AGREEMENT OF SALE
between
WOODCREST ROAD ASSOCIATES, L.P.,
WOODCREST ROAD URBAN RENEWAL, LLC,
AND
OWNERS
(SELLER)
AND
HARVARD PROPERTY TRUST, LLC
D/B/A BEHRINGER HARVARD FUNDS
(BUYER)
TABLE OF CONTENTS
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ARTICLE 1 Definitions 1
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ARTICLE 2 Purchase and Sale 7
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ARTICLE 3 Due Diligence Review; Condition of Acquired Assets and Title 12
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ARTICLE 4 Closing 16
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ARTICLE 5 Apportionments and Allocation of Expenses 19
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ARTICLE 6 Representations, Warranties, Acknowledgements and Covenants 21
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ARTICLE 7 Seller's Affirmative Covenants 31
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ARTICLE 8 Conditions to Obligations of Seller and Buyer to Closing 33
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ARTICLE 9 Environmental 35
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ARTICLE 10 Risk of Loss 35
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ARTICLE 11 Remedies Upon Default 36
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ARTICLE 12 Miscellaneous 37
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EXHIBITS
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SCHEDULE I Owners
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EXHIBIT A Transferred Contracts
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EXHIBIT B Transferred Permits
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EXHIBIT C Escrow Agreement
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EXHIBIT D Tenant Estoppel Certificates
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EXHIBIT E-1 Assignment of General Partnership Interests and First Amendment to
Amended and Restated Limited Partnership Agreement of WRAAP
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EXHIBIT E-2 Assignment of Limited Partnership Interests and Consent to First
Amendment to Amended and Restated Limited Partnership Agreement of
WRAAP
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EXHIBIT F-1 Assignment of Manager and Membership Rights and Interests and First
Amendment to Operating Agreement of WRUR
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EXHIBIT F-2 Assignment of Membership Rights and Interests and Consent to First
Amendment to Operating Agreement of WRUR
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EXHIBIT G Authorizations, Consents and Notices
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EXHIBIT H Ownership Interests
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EXHIBIT I Legal Description
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EXHIBIT J Personal Property
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EXHIBIT K Intangible Personal Property
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EXHIBIT L Contracts
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EXHIBIT M Litigation
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EXHIBIT N Environmental Reports
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EXHIBIT O Leases
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EXHIBIT P Brokerage Agreements
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EXHIBIT Q Rent Roll
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2
AGREEMENT OF SALE
AGREEMENT OF SALE dated the ____ day of December, 0000, xxxxxxx
XXXXXXXXX XXXX ASSOCIATES, L.P., a Pennsylvania limited partnership (d/b/a
WRAAP, L.P. in New Jersey) ("WRAAP"), WOODCREST ROAD URBAN RENEWAL, LLC, a New
Jersey limited dividend and liability company qualified as an urban renewal
entity ("WRUR"), and those Persons identified and having an address as set forth
on Schedule I attached hereto ("OWNERS")(WRAAP, WRUR and Owners, collectively,
"SELLER") each having an office at c/o X'Xxxxx Properties Group, 000 X.
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000, and HARVARD
PROPERTY TRUST, LLC, a Delaware limited liability company doing business as
Behringer Harvard Funds ("BUYER") having an address at 00000 Xxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000.
WITNESSETH:
THAT the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS
In addition to the defined terms contained elsewhere in this Agreement,
the following terms shall have the following definitions:
"AFFILIATE" shall mean, with respect to any Person, any other
Person that directly, or through one or more intermediaries, controls or is
controlled by or is under common control with such Person.
"AGREEMENT" shall mean this Agreement of Sale, together with all
Exhibits attached hereto, as it and they may be amended from time to time.
"APPURTENANCES" shall have the meaning assigned to such term in
Section 6.1(a)(vi) of this Agreement.
"ACQUIRED ASSETS" shall have the meaning assigned to such term
in Section 2.2(a) of this Agreement.
"ASSUMED LIABILITIES" shall have the meaning assigned to such
term in Section 2.3(a) of this Agreement.
"BUILDING" shall mean the commercial office building located on
the Land.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or any other day on which banking institutions in the State of New Jersey are
authorized by law or executed action to close.
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"BUYER" shall have the meaning assigned to such term in the
Preamble of this Agreement.
"CLOSING" shall have the meaning assigned to such term in
Section 4.1 of this Agreement.
"CLOSING DATE" shall have the meaning assigned to such term in
Section 4.1 of this Agreement.
"COMMITMENT" shall have the meaning assigned to such term in
Section 3.2(a) of this Agreement.
"CONDOMINIUM ASSOCIATION" shall mean the 111 Woodcrest
Condominium Association, Inc., a New Jersey nonprofit corporation.
"CONTRACTS" shall have the meaning assigned to such term in
Section 6.1(b)(ii) of this Agreement.
"DAMAGED PROPERTY" shall have the meaning assigned to such term
in Section 10.1 of this Agreement.
"DEPOSIT" shall have the meaning assigned to such term in
Section 2.4(c) of this Agreement.
"DUE DILIGENCE EXPIRATION DATE" shall have the meaning assigned
to such term in Section 3.1(a) of this Agreement.
"DUE DILIGENCE REVIEW" shall have the meaning assigned to such
term in Section 3.1(a) of this Agreement.
"EDST" shall mean Eastern Daylight Savings Time.
"EFFECTIVE DATE" shall mean the date on which the last party
executes and delivers this Agreement.
"ESCROW AGENT" shall mean the Title Company.
"EXCLUDED ASSETS" shall have the meaning assigned to such term
in Section 2.2(b) of this Agreement.
"EXCLUDED LIABILITIES" shall have the meaning assigned to such
term in Section 2.3(b) of this Agreement.
"EXTENSION NOTICE" shall have the meaning assigned to such term
in Section 4.1 of this Agreement.
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"GOVERNMENTAL AUTHORIZATION" shall mean any approval, consent,
license, permit, waiver, or other authorization issued, granted, given, or
otherwise made available by or under the authority of any Governmental Body or
pursuant to any Legal Requirement.
"GOVERNMENTAL BODY" shall mean any: (a) nation, state, county,
city, town, village, district, or other jurisdiction of any nature; (b) federal,
state, local, municipal, foreign, or other government; (c) governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal); (d)
multi-national organization or body; or (e) body exercising, or entitled to
exercise, any administrative, executive, judicial, legislative, police,
regulatory, or taxing authority or power of any nature.
"GROUND LEASE" shall have the meaning assigned to such term in
Section 6.1(a)(vi) of this Agreement.
"HAZARDOUS SUBSTANCES" shall have the meaning assigned to such
term in Section 6.1(b)(viii) of this Agreement.
"IMPROVEMENTS" shall have the meaning assigned to such term in
Section 6.1(a)(vi) of this Agreement.
"INITIAL DEPOSIT" shall have the meaning assigned to such term
in Section 2.4(a) of this Agreement.
"INTANGIBLE PERSONAL PROPERTY" shall have the meaning assigned
to such term in Section 6.1(a)(vi) of this Agreement.
"INVENTORY" shall have the meaning assigned to such term in
Section 6.1(a)(vi) of this Agreement.
"LAND" shall have the meaning assigned to such term in Section
6.1(a)(vi) of this Agreement.
"LAW" shall mean any federal, state, local or foreign law,
statute, ordinance, rule, regulation, judgment, order, injunction, decree,
arbitration award, agency requirement, license or permit of any Governmental
Entity.
"LEASES" shall mean all of the leases, subleases, licenses to
use space, occupancy agreements and tenancies with respect to the Property (or
any portion thereof), together with all guarantees thereof, and together with
all amendments, modifications, supplements and renewals
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of any of the foregoing, which are in effect as of the Effective Date for all of
the Property as described on EXHIBIT O attached hereto.
"LEGAL REQUIREMENT" shall mean any federal, state, local,
municipal, foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute, or
treaty.
"LIEN" shall mean any lien, judgment, mortgage, deed of trust,
charge, option, contractual restriction on transfer, security interest, tax
lien, pledge, encumbrance, conditional sale or title retention arrangement,
broker's lien, mechanic's or materialman's lien or any other claim against the
Property (or any portion thereof), as the case may be, or any agreement to
create or confer any of the foregoing, in each case whether arising by agreement
or under any statute, law, governmental ordinance, rule, regulation, decree,
order or requirement of any governmental authority now or hereafter existing or
otherwise.
"LOSSES" shall mean any demands, damages, costs, claims,
expenses, losses, proceedings, judgments, fines, liens, penalties, causes of
action, or liabilities of any kind, whether known or unknown, suspected or
unsuspected, active or passive, joint and several or joint, contingent or
noncontingent, accrued or unsacred, ripe or unripe, or at statutory,
administrative, or common law or in equity, which have ever arisen from, exist
or may exist as a result of, or may ever arise from any release or threat of
release of any Hazardous Substances to any environmental medium, including but
not limited to any air, surface water, ground water, storm water, soil, rock,
surface or subsurface, on, in, at, from, or under the Property, or any
treatment, storage, transportation or disposal of any Hazardous Substances on,
in, at, from, or under the Property. Losses shall include without limitation,
any claims for contribution brought under statutory or common law, any claims
under common law for restitution, reimbursement, or recoupment, any reasonable
attorneys' fees and costs, experts' fees, court fees and costs, and the cost of
administrative or judicial trial, hearing, or appeal, but in no event shall
Losses be deemed to include special, punitive or consequential damages.
"NOTICE" shall have the meaning assigned to such term in Section
12.4 of this Agreement.
"NOTE" shall have the meaning assigned to such term in Section
2.4(g) of this Agreement.
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"ORGANIZATIONAL DOCUMENTS" shall mean (a) the articles or
certificate of incorporation and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general partnership;
(c) the limited partnership agreement and the certificate of limited partnership
of a limited partnership; (d) the operating agreement or regulations and
certificate of organization (or equivalent) of a limited liability company (e)
any charter or similar document adopted or filed in connection with the
creation, formation, or organization of a Person; and (d) any amendment to any
of the foregoing.
"OWNERS" shall mean those Persons identified on SCHEDULE I
attached to this Agreement.
"PERMITTED ENCUMBRANCES" shall have the meaning assigned to such
term in Section 3.2(b) of this Agreement.
"PERSON" shall mean any natural person, a partnership, a
corporation, a limited liability company, a joint venture, a trust, an
association, and any other form of business association or entity.
"PERSONAL PROPERTY" shall have the meaning assigned to such term
in Section 6.1(a)(vi) of this Agreement.
"PILOT AGREEMENT" shall have the meaning assigned to such term
in Section 6.1(a)(vi) of this Agreement.
"POST-CLOSING LIABILITIES" shall have the meaning assigned to
such term in Section 2.3(a)(2) of this Agreement.
"PRE-CLOSING LIABILITIES" shall have the meaning assigned to
such term in Section 2.3(b)(2) of this Agreement.
"PROCEEDING" shall mean any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Body or arbitrator.
"PROPERTY" shall have the meaning assigned to such term in
Section 6.1(a)(vi) of this Agreement.
"PURCHASE PRICE" shall have the meaning assigned to such term in
Section 2.4 of this Agreement.
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"RELATED PARTIES" shall have the meaning assigned to such term
in Section 3.6 of this Agreement.
"RENT ROLL" shall mean the Rent Roll for the Building, which is
attached to this Agreement as EXHIBIT Q.
"SECOND DEPOSIT" shall have the meaning assigned to such term in
Section 2.4(b) of this Agreement.
"SUBLEASE" shall have the meaning assigned to such term in
Section 6.1(a)(vi) of this Agreement.
"SURVIVING PROVISIONS" shall mean all rights, duties or
obligations which are expressly intended to survive the termination of this
Agreement.
"TAX" shall mean any tax (including any income tax, capital
gains tax, value-added tax, sales tax, transfer tax, property tax, gift tax, or
estate tax), levy, assessment, tariff, duty (including any customs duty),
deficiency, or other fee, and any related charge or amount (including any fine,
penalty, interest, or addition to tax), imposed, assessed, or collected by or
under the authority of any Governmental Body or payable pursuant to any
tax-sharing agreement or any other contract relating to the sharing or payment
of any such tax, levy, assessment, tariff, duty, deficiency, or fee.
"TAX RETURN" shall mean any return (including any information
return), report, statement, schedule, notice, form, or other document or
information filed with or submitted to, or required to be filed with or
submitted to, any Governmental Body in connection with the determination,
assessment, collection, or payment of any Tax or in connection with the
administration, implementation, or enforcement of or compliance with any Legal
Requirement relating to any Tax.
"TENANT" shall mean one of the Tenants.
"TENANTS" shall mean the tenants leasing space in the Building
under the Leases.
"TENANT ESTOPPEL" and "TENANT ESTOPPELS" shall have the meanings
assigned to such terms in Section 3.7 of this Agreement.
"TENANT ESTOPPEL CONDITION" shall have the meaning assigned to
such term in Section 3.7 of this Agreement.
"TERMINATION NOTICE" shall have the meaning assigned to such
term in Section 3.1(c) of this Agreement.
