PURCHASE AND SALE CONTRACT
between
BEACON PROPERTIES, L.P.
as "Seller"
and
CALI REALTY ACQUISITION CORPORATION
as "Buyer"
ONE, TWO, THREE AND FIVE XXXXXXXXX
XXXXXXXXX XXXXXX XXXX
XXXXXXXXXX XXXXXXXX, XXXXXXXXXXXX
as of April __, 1997
Table of Contents
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ARTICLE 1 Description of Property
ARTICLE 2. Sale Subject to Leases
ARTICLE 3. Purchase Price and Payment
ARTICLE 4. Form of Conveyance
ARTICLE 5. Closing
ARTICLE 6. Approvals and Conditions to Buyer's Obligations
ARTICLE 6A. Conditions Precedent
ARTICLE 7. Default
ARTICLE 8. Entire Agreement Herein
ARTICLE 9. Damage or Destruction: Condemnation
ARTICLE 10. Representations and Warranties of Seller
ARTICLE 11. Operations
ARTICLE 12. Apportionment of Taxes and Other Charges
ARTICLE 13. Broker
ARTICLE 14. Recording
ARTICLE 15. Notices
ARTICLE 16. Captions
ARTICLE 17. Successors and Assigns
ARTICLE 18. Closing Costs
ARTICLE 19. Governing Law
ARTICLE 20. Multiple Counterparts
ARTICLE 21. Representations and Warranties of Buyer
ARTICLE 22. Post-Closing Obligations
ARTICLE 23. Duties and Responsibilities of Escrow Agent
ARTICLE 24. Like Kind Exchange
ARTICLE 25. Conditions Precedent To Closing
ARTICLE 26. Miscellaneous
ARTICLE 27. Title Matters.
Exhibits
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Exhibit A Description of Real Property
Exhibit B Personal Property
Exhibit C Leases and Rent Roll
Exhibit C-1 Form of Lease
Exhibit D Form of Deed
Exhibit E Intentionally Omitted
Exhibit F Form of Assignment and Assumption Agreement (re: Leases)
Exhibit G Form of Assignment and Assumption Agreement (re: Contracts)
Exhibit H Form of FIRPTA Affidavit
Exhibit I Operating Contracts
Exhibit J Litigation, etc.
Exhibit K Tenant Estoppel Certificate
Exhibit L Tenant Notices
Exhibit M Brokerage Commissions
PURCHASE AND SALE CONTRACT
THIS AGREEMENT (the "Contract") made as of this _______ day of April,
1997, by and between BEACON PROPERTIES, L.P., having an office at 00 Xxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as "Seller"), and
CALI REALTY ACQUISITION CORPORATION, having an office at 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx, 00000-0000 (hereinafter referred to as "Buyer").
WITNESSETH THAT, Seller owns the land described on Exhibit A hereto
together with the buildings and improvements thereon, comprising those office
buildings commonly known as One, Two, Three and Five Westlakes, Westlakes Office
Park, Tredyffrin Township, Xxxxxxx County, Pennsylvania.
WITNESSETH FURTHER THAT, Seller desires to sell and Buyer desires to
purchase the Property (as hereinafter defined) on the terms and subject to the
conditions set forth herein.
WITNESSETH FURTHER THAT, for the consideration hereinafter named, and
for other good and valuable consideration, receipt and sufficiency of which is
acknowledged hereby, the parties do hereby agree as follows:
ARTICLE 1. Description of Property: Seller agrees to sell and Buyer
agrees to buy upon the terms and conditions hereinafter set forth:
(a) (i) Certain premises located in the Tredyffrin Township, County of
Xxxxxxx, State of Pennsylvania, commonly known as One, Two, Three and Five
Westlakes, Westlakes Office Park, as more particularly described in Exhibit A
attached hereto and incorporated herein by reference, together with all right,
title and interest of Seller in and
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to any land lying in the bed of any street (opened or proposed) adjacent to or
abutting or adjoining such premises, together with all rights, privileges,
rights of way and easements appurtenant to such premises, including, without
limitation, all minerals, oil or gas on or under such premises, development
rights, air rights, water rights, sewer rights and any easements, rights of way
or other interests in, on, or under any land, highway, alley, street or right of
way abutting or adjoining such premises (all of the foregoing, the "Real
Property"), (ii) all buildings and other improvements located thereon (the
"Improvements", and, together with the Real Property, the "Premises"), and (iii)
all items of personal property, fixtures, equipment and inventory owned by
Seller and located on the Premises or used exclusively in connection with the
ownership or operation of the Premises, described in Exhibit B attached hereto
and incorporated herein by reference excluding, however, those items of personal
property, fixtures, equipment and inventory specifically listed on Exhibit B as
being excluded, and otherwise including, without implied limitation, whether or
not listed on Exhibit B, and if and to the extent located in or on the Premises,
all furniture, fixtures, equipment, machines, apparatus, appliances, supplies
and personal property of every nature and description and all replacements
thereof (collectively, the "Personal Property"). All items referred to in
clauses (i), (ii) and (iii) are herein sometimes collectively referred to as the
"Property"; and
(b) (i) all leases and other contracts with respect to the use and
occupancy of the Premises, together with all amendments and modifications
thereto and any guaranties provided thereunder (individually, a "Lease", and
collectively, the "Leases"), the amount deposited (the "Security Deposit") under
any Lease in the nature of security for the performance of the obligations of
the tenant or user (individually a "Tenant", and collectively, the "Tenants")
under the leases and rents, additional rents, reimbursements, profits, income,
receipts payable after the Closing Date, hereinafter defined;
(ii) all trademarks and tradenames used in connection with the
Premises, including without limitation the name "Westlakes", "Westlakes Office
Park" and any other name by which the Premises is commonly known, and all
goodwill, if any, related
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to said names, all for which Buyer shall have the sole and exclusive rights
after the Closing hereinafter defined occurs (collectively, the "Tradenames");
(iii) all permits, licenses, guaranties, approvals, certificates and
warranties relating to the Premises and the Personal Property (collectively, the
"Permits and Licenses"), all of Seller's right, title and interest in and to
those contracts and contracts for the servicing, maintenance and operating of
the Premises ("Service Contracts") and telephone numbers in use at any of the
Premises (together with the Permits and Licenses and the Service Contracts, the
"Intangible Property");
(iv) copies of all books, records, promotional material, tenant
data, leasing material and forms, past and current rent rolls, files,
statements, market studies, keys, plans, specifications, reports, tests and
other materials of any kind owned by or in the possession of Seller which are or
may be used by Seller in the use and operation of the Premises or Personal
Property (collectively, the "Books and Records"), Buyer agreeing that Seller may
retain copies, or originals of the same; and
(v) all other rights, privileges and appurtenances owned by Seller,
if any, and in any way related to the rights and interests described above in
this Section.
ARTICLE 2. Sale Subject to Leases: Subject to the provisions of Article
4 hereof, the Premises will be conveyed subject to certain leases (hereinafter
called the "Leases") described in Exhibit C attached hereto and incorporated
herein by reference, or as hereafter added pursuant to the provisions of Article
11 hereof.
ARTICLE 3. Purchase Price and Payment: (a) The total purchase price
(the "Purchase Price") for the Property is SEVENTY-TWO MILLION FIVE HUNDRED
THOUSAND and 00/100 Dollars ($72,500,000.00) which shall be payable at the
Closing, as hereinafter defined, in lawful currency of the United States of
America in immediately available funds by wire transfer to an account designated
by Seller in writing.
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(b) As security for Buyer's performance hereunder, a deposit of FIVE
HUNDRED THOUSAND and 00/100 Dollars ($500,000.00) is being paid by Buyer
simultaneous with the execution of this Contract to Commonwealth Land Title
Insurance Company (the "Escrow Agent") which shall maintain it in a federally
insured interest-bearing money market account and disburse it according to the
terms of this Contract. The amount deposited with Escrow Agent, together with
all interest earned thereon, is hereinafter referred to as the "Deposit". The
Deposit (including any interest thereon) shall be applied in reduction of the
Purchase Price payable at the Closing. Escrow Agent's duties and
responsibilities are governed by the terms of Article 23 hereof.
(c) The payment required at the Closing shall be increased or
decreased, as the case may be, to account for all items to be apportioned or
prorated pursuant to this Contract.
ARTICLE 4. Form of Conveyance: (a) Subject to the provisions of ARTICLE
27, the Premises shall be conveyed in fee simple absolute, subject, however to
those matters set forth on Exhibit A, by a good and sufficient special warranty
deed (the "Deed") in substantially the form attached hereto as Exhibit D,
running to Buyer or, subject to the provisions of Article 17 hereof, to such
assignee (to the extent permitted by Article 17(b) herein) as Buyer designates
by written notice to Seller at least three (3) business days prior to the
Closing. The Deed shall be in proper form for recording and shall be duly
executed, acknowledged and delivered by Seller at the Closing.
(b) Delivery of the Deed hereunder shall, for all purposes, constitute
and be deemed to be a transfer of all items of the Personal Property, Intangible
Property and Books and Records without the necessity of any further act,
agreement, instrument of assignment or transfer or otherwise.
ARTICLE 5. Closing: (a) The closing of the transactions contemplated
hereunder (the "Closing") shall take place at 10:00 o'clock a.m. on April 29,
1997, (the
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"Closing Date") at the offices of Seller at the Property or at such other
location in Pennsylvania as the parties shall designate in writing at least five
(5) business days prior to the Closing Date. Either party, by notice to the
other sent prior to the Closing Date may extend the Closing Date, to a date up
to, but not beyond, May 9, 1997, after which, time is of the essence of this
Contract.
