced, modified or waived. The Partnership's obligations to
collect rent arrearages shall be limited to commercially reasonable efforts, and
the Partnership shall under no circumstance be required to commence litigation
against any Tenant to collect the same.
(e) All leasing commissions due or to become due prior to the
Closing Date for any Leases entered into before the date hereof and all
amendments, renewals and modifications thereof entered into before the date
hereof, shall be paid by PWCCW without contribution by, or reimbursement from,
the Partnership. At Closing, the Partnership shall pay or reimburse PWCCW for
any leasing commissions due or to become due prior to Closing for any Leases and
for any amendments, modifications or renewals of any Leases entered into after
the date hereof which are entered into in accordance with the provisions of
Paragraph 15(e) hereof. The Partnership shall expressly assume and be solely
obligated to pay all leasing commissions payable under all Leases entered into
prior to the date hereof (including all amendments, renewals and modifications
thereof) which are first due or payable on or after the Closing Date, regardless
of the date on which such Leases (including all amendments, renewals and
modifications thereof) were executed or any of the leasing commissions therefor
earned, subject only to the Partnership's right to approve any new Leases or
amendments, discretionary renewals or modifications of any Leases which are not
otherwise permitted pursuant to Paragraph 15(e), below. PWCCW shall be
responsible for the costs of, and shall pay or perform prior to Closing any
tenant improvements and allowances for work performed or required to be
performed (or paid, as applicable) prior to the Closing Date by or on behalf of
PWCCW for all Leases (including all amendments, renewals and modifications
thereof) entered into on or before the date of this Agreement for any of the
Real Property. The Partnership shall assume, pay or reimburse (as applicable)
PWCCW on the Closing Date for the costs of any tenant improvements and
allowances for work to first be performed after the Closing Date pursuant to
Leases (including all amendments, renewals and modifications thereof) entered
into prior to the date of this Agreement; and all costs of tenant improvements
and allowances incurred by or on behalf of PWCCW in connection with any Leases
(including all amendments, renewals and modifications thereof) entered into
after the date of this Agreement for any of the Real Property,
-13-
provided the same were approved by the Partnership or are otherwise permitted as
set forth in Paragraph 15(e) hereof and provided that such costs are set forth
on Exhibit "C" hereto.
(f) Amounts paid or payable as fees or expenses under any of the
Licenses assigned at Closing, shall be prorated as of the Closing Date but all
amounts refundable under unassigned and unassignable Licenses shall belong to
PWCCW.
(g) PWCCW shall be solely responsible for the payment of any
"roll back taxes" assessed or imposed upon any of the Real Property under the
"Farmland Assessment Act of 1964," Chapter 58, Laws of 1964, N.J.S.A. 54:4 23-1
et seq., as amended or otherwise, which relate to any period prior to the
Closing Date, and PWCCW agrees to indemnify, defend and save the Partnership
harmless (including attorneys' fees) from and against any claim for such taxes.
(h) Miscellaneous income including, without limitation,
telephone and vending machine income, if any, shall be prorated as of the
Closing Date.
(i) All of the provisions of this Paragraph 7 and PWCCW's and
the Partnership's respective rights and obligations hereunder shall survive the
Closing.
8. Possession Of Property.
(a) PWCCW shall deliver possession to the Real Property to the
Partnership on the Closing Date, subject only to the Permitted Exceptions.
(b) the Partnership shall assume, by execution of the
Assignments, all of PWCCW's obligations in, to and under the Contracts, the
Licenses and Leases. Notwithstanding the foregoing, the Partnership shall not
assume management, leasing or brokerage agreements provided, however, that the
Partnership shall remain liable for leasing commissions as set forth in
Paragraph 7(e), above.
(c) All of the provisions of this Paragraph 8 and PWCCW's and
the Partnership's respective rights and obligations hereunder shall survive the
Closing.
9. Representations Of PWCCW, The PWCCW Partners and The Partnership.
(a) PWCCW hereby represents and warrants, as follows, all of
which shall be true and correct at, and as of, the Effective Date:
(1) PWCCW is a general partnership duly organized and
validly existing under the laws of the State of New Jersey, and is in good
standing in such state.
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(2) PWCCW has all necessary power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby, without the consent or
authorization of, or notice to, any third party, except those third parties to
whom such consents or authorizations have been or will be obtained, or to whom
notices have been or will be given, prior to the Closing. This Agreement
constitutes, and the other documents and instruments to be delivered by PWCCW
pursuant hereto when delivered will constitute, the legal, valid and binding
obligations of PWCCW, enforceable against PWCCW in accordance with their
respective terms.
(3) Except as set forth in Exhibit "P" attached hereto
and made a part hereof, there is no litigation, proceeding or action pending or,
to the best of PWCCW's knowledge, threatened against or relating to PWCCW or its
Property which might materially and adversely affect PWCCW or its Property or
which questions the validity of this Agreement or any action taken or to be
taken by PWCCW pursuant hereto. PWCCW shall remain responsible to defend, and
shall indemnify and hold the Partnership harmless from and against all
liability, cost and expense relating to the litigation identified in on Exhibit
"P", which obligation shall survive the Closing.
(4) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation
or be in conflict with or constitute a default under any term or provision of
the PWCCW's limited liability agreement or any other material agreement,
instrument or lease to which PWCCW is a party, subject to any required consents
or authorizations of, or notices to, third parties from whom such consents or
authorizations will be obtained or to whom notices will be given prior to
Closing.
(5) True, correct and complete copies of all of the
following, together with any modifications or amendments thereof, but only if
and to the extent the same are in PWCCW's possession or control, have been or
will be delivered, or made available, to the Partnership within five (5) days
following the execution of this Agreement: (i) Leases and rent rolls;
(ii) Contracts; (iii) leases of equipment, vehicles and other tangible personal
property used by PWCCW in connection with the ownership and operation of the
Property (the "Personal Property Leases"); (iv) Licenses; (v) surveys;
(vi) title reports; (vii) engineering reports; and (viii) environmental reports.
(6) To the best of PWCCW's knowledge, (i) all of the
Leases, Contracts and Personal Property Leases and Licenses, are in full force
and effect, (ii) there has been no action or failure to act by PWCCW or any
other party to any Lease, Contract or Personal Property Lease which, with the
giving of notice or the passage of time or both, would constitute a default in
any material respect or otherwise entitle either party to damages or a right to
terminate; and (iii) PWCCW has not received from any other party written notice
with respect to the condition of the Property or the use or repair of the same
or of any alleged default by PWCCW under any such Lease, or Personal Property
Lease or License. Except as set forth on Exhibit "Q", each of the Contracts is
terminable at will without penalty or cancellation fee upon
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no more than thirty (30) days prior written notice but, except as hereinafter
expressly provided, unless otherwise directed by the Partnership, the Contracts
shall not be terminated by PWCCW as of Closing. Anything in this Agreement to
the contrary notwithstanding, any and all existing management agreements and
brokerage or leasing agreements shall be terminated as of Closing. The
Partnership shall assume all Contracts not terminated at Closing pursuant to the
Assignment.
(7) PWCCW shall indemnify and hold the Partnership
harmless of, from and against any and all claims and liabilities arising out of
the employment of any individuals by PWCCW and its affiliates, whether as
employees or independent contractors. As of the Closing, there are and shall be
no liens against the Real Property arising under the Employee Retirement Income
Security Act of 1974, as amended, nor any other compensation or employment
related lien or liability that could become the responsibility of the
Partnership after the Closing. The Partnership shall be under no obligation to
assume any of PWCCW's employees, it being PWCCW's sole responsibility and
obligation to provide severance arrangements, if any, for all such employees.
This Paragraph shall survive Closing.
(8) To PWCCW's actual knowledge, there are no public
improvements in the nature of off-site improvements or otherwise, which have
been ordered to be made and/or which have not heretofore been assessed and, to
PWCCW's actual knowledge, there are no special or general assessments currently
affecting or pending against the Real Property or any portion thereof.
(9) Except as set forth on Exhibit "P", PWCCW has not
been served with written notice that it has been named as a party in any
litigation, administrative proceeding or investigation naming PWCCW as a
responsible party or potentially responsible party for any liability for
clean-up costs, natural resource damages or other damages or liability for prior
disposal or release of Hazardous Substances, Hazardous Wastes or other
environmental pollutants or contaminants. For purposes of this Agreement,
"Hazardous Substances" means those elements and compounds which are designated
as such in Section 101(14) of the Comprehensive Response, Compensation and
Liability Act (CERCLA), 42 U.S.C. Section 9601 (14), as amended, all petroleum
products and by-products, and any other hazardous substances as that term may be
further defined in any and all applicable federal, state and local laws
(including, in New Jersey, the New Jersey Industrial Site Recovery Act (ISRA);
and "Hazardous Wastes" means any hazardous waste, residential or household
waste, solid waste, or other waste as defined in applicable federal, state and
local laws. PWCCW has not received any summons, citation, directive, letter or
other written communication, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
PWCCW's part which either (a) resulted in the releasing, spilling, leaking,
pumping, pouring, emitting, emptying or dumping of Hazardous Substances or
Hazardous Wastes, or (b) related in any way to the generation, storage,
transport, treatment or disposal of Hazardous Substances or Hazardous Wastes.