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"THIRD DEPOSIT" shall have the meaning assigned to such term in
Section 2.4(c) of this Agreement.
"THRESHOLD" shall have the meaning assigned to such term in
Section 10.1 of this Agreement.
"TITLE COMPANY" shall mean Partners Title Company.
"TRANSFER DOCUMENTS" shall have the meaning assigned to such
term in Section 4.2(a) of this Agreement.
"TRANSFERRED COMPANIES" shall have the meaning assigned to such
term in Section 2.2(a)(1) of this Agreement.
"TRANSFERRED CONTRACTS" shall have the meaning assigned to such
term in Section 2.2(a)(2) of this Agreement.
"TRANSFERRED DOCUMENTATION" shall have the meaning assigned to
such term in Section 2.2(a)(4) of this Agreement.
"TRANSFERRED PERMITS" shall have the meaning assigned to such
term in Section 2.2(a)(3) of this Agreement.
ARTICLE II
PURCHASE AND SALE
2.1. AGREEMENT TO PURCHASE AND SELL. In consideration of the payment
of the Purchase Price by Buyer to Seller and other good and valuable
consideration (including, but not limited to, the mutual covenants contained in
this Agreement) and subject to and upon the terms and conditions of this
Agreement, at the Closing, Seller shall transfer, convey, assign and deliver to
Buyer, and Buyer shall purchase and acquire from Seller all of the right, title
and interest in, to and under the Acquired Assets (hereinafter defined), and
Buyer shall assume and be responsible for and perform all the Assumed
Liabilities (hereinafter defined).
2.2. ACQUIRED ASSETS AND EXCLUDED ASSETS.
a. Except as set forth in Section 2.2(b), the term
"ACQUIRED ASSETS" shall mean all of Seller's right, title and interest in, to
and under the following assets as of the Closing Date:
(1) (i) all limited dividend and liability company
membership interests or similar ownership rights in WRUR and (ii) the general
partnership interest and all limited partnership interests in WRAAP (WRUR and
WRAAP being collectively, the "TRANSFERRED COMPANIES");
7
(2) all contracts of Seller specifically identified
on EXHIBIT A attached hereto, such Exhibit to be added by Buyer and Seller
within two (2) Business Days following the expiration of the Due Diligence
Expiration Date (the "TRANSFERRED CONTRACTS");
(3) to the extent their transfer is permitted under
applicable Law, all permits, licenses, variances, exemptions, orders and other
authorizations, consents and approvals of each Governmental Body necessary for
the conduct of the Transferred Companies as identified on EXHIBIT B attached
hereto (the "TRANSFERRED PERMITS");
(4) to the extent necessary to conduct the
Transferred Companies and their respective businesses, all non-confidential
documentation of Seller exclusively related to the Transferred Companies and the
Property (hereinafter defined), including books of account, financial and
accounting records, files and other data and documentation, except to the extent
required by applicable Law to be retained by Seller (and in such case copies are
to be made available to Buyer) (the "TRANSFERRED Documentation"); and
(5) to the extent not otherwise included in
Subsections (1) - (4), the Property.
b. Notwithstanding anything in this Agreement to the
contrary, all assets of Seller not specifically identified as an Acquired Asset
pursuant to Section 2.2(a), including, without limitation, the following assets
of Seller (collectively, the "EXCLUDED ASSETS") shall be excluded from and shall
not constitute any part of the Acquired Assets:
(1) all rights of Seller under this Agreement and
the other instruments and certificates delivered in connection with this
Agreement;
(2) all records of Seller prepared in connection
with the sale of the Acquired Assets, including bids received from third persons
and analyses relating to the Acquired Assets;
(3) all rights, claims and causes of action of
Seller relating to any of the Excluded Liabilities, the Excluded Assets, or the
Transferred Companies and Acquired Assets which arise prior to the Closing Date,
including rights, claims and causes of action under insurance policies relating
thereto;
(4) all contracts of the Transferred Companies,
except for the Transferred Contracts;
(5) all permits, licenses, variances, exemptions,
orders and other authorizations, consents and approvals of all Governmental
Bodies, except for the Transferred Permits;
(6) all books of account, financial and accounting
records, files and other documentation of Seller, except for the Transferred
Documentation.; and
(7) all cash and cash equivalents of the Transferred
Companies.
8
2.3. ASSUMPTION OF LIABILITIES.
a. Upon the terms and subject to the conditions of this
Agreement, Buyer hereby agrees to assume, effective as of the Closing Date, and
agrees to be responsible for, pay, perform and discharge when due the following
liabilities, obligations and commitments (collectively, the "ASSUMED
LIABILITIES"):
(1) all obligations, liabilities and commitments
that arise from and after the Closing Date under the Transferred Contracts; and
(2) all obligations, liabilities and commitments
that arise out of or relate to the operation of the Acquired Assets from and
after the Closing Date (the "POST-CLOSING LIABILITIES").
b. Except as expressly set forth in Section 2.3(a), upon
the terms and subject to the conditions of this Agreement, Buyer will not assume
or be responsible for the following liabilities, obligations and commitments of
Seller (the "EXCLUDED LIABILITIES"):
(1) all obligations, liabilities and commitments
that arise prior to the Closing Date under the Transferred Contracts;
(2) all debts, obligations, liabilities and
commitments that arise out of or relate to the operation of the Acquired Assets
prior to the Closing Date whether accrued, absolute, contingent or otherwise, or
whether arising out of any act or omission occurring, or state of facts existing
prior to, on or after the Closing Date, (the "PRE-CLOSING LIABILITIES");
(3) except as otherwise expressly provided in this
Agreement, all Taxes (including sales Taxes payable as a result of the sale of
the Acquired Assets) that arise out of or relate to the operation of the
Acquired Assets on or prior to the Closing Date; and
(4) any obligation or liability of Seller to the
extent solely related to or arising solely in connection with the ownership of
the Excluded Assets.
2.4. PURCHASE PRICE. The purchase price for the Acquired Assets (the
"PURCHASE PRICE") is Seventy Million Dollars ($70,000,000). The Purchase Price
shall be paid by Buyer as follows:
a. INITIAL DEPOSIT. A deposit in the amount of Three
Million Dollars ($3,000,000) (the "INITIAL DEPOSIT") shall be delivered to the
Escrow Agent on or prior to the third Business Day immediately after the full
execution of this Agreement, by federal wire transfer of immediately available
funds, to be held in escrow by Escrow Agent in an interest bearing account
pursuant to the terms of an Escrow Agreement among Seller, Buyer and the Escrow
Agent in the form of EXHIBIT C attached hereto (the "ESCROW AGREEMENT") until
the Closing Date for the Acquired Assets or earlier termination of this
Agreement. The Deposit and all interest earned thereon shall be hereinafter
collectively referred to as the "DEPOSIT". The Deposit shall be non-refundable
except as otherwise expressly set forth in this Agreement.
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b. SECOND DEPOSIT. A deposit in the amount of One Million
Dollars ($1,000,000) (the "SECOND DEPOSIT") shall be delivered to the Escrow
Agent on January 3, 2006, by federal wire transfer of immediately available
funds, to be held in escrow by Escrow Agent pursuant to the terms of the Escrow
Agreement until the Closing Date or earlier termination of this Agreement.
c. THIRD DEPOSIT. A deposit in the amount of One Million
Dollars ($1,000,000) (the "THIRD DEPOSIT") shall be delivered to the Escrow
Agent on January 4, 2006 if Buyer elects to extend Closing as provided herein,
by federal wire transfer of immediately available funds, to be held in escrow by
Escrow Agent pursuant to the terms of the Escrow Agreement. The Initial Deposit,
Second Deposit and Third Deposit and all interest earned thereon shall be
hereinafter collectively referred to as the "DEPOSIT".
d. CREDIT FOR DEPOSIT AT CLOSING. At Closing, and subject
to the terms of this Agreement, the Deposit shall be credited against the
Purchase Price and distributed to Seller.
e. BUYER'S DEFAULT. Following the Due Diligence Expiration
Date if (i) Closing does not occur solely due to Buyer's default under this
Agreement, (ii) Seller is not in default under this Agreement, and (iii) Buyer
has failed to cure such default within five (5) Business Days following Seller's
written notice to Buyer describing such default, provided that there shall be no
cure period for failing to close on the Closing Date and no cure period shall
extend the Closing Date, the Deposit shall be immediately distributed by the
Escrow Agent to Seller and thereafter retained by Seller as consideration for
entering into this Agreement as Seller's sole and exclusive remedy.
f. BALANCE OF PURCHASE PRICE. The balance of the Purchase
Price shall be paid at Closing, net of any applicable closing prorations and
other credits, by Buyer by delivery of a $200,000 non-negotiable note from Buyer
as more fully described in Section 2.4(g) with the remaining balance being by
federal wire transfer of immediately available funds.
g. BUYER'S NOTE. At Closing, Buyer shall deliver a
non-negotiable note (the "NOTE") in the principal amount of $200,000.00 with a
maturity date on the first anniversary of the Closing Date and interest at the
prime rate published in the Wall Street Journal five (5) Business Days prior to
the Closing Date. Subject to Buyer's offset rights described below relating to
breaches of Seller's representations and warranties, the principal balance of
the Note and all accrued interest shall be due and payable on the maturity date
of the Note. Buyer shall have a right to offset any damages, losses or
liabilities relating from a breach by Seller of its representations and
warranties under this Agreement against the payment due under the Note at
maturity, provided that Buyer gives Seller written notice of any such breach or
breaches, and the amount, if known, of any damage, loss or liability on or
before thirty (30) days prior to the maturity date of the Note. In the event the
amount of any damage, loss or liability is not known or reduced to a sum
certain, payment of the sums due under the Note shall be deferred (but only as
to the amount reasonably estimated by Buyer as the amount of any damage, loss or
liability) and the maturity date of the Note shall be extended until such time
as any damage, loss or liability is reduced to a sum certain, at which time the
amount of such sum certain, if any, shall be offset against the outstanding
balance due on the Note and any amount remaining after such
10
offset shall be paid to Seller. Seller has ten (10) days following receipt of
Buyer's written notice of offset to object to such offset by delivering written
notice of such objection and specifically describing the facts upon which the
objection is based and the amount which Seller claims may not be offset against
the Note. If Seller fails to deliver a written objection within such ten (10)
day period, any objections will be deemed to have been waived. If Seller
delivers a written objection within such ten (10) day period, Seller and Buyer
will try to resolve the dispute, each party acting reasonably and in good faith.
If within fifteen (15) days of delivery of Seller's objection notice, the
parties have been unable to agree on a resolution, either party may request that
the dispute be submitted to the American Arbitration Association for resolution
by a single arbitrator under the rules for handling expedited and non-complex
commercial matters or through such other arbitrator and rules as the parties may
then agree. The fees and expenses of the arbitrator shall be split evenly
between Buyer and Seller and each party shall bear its own expenses in any
arbitration proceeding unless the final arbitrator's award provides that Buyer's
claimed offset amount should be reduced by an amount in excess of $50,000, in
which case the arbitrator, in his discretion may provide that Buyer is
responsible for paying some or all of Seller's portion of the cost of
arbitration and Seller's out of pocket costs, including reasonable attorneys'
fees, and provided further that if the arbitrator's final award does not reduce
the amount claimed by Buyer as an offset by more than $5,000, then the
arbitrator, in his discretion may provide that Seller is responsible for paying
some or all of Buyer's portion of the cost of arbitration and Buyer's out of
pocket costs, including reasonable attorneys' fees.
2.5. FAILURE TO PAY DEPOSIT. In the event that Buyer fails to fund
either the Initial Deposit or the Second Deposit in accordance with the terms of
SectionS 2.2(a) and (b), respectively, of this Agreement for any reason
whatsoever, this Agreement shall be immediately and automatically null and void
and of no further force or effect. Upon any termination of this Agreement
pursuant to this Section or Article 3 of this Agreement, no party shall have any
further rights, duties or obligations under this Agreement with respect to the
Acquired Assets, except for rights, duties or obligations which are expressly
intended to survive the termination of this Agreement.
2.6. INTEREST ON DEPOSIT. The Deposit shall be deposited by the
Escrow Agent in a federally insured (to the extent permitted by law) interest
bearing account and all interest earned on such account shall be added to the
Deposit and distributed to the party entitled to receive the Deposit in
accordance with the terms of this Agreement.
2.7. ALLOCATION OF PURCHASE PRICE. Buyer and Seller agree to allocate
the Purchase Price (as adjusted pursuant to this Agreement) among the
Transferred Companies at Closing. An allocation shall be prepared by Buyer and
delivered to Seller within five (5) days prior to the Closing Date. If Seller
disputes the allocation, Buyer and Seller shall cooperate in good faith to
resolve such dispute but shall not be obligated to resolve such dispute. If the
parties agree to an allocation, Buyer and Seller shall not take any position
inconsistent with such treatment and allocation in their respective income tax
returns and other filings. If the parties fail to agree to an allocation, each
of Buyer and Seller shall use its own allocation.