(b) At the Closing, Seller shall deliver the following documents in the
forms attached hereto or otherwise, reasonably satisfactory in form and
substance to Seller and Buyer and their respective counsel, properly executed
and acknowledged as required:
(i) The Deed;
(ii) Intentionally Omitted;
(iii) An original of an Assignment and Assumption Agreement
relating to the Leases and Security Deposits
(hereinafter defined) in the form attached hereto as
Exhibit F (the "Lease Assignment");
(iv) Originals of all Leases, any renewals thereof, all
amendments thereto and all guarantees thereof, to the
extent in Seller's possession or control, or
otherwise if Seller, using good faith efforts to
locate the same, is unable to deliver originals of
the same, copies of such Leases and other documents
certified by Seller to be true, complete and correct
will be delivered at the site;
(v) An original of an Assignment and Assumption Agreement
in the form attached hereto as Exhibit G relating to
those Operating Contracts (as hereinafter defined)
which Buyer elects to assume in accordance with the
provisions of Article 10
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(vii) hereof (the "Contract Assignment") and
originals of those Operating Contracts so assigned;
(vi) Originals or copies of all certificates of occupancy
in Seller's possession or control for all of the
Improvements which form a part of the Property and
all tenant-occupied space included within such
buildings;
(vii) To the extent in Seller's possession or control,
originals or copies of (a) all warranties,
guarantees, operating manuals and as-built plans and
specifications for the Improvements, if any, with
respect to the Property or Leases and (b) all land
use, environmental, traffic and building permits,
licenses, variances and the like;
(viii) A certification of non-foreign status in the form
attached hereto as Exhibit H;
(ix) Evidence satisfactory to Buyer and Buyer's title
insurance company (the "Title Company") that all
necessary approvals and/or consents by the general
partner of Seller and its directors have been
delivered and such other evidence satisfactory to the
Title Company of Seller's authority and the authority
of the signatory on behalf of Seller to convey the
Property pursuant to this Contract;
(x) All Security Deposits (as hereinafter defined),
together with accrued interest thereon;
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(xi) Affidavits sufficient for the Title Company to delete
any exceptions for parties in possession (other than
tenants under the Leases, as tenants only) and
mechanics' or materialmen's liens from an owner's
title insurance policy for the Premises (the "Title
Insurance");
(xii) A Rent Roll certified by Seller as of the Closing
Date;
(xiii) If requested by Escrow Agent, an authorization to
Escrow Agent to release the Deposit to Buyer;
(xiv) An original of a closing statement setting forth the
Purchase Price, the closing adjustments and
prorations and the application thereof at the Closing
(the "Closing Statement");
(xv) Original tenant notification letters for each tenant
under a Lease in a form to be drafted by Buyer and
satisfactory to Seller and original notification
letters to all parties to Operating Contracts and
other contracts to be assumed by Buyer, if any;
(xvi) An original 1099-B Certification;
(xviii) Evidence of payment to the Broker, hereinafter
defined;
(xix) If and to the extent applicable pursuant to the
appropriate provisions of ARTICLE 9 hereof, all
instruments as shall be reasonably required for the
conveyance to Buyer of all
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right, title and interest, if any, of Seller in and
to any award or payment made, or to be made, (i) for
any taking in condemnation, eminent domain or
contract in lieu thereof of land adjoining all or any
part of the Improvements, (ii) for damage to the
Premises or any part thereof by reason of change of
grade or closing of any such street, road, highway or
avenue, and (iii) for any taking in condemnation or
eminent domain of the Premises;
(xx) Any instruments reasonably required by Buyer
evidencing the assignment of Tradenames;
(xxi) All other original documents or instruments referred
to herein, including without limitation the Service
Contracts, Licenses and Permits and Books and
Records, or copies of the same certified by Seller to
be true, correct and complete where Seller, using its
reasonable efforts, is unable to deliver originals;
(xxii) Such transfer tax, gains or other similar forms
required by law;
(xxiii) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the
transaction contemplated by this Contract; and
(xxiv) A certificate of the Seller to the effect that all of
the warranties and representations made by Seller
herein are true and correct in all material respects
as of the Closing Date.
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(c) At the Closing, Buyer shall deliver, or cause to be delivered, the
following payment and documents, reasonably satisfactory in form and substance
to Seller and Seller's counsel properly executed and acknowledged as required:
(i) The Purchase Price as adjusted;
(ii) An original of the Lease Assignment;
(iii) An original of the Contract Assignment;
(iv) An original of the Closing Statement;
(v) Such transfer tax, gains or other similar forms
required by law; and
(vi) Such other documents as may be reasonably required or
appropriate to effectuate the consummation of the
transaction contemplated by this Contract.
(d) The Closing shall not be deemed to be completed until all documents
and payments as aforesaid have been properly delivered (and recorded where
appropriate) to the satisfaction of all parties.
(e) It shall be a condition precedent to the Buyer's obligation to
proceed with the Closing that the Buyer shall have received confirmation
(individually a "Confirmation" and collectively "Confirmations") of the original
estoppel certificates previously delivered by Seller to Buyer in the form of
Exhibit K annexed hereto and hereby made a part hereof and without any material
qualification from each and every tenant under a Lease or Leases of space
aggregating at least 12,000 square feet of floor space (a "Major Lease"), at
least three (3) of the four (4) tenants of the Property under a
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Lease or Leases of space aggregating at least 8,000 square feet of floor space
but not more than 11, 999 square feet of floor space (a "Minor Lease") and
tenants leasing at least 50% of the occupied rentable area of the Premises that
is not the subject of a Major Lease or a Minor Lease. In the event that such
condition shall not have been fulfilled at the Closing, Buyer shall have the
right as its sole remedy to cancel and terminate this Contract by written notice
delivered to Seller at the Closing, in which event the parties shall direct the
Escrow Agent to return the Deposit to Buyer and the obligations of the parties
under this Contract shall terminate except for Buyer's Surviving Obligation,
hereinafter defined. Seller shall use good faith efforts to obtain as many
Confirmations as possible notwithstanding the requirements of this subsection
(e).
(f) The acceptance of the Deed by the recordation thereof shall be
deemed to be full performance and discharge of every agreement and obligation
herein contained or expressed except such as are, by the terms hereof, to
survive the Closing.
ARTICLE 6. Approvals and Conditions to Buyer's Obligations:
(a) Seller acknowledges the Buyer intends to conduct an investigation
of the Property, which may include examination of all structural and mechanical
aspects thereof, review of any and all documentation with respect to the
Property including without limitation its income and expenses, Leases and tenant
files, records of repairs and capital improvements, examination of the title to
the Property, inspecting the Property, conducting tests at the Property,
including, without limitation, soil sampling, boring and investigation, ground
water investigation and engineering studies (all in accordance with the
provisions of this Contract) to determine the presence or absence Contaminants,
hereinafter defined, obtaining a current as-built survey thereof, and
determining the compliance of the Property with all applicable laws, (including,
without limitation, the laws ("environmental laws") referred to below in the
definition of "Contaminants"), rules, codes and regulations.
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The term "Contaminants" shall mean any regulated substance, toxic
substance, hazardous substance, hazardous waste, pollution, pollutant or
contaminant, as defined or referred to in the Clean Streams Law, 35 Pa. Cons.
Stat. Xxx. ss.691.1 et. seq., Solid Waste Management Act, 35 Pa. Cons. Stat.
Xxx. ss.6018.101 et. seq., Pennsylvania Storage Tank and Spill Prevention Act,
35 Pa. Cons. Stat. ss.6020.101 et. seq. (1988), and the Pennsylvania Underground
Storage Act, 58 Pa. Cons. Stat. ss.451 et. seq. (1978), the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et. seq., the
Comprehensive Environmental Response Compensation and Liability Act, as amended,
42 U.S.C. (9601 et. seq. "CERCLA") or the Water Pollution and Control Act, 33
U.S.C. ss.1251 et. seq., together with any amendments thereto, regulations
promulgated thereunder and all substitutions thereof, including, without
limitation, asbestos, polychlorinated biphenyls, urea formaldehyde, radon and
petroleum products and petroleum based derivatives; provided, however, that
where a statute, ordinance, code, rule, regulation, order, directive or
requirement defines any of these terms more broadly than another, the broader
definition shall apply.
Notwithstanding anything to the contrary contained in this Contract,
Seller acknowledges the Buyer shall have the right in its sole and absolute
discretion, upon its disapproval of any of the information it receives, to
terminate this Contract. In the event Buyer fails notify Seller that it intends
to terminate the Contract by written notice on or before April 14, 1997, Buyer
shall be deemed to have terminated this Contract. If Buyer notifies Seller in
writing of its election to terminate this Contract by April 14, 1997, this
Contract shall be terminated. In the event this Contract is deemed to have
terminated as aforesaid or is terminated by Buyer as aforesaid, the Deposit
shall be returned to Buyer forthwith. In such case, upon the return of the
Deposit to Buyer all obligations of the parties hereto shall cease and this
Contract shall be terminated and the parties shall be without further recourse
or remedy hereunder other than Buyer's indemnity to Seller set forth in Article
6(b) below (the "Surviving Obligation").
(b) Seller shall make the Property available to Buyer and its agents,
consultants and engineers for such inspections and tests as Buyer deems
appropriate,
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including for Buyer's engineering inspection(s), Contaminants inspections, site
evaluations, and such other inspections and tests as Buyer deems appropriate. In
addition, Seller will deliver to Buyer, promptly after request, true and
complete copies of all test borings, environmental reports, surveys, title
materials and engineering and architectural data and the like relating to the
Premises that are in Seller's possession or under its control. In the event any
additional materials or information concerning the same come within Seller's
possession or control after the date of this Contract, Seller shall promptly
submit true and complete copies of such additional materials or information to
Buyer. Buyer hereby agrees to indemnify and hold Seller harmless from and
against any and all loss, cost or damage to the Property arising out of actions
taken by Buyer or its agents, engineers or consultants. Buyer shall provide or
shall cause its consultants to provide Seller with evidence of $5,000,000
liability insurance (which insurance may take the form of primary and so-called
umbrella insurance, if Buyer so elects) naming Seller as an additional insured
prior to entering the Property. Buyer shall give Seller at least three (3)
business days prior notice of any visits or tests describing who will visit and
the nature of the visit or tests. Seller shall be entitled to have a
representative present during any visits or tests. Buyer shall not interview or
meet with tenants of the Property or any of Seller's vendors with respect to the
Property without in each instance receiving Seller's prior written consent
thereto which may be granted or withheld in Seller's sole and absolute
discretion. No invasive tests shall be conducted without written consent which
may be granted or withheld in Seller's sole discretion, and all investigations
shall be subject to the rights of tenants and their employees, agents and
invitees and shall be done in a manner which minimizes disruption to tenants and
their employees, agents and invitees.
(c) Except as set forth in this Agreement, the Property is being
acquired by Buyer in an "AS IS" condition and "WITH ALL FAULTS" existing as of
the Closing Date. Except as expressly set forth in this Agreement, no
representations or warranties have been made or are made and no responsibility
has been or is assumed by Seller or by any officer, person, firm, agent or
representative acting or purporting to act on behalf of
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the Seller as to condition or repair of the Property or the value, expense of
operation, or income potential thereof or as to any other fact or condition
which has or might affect the Property or the condition, repair, value, expense
of operation or income potential of the Property or any portion thereof. Except
with respect to (i) a breach by Seller of any representation or warranty
expressly contained herein and the remedies therefor specifically provided
herein and (ii) any matter for which Seller may be liable under any applicable
law governing the use, storage, transmittal or release of asbestos or hazardous
materials or substances in or on, or radon in or the environmental conditions
of, the Property commenced against Buyer after the Closing for any incident
which occurred prior to the Closing if such incident, or the results or effects
thereof, is or are not revealed in the Environmental Reports, hereinafter
defined, or in any and all environmental reports prepared by or for Buyer in
connection with its performance of its investigations hereunder (Buyer agreeing
with Seller that, in that connection, Buyer shall either cause to be prepared
and delivered to it at least a so-called "Phase I" investigation and report of
such conditions at the Property by Environmental Waste Management Associates,
Inc. or arrange to have the Phase I environmental report furnished to Buyer by
Seller certified directly to Buyer by the preparer thereof), Buyer hereby
releases Seller and any affiliate of Seller from any and all liability in
connection with any claims which Buyer may have against Seller or such
affiliates, and Buyer hereby agrees not to assert any claim for contribution,
cost, recovery or otherwise against Seller or any such affiliate relating
directly or indirectly to the existence of asbestos or hazardous materials or
hazardous substances in or on, radon in or environmental conditions of, the
Property, whether known or unknown. The parties agree that all understandings
and agreements heretofore made between them or their respective agents or
representatives are merged in this Agreement and the Exhibits hereto annexed,
which alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for investigation, neither party relying
upon any statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits
annexed hereto. Buyer acknowledges that Seller has allowed Buyer to inspect the
Property fully and
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investigate all matters relevant thereto and that, although Seller has provided
the Environmental Reports to Buyer, Buyer is not relying on and shall not rely
on the same, and, except with respect to information provided by Seller to Buyer
and Seller's warranties and representations contained in this Agreement, has
required Buyer to rely solely upon the results of Buyer's own inspections or
other information obtained or otherwise available to Buyer, provided that the
foregoing shall not diminish the rights provided to Buyer in this Agreement with
respect to any representations or warranties expressly made by Seller in this
Agreement.
ARTICLE 7. Default: (a) In the event Seller fails to convey title in
accordance herewith, as its sole remedy Buyer shall have any one of the
following rights and remedies:
(i) Buyer shall have the right to terminate this Contract
by notice to Seller, in which event the Deposit
together with interest thereon shall be paid to
Buyer, and all obligations of the parties under this
Contract shall terminate except for Buyer's Surviving
Obligation;
(ii) Buyer shall have the right to waive the breach or
default and proceed to Closing in accordance with the
provisions of this Contract without adjustment of the
Purchase Price;
(iii) Buyer may seek specific performance and in that
connection petition the court for the payment of its
costs, including, without limitation, the reasonable
attorneys' fees incurred in seeking such relief; or
(iv) Buyer shall have the right to xxx Seller for damages
(which may include, without limitation, costs,
including, without
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limitation, reasonable attorneys' fees, incurred in
bring such suit) if and only if Seller shall sell the
Property in violation of the provisions of this
Agreement.
(b) In the event of a default by Buyer hereunder, the Deposit shall be
retained by Seller as liquidated and exclusive damages, and Seller shall have no
further recourse or remedy at law or in equity other than with respect to the
Surviving Obligation.
ARTICLE 8. Entire Agreement Herein: The parties understand and agree
that their entire agreement is contained herein and that no warranties,
guarantees, statements, or representations shall be valid or binding on a party
unless set forth in this Contract. It is further understood and agreed that all
prior understandings and agreements heretofore had between the parties are
merged in this Contract which alone fully and completely expresses their
agreement and that the same is entered into after full investigation, neither
party relying on any statement or representation not embodied in this Contract.
This Contract may be changed, modified, altered or terminated only by a written
agreement signed by the parties hereto.
ARTICLE 9. Damage or Destruction: Condemnation: (a) The risk of loss,
damage or destruction to the Property by fire or other casualty or the taking of
all or part of the Property by condemnation or eminent domain or by an agreement
in lieu thereof until the Closing is assumed by Seller.
(b) In the event of partial damage or destruction of the Property (i)
of a type which can, under the circumstances, in Seller's reasonable
determination, be expected to be restored or repaired at a cost of the lesser of
$1,000,000.00 or less in the aggregate or $250,000.00 or less for each of the
buildings that are a part of the Property (a "Building"), and (ii) which does
not result in the termination of a Major Lease, then, this Contract shall be
consummated on the Closing Date at the Purchase Price and, unless such damage
has been repaired by Seller to a condition not materially different from its
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condition immediately prior to the occurrence of the event causing such damage
or destruction prior to Closing, Seller shall assign to Buyer the physical
damage proceeds of any insurance policies payable to Seller allocable to such
partial damage or destruction with a credit to Buyer of the amount of any
deductible, less, however, any sum or sums reasonably expended by Seller for
partial restoration or making the Property safe.
(c) In the event that the Property shall have been damaged by fire or
casualty, the cost of repair or restoration of which would, in Seller's
reasonable determination, exceed the lesser of the sum of $1,000,000.00 in the
aggregate or $250,000.00 per each Building or as a result of which a Major Lease
shall be terminated, then at Buyer's election, Seller shall, unless Seller has
previously repaired or restored the Property to their former condition, either
(i) pay over or assign to Buyer on delivery of the Deed all amounts recovered or
recoverable on account of any insurance plus any so-called deductible allocable
thereto, less any amounts reasonably expended by Seller for partial restoration
or making the Property safe, in which event the Closing shall take place as in
this Contract provided, or (ii) direct the Escrow Agent to return the Deposit to
Buyer in which case all other obligations of the parties hereto shall cease and
this Contract shall be void and without recourse to the parties hereto. Buyer
shall exercise said election not more than ten (10) days following its receipt
of notice of such fire or casualty, by written notice sent to Seller. The
failure of Buyer to exercise such election as aforesaid within the aforesaid ten
(10) day period shall be and be deemed to be, for all purposes hereunder, an
election by Buyer to terminate this Contract in accordance with the provisions
of clause (ii) of this subsection (c).
(d) If any building on the Premises or any part of the Premises other
than a de minimus portion thereof is taken by condemnation, eminent domain or by
agreement in lieu thereof, or any proceeding to acquire, take or condemn all or
a substantial part of the Property is commenced, Buyer may elect either to (i)
terminate this Contract (in which event Buyer shall be entitled to a return of
the Deposit) or (ii) proceed with the Closing in
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accordance with the terms hereof, without reduction in the Purchase Price, in
which event, at the Closing Seller shall assign to Buyer Seller's rights to any
award paid or payable by or on behalf of the condemning authority. If Seller has
received payments from the condemning authority and if Buyer elects to close
title to the Property, Seller shall credit the amount of said payment against
the Purchase Price at the Closing. Buyer shall exercise said election not more
than ten (10) days following notice from Seller of such confirmation such
condemnation or commencement of such proceeding, as applicable, by written
notice sent to Seller. The failure of Buyer to send such notice within the
aforesaid ten (10) day period shall be and be deemed to be, for all purposes
hereunder, an election by Buyer to proceed in accordance with the provisions of
clause (ii) of this subsection (d). Notwithstanding anything to the contrary
contained herein, Buyer shall be entitled to any and all proceeds awarded on
account of a right of way previously owned by the Xxxxxxx Valley Railroad
provided that, out of such proceeds, Buyer shall pay Seller Seller's reasonable
costs in pursuing such award prior to the Closing, Seller agreeing to submit a
statement of such costs to Buyer without a reasonable time after the Closing.
The provisions of the preceding sentence shall survive the Closing.
(e) Seller shall immediately notify Buyer of any damage or destruction
to the Property or any notice received by it regarding the commencement of
condemnation or similar proceedings. Further, if either of the events described
in subsections (c) or (d) of this Article 9 shall have occurred less than ten
(10) days prior to the Closing Date, the Closing Date shall be extended for the
number of days necessary (plus any additional day or days necessary to reach the
next business day of the Office of the Recorder of Deeds in and for the County
of Chester, Pennsylvania) to provide the appropriate ten (10) day notice period
within which Buyer shall have the right to make the election described in the
applicable section.
ARTICLE 10. Representations and Warranties of Seller: (a) In order to
induce Buyer to enter into this Contract and to consummate the purchase of the
Property, Seller
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hereby represents and warrants to Buyer as of the date of this Contract and as
of the Closing Date as follows:
(i) Seller is, and on the Closing Date shall be, a
limited partnership duly and validly organized and
existing and governed by the laws of the State of
Delaware and registered to do business in the
Commonwealth of Pennsylvania. Seller's general
partner is, and on the Closing Date shall be, a
corporation duly and validly organized and existing
and governed by the laws of the State of Maryland.
This Contract and all documents that are to be
executed by Seller and delivered to Buyer at the
Closing are, or at the time of Closing will be, duly
authorized, executed and delivered by Seller, and all
consents required under Seller's organizational
documents or by law have been obtained. The
performance by Seller of its duties and obligations
under this Contract and the documents and instruments
to be executed and delivered by it hereunder will not
conflict with, or result in a breach of, or default
under, any provision of the organizational documents
of Seller or any contracts, instruments, decrees,
judgments, injunctions, orders, writs, laws, rules or
regulations, or any determination or award of any
court or arbitrator, to which Seller is a party or by
which its assets may be bound.
(ii) Exhibit C attached hereto, which includes a rent
roll, aged delinquency report and Security Deposit
report (together, the "Rent Roll"), is a true,
complete and correct listing of all Leases in effect
as of a date not earlier than the last day of the
month preceding the date of this Contract at the
Property (the standard form of which Leases(s) are
attached hereto as Exhibit C-1 hereto). The Rent Roll
sets forth: (a) the total number of
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Leases at the Property, (b) the name of each existing
tenant, (c) the space designation, (d) all arrearages
owing from said tenant, (e) the expiration date or
status of the term of the Lease (including all rights
or options to renew), (f) the current rent and other
payments actually being collected and which the
tenant is obligated to make under the Lease, (g) the
current outstanding balance of all Security Deposits
and (h) base year amounts for all items of rent or
additional rent billed to each Tenant on that basis.