-16-
(10) True and correct copies of the income and expense
statements for the Property, and a current rent roll certified by PWCCW, will be
delivered to the Partnership upon execution of this Agreement.
(11) PWCCW has received no written notice of any
violation of any of the licenses, permits, consents, authorizations, approvals,
and certificates of any regulatory, administrative or other governmental agency
or body, if any, issued to or held by the PWCCW and related to the ownership or
operation of the Property (collectively, the "Permits"), and there is no pending
or, to the actual knowledge or PWCCW, threatened proceeding which could result
in the revocation or cancellation of, or inability of PWCCW to renew, any
Permit.
(12) To the best of PWCCW's knowledge, except as set
forth in Exhibit "R" attached hereto and made a part hereof, all management
fees, leasing commissions and tenant improvement allowances are fully paid,
there are no brokerage commissions owing by PWCCW with respect to any of the
Leases or otherwise related to the Property which have not been paid, and there
are no ongoing commission or leasing fee obligations.
(13) PWCCW has received no written notice from any
insurance company which has issued a policy with respect to the Property or by
any board of fire underwriters (or other body exercising similar functions)
claiming any defects or deficiencies or requesting the performance of any
repairs, alterations or other work, and PWCCW will promptly notify the
Partnership of any such notice or requirement if such notice is received prior
to the Closing.
(14) PWCCW is not a "foreign person" and will deliver
to the Partnership, at the Closing, a statement certifying that it is not a
"foreign person" within the meaning of the Internal Revenue Code of 1986, as
amended.
(15) PWCCW has not received written notice from any
governmental agency or authority of outstanding material violations issued by
governmental authorities having jurisdiction over the Real Property.
(16) Except as may be set forth in a Lease as
specifically noted on Exhibit "C", there are no options, rights of first refusal
or conditional sales agreements regarding the purchase and sale of the Real
Property.
(17) There are no oral or written leases or rights of
occupancy or grants or claims of right, title or interest in any portion of the
Property other than the leases (the "Leases") listed on the rent roll attached
hereto as Exhibit "C". No tenant has advised PWCCW that PWCCW is in default
under any of the Leases, or asserted any claim or basis for any claim for free
or reduced rent or right of set off against the landlord or the rent
-17-
under the Leases, and PWCCW and its agent have no actual knowledge of any
default or any event which has taken place which, with the passage of time, or
the delivery of notice, or both, could become an event of default. PWCCW has
the sole right to collect rents under the Leases, and neither such right nor any
of the Leases has been assigned, pledged, hypothecated or otherwise encumbered
by PWCCW except as additional collateral for the existing mortgage upon the
Property which shall be satisfied at or before Closing. No holder of any such
collateral assignment has asserted or exercised any of its right to collect such
rents. Each of the Leases is valid and subsisting and in full force and effect,
the tenant is in actual possession in the normal course, and the rents set forth
in Exhibit "C" are the actual rents, income and charges being collected by PWCCW
under the Leases. Except for the Lockheed Xxxxxx fit-out requirement under the
applicable lease, for which PWCCW will remain obligated post-Closing to
complete, all obligations of PWCCW which it is required to complete pursuant to
any Lease (or any unsigned lease proposal or lease amendment) has been completed
as of this date or shall be completed as of Closing, and all costs therefore
have been or shall be paid by PWCCW, and all of PWCCW's work has or shall have
been accepted by the Tenant without exception on or before Closing, other than
routine punch list items, which items shall remain the responsibility of PWCCW
following Closing, and which obligation shall expressly survive Closing. The
amount of each security deposit contains, where required by law or otherwise
applicable, interest which has accrued in accordance with law. No tenant of the
Property under any of the Leases has, and shall not at Closing have, prepaid any
rent under any of the Leases for more than one (1) month. Except as otherwise
set forth on Exhibit "C", no security deposits by tenants have heretofore been
returned or applied to charges against the tenants.
(18) To the best of PWCCW's knowledge, the Property and
the continued operation and use thereof comply with all applicable requirements
of federal, state and local law, and all applicable requirements of governmental
bodies or agencies having jurisdiction thereof, no portion of the Property lies
within a flood hazard area, flood plain or wetland; and there are no outstanding
notices of any violations issued by governmental authority having jurisdiction
over the Property.
(19) Except as specifically set forth on the
environmental reports of Dames & Xxxxx and Weston, a copy of which is attached
hereto as Exhibit "S-1" , or on the list of environmental conditions set forth
on Exhibit "S-2" attached hereto or the Administrative Consent Orders attached
as Exhibit "S-3", to the best of PWCCW's knowledge, no Hazardous Substances
(defined below) and no Hazardous Wastes (defined below) are present on the
Property including, without limitation, asbestos, flammable substances,
explosives, radioactive materials, hazardous wastes, toxic substances,
pollutants, pollution, contaminant, polychlorinated byphenyls ("PCBs"), urea
formaldehyde foam insulation, radon, corrosive, irritant, biologically
infectious materials, petroleum product, garbage, refuse, sludge, hazardous or
waste materials, and there has been no use of the Property that may, under any
federal, state or local environmental statute, ordinance or regulation, require,
at any time, any closure or cessation of the use or occupancy of the Property
and/or impose, at any time, upon the owner of the Property any clean-up or other
monetary obligation. PWCCW hereby indemnifies and holds the
-18-
Partnership harmless of, from and against any and all liability, loss or damage
suffered or incurred as a result of a claim, demand, cost or judgment in favor
of a third party, including, without limitation, any governmental authority,
arising from the deposit, storage, disposal, burial, dumping, injecting,
spilling, leaking, or other placement or release in or on the Property of
Hazardous Substances or Wastes during PWCCW's period of ownership. To the best
of PWCCW's knowledge, neither the Property nor any portion thereof, have been
identified on the federal CERLIS, the National Priorities List (40 C.F.R. Part
300, App. B) or any state or local list of potential hazardous waste disposal
sites or as an industrial establishment. PWCCW has conducted a complete and
thorough inspection and test of the underground storage tanks located on the
Property, if any, and PWCCW has confirmed that, to the best of its knowledge,
the results thereof show compliance with all requirements of the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sections 6901 et seq. and all
other applicable federal, state and local laws, and PWCCW has taken all other
necessary and appropriate action to comply fully therewith.
(20) To the best of PWCCW's knowledge, except for 1,
2 and 0 Xxxxxx Xxxxxx which are each serviced by a septic system, all adequate
utilities, useable public sanitary and storm sewers, public water facilities,
electric facilities and, if any, gas facilities (collectively, the "Utilities"),
are installed in, and are duly connected to, the Real Property, and can be used
without charge except the normal and usual metered utility charges and water and
sewer charges. All Utilities required for the operation of the Property either
enter the Property through adjoining public streets or, if they pass through
adjoining public land, do so in accordance with valid public easements or
private easements which will inure to the benefit of the Partnership at no cost
to the owner of the Property. All of said Utilities are installed and operating
and all installation, connection and "tap-in" charges have been paid for in
full.
(21) No work has been performed or is in progress at,
and no materials have been furnished to the Property which, though not presently
the subject of, might give rise to construction, mechanic's, materialmen's,
municipal or other liens against the Property or any portion thereof, except
that for which full and complete releases have been obtained. If any lien for
any such work is filed before or after Closing, PWCCW shall promptly discharge
the same.
(22) To the best of PWCCW's knowledge, none of the
artwork being a part of the Personal Property was prepared on a "work for hire"
basis and none of the artwork was commissioned after 1991.
(23) To the best of PWCCW's knowledge, all applicable
charges, fees and assessments (including condominium fees, to the extent
applicable) and any and all other sums due under declarations, cross-easements
and like agreements to which the Property or any portion thereof may be subject,
have been paid, and no special assessments thereunder are pending, and all
consents and approvals required to be obtained under any such declarations,
cross-easements and like agreements have been obtained pursuant to the
requirements of such documentation.
-19-
(24) To the best of PWCCW's knowledge, all debts,
liabilities, and obligations of PWCCW arising out of the construction,
ownership, and operation of the Property including, but not limited to,
construction costs, salaries, taxes, accounts payable and the like, have been
paid as they became due and payable and shall continue to be so paid from the
date hereof until the Closing Date.
(b) Each of PWCCW, RKS and PWMC, on its own behalf, hereby
represents and warrants as follows, all of which shall be true and correct on,
and as of, the Effective Date:
(1) That it has received a copy of the Trust's Annual
Report on Form 10-K, as amended, for the fiscal year ended December 31, 1996,
the Trust's Quarterly Reports on Form 10-Q, as amended, for the fiscal quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997, and all Current
Reports on Form 8-K filed by the Trust during fiscal 1997, the Trust's proxy
statement for its annual meeting of shareholders held on May 12, 1997 and a copy
of the Partnership Agreement;
(2) That the Units and the Underlying Shares
(collectively, the "Securities"), are being acquired for its own account without
a view to public distribution or resale and that it has no contract,
undertaking, agreement or arrangement to sell or otherwise transfer or dispose
of any Securities or any portion thereof to any other person (other than from
PWCCW to the PWCCW Partners);
(3) That it understands that the Securities have not
been registered under the Securities Act or the securities laws of any state,
and, as a result thereof, the Securities are "restricted securities" as defined
in Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"),
and are subject to substantial restrictions on transfer;
(4) That it understands that the certificates
evidencing the Securities shall bear a legend indicating that such Securities
have not been registered under the Securities Act or any applicable state
securities laws and the transferability thereof is subject to compliance with
the Securities Act and applicable state securities laws;
(5) That it will not sell or otherwise transfer or
dispose of any Securities or any portion thereof unless the Securities are
registered under the Securities Act and any applicable state securities laws or
it obtains an opinion of counsel which is satisfactory to the Partnership or the
Trust, as appropriate, that the Securities may be sold in reliance on an
exemption from such registration requirements, and that the Securities and
certificates evidencing the same will bear a legend reflecting such
restrictions;
(6) That it understands that (i) except as expressly
set forth in the Registration Rights Agreement attached hereto as Exhibit "L",
neither the Partnership
-20-
nor the Trust has any obligation or intention to register the Securities for
resale under any federal or state securities laws and (ii) it therefore may be
precluded from selling or otherwise transferring or disposing of any Securities
or any portion thereof for an indefinite period of time or at any particular
time;
(7) That in determining to acquire the Securities, it
has relied solely upon its independent investigation, including the advice of
its legal counsel and accountants or other financial and tax advisers or PWCCW
representatives and has, during the course of discussions concerning the
acquisition of the Securities, been offered the opportunity to ask such
questions and inspect such documents concerning the Partnership and the Trust
and their respective businesses and affairs as it has requested so as to more
fully understand the nature of the investment and to verify the accuracy of the
information supplied;
(8) THAT IT UNDERSTANDS THAT THE ACQUISITION OF THE
SECURITIES INVOLVES A HIGH DEGREE OF RISK, and that it can bear the economic
risk of the acquisition of the Securities, including the total loss of its
investment;
(9) That (i) it has adequate means of providing for
its current needs and financial contingencies, (ii) it has no need for liquidity
in this investment, (iii) it has no debts or other obligations, and cannot
reasonably foresee any other circumstances, that are likely in the future to
require it to dispose of the Securities, (iv) all its investments in and
commitments to non-liquid investments are, and after its acquisition of the
Securities will be, reasonable in relation to its net worth and current needs,
and (v) it was not formed for the specific purpose of making an investment in
the Securities;
(10) That it understands that no federal or state
agency has approved or disapproved the Securities, passed upon or endorsed the
merits of the offering of the Securities hereunder, or made any finding or
determination as to the fairness of the Securities for investment; and
(11) That it understands that the Securities are being
offered and distributed in reliance on specific exemptions from the registration
requirements of federal and state securities laws and that each of the
Partnership and the Trust is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings set
forth herein in order to determine the applicability of such exemption and the
suitability of PWCCW and the PWCCW Partners to acquire the Securities. In this
regard it understands that Common Shares will only be issued upon the conversion
or redemption of, or otherwise pursuant to, the Units, if an exemption from the
registration requirements of the Securities Act is then available for such
issuance;
(12) It is an accredited investor, as defined in Rule
501(a) of Regulation D adopted under the Securities Act.
-21-
(c) It is agreed and understood that the Partnership intends to
perform its own due diligence, investigation and analysis in connection with the
transaction contemplated by this Agreement. If and to the extent that the
Partnership determines prior to the Due Diligence Termination Date that any or
all of the representations and warranties made in this Agreement by PWCCW or the
PWCCW Partners shall be untrue as a result of such due diligence, investigation
or analysis, the Partnership shall not be entitled to rely on such
representation(s) and warranty(ies) contained in this Agreement and the same
shall be deemed to have been deleted from this Agreement as to such matters.
Accordingly, in the event that the Partnership has now or hereafter acquires
prior to the Due Diligence Termination Date actual knowledge that one or more of
the representations and warranties of PWCCW or the PWCCW Partners are not true,
no such fact or circumstance known to the Partnership shall be made the basis of
a claim by the Partnership of a breach of representation or warranty by PWCCW or
a Member, as the case may be.
(d) Notwithstanding anything to the contrary contained in this
Agreement, in the event any representation, agreement or undertaking made by
PWCCW or the PWCCW Partners in this Agreement shall prove to be false and the
cost or expense incurred or likely to be incurred by the Partnership as a result
thereof shall not exceed $50,000 in the aggregate, such misrepresentation,
agreement or undertaking shall be deemed "immaterial" and shall not give rise to
any right of the Partnership to terminate or refuse to close title under this
Agreement or give rise to any right of action for money damages or specific
performance and the Partnership hereby waives all its rights, claims and
remedies relating thereto. The Partnership's sole remedy in the event any
representation, agreement or undertaking of PWCCW or the PWCCW Partners which is
discovered by the Partnership at or prior to the Closing herein shall prove to
be false and the cost or expense incurred or likely to be incurred by the
Partnership as a result thereof exceeds $50,000 shall be to terminate this
Agreement by written notice given at or prior to Closing, which notice shall
specify in detail the nature of the misrepresentation and identify in detail the
costs incurred or likely to be incurred by the Partnership, and thereupon the
Partnership shall receive a refund of the Deposit, and PWCCW shall reimburse the
Partnership for the Partnership's Reasonable Costs and Due Diligence Costs. To
the extent the Partnership has actual knowledge that any representation,
agreement or undertaking is false at or prior to the Closing, and does not or is
not permitted to terminate this Agreement, the Partnership hereby waives all of
its rights, claims and remedies relating thereto.
(e) The Partnership and the Trust hereby represent and warrant
as follows, all of which shall be true and correct at, and as of, the Effective
Date:
(1) The Partnership is a limited partnership duly formed
and validly existing under the laws of the State of Delaware, and is in good
standing with the State of Delaware. The Trust is a real estate investment
trust duly formed and validly existing under the laws of the State of Maryland,
and is in good standing with the State Department of Assessments and Taxation of
Maryland.
-22-
(2) Subject to Paragraph 9(e)(5), below, the Partnership
and the Trust have all necessary power and authority to enter into this
Agreement, to perform their obligations hereunder, and to consummate the
transactions contemplated hereby, without the consent or authorization of, or
notice to, any third party, except those third parties to whom such consents or
authorizations have been or will be obtained, or to whom notices have been or
will be given, prior to the Closing. This Agreement constitutes, and the other
documents and instruments to be delivered by the Partnership and the Trust
pursuant hereto when delivered will constitute, the legal, valid and binding
obligations of the Partnership and the Trust, enforceable against the
Partnership and the Trust in accordance with their respective terms.
(3) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will (a) violate any
provision of any organizational document of the Partnership or the Trust, or (b)
constitute a violation of or be in conflict with or constitute a default under
any term or provision of any material agreement, instrument or lease to which
the Partnership or the Trust is a party.
(4) There is no litigation, proceeding or action pending,
or, to the best of the Partnership's or the Trust's knowledge, threatened
against or relating to the Partnership or the Trust which might materially and
adversely affect the ability of the Partnership or the Trust to consummate the
transactions contemplated hereby or which questions the validity of this
Agreement or any action taken or to be taken by the Partnership or the Trust
pursuant hereto.
(5) The execution and delivery of this Agreement shall have
been approved by the Board of Trustees of the Trust on or prior to the Due
Diligence Termination Date and no further action shall thereupon be required on
the part of the Partnership or the Trust to consummate the transaction
contemplated hereby. The signatories for the Partnership and the Trust are
authorized and empowered to bind the Partnership and the Trust to this Agreement
and all transactions contemplated herein.
(6) Except as otherwise set forth in Paragraph 9(e)(5)
above, in connection with the listing application with the NYSE pursuant to
Paragraph 17(d) and the registration of the Underlying Shares pursuant to the
Registration Rights Agreement attached hereto as Exhibit "L" and as required by
any applicable state securities or "blue sky" laws, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental
agency is required in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereunder by
the Trust or the Partnership.
(7) The Partnership has sufficient funds available to
consummate the transactions contemplated by this Agreement, without the
necessity of third-party financing other than other than the Partnership's
existing revolving credit facility administered by Nationsbank, N.A. The
Partnership and the Trust acknowledge that their
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obligations hereunder are not conditioned upon any third party financing or
capital infusion by another party.
(8) The Securities, upon issuance, if any, will be duly and
validly issued, fully-paid and non-assessable.
(9) The information contained in the Trust's Annual Report
on Form 10-K for the year ended December 31, 1996 was prepared in all material
respects in accordance with and complied in all material respects with the
requirements of the rules of the Securities and Exchange Commission, and did not
at the time that it was filed contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(f) As to any representation or warranty made in this Agreement
which is qualified as being to the best knowledge of the Partnership or PWCCW,
it is agreed and understood that such party shall be under no obligation to
conduct any independent investigation or inquiry regarding the matters covered
by such representation and warranty. The Partnership or PWCCW will be deemed to
have knowledge of a particular matter only if the facts and circumstances
thereof are actually known to such party making such representation or warranty.
(g) All of the representations and warranties set forth in this
Paragraph 9 shall be deemed renewed by PWCCW, the PWCCW Partners and the
Partnership on the Closing Date and shall, as a condition to each party's
obligation to close hereunder, be recertified by each party as being true and
correct in all material respects as of the Closing Date as if made at such time
(it being understood that specific, numbered representations and warranties that
speak of a specified date shall only continue to speak as of the date so
specified), and all such representations shall survive for a period of one year
from the Closing.
10. Access To The Property.
(a) The Partnership and/or its agents and representatives,
during normal business hours and after reasonable advance notice to PWCCW, may
enter upon any of the Real Property from time to time prior to the Closing Date,
accompanied by an agent of PWCCW, for purposes of conducting such inspections,
investigations and/or studies as the Partnership deems necessary, including,
without limitation, financial reviews, physical inspections, lease reviews and
environmental reviews and testing, which activities may include test borings and
soil samplings ("the Partnership's Due Diligence Activities"). The
Partnership's access to the Real Property shall be subject to the rights of the
Tenants of any of the Real Property, who shall not be unreasonably disturbed
during any such inspection by the Partnership. The Partnership shall not engage
in any activity in or about the Real Property which directly or indirectly
violates the terms of any governmental or quasi-governmental statute, rule,
regulation, order or practice. The Partnership shall not make any physical
changes to any of the Real
-24-
Property, except for test borings and soil samplings which shall be performed
only by licensed engineers reasonably acceptable to PWCCW and only after three
(3) business days' prior notice to PWCCW. The Partnership may contact any
governmental or quasi-governmental authorities concerning the Property without
the prior written approval of PWCCW. PWCCW shall have the opportunity to
observe any and all action taken by the Partnership or its representatives,
consultants, agents, etc. pursuant to this Paragraph 10. All information set
forth in any document which PWCCW has granted to the Partnership the express
right to review, if any, shall be held in strict confidence until Closing and
thereafter in the event Closing does not occur. If the Partnership violates its
obligations under this Paragraph 10(a) or in the event of any physical damage to
any of the Real Property or any Personal Property resulting, directly or
indirectly, from the exercise by the Partnership of its rights under this
Paragraph 10(a), the Partnership hereby agrees to restore the Real Property and
Personal Property to their respective conditions prior to incurring such damage.
The Partnership hereby agrees to indemnify, defend and hold harmless PWCCW from
and against all physical damage to any of the Real Property and Personal
Property, personal injury and/or any other claims or liability which may occur
as a result of the Partnership's (or the Partnership's agents, employees,
invitees or licensees) entry or activities upon any of the Real Property. The
provisions of this Paragraph 10(a) shall survive Closing or other termination of
this Agreement.
(b) The Partnership, or any of the Partnership's consultants
performing physical tests on the Real Property shall maintain public liability
insurance policies (naming PWCCW as an additional named insured with respect to
any liability occurring on the Real Property), with combined single limit
coverage of at least $1,000,000, insuring against claims arising as a result of
the inspections of the Partnership, its agents, employees or such contractors at
any of the Real Property. A certificate of insurance evidencing the foregoing
coverage shall be delivered to PWCCW prior to the Partnership's or any of the
Partnership's consultants' entry on to any of the Real Property.
(c) In the event Closing does not occur or this Agreement is
terminated, the Partnership shall promptly return to PWCCW any documents
obtained from PWCCW or PWCCW's agents and deliver to PWCCW, without charge,
copies of all written test results, studies, reports and similar materials
obtained by or on behalf of the Partnership relating to any of the Real
Property.
11. Due Diligence Period; Additional Provisions.
(a) During the period commencing on the Effective Date and
ending at 5:00 p.m. E.S.T. on the Due Diligence Termination Date, the
Partnership may, subject to the provisions set forth in Paragraph 10 above,
review all plans and specifications, condition of title, agreements relating to
and the availability of utilities, environmental conditions, the physical
condition of the existing improvements, compliance by the Property with zoning,
licensing and all other governmental requirements, Leases for any of the Real
Property, operating statements pertaining to the Property and all other aspects
and conditions of the Property which the
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Partnership may decide to review (collectively, "the Partnership's Due Diligence
Activities"), all as the Partnership shall deem appropriate). In connection
with the Partnership's Due Diligence Activities, PWCCW has delivered or will
deliver to the Partnership various documents, reports and materials
(collectively, the "PWCCW Due Diligence Materials"). THE PARTNERSHIP
UNDERSTANDS AND HEREBY ACKNOWLEDGES AND AGREES THAT THE PWCCW DUE DILIGENCE
MATERIALS ARE BEING DELIVERED TO THE PARTNERSHIP WITHOUT ANY REPRESENTATION OR
WARRANTY WHATSOEVER BY PWCCW OR BY THE PREPARER OF SUCH PWCCW DUE DILIGENCE
MATERIALS, WITH THE SOLE EXCEPTION OF ANY REPRESENTATION OR WARRANTY AS TO THE
CORRECTNESS, ACCURACY OR COMPLETENESS THEREOF WHICH IS EXPRESSLY SET FORTH IN
THIS AGREEMENT.
(b) If, as a result of the Partnership's Due Diligence
Activities or otherwise, the Partnership shall conclude, for any reason or for
no reason, that it does not wish to proceed with the transaction contemplated
by this Agreement, it may terminate this Agreement by written notice delivered
to and received by PWCCW on or before 5:00 P.M. E.S.T. on the Due Diligence
Termination Date (as to which date time shall be of the essence), with a
simultaneous copy thereof to the Escrow Agent. In the event of such timely
termination of this Agreement by the Partnership, the Escrow Agent shall make
the delivery of funds contemplated under Paragraph 1 of the Escrow Terms, and
this Agreement shall thereupon be null and void and of no further force or
effect, except as to those matters which expressly survive such termination.
(c) PWCCW shall obtain, prior to the Closing the
Non-Applicability Letter and the NJDEP Letter from the NJDEP or its successor.
In furtherance of the foregoing, PWCCW shall apply for the Non-Applicability
Letter promptly after the Effective Date, and shall pursue the same diligently
and in good faith.
(d) The Partnership agrees to prepare and forward to PWCCW, at
the Partnership's sole cost and expense, certificates (the "Estoppel
Certificates") for execution by the Tenants which shall, at the Partnership's
election, either (i) be in such form or contain such information as the Tenant
from whom request is made is obligated under its Lease to execute and deliver
for execution by the Tenants (the "Required Form"), or (ii) in the form annexed
hereto as Exhibit "T". PWCCW agrees to deliver the Estoppel Certificates to the
Tenants promptly after the Partnership's written election as to the form to be
used (which election shall be made not later than five (5) days after the date
hereof), and to use all reasonable and diligent efforts to obtain executed
copies of same from such Tenants prior to the Closing. It shall be a condition
to the Partnership's obligations hereunder that, at or prior to Closing,
Estoppel Certificates shall have been obtained from at least 75% of the Tenants
at each Property, including those identified on Exhibit "U" annexed hereto and
made a part hereof (the "Identified Tenants"), BUT ONLY IF THE INITIAL REQUEST
MADE OF SUCH TENANT WAS FOR AN ESTOPPEL CERTIFICATE IN THE REQUIRED FORM,
provided, however, if an estoppel in the Required Form is not obtained from an
Identified Tenant, PWCCW may, in lieu thereof, deliver its certificate
containing the information set forth on the Required Form, which certificate
shall
-26-
serve as PWCCW's representation as to the facts stated therein, which
representation shall survive for a period of six (6) months following the
Closing. In no event shall the Partnership's obligations under this Agreement
be conditioned, in whole or in part, upon the delivery of Estoppel Certificates
from any Tenant in other than the Required Form.
12. Condemnation. PWCCW covenants and warrants that PWCCW has not
received any written notice of any condemnation proceeding or other proceeding
in the nature of eminent domain in connection with the Real Property, and has no
actual knowledge of any threatened condemnation. As used herein, a "material
taking" shall mean a taking of either an entire Real Property, more than twenty
percent (20%) of a Building or more than 10% of the parking area of a Real
Property. If, prior to the Closing, any such proceeding affecting a material
portion of any of the Real Property is commenced, PWCCW agrees promptly to
notify the Partnership thereof. In the event of a material taking of one or
more Real Property or commencement of proceedings in connection with such a
taking, the Partnership may, at its sole option exercised by delivery of written
notice thereof within ten (10) days after receipt of such written notice
thereof, (x) proceed to Closing as provided in this Paragraph 12 without an
abatement of the Consideration and at Closing PWCCW shall assign to the
Partnership, without recourse, all condemnation proceeds paid or payable with
respect thereto; or (y) terminate this Agreement with respect to the Property as
to which a material taking has occurred, whereupon this Agreement shall
terminate with respect to such Real Property and this Agreement shall continue
in full force and effect with respect to all of the remaining Real Property, and
at Closing, the Partnership shall pay to PWCCW the aggregate of the Allocated
Prices for the remaining Real Property. Provided the Partnership shall have
waived its right to terminate this Agreement with respect to the Real Property
so taken, as provided above, PWCCW shall not, from and after the Due Diligence
Termination Date, settle or adjust any claims relating to a condemnation without
the Partnership's prior approval, which shall not be unreasonably withheld or
delayed.
13. Damage By Fire Or Other Casualty.
(a) PWCCW shall promptly notify the Partnership of damage to the
Improvements occurring by reason of casualty during the period between the
Effective Date and the Closing Date. PWCCW shall timely notify any insurance
companies with respect to any damage and shall promptly submit claims for such
damage. Provided the Partnership shall have waived its right to terminate this
Agreement with respect to the Real Property so damaged, as provided below, PWCCW
shall not, from and after the Due Diligence Termination Date, settle or adjust
any claims relating to a casualty without the Partnership's prior approval,
which shall not be unreasonably withheld or delayed.
(b) If (i) any portion of the Improvements is damaged by fire or
casualty after the Execution Date and the Improvements so damaged are not
repaired or restored on or before Closing to substantially the condition
existing prior to the damage, and (ii) at the time of Closing, the estimated
cost of repairs by reason of such fire or casualty to the
-27-
Improvements, as determined by an independent adjuster is, with respect to any
of the Real Property so damaged, an amount equal to or less than ten percent
(10%) of the Consideration allocated for such Real Property, there shall be no
abatement or adjustment in the Consideration and, provided the loss or damage is
a covered loss under PWCCW's insurance policy, the Partnership shall be required
to purchase all of the Real Property in accordance with the terms of this
Agreement and, at Closing, PWCCW shall assign to the Partnership, without
recourse, all insurance claims and proceeds with respect thereto (less sums
theretofore expended, if any, by PWCCW for emergency repairs or barricades) and
PWCCW shall credit the Partnership at Closing with the amount of any applicable
deductible. PWCCW shall have no liability or obligation with respect to the
condition of any of the Real Property as a result of any such fire or casualty.
If the repair to, or the restoration of, the Improvements so damaged has not
been completed as aforesaid and, at the time of Closing, the estimated cost of
such repair or restoration, as determined by such independent adjuster, for any
of the Real Property is an amount which is greater than ten percent (10%) of the
Consideration allocated for the applicable Real Property, the Partnership may,
at its sole option, (x) proceed to Closing as provided in this Paragraph 13(b)
without an abatement of the Consideration and at Closing PWCCW shall assign to
the Partnership, without recourse, all insurance claims and proceeds with
respect thereto (less sums theretofore expended, if any, by PWCCW for emergency
repairs or barricades) and PWCCW shall credit the Partnership at Closing with
the amount of any applicable deductible; or (y) terminate this Agreement with
respect to the Property which have suffered damage to the Improvements by fire
or other casualty in an amount which exceeds ten percent (10%) of the
Consideration allocated for such Real Property(s) whereupon this Agreement shall
terminate with respect to such damaged Real Property(s) and this Agreement shall
continue in full force and effect with respect to all of the remaining Real
Property, and at Closing, the Partnership shall pay to PWCCW the aggregate of
the Considerations for the remaining Real Property. The Partnership shall
assign all of its right, title and interest in and to any and all insurance
policies and insurance proceeds relating to such of the Real Property for which
this Agreement has been terminated.
14. Default.
(a) If the Partnership shall default in its obligations to pay
the Consideration and complete Closing in accordance with the terms of this
Agreement, then, as PWCCW's sole and exclusive remedy therefor, PWCCW shall be
entitled to retain the Deposit as liquidated and agreed upon damages for the
losses and injuries which PWCCW shall have sustained and suffered as a result of
the Partnership's default, and thereupon this Agreement and the Partnership's
obligations hereunder shall be terminated except as expressly provided in this
Agreement. It is agreed that the provisions of this Paragraph 14(a) for
liquidated and agreed upon damages are a bona fide provision for such and are
not a penalty, the parties understanding that by reason of the withdrawal of the
Real Property from sale to the general public at a time when other parties would
be interested in purchasing such Real Property, that PWCCW shall have sustained
damages which will be substantial, but will not be capable of determination with
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mathematical precision. Therefore, this provision for liquidated and agreed
upon damages has been incorporated as part of this Agreement as a provision
beneficial to both parties.
(b) If PWCCW shall default in its obligation to deliver any of
the Deeds or other items described in Paragraph 5 hereof, upon the Partnership's
(i) tender of the full Consideration and (ii) compliance with all of the
material terms and conditions of this Agreement, the Partnership shall have the
sole option of terminating this Agreement and receiving the return of the
Deposit, together with payment by PWCCW of (A) the Partnership's Reasonable
Costs, and (B) the Partnership's actual, documented out-of-pocket costs and
expenses incurred in connection with its Due Diligence Activity, not to exceed
Seventy Five Thousand Dollars ($75,000) ("Due Diligence Costs") for the entire
Paint Works Property and the Other Properties or (Y) to seek specific
performance of PWCCW's obligation to convey the Real Property in accordance with
this Agreement. If the Partnership elects to terminate this Agreement, upon
payment of the sums described above, PWCCW shall be released and relieved of any
further liability and this Agreement shall thereupon be null and void. Except
as expressly set forth above, the Partnership hereby waives any right which the
Partnership may have to any lis pendens or other lien or encumbrance against any
of the Real Property, equitable relief, consequential or punitive damages, loss
of profits, costs related to in-house or other overhead allocations, and
damages. The remedies set forth herein shall be the Partnership's sole remedies
pursuant to this Agreement, or otherwise at law or in equity shall become null
and void if Closing occurs (except as to obligations hereunder which by their
terms expressly survive Closing), and shall not apply to a defect in title, the
remedies for which are set forth in Paragraph 5(b) hereof, or to any inability
on the part of PWCCW to perform its obligations under this Agreement.
15. Operations Prior To Closing.
(a) PWCCW agrees to operate the Property between the Effective
Date and the Closing Date in the same general manner as PWCCW has operated the
Property during the immediately preceding six (6) month period, paying all costs
and expenses as they come due, and in any event prior to Closing, and
maintaining all insurance coverage currently in force.
(b) PWCCW shall comply with all of the obligations of landlord
under the Leases and all other agreements and contractual arrangements affecting
the Real Property by which PWCCW is bound or to which the Real Property, or any
of them, are subject, and which will be binding upon the Partnership or a lien
upon such Real Property, after the Closing.
(c) PWCCW shall notify the Partnership promptly of PWCCW's
receipt of any notice from any party alleging that PWCCW is in default of its
obligations under any of the Leases or any Permit or agreement affecting the
Real Property, or any portion or portions thereof.
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(d) No contract for or on behalf of or affecting the Real
Property shall be negotiated or entered into which cannot be terminated by PWCCW
upon the Closing without the payment of a specific charge, cost, penalty or
premium for such termination.
(e) Except with the prior written consent of the Partnership,
which the Partnership agrees it shall not unreasonably withhold, condition or
delay, PWCCW shall not enter into any new leases for any portion of the Real
Property. Any new lease shall be on the Partnership's customary form (which may
vary to reflect customary negotiated revisions thereto), or such other form
which is reasonably acceptable to the Partnership. Further, except with the
prior written consent of the Partnership, which the Partnership agrees it shall
not unreasonably withhold, condition or delay, or as set forth above, PWCCW
shall not amend, extend (except where required under the terms of the Lease in
question), terminate (except by reason of a tenant's default), accept surrender
of, or permit any assignments or subleases of, any of the Leases (except as may
be required under such Lease), nor accept any rental more than one (1) month in
advance (exclusive of any security deposit).
(f) PWCCW shall not make or permit to be made any capital
improvements or additions to the Real Property, or any portion thereof, without
the prior written consent of the Partnership, except those made by PWCCW
pursuant to the express requirements of this Agreement, those made by tenants
pursuant to the right to do so under their Leases, or by PWCCW if required by
applicable law or ordinance, or as required under any Lease.
(g) PWCCW shall timely xxxx all tenants for all rent billable
under Leases, and use commercially reasonable efforts to collect any rent in
arrears.
(h) PWCCW shall notify the Partnership of any tax assessment
disputes (pending or threatened) prior to Closing, and from and after the Due
Diligence Expiration Date, PWCCW not agree to any changes in the real estate tax
assessment, nor settle, withdraw or otherwise compromise any pending claims with
respect to tax assessments relating to the current or any subsequent year,
without the Partnership's prior written consent, which shall not be unreasonably
withheld, delayed or conditioned. If any proceedings shall result in any
reduction of assessment and/or tax for the tax year in which the Closing occurs,
it is agreed that the amount of tax savings or refund for such tax year, less
the reasonable fees and disbursements in connection with such proceedings, shall
be apportioned between the parties as of the date real estate taxes are
apportioned under this Agreement. All refunds relating to any tax year prior to
the Closing shall be the sole property of PWCCW, and all refunds relating to any
year subsequent to the year in which Closing occurs shall be the sole property
of the Partnership. Each party agrees to promptly remit to the other any refund
received by it which is the property of the other.
(i) PWCCW shall notify the Partnership promptly of the
occurrence of any of the following:
(i) Receipt of notice from any governmental or
-30-
quasi-governmental agency or authority or insurance underwriter relating to the
condition, use or occupancy of the Real Property, or any portion thereof;
(ii) Receipt of any notice of default from any tenant or
from the holder of any lien or security interest in or encumbering the Real
Property, or any portion thereof;
(iii) Notice of any actual or threatened litigation
against PWCCW or affecting or relating to the Real Property, or any portion
thereof which may materially and adversely affect the Real Property or PWCCW's
ability to consummate the transactions contemplated by this Agreement; or
(iv) Vacancy of any demised Property by a tenant, other than
in accordance with a scheduled lease termination.
16. PROPERTY CONVEYED "AS-IS, WHERE IS". IT IS UNDERSTOOD AND AGREED
THAT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, PWCCW IS NOT
MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND
OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL,
ENVIRONMENTAL OR PHYSICAL CONDITION OF ALL OF THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE, ZONING, TAX
CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF ACCESS,
INGRESS OR EGRESS, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR
AFFECTING THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION OF THE
PROPERTY INCLUDING, WITHOUT LIMITATION: (I) THE VALUE, CONDITION,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE OF ANY OF THE PROPERTY, (II) THE MANNER OR QUALITY OF
THE CONSTRUCTION OR MATERIALS INCORPORATED INTO ANY OF THE PROPERTY AND (III)
THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE PROPERTY.
THE PARTNERSHIP AGREES THAT WITH RESPECT TO THE PROPERTY, THE PARTNERSHIP HAS
NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF PWCCW OR ANY AGENT OF PWCCW NOT EXPRESSLY SET
FORTH IN THIS AGREEMENT. THE PARTNERSHIP REPRESENTS THAT IT IS A KNOWLEDGEABLE
THE PARTNERSHIP OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN
EXPERTISE AND THAT OF THE PARTNERSHIP'S CONSULTANTS, AND THE REPRESENTATIONS AND
WARRANTIES OF PWCCW CONTAINED IN THIS AGREEMENT, SUBJECT, HOWEVER, TO THE
LIMITATIONS CONTAINED HEREIN UPON SUCH REPRESENTATIONS AND WARRANTIES, AND THAT
PWCCW HAS OR SHALL HAVE AFFORDED THE PARTNERSHIP WITH A FULL
-31-
AND COMPLETE OPPORTUNITY TO MAKE ITS OWN INDEPENDENT INVESTIGATION OF THE
PROPERTY AND ALL MATTERS PERTAINING THERETO INCLUDING, BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF AND, UPON CLOSING, SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL
AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY THE PARTNERSHIP'S
INSPECTIONS AND INVESTIGATIONS. THE PARTNERSHIP ACKNOWLEDGES AND AGREES THAT,
UPON CLOSING, PWCCW SHALL SELL AND CONVEY TO THE PARTNERSHIP AND THE PARTNERSHIP
SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS," WITH ALL FAULTS, AND THERE ARE NO
ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS (EXCEPT AS HEREIN SPECIFICALLY
PROVIDED), COLLATERAL TO OR AFFECTING ANY OF THE PROPERTY BY PWCCW, ANY AGENT OF
PWCCW OR ANY THIRD PARTY. THE PARTNERSHIP EXPRESSLY AGREES THAT THE TERMS AND
CONDITIONS OF THIS PARAGRAPH 16 SHALL EXPRESSLY SURVIVE THE CLOSING AND NOT
MERGE THEREIN AND PWCCW IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO ANY OF THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO IN THIS
AGREEMENT.
17. Conditions Precedent to Closing.
The obligations of the Partnership hereunder are subject to the
fulfillment of the following conditions prior to or on the Closing Date (any one
of which may be waived in whole or in part by the Partnership at or prior to the
Closing) and in the event any of the conditions are not complied with, the
Partnership may terminate this Agreement by notifying the PWCCW and Escrow Agent
and thereupon shall be returned the Deposit and thereafter this Agreement shall
be null and void:
(a) Correctness of Warranties and Representations. The
warranties and representations made by PWCCW and the PWCCW Partners in this
Agreement shall be true and correct on the Closing Date as though such
representations and warranties were made on the Closing Date (except for changes
in the Leases permitted under the terms of this Agreement).
(b) Compliance with Terms and Conditions. PWCCW shall have
performed and complied with all of the terms and conditions required by this
Agreement, including, without limitation, the delivery of all required documents
pursuant to Paragraph 6(a), to be performed and complied with by it prior to or
on the Closing Date.
(c) The Partnership's Satisfaction with Inspection. The
Partnership shall have notified PWCCW of the Partnership's satisfaction with the
inspection performed under
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Paragraph 11 of this Agreement, or shall fail to notify PWCCW on or before the
Due Diligence Expiration Date, of the Partnership's dissatisfaction with the
results of such review.
(d) Exchange Approval. On or prior to the Closing Date, the
Underlying Shares shall have been approved for listing with the NYSE, upon
official notice of issuance.
(e) Shareholder Approval. The Partnership shall have received
confirmation that the issuance of the Securities will not require approval of
the Trust's security holders under the rules of the NYSE.
(f) 9.8% Limitation. The number of Underlying Shares shall not
exceed that number that is equal to 9.8% of the number of outstanding Common
Shares of the Trust.
(g) Issuance of the Units. The issuance of the Units, if any,
shall be (i) exempt from the registration requirements of the Securities Act and
(ii) either exempt from, or registered pursuant to, any applicable state
securities or "blue sky" registration requirements.
18. Brokers.
(a) PWCCW and the Partnership each represent to the other that
neither PWCCW nor the Partnership has dealt with any real estate broker, dealer
or salesman in connection with the subject transaction.
(b) PWCCW and the Partnership shall and hereby each agree to
indemnify, defend, and hold harmless the other from and against any loss,
damage, or claim resulting from a breach of the representations of PWCCW and the
Partnership set forth in Paragraph 18(a) hereof.
(c) The provisions of this Paragraph 18 shall survive Closing
hereunder, or any other termination of this Agreement.
19. Notices. All notices, requests and other communications required
or permitted to be given under this Agreement shall be in writing and shall be
delivered (i) in person, or (ii) by certified mail, return receipt requested, or
(iii) by recognized overnight delivery service providing positive tracking of
items (for example, Federal Express), or (iv) by confirmed telecopier, in each
case addressed as follows (or at such other address of which PWCCW or the
Partnership shall have given notice as herein provided):
If to the Partnership, addressed to:
Brandywine Operating Partnership, L.P.
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Xxxxxxx Xxxxxx Corporate Campus
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer
with a copy in each instance to:
Xxxx X. Xxxxxxxx, General Counsel
Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
If to PWCCW or Member, addressed to:
Scarborough Properties
00 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: X. Xxxxxx Xxxxxxxxxxx
with a copy in each instance to:
Xxxxx Xxxxx, Esquire
00 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
If to Escrow Agent, addressed to:
M. Xxxxxx Xxxxxxx, Esquire
Commonwealth Land Title Insurance Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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. All such notices, requests and other
communications shall be deemed to have been sufficiently given for all purposes
hereof only if given pursuant to the foregoing requirements as to both manner
and address, and only upon receipt (or refusal to accept delivery) by the party
to whom such notice is sent. Notices by the parties may be given on their
behalf by their respective attorneys.
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20. Successors And Assigns. Except to a subsidiary or related party,
the Partnership may not assign this Agreement or any rights herein or any
portion hereof without the prior written consent of PWCCW, which may be withheld
for any reason or for no reason, except that no such consent shall be required
to an assignment of this Agreement by the Partnership to the Trust or a
subsidiary of the Partnership. This Agreement shall apply to, inure to the
benefit of and be binding upon and enforceable against the parties hereto and
their respective permitted successors and assigns, to the same extent as if
specified at length throughout this Agreement.
21. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
counterparts together shall constitute one and the same Agreement.
22. Time Of The Essence. Time is of the essence of each and every
provision in this Agreement. If any time period or date ends on a day or time
which is a weekend, legal holiday or bank holiday, such period shall be extended
to the same time on the next business day.
23. Judicial Interpretation. Should any provision of this Agreement
require judicial interpretation, it is agreed that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation of this Agreement.
24. Captions And Recitals. The captions contained herein are not a
part of this Agreement and are included solely for the convenience of the
parties.
25. Entire Agreement. This Agreement and the Exhibits and Schedules
attached hereto contains the entire agreement between the parties relating to
the acquisition of the Property, all prior negotiations between the parties are
merged by this Agreement and there are no promises, agreements, conditions,
undertakings, warranties or representations, oral or written, express or
implied, between them other than as herein set forth. No change or modification
of this Agreement shall be valid unless the same is in writing and signed by the
parties hereto. No waiver of any of the provisions of this Agreement, or any
other agreement referred to herein, shall be valid unless in writing and signed
by the party against whom it is sought to be enforced.
26. Governing Law; Venue.
(a) This Agreement and the rights and duties of the parties
hereto and the validity, construction, enforcement and interpretation of this
Agreement shall be governed by the laws of the State of New Jersey.
(b) With regard to any litigation arising out of or involving
this Agreement, each party hereto: (i) irrevocably submits to the jurisdiction
of the state and federal
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courts of the State of New Jersey and agrees and consents to service of process
being made upon it in any legal proceeding arising out of or in connection
herewith by service of process provided by the law of the State of New Jersey;
(ii) irrevocably waives, to the fullest extent permitted by law, any objection
which it now or hereafter may have to the laying of venue of any litigation
arising out of or in connection with this Agreement brought in the State Courts
of New Jersey or the United States District Court for the District of New
Jersey; (iii) irrevocably waives any claims that any litigation brought in any
such court has been brought in an inconvenient forum; and (iv) irrevocably
agrees that any legal proceeding against any party hereto arising out of or in
connection with this Agreement shall be brought in either the State Courts of
New Jersey or the United States District Court for the District of New Jersey.
27. Confidentiality. Each of the parties to this Agreement covenants
that it shall not communicate the terms or any aspect of this transaction prior
to the Closing with any person or entity other than the other parties to this
Agreement, except for the Trust, and the Partnership's agents, consultants,
counsel and representatives in connection with the Partnership's Due Diligence
Activities and financing purposes, unless the Trust is advised by its counsel
that applicable securities laws and regulations require. In addition, the
Partnership covenants that if it undertakes any investigation of the Property,
it shall conduct such investigation of the Property as described herein and with
the degree of confidentiality as the Partnership would apply with respect to its
own proprietary information. Notwithstanding the foregoing, at any time after
expiration of the Due Diligence Period, the Partnership may issue one or more
press releases (which shall not disclose financial terms), if necessary or
appropriate to comply with applicable securities laws and regulations.
28. Limitation Of Liability. No recourse shall be had for any
obligation of the Partnership of the 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, partner, officer or employee of 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 PWCCW and all parties claiming by, through or under PWCCW.
Except for breaches of obligations, representations or warranties
hereunder or under the environmental indemnity set forth in this Agreement which
shall be full recourse to the general partners and PWCCW, no recourse shall be
had for any obligation of PWCCW 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
limited partner, general partner or employee of PWCCW 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
Partnership and all parties claiming by, through or under the Partnership.
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29. SEC Reporting Requirements. For the period of time commencing on
the date hereof and continuing through the first anniversary of the Closing
Date, PWCCW shall, from time to time, upon reasonable advance written notice
from the Partnership, provide the Trust and its representatives, with access to
all financial and other information then in PWCCW's possession pertaining to the
period of PWCCW's ownership and operation of the Real Property, which
information is relevant and reasonably necessary, in the opinion of the Trust's
outside, third party accountants (the "Accountants"), to enable the Trust and
its Accountants to prepare financial statements in compliance with any or all of
(a) Rule 3-05 or 3-14 of Regulation S-X of the Securities and Exchange
Commission (the "Commission"), as applicable; (b) any other rule issued by the
Commission and applicable to the Trust; and (c) any registration statement,
report or disclosure statement filed with the Commission by, or on behalf of the
Trust. PWCCW shall deliver to the Trust's accountants a representation letter
(the "Letter"), in the form annexed hereto as Exhibit "V", provided that the
Partnership (and any assignee or designee acquiring title to the Real Property)
shall indemnify and hold PWCCW harmless from and against any claim, damage, loss
or liability including, without limitation, legal fees incurred by PWCCW in
investigating, defending against or settling any such matter and the amount of
any such settlement to which PWCCW is at any time subjected, bonafide or not, by
any person who is not a party to this Agreement as a result of its delivery of
the information described in this Paragraph, or delivery of the Letter. The
Partnership acknowledges that PWCCW is not making any representation or warranty
regarding such information as is delivered in accordance with the terms of this
Paragraph except to the extent set forth in the Letter or otherwise expressly
set forth in this Agreement.
30. Partial Invalidity. If any term, covenant or condition of this
Agreement, or the application thereof, to any person or circumstance shall be
invalid or unenforceable at any time or to any extent, then the remainder of
this Agreement, or the application of such term, covenant or condition to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Each term, covenant and condition
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
31. No Recordation. The Partnership shall not be entitled to record
this Agreement or a memorandum or other notice of this Agreement in any public
office. This Paragraph shall be deemed to be a specific directive to the
officials of such public office NOT to accept this Agreement or a memorandum or
other notice of this Agreement for recordation in any form whatsoever. Any
violation of the provisions of this Paragraph 32 shall constitute an immediate
default by the Partnership under this Agreement.
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32. Tender. Formal tender of an executed deed and purchase money is
hereby waived by the Partnership.
33. Further Assurances. After the Closing, PWCCW shall execute,
acknowledge and deliver, for no further consideration, all assignments,
transfers, deeds and other documents as the Partnership may reasonably request
to vest in the Partnership and perfect the Partnership's right, title and
interest in and to the Property.
34. Jury Trial Waiver. THE PARTNERSHIP AND PWCCW HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREE THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE
A JUDGE SITTING WITHOUT A JURY.
35. No Offer. THE DELIVERY OF THIS AGREEMENT DOES NOT CONSTITUTE AN
OFFER AND THIS AGREEMENT SHALL NOT BE BINDING AND SHALL HAVE NO FORCE AND EFFECT
UNLESS AND UNTIL A FULLY EXECUTED COUNTERPART HEREOF HAS BEEN DELIVERED TO EACH
OF THE PARTIES. IT IS EXPRESSLY UNDERSTOOD THAT PWCCW HAS NO OBLIGATION TO
EXECUTE THIS AGREEMENT.
36. General Indemnification.
(a) Without limitation of any other PWCCW indemnity obligations
set forth herein, from and after the Closing Date, PWCCW shall indemnify, defend
and save and hold harmless the Partnership and the Trust, and their respective
partners, trustees, directors, officers and employees, of, from and against any
and all loss, cost, expense, damage, claim, and liability, including reasonable
attorney's fees and court costs, including, without limitation, attorney's fees
and costs associated with the enforcement of PWCCW's indemnification obligations
for all claims brought within one year of such Closing except for any
environmental claim which may be made at any time (hereinafter collectively,
"Losses") which the Partnership or the Trust may suffer or incur, resulting
from, relating to, or arising in whole or in part, from or out of (i) any
misrepresentation or breach of a representation or warranty by PWCCW contained
in this Agreement; (ii) any failure to fulfill any covenant or agreement of
PWCCW contained in this Agreement; (iii) all litigation and the environmental
condition of the Property hereto; (iv) any and all actions, suits,
investigations, proceedings, demands, assessments, audits, judgments, and/or
claims arising out of or relating to any of the foregoing.
(b) Promptly after receipt by the Partnership or the Trust of
written notice of the commencement of any suit, audit, demand, judgment, action,
investigation or proceeding (a "Third Party Action") or promptly after the
Partnership or the Trust incurs a Loss or has knowledge of the existence of a
Loss, the Partnership or the Trust, as the case may be, will, if a
-38-
claim with respect thereto is to be made against PWCCW due to PWCCW's obligation
to provide indemnification hereunder, give PWCCW written notice of such Loss or
the commencement of any Third Party Action; provided, however, that the failure
to provide such notice within a reasonable period of time shall not relieve
PWCCW of any of its obligations hereunder. Promptly after receiving such
notice, PWCCW will, upon notice to the Partnership or the Trust, as the case may
be, have the right to assume and control the defense and settlement of any such
Third Party Action at its own cost and expense; provided, however, that it shall
be a condition precedent to the exercise of such right by PWCCW that PWCCW shall
agree in writing that the Loss, or Third Party Action, as the case may be, is
properly within the scope of the indemnification obligation and that as between
the parties, PWCCW shall be responsible to satisfy and discharge such Third
Party Action. PWCCW shall not enter into any resolution or other compromise of
a Third Party Action without obtaining the complete release of the Partnership
or the Trust, as appropriate, for any liability to all claimants under or
pursuant to such Third Party Action. The Partnership or the Trust, as the case
may be, shall have the right to participate in any such defense, contest or
other protective action at its own cost and expense.
(c) Notwithstanding the foregoing, the Partnership or the
Trust, as the case may be, shall have the right to assume and control the
defense and settlement of a Third Party Action (a) if such action includes
claims for equitable relief which, if determined adversely to the Partnership or
the Trust, as the case may be, could reasonably be expected to interfere with
its intended business operations or damage its business reputation or (b) if
PWCCW fails to do so in a timely manner. In any circumstances in which the
Partnership or the Trust, as the case may be, undertakes to control the Third
Party Action as provided in this paragraph, it shall (i) not enter into any
resolution or other compromise involving monetary damages without obtaining the
prior written consent of PWCCW provided that such written consent may not be
withheld if it would interfere with the Partnership's or the Trust's, as the
case may be, business operation and (ii) keep PWCCW informed on an ongoing basis
of the status of such Third Party Action and shall deliver to PWCCW, copies of
all documents related to the Third Party Action reasonably requested by PWCCW.
The Partnership or the Trust, as the case may be, shall act to assure that all
attorneys' fees and expenses incurred in connection therewith are reasonable.
37. Environmental Indemnification.
(a) Reference is made to a certain environmental investigation
currently being undertaken by Xxxxxxx Xxxxxxxx Company ("Xxxxxxx Xxxxxxxx")
pursuant to those certain directives and the administrative consent orders
entered into by and between the New Jersey Department of Environmental
Protection ("NJDEP") and Xxxxxxx Xxxxxxxx, copies of which are attached hereto
(the "Administrative Consent Orders") concerning the premises known and
designated as Block 8.01, Lots 3.01, 3.03, 3.04, 3.05 and 3.06, and Block 19.01,
Lots 1, 1.01 and 1.07 (the "ACO Premises"). In the event Xxxxxxx Xxxxxxxx fails
to comply with all applicable Administrative Consent Orders or fails to perform
all investigation and remediation required by NJDEP with respect to the ACO
Premises, then in that event Seller and Xxxxxx Xxxxxxxxxxx shall perform all of
Xxxxxxx Xxxxxxxx' obligations relating to the ACO Premises arising under or in
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connection with the Administrative Consent Orders or under applicable
Environmental Laws, including without limitation, all investigation and
remediation required by NJDEP. Seller and Xxxxxx Xxxxxxxxxxx shall correct all
environmental issues required because of the Administrative Consent Orders
concerning the ACO Premises in accordance with all Environmental Laws, and, in
connection therewith, Seller and Xxxxxx Xxxxxxxxxxx shall have the right to
remediate any contamination in the most cost effective manner practicable under
the circumstances, including without limitation, employing engineering or
institutional controls, or both, a groundwater classification exception area or
well restriction area, so long as such method of remediation is reasonably
acceptable to Buyer and the NJDEP and shall not materially interfere with
Buyer's operation of the ACO Premises as a commercial office complex.
(b) Buyer shall cooperate with Seller and Xxxxxx Xxxxxxxxxxx in
connection with all investigation and remediation undertaken by Seller or Xxxxxx
Xxxxxxxxxxx, or both, by providing all information and signing all documentation
reasonably requested of Buyer with respect to Seller and Xxxxxx Xxxxxxxxxxx
complying with their obligations under this Section.
(c) Seller and Xxxxxx Xxxxxxxxxxx shall indemnify, defend and
hold Buyer harmless from and against any and all Environmental Claims relating
to or arising under the Administrative Consent Orders and the ACO Premises,
including without limitation, claims, liabilities, losses, damages, penalties
and costs, reasonable counsel, engineering and other professional and expert
fees, to the extent resulting from a breach by Seller and Xxxxxx Xxxxxxxxxxx, in
their performance of the obligations imposed upon Seller and Xxxxxx Xxxxxxxxxxx
under this Section. In no event, however, shall Seller or Xxxxxx Xxxxxxxxxxx be
obligated to Buyer for consequential damages, including without limitation, lost
profits or lost opportunities, or both, nor shall they have any liability or
responsibility with respect to a spill, release or discharge of contaminants
occurring from and after Closing, unless such post-closing Environmental Claim,
spill, release or discharge shall be the result of any action undertaken or
omissions by Seller or Xxxxxx Xxxxxxxxxxx in connection with the obligations
required under the Administrative Consent Orders. In the event Buyer desires to
make a claim against Seller or Xxxxxx Xxxxxxxxxxx, or both, under this
indemnification, Seller shall give prompt notice to Seller and Xxxxxx
Xxxxxxxxxxx in accordance with the procedures outlined in Section 26(b) above,
of the claim, including without limitation the details of the claim. Seller and
Xxxxxx Xxxxxxxxxxx shall have the right to employ counsel of their choice which
is reasonably acceptable to Buyer, to undertake any defense with respect to any
action commenced, which may be the subject of this indemnification and Buyer
shall cooperate with Seller and Xxxxxx Xxxxxxxxxxx in connection with the
defense of any such action, including without limitation, providing testimony at
deposition and trial and signing all documents reasonably requested by Seller or
Xxxxxx Xxxxxxxxxxx, or both, in connection with the defense of such action.
Buyer shall not undertake to settle any action which may be the subject of this
indemnification unless and until Seller and Xxxxxx Xxxxxxxxxxx shall have
consented to such request or have failed to satisfy their indemnification and
defense obligations imposed pursuant to this Section.
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(d) Buyer shall indemnify, defend and hold Seller and Xxxxxx
Xxxxxxxxxxx harmless from and against any and all Environmental Claims,
liabilities, losses, damages, penalties and costs, reasonable counsel,
engineering and other professional and expert fees, to the extent resulting from
a spill, release or discharge of any contaminant occurring from and after the
closing of title (unless due to the actions of Seller or Xxxxxx Xxxxxxxxxxx).
In no event, however, shall Buyer be obligated to Seller or Xxxxxx Xxxxxxxxxxx,
or both, for consequential damages, including without limitation, lost profits
or lost opportunities, or both. In the event Seller or Xxxxxx Xxxxxxxxxxx, or
both, desire to make a claim against Buyer under this indemnification, they
shall give prompt notice to Buyer of the claim pursuant to the notice provisions
outlined in Section 26(b) above, including without limitation the details of the
claim. Buyer shall have the right to employ counsel of its choice to undertake
any defense with respect to any action commenced, which may be the subject of
this indemnification and Seller and Xxxxxx Xxxxxxxxxxx shall cooperate in
connection with the defense of any such action, including without limitation,
providing testimony at deposition and trial and signing all documents reasonably
requested by Buyer, in connection with the defense of such action. Neither
Seller nor Xxxxxx Xxxxxxxxxxx shall undertake to settle any action which may be
the subject of this indemnification unless and until Buyer shall have failed to
satisfy its indemnification and defense obligations imposed pursuant to the this
paragraph.
(e) In addition to and not by way of limitation of the
foregoing, in the event that Materials of Environmental Concern have
historically, or in the future do, xxxxx, migrate, spill, escape or are released
from the ACO Premises onto adjacent or appurtenant property of the Partnership
which is being acquired at Closing (a "Migratory Event"), PWCCW's and Xxxxxx
Xxxxxxxxxxx'x indemnification and remediation obligations hereunder shall extend
to and be applicable to such Migratory Event.
The obligations set forth in this Section 36(d) shall survive the
Closing of the transactions contemplated by the Agreement without any limitation
on time whatsoever.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
have duly executed this Agreement as of the day and year first above stated.
PWCWW
By: THE PAINT WORKS MANAGEMENT
CORPORATION, its authorized
general partner
By: /s/Xxxx Xxxxxxxxxxx
---------------------------------
Xxxx Xxxxxxxxxxx, President
/s/Xxxxxx X. Xxxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxxx, its authorized
general partner
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: BRANDYWINE REALTY TRUST, its sole general
partner
By: /s/Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
BRANDYWINE REALTY TRUST
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
EXECUTIONS CONTINUED
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The Undersigned Hereby Acknowledges
Receipt Of The Deposit And Agrees To
Hold And Apply The Same In Accordance
With The Provisions Of The Escrow Terms
Commonwealth Land Title Insurance Company:
By: /s/M. Xxxxxx Xxxxxxx
------------------------------------
M. Xxxxxx Xxxxxxx
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EXECUTION
1, 2, 4, 5, 7, 00 XXXXXX XXXXXX, 0 XXXX XXXXXXXXX XXXXX
XXX 0 XXXXXX XXXXXX AVENUE
AGREEMENT
AMONG
PWCCW
XXXXXX X. XXXXXXXXXXX AND THE PAINT WORKS MANAGEMENT CORPORATION,
BRANDYWINE OPERATING PARTNERSHIP, L.P.
AND
BRANDYWINE REALTY TRUST
Dated as of December 5, 1997
LIST OF EXHIBITS
Exhibit A Description of Land
Exhibit B List of Contracts
Exhibit C Certified Rent Roll
Exhibit D Permitted Exceptions
Exhibit E Excluded Personal Property
Exhibit F The Other Properties
Exhibit G Form of Deed
Exhibit H Xxxx of Sale
Exhibit I Form of Assignment(s)
Exhibit J Form of Non-Foreign Person Certification
Exhibit K NJDEP Letter
Exhibit L Registration Rights Agreement
Exhibit M Tax Indemnity
Exhibit N Investor Questionnaire
Exhibit O Guaranty
Exhibit P Pending Litigation
Exhibit Q Contracts Not Terminable with 30 days Notice
Exhibit R Outstanding Brokerage Commissions and TI
Exhibit S-1 Environmental Report
Exhibit S-2 Environmental Conditions
Exhibit S-3 Administrative Consent Orders
Exhibit T Form of Estoppel Certificate
Exhibit U Identified Tenants
Exhibit V Representation Letter