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ARTICLE 3
DUE DILIGENCE REVIEW; CONDITION OF ACQUIRED ASSETS AND TITLE
3.1 DUE DILIGENCE REVIEW.
a. DUE DILIGENCE REVIEW AND DUE DILIGENCE EXPIRATION DATE.
Buyer hereby acknowledges that Buyer and its agents have had access to all
documents and information relating to the Acquired Assets as Buyer deemed
necessary to complete the Due Diligence Review and make its own independent
investment decision to acquire the Acquired Assets (the "DUE DILIGENCE REVIEW")
prior to the Effective Date and that the Due Diligence Review has been completed
except only with respect to the completion of a survey of the Land. Buyer shall
have until 5:00 p.m. EDST on December 28, 2005 (the "DUE DILIGENCE EXPIRATION
DATE") for completion of a survey and its review and acceptance thereof. In the
event that Buyer determines that the survey shows an encumbrance on the Land
which (i) is not a Permitted Encumbrance and (ii) will prohibit Buyer from
continuing to operate the Property as it is now being operated, Buyer shall have
the right to exercise its right to terminate this Agreement in accordance with
its terms. Commencing on the Effective Date and continuing through the Closing
Date or the earlier termination of this Agreement, Seller shall permit
authorized representatives of Buyer to access the Land (hereinafter defined) and
Improvements (hereinafter defined) at mutually agreed upon reasonable times for
purposes of satisfying Buyer with respect to the representations, warranties and
covenants of Seller set forth in this Agreement and with respect to satisfaction
of any diligence requirements of Buyer. Prior to the time Buyer avails itself of
the rights herein contained to enter upon the Land and Improvements, Buyer shall
deliver to Seller insurance certificates evidencing that Buyer, Buyer's agents
and contractors, or the particular party who intends to enter upon the Land and
Improvements, has in effect a fully paid policy of insurance that insures Buyer
and Seller against any liability normally covered by a public liability policy
with limits of at least Two Million Dollars ($2,000,000) per occurrence of death
of, or injury to, any one person. The policy(ies) maintained, or caused to be
maintained, pursuant to this Section shall insure the contractual liability of
Buyer covering the indemnities herein and shall (i) name Seller as additional
insured party, and (ii) contain a provision that the insurance provided
thereunder shall be primary and noncontributing with any other insurance
available to Seller. Buyer shall not perform or cause to be performed, without
Seller's prior written consent, any invasive or destructive sampling or testing
of any media, including, but not limited to, water, soil and all other media,
which consent shall not be unreasonably withheld. Buyer shall promptly and at
Buyer's sole cost and expense, restore the Land and Improvements and repair any
and all damage occasioned by such review to substantially the condition the Land
and Improvements were in immediately prior to such review; provided, however,
that the foregoing shall not require Buyer to repair or remediate any underlying
conditions that are discovered by Buyer except to the extent any such conditions
are exacerbated by Buyer. Buyer shall provide Seller with copies of all
environmental reports generated by or on behalf of Buyer if and to the extent
permitted by the preparers of such environmental reports; provided, however, in
no event shall Buyer be deemed to make any representations or warranties in
regard to such environmental reports or have any liability with respect to such
environmental reports. Buyer shall make a commercially reasonable effort to
coordinate its activities in connection with the Due Diligence Review with the
activities of Seller and the business operations of the tenants.
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b. CONDITION OF ACQUIRED ASSETS. Except as expressly set
forth in this Agreement or in any of the other closing documents delivered by
Seller in connection with this Agreement (collectively, the "CLOSING
DOCUMENTS"), Seller makes no express or implied representations or warranties in
connection with the Acquired Assets. Subject to the completion of the tenant
improvements described in Section 3.8 of this Agreement, Buyer shall accept the
Acquired Assets on the Closing Date in their existing condition as of such date,
"AS IS, WHERE IS and WITH ALL FAULTS". Buyer hereby acknowledges that it has
performed the Due Diligence Review and made its own independent investigations
of the Acquired Assets. Buyer has been advised to perform the Due Diligence
Review and to independently investigate the condition and suitability of all
aspects of the Acquired Assets and all matters affecting the value or
desirability of the Acquired Assets, including, but not limited to, potential
environmental hazards.
c. TERMINATION NOTICE; WAIVER. Buyer shall have the right
to terminate this Agreement as provided in Section 3.1(a) above by delivering
written notice of such decision (the "TERMINATION NOTICE") to Seller and Escrow
Agent on or prior to 5 p.m. EDST on the Due Diligence Expiration Date. Failure
to deliver a Termination Notice on or prior to such deadline shall be deemed to
constitute (a) a determination by Buyer to proceed to Closing, subject to and in
accordance with this Agreement, and (b) an acknowledgment and acceptance by
Buyer of the survey; provided, however, that the foregoing shall not be in
derogation of any other rights or remedies of Buyer under this Agreement
(including, without limitation, any other right to terminate expressly set forth
in the Agreement).
3.2 TITLE REVIEW.
a. TITLE INSURANCE. The Title Company has issued and
delivered on December 13, 2005 a title insurance commitment File No. 10811426
for the Property (the "COMMITMENT").
b. TITLE. Buyer shall take title to the Property subject to
(i) exception no. 9-15, 17, 19-21, and 16 (to be modified to clarify the insured
estate and the obligations under the identified documents) set forth in Schedule
B-II of the Commitment, and all preprinted exceptions or exclusions on the ALTA
1992 Owner's Policy Form which are not otherwise removed by affidavit or
endorsement; (ii) the Leases; (iii) Liens for taxes, assessments and
governmental charges not yet due and payable or due and payable but not yet
delinquent; (iv) applicable zoning regulations and ordinances provided the same
have not been violated and do not prohibit or impair in any material respect use
of the Building as it is currently operated and constructed; (v) that certain
License Agreement between WRAAP and Comcast Commercial Services, Inc. dated
December 2005, a memorandum of which is intended to be recorded prior to
Closing; and (vii) such other items as Buyer shall accept (collectively, the
"PERMITTED ENCUMBRANCES"). Permitted Encumbrances shall not include (i) any
Liens, (ii) any violation of law recorded against any of the Property, or (iii)
any exceptions caused by Seller's voluntary acts after the Effective Date and
not approved by Buyer hereunder, and Seller shall be required to remove each of
the foregoing matters from title on or before the Closing hereunder. Seller
reserves the right to grant such easements as may be necessary to effectuate the
agreement with PATCO regarding the commuter tunnel to Woodcrest Station provided
that Seller shall keep
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Buyer fully informed of the status of such easements and provided further that
no such easement, which is not in accordance with Seller's prior obligations and
agreements, will be granted following the Due Diligence Expiration Date without
Buyer's consent, such consent not to be unreasonably withheld or delayed, in
which event such easements or other encumbrances shall be deemed to be Permitted
Encumbrances.
3.3 REFUND OF DEPOSIT IF TERMINATION. In the event that Buyer
exercises its termination right under Section 3.1, the Deposit shall be refunded
to Buyer by the Escrow Agent without any further notice or authorization
required (notwithstanding anything in the Escrow Agreement to the contrary) and
this Agreement shall be deemed terminated whereupon neither party shall have any
further liability to the other hereunder except for the Surviving Provisions.
3.4 NO RELIANCE ON SELLER. Except as otherwise expressly provided in
this Agreement or the Closing Documents, Buyer hereby acknowledges and agrees
that it shall not be entitled to, and does not and will not, rely on Seller or
its agents as to (i) the quality, nature, adequacy or physical condition of the
Acquired Assets including, but not limited to, appurtenances, access,
landscaping, parking facilities or the sewage system at the Acquired Assets, if
any; (ii) the quality, nature, adequacy or physical condition of soils or the
existence, quality or condition of ground water at the Acquired Assets; (iii)
the existence, capacity, quality, nature, adequacy or physical condition of the
utilities serving the Acquired Assets; (iv) the development potential of the
Acquired Assets for any particular purpose; (v) the zoning or other legal status
of the Acquired Assets; (vi) the Acquired Assets or its operation's compliance
with any applicable codes, laws, regulations, statutes, ordinances, covenants,
conditions or restrictions of- governmental or quasi-governmental entity or of
any other person or entity; (vii) the quality of any labor or material relating
in any way to the Acquired Assets; or (viii) the condition of title to the
Acquired Assets or the nature, status and extent of any right, encumbrance,
license, reservations, covenant, condition, restriction or any other matter
affecting title to the Acquired Assets.
3.5 INDEMNIFICATION OF SELLER. Buyer shall be solely responsible for
any and all damage or loss of any kind or nature whatsoever, whether to persons
or to property, that may arise as a result of the acts or omissions of Buyer or
Buyer's principals, employees, agents or contractors in connection with the Due
Diligence Review or Buyer or Buyer's principals, employees, agents or
contractors entering upon the Acquired Assets. Buyer hereby agrees to indemnify,
protect, defend (with counsel reasonably acceptable to Seller), save and hold
Seller harmless of and from all debts, duties, obligations, liabilities, suits,
claims, demands, settlements, causes of action, damages, losses, fees and
expenses (including, without limitation, reasonable attorneys' fees and expenses
and court costs) that may arise out of or from a result of (i) any act or
omission of Buyer or Buyer's employees, agents or contractors in connection with
the Due Diligence Review or Buyer or Buyer's employees, agents or contractors
entering upon the Acquired Assets, or (ii) in exercising its rights under this
Article 3, other than with respect to any underlying conditions that are
discovered by Buyer except to the extent any such conditions are exacerbated by
Buyer, or (iii) any liens or encumbrances filed or recorded against the Acquired
Assets as a result of the Due Diligence Review. Buyer's obligations set forth in
this Section 3.5 shall be Surviving Provisions.
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3.6 CONFIDENTIAL INFORMATION. Except as required by court order or
by operation of law, all matters reviewed or discovered by Buyer in the course
of the Due Diligence Review and all other documents and materials furnished by
or on behalf of Seller to Buyer pursuant to the transaction contemplated by this
Agreement shall be strictly confidential; provided, however, that Buyer shall
have the right to provide such information to its attorneys, consultants,
agents, advisors, members, partners and prospective lenders (and each of their
attorneys, consultants, agents, advisors, members and partners) (collectively
"RELATED PARTIES") without the consent of Seller. In addition, the foregoing
restriction shall not apply (a) to the extent that such information has been
disclosed publicly prior to the date of this Agreement or is disclosed publicly
after the date of this Agreement without a breach of this Agreement by Buyer or
a Related Party (b) to the extent as may be recommended by Buyer's legal counsel
in order to comply with all financial reporting, securities laws and other legal
requirements applicable to Buyer, including any required disclosures to the
Securities and Exchange Commission; (c) where such information is already known
to Buyer or a Related Party before delivery of such information by Seller, or
becomes available to Buyer or Related Parties from a source other than Seller so
long as such source was not subject to any prohibition against transmitting the
information to Buyer or Related Parties (d) the prohibition in the sentence
immediately preceding this sentience will not survive Closing. Buyer may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any of them
relating to such tax treatment and tax structure, except to the extent that
confidentiality is reasonably necessary to comply with U.S. federal or state
securities laws. Buyer shall not have any contact whatsoever with any form of
media (including, but not limited to print, radio, television or internet) or
other third parties (except for the United States Environmental Protection
Agency, the Pennsylvania Department of Environmental Protection, Township
officials in the Township where the Acquired Assets is located, and other
governmental authorities in connection with Buyer's due diligence) in connection
with this transaction without Seller's prior written consent. If no Closing
occurs hereunder Buyer's obligations under this Section 3.6 shall be Surviving
Provisions and Buyer shall immediately return all originals and copies of all
such documents and written materials to Seller, but otherwise this Section 3.6
will not survive Closing. Notwithstanding anything to the contrary contained
herein, upon or after the Closing, Seller and Buyer may issue a press release in
a form to be mutually agreed upon in advance by the parties.
3.7 TENANT ESTOPPELS. At Closing, Seller shall deliver to Buyer
tenant estoppel certificates, in accordance with the terms of the applicable
Leases, in the form attached as EXHIBIT D hereto (each a "TENANT ESTOPPEL" and
collectively, the "TENANT ESTOPPELS") to each of the Tenants designated in the
Tenant Estoppels. Seller shall deliver the Tenant Estoppels to the Tenants and
will request that the Tenants complete and execute the Tenant Estoppels. Seller
shall make diligent efforts to have the Tenants execute and deliver the Tenant
Estoppels promptly and Seller shall deliver copies of the Tenant Estoppels to
Buyer upon Seller's receipt of same. It shall be a condition to Buyer's
obligation to complete Closing that Seller deliver, at Closing, Tenant Estoppels
dated within thirty (30) days of Closing ( the "TENANT ESTOPPEL CONDITION"). In
the event that the Tenant Estoppel Condition is not satisfied, Buyer may
exercise its right to terminate this Agreement in accordance with hereof.
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3.8 TENANT IMPROVEMENTS. Seller shall be responsible, at Seller's
sole cost and expense, to make and pay all costs (including brokerage
commissions) associated with the tenant improvements to be completed in
accordance with the term of that certain Office Space Lease with American Water
Works Service Company dated September 6, 2005, as amended (the "American Water
Lease"). Seller hereby agrees to indemnify Buyer for all debts, duties,
obligations, liabilities, suits, claims, demands, settlements, causes of action,
damages, losses, fees and expenses (including, without limitation, reasonable
attorneys' fees and expenses and court costs) that may arise out of or from a
result of any mechanics liens filed against the Acquired Assets in connection
with any of the work described in this Section which is performed after the
Closing. Seller will deposit into escrow with the Title Company at Closing an
amount equal to any unfunded tenant improvement costs (exclusive of any costs
associated with tenant change orders or extras for which the tenant is
responsible) and leasing commissions due under the American Water Lease under a
mutually acceptable escrow agreement. The provisions of this Section 3.8 shall
be one of the Surviving Provisions.
ARTICLE 4
THE CLOSING
4.1 TIME AND PLACE. The closing ("CLOSING") shall be held on January
4, 2006, upon five (5) days prior written notice by Buyer to Seller and such
date shall constitute the "CLOSING DATE" with respect to the Acquired Assets.
Buyer shall have the right to extend the Closing Date until a date between
January 11-16, 2006 upon written notice delivered to Seller on or before
December 29, 2005 (the "EXTENSION NOTICE") and upon payment of the Third
Deposit.
4.2 SETTLEMENT. At the Closing:
a. TRANSFER DOCUMENTS.
Seller shall convey and transfer to Buyer the following
documents (hereinafter the "TRANSFER DOCUMENTS"):
i. assignment and assumption of general partnership
interest in WRAAP and first amendment to the Amended and Restated Limited
Partnership Agreement of WRAAP ("ASSIGNMENT OF GENERAL PARTNERSHIP INTEREST IN
WRAAP AND FIRST AMENDMENT") in substantially the form attached hereto as EXHIBIT
E-1;
ii. assignment and assumption of limited partnership
interests in WRAAP and consent to first amendment to Amended and Restated
Limited Partnership Agreement of WRAAP ("ASSIGNMENT OF LIMITED PARTNERSHIP
INTERESTS IN WRAAP AND CONSENT") in substantially the form attached hereto as
EXHIBIT E-2;
iii. assignment and assumption of manager and
membership rights and interests in WRUR and first amendment to Operating
Agreement of WRUR ("ASSIGNMENT OF MANAGER INTEREST IN WRUR AND FIRST AMENDMENT")
in substantially the form attached hereto as EXHIBIT F-1;
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iv. assignment and assumption of membership rights
and interests in WRUR and consent to first amendment to Operating Agreement of
WRUR ("ASSIGNMENT OF WRUR MEMBERS INTERESTS IN WRUR AND CONSENT") in
substantially the form attached hereto as EXHIBIT F-2;
v. a Foreign Investors in Real Property Tax Act
Certification and Affidavit pursuant to Section 1445 of the Internal Revenue
Code of 1986, as amended;
Buyer shall execute and deliver to Seller:
i. Assignment of General Partnership Interest in
WRAAP and First Amendment;
ii. Assignment of Limited Partnership Interests in
WRAAP and Consent;
iii. Assignment of Manager Interest in WRUR and First
Amendment; and
iv. Assignment of WRUR Members Interests in WRUR and
Consent;
b. OTHER CLOSING DELIVERIES. Seller and Buyer shall also
execute and deliver the following documents:
i. Seller shall deliver all original Leases,
Transferred Contracts, Transferred Permits, Transferred Documentation and plans
and specifications for the Improvements and all tenant occupied space within the
Improvements.
ii. Seller shall deliver a Rent Roll which shall be
certified by an officer of Seller as being true and correct as of the Closing
Date;
iii. Seller shall deliver a certificate executed by
Seller confirming that all of Seller's representations and warranties set forth
in this Agreement are true and correct as of the Closing Date;
iv. Buyer shall deliver a certificate executed by
Buyer confirming that all of Buyer's representations and warranties set forth in
this Agreement are true and correct as of the Closing Date;
v. Buyer and Seller shall execute and deliver a
closing statement evidencing payment of the Purchase Price and reflecting all
applicable prorations;
vi. Buyer and Seller shall execute prepared tenant
notice letters;
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vii. Buyer and Seller shall deliver such resolutions,
authorizations, consents, bylaws or other corporate and/or partnership documents
relating to Buyer (and Buyer's approved assignees) and Seller, as may be
required by the Title Company;
viii. Buyer and Seller shall deliver any other
documents reasonably required by the other or by the Title Company to effectuate
the transactions contemplated by this Agreement;
ix. Seller shall deliver keys to the Building and
Improvements;
x. Seller shall deliver evidence of termination of
any existing property management agreement and brokerage agreements and evidence
of the termination of any Contract or other agreements not designated by Buyer
as Transferred Contracts;
xi. WRAAP shall cause the existing trustees of the
Condominium Association and any officers of the Condominium Association
appointed by WRAAP to deliver resignations effective as of the Closing Date and
WRAAP will deliver an appointment of three (3) individuals designated by Buyer
as replacement trustees of the Condominium Association; and
xii. Seller and Buyer shall execute and deliver such
documents reasonably required by each other to effectuate the transactions
contemplated by this Agreement.
c. DELIVERY OF DEPOSIT. Escrow Agent shall deliver the
Deposit to Seller by wire transfer of immediately available funds to such
account(s) as Seller may specify in writing.
d. BALANCE OF PURCHASE PRICE. After crediting the Deposit
against the Purchase Price (if applicable), Buyer shall pay the remaining
balance of the Purchase Price at Closing, net of any applicable closing
prorations and other credits, by delivering the Note and the remaining balance
of the Purchase Price by federal wire transfer of immediately available funds to
Seller.
4.3 LIENS AND ENCUMBRANCES. If at Closing there shall be any Liens
or encumbrances, other than the Permitted Encumbrances, that Seller has agreed
to pay and discharge, Seller shall be required to remove any Liens in accordance
with Section 3.2(c) and Seller may use any portion of the balance of the
Purchase Price payable at Closing to satisfy the same; PROVIDED, HOWEVER, that
Seller shall either (a) deliver to the Title Company at Closing instruments in
recordable form and sufficient, in the reasonable judgment of the Title Company,
to satisfy such Liens and encumbrances of record, together with the cost of
recording or filing said instruments, or (b) if Seller shall have made
arrangements with the Title Company in advance of the Closing, deposit with the
Title Company such monies as may be acceptable to and required by it to ensure
the obtaining and recording of such satisfactions and the issuance of title
insurance to Buyer either free of any such Liens and encumbrances or with
insurance insuring over and against enforcement of the same out of the Acquired
Assets provided that the Title Company is ready and willing to issue the Title
Policy without exception for any such matters; and PROVIDED, FURTHER, that if
the aggregate amount of monies required to satisfy any judgment(s) of record
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against Seller shall equal or exceed the Purchase Price, Seller shall have the
right to terminate this Agreement by notice to Buyer. Upon such termination by
Seller, this Agreement shall terminate, the Deposit shall be promptly refunded
to Buyer and neither party shall have any further liability to the other
hereunder other than the Surviving Provisions. The existence of any such Liens
and encumbrances shall not be deemed objections to title if Seller shall comply
with the foregoing requirements.
ARTICLE 5
APPORTIONMENTS AND ALLOCATION OF EXPENSES
5.1. APPORTIONMENTS. The following items shall be apportioned as of
the Closing Date:
a. rents, including additional rent and rent escalations,
common area maintenance charges and other fixed charges payable under the Leases
and received by Seller;
b. fuel, electric, water and other utility costs;
c. municipal assessments and governmental license and
permit fees;
d. real estate taxes and assessments other than special
assessments, based on the rates and assessed valuation applicable in the fiscal
or calendar year, whichever is applicable, for which assessed;
e. water rates and charges;
f. garbage and rubbish removal charges;
g. sewer taxes and rents;
h. payments made under any Transferred Contracts;
i. deposits made to any third-party; and
j. Condominium Association fees.
Seller and Buyer shall jointly prepare a preliminary Closing adjustment
statement on the basis of the Leases and other sources of income and expenses,
and shall endeavor to deliver such statement to the Title Company at least three
(3) days prior to Closing. If any of the foregoing cannot be apportioned on the
Closing Date because of the unavailability of the amounts which are to be
apportioned, such items shall be apportioned on the basis of a good faith
estimate by the parties and reconciled as soon as practicable after the Closing
Date but, in any event, no later than six (6) months after the Closing Date.
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5.2. REFUNDS. If any refunds of real property taxes or assessments,
water rates and charges and sewer taxes and rents shall be made after the
Closing Date, the same shall be held in trust by Seller or Buyer, as the case
may be, and shall first be applied to the unreimbursed costs incurred in
obtaining the same, then to any required refunds to tenants under the Leases (if
any), and the balance, if any, shall be paid to Seller (for the period prior to
the Closing Date) and then to Buyer (for the period commencing with the Closing
Date).
5.3. ASSESSMENTS. If on the Closing Date, the Acquired Assets shall
be or shall have been affected by any special or general assessment or
assessments of real property taxes payable as a lump sum or which are or may
become payable in installments of which the first installment is then a charge
or Lien and has become due and payable, Seller shall pay or cause to be paid at
Closing the unpaid installments of such assessments which relate to the period
of time prior to the Closing Date and Buyer shall pay or cause to be paid all
installments thereof which relate to the period of time after the Closing Date.
5.4. INSURANCE POLICIES. No insurance policies of Seller are to be
transferred to Buyer, and no apportionment of premiums therefore shall be made.
5.5. SECURITY DEPOSITS. At Closing, Seller shall transfer to Buyer
(or credit to Buyer against the Purchase Price) the amount of all unapplied
security deposits under the Leases and shall cause any security deposits to be
transferred to Buyer.
5.6. PAST DUE RENTS. If on the Closing Date, there are past due rents
with respect to any of the Leases, such past due rents will not be prorated and
any amounts received by Buyer with respect to any such Leases after the Closing
Date shall be applied, first, to rents due or past due in the month in which the
Closing Date occurs and second, to all amounts due in months after the month in
which the Closing Date occurs. Buyer shall remit any past due rents owed to
Seller only if, as and when received by Buyer and after recovery of any past due
rents owed Buyer, if any. If the Leases contain obligations on the part of the
Tenants for tax, escalation or overage payments (additional rent) and such
additional rent has not been collected by Seller as of the Closing Date, any
such additional rent received by Buyer after the Closing Date relating to the
period prior to the Closing Date shall be remitted to Seller if, as and when
received by Buyer and after recovery of any past due additional rent owed Buyer,
if any. Seller, with Buyer's prior consent which may be withheld in Buyer's sole
discretion, shall have the right to commence suit against Tenants to recover
rent or additional rent arrearages (as well as any interest earned thereon or
any late charges imposed thereon) for a period of twelve (12) months after the
Closing Date and prosecute such suit to completion, provided that in no event
shall Seller has the right to bring either an unlawful detainer action,
terminate any Tenant's lease or seek recourse to a Tenant's security deposit
transferred to Buyer.
5.7. PAST DUE CONDOMINIUM COMMON EXPENSES. The owner of Unit A of 111
Woodcrest Condominium, Udren Family Limited Partnership, owes WRAAP for past due
common expense assessment payments which WRAAP paid to the Condominium
Association on its behalf. Seller and Udren have entered into an agreement
regarding repayment of these monies. Seller reserves the right to commence suit
against Udren to recover the overdue common expenses accruing prior to the
Closing Date. Such past due payments for the month of Closing shall not be
prorated and any
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amounts received by Buyer with respect to any such past due common expenses
after the Closing Date shall be remitted to Seller. The parties agree that the
past due expenses shall be an Excluded Asset.
5.8. NET AMOUNT OWED. Except with respect to security deposits, if a
net amount is owed by Seller to Buyer pursuant to this Article 5, such amount
shall be credited against the Purchase Price. If a net amount is owed by Buyer
to Seller pursuant to this Article 5, such amount shall be added to the Purchase
Price.
5.9. TRANSFER TAXES AND OTHER COSTS. The cost of all real estate
transfer taxes, if any, shall be paid Fifty percent (50%) by Seller and Fifty
percent (50%) by Buyer. Seller shall be responsible for the cost of preparing
the Transfer Documents for all matters relating to the clearing of title which
Seller elects or is required to cure, the fees and costs associated with the
assignment of all transferable warranties, one-half of Escrow Agent's fee and
for the fees and expenses of Seller's attorneys in connection therewith. Buyer
shall be responsible for the payment of all premiums for the Title Policy and
all endorsements thereto, for the cost of any Survey, for the cost of performing
the Due Diligence Review, for any and all costs and expenses (including, but not
limited to, inspection expenses, mortgage recording costs, recording taxes and
lender fees and costs) relating to any new financing placed on the Property by
Buyer, one-half of Escrow Agent's fee, the fees and expenses of Buyer's
attorneys in connection therewith and all recording charges due in connection
with the any documents it elects to record. All other costs and expenses shall
be apportioned in accordance with the custom and practice for transactions of
the size and complexity contemplated by this Agreement in the southern New
Jersey area.
5.10. SURVIVAL OF OBLIGATIONS. The obligations of the parties under
this Article 5 shall be Surviving Provisions.
ARTICLE 6
REPRESENTATIONS, WARRANTIES, ACKNOWLEDGEMENTS AND COVENANTS
6.1. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer that:
a. with regard to Seller:
i. STATUS AND AUTHORITY OF TRANSFERRED COMPANIES.
WRAAP is a duly organized, validly existing and subsisting limited partnership
under the laws of the Commonwealth of Pennsylvania and has all requisite power
and authority to execute and deliver this Agreement, the Transfer Documents and
to perform its obligations under this Agreement to consummate the transaction
contemplated hereby. WRUR is a duly organized, validly existing and subsisting
limited dividend and liability company qualified as an urban renewal entity
under the laws of the State of New Jersey and has all requisite power and
authority to execute and deliver this Agreement, the Transfer Documents and to
perform its obligations under this Agreement to consummate the transaction
contemplated hereby;
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ii. ACTION OF SELLER. Seller has taken all necessary
actions to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by Seller on
or prior to the Closing Date, such document shall constitute the valid and
binding obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors;
iii. NO VIOLATIONS. Neither the execution and
delivery of this Agreement nor the consummation or performance of the
transaction that is the subject of this Agreement will, directly or indirectly
(with or without notice or lapse of time) contravene, conflict with, or result
in a violation of any provision of the Organizational Documents of Seller, (to
the extent applicable)WRUR or WRAAP, any of the terms or requirements of any
Governmental Body consent or authorization, any agreement to which Seller or the
Transferred Companies is a party or by which Seller, the Transferred Companies
or the Property is bound, or result in the imposition or creation of any Lien
upon or with respect to any of the assets owned or used by WRUR or WRAAP;
iv. AUTHORIZATIONS, CONSENTS AND NOTICE. Except as
set forth in EXHIBIT G attached hereto, Seller has obtained all third party
authorizations and consents and given any notices which are necessary for it to
execute and deliver this Agreement and on the Closing Date, Seller will have
obtained all third party authorizations and consents and given any notices which
will be necessary for it to execute and deliver the Transfer Documents and to
consummate the transactions contemplated under this Agreement;
v. OWNERSHIP INTERESTS. The ownership interests of
WRAAP and WRUR are as set forth in EXHIBIT H attached hereto. On the Closing
Date WRAAP, WRUR and Owners will each be the record and beneficial owner and
holder of the WRAAP and WRUR interests, free and clear of all Liens. All of the
outstanding WRUR interests and WRAAP interests have been duly authorized and
validly issued and are fully paid and nonassessable. There are no contracts or
agreements relating to the issuance, voting, sale, or transfer of the WRUR
interests or the WRAAP interests. None of the outstanding WRUR interests or the
WRAAP interests was issued in violation of any Legal Requirement;
vi. THE PROPERTY. No Person other than WRAAP or WRUR
owns or holds any right, title or interest in (i) Xxxx Xx. X, 000 Xxxxxxxxx
Xxxxxxxxxxx located in Cherry Hill, Camden County, New Jersey (the "LAND"), as
such Land is described on EXHIBIT I attached hereto, (ii) the Building and all
other improvements located thereon and all other structures, systems, and
utilities associated therewith (the "IMPROVEMENTS'), (iii) any tenements,
hereditaments and privileges appurtenant thereto, including, but not limited to,
any estate, right, title interest, property, claim and demand in and to all
streets, alleys, rights-of-way, sidewalks, easements and utility lines or
agreements and development, water or mineral rights in connection with the Land
(collectively, the "APPURTENANCES"), (iv) any personal property located on or in
the Land or the Improvements and used in connection with the operation and
maintenance of the Property and not owned or leased by any tenant or property
manager as described on EXHIBIT J attached hereto (collectively, the "PERSONAL
PROPERTY"), (v) all buildings, materials, supplies,
22
hardware, carpeting and other inventory located on or in the Land or the
Improvements and maintained in connection with the Transferred Companies
ownership and operation of the Property (collectively, the "INVENTORY"), (vi)
any trademarks, tradenames, permits, licenses, approvals and entitlements (and
all amendments, modifications, supplements and renewals thereof) and other
intangible property used in connection with the foregoing, including, without
limitation, any right, title and interest in any and all warranties and
guaranties (and all amendments, modifications, supplements and renewals thereof)
relating to the Property as described on EXHIBIT K attached hereto
(collectively, the "INTANGIBLE PERSONAL PROPERTY"), (vii) that certain Ground
Lease dated as of October 30, 2003 (the "GROUND LEASE") for the Land between
WRAAP and WRUR and that certain Sublease dated as of October 30, 2003 (the
"SUBLEASE") between WRUR and WRAAP, (viii) any Leases of the Building and Land
that are in effect on the Effective Date, including the Ground Lease and the
Sublease (collectively, the "LEASES") (ix) that certain Financial Agreement for
Long-Term Tax Exemption with Cherry Hill Township dated as of October 30, 2003
(the "PILOT AGREEMENT") and (x) the Transferred Contracts. The Land, the
Improvements, the Appurtenances, the Personal Property, the Inventory, the
Intangible Personal Property, the Leases, the Ground Lease, the Sublease, the
PILOT Agreement and the Transferred Contracts are hereinafter collectively
referred to as the "PROPERTY";
vii. BOOKS AND RECORDS. The books of account, minute
books, stock record books, and other records of WRUR and WRAAP, which will be
made available to Buyer, are complete and correct and have been maintained in
accordance with sound business practices and all Legal Requirements. The minute
books of WRUR and WRAAP contain accurate and complete records of all meetings
held of, and corporate action taken by, the members and, if applicable, managers
and officers of WRUR, and the general partner, and, if applicable, officers,
board of directors and committees of WRAAP and no meeting of any such members,
managers, or general partner have been held for which minutes have not been
prepared and are not contained in such minute books. At the Closing, possession
of all of those books and records will be delivered to Buyer;
viii. LIABILITIES AND OBLIGATIONS. Neither WRUR nor
WRAAP have any liabilities or obligations of any nature (whether known or
unknown and whether absolute, accrued, contingent, or otherwise) except for
liabilities or obligations reflected or reserved against in the most recent
balance sheet of WRUR and WRAAP, as applicable, delivered to Buyer and current
liabilities incurred in the ordinary course of business since the date thereof.
Since the date of the most recent balance sheet of WRUR and WRAAP delivered to
Buyer, there has not been any material adverse change in the business,
operations, properties, prospects, assets, or condition of WRUR and WRAAP, and
no event has occurred or circumstance exists that may result in such a material
adverse change;
ix. TAX RETURNS. WRUR and WRAAP have filed or caused
to be filed, on a timely basis, all Tax Returns that are or were required to be
filed by or with respect to WRUR and WRAAP,. as applicable, pursuant to
applicable Legal Requirements. Seller has delivered to Buyer (or will deliver to
Buyer within three (3) days after the date hereof) copies of all such Tax
Returns filed since the date of formation of WRUR and WRAAP. WRUR and WRAAP have
paid, or made provision for the payment of, all Taxes that have or may have
23
become due pursuant to those Tax Returns or otherwise, or pursuant to any
assessment received by WRUR or WRAAP. There have not been any audits of such Tax
Returns. WRAAP and WRUR have not been given or been requested to give waivers or
extensions (or is or would be subject to a waiver or extension given by any
other Person) of any statute of limitations relating to the payment of Taxes.
The charges, accruals, and reserves with respect to Taxes on the respective
books of WRUR and WRAAP are adequate and are at least equal to the liability of
WRUR and WRAAP for Taxes. There exists no proposed tax assessment against WRUR
or WRAAP except as disclosed in the most recent balance sheets of WRUR and WRAAP
delivered to Buyer. All Taxes that WRUR and WRAAP were required by Legal
Requirements to withhold or collect have been duly withheld or collected and, to
the extent required, have been paid to the proper Governmental Body or other
Person. All Tax Returns filed by WRUR and WRAAP are true, correct, and complete.
There is no tax sharing agreement that will require any payment by WRUR and
WRAAP after the date of this Agreement. Seller shall prepare and file all Tax
Returns for WRAAP and WRUR (to the extent permissible under the applicable law)
for all periods on or prior to Closing under the "Closing of the Books Method"
with respect to WRAAP and WRUR subject to prorations for the month in which
Closing occurs for rent and other normal operating income as provided for
herein;
x. GOVERNMENTAL AUTHORIZATIONS. Exhibit B contains
a complete and accurate list of each Governmental Authorization that is held by
WRUR and WRAAP or that otherwise relates to the business of, or to any of the
assets owned or used by, WRUR or WRAAP. Each Governmental Authorization listed
is valid and in full force and effect. No event has occurred or circumstance
exists that may (with or without notice or lapse of time) (a) constitute or
result directly or indirectly in a violation of or a failure to comply with any
term or requirement of any such Governmental Authorization, or (b) result
directly or indirectly in the revocation, withdrawal, suspension, cancellation,
or termination of, or any modification to, any such Governmental Authorization.
Neither WRUR nor WRAAP have received, at any time since the date of formation,
any notice or other communication (whether oral or written) from any
Governmental Body or any other Person regarding (i) any actual, alleged,
possible, or potential violation of or failure to comply with any term or
requirement of any Governmental Authorization, or (ii) any actual, proposed,
possible, or potential revocation, withdrawal, suspension, cancellation,
termination of, or modification to any Governmental Authorization. All
applications required to have been filed for the renewal of the Governmental
Authorizations have been duly filed on a timely basis with the appropriate
Governmental Bodies, and all other filings required to have been made with
respect to such Governmental Authorizations have been duly made on a timely
basis with the appropriate Governmental Bodies. The Governmental Authorizations
listed collectively constitute all of the Governmental Authorizations necessary
to permit WRUR and WRAAP to lawfully conduct and operate their respective
businesses in the manner WRUR and WRAAP currently conducts and operates such
business and to permit WRUR and WRAAP to own and use their assets in the manner
in which they currently own and use such assets;
xi. CONDUCT OF BUSINESS. Since the date of the most
recent financial statements delivered to Buyer, WRUR and WRAAP have conducted
their businesses only in the ordinary course of business and there has not been
any: (a) amendment to the Organizational Documents of WRUR and WRAAP; (b) sale
(other than sales of inventory in the ordinary course
24
of business), lease, or other disposition of any asset or property of WRUR and
WRAAP or mortgage, pledge, or imposition of any Lien or other encumbrance on any
material asset or property of WRUR or WRAAP; (c) cancellation or waiver of any
claims or rights with a value to WRUR or WRAAP, as applicable in excess of
$5,000; (d) a material change in the accounting methods used by WRUR or WRAAP;
or (e) agreement, whether oral or written, by WRAAP or WRUR to do any of the
foregoing;
xii. LITIGATION IN REGARD TO AGREEMENT. There are no
actions or proceedings pending or, to Seller's knowledge, threatened, which
question the validity of this Agreement or any action taken or to be taken by
Seller hereunder or the ability of Seller to consummate the transactions
contemplated by this Agreement or otherwise affect Buyer's ability to own or
operate the Acquired Assets after the Closing;
xiii. NO VIOLATIONS OF AGREEMENTS. Neither the
execution, delivery or performance of this Agreement by Seller, nor compliance
with the terms and provisions hereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a default under, or
result in the creation of any Lien, charge or encumbrance upon the Acquired
Assets pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which Seller is
bound;
xiv. NO BANKRUPTCY. No petition in bankruptcy
(voluntary or otherwise), assignment for the benefit of creditors, or petition
seeking reorganization or arrangement or other action under federal or state
bankruptcy laws has been filed or commenced or is pending or contemplated
against Seller or the Acquired Assets;
xv. FOREIGN PERSON. Closing under this Agreement and
the conveyance of the Acquired Assets will not cause to be imposed on Buyer any
liability to withhold any amount pursuant to Section 1445 of the Internal
Revenue Code or the implementing regulations;
xvi. TERRORIST ORGANIZATIONS LISTS. Seller is not
acting, directly or indirectly, for or on behalf of any Person named by the
United States Treasury Department as a Specifically Designated National and
Blocked Person, or for or on behalf of any person designated in Executive Order
13224 as a person who commits, threatens to commit, or supports terrorism.
Seller is not engaged in the transaction contemplated by this Agreement directly
or indirectly on behalf of, or facilitating such transaction directly or
indirectly on behalf of, any such Person; and
xvii. NO ILLEGAL PAYMENTS. None of WRUR, WRAAP or any
of their respective directors, officers, or agents has directly or indirectly
(a) made any contribution, gift, bribe, rebate, payoff, influence payment,
kickback, or other payment to any Person, private or public, regardless of form,
whether in money, property, or services (i) to obtain favorable treatment in
securing business, (ii) to pay for favorable treatment for business secured,
(iii) to obtain special concessions, or (iv) in violation of any Legal
Requirement, or (b) established or maintained any fund or asset that has not
been recorded in the books and records of WRUR and WRAAP.
25
b. with regard to the Property:
i. DEFECT NOTICES. Neither WRAAP nor WRUR has
received any notice from the holder of any mortgage presently encumbering the
Property, any insurance company which has issued a policy with respect to the
Property or from any board of fire underwriters or any other governmental agency
or authority claiming any defects or deficiencies in the Property or suggesting
or requesting the performance of any repairs, alterations or other work to the
Property, which have not been cured;
ii. CONTRACTS. There are no management, service,
equipment, supply, security, maintenance, construction, concession or other
agreements with respect to or affecting the Acquired Assets, except for the
agreements listed on EXHIBIT L to this Agreement (collectively, the
"CONTRACTS"); WRAAP has delivered to Buyer true, correct and complete copies of
each of the Contracts (and amendments, modifications, guarantees, warranties,
bonds and/or supplements thereto); neither WRAAP nor to WRAAP's knowledge, the
other party to any of the Contracts is in default thereunder and to WRAAP's
knowledge, no event or omission has occurred which with the giving of notice or
lapse of time, or both, would constitute a default or breach under the
Contracts; each of the Contracts designated on Exhibit L will not be
invalidated, violated or otherwise adversely affected by the transfer of the
Acquired Assets to Buyer; and each of the Contracts designated on Exhibit L to
be terminated shall be terminated by WRAAP at or prior to Closing and all sums
due thereunder shall be paid in full by WRAAP at or prior to Closing or prorated
in accordance with Article 5;
iii. INTANGIBLE PERSONAL PROPERTY. Exhibit K attached
hereto contains a complete and accurate list of all Intangible Personal Property
owned by Seller, including all intellectual property, fictional business names,
trade names, registered and unregistered trademarks and service marks; patents
and patent applications; all copyrights; and all trade secrets, customer lists,
software, technical information, drawings, and blue prints owned, used, or
licensed by Seller as licensee or licensor;
iv. MUNICIPAL IMPROVEMENTS. To WRAAP's knowledge,
all street paving, curbing, sanitary sewers, storm sewers and other municipal or
other governmental improvements which have been constructed or installed have
been paid for and to WRAAP's knowledge will not hereafter be assessed, and all
assessments heretofore made have been paid in full; and there are no private
contractual obligations relating to the installation of or connection to any
sanitary sewers or storm sewers;
v. VIOLATIONS OF LAW. Neither WRAAP nor WRUR have
received any written notice relating to the Property of any violations of
federal, state and local laws, rules, regulations, orders and other governmental
requirements pertaining to zoning, subdivision, the environment, building,
safety and fire standards which have not been corrected, including but not
limited to written notice of any actual or threatened cancellation or suspension
of any certificates of occupancy for any portion of the Improvements;
26
vi. LITIGATION AGAINST PROPERTY. Except as set forth
on EXHIBIT M attached hereto and as set forth in Section 5.7 hereof, there is no
action, suit or proceeding pending or, to the knowledge of WRAAP, threatened
against or affecting WRAAP or the Property or any portion thereof or relating to
or arising out of the ownership, management or operation of the Property, in any
court or before or by any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental instrumentality;
vii. CONDEMNATION. WRAAP has not received any notice
of any condemnation proceeding or other proceedings in the nature of eminent
domain in connection with the Property which are currently pending, and to
WRAAP's knowledge no such proceedings are currently threatened;
viii. ENVIRONMENTAL CONDITION. During WRAAP's
ownership of the Property, no Hazardous Substances were deposited on the Land or
onto neighboring property by WRAAP or, to WRAAP's knowledge, any other party.
For purposes of this Agreement, the term "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. WRAAP has delivered to Buyer true,
correct and complete copies of all environmental reports in WRAAP's possession
or reasonable control, which reports are listed on EXHIBIT N attached hereto;
ix. TENANT IMPROVEMENT WORK. In regard to the
Building, WRAAP has completed and paid all costs associated with the tenant
improvements except with respect to that work required under the American Water
Lease, as such Lease is more particularly described in Exhibit O;
x. PERSONAL PROPERTY. Exhibit J attached hereto
sets forth a true, correct and complete list of all personal property owned by
WRAAP;
xi. EMPLOYEES. Neither WRAAP nor WRUR has any
employees;
xii. PERMITS. To WRAAP's knowledge, WRAAP has not
failed to maintain or obtain any license or permit necessary for the operation
of the Property in the manner in which they are presently being operated. All
warranties, guarantees, licenses and permits held by WRAAP or otherwise
benefiting the Property are listed on Exhibit K attached hereto; and
xiii. TAX APPEALS. There are no pending tax appeals
with respect to real property taxes or assessments against the Property.
c. with regard to the Leases and except for other subleases
which are entered into prior to Closing with Buyer's prior written consent,
which consent shall not be unreasonably withheld, conditioned and delayed, WRAAP
represents:
27
i. FULL FORCE AND EFFECT. EXHIBIT O attached hereto
sets forth a true, correct and complete list of all Leases and any amendments,
modifications, supplements and renewals thereto. Each of the Leases is in full
force and effect and neither WRAAP nor to WRAAP's knowledge the Tenant is in
default under such Lease;
ii. CLAIMS OF TENANTS. No Tenant has asserted any
claim of which WRAAP has written notice which could adversely affect the right
of WRAAP, as landlord under the Lease, to collect rent from such Tenant and no
written notice of default or breach on the part of WRAAP, as landlord under any
Lease, has been received from any Tenant which has not been cured;
iii. TENANT IMPROVEMENTS. Except for WRAAP's
obligations described in Section 3.8 of this Agreement, all painting, repairs,
alteration, improvements and other work required to be performed by WRAAP under
the Leases have been performed and paid for in full by WRAAP;
iv. BROKERAGE COMMISSIONS. EXHIBIT P attached hereto
sets forth all written or oral leasing brokerage and similar agreements relating
to the Property (collectively, the "BROKERAGE AGREEMENTS") and all leasing,
brokerage or other commissions due or to become due (either prior to or after
the Closing Date) in connection with the Leases (the "BROKERAGE COMMISSIONS").
Except as set forth on Exhibit P, all Brokerage Commissions have been paid in
full. Buyer shall not be required to assume any such obligation to pay any
leasing, brokerage or other commissions in connection with the Leases. WRAAP
shall pay all Brokerage Commissions in full at or prior to Closing or may at
WRAAP's option provide Buyer with a credit in the amount of all Brokerage
Commissions at Closing. WRAAP has provided Buyer with true, correct and complete
copies of (or, in the case of oral agreements, descriptions of) all Brokerage
Agreements (and amendments, modifications, guarantees, warranties, bonds and/or
supplements thereto); and
v. COPIES OF LEASES DELIVERED; RENT ROLLS;
DELINQUENCY REPORTS. The copies of the Leases previously delivered by WRAAP to
Buyer are true, correct and complete copies of the Leases and the same have not
been further amended, modified, or supplemented; and no Tenant thereunder has
any right to extend or renew the term thereof except as expressly set forth in
the Leases. The Rent Roll previously delivered by WRAAP to Buyer, a copy of
which is attached hereto as EXHIBIT Q, is true, correct and complete as of the
date thereof (other than in immaterial respects) and includes a list of all
security deposits held by WRAAP under each of the Leases.
d. For purposes of this Section 6.1, any reference to
Seller's knowledge shall be deemed to be Seller's actual (as opposed to
constructive, implied or imputed) knowledge of Xxxxxxx Xxxxx, Xxxx Xxxxxxxxxx
and Xxxxx Xxxx without any duty of investigation or inquiry and any reference to
receipt or non-receipt of a notice shall be deemed to be Seller's actual (as
opposed to constructive, implied or imputed) receipt or non-receipt of such
notice. Seller hereby assures Buyer that Xxxxxxx Xxxxx, Xxxx Xxxxxxxxxx and
Xxxxx Xxxx have primary responsibility for overseeing the management and
operation of the Acquired Assets. If Buyer
28
has actual knowledge that any of the foregoing representations and warranties
are not true and correct as of the Due Diligence Expiration Date, and Buyer
elects to consummate the Closing under this Agreement, Buyer shall be deemed to
have waived such breach and such representation and warranty shall be deemed to
be revised as of the date of Closing to conform to such facts and circumstances
as existed as of the Due Diligence Expiration Date.
The representations and warranties made in this Agreement and in the Closing
Documents by Seller shall be continuing and shall be deemed remade by Seller as
of the Closing Date with the same force and effect as if made on, and as of, the
Closing Date and such representations and warranties shall survive Closing for
twelve (12) months.
6.2. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller that:
a. STATUS AND AUTHORITY OF BUYER. Buyer is a duly
organized, validly existing limited liability company and is in good standing
under the laws of the State of Delaware and has all requisite power and
authority under the laws of such state to enter into and perform its obligations
under this Agreement and consummate the transaction contemplated herein.
b. ACTION OF BUYER. Buyer and Buyer's approved assignee
have taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and delivery of any
document to be delivered by Buyer and Buyer's approved assignee on or prior to
the Closing Date, such document shall constitute the valid and binding
obligation and agreement of Buyer and Buyer's approved assignee, enforceable
against Buyer and Buyer's approved assignee in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors.
c. AUTHORIZATIONS AND CONSENTS. Buyer and Buyer's approved
assignee have each obtained all necessary authorizations and consents to enable
it to execute and deliver this Agreement and as of the Closing Date, Buyer and
Buyer's approved assignee will have each obtained all necessary authorizations
and consents to enable it to consummate the transaction contemplated herein.
d. TERRORIST ORGANIZATIONS LISTS. Buyer is not acting,
directly or indirectly, for or on behalf of any Person named by the United
States Treasury Department as a Specifically Designated National and Blocked
Person, or for or on behalf of any person designated in Executive Order 13224 as
a person who commits, threatens to commit, or supports terrorism. Buyer is not
engaged in the transaction contemplated by this Agreement directly or indirectly
on behalf of, or facilitating such transaction directly or indirectly on behalf
of, any such Person.
e. KNOWLEDGE. "Actual knowledge" of Buyer shall be deemed
to be the actual (as opposed to constructive, implied or imputed of Xxxxx
Xxxxxxxx and Xxxxx Xxxxxxx, without any duty of investigation or inquiry
whatsoever.
29
The representations and warranties made in this Agreement and in the Closing
Documents by Buyer shall be continuing and shall be deemed remade by Buyer as of
the Closing Date with the same force and effect as if made on, and as of, the
Closing Date and such representations and warranties shall survive Closing for
twelve (12) months.
6.3. DISCLAIMER; BUYER'S ACKNOWLEDGEMENTS RE: CONDITION OF THE
ACQUIRED ASSETS; ACCEPTANCE OF THE ACQUIRED ASSETS. Buyer hereby acknowledges
that during the Due Diligence Review Period, and subject to the terms of this
Agreement, Buyer will have had the full and free opportunity to perform the Due
Diligence Review and independently inspect and review all conditions of the
Acquired Assets including environmental conditions.
BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN THE CLOSING DOCUMENTS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
ACQUIRED ASSETS, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B)
THE INCOME TO BE DERIVED FROM THE ACQUIRED ASSETS, (C) THE SUITABILITY OF THE
ACQUIRED ASSETS FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER, BUYER'S
AFFILIATES OR ANY TENANT MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE
ACQUIRED ASSETS OR THEIR OPERATIONS WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE ACQUIRED ASSETS, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE ACQUIRED ASSETS, (G)
THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE ACQUIRED ASSETS,
OR (H) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS,
RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE
ACQUIRED ASSETS OF HAZARDOUS MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER
MATTER WITH RESPECT TO THE ACQUIRED ASSETS. ADDITIONALLY, EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS, NO PERSON ACTING ON
BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF BUYER
ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT,
WARRANTY, GUARANTY OR PROMISE REGARDING THE ACQUIRED ASSETS OR THE TRANSACTION
CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY,
STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL
BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET FORTH HEREIN. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS, BUYER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY
30
TO INSPECT THE ACQUIRED ASSETS, BUYER AND BUYER'S AFFILIATES SHALL RELY SOLELY
ON THE DUE DILIGENCE REVIEW AND ON ITS OWN INDEPENDENT INVESTIGATION OF THE
ACQUIRED ASSETS, SUBJECT TO THE TERMS OF THIS AGREEMENT AND IN THE CLOSING
DOCUMENTS, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY OR ON BEHALF
OF SELLER AND AGREES TO ACCEPT THE ACQUIRED ASSETS AT THE CLOSING AND WAIVE ALL
OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR
CLAIM OF CONTRIBUTION OR ANY CLAIM PURPORTING TO ARISE OUT OF SELLER'S OWN
NEGLIGENCE) ARISING FROM OR RELATED TO THE ACQUIRED ASSETS OR TO ANY HAZARDOUS
MATERIALS ON THE ACQUIRED ASSETS OTHER THAN WITH RESPECT TO THIRD PARTY CLAIMS.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE
PROVIDED WITH RESPECT TO THE ACQUIRED ASSETS WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS, SELLER IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENT, REPRESENTATION OR
INFORMATION PERTAINING TO THE ACQUIRED ASSETS, OR THE OPERATION THEREOF,
FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR
OTHER PERSON. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE ACQUIRED ASSETS AS PROVIDED FOR HEREIN IS MADE
ON AN "AS IS" "WHERE IS" CONDITION AND BASIS "WITH ALL FAULTS". IT IS UNDERSTOOD
AND AGREED THAT THE PURCHASE PRICE HAS BEEN DETERMINED THROUGH NEGOTIATION TO
REFLECT THAT THE ACQUIRED ASSETS IS BEING SOLD BY SELLER AND PURCHASED BY BUYER
IN THE FOREGOING CONDITION.
ARTICLE 7
SELLER'S AFFIRMATIVE COVENANTS
Seller and each of the Transferred Companies hereby covenants with Buyer
that from the Effective Date until the Closing Date (or until such date as may
be specified below) as follows:
7.1. APPROVAL OF AGREEMENTS. Except as otherwise authorized by this
Agreement, Seller shall not enter into, modify, amend or terminate the Leases or
any of the Transferred Contracts with respect to the Acquired Assets or grant
any consent thereunder which would encumber or be binding upon Buyer from and
after the Closing Date without in each instance obtaining the prior written
consent of Buyer, which consent shall not be unreasonably withheld, conditioned
or delayed prior to the Due Diligence Expiration Date, but which consent may be
withheld in the sole and absolute discretion of Buyer after the Due Diligence
Expiration Date. On or prior to the Due Diligence Expiration Date, Buyer shall
provide Seller with a list of the Transferred Contracts.
31
7.2. OPERATION OF THE PROPERTY. To continue to operate the Property
as currently operated in a good and businesslike fashion consistent with its
past business practices and to cause the Property to be maintained in good
working order and condition in a manner consistent with its past business
practices and to keep current insurance policies in effect (or comparable
replacements thereof), to not encumber the Property and to provide Buyer with
copies of any written violation notices or other written notices involving
litigation, condemnation, environmental, zoning or other land-use regulation
proceedings it receives.
7.3 STATEMENTS. Seller shall deliver to Buyer copies of all
operating statements prepared in the ordinary course of business within fifteen
(15) days after Seller's preparation thereof relating to periods prior to
Closing, even if prepared after Closing. Seller shall also deliver to Buyer
copies of any bills for real estate taxes and personal property taxes and copies
of any notices pertaining to real estate taxes or assessments applicable to the
Property that are received by Seller after the Effective Date, even if received
after Closing. The obligations set forth in this Section shall be Surviving
Provisions.
7.4 NOTICE OF LITIGATION. Seller shall promptly advise Buyer of any
written notice of litigation received by Seller that will materially and
negatively affect the ownership or operation of the Acquired Assets.
7.5 BUYER'S AUDIT. Buyer has advised Seller that Buyer must cause to
be prepared up to three (3) years of audited financial statements in respect of
the Acquired Assets in compliance with the policies of Buyer and certain laws
and regulations, including, without limitation, Securities and Exchange
Commission Regulation S-X, Rule 3-14. Seller agrees to use reasonable efforts to
cooperate with Buyer's auditors in the preparation of such audited financial
statements. Without limiting the generality of the preceding sentence (i) Seller
shall, during normal business hours, allow Buyer's auditors reasonable access to
such books and records maintained by Seller (and Seller's manager of the
Acquired Assets) in respect of the Acquired Assets as necessary to prepare such
audited financial statements; (ii) Seller shall use reasonable efforts to
provide to Buyer such financial information and supporting documentation as are
necessary for Buyer's auditors to prepare audited financial statements; (iii)
Seller will make available for interview by Buyer and Buyer's auditors the
manager of the Acquired Assets or other agents or representatives of Seller
responsible for the day-to-day operation of the Acquired Assets and the keeping
of the books and records in respect of the operation of the Acquired Assets; and
(iv) if Seller has audited financial statements with respect to the Acquired
Assets, Seller shall promptly provide Buyer's auditors with a copy of such
audited financial statements. If after the Closing Date Seller obtains an
audited financial statement in respect of the Acquired Assets for a fiscal
period prior to the Closing Date that was not completed as of the Closing Date,
then Seller shall promptly provide Buyer with a copy of such audited financial
statement. The parties' obligations under this Section 7.5 shall be Surviving
Provisions.
7.6 AUDITOR'S REPORT. Seller, at the expense of Seller other than
WRAAP or WRUR, with Buyer's assistance and cooperation, will submit or cause to
be submitted on or before March 31, 2006, an auditor's report and an annual
audited statement for WRUR's fiscal year 2005 in accordance with requirements of
Section 14 of the PILOT Agreement and otherwise
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acceptable to the Township Council, the Tax Assessor, the Town Clerk and the
Director of the Division of Local Government Services of the Department of
Community Affairs (as such parties are identified in the PILOT Agreement). All
documents used or needed in connection with the preparation of the auditor's
report and the annual audited statement shall be considered Transferred
Documentation.
7.7 ANNUAL DISCLOSURE STATEMENT. After December 31, 2005 and on or
before the Closing Date, WRUR will cause WRUR to file the annual disclosure
statement required by Section 16(d) of the PILOT Agreement and provide a copy of
such filing to Buyer.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF SELLER AND BUYER TO CLOSING
8.1. SELLER'S CONDITIONS TO CLOSING. The obligations of Seller
hereunder are subject to satisfaction of each of the following conditions as of
the time of Closing:
a. Buyer shall have complied in all material respects with
all of the terms, covenants and conditions hereof to be complied with on the
part of Buyer, including but not limited to, the delivery to Seller of the
Purchase Price payable hereunder, as adjusted as herein provided.
b. All representations of Buyer in Section 6.2 of this
Agreement shall be true and correct at the time of Closing as if made at such
time.
If Seller's Conditions listed above or any of the other express
conditions set forth in this Agreement to Seller's obligation to close have not
been satisfied to the sole satisfaction of Seller or waived in writing by
Seller, and provided the Closing does not occur due to Seller's default under
this Agreement, Seller shall be entitled to terminate this Agreement in which
case Buyer shall receive the Deposit and all accrued interest thereon unless the
Closing does not occur due to Buyer's default under this Agreement.
8.2 BUYER'S CONDITIONS TO CLOSING. The obligations of Buyer
hereunder are subject to satisfaction of each of the following conditions as of
the time of Closing:
a. Seller shall have complied in all material respects with
all of the terms, covenants and conditions hereof to be complied with on the
part of Seller.
b. Subject to the second to last paragraph of Section 6.1
of this Agreement, all representations and warranties of Seller in Section 6.1
of this Agreement shall be true and correct at the time of Closing as if made at
such time. Seller shall be entitled to downdate any of its representations and
warranties to reflect matters revealed in any of the Tenant Estoppels; provided,
however, that the condition set forth in this Section shall not be deemed
satisfied unless all representations and warranties of Seller in Section 6.1 of
this Agreement shall be true and correct at the time of Closing as if made at
such time (regardless of any downdate).
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c. Buyer shall have received an ALTA owner's policy of title
insurance or a marked up title commitment issued by the Title Company for the
Acquired Assets, in the amount of the Purchase Price allocation and containing
such endorsements as may be required by Buyer or Buyer's lender (to the extent
available in New Jersey), insuring good and marketable fee title to the Acquired
Assets subject only to the Permitted Encumbrances (the "TITLE POLICY"). The
Title Policy shall provide full coverage against mechanics and materialmen's
liens arising out of the construction, repair or alteration of any of the
Improvements, including any tenant improvements therein. Seller shall execute
and deliver to the Title Company an owner's affidavit sufficient to support the
issuance of the Title Policy. Notwithstanding the foregoing, in the event that
Buyer is unsuccessful in obtaining such ALTA owner's policy of title insurance
or a marked up title commitment as described above, Seller shall have the option
to obtain the aforesaid ALTA owner's policy of title insurance or marked up
title commitment on Buyer's behalf and at Buyer's sole cost and expense in order
to satisfy this condition. Any title insurance policy obtained by Seller on
Buyer's behalf shall be issued by a nationally recognized title insurance
company qualified to issue title insurance policies in the State of New Jersey
and be obtained at rates promulgated by the State of New Jersey, any such title
insurance policy shall not be at any additional liability or increased risk to
Buyer.
d. The physical condition of the Property shall be substantially
the same on the day of Closing as on the Effective Date, reasonable wear and
tear and loss by casualty excepted (subject to the provisions of Section 10.1
below), and, as of the day of Closing, there shall be no litigation or
administrative agency or other governmental proceeding of any kind whatsoever,
pending or threatened, which after Closing would materially adversely affect the
value of the Acquired Assets or the ability of Buyer to operate the Acquired
Assets in the manner in which it is currently being operated.
e. Buyer shall have received the Tenant Estoppels required under
Section 3.7 of this Agreement.
f. Seller shall have completed all work required under Section 3.8
or will escrow 110% of mutually agreed upon funds to complete such work pursuant
to a mutually acceptable escrow agreement with Escrow Agent or another third
party escrow agent approved by Buyer.
If Buyer's Conditions listed above or any of the other express conditions set
forth in this Agreement to Buyer's obligation to close have not been satisfied
to the sole satisfaction of Buyer or waived in writing by Buyer, and provided
the Closing does not occur due to Buyer's default under this Agreement, Buyer
shall be entitled to terminate this Agreement and receive a refund of the
Deposit and all interest accrued thereon and to pursue its remedies under
Section 11.3 of this Agreement.
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ARTICLE 9
ENVIRONMENTAL
9.1. DISCLAIMER AND BUYER'S RELEASE OF SELLER.
a. ACKNOWLEDGMENT OF DISCLAIMER. Except as otherwise
expressly set forth in this Agreement, Buyer acknowledges and agrees that Seller
has not made, does not make, and specifically disclaims any representations or
warranties regarding compliance with any Hazardous Substances or other laws,
regulations, ordinances or other requirements.
b. RELEASE. Except to the extent attributable to Seller,
Buyer and anyone claiming by, through or under Buyer hereby fully and
irrevocably releases Seller from any and all claims or causes of action that
Buyer may now have or hereafter acquire against Seller for either Losses or any
alleged or actual violation of any statute, regulation, or judicial decision
enacted, promulgated, or decided concerning the Acquired Assets or Hazardous
Substances, other than with respect to third party claims. This release includes
but is not limited to Losses of which Buyer is presently unaware or which Buyer
does not presently suspect to exist in its favor which, if known by Buyer, would
materially affect Buyer's release of Seller.
9.2. SELLER'S RELEASE OF BUYER. Except to the extent attributable to
Buyer, Seller and anyone claiming by, through or under Seller hereby fully and
irrevocably releases Buyer from any and all claims or causes of action that
Seller may now have or hereafter acquire against Buyer for either Losses or any
alleged or actual violation of any statute, regulation, or judicial decision
enacted, promulgated, or decided concerning the Acquired Assets or Hazardous
Substances, other than with respect to third party claims. This release includes
but is not limited to Losses of which Seller is presently unaware or which
Seller does not presently suspect to exist in its favor which, if known by
Seller, would materially affect Seller's release of Buyer.
ARTICLE 10
RISK OF LOSS
10.1. CASUALTIES. If, between the Effective Date and the Closing, any
material portion of the Property is damaged or destroyed by fire or other
casualty or by reason of theft or disappearance ("DAMAGED PROPERTY") that will
cost less than Five Million Dollars ($5,000,000) (the "THRESHOLD") to repair or
replace, Buyer shall purchase the Damaged Property at Closing, whereupon Seller
shall assign to Buyer any insurance proceeds to which Seller may be entitled as
a result of such damage, destruction, casualty or loss to the Damaged Property,
and Buyer shall receive a credit against the Purchase Price in the amount of the
deductible (unless previously paid by Seller). If, however, such cost will
exceed the Threshold, Buyer shall have the option, exercisable by notice to
Seller within five (5) days after Buyer learns of said damage, destruction,
casualty or loss, to either: (a) elect not to purchase the Acquired Assets and
to terminate this Agreement whereupon the Deposit shall be paid to Buyer and the
parties shall have no further rights or obligations hereunder except for the
Surviving Provisions, or (b) elect to purchase the Acquired Assets, whereupon
Seller shall assign to Buyer any insurance proceeds to which Seller may be
entitled as a result of such damage, destruction, casualty or loss to the
35
Damaged Property, and Buyer shall receive a credit against the Purchase Price in
the amount of the deductible (unless previously paid by Seller).
10.2. CONDEMNATION. If, between the Effective Date and the Closing, a
portion of the Property the value of which is less than the Threshold, shall be
taken by reason of the exercise of the power of eminent domain, Buyer shall
purchase the Acquired Assets and pay the full Purchase Price at Closing,
whereupon Seller shall assign to Buyer all damages to which Seller may be
entitled and that may be assigned by Seller pursuant to the eminent domain law
of the municipality in which such taking shall occur; provided, however, that
any taking involving or relating to parking, adequacy of utilities or
ingress/egress, or zoning compliance, shall be deemed to exceed the Threshold.
If, between the Effective Date and the Closing, any taking in excess of the
Threshold shall be taken by reason of the exercise of the power of eminent
domain, Buyer shall have the option, exercisable by notice to Seller within five
(5) days after Buyer learns of such taking, to either (a) elect not to purchase
the Acquired Assets, whereupon the Deposit and all accrued interest thereon
shall be paid to Buyer and the parties shall have no further rights or
obligations hereunder except for the Surviving Provisions or (b) elect to
purchase the Acquired Assets and pay the full Purchase Price allocated to the
Acquired Assets at Closing, whereupon Seller shall assign to Buyer all damages
to which Seller may be entitled and that may be assigned by Seller pursuant to
the eminent domain law of the municipality in which such taking shall occur.
Within five (5) days after notification of any such taking, but in no event
later than Closing, Seller shall notify Buyer thereof.
ARTICLE 11
REMEDIES UPON DEFAULT
11.1. TIME OF ESSENCE. Time is of the essence with respect to all of
the terms and conditions set forth in this Agreement.
11.2. SELLER'S REMEDIES. In the event of a default by Buyer following
the Due Diligence Expiration Date in the performance of any of the terms,
covenants and conditions hereof to be performed on the part of Buyer, which
results in Buyer's failure to close, Seller shall be entitled terminate this
Agreement and receive the Deposit and all accrued interest thereon and all other
monies paid on account of the Purchase Price, as liquidated damages and not as a
penalty, as Seller's sole and exclusive remedy, and neither party shall have any
further liability hereunder (except for the Surviving Provisions). The parties
acknowledge and agree that Seller's damages in the event of a default by Buyer
are difficult, if not impossible, to ascertain, and the Deposit and all accrued
interest thereon constitute a reasonable approximation of Seller's likely actual
damages in such an event. In the event Seller closes under this Agreement and
then Buyer fails to fully perform any of its other obligations under this
Agreement that survive or are performable after Closing, Seller may seek all
remedies available at law or in equity. In addition, Buyer shall deliver to
Seller all reports, tests, studies and other documentation prepared by Buyer, or
on Buyer's behalf, in the Due Diligence Review.
11.3. BUYER'S REMEDIES. In the event of a default by Seller in the
performance of any of the terms, covenants and conditions hereof to be performed
on the part of Seller, Buyer may (a) terminate the Agreement, in which event the
Deposit and all accrued interest thereon shall be
36
returned to Buyer as well as all other monies paid on account of the Purchase
Price, this Agreement shall terminate and neither party shall have any further
liability hereunder (except for the Surviving Provisions), or (b) pursue an
action for specific performance of this Agreement. Notwithstanding the
foregoing, if prior to the Closing Date, Seller or the Transferred Companies
convey any interest in the Acquired Assets or the Property such that specific
performance is not available as an adequate remedy, then Buyer may seek all
other remedies as may be available at law or in equity. In the event Buyer
closes under this Agreement and then Seller fails to fully perform any of its
other obligations under this Agreement that survive or are performable after
Closing, Buyer may seek all remedies available at law or in equity.
11.4. ATTORNEYS' FEES. If any litigation is brought concerning this
Agreement the party determined to be the prevailing party in the final judgment
or order of court will be entitled to such party's reasonable attorneys' fees
and direct costs and expenses in connection with the litigation.
11.5 WAIVER OF TENDER. Formal tender of the balance of the Purchase
Price by Buyer to Seller and the Transfer Documents by Seller to Buyer is hereby
waived by both Seller and Buyer.
ARTICLE 12
MISCELLANEOUS
12.1. BROKER. No broker other than Rockwood Realty Associates (the
"Broker") was involved in connection with the transaction contemplated hereby.
At Closing, Seller shall pay the Broker a sales commission (the "Commission") in
accordance with the terms of a separate written agreement between Seller and the
Broker. Each party hereby indemnifies and holds the other party harmless from
and against any and all claims for any broker's commission or similar
compensation that may be payable to any broker, finder or other person or entity
based solely upon such party's own acts; provided, however, that claims of the
Broker are excluded from Buyer's indemnity of Seller. The provisions of this
Section shall be a Surviving Provision.
12.2. LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary contained herein, each of Owner's liability hereunder shall be limited
to its sole representation and warranty as to its ownership interest in WRAAP or
WRUR, as applicable, as set forth in Section 6.1(a)(v) and its obligation to
execute and deliver such documents as may be reasonably necessary to effectuate
the transfer of its interest in accordance with this Agreement. Each of the
Owners acknowledge that a portion of the Purchase Price as represented by the
Note has been withheld as financial security for certain representations and
warranties as more particularly set forth therein.
12.3. NEXT BUSINESS DAY. In the event any date described herein for
payment or performance of the provisions hereof falls on a Saturday, Sunday or
legal holiday, the time for such payment or performance shall be extended to the
next business day.
12.4. NOTICES. Any notices or other communications between the parties
hereto each a "Notice" and collectively, "Notices") shall be in writing and
shall be given (a) by hand, b) by
37
United States registered or certified mail, postage prepaid, return receipt
requested, (c) by overnight courier service guaranteeing next business day
delivery, or (d) via telecopier or facsimile transmission to the facsimile
number listed below, addressed to the party for whom intended as follows:
(a) if to Seller:
Woodcrest Road Associates, L.P.
000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Fax: 000-000-0000
Tel: 000-000-0000
and
Woodcrest Road Urban Renewal, LLC
000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Fax: 000-000-0000
Tel: 000-000-0000
with a copy to be delivered to:
Silverang & Associates LLC
000 Xxxxx Xxxxxxxxx Xxxx. Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire
Fax: 000-000-0000
Tel: 000-000-0000
(b) if to Owners:
Owners identified and having the addresses set
forth in Schedule I
with a copy to be delivered to:
Silverang & Associates LLC
000 Xxxxx Xxxxxxxxx Xxxx. Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire
Fax: 000-000-0000
Tel: 000-000-0000
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(c) if to Buyer:
Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx. Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxx
Fax: 000-000-0000
Tel: 000-000-0000
with a copy to be delivered to:
Xxxxxx & Xxxxxxx, LLP
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. XxXxx, Esquire
Fax: 000-000-0000
Tel: 000-000-0000
Either party may designate by Notice given to the other party a new address to
which Notices hereunder shall thereafter be sent. All Notices hereunder shall be
deemed to have been delivered on the first Business Day on or after (i) actual
receipt or refusal by the party to whom intended, (ii) three (3) business days
after deposit thereof at any main or branch United States post office if sent in
accordance with (b) above, (iii) one (1) business day after deposit thereof with
an overnight courier service in accordance with (c) above, or (iv) successful
transmission of all pages on or before 5:00 P.M. local time of the recipient's
facsimile machine, if after such time or on a non-business day, then such notice
shall be effective as of the next succeeding business day. Notices sent by a
party's attorney shall constitute notice from the applicable party.
12.4. COVENANT NOT TO RECORD. Buyer will not record this Agreement,
and any such recording shall constitute a default by Buyer hereunder.
12.5. ENTIRE AGREEMENT. All understandings and agreements, oral or
written, heretofore had between the parties with respect to the subject matter
hereof are merged in this Agreement, which alone fully and completely expresses
their agreement, and the same is entered into after full investigation, neither
party relying upon any statement or representation not embodied in this
Agreement made by the other party. This Agreement may not be terminated,
modified or amended, nor any provision hereof waived, in whole or in part,
except by a writing signed by the party against whom enforcement of such
termination, modification, amendment or waiver is sought.
12.6. MERGER; SURVIVAL. Except to the extent expressly provided to the
contrary herein, all representations, warranties, covenants, promises and
agreements of the parties hereto contained in this Agreement shall merge in the
delivery of the Transfer Documents and shall not survive the Closing.
39
12.7. INTERPRETATION. Whenever used in this Agreement, the singular
shall include the plural, the plural the singular, and the use of any gender
shall be applicable to all genders. Any reference to a portion of this Agreement
surviving Closing is intended to mean that such portion will survive Closing,
earlier termination of this Agreement, or delivery of the Transfer Documents.
Article and Section headings are inserted for convenience only and shall not
form part of the text of this Agreement.
12.8. GOVERNING LAW; BINDING EFFECT. Enforcement of this Agreement
shall be governed by and construed in accordance with the laws of the State of
New Jersey.
12.9. ASSIGNMENT OF AGREEMENT. Buyer shall not assign its rights in
this Agreement without the prior written consent of Seller, provided, however,
that no such consent shall be required with respect to Buyer's assignment to an
entity that (i) is wholly owned, directly or indirectly, by Buyer, or (ii) any
partnership in which Buyer or an affiliate of Buyer is the general partner, or
(iii) any fund or entity sponsored by Buyer; such assignee delivers, on or
before the date that is three (3) business days before the Closing Date, to
Seller a duly executed assumption of all of the duties and obligations of Buyer
by the proposed assignee; and provided further that upon any such assignment
permitted hereunder, Buyer shall remain liable to Seller for the performance of
the obligations of "Buyer" hereunder. Notwithstanding the foregoing, Buyer may
assign its rights without the consent of Seller to an Affiliate, or to such
entities as may be created and qualified to effect the transfer of the PILOT tax
benefit, provided that no assignment of Buyer's rights hereunder shall relieve
Buyer of its liabilities under this Agreement.
12.10. COUNTERPARTS/FACSIMILE. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one instrument. This Agreement may be executed via
facsimile followed by regular mail of the originals and shall be considered
executed and binding upon receipt of the fax of the signature page of the last
of the party's signature to this Agreement.
12.11. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY LAW, EACH
PARTY HEREBY WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY
ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS
AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE ACQUIRED
ASSETS, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING
HERETO OR TO ANY OF THE FOREGOING.
12.12. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are
not intended to benefit any person or entity not a party hereto.
12.13 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person, entity, place or circumstance, shall be held
by a court of competent jurisdiction to be invalid, unenforceable or void in any
respect, the remainder of this Agreement and such provisions as applied to other
persons, entities, places and circumstances shall remain in full force and
effect.
40
12.14. DRAFTS NOT AN OFFER TO ENTER INTO A LEGALLY BINDING CONTRACT.
THE SUBMISSION OF A DRAFT, OR A MARKED-UP DRAFT, OF THIS AGREEMENT BY ONE PARTY
TO ANOTHER IS NOT INTENDED BY EITHER PARTY TO BE AN OFFER TO ENTER INTO A
LEGALLY BINDING CONTRACT WITH RESPECT TO THE PURCHASE AND SALE OF THE ACQUIRED
ASSETS. THE PARTIES SHALL BE LEGALLY BOUND WITH RESPECT TO THE PURCHASE AND SALE
OF THE ACQUIRED ASSETS PURSUANT TO THE TERMS OF THIS AGREEMENT ONLY IF AND WHEN
THE PARTIES HAVE BEEN ABLE TO NEGOTIATE ALL OF THE TERMS AND PROVISIONS OF THIS
AGREEMENT IN A MANNER ACCEPTABLE TO EACH OF THE PARTIES IN THEIR RESPECTIVE SOLE
DISCRETION, AND SELLER AND BUYER HAVE FULLY EXECUTED AND DELIVERED TO EACH OTHER
A COUNTERPART OF THIS AGREEMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first above written.
SELLER:
WOODCREST ROAD ASSOCIATES, WOODCREST ROAD URBAN
L.P., a Pennsylvania limited partnership RENEWAL, LLC, a New Jersey limited
(d/b/a WRAAP, L.P. in New Jersey) liability dividend company
By: Woodcrest Road Associates
Acquisition Corporation By: ______________________
a Pennsylvania corporation Name:
Title:
By: ______________________
Name:
Title:
OWNERS:
WOODCREST ROAD ASSOCIATES
ACQUISITION CORPORATION
______________________________ By: ____________________________
J. XXXXX X'XXXXX Name:
Title:
THE XXXX XXXXXXXX XXXXXX OPG PARTICIPATION, LLC
TRUST, For the Family of J. Xxxxxxx
Xxxxxxxxxx
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
SRI-WOODCREST ASSOCIATES, LLC
By: __________________________________
Name:
Title:
[signatures continued on next page]
42
BUYER:
HARVARD PROPERTY TRUST, LLC
a Delaware limited liability company
d/b/a Behringer Harvard Funds
By: _____________________________
Name:
Title:
The undersigned, acting as Escrow Agent joins in the execution of this
Agreement solely to (i) acknowledge receipt of the Deposit and (ii) agree to
perform the duties of Escrow Agent as set forth herein.
Witness: ESCROW AGENT:
PARTNERS TITLE COMPANY
_________________________ By: _________________________________
Name:
Title:
43