Except as set forth in the Rent Roll, no tenant of
any portion of the Property (a) is in default in any
monetary obligation under its Lease or (b) is
entitled now or in the future to any concession,
rebate, offset, allowance or free rent for any
period.
(iii) Seller have previously delivered to Buyer true and
complete copies of the Leases, and all extensions,
renewals and amendments thereto in Seller's
possession. The Leases are in full force and effect
and Seller is not in default thereunder. No brokerage
commission or compensation is payable in respect of
the Leases except as set forth on Exhibit M.
(iv) Except as set forth in the Rent Roll, the rents set
forth in the Leases are being collected on a current
basis and no tenant has paid rent more than one (1)
month in advance.
(v) No renewals or extension or expansion options have
been granted to any tenant except as set forth in the
Leases.
(vi) Except as set forth in Exhibit L attached hereto and
hereby made a part hereof: (i) Seller has not
received any notice from any tenant under any of the
Leases claiming that Seller is in
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default of its obligations under any of the Leases
which claimed default has not been cured or waived;
and (ii) Seller has not sent any notices of default
to any Tenant, nor, to Seller's knowledge, would any
Tenant be in default under its Lease, but for the
passage of time, the giving of notice or both.
(vii) Exhibit I attached hereto is a complete list of all
management, service, supply and maintenance
agreements, equipment leases, and all other contracts
and agreements with respect to or affecting the
Property as of the date of this Contract (herein
collectively referred to as the "Operating
Contracts"), setting forth, with respect to each of
the Operating Contracts, (a) the names of the
providers thereunder; (b) the service provided
thereunder or subject matter thereof; (c) the monthly
payment or other rate of payment payable thereunder
as of the date of this Contract and (d) the
expiration date thereunder. By not later than April
14, 1997, the Buyer shall inform the Seller which of
the Operating Contracts, if any, Buyer wishes to
assume (to the extent the same are assumable).
Thereafter, Seller shall send written notice to
vendors under all Operating Contracts which Buyer has
not elected to assume terminating such Operating
Contracts effective as of the Closing Date or such
later date as is required by such Operating Contract.
Failure of Buyer to send such notice to Seller by at
least April 14, 1997 shall be and be deemed to be an
election by Buyer to assume each and all of the
Operating Contracts.
(viii) To the best of Seller's knowledge, Seller has
furnished to Buyer or made available to Buyer for its
review all written reports, studies and notices from
governmental authorities
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having jurisdiction over the Property issued to
Seller and in Seller's possession related to, and all
other written notices in Seller's possession advising
Seller of, the presence or release, now or in the
past, on, under or affecting the Property of asbestos
or hazardous material, waste or substances
(collectively, the "Environmental Reports"). Except
as set forth in the Environmental Reports, Seller has
no actual knowledge of the presence on the Property
of any Contaminants unless the presence of the same
is in compliance with all applicable laws; petroleum
and its refined products; polychlorinated biphenyls;
and asbestos.
(ix) Except as set forth in Exhibit J hereto, there is not
now pending nor, to the Seller's best knowledge, has
there been threatened in writing, any action, suit or
proceeding against or affecting Seller or the
Property before or by any federal or state court,
commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding, upon
consummation of the sale contemplated hereby to Buyer
or otherwise, may reasonably be expected to have a
material adverse effect on the business or prospects
of or on the condition or operations of the Property,
or would interfere in any material way with Seller's
ability to consummate the transactions by this
Contract.
(x) To the best of Seller's knowledge, Seller has not
received from any public body or official any written
notice of any violation of any applicable law, code,
rule or regulation affecting the Property, including,
without limitation, environmental laws.
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(xi) Seller is not a "foreign person" as defined by the
Internal Revenue Code ("IRC"), Section 1445. Seller
will execute and deliver to Buyer at Closing an
affidavit or certification in compliance with IRC
Section 1445.
(xii) There is no union contract or collective bargaining
agreement in force which affects the Property.
(xiii) Seller has received no written notice and has no
knowledge of (i) any pending or contemplated
annexation or condemnation proceedings, or private
purchase in lieu thereof, affecting or which may
affect the Property, or any part thereof, (ii) any
proposed or pending proceeding to change or redefine
the zoning classification of all or any part of the
Property, (iii) any proposed or pending special
assessments affecting the Property or any portion
thereof, (iv) any penalties or interest due with
respect to real estate taxes assessed against the
Property and (v) any proposed change(s) in any road
or grades with respect to the roads providing a means
of ingress and egress to the Property. Seller agrees
to furnish Buyer with a copy of any such notice
received within two (2) days after receipt.
(xiv) Seller has paid all Taxes due and payable as of the
date hereof and filed as of the date hereof all
returns and reports required to be filed with respect
to the ownership and operating of the Property which
Seller has been obligated by law to pay and/or file.
Except as set forth in this Section, there are no
audits or other proceedings by any governmental
authorities pending or, to the knowledge of Seller,
threatened against Seller for or on account of the
Property. Seller is not party to any indemnification,
allocation
- 22 -
or sharing Contract with respect to Taxes. "Taxes"
mean all federal, state, country, local, foreign and
other taxes of any kind whatsoever (including,
without limitation, income, profits, premium,
estimated, excise, sales, use, occupancy, gross
receipts, franchise, ad valorem, severance, capital
levy, production, transfer, license, stamp,
environmental, withholding, employment, unemployment
compensation, payroll related and property taxes,
import duties and other governmental charges or
assessments), whether or not measured in whole or in
part by net income, and including deficiencies,
interest, additions to tax or interest, and penalties
with respect thereto, and including expenses
associated with contesting any proposed adjustment
related to any of the foregoing.
(b) With respect to any representations and warranties made to the best
of Seller's knowledge, such knowledge shall be deemed to be the knowledge of
Xxxxxxxx Xxxxx Xxxxxxxx, Seller's regional representative who is the
representative of Seller most likely to have knowledge of the Property. In
addition, Seller shall not be liable to Buyer for any representation or warranty
which is untrue at the time of Closing and with respect to which Buyer had
actual knowledge thereof at that time. Furthermore, any claim for a breach of
representation and warranty by Seller must be commenced within nine (9) months
after Closing. All claims against Seller (except for any claim made pursuant to
the provisions of Sections 6(c)(ii), 7(a)(iii) or 7(a)(iv) hereof or the last
paragraph of Section 12(a) hereof or any indemnification given by Seller to
Buyer under or pursuant to the Lease Assignment, for all of which there shall be
no limit of liability) shall be limited to $1,000,000.00 in the aggregate which
sum shall be Seller's sole liability.
ARTICLE 11. Operations: (a) Between the date hereof and the Closing,
Seller agrees hereby that it will maintain the Property in its customary manner
and will not refrain from taking any action or spending any funds, or otherwise
manage the Property
- 23 -
differently, due to the pending sale of the Property. Seller shall use
reasonable efforts to preserve for Buyer all of Seller's relationships with
respect to the Property. Until the Closing Date, Seller shall maintain insurance
on the Premises as currently insured.
(b) Seller shall not remove any material item of the Personal Property
from the Property unless the same is obsolete and is replaced by tangible
personal property of equal or greater utility.
(c) Seller shall not enter into any new Lease or any extension,
amendment or modification to any Lease except as may be required pursuant to
such Lease (any of the foregoing, a "New Lease") of the Property or any portion
thereof, or any construction contract for the construction of tenant
improvements in connection with any proposed Lease, except in compliance with
the provisions of this Section 11(c). A copy of each New Lease proposed to be
entered into by Seller after the date hereof will be submitted to Buyer for its
approval prior to execution by Seller, together with a reasonably detailed
budget setting forth the Leasing Costs (hereinafter defined) to be incurred in
connection with such New Lease and a copy of any proposed construction contract
for the construction of tenant improvements in connection with such proposed New
lease. Buyer shall notify Seller within five (5) days after its receipt of each
proposed New Lease, budget and construction contract, if applicable, of its
approval or disapproval thereof, which approval shall not be unreasonably
withheld or delayed. If the Buyer informs the Seller of Buyer's disapproval of
any such New Lease, budget or construction contract, Buyer shall not enter into
such New Lease. If Buyer fails so to notify Seller of its approval or
disapproval of any such proposed New Lease, budget or construction contract
within the time or in the manner set forth above, such failure shall be and be
deemed to be, for all purposes hereunder, approval by Buyer of such New Lease,
budget and construction contract. Upon the approval or deemed approval of any
such construction contract, if the work under such construction contract is not
complete as of the Closing Date, such contract shall be treated for all purposes
as an Operating Contract which Buyer has elected to assume pursuant to the
provisions of Section 10(a)(vii). If Buyer approves
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or is deemed to have approved of any New Lease, Leasing Costs incurred by Seller
in connection therewith in an amount not to exceed the amount of such Lease
Costs approved or deemed approved by Buyer as provided herein shall, when the
Closing shall occur, be and become the obligation of Buyer, and, to the extent
that Seller has therefor expended any sums for any of the foregoing, Buyer shall
reimburse Seller at the Closing for the amount of any such sums expended. For
the purposes hereof, (i) the phrase "Leasing Costs" shall mean or be deemed to
mean all costs and expenses incurred by Seller in connection with such New Lease
including, without limitation, legal expenses, space planning and architectural
fees, tenant improvement costs, moving allowances and leasing and brokerage
commissions and (ii) Buyer shall not be deemed to be unreasonable in withholding
its consent if the aggregate of all Leasing Costs with respect to any New Lease
other than tenant improvement costs, moving allowances and leasing and brokerage
commissions exceeds the product of one dollar ($1.00) multiplied by the number
of square feet of floor area in the premises that are the subject of the New
Lease.
(d) Seller shall not, without the prior written consent of Buyer, which
consent shall not be unreasonably withheld or delayed, enter into any service or
maintenance contract which could bind Buyer or the Property after the Closing
unless the same, by its terms, may be canceled on thirty (30) days notice
without payment of a penalty or fee.
(e) Seller shall promptly notify Buyer of any casualty or proceedings
to commence a condemnation or any violation of law including, without
limitation, environmental laws, or insurance policy of which it shall have
received notice.
(f) Seller, upon receipt of notice thereof, will give Buyer prompt
notice of the commencement prior to Closing of any litigation affecting the
Property or any part thereof in any material adverse way or impairing Seller's
right to sell the Property; and in the event of any such litigation, Seller may
in its discretion adjourn the Closing for a period of up to ninety (90) days in
order to cause such litigation to be discharged or, in the case of litigation
materially adversely affecting title to the Property only, insure that
- 25 -
title to the Property shall not be affected by any judgment in such lawsuit in a
manner which shall be sufficient to permit the Title Company, hereinafter
defined, to issue a title insurance policy to Buyer for the Property in the form
required by ARTICLE 27 without exception for such litigation and, promptly upon
completion of the same, Seller shall notify Buyer and the Closing shall take
place on the later of the tenth (10th) day after the date the date of such
notice or the next regular business day of Xxxxxxx County, Pennsylvania Records
following such tenth (10th) day, as though such date were the Closing Date;
provided, however, that if Seller shall fail to cause such discharge or take the
actions necessary to permit title insurance to be issued as aforesaid within the
aforesaid ninety (90) day period, Buyer shall elect within ten (10) days
following the end of such ninety (90) day period, by notice to Seller either (i)
to terminate this Contract by notice given to Seller, in which event the
provisions of ARTICLE 6 relative to the effect of the termination of this
Contract and the return of the Deposit shall apply, or (ii) to accept title
subject to such litigation and receive no credit against or reduction of the
Purchase Price in which case the Closing shall occur on the fifth (5th) business
day following Seller's receipt of such notice. The failure of Buyer to send
Seller such notice within such ten (10) day period shall be and be deemed to be,
for all purposes hereunder, an election by Buyer to terminate this Contract
pursuant to clause (ii) of this subsection (f).
(g) If and to the extent directed by notice from Buyer at least five
(5) days prior to the Closing, Seller shall discharge any or all employees of
Seller at the Property on the Closing Date.
(h) Between the date hereof and the Closing Date, Seller shall not:
(i) Except for any work required to be performed by
Seller under a New Lease, or work necessary to comply
with the provisions of Section 11(a) hereof, enter
into any Contract requiring Seller to do work for any
Tenant after the Closing Date
- 26 -
without first obtaining the prior written consent of
Buyer which consent shall not be unreasonably
withheld or delayed;
(ii) Accept the surrender of any Service Contract or
lease, or grant any concession, rebate, allowance or
free rent, without the prior written consent of Buyer
which consent shall not be unreasonably withheld or
delayed;
(iii) Renew, extend or modify any of the Service Contracts
without the prior written consent of Buyer, which
consent shall not be unreasonably withheld or
delayed;
(iv) Remove any Personal Property located in or on the
Property, except as may be required for repair and
replacement. All replacements shall be free and clear
of liens and encumbrances and shall be of quality at
least equal to the replaced items and shall be deemed
included in this sale, without cost of expense to
Buyer;
(v) Cause or permit the Property, or any interest
therein, to be transferred; or
(vi) Apply any Security Deposits on account of defaults of
any tenants of the Property occurring on or prior to
the Closing except for those tenants listed on
Exhibit C.
(i) Upon request of either party at any time after the date hereof, the
other shall assist the requesting party in all reasonable ways, but at no cost
to the other, in its preparation of audited financial statements, statements of
income and expense, and such other documentation as the requesting party may
reasonably request, covering the period of the other's ownership of the Property
or the transaction represented hereby.
- 27 -
(i) Seller shall permit Buyer and its authorized representatives to
inspect the Books and Records of its operations with respect to the Property at
all reasonable times after reasonable notice.
ARTICLE 12. Apportionment of Taxes and Other Charges: (a) All normal
and customarily proratable items, including without limitation, real estate and
personal property taxes and assessments, utility bills (except as hereinafter
provided), collected rents, collected operating expense payments and other
income, road maintenance and common association fees in connection with the
maintenance and operation of Westlakes Office Park, and Operating Contract
payments (under Operating Contracts assumed by Buyer), shall be prorated as of
the Closing Date, Seller being charged and credited for all of the same relating
to the period up to the Closing Date and Buyer being charged and credited for
all of the same relating to the period on and after the Closing Date. If the
amount of any such item is not known at the time of the delivery of the deed,
such item shall be apportioned on the basis of the comparable period of the
prior year with a reapportionment within 90 days of the Closing Date or as soon
thereafter as the amount of the item is actually determined. No proration shall
be made in relation to delinquent rents, operating expense charges or tax
payments (collectively, "Delinquent Rents") existing, if any, as of the Closing
Date. To the extent that interim reimbursements of real estate taxes are made by
tenants under the Leases and have been collected by Seller prior to the Closing,
such payments may be retained by Seller without duty to account therefor to
Buyer (except to the extent such reimbursements are prepayments of amounts due
and payable after the Closing in which event such prepaid amounts shall be
remitted to Buyer at Closing and except for any challenges or contests asserted
by a Tenant) but no deduction shall be made from taxes allocable to Seller as
aforesaid. To the extent that such reimbursement obligations are payable after
Closing, Buyer agrees to xxxx tenants of the Property for said reimbursements
and to take any additional reasonable actions requested by Seller to collect the
same (with no obligation, however, to incur any out-of-pocket third party
expense with respect thereto) and as soon as the same are received by Buyer,
said receipts shall be apportioned between Seller and Buyer so that Seller shall
be
- 28 -
entitled to the portion allocable to the period prior to Closing and Buyer shall
be entitled to the balance. Seller reserves the right to (i) bring or continue
any suit brought against any tenants of the Property listed as such tenants on
Exhibit C for accrued but unpaid reimbursements which shall have accrued on or
prior to March 31, 1997 and, (ii) at any time after the expiration of six (6)
months following the Closing Date, upon thirty (30) days prior written notice to
Buyer without Buyer's having collected the amounts thereof within such thirty
(30) day period, bring suit against tenants of the Property to collect for such
unpaid reimbursements that first accrued on or after April 1, 1997 and are owed
Seller as of the Closing Date, but Seller may not, subsequent to the Closing,
bring suit for possession of the premises occupied by such tenants.
With respect to percentage rent, if any, payable under the Leases for
any lease year ending prior to Closing, any and all percentage rent shall belong
to Seller. To the extent that any such percentage rent is received by Buyer,
Buyer shall promptly pay over the same to Seller. With respect to any lease year
during which the Closing shall take place, Seller shall be entitled to that
portion thereof represented by multiplying such percentage rent by a fraction,
the numerator of which is the number of days of such lease year occurring prior
to Closing and the denominator of which is 365. Buyer shall be entitled to the
balance thereof. Buyer agrees to xxxx tenants of the Property for such
percentage rent and to take any additional reasonable actions requested by
Seller to collect the same (with no obligation, however, to incur any
out-of-pocket third party expense with respect thereto) and promptly after
receipt thereof by Buyer, the same shall be allocated as aforesaid and paid to
Seller. Seller reserves the right to (x) bring or continue any suit brought
against any tenants of the Property listed as such tenants on Exhibit C for
accrued but unpaid percentage rent which shall have accrued on or prior to March
31, 1997 and, (y) at any time after the expiration of six (6) months following
the Closing Date, upon thirty (30) days prior written notice to Buyer without
Buyer's having collected the amounts thereof within such thirty (30) day period,
bring suit against tenants of the Property to collect for such accrued but
unpaid percentage rent that first accrued on or after April 1, 1997 and is owed
Seller as of the Closing Date, but Seller may not,
- 29 -
subsequent to the Closing, bring suit for possession of the premises occupied by
such tenants.
With respect to operating expenses payable by tenants under the Leases,
to the extent that Seller has received as of the Closing payments allocable to a
period subsequent to the Closing, same shall be properly prorated with an
adjustment in favor of Buyer. With respect to any payments received by Buyer
after the Closing allocable to a period prior to Closing, Buyer shall account
therefor to Seller in the same manner as Delinquent Rents. This paragraph shall
survive the Closing until the earlier of (i) the date on which Buyer, with
Seller's assistance, shall have made a final reconciliation of operating
expenses for calendar year 1997 or (ii) December 31, 1997.
Buyer shall pay Seller Delinquent Rents as and when collected by Buyer,
it being agreed that Buyer shall not be deemed to have collected any such
arrearages until such time as the tenant is current in the payment of all rents
accruing from and after the Closing. Buyer agrees to xxxx tenants of the
Property for all Delinquent Rents and to take any additional reasonable actions
requested by Seller to collect Delinquent Rents provided that Buyer shall not be
obligated to incur any out-of-pocket third party expense in connection with such
actions and Buyer shall not be obligated to take any action to terminate a
tenancy. Seller reserves the right to (a) to bring or continue any suit brought
against any tenants of the Property listed as such tenants on Exhibit C for
accrued but unpaid Delinquent Rent which shall have accrued on or prior to March
31, 1997 and, (b) at any time after the expiration of six (6) months following
the Closing Date, upon thirty (30) days prior written notice to Buyer without
Buyer's having collected the amounts thereof within such thirty (30) day period,
bring suit against tenants of the Property to collect for Delinquent Rent that
first accrued on or after April 1, 1997 but Seller may not, subsequent to the
date hereof, bring suit for possession of the premises occupied by such tenants.
Final readings and final xxxxxxxx for utilities will be made if possible as of
the Closing Date, in which event no proration shall be made at the Closing with
respect to utility bills. Otherwise a proration shall be made based upon the
parties' reasonable good
- 30 -
faith estimate and a readjustment made within thirty (30) days after Closing or
such later date as shall be necessary so that such readjustment may be based
upon actual bills for such utilities. No proration will be made in relation to
insurance premiums and the insurance policies will not be assigned to Buyer,
except to the extent insurance premiums are included in Common Area expenses, in
which event they shall be prorated as provided above. Seller shall be entitled
to receive a return of all deposits presently in effect with the utility
providers, and Buyer shall be obligated to make its own arrangements for
deposits with the utility providers. Buyer shall receive a credit for all
Security Deposits, free rent and other concessions or obligations to tenants and
leasing commissions or fees to the extent the same are due and payable prior to
the Closing and leasing commissions or fees due and payable for or with respect
to the terms of executed Leases (other than New Leases) that shall have
commenced prior to the Closing and not any extension period thereof unless, on
the Closing Date, the term of such Lease shall be in an extension period, in
which case, Buyer shall receive a credit for leasing commissions or fees due and
payable for or with respect to the term of such Lease through the end of such
extension period only.
The provisions of this Article 12 shall survive the Closing for a
period of ninety (90) days, and in the event of any error in performing the
prorations contemplated by this Agreement or if information becomes available
subsequent to the Closing (and after such ninety (90) day period) indicating
that the prorations performed at Closing were not accurate the parties hereto
shall be obligated to re-prorate the closing adjustments to correct such errors
and to reflect such new information.
With respect to any Operating Contracts, the cancellation of which
Buyer shall require by notice to Seller sent on or before April 14, 1997, to the
extent any sum or sums shall become due or payable for or with respect to the
unexpired portion of the term of such Operating Contract beginning on and after
the Closing Date, Buyer shall be responsible for the same and the Purchase Price
shall be increased by an amount equal to the aggregate of all such sums.
- 31 -
The parties confirm that it shall be the Seller's responsibility to pay
all leasing commissions or fees and tenant improvement allowances to the extent
the same are due and payable prior to the Closing and all leasing commissions or
fees and tenant improvement allowances due and payable for or with respect to
the terms of executed Leases (other than New Leases) that shall have commenced
prior to the Closing and not any extension period thereof unless, on the Closing
Date, the term of said Lease shall be an extension period, in which case Seller
shall be responsible for leasing commissions or fees due and payable for and
with respect to the term of such Lease through the end of such extension period
only.
(b) A detailed statement shall be prepared as of the Closing setting
forth the manner of computation of the aforesaid pro-ration adjustments.
(c) The provisions of this Article 12 shall survive the Closing.
ARTICLE 13. Broker: (a) Each party represents hereby to the other that
it dealt with no broker in the consummation of this Contract except for Eastdil
Realty Company, L.L.C. ("Broker"), and each party indemnifies the other from any
claim arising from the failure of such representation by the indemnifying party.
(b) Any commission due Broker shall be paid by Seller, and Seller shall
obtain and provide to Buyer a receipt from such broker at Closing.
ARTICLE 14. Recording: It is agreed hereby that this Contract shall not
be filed for recording with any other governmental body.
ARTICLE 15. Notices: Any notice or communication which may be or is
required to be given pursuant to the terms of this Contract shall be in writing
and shall be sent to the respective party at the address set forth in the first
paragraph of this Contract, postage prepaid, by Certified Mail, Return Receipt
Requested, or by a nationally
- 32 -
recognized overnight courier service that provides tracing and proof or receipt
of items mailed. The address to which a party may wish any such notice or
communication to be sent may be changed by notice similarly sent. Notices shall
be effective upon receipt. A copy of notice to Buyer shall also be
simultaneously sent to Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq.. A copy of notice
to Seller shall also be simultaneously sent to Goulston & Storrs, P.C., 000
Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000-0000, Attention: Jordan X. Xxxxxxx, Esq.
ARTICLE 16. Captions: The captions in this Contract are inserted only
for the purpose of convenient reference and in no way define, limit or prescribe
the scope or intent of this Contract or any part hereof.
ARTICLE 17. Successors and Assigns: (a) This Contract shall be binding
upon the parties hereto and their respective successors and assigns.
(b) Subject to Buyer's right to designate a nominee fifty one percent
(51%) or more of which is owned by Buyer (Buyer agreeing that if such ownership
shall not continue through and including the end of the period described in
Article 12 for re-proration of the items set forth therein to be pro-rated
and/or adjusted, Buyer shall in any event remain responsible to perform such
re-proration with Seller), to take title to the Premises and be the assignee or
transferee of the other assets being transferred pursuant to the provisions of
this Contract, Buyer may not assign this Contract nor any of the rights or
benefits thereof including, without limitation, the benefit of the
representations and warranties contained in Article 10 hereof, to any third
party either before or after the Closing without the written consent of Seller,
and any such unauthorized attempted assignment shall be null and void. The
provisions of this subsection (b) shall survive the Closing.
- 33 -
ARTICLE 18. Closing Costs: Except as hereinafter specifically provided,
Seller and Buyer shall allocate all closing costs between them in accordance
with standard practice in Philadelphia, Pennsylvania. Each of Seller and Buyer
shall be responsible for preparing such documents as it is obligated to deliver
pursuant to Article 5 hereof and for its own legal expenses. Seller and Buyer
agree to allocate closing costs as follows:
(a) Transfer taxes or the like, to whatever governmental entity
due, shall be paid by Buyer.
(b) Buyer's Title Insurance expenses and premiums shall be paid by
Buyer.
(c) Survey expenses shall be paid by Buyer.
(d) The cost of preparation and recordation of any releases and
termination statements required to clear title to the Property
shall be paid by Seller.
(e) The cost of recordation of the Deed shall be paid by Buyer.
(f) Escrow charges, if any, shall be split equally between Seller
and Buyer.
ARTICLE 19. Governing Law: The laws of Pennsylvania shall govern the
validity, construction, enforcement and interpretation of this Contract.
ARTICLE 20. Multiple Counterparts: This Contract may be executed in any
number of identical counterparts. If so executed, each of such counterparts
shall constitute this Contract. In proving this Contract, it shall not be
necessary to produce or account for more than one such counterpart.
- 34 -
ARTICLE 21. Representations and Warranties of Buyer: Buyer hereby
represents and warrants to Seller as of the date hereof and as of the Closing
Date as follows:
(a) This Contract and all documents executed by Buyer that are to be
delivered to Seller at the Closing are, and at the time of Closing will be, duly
authorized, executed and delivered by Buyer. This Contract and such documents
are, and at the Closing will be, legal, valid, and binding obligations of Buyer,
and do not and, at the time of Closing will not, violate any provisions of any
agreement or judicial order to which Buyer is a party or to which it is subject.
(b) There are no proceedings pending or, to Buyer's knowledge,
threatened against it in any court or before any governmental authority or any
tribunal which, if adversely determined, would have a material adverse effect on
its ability to purchase the Property or to carry out its obligations under this
Contract.
(c) Buyer shall indemnify and defend Seller against and hold Seller
harmless from any and all losses, costs, damages, liabilities and expenses
(including, without limitation, reasonable counsel fees) arising out of any
breach by Buyer of its representations and warranties hereunder.
ARTICLE 22. Post-Closing Obligations: After the Closing, Seller and
Buyer shall cooperate with one another at reasonable times and on reasonable
conditions and shall execute and deliver such instruments and documents as may
be necessary in order fully to carry out the intent and purposes of the
transactions contemplated hereby. Except for such instruments and documents as
the parties were originally obligated to deliver by the terms of this Contract,
such cooperation shall be without additional cost or liability.
ARTICLE 23. Duties and Responsibilities of Escrow Agent: Escrow Agent
shall deliver the Deposit (for purposes of this Article 23, the "Escrow") to
Seller or Buyer
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promptly after receiving a joint written notice from Seller and Buyer directing
the disbursement of the same, such disbursement to be made in accordance with
such direction. If Escrow Agent receives written notice from Buyer or Seller
that the party giving such notice is entitled to the Escrow, which notice shall
describe with reasonable specificity the reasons for such entitlement, then
Escrow Agent shall (i) promptly give notice to the other party of Escrow Agent's
receipt of such notice and enclosing a copy of such notice and (ii) subject to
the provisions of the following paragraph which shall apply if a conflict
arises, on the fourteenth day after the giving of the notice referred to in
clause (i) above, deliver the Escrow to the party claiming the right to receive
it.
In the event that Escrow Agent shall be uncertain as to its duties or
actions hereunder or shall receive instructions or a notice from Buyer or Seller
which are in conflict with instructions or a notice from the other party or
which, in the reasonable opinion of Escrow Agent, are in conflict with any of
the provisions of this Contract, it shall be entitled to take any of the
following courses of action:
(a) Hold the Escrow as provided in this Contract and decline to
take any further action until Escrow Agent receives a joint
written direction from Buyer and Seller or any order of a
court of competent jurisdiction directing the disbursement of
the Escrow, in which case Escrow Agent shall then disburse the
Escrow in accordance with such direction;
(b) In the event of litigation between Buyer and Seller, Escrow
Agent may deliver the Escrow to the clerk of any court in
which such litigation is pending; or
(c) Escrow Agent may deliver the Escrow to a court of competent
jurisdiction and therein commence an action for interpleader,
the cost thereof to Escrow Agent to be borne by whichever of
Buyer or Seller does not prevail in the litigation.
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Escrow Agent shall not be liable for any action taken or omitted in
good faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Contract and it may rely, and shall be protected in
acting or refraining from acting in reliance upon an opinion of counsel and upon
any directions, instructions, notice, certificate, instrument, request, paper or
other documents believed by it to be genuine and to have been made, sent, signed
or presented by the proper party or parties. In no event shall Escrow Agent's
liability hereunder exceed the aggregate amount of the Deposit. Escrow Agent
shall be under no obligation to take any legal action in connection with the
Escrow or this Contract or to appear in, prosecute or defend any action or legal
proceedings which would or might, in its sole opinion, involve it in cost,
expense, loss or liability unless, in advance, and as often as reasonably
required by it, Escrow Agent shall be furnished with such security and indemnity
as it finds reasonably satisfactory against all such cost, expense, loss or
liability. Notwithstanding any other provision of this Contract, Buyer and
Seller jointly indemnify and hold harmless Escrow Agent against any loss,
liability or expense incurred without bad faith on its part and arising out of
or in connection with its services under the terms of this Contract, including
the cost and expense of defending itself against any claim of liability.
Escrow Agent shall not be bound by any modification of this Contract
unless the same is in writing and signed by Buyer, Seller and Escrow Agent. From
time to time on or after the date hereof, Buyer and Seller shall deliver or
cause to be delivered to Escrow Agent such further documents and instruments
that fall due, or cause to be done such further acts as Escrow Agent may
reasonably request (it being understood that the Escrow Agent shall have no
obligation to make any such request) to carry out more effectively the
provisions and purposes of this Contract, to evidence compliance with this
Contract or to assure itself that it is protected in acting hereunder.
Escrow Agent shall serve hereunder without fee for its services as
escrow agent, but shall be entitled to reimbursement for expenses incurred
hereunder, which expenses
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shall be paid and borne equally by Buyer and Seller, unless such expenses are
associated with litigation between Buyer and Seller, in which event they shall
be borne by the party that does not prevail in the litigation. Escrow Agent
agrees that it will not seek reimbursement for the services of its employees or
partners, but only for its actual and reasonably incurred out-of-pocket
expenses. Escrow Agent executes this Contract solely for the purpose of consent
to, and agreeing to be bound by the provisions of this Article 23, and to the
extent applicable to Escrow Agent, Article 3.
ARTICLE 24. Like Kind Exchange. Seller has advised Buyer that Seller
may wish the transaction contemplated by this Contract to take the form of a
so-called "like kind exchange" entered into pursuant to the provisions of
Section 1031 of the Internal Revenue Code of 1986, as amended. Buyer agrees with
Seller that Buyer shall, at Seller's written request sent at any time prior to
the Closing, execute such documents and take such actions as shall be necessary
to qualify the transaction contemplated hereby as such a like kind exchange
provided, however, that in doing so Buyer shall incur or be obligated to pay no
additional costs or expenses beyond those it is obligated to incur or pay
pursuant to the provisions of this Contract, and that Buyer shall incur no
additional liability beyond the liability incurred or contemplated to be
incurred by Buyer pursuant to the provisions of this Contract. In the event
Seller shall request that the transaction contemplated by this Contract take the
form of such a so-called "like kind exchange", Seller shall execute,
contemporaneously with the execution by Buyer of the documents described above,
an agreement in form and substance reasonably satisfactory to the parties and
their respective counsel, providing for the indemnification by Seller of Buyer
against any and all claims, loss, cost, damage, penalty, liability or expense
that may arise under any applicable environmental law on account of the Buyer's
having held fee title to any property other than the Property.
ARTICLE 25. Conditions Precedent To Closing
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(a) The obligations of Seller to deliver title to the Property and to
perform the other covenants and obligations to be performed by Seller on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Seller):
(i) The representations and warranties made by Buyer
herein shall be true and correct in all material
respects with the same force and effect as though
such representations and warranties had been made on
and as of the Closing Date.
(ii) Buyer shall have delivered to Seller all of the
documents provided herein for said delivery.
(b) The obligations of Buyer to accept title to the Property and to
perform the other covenants and obligations to be performed by Buyer on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Buyer):
(i) The representations and warranties made by Seller
herein shall be true and correct in all material
respects with the same force and effect as though
such representations and warranties had been made on
and as of the Closing Date.
(ii) Seller shall have delivered to Buyer all of the
documents provided herein for said delivery.
ARTICLE 26. Miscellaneous.
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(a) This Contract shall not be effective or binding until such time as
it has been executed and delivered by all parties hereto. This Contract may be
executed by the parties hereto in counterparts, all of which together shall
constitute a single Contract.
(b) All references herein to any section, schedule or exhibit shall be
to the sections of this Contract and to the schedules and exhibits annexed
hereto unless the context clearly dictates otherwise. All of the schedules and
exhibits annexed hereto are, by this reference, incorporated herein.
(c) In the event of any litigation or alternative dispute resolution
between Seller and Buyer in connection with this Contract or the transaction
contemplated herein, the non-prevailing party in such litigation or alternative
dispute resolution shall be responsible for payment of all expenses and
reasonable attorneys' fees incurred by the prevailing party.
ARTICLE 27. Title Matters.
At the Closing, Buyer shall accept title to the Premises subject to the
following (collectively, the "Permitted Encumbrances"):
(a) The lien of real estate taxes, personal property taxes, water
charges, and sewer charges provided same are not due and payable, but subject to
adjustment as provided herein;
(b) Leases and New Leases;
(c) Those matters set forth on Exhibit "A";
(d) Any and all laws, statutes, ordinances, codes, rules, regulations,
- 40 -
requirements, or executive mandates affecting the Property as of the date
hereof; and
(e) Any state of facts which a recent and accurate survey of the Real
Property would actually show provided that they do not materially adversely
impact upon the present use of the Property and do not render title thereto
uninsurable at standard rates.
Buyer shall cause Commonwealth Land Title Insurance Company, or such
other or additional title insurance companies as may be selected by Buyer (the
"Title Company") to prepare a title insurance search and commitment for owner's
title insurance policies for Real Property (the "Title Commitment") and shall
cause a copy of same to be delivered to counsel for Seller on or prior to April
14, 1997. If this Contract is not terminated either by Buyer or by Buyer's
failure to notify Seller that it is not terminated, as the case may be, in each
case as provided in ARTICLE 6 hereof, and if the Title Commitment does not
include any defect, objection or exception not listed on Exhibit A, or if Buyer
does not send or cause to be sent the Title Commitment to Seller by or before
April 14, 1997, Buyer shall, for all purposes hereunder, have accepted and be
deemed to have accepted the state of title to the Premises as of the effective
date of the Title Commitment (the "Commitment Date") so long as the same is
April 1, 1997 or thereafter. Seller agrees to use good faith efforts to cure
each and every defect, objection or exception to the title to the Premises set
forth on the Title Commitment and not listed on Exhibit A and in any event to
cure, at its expense, (i) judgments against Seller, (ii) mortgages or other
liens which can be satisfied by payment of liquidated amount and (iii) defects,
objections or exceptions which can be removed by payments not to exceed
$100,000.00 in the aggregate. Seller, in its discretion, may adjourn the Closing
for up to sixty (60) days in order to eliminate such defects, objections or
exceptions. If, after complying with the foregoing requirements, Seller is
unable to eliminate all such defects, objections or exceptions in accordance
with the terms of this Contract on or before such adjourned date for the
Closing, Buyer shall elect within ten (10) days thereafter, by notice to Seller,
either (w) to terminate this Contract by notice given to the Seller, in which
event the provisions of ARTICLE 6 relative to the effect of the termination of
this Contract and the return of the Deposit shall apply, or (x) to accept title
subject to such defects, objections or exceptions and receive no credit against
or reduction of the
- 41 -
Purchase Price in which case the Closing shall occur on the fifth (5th) business
day following Seller's receipt of such notice. The failure of Buyer to send
Seller such notice within such ten (10) day period shall be and be deemed to be,
for all purposes hereunder, an election by Buyer to terminate this Contract
pursuant to clause (w) of this paragraph. Seller agrees and covenants that it
shall not voluntarily place any defects, objections or exceptions to title to
any of the Real Property from and after the Commitment Date that Seller will not
remove therefrom on or prior to the Closing Date.
Seller shall deliver to Buyer, on the Closing Date, instruments in
recordable form sufficient to discharge any such mortgages or other liens which
Seller is obligated to pay and discharge pursuant to the terms of this Contract.
If the Title Commitment discloses judgments, bankruptcies or other
returns against other persons having names the same as or similar to that of
Seller, Seller, on request, shall deliver to the Title Company affidavits
showing that such judgments, bankruptcies or other returns are not against
Seller, or any affiliates. Upon request by Buyer, Seller shall deliver any
affidavits and documentary evidence as are reasonably required by the Title
Company to eliminate the standard or general exceptions on the ALTA form Owner's
Policy.
ARTICLE 28. Confidentiality.
Buyer acknowledges that Beacon Properties Corporation, the general
partner of Seller is a publicly owned corporation subject to regulation by the
Securities and Exchange Commission ("SEC") and Seller acknowledges that Cali
Realty Corporation, Buyer's limited partner is a publicly owned corporation
subject to regulation by the SEC, and each party acknowledges to the other that
the regulations of the SEC may require the other party to disclose the existence
of this Contract and the contents or some or all of the documents and materials
delivered by one party to the other. Accordingly, each party expressly consents
to the disclosure of the terms and conditions of the transaction
- 42 -
represented by this Contract, this Contract itself and the terms of any document
or materials which a party regulated by the SEC in good faith believes should be
disclosed in connection with fulfillment of its disclosure requirements under
SEC regulations.
In addition to the disclosure contemplated by the preceding paragraph,
and without limitation thereof, either party may disclose this Contract or the
contents of any documents to the partners, advisors, underwriters, employees,
affiliates, officers, directors, consultants, lenders, accountants or legal
counsel of such party on a "need to know" basis (as determined in good faith by
the disclosing party) provided that either party shall advise any of its said
partners, advisors, underwriters, employees, affiliates, officers, directors,
consultants, lenders, accountants or legal counsel of the confidential nature of
such materials and shall obtain from them an undertaking to keep such materials
confidential.
Prior to the Closing, any press release with respect to the sale
contemplated herein or any matters set forth in this Contract will be made only
in the form approved by Buyer and Seller, and such approval shall not be
unreasonably withheld or delayed. Thereafter, any press release which contains
information regarding Seller or any previous owner which is not in the public
domain will be made only in the form approved by Buyer and Seller, and such
approval shall not be unreasonably withheld.
In all other respects, no public disclosure or statement about or with
respect to this Contract or the transaction represented hereby shall be made
without the prior consent of Buyer and Seller, which shall not be unreasonably
withheld or delayed.
The provisions of this ARTICLE 28 shall survive the Closing.
- 43 -
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
an instrument under seal as of the day and date first written above.
WITNESS: BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
its General Partner
By:
Xxxxxxx X. Xxxxxxx, Senior
Vice President
[Seller]
CALI REALTY ACQUISITION
CORPORATION
WITNESS:
By:
Name:
Title:
[Buyer]
WITNESS: COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By:___________________________
[Escrow Agent]
- 44 -
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
-1-
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
-1-
EXHIBIT C
LEASES AND RENT ROLL
-1-
EXHIBIT C-1
FORM OF LEASE
-1-
EXHIBIT D
FORM OF DEED
THIS INDENTURE made the ___ day of _____________, 1997 between BEACON
PROPERTIES, L.P., a Delaware limited partnership (hereinafter called the
"Grantor"), on the one part, and_______________________________, a _____________
(hereinafter called the "Grantee"), on the other part,
WITNESSETH, that the said Grantor for and in consideration of
Seventy-Two Million Five Hundred Thousand Dollars ($72,500,000.00) lawful money
of the United States of America unto it well and truly paid by the said Grantee,
at or before the sealing and delivery hereof, the receipt whereof is hereby
acknowledged, has granted, bargained and sold, aliened, enfeoffed, released and
confirmed, and by these presents does grant, bargain and sell, alien, enfeoff,
release and confirm unto the said Grantee, its successors and assigns.
ALL THOSE CERTAIN tracts of land situated in Berwyn, Township of
Tredyffrin, County of Xxxxxxx, Commonwealth of Pennsylvania, bounded and
described as more particularly set forth on Exhibit A attached hereto and
incorporated herein by this reference.
TOGETHER with all and singular the buildings and improvements, ways,
streets, alleys, passages, waters, water-courses, rights, liberties, privileges,
hereditaments and appurtenances, whatsoever thereunto belonging, or in any wise
appertaining, and the reversions and remainders, rents, issues, and profits
thereof; and all the estate, right, title, interest, property, claim and demand
whatsoever of them, the said Grantor in law as in equity, or otherwise
howsoever, of, in, and to the same and every part thereof.
UNDER AND SUBJECT to existing easements, covenants and conditions of
record listed in Exhibit B attached hereto and made a part hereof.
TO HAVE AND TO HOLD the said lot or piece of ground above described,
with the buildings and improvements thereon erected, the hereditaments and
premises hereby granted, or mentioned and intended so to be, with the
appurtenances, unto the said
- 1 -
Grantee, its successors and assigns, to and for the proper use and behoof of the
said Grantee, its successors and assigns, forever.
AND the said Grantor, for itself and its successors, does by these
presents, covenant, grant and agree, to and with the said Grantee, its
successors and assigns, that it, the said Grantor and its successors all and
singular the hereditaments and premises hereinabove described and granted, or
mentioned and intended so to be, with the appurtenances, unto the said Grantee,
its successors and assigns, against it, the said Grantor, its successors and
against all and every person or persons whomsoever lawfully claiming or to claim
the same or any part thereof, by, from or under it, them or any of them, shall
and will, Under and Subject as aforesaid, WARRANT and forever DEFEND.
IN WITNESS WHEREOF,, the said Grantor has caused this Deed to be
executed and its corporate seal affixed the day and year first above written.
ATTEST: BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation,
Its General Partner
______________________ By: ________________________
Its
Hereunto duly authorized
COMMONWEALTH OF _________________
COUNTY OF _________________________
On this, the ____ day of ______________, 1997, before me, a Notary
Public for the Commonwealth and County aforesaid, the undersigned officer,
personally appeared ________________________, who acknowledged to be the
_______________ of Beacon Properties Corporation, a Maryland corporation and the
general partner of Beacon Properties, L.P., a Delaware limited partnership,
known to me (satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that
- 2 -
he, as such officer, being authorized to do so, executed the same as his free
and voluntary act and deed for the purposes therein contained by signing the
name of such corporation as such partner by himself as such officer.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
----------------------------------
Notary Public
My commission expires:
- 3 -
EXHIBIT E
INTENTIONALLY OMITTED
-1-
EXHIBIT F
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT (RE: LEASES)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of this _____ day of
_______________, 1997, by and between BEACON PROPERTIES, L.P., a Delaware
limited partnership ("Assignor") and ______________________, a ___________
("Assignee").
WITNESSETH:
WHEREAS, Assignee has this date purchased from Assignor certain real
property (the "Premises"), known as One, Two, Three and Five Xxxxxxxxx,
Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxxxx, all more particularly
described on Exhibit A attached hereto made a part hereof, and
WHEREAS, under the terms and conditions of the Purchase and Sale Contract
pursuant to which the Premises were purchased, it was contemplated that Assignor
and Assignee would enter into this Assignment;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto do hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor, if any, in and to the following described property:
(a) All leases, subleases and other occupancy agreements relating
to or affecting the Premises, together with all guarantees of obligations of
tenants and other parties under such leases and agreements, said leases and
other agreements being more fully described in Exhibit B attached hereto and
hereby made a part hereof (all together, the "Leases"); and
- 1 -
(b) The current outstanding balance of all security deposits and
prepaid rents, together with all interest accrued thereon, as more fully
described on Exhibit C hereto (collectively, the "Security Deposits").
2. Assignor shall indemnify and defend Assignee against, and hold Assignee
harmless from, any and all claims, loss, liabilities, damages, expenses and
costs arising out of or relating to Assignor's failure to perform any duty or
obligation of Assignor under the Leases or with respect to the Security Deposits
attributable to the acts or omissions of Assignor arising prior to the date
hereof and not otherwise known to Assignee on the date hereof.
TO HAVE AND TO HOLD all of the foregoing unto the Assignee, its
successors and assigns, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained herein.
3. Assignee hereby accepts the foregoing assignment of the Leases and
Security Deposits and does hereby covenant that with respect thereto:
(a) Assignee shall indemnify and defend Assignor against, and hold
Assignor harmless from, any and all claims, loss, liabilities, damages, expenses
and costs arising out of or relating to Assignee's failure to perform any duty
or obligation of Assignee under the Leases or with respect to the Security
Deposits attributable to the acts or omissions of Assignee and arising on or
after the date hereof.
(b) Assignee hereby assumes all the duties and obligations of
Assignor accruing from and after the date hereof under the Leases and with
respect to the Security Deposits.
4. This Agreement and the obligations of the parties hereunder shall
survive the closing of the transactions referred to in the Purchase and Sale
Contract, shall be binding upon and inure to the benefit of the parties hereto,
their respective legal representatives, successors and assigns and shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania and may not be modified or amended except by written agreement
signed by both parties.
- 2 -
IN WITNESS WHEREOF, the parties have executed this agreement under
seal on the day and year first above written.
Witness: ASSIGNOR:
BEACON PROPERTIES, L.P.
------------------------
By: Beacon Properties Corporation,
General Partner
By: __________________________
Xxxxxxx X. Xxxxxxx, Senior
Vice President
ASSIGNEE:
_________________________ By:
Its:
- 3 -
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT (RE: CONTRACTS)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of this _____ day of
_______________, 1997, by and between BEACON PROPERTIES, L.P., a Delaware
limited partnership ("Assignor") and ______________________, a
________________________ ("Assignee").
WITNESSETH:
WHEREAS, Assignee has this date purchased from Assignor certain real
property (the "Premises"), known as One, Two, Three and Five Xxxxxxxxx,
Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxxxx, all more particularly
described on Exhibit A attached hereto made a part hereof, and
WHEREAS, under the terms and conditions of the Purchase and Sale Contract
pursuant to which the Premises were purchased, it was contemplated that Assignor
and Assignee would enter into this Assignment;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto do hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor, if any, in and to the following described property:
(a) All those certain service, supply and maintenance agreements,
equipment leases and other contracts with respect to or affecting the Premises
which Buyer has elected to assume in accordance with the procedure therefor set
forth in the Purchase and Sale Contract for the Premises, all as specifically
listed on Schedule "Contracts" attached hereto and made a part hereof
(collectively, the "Contracts");
- 1 -
(b) Any and all assignable licenses, permits, governmental
authorizations, certificates of occupancy and other governmental approvals that
are in effect as of the date of this Assignment and Assumption Agreement and
necessary for the current use and operation of the Property to the extent
assignable (collectively, "Permits");
(c) Any and all warranties and telephone exchange numbers that
exist as of the date of this Assignment and Assumption Agreement and relate to
the Real Property or the Personal Property, as defined in said Purchase and Sale
Contract (collectively, "General Intangibles"); and
(d) All of Assignor's right, title and interest in and to the
names One Westlakes, Two Westlakes, Three Westlakes, Five Westlakes and
Westlakes Office Park (collectively, "Name").
TO HAVE AND TO HOLD all of the foregoing unto the Assignee, its
successors and assigns, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained herein.
2. Assignee hereby accepts the foregoing assignment of the
Contracts, Permits, General Intangibles and Name and does hereby covenant that
with respect thereto Assignee hereby assumes all the duties and obligations of
Assignor accruing from and after the date hereof under the Contracts, Permits,
General Intangibles and Name.
3. This Agreement and the obligations of the parties hereunder
shall survive the closing of the transactions referred to in the Purchase and
Sale Contract, shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors and assigns and shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania and may not be modified or amended except by written agreement
signed by both parties.
- 2 -
IN WITNESS WHEREOF, the parties have executed this agreement under
seal on the day and year first above written.
WITNESS: ASSIGNOR:
BEACON PROPERTIES, L.P.
_________________________ By: Beacon Properties Corporation,
General Partner
By:
Xxxxxxx X. Xxxxxxx, Senior
Vice President
ASSIGNEE:
______________________________
_________________________ By: _______________________
Name:
Its:
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EXHIBIT H
FORM OF FIRPTA AFFIDAVIT
CERTIFICATION OF NONFOREIGN STATUS
Partnership
Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of
a U.S. real property interest must withhold tax if the transferor (seller) is a
foreign person. To inform the transferee (buyer) that withholding of tax is not
required upon disposition of a U.S. real property interest, Beacon Properties,
L.P.
("Beacon"), hereby certifies the following:
1. Beacon is not a foreign person for the purposes of U.S. income taxation;
2. Beacon's taxpayer identification number is:
3. Beacon's business address is: 00 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Beacon understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statements Beacon
has made here could be punished by fine, imprisonment, or both.
Under penalties of perjury, Beacon declares that it has examined this
certification and to the best of its knowledge and belief it is true, correct,
and complete.
Date: ______________________
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation, General Partner
By:
Xxxxxxx X. Xxxxxxx,
Senior Vice President
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EXHIBIT I
OPERATING CONTRACTS
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EXHIBIT J
LITIGATION, ETC.
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EXHIBIT K
ESTOPPEL CONFIRMATION
TO: The Landlord under the Lease;
The purchaser of the Property ("Purchaser"); and
Any Mortgagees of the Property
Tenant hereby certifies as follows:
1. A copy of the Estoppel Certificate which the undersigned recently
signed is attached hereto.
2. The information set forth on the Estoppel Certificate is repeated
with an effective date of March 31, 1997, and is true and correct [except as
follows:]
3. Tenant has paid rent and all other charges through March 31, 1997.
This Estoppel Confirmation is given to Landlord, Purchaser and
Mortgagees (as such terms are defined herein or in the Estoppel Certificate)
with the understanding that said parties will rely hereon in connection with the
conveyance of the Property of which the Premises constitute a part.
TENANT
Date:____________________ By:______________________
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EXHIBIT L
TENANT NOTICES
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