ACQUISITION AND DEVELOPMENT AGREEMENT

Exhibit 10.1

 

ACQUISITION AND DEVELOPMENT AGREEMENT

 

between

 

PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEVELOPMENT

 

and

 

URBAN OUTFITTERS, INC.

 

DATED: November 15, 2004

 

TABLE OF CONTENTS

 

 

i

 

ii

LIST OF EXHIBITS

 

 

ACQUISITION AND DEVELOPMENT AGREEMENT

 

THIS ACQUISITION AND DEVELOPMENT AGREEMENT is made as of the          day of November      , 2004 (the “ Effective Date ”), between PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEVELOPMENT , a body politic and corporate existing under the laws of the Commonwealth of Pennsylvania (“ PAID ”), party of the first part, and URBAN OUTFITTERS, INC. , a Pennsylvania corporation, or its permitted assignees or nominees (“ Urban ”), party of the second part.

 

BACKGROUND

 

A. PAID owns approximately one thousand two hundred (1,200) acres (which includes the naval shipyard) and the buildings and other improvements thereon, and all appurtenances thereto, located at the southern tip of the City of Philadelphia, at the confluence of the Delaware and Schuylkill Rivers, commonly known as “The Navy Yard”, all as more fully depicted on the plan attached hereto as Exhibit A and more particularly described on Exhibit A-1 attached hereto (the “ PAID Parcel ”).

 

B. PAID, directly or through its agents, currently expects to develop the PAID Parcel and has prepared that certain “2004 Philadelphia Navy Yard Master Plan”, dated as of January 2004 (as the same may be amended from time to time, the “ Master Plan ”) as a guideline and tool for such development, a copy of which is attached hereto as Exhibit B .

 

C. Urban currently expects to develop a waterfront campus as its corporate headquarters primarily within the Historic Core District of the PAID Parcel as shown on the Master Plan (“ HCD ”) and, in connection therewith, intends to acquire, by lease or purchase from

 

PAID, the Leased Property, the Purchased Property, the Option Property and the ROFO Property (all as hereinafter defined), all of which are sometimes collectively referred to in this Agreement as the “ Project ”; subject , however , to the terms, covenants and conditions of this Agreement as hereinafter set forth.

 

D. Urban currently expects to (i) commence construction of and perform certain renovations to the Purchased Property and the Leased Property, in accordance with Plans (as hereinafter defined) and a schedule to be proposed by Urban and approved by PAID during Due Diligence Period (as hereinafter defined) in accordance with the standards therefor, including those pertaining to timing, set forth in Section 6.2.3 hereof (and a copy of such schedule shall then be attached hereto as Schedule 6.2.3 ), and to (ii) occupy the Purchased Property and the Leased Property in accordance with such Schedule 6.2.3 , all in order to create an integrated business environment.

 

E. Urban currently expects to occupy and use the Project for its corporate headquarters, including office, storage, retail, food preparation and service (including alcoholic beverages), light manufacturing, temporary lodging, childcare, assembly and ancillary uses (collectively, “ Urban’s Use ”).

 

F. PAID currently expects to sell to Urban and Urban currently expects to purchase from PAID, subject to the terms, covenants and conditions of this Agreement, the Buildings designated on the plan attached hereto as Exhibit C (the “ Urban Campus Plan ”) as “Building 7”, “Building 12”, “Building 15”, “Building 139”, and “Building 543” each located on land within the HCD to be separately subdivided as hereinafter provided, together with other

 

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improvements and all appurtenances related thereto (collectively, together with the “Personal Property” as hereinafter defined, the “ Purchased Property ”).

 

G. PAID currently expects to lease to Urban and Urban currently expects to lease from PAID, the Buildings designated on the Urban Campus Plan as “Building 10”, and, at Urban’s election, “Building O” and/or “Building P”, each located on land within the HCD to be separately subdivided as hereinafter provided, together with other improvements and all appurtenances related thereto (collectively the “ Leased Property ”), along with an easement (the “ Cooling Tower Easement ”) to use the cooling tower and related fixtures, connections and equipment (collectively, the “ Cooling Equipment ”) located on the land within the HCD on which “Building 11” (as shown on the Master Plan) is situated.

 

H. PAID currently expects to grant to Urban an option to purchase the Buildings designated on the Urban Campus Plan as “Building 25” and “Building 41” each located on land within the HCD to be separately subdivided as hereinafter provided, together with other improvements and all appurtenances related thereto (the “ Option Property ”, as hereinafter more fully defined in Section 3.1(a) ).

 

I. PAID currently expects to grant to Urban a right of first offer to purchase the Building designated on the Urban Campus Plan as “Building 3” located on land within the HCD to be separately subdivided as hereinafter provided, together with other improvements and all appurtenances related thereto (collectively, the “ ROFO Property ”; the ROFO Property, the Purchased Property, the Leased Property and the Option Property, are sometimes referred to herein as a “ Property ” and, collectively, as the “ Properties ”).

 

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J. PAID has agreed to assist the development of the Project by: (i) commencing and completing certain infrastructure work on the PAID Parcel as provided in this Agreement; (ii) undertaking such work as may be required to extend utility services adequate for the development and utilization of the Project as provided in this Agreement; and (iii) assisting Urban in obtaining certain Public Financing (as hereinafter defined) and a Fit-Out Allowance (as hereinafter defined) for the development of the Project from public, quasi-public or economic development authorities as provided in this Agreement.

 

NOW THEREFORE, in consideration of the covenants and provisions contained herein, and subject to and in accordance with all terms, conditions, limitations and exceptions provided herein, PAID and Urban, intending to be legally bound, hereby agree as follows:

 

ARTICLE 1

 

PURCHASE OF PROPERTY, PURCHASE PRICE

 

1.1 Purchase of Property . On the Closing Date (as hereinafter defined), PAID agrees to sell and convey to Urban, and Urban agrees to purchase from PAID, all the following Buildings (as hereinafter defined), together with all of PAID’s right, title and interest therein and thereto, under and subject to the terms of this Agreement:

 

1.1.1 The fee simple interest in the tract or parcel of land (“ Tract 7 ”) to be more fully described on the Subdivision Plan (as hereinafter defined) and the improvements and structures erected thereon, including Building 7, estimated to contain approximately 50,584 square feet of space, subject to measurement as hereinafter provided, and the appurtenances thereto, after the completion of the Subdivision (as hereinafter defined) (Tract 7, said improvements and structures, including Building 7 and related appurtenances, being hereinafter collectively referred to as “ Building 7 ”);

 

1.1.2 The fee simple interest in the tract or parcel of land (“ Tract 12 ”) to be more fully described on the Subdivision Plan and the improvements and structures erected

 

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thereon, including Building 12, estimated to contain approximately 60,330 square feet of space, subject to measurement as hereinafter provided, and the appurtenances thereto, after the completion of the Subdivision (Tract 12, said improvements and structures, including Building 12 and related appurtenances, being hereinafter collectively referred to as “ Building 12 ”);

 

1.1.3 The fee simple interest in the tract or parcel of land (“ Tract 15 ”) to be more fully described on the Subdivision Plan and the improvements and structures erected thereon, including Building 15, estimated to contain approximately 22,753 square feet of space, subject to measurement as hereinafter provided, and the appurtenances thereto, after the completion of the Subdivision (Tract 15, said improvements and structures, including Building 15 and related appurtenances, being hereinafter collectively referred to as “ Building 15 ”);

 

1.1.4 The fee simple interest in the tract or parcel of land (“ Tract 139 ”) to be more fully described on the Subdivision Plan and the improvements and structures erected thereon, including Building 139, estimated to contain approximately 3,344 square feet of space, subject to measurement as hereinafter provided, and the appurtenances thereto, after the completion of the Subdivision (Tract 139, said improvements and structures, including Building 139 and related appurtenances, being hereinafter collectively referred to as “ Building 139 ”);

 

1.1.5 The fee simple interest in the tract or parcel of land (“ Tract 543 ”) to be more fully described on the Subdivision Plan and the improvements and structures erected thereon, including Building 543, estimated to contain approximately 92,477 square feet of space, subject to measurement as hereinafter provided, and the appurtenances thereto, after the completion of the Subdivision (Tract 543, said improvements and structures, including Building 543 and related appurtenances, being hereinafter collectively referred to as “ Building 543 ”); and

 

1.1.6 All rights, title and interests of PAID in any and all fixtures, equipment, supplies, machinery, appliances, furniture, furnishings, and other personal property attached or appurtenant to, or located in or on, or used in connection with the Purchased Property and the Leased Property, except for those certain transformers which Urban may elect to exclude by written notice to PAID prior to expiration of the Due Diligence Period, which transformers shall remain the personal property of PAID and be removed by PAID to an area of PAID’s selection

 

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outside of the HCD, at PAID’s sole cost and expense, as expeditiously as possible after receipt of Urban’s notice (collectively, subject to the excluded items, the “ Personal Property ”).

 

1.2 AS IS, WHERE IS .

 

1.2.1 Subject to the terms, covenants and conditions of this Agreement and the Exhibits and Schedules attached hereto and which form a part hereof and to the respective rights and obligations set forth herein and therein, Urban shall accept the conveyance of the Purchased Property and the Leased Property on the Closing Date in its “AS-IS, WHERE-IS” condition and basis with all faults and defects, without recourse to and without any obligation on the part of either PAID or the Philadelphia Industrial Development Corporation (“ PIDC ”), or of their respective officials, officers, shareholders, trustees, directors, employees, representatives, successors or assigns. Unless specifically provided for in this Agreement or any Exhibit or Schedule attached to this Agreement, neither PAID nor PIDC or their respective officials, officers, shareholders, trustees, directors, employees, representatives, successors or assigns shall be obligated to make any alteration, repair, improvement, addition or other work to all or any part of the Purchased Property and/or Leased Property.

 

1.3 Purchase Price .

 

1.3.1 The purchase price for the Purchased Property, except for Building 139, is as follows:

 

 

1.3.2 The purchase price for Building 139 is Ten Dollars ($10.00) per square foot, which is Thirty-three Thousand Four Hundred Forty Dollars ($33,440.00), based upon the estimated approximate square footage contained therein set forth in Section 1.1.4 hereof, which

 

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square footage and purchase price shall be adjusted after completion of the measurement as described in Section 1.3.4 below.

 

1.3.3 The purchase price for Buildings 7, 12, 15, 543 and 139, as set forth above, shall be deemed the “ Purchase Price ” for the Purchased Property. The Purchase Price (after adjustment based upon the measurement of Building 139), plus or minus the net amount of any closing adjustments with respect to Building 139 only as herein provided, shall be paid by Urban to PAID on the Closing Date by wire transfer of federal funds, or by certified, bank treasurer’s or title company check.

 

1.3.4 The parties hereto agree that all of the Buildings will be measured for all purposes contemplated by this Agreement during the Due Diligence Period, by Urban’s architect or engineer and at Urban’s sole cost and expense. PAID and Urban shall jointly instruct the architect or engineer of the method of measurement to be applied, it being understood that each Building’s content shall be measured from the inside surface of all external walls by the architect or engineer who shall disregard any below or above grade levels of any type or nature whatsoever, whether basements or mezzanines, and whether now existing or hereafter removed, constructed, modified or installed, but including full second floor(s) in existence as of the Effective Date or hereafter constructed by Urban; provided , however , that only Buildings 7, 10, 12, O and P have full second floor(s) as of the Effective Date for purposes of this Section 1.3.4 and, also provided , that, if Urban subsequently removes any of such second floor(s) at any time after the Closing Date, the square footage content of the subject Building shall be appropriately reduced as of the date of such removal) by the amount of square footage attributed to such second floor(s) by Urban’s architect or engineer at the time of the measurement contemplated above, and, for all purposes hereinafter that the content of such Building(s) is relevant, the reduced amount thereof shall apply and, provided further , that such architect or engineer shall also provide the square footage of each Building, which figure shall be used to determine Urban’s obligations with respect to the payment of CAM (as that term is hereinafter defined). The provisions of this Section 1.3.4 regarding a reduction or increase of the content of a Building(s) because of the removal or addition of any second floor shall survive the Closing (as hereinafter defined).

 

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1.4 CAM .

 

1.4.1 Urban shall pay to PAID, with respect to the Properties, such amount to contribute to the operating costs of every kind and nature paid or incurred by PAID in owning, operating and maintaining the Common Areas (as hereinafter defined) of the PAID Parcel and in providing services in common to the Properties and to the other properties within the PAID Parcel (the “ CAM ”). For the purposes of this Agreement, “ Common Areas ” (or, when singular, “ Common Area ”) shall mean those portions of the PAID Parcel that are presently, or are in the future, used as or designated as common areas and common services by PAID.

 

1.4.2 The initial CAM (the “ Initial CAM ”) for each Building (except for Building 543 which is hereinafter separately addressed) shall be One Dollar and Eighteen ($1.18) Cents per square foot (as determined pursuant to Section 1.3.4 ) per annum, and shall be payable commencing on the date of issuance, after the completion of Closing, by the appropriate Governmental Authority (as hereinafter defined), of either a temporary or permanent certificate of occupancy (or its equivalent) therefor (the “ Building Occupancy Date ”); provided , however , that Urban’s obligation to pay CAM as to Building 10 shall be reduced on a per diem basis, by a fraction (the “Aphton Adjustment Factor”), the numerator of which shall be the total rentable square footage ( i.e. , 8,968) contained in the Aphton Space (as that term is hereinafter defined), and the denominator of which shall be the total square footage of space contained in Building 10 ( i.e. , 46,604), subject to measurement as hereinafter provided, until the date on which PAID has delivered possession of Building 10 in the condition required by Section 2.1.2 hereof with respect to the Aphton Space. The Initial CAM shall be in effect for twelve months following each such Building Occupancy Date (except as to Building 543 which is as hereinafter separately addressed).

 

1.4.3 The CAM as to the Buildings shall be adjusted on each anniversary of each such Building Occupancy Date (the “ Adjustment Date ”) as follows:

 

(a) Each adjustment shall be made by determining the percentage increase of the then Current Price Index (as hereinafter defined) over the Base Price Index (as hereinafter defined).

 

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(b) The percentage thus determined shall be multiplied by the Initial CAM, and the product thus obtained (the “ Increased Amount ”) shall be added to the Initial CAM; the sum of the Initial CAM and the Increased Amount shall be the amount of CAM payable for the next ensuing year, until a subsequent adjustment shall be made.

 

(c) For the purposes of this Agreement:

 

(i) “ Base Price Index ” shall mean the Price Index for the month prior to the month in which each such Building Occupancy Date occurs.

 

(ii) “ Current Price Index ” shall mean the Price Index for the last full month prior to the effective date of the applicable adjustment of the CAM.

 

(iii) “ Price Index ” shall mean the Consumer Price Index for All Urban Consumers (CPI-U) for the Philadelphia SMSA, or any successor index thereto. If the CPI-U ceases to be published and there is no successor thereto, such other non-partisan index or computation shall be used which would obtain a substantially similar result as if the CPI-U had not been discontinued.

 

(iv) The CAM shall be payable in equal monthly payments on the first day of every calendar month without written notice, demand or set-off, prorated for any partial month. Unless otherwise directed in writing by PAID, Urban shall make all payments of CAM installments to:

 

Cushman & Wakefield of PA., Inc.

Philadelphia Naval Business Center

Philadelphia, PA 19112

 

1.4.4 The provisions of this Section 1.4 shall be incorporated into the Reciprocal Agreement (as hereinafter defined), if applicable, and/or the applicable lease agreements for the Leased Property referenced in Article 2 below.

 

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ARTICLE 2

 

LEASING OF PROPERTY

 

2.1 Lease Agreements for the Leased Property .

 

(a) The Leased Property consists of (i) the fee simple tract or parcel of land (“ Tract 10 ”) to be more fully described on the Subdivision Plan and the improvements and structures erected thereon, including Building 10, estimated to contain approximately 46,604 square feet of space, subject to measurement as herein provided, and the appurtenances thereto, after the completion of the Subdivision (Tract 10, said improvements and structures, including Building 10, and the Cooling Tower Easement, being herein collectively referred to as “Building 10”), (ii) the fee simple tract or parcel of land (“ Tract O ”) to be more fully described on the Subdivision Plan and the improvements and structures erected thereon, including Building O, estimated to contain approximately 5,459 square feet of space, subject to measurement as herein provided, and the appurtenances thereto, after the completion of the Subdivision (Tract O, said improvements and structures, including Building O, being herein collectively referred to as “Building O”) and (iii) the fee simple tract or parcel of land (“ Tract P ”) to be more fully described on the Subdivision Plan and the improvements and structures erected thereon, including Building P, estimated to contain approximately 5,972 square feet of space, subject to measurement as herein provided, and the appurtenances thereto, after the completion of the Subdivision (Tract P, said improvements and structures, including Building P, being herein collectively referred to as “Building P”).

 

(b) At Closing, PAID and Urban shall enter into certain lease agreements for the Leased Property containing the business terms set forth herein and such other terms, covenants, conditions and provisions as may be agreed upon by PAID and Urban during the Due Diligence Period. The form of a lease proposed by PAID for each such lease agreement is attached hereto as Schedule 2.1 , which lease form shall be negotiated by the parties hereto during the Due Diligence Period. The business terms set forth herein and such other terms, covenants, conditions and provisions as may be agreed upon by PAID and Urban for Building 10 and, at Tenant’s election, Building O and/or Building P, respectively, shall be incorporated in the

 

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finalized lease agreements agreed upon by PAID and Urban and shall be attached hereto as Schedules 2.1(a), 2.1(b) and 2.1(c) , respectively.

 

2.1.1 Building 10 .

 

(a) The lease agreement for Building 10 shall have a twelve (12) year term, together with an option in favor of Urban to extend or renew the initial lease term for an additional six (6) year period; provided , however , that both on the date of Urban’s extension or renewal notice and on the date of the commencement of such extension or renewal term (i)(A) there is no default by Urban under any Public Financing (as that term is hereinafter defined), and (B) there is no monetary event of default by Urban under any obligation to PAID and/or PIDC pursuant to this Agreement that is continuing, in the instance of (A) or (B), as the case may be, beyond expiration of any applicable notice, grace or cure periods, and (ii) Urban is in compliance with its obligations under Section 9.2.3 hereof. Base rent for Building 10 shall be Seven Dollars ($7.00) per square foot (as determined pursuant to Section 1.3.4 ) per year, together with a Thirty-seven Cents ($0.37) per square foot annual escalator during the initial lease term and any extension or renewal term, plus CAM. The commencement date for the obligation to pay base rent and CAM under the lease agreement for Building 10 shall be (120) days after the Closing Date; subject , however , to the rent credits which may be applicable to such obligation as to pay base rent and the deferral of the commencement of the obligation to pay Initial CAM, all as provided under this Agreement.

 

(b) The lease agreement for Building 10 shall be coupled with an option to purchase Building 10 in favor of Urban for a purchase price of Ten Million Dollars ($10,000,000.00) exercisable upon thirty (30) days’ prior notice by Urban to PAID at any time during the lease term or during any renewal or extension thereof; provided , however , that at both the date of Urban’s option to purchase notice and on the date of closing of the purchase option (i)(A) there is no default by Urban under any Public Financing, and (B) there is no monetary event of default by Urban under any obligation to PAID and/or PIDC pursuant to this Agreement, that is continuing, in the instance of (A) or (B), as the case may be, beyond expiration of any applicable notice, grace or cure periods, and (ii) that Urban is in compliance with its obligations under Section 9.2.3 hereof. PAID has advised Urban that PAID financed the

 

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renovation and improvement of Building 10 with a grant from the United States Department of Commerce Economic Development Administration (“USEDA”) pursuant to a certain Covenant of Purpose, Use and Ownership dated September 15, 2002 (the “USEDA Grant”), a copy of which is attached hereto as Schedule 2.1.1(b) . If Urban elects this option to purchase Building 10 prior to the expiration of the USEDA Grant, PAID’s obligation to deliver title to Building 10 shall be conditioned upon obtaining the approval of the USEDA in accordance with the USEDA Grant. In the event that Urban elects to exercise and close the option to purchase Building 10 prior to the expiration of the USEDA Grant, then the Ten Million Dollar ($10,000,000.00) purchase price for Building 10 shall be reduced by the payment required to be made to the USEDA pursuant to paragraph 5 of the USEDA Grant. In the event that Urban elects to exercise and close the option to purchase Building 10 after the expiration of the USEDA Grant, then there shall be no adjustment to the Ten Million Dollar ($10,000,000.00) purchase price for Building 10.

 

(c) The lease agreement shall provide that Building 10 shall be leased in its “as is” condition by PAID to Urban, and that Urban shall be responsible for all occupancy costs, such as (i) all costs of utilities used or consumed in Building 10 by Urban; (ii) any real estate taxes imposed on Building 10 by the taxing authorities have jurisdiction that are not deemed waived or exempt by virtue of the location of Building 10 within the KOIZ (as that term is hereinafter defined); (iii) all insurance premiums for insurance maintained by Urban with respect to its use and occupancy of Building 10; and (iv) the costs of maintenance, repair and replacement of Building 10; except that PAID at its sole cost and expense, shall be responsible for the maintenance, repair and replacement of the roof, downspouts and gutters of Building 10 and of the Cooling Equipment during the lease term and during all extensions and renewals thereof. The lease agreement shall include an occupancy covenant consistent with Section 9.2.3 hereof, and a nondiscrimination covenant as required by or consistent with that which is contained in the USEDA Grant.

 

2.1.2 PAID has advised Urban that PAID, as landlord, has entered into a certain lease dated August 18, 2004 (the “ Aphton Lease ”) with Aphton Corporation, a Delaware corporation (“ Aphton ”), as tenant, for that certain portion of Building 10 known as Suite 100, containing of approximately 8,968 rentable square feet, together with all common areas

 

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appurtenant thereto, all as more fully described in the Aphton Lease (the “ Aphton Space ”). On or before the Closing Date and as a condition thereof, PAID shall either terminate the Aphton Lease or relocate Aphton to an alternate location, at PAID’s sole cost and expense. If PAID is unable to deliver possession of Building 10 to Urban as of the Closing Date free and clear of the Aphton Lease and of any claims to or rights of possession in and to the Aphton Space in favor of Aphton, Urban shall have the right, but not the obligation, to either terminate this Agreement pursuant to the provisions of Section 7.6 hereof, or complete Closing and to take possession of all portions of Building 10 except for the Aphton Space; provided , however , if Urban elects to complete Closing, the obligation of PAID to deliver possession of Building 10 to Urban free and clear of the Aphton Lease and any claims to or rights of possession in and to the Aphton Space in favor of Aphton shall be a Surviving Obligation of PAID. In such latter event, in addition to the reduction by the Aphton Adjustment Factor, as aforesaid, of the amount of CAM payable by Urban as to Building 10, Urban shall receive a credit equal to two (2) days of base rent at the rental rate which would otherwise then be payable under the lease agreement for Building 10, all calculated on a per diem basis for each day after the Closing Date until the date on which PAID delivers possession of the Aphton Space in Building 10 to Urban free and clear of the Aphton Lease and of any claims to or rights of possessions in and to the Aphton Space in favor of Aphton. The aforesaid credits shall be applied on account of the obligation to pay installments of base rent to become due and payable under the lease agreement for Building 10.

 

2.1.3 Buildings O & P .

 

(a) During the Due Diligence Period, Urban and PAID shall negotiate the initial lease term for Building O; provided , however , the initial lease term shall be of sufficient length to allow Urban, as tenant, to take advantage of all historic tax credits made available by any and all taxing authorities for the renovation of Building O, and provided , further , that if for purposes of complying with the requirements of such taxing authorities an initial lease term and any extension or renewal terms may be aggregated, then Urban may elect a shorter initial lease term, with a series of options to extend or renew which, when taken together, shall total such minimum number of lease years necessary to enable Urban to comply with the requirements of such taxing authorities in that regard. In addition, after the minimum aggregated lease term has been determined, Urban shall also have a series of one (1) year options to extend

 

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or renew such lease term thereafter so that when the entire lease term is calculated, Urban shall have the right to remain in occupancy for a maximum of ninety-nine (99) lease years. Provided that there is no default by Urban under any Public Financing and no monetary event of default by Urban under any obligation to PAID and/or PIDC pursuant to this Agreement, that is continuing, in each instance, beyond expiration of any applicable notice, grace or cure periods, all options to extend or renew the term of the lease agreement for Building O shall be deemed automatically exercised without notice unless Urban advises PAID, with at least ninety (90) days notice prior to the expiration date of the lease term then in effect, of Urban’s intention to terminate the lease agreement effective as of such expiration date. The base rent for Building O shall be Two Dollars ($2.00) per square foot (as determined pursuant to Section 1.3.4 ) per year, together with a Thirty Cent ($0.30) per square foot escalator in base rent every three (3) lease years, plus CAM. The lease agreement shall include an occupancy covenant consistent with Section 9.2.3 hereof. Urban reserves the right not to lease Building O, which election Urban may exercise during the Due Diligence Period by notice in writing to PAID to that effect prior to the expiration thereof, and, thereafter, Urban shall have no obligation to lease Building O; subject , however , to Urban’s option rights set forth in Section 2.1.3(c) hereof.

 

(b) PAID and Urban shall enter into a lease agreement for Building P upon the same terms and conditions (except for the amount of rent) as the lease for Building O; provided that , Urban, during the Due Diligence Period, elects to include Building P as part of the Project. If Urban elects to lease Building P, its only rental obligation therefor shall be the payment of CAM at the same rate as applied therefor under the lease for Building O. If Urban, in its sole and absolute discretion, elects not to include Building P as part of the Project, Urban shall advise PAID in writing to that effect prior to the expiration of the Due Diligence Period and, thereafter, Urban shall have no obligation to lease Building P. Urban reserves the right not to lease Building P, which election Urban may exercise during the Due Diligence Period by notice in writing to PAID to that effect prior to the expiration thereof, and, thereafter, Urban shall have no obligation to lease Building P; subject , however , to Urban’s option rights set forth in Section 2.1.3(c) hereof.

 

(c) Anything in this Agreement to the contrary notwithstanding, in lieu of electing to lease or not to lease Building O and/or Building P during the Due Diligence Period

 

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as set forth above, Urban may elect an option to lease either or both Building O and Building P on the same terms, covenants and conditions as set forth in Sections 2.1.3(a) and (b) hereof, respectively, by notice in writing to PAID to that effect prior to the expiration date of the Due Diligence Period; provided , however , that each such option to lease shall be exercisable by written notice to PAID from Urban at any time within the one (1) year period after the completion of Closing, which notice shall designate the commencement date of the terms of those leases, which commencement dates shall be no later than the expiration date of the aforesaid one (1) year period.

 

ARTICLE 3

 

OPTION TO PURCHASE; RIGHT OF FIRST OFFER

 

3.1 Option to Purchase Buildings 25 and 41 .

 

(a) The Option Property consists of the fee simple tract or parcel of land (“Tract 25 and 41”) to be more fully described on the Subdivision Plan, and the improvements and structures erected thereon, including Buildings 25 and 41, estimated to contain together approximately 55,218 square feet of space, subject to measurement as herein provided, and the appurtenances thereto, after the completion of the Subdivision (Tract 25 and 41, said improvements and structures, including Buildings 25 and 41, and related appurtenances, being hereinafter collectively referred to as the “Option Property”)).

 

(b) At Closing, PAID and Urban shall enter into a certain option to purchase agreement for the Option Property containing the business terms set forth herein and such other terms, covenants and conditions as may be agreed upon by PAID and Urban during the Due Diligence Period (the “ Option to Purchase Agreement ”). The form of such Option to Purchase Agreement shall be negotiated during the Due Diligence Period and shall be attached hereto as Schedule 3.1 . Urban’s option to purchase the Option Property shall be conditioned upon (a) the then current intention of Urban, as of the closing under the Option to Purchase Agreement, to use the Option Property (or at least those portions thereof which are not subject to an Existing Lease (as hereinafter defined)) for Urban’s Use (as evidenced by a projected fit-out and occupancy schedule prepared by Urban and delivered to PAID), and (b) at both the date of Urban’s option to purchase notice and on the date of closing under the Option to Purchase Agreement, that there is

 

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no default by Urban under any Public Financing and no monetary event of default by Urban under any obligation to PAID and/or PIDC pursuant to this Agreement, that is continuing, in each instance, beyond expiration of any applicable notice, grace or cure periods.

 

3.1.1 Urban shall have the option to purchase the entire Option Property for Urban’s Use at any time within ten (10) years following the date of the Option to Purchase Agreement upon two (2) years’ prior notice from Urban to PAID, at a purchase price of Twenty-five Dollars ($25) per square foot (as determined pursuant to Section 1.3.4 hereof, which determination shall be made as of the time of the execution and delivery of, and incorporated in, the Option to Purchase Agreement) contained within such Buildings.

 

3.1.2 PAID has advised Urban that, as of the Effective Date, there are three (3) leases outstanding for portions of the Option Property: (a) River Associates, Inc. dated August 19, 1996, the term of which was to terminate on December 31, 1999, but has been renewed until December 31, 2009 (“ River Associates Lease ”), (b) Moran Towing Corporation dated July 22, 1997, the initial term of which terminates on July 31, 2007, with an additional renewal right until July 31, 2012 (as amended as provided by Section 3.1.4 hereof, “ Moran Towing Lease ”), and (c) Del/San Environmental Engineers dated May 16, 2003, the initial term of which terminates on May 16, 2008 with no extension or renewal rights thereafter (“ Del/San Lease ”). The Option to Purchase Agreement shall provide that PAID shall not enter into any additional extensions, renewals or expansions of the three leases listed above that would preclude Urban’s ability to close under the Option to Purchase Agreement free and clear of the three leases noted above, and shall also provide that PAID shall not enter into any new leases for any portion of the Option Property that would preclude Urban’s ability to use the entire Option Property for Urban’s Use listed above, all in accordance with the provisions hereof and thereof.

 

3.1.3 Within thirty (30) days after the Effective Date, PAID shall endeavor to negotiate a relocation plan (the “ River Associates Plan ”) with River Associates, Inc., pursuant to which River Associates, Inc. would vacate the entire premises it uses and occupies under and pursuant to the River Associates Lease and relocate outside of the HCD by the date which is no later than either (i) the date that is Four Hundred Fifty-five (455) days after the Closing Date, or (ii) the last to occur of the Building Occupancy Dates for Buildings 7, 12 and 15 (the “ River

 

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Associates Relocation Date ”). Within thirty (30) days after the Effective Date, PAID shall present the River Associates Plan to Urban for its approval, which approval shall not be unreasonably withheld, conditioned or delayed so long as the River Associates Plan is consistent with the Master Plan. PAID shall endeavor to negotiate a proposed agreement with River Associates, Inc. which embodies the provisions of the River Associates Plan (the “ River Associates Lease Amendment ”) and provide the same to Urban for its approval (which approval shall not be unreasonably withheld, conditioned or delayed so long as the River Associates Plan is consistent with the Master Plan) prior to the expiration of the Due Diligence Period. Within five (5) days after receipt of the River Associates Plan or the River Associates Lease Amendment, as the case may be, Urban shall advise PAID whether or not it approves thereof. If Urban so approves, PAID shall enter into the River Associates Lease Amendment, in the form previously approved by Urban, and shall promptly thereafter deliver an executed copy of River Associates Lease Amendment to Urban. If PAID fails to present the River Associates Plan and/or the proposed River Associates Lease Amendment to Urban within the time periods provided for such purposes, or if Urban, after receiving the same reasonably withholds its approval thereof, or if Urban approves of the River Associates Plan and the proposed River Associates Lease Amendment and PAID fails to deliver a copy of the executed River Associates Lease Amendment to Urban within the time periods provided for such purposes, such actions or non-actions shall not constitute a PAID Default. PAID, as a PAID Post-Closing Obligation, shall have the obligation to cause River Associates, Inc. to vacate the entire premises it uses and occupies under and pursuant to the River Associates Lease, and to relocate outside the HCD, no later than the River Associates Relocation Date. If PAID fails to cause River Associates, Inc. to vacate the entire premises it uses and occupies under and pursuant to the River Associates Lease, and to relocate outside the HCD, by the River Associates Relocation Date, then Urban shall receive a credit equal to one (1) day of base rent at the rental rate which would otherwise then be payable under the lease agreement for Building 10, plus an amount equivalent to the amount of CAM at the rate therefore then in effect which then would be payable under such lease agreement, all calculated on a per diem basis, for each day after the River Associates Relocation Date until the date that River Associates, Inc. vacates the entire premises it uses and occupies under and pursuant to the River Associates Lease and relocates from the Option Property. The

 

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aforesaid credits shall be applied on account of the obligation to pay the installments of base rent to become due and payable under the lease agreement for Building 10.

 

3.1.4 Within sixty (60) days after the Effective Date, PAID shall endeavor to negotiate a proposed lease amendment to the Moran Towing Lease with Moran Towing Corporation pursuant to which Moran Towing Corporation would agree that PAID shall have the right and option to terminate the Moran Towing Lease or to relocate Moran Towing Corporation out of the Option Property at anytime during the term of such Moran Towing Lease, as the same may be renewed as noted above, effective upon two (2) years’ prior notice, to permit Urban to take possession of the Option Property free and clear of the Moran Towing Lease and any rights or claims in and to possession of any portion of the Option Property in favor of Moran Towing Corporation as of the date on which Urban closes under the Option to Purchase Agreement (the “ Moran Lease Amendment ”). Within five (5) days after receipt of the proposed Moran Lease Amendment, Urban shall advise PAID whether or not it approves thereof, which approval shall not be unreasonably withheld, delayed or conditioned. If Urban so approves, PAID shall enter into such Moran Lease Amendment with Moran Towing Corporation, in the form previously approved by Urban, and shall promptly thereafter deliver an executed copy thereof to Urban. If PAID fails to present the proposed Moran Lease Amendment to Urban within the time period provided for such purpose, or if Urban, after receiving the same reasonably withholds its approval thereof, or if Urban approves of the proposed Moran Lease Amendment and PAID fails to deliver a copy of the executed Moran Lease Amendment to Urban within the time period provided for such purpose, then such actions or non-actions shall not constitute a PAID Default. PAID, as a PAID Post-Closing Obligation, shall have the obligation to exercise its rights under the Moran Lease Amendment if Urban exercises its option to purchase the Option Property as aforesaid. If PAID fails to cause Moran Towing Corporation to vacate the entire premises it uses and occupies under and pursuant to the Moran Towing Lease, by the date on which Urban closes on its purchase of the Option Property, then Urban shall receive a credit equal to one (1) day of base rent at the rental rate which would otherwise then be payable under the lease agreement for Building 10, calculated on a per diem basis, for each day after the aforesaid closing until the date which Moran Towing Corporation vacates and relocates from the Option Property, which credits shall be applied on account of the obligation to pay installments of base rent to become due and payable under the lease agreement for Building 10.

 

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3.2 Right of First Offer . At Closing, PAID and Urban shall enter into a certain right of first offer agreement for the ROFO Property containing the business terms set forth herein and such other terms, covenants and conditions as may be agreed upon by PAID and Urban during the Due Diligence Period (“ ROFO Agreement ”).

 

3.2.1 The purchase price for the ROFO Property shall be determined during the Due Diligence Period as follows: PAID and Urban shall negotiate in good faith to agree on the purchase price for the ROFO Property within ten (10) days after the commencement of the Due Diligence Period. If PAID and Urban cannot agree on a purchase price within such ten (10) day period, then PAID and Urban shall each engage an appraisal of the ROFO Property to determine the then current Fair Market Value for the ROFO Property. The “ Fair Market Value ” shall be the price which a willing buyer would pay to a willing seller pursuant to a bona fide arm’s-length transaction for the purchase of the ROFO Property, as determined by two (2) independent Appraisers, one of whom shall be selected by PAID, and one of whom shall be selected by Urban. The term “ Appraiser ” shall mean be a licensed commercial real estate broker or a MAI-certified real estate appraiser who has been engaged in the business of appraising commercial real estate within Philadelphia, Pennsylvania for a period of at least five (5) years prior to the date of his or her designation. Each of the Appraisers shall determine the Fair Market Value of the ROFO Property within thirty (30) days after such Appraiser’s appointment. The purchase price for the ROFO Property shall be the sum determined by adding the total of the Fair Market Value determined by each Appraiser and dividing such total by two (2). The cost of the services of both Appraisers shall be paid by PAID.

 

3.2.2 PAID advises Urban that, as of the Effective Date, there is one lease outstanding for the ROFO Property, dated May 22, 1998, as amended by First Amendment to Lease, dated May 22, 1998, and Second Amendment to Lease, dated March 23, 2004, between PAID, as Landlord, and the Port of Philadelphia and Camden, Inc. (“ PPC ”), the predecessor in interest to the Delaware River Port Authority (“ DRPA ”), as Tenant. PPC dissolved, and its obligations under the DRPA Lease (as hereinafter defined), as Tenant, were assumed by DRPA by agreement, dated August 18, 1999. The aforesaid lease, as amended and assumed, is hereinafter referred to as the “DRPA Lease ”. The initial term of the DRPA Lease terminates on March 31, 2018, and is not subject to any further renewal or extension rights. PAID further

 

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advised Urban that the provisions set forth on Schedule 3.2.2 attached hereto set forth the uses permitted pursuant to the provisions of the DRPA Lease (the “ DRPA Uses ”) and that any other use is prohibited. PAID further advises Urban that the provisions of such Schedule 3.2.2 also set forth the rights of DRPA with respect to assignment or subletting under the DRPA Lease and defines the DRPA Assignees. Urban’s rights under the ROFO Agreement to purchase the ROFO Property shall arise (a) upon the expiration or termination of the term of the DRPA Lease, (b) upon a change in the tenancy under the DRPA Lease, except, and to the extent, that such change in tenancy or occupancy of any portion of the ROFO Property is to a DRPA Assignee pursuant to the provisions of the DRPA Lease, or (c) a change, or attempted change, in the use of the ROFO Property in violation of the DRPA Uses. PAID shall promptly advise Urban in writing upon the termination or expiration of the DRPA Lease, and upon any requested change in tenancy or occupancy, or any change in the tenancy or occupancy, which is known or brought to the attention of, PAID under the DRPA Lease other than to a DRPA Assignee, and upon any requested change in use or any change in use which is known or brought to the attention of PAID in violation of the DRPA Uses.

 

3.2.3 The form of the ROFO Agreement shall be negotiated during the Due Diligence Period and shall be attached hereto as Schedule 3.2 . 3 . Urban’s option to purchase the ROFO Property shall be conditioned upon (a) the then current intention of Urban, as of the closing under the ROFO Agreement, to use the ROFO Property for Urban’s Use (as evidenced by a projected fit-out and occupancy schedule prepared by Urban and delivered to PAID), and (b) at both the date of Urban’s option to purchase notice and on the date of closing under the ROFO Agreement, that there is no default by Urban under any Public Financing and no monetary event of default by Urban under any obligation to PAID and/or PIDC, continuing beyond expiration of any applicable notice, grace or cure periods, and provided further that Urban is in compliance with its occupancy obligation as defined in Section 9.2.3 hereof.

 

3.3 Anything under this Article 3 to the contrary notwithstanding, each Option Property, as of its respective closing date, shall be free and clear of all liens and encumbrances, other than the Permitted Exceptions, and of the lien of security interests securing any mortgage loans which shall be paid and discharged at or before its respective closing date.

 

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ARTICLE 4

 

CLOSING

 

4.1 Closing . Subject to the provisions of this Agreement, the acquisition, leasing, granting of options to purchase and granting of right of first offer as described herein with respect to the Property (the “Closing”) shall take place at the offices of Drinker Biddle & Reath LLP, One Logan Square, 18 ^th & Cherry Streets, Philadelphia, Pennsylvania 19103, at 10:00 A.M. (Philadelphia time) on the first business day that is ten (10) days following the Decision Date (as hereinafter defined), as the Decision Date may be extended by Urban as provided in Section 7.4 hereof or pursuant to Section 6.1.6 hereof (as so extended, the “ Closing Date ”).

 

ARTICLE 5

 

REPRESENTATIONS AND WARRANTIES

 

5.1 Representations and Warranties of PAID . To induce Urban to enter into this Agreement and consummate Closing hereunder, PAID hereby represents and warrants to Urban as follows:

 

5.1.1 Power and Authority . PAID is a body corporate and politic, duly organized and validly existing under the laws of, and is qualified to do business in, the Commonwealth of Pennsylvania, and has all requisite powers and consents and approvals to enter into and to perform all of its obligations under this Agreement and under any document or instrument required to be executed and delivered on behalf of PAID hereunder without any actions being taken, or the joinder or execution to or of any agreement (except as otherwise specifically provided by this Agreement), by any other person or entity. This Agreement is, and all documents that are to be executed by PAID and delivered to Urban in connection with the transaction contemplated herein will be, legal, valid and binding obligations of PAID, enforceable against PAID in accordance with their respective terms.

 

5.1.2 No Violation of Agreements . The execution and delivery by PAID of this Agreement and the performance by PAID of its obligations hereunder have been duly authorized by all requisite corporate action. Such execution, delivery and performance will not result in a breach of any of the terms or provisions of or constitute a default (or a condition which upon

 

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notice or lapse of time or both would constitute a default) under any agreement pursuant to which PAID was formed or is governed or under any agreement, instrument or obligation to which PAID is a party or by which PAID is bound and which affects the Property (except as specifically provided by this Agreement), and will not constitute a violation of any law, regulation, order, judgment, writ, injunction or decree applicable to PAID or the Property, of any court or of any federal, state or municipal body or authority having jurisdiction over PAID or the Property.

 

5.1.3 Title . There are no outstanding agreements, options, rights of first refusal or rights of first offers, whether or not of record, with respect to the purchase, sale, lease or exchange of any Buildings constituting all or any portion of the Property, other than this Agreement and those which are specifically disclosed herein. PAID has no right of first refusal or of first offer, or any other interests in, Building 11, as such Building 11 is depicted on the Master Plan, which Building 11 is presently owned by the Philadelphia Museum of Art.

 

5.1.4 Existing Leases .

 

(a) There are no leases, tenancies, subleases, licenses or other rights of occupancy or use for any part of the Property, except as listed on Schedule 5.1.4 attached hereto (the “ Existing Leases ”).

 

(b) Subject to the obligations of PAID hereunder, PAID shall keep, observe and perform all of its obligations, as landlord, under all Existing Leases (as the same may be amended pursuant to the provisions of this Agreement) and shall, at its sole cost and expense, enforce both its rights under all such Existing Leases (including, with limitation, rights of termination, eviction and recapture of possession) and the performance by each of the tenants thereunder of all of their respective obligations to be kept, observed or performed by each such tenant.

 

(c) PAID shall not modify or expand the provisions of, or extend the term of, any of the Existing Leases without first obtaining the consent of Urban, or enter into new or replacement leases for all or any portions of the spaces covered by such Existing Leases upon the expiration or termination thereof, it being understood that Urban may withhold its

 

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consent if the extension of a term or a modification or expansion of a provision of an Existing Lease or the creation of a new or replacement lease would either adversely affect Urban’s use, occupancy and enjoyment of any of the Properties or the operation of Urban’s businesses thereon or therefrom, and/or impair Urban’s ability to exercise any of its rights, options or privileges provided by this Agreement with respect to Buildings 3, 10, 25 and/or 41, all in Urban’s sole discretion. In addition to, but not in limitation of the foregoing, with respect to the DRPA Lease, PAID shall not consent to any change in tenancy, or to an assignment or a subletting, except to a DRPA Assignee or to a change in use thereunder except for DRPA Uses without first consulting with Urban to determine whether such PAID consent is required to be given under the provisions of the DRPA Lease, and if it would impair any of Urban’s rights under the ROFO Agreement.

 

5.1.5 Service Contracts . There are no management, service, equipment, supply, maintenance, security, concession or other agreements with respect to or affecting the Property, except as set forth in Schedule 5.1.5 attached hereto.

 

5.1.6 Zoning . The Property is currently zoned LR (Least Restrictive) under the Zoning Code of the City of Philadelphia.

 

5.1.7 Access . Each Building forming a part of the Property has access, ingress and egress to and from and over public streets from private roads within the PAID Parcel. Urban shall have access, ingress and egress rights thereover pursuant to the provisions of a Reciprocal Agreement (as that term is hereinafter defined), if applicable, and PAID has not received any written notice of any claim which would result in termination or impairment of the present access, ingress and egress from any public street by way of such private roads.

 

5.1.8 Personal Property . All Personal Property, if any, is owned by PAID free and clear of all liens and security interests other than those to be satisfied by PAID at Closing.

 

5.1.9 Environmental Claims . Except for the information referenced on Schedule 5.1.9(a) and the list of environmental documents referenced on Schedule 5.1.9(b) which are available at the offices of Manko, Gold & Katcher (collectively, the “ Disclosure Documents ”), to PAID’s knowledge, PAID has not been named as a defendant in any litigation, administrative proceeding or investigation as a responsible party or potentially responsible party

 

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for any liability for clean-up costs, natural resource damages or other damages or liability for prior disposal or release of Hazardous Substances or Hazardous Wastes (as such terms are hereinafter defined) with respect to the Properties, and no lien has been recorded, filed or otherwise asserted against the Properties, including any personal property located therein or thereon, or attached or appurtenant thereto, or used in connection therewith, for any clean-up costs or other response costs incurred in connection with any environmental contamination that is attributable, in whole or in part, to PAID. Notwithstanding the foregoing, PAID advises Urban that the Navy Deed (as that term is hereinafter defined) contains a Notice regarding Hazardous Substances as required by Section 405 of the Pennsylvania Solid Waste Management Act, 35 P.S. §6018.405, and Section 512(b) of the Pennsylvania Hazardous Sites Cleanup Act, 35 P.S. §6020.512(b), and that Exhibit B attached thereto identifies “the surface area size, the exact location of disposal, a description of the types of hazardous substances and a description of any response actions taken in connections therewith.” For purposes of this Agreement, “ Hazardous Substances ” means those elements and compounds which are designated as such in Section 101(14) of the Comprehensive Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601 (14), as amended, all petroleum products and by-products, and any other hazardous substances as that term may be further defined in any and all applicable Environmental Laws (as hereinafter defined). “ Hazardous Wastes ” means any hazardous waste, residential or household waste, solid waste, or other waste as defined in applicable Environmental Laws. To PAID’s knowledge, PAID has not received any summons, citation, directive, letter or other written communication from any Governmental Authority concerning any intentional or unintentional action or omission on PAID’s part which (a) resulted in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of Hazardous Substances or Hazardous Wastes on the Properties in violation of applicable Environmental Laws, or (b) related in any way to the generation, storage, transport, treatment or disposal of Hazardous Substances or Hazardous Wastes on the Properties in violation of applicable Environmental Laws.

 

5.1.10 No Litigation . There is no action, suit or proceeding as to which PAID is a defendant pending or, to PAID’s knowledge, threatened, against or affecting the Property or any portion thereof, or PAID’s interests therein, or relating to or arising out of the ownership, management or operation of the Property in any court or before or by Governmental Authority

 

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having jurisdiction over PAID or any portion of the Property, which could have an adverse effect upon its performance under this Agreement.

 

5.1.11 Assessments and Notices . Except as is disclosed in the Disclosure Documents, PAID has received no written notices concerning any work being done or about to be done, or of any assessment or violation issued by any Governmental Authority pertaining to or otherwise affecting the Property.

 

5.1.12 Condemnation . PAID has not received written notice of, and to PAID’s knowledge, there is no threatened condemnation or eminent domain proceedings (or proceedings in lieu thereof) affecting the Property or any portion thereof.

 

5.1.13 Historic District . The Properties are located entirely within a National Register Historic District.

 

5.1.14 KOIZ Zone . The Properties, except for Buildings 3, 25, 41 and 139, are located entirely within a Keystone Opportunity Improvement Zone (the “ KOIZ ”) established under the laws of the Commonwealth of Pennsylvania.

 

5.1.15 Aphton Lease . The Aphton Lease has not been modified and remains in full force and effect.

 

5.1.16 USEDA Grant . The USEDA Grant has not been modified and remains in full force and effect.

 

5.1.17 Building P . Except as is disclosed in the Disclosure Documents, PAID has not received any written notices from any Governmental Authority, nor has PAID received any written evaluations of the condition of Building P performed by any structural engineers, which indicate that Building P is unsafe for human habitation and/or must be demolished pursuant to Applicable Laws, except as set forth in Schedule 5.1.17 attached hereto.

 

5.1.18 Disclosure Documents . To PAID’s knowledge, the Disclosure Documents include copies of all notices relating to the Properties either sent by PAID to, or received by

 

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PAID from, any Governmental Authority during the five (5) year period immediately preceding the Effective Date.

 

For purposes of this Agreement, including without limitation, Section 5.1 , “ PAID’s knowledge ” shall be limited to the actual knowledge of John S. Grady, Jr., Samuel Rhoads, and Michael Maier.

 

Except for the representations and warranties contained in Sections 5.1.1 , 5.1.2 , 5.1.3 , 5.1.4 , 5.1.5 , 5.1.7 , 5.1.8 , 5.1.10 and 5.1.15 , the representations and warranties contained in this Section 5.1 shall not survive Closing.

 

5.2 Representations and Warranties of Urban . Urban, to induce PAID to enter into this Agreement and sell the Property, represents and warrants to PAID as follows:

 

5.2.1 Power and Authority . Urban is a corporation duly organized and validly existing under the laws of, and is qualified to do business in, the Commonwealth of Pennsylvania, and has all requisite powers and consents and approvals to enter into and to perform all of its obligations under this Agreement and under any document or instrument required to be executed and delivered on behalf of Urban hereunder without any action being taken, or the joinder or execution to or of any agreement, by any other person or entity. This Agreement is, and all documents that are to be executed by Urban and delivered to PAID in connection with the transaction contemplated herein will be, legal, valid and binding obligations of Urban, enforceable against Urban in accordance with their respective terms.

 

5.2.2 No Violation of Agreements . The execution and delivery by Urban of this Agreement and the performance by Urban of its obligations hereunder have been duly authorized by all requisite action and such execution, delivery and performance will not result in a breach of any of the terms or provisions of or constitute a default (or a condition which upon notice or lapse of time or both would constitute a default) under any agreement pursuant to which Urban was formed or is governed or under any agreement, instrument or obligation to which Urban is a party or by which Urban is bound, and will not constitute a violation of any law, regulation,

 

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order, judgment, writ, injunction or decree applicable to Urban of any court or of any federal, state or municipal body or any governmental authority having jurisdiction over Urban.

 

5.2.3 Litigation . There are no actions, suits or proceedings pending, or, to the knowledge of Urban, threatened, against Urban at law or in equity or before or by any Governmental Authority having jurisdiction over Urban which could have a material and adverse effect upon Urban’s performance of this Agreement.

 

5.2.4 City Taxes . Urban is not now, and as of Closing shall not be, an adjudicated tax delinquent with respect to any City of Philadelphia (the “City”) tax which remains unpaid, nor shall Urban then be lawfully prohibited from doing business with the City .

 

5.2.5 Obligations . Urban is not in default under any obligations (and no condition exists which upon notice or lapse of time or both would constitute a default), with PIDC and the Pennsylvania Industrial Development Authority (“PIDA”) after the giving of any required notices and the expiration of any applicable grace periods without a cure having been effectuated.

 

5.2.6 AS IS, WHERE IS . EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE SCHEDULES AND EXHIBITS ATTACHED HERETO, URBAN ACKNOWLEDGES THAT IF URBAN ACQUIRES THE PROPERTY, IT WILL DO SO BASED SOLELY ON ITS OWN EVALUATION OF THE MERITS AND RISKS OF MAKING AN INVESTMENT IN THE PROPERTY, AND BASED ON URBAN’S OWN DETERMINATION THAT SUCH AN INVESTMENT IS SUITABLE TO URBAN. URBAN SHALL ACQUIRE THE PROPERTY “AS IS, WHERE IS,” SUBJECT TO ALL FAULTS AND DEFECTS, WITHOUT ANY OBLIGATION OF PAID TO PERFORM ANY REPAIRS, IMPROVEMENTS, MAINTENANCE OR OTHER WORK TO THE PROPERTY OR ANY PART THEREOF, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE SCHEDULES AND EXHIBITS ATTACHED HERETO, AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND FROM PAID EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS REGARDING THE CONDITION OF THE PROPERTY OR WARRANTIES OF FITNESS,

 

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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY OR TENANTABILITY, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.

 

Except for the representations and warranties contained in Sections 5.2.1 , 5.2.2 , 5.2.3 , 5.2.4 and 5.2.6 , the representations and warranties contained in this Section 5.1 shall not survive Closing.

 

ARTICLE 6

ADDITIONAL COVENANTS

 

6.1 Additional PAID’s Covenants .

 

6.1.1 Operations . Except for damage by casualty (which shall be governed by Article 10 hereof) and condemnation (which shall be governed by Article 10 hereof), PAID shall (a) perform all repairs and replacements, structural and nonstructural, which are required with respect to any portion of the Property to maintain it in the same manner as each has been performed prior to the Effective Date, reasonable wear and tear excepted, except that, as to Building 10, such obligation shall be expanded, as necessary, to maintain Building 10 in the same condition in which it exists as of the date of this Agreement, reasonable wear and tear excepted, and (b) maintain all fixtures and articles of tangible Personal Property included in the Property in the same manner as they have been maintained prior to the date of this Agreement, reasonable wear and tear excepted, including, without limitation, plumbing, heating, ventilation, air conditioning, lighting and cooling fixtures, appliances, carpeting, fittings and all other personalty owned by PAID appurtenant to, attached to or installed on any portion of the Property.

 

6.1.2 Insurance . With respect to Building 10, PAID shall maintain through the Closing Date an insurance policy with a limit of Five Million Dollars ($5,000,000.00) and with a deductible of One Hundred Thousand Dollars ($100,000.00), in accordance with the certificate attached hereto as Schedule 6.1.2 .

 

6.1.3 Required Notices . PAID shall notify Urban of any material change in any of the information set forth in Article 5 hereof, the Exhibits and Schedules hereto or the other

 

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written information delivered by or on behalf of PAID pursuant to this Agreement, promptly after PAID has knowledge of such material change.

 

6.1.4 Access . PAID shall afford Urban, its attorneys, accountants, consultants and other representatives (collectively, the “ Urban Representatives ”) access to the Property pursuant to a Right of Entry Agreement between PAID and Urban attached hereto as Schedule 6.1.4 (the “ ROE Agreement ”) provided that this Agreement has not been terminated in accordance with the terms hereof, in which event the access rights pursuant to the ROE Agreement shall also be automatically terminated. Urban’s access rights are not exclusive; PAID shall have the right prior to Closing to have access to the Property for any reason; provided , however , the exercise by PAID of any of its access rights shall be conducted in a manner so as not to unreasonably interfere with Urban’s access rights. Urban’s access rights shall not interfere with the rights of any tenants identified on Schedule 5.1.4 .

 

6.1.5 L&I Certification . PAID shall use its best efforts to deliver to Urban at or before Closing a Certification Statement from the City of Philadelphia Department of Licenses and Inspections confirming the applicable zoning of the Purchased Property and Leased Property and identifying any outstanding notices of uncorrected violations. Notwithstanding the foregoing, PAID shall have no obligation to correct or cure any violations or conditions noted on the Certification Statement given that the Purchased Property and the Leased Property are being transferred in “as is” condition, except, and to the extent, PAID has specifically undertaken such obligations under the Lease Agreement for Building 10.

 

6.1.6 Rezoning of Property . After the Effective Date, PAID, at its sole cost and expense, shall apply for and diligently prosecute, the rezoning of the Property through the City Council of the City to “C-3” classification (or such other zoning classification as may be appropriate for the uses contemplated by the Master Plan and which permit Urban’s Use) under the Zoning Code of the City of Philadelphia. PAID shall promptly deliver to Urban copies of all such applications, and of any and all correspondence and notices sent or received by PAID with respect to such applications, and of all rulings or approvals relating thereto. Urban shall be permitted to review and comment as to the application and prosecution process, but at no cost, liability, obligation or responsibility to Urban. At Closing, the rezoning shall be final and

 

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unappealed, with all appeal periods having expired. In the event that rezoning is not final and unappealed, with all appeal periods having expired on or prior to the Closing Date, then Urban shall have the right to either extend the Closing Date for such time as is necessary for the re-zoning to become final and unappealed, with all appeal periods having expired, which extension shall be for a period selected by Urban not to exceed nine (9) months after Urban’s last extension of the Decision Date, or to terminate this Agreement in which event the provisions of Section 7.6 shall apply. In the event that the rezoning is not final and unappealed, with all appeal periods having expired by such Closing Date, as the same may have been extended, then Urban shall have the right either to terminate this Agreement by providing PAID with written notice of such termination within five (5) days prior to such Closing Date, in which event the provisions of Section 7.6 shall apply, or to complete Closing, but in such latter event, PAID shall have a continuing obligation, at its sole cost and expense, to seek the aforesaid rezoning of the Property notwithstanding PAID’s best efforts in that regard, until the same is granted and is final and unappealed which then shall be a Surviving Obligation of PAID for a period not to exceed two (2) years after the date of Closing. If such rezoning of the Property has not been accomplished to the standard therefor set forth in this Section 6.1.6 prior to the expiration of such two (2) year period, then it shall no longer be Surviving Obligation of PAID. Notwithstanding the foregoing, if said Closing is completed before the rezoning of the Property, as aforesaid, has been accomplished by PAID, Urban shall have the right, but not the obligation, by written notice to PAID, to undertake such rezoning or to seek a variance, as Urban may elect, in which case PAID, shall deliver to Urban all copies of PAID’s applications and related documentation sent or received with respect to such rezoning efforts, at no cost or expense to Urban, and thereafter PAID shall cooperate with Urban, but at no additional cost or expense to PAID.

 

6.1.7 No Modification of Aphton Lease . PAID shall not modify any of the provisions of the Aphton Lease in any manner which would abrogate or otherwise impair PAID’s ability to enforce its rights thereunder to terminate the Aphton Lease or to relocate Aphton to an alternate location as of the Closing Date, or would or could result in any claim, agreement or demand on the part of Aphton that the termination and relocation rights in favor of PAID are unenforceable in accordance with their terms. PAID’s obligation to enforce its right to terminate the Aphton Lease or to relocate Aphton to an alternate location, are covenants which necessarily shall be Surviving Obligations.

 

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6.1.8 Stage I and Stage II Work .

 

(a) Stage I Work . During the Due Diligence Period, PAID shall cooperate and coordinate with Urban to determine the timing and method of the commencement and completion of the items hereinafter collectively defined as the “ Stage I Work ”, it being understood that Stage I Work shall be divided into three (3) phases as hereinafter set forth and completed by the Stage I Outside Completion Date (as hereinafter defined); subject , however , to the provisions of Section 6.1.8(e) hereof.

 

(b) Stage II Work . During the Due Diligence Period, PAID shall cooperate and coordinate with Urban to determine, to the extent possible, the scope of the items hereinafter defined as the “ Stage II Work ” and the timing of the commencement and completion thereof.

 

(c) Scope of Stage I Work . Stage I Work shall consist of (i) a first phase comprised of (A) the completion of the utilities work referenced in Section 6.1.12 hereof, and (B) the beautification and improvements as shown on the Master Plan of both sides of Flagship Drive, and of Kitty Hawk Avenue between Broad Street and Sixteenth Street, and both sides of Sixteenth Street between Kitty Hawk Avenue and Flagship Drive; (ii) a second phase comprised of the refurbishment and beautification as shown on the Master Plan of the public areas adjacent to Buildings 139, 543, 25 and 41, including, but not limited to, the area surrounding Dry Dock Number 1, which beautification necessarily shall include the removal of all chain-link fencing on Dry Dock Number 1 and the area surrounding it; and (iii) a third phase comprised of (A) the opening of vehicular access (which shall provide for vehicular access, ingress and egress at least during Urban’s customary business hours of 7:00 a.m. to 7:00 p.m., Monday through Friday) over the 26th Street corridor from Penrose Avenue to the entrance into the PAID Parcel and then over 26th Street to its intersection with Langley Avenue, including, but not limited to, the removal of barriers (which may be left at the side of the road), debris, shrubs and saplings as have been identified and agreed upon during the Due Diligence Period, and (B) the installation of a new security booth at the 26th Street entrance into the PAID Parcel.

 

(d) Scope of Stage II Work . Subject to modification during the Due Diligence Period as set forth in Subsection 6.1.8(b) above, with the approval of Urban, which

 

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approval may not be withheld if the modification is consistent with the Master Plan, and which approval shall not be unreasonably withheld, delayed or conditioned if the modification is not consistent therewith, and subject to further modification if, and to the extent required by virtue of the amount of funding received therefore by PAID, Stage II Work shall consist of: (i) the completion of the upgrading of the 26th Street corridor, “including resurfacing, curbing, landscaping, lighting, signage, and other streetscape improvements” from 26th Street to Broad Street, as more particularly described on Page 93 of the Master Plan, and (ii) the beautification of the waterfront area known as the “Esplanade.” Urban shall provide PAID with Urban’s final comments to the scope of the proposed Stages II Work and the timing thereof, if applicable, within fifteen (15) days after the receipt thereof from PAID, and PAID shall confirm, within five (5) days thereafter, whether any changes to the proposed scope and timing of the Stage II Work set forth in Urban’s comments thereto have been incorporated in the final version thereof.

 

(e) Completion of Work . All Stage I Work shall be commenced and completed, at the sole cost and expense of PAID: (i) the aspect of the first phase relating to the utilities work referenced in Section 6.1.8(c)(i)(A) hereof shall be completed by the later of the date that is agreed to by PAID and Urban during the Due Diligence Period which will enable Urban to obtain either a temporary or permanent certificate of occupancy (or its equivalent) by a date selected by Urban, at its absolute discretion (it being understood that such date may be no earlier than the date that is six (6) months after the date on which Urban delivers its utility specifications to PAID), and the aspect of the first phase relating to beautification and improvements referenced in Section 6.1.8(c)(i)(B) hereof shall be coordinated and completed in accordance with the schedule to be produced pursuant to Section 6.2.3 so that such work is substantially completed to meet the Building Occupancy Dates for Buildings 7, 12 and 15; (ii) the second phase shall be completed within three (3) months after the River Associates Relocation Date (which completion shall be subject to prevailing weather conditions so long as PAID completes all aspects thereof promptly after such weather conditions have abated); and (iii) the third phase shall be completed prior to the Building Occupancy Date for Building 10. The outside date for the completion of all Stage I Work shall be three (3) years after the date of Closing (the “ Stage I Outside Completion Date ”). PAID specifically confirms that PAID has (A) Seven Hundred Fifty Thousand Dollars ($750,000.00) to invest in the commencement and completion of that portion of the Stage I Work pertaining to the refurbishment and beautification

 

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of the aforesaid public areas around Buildings 139, 543, 25 and 41, plus Dry Dock Number 1, and (B) all additional funds necessary for the commencement and completion of the balance of Stage I Work in addition to the funds earmarked in the preceding clause (A) with respect to the refurbishment and beautification of the public areas enumerated therein. All funds referenced in clauses (A) and (B) of this Section 6.1.8(e) , shall continue to be maintained by PAID specifically for the completion of the Stage I Work. Subject to PAID’s receipt of funding for the Stage II Work, PAID shall coordinate with Urban both the scope of such Stage II Work and the timing of the commencement and completion of such Stage II Work.

 

(f) PAID’s obligations pursuant to this Section 6.1.8 shall be a Surviving Obligation.

 

6.1.9 Existing Leases . PAID shall keep and observe and perform all of its obligations as landlord under the Existing Leases set forth on Schedule 5.1.4 , as the same are amended or modified pursuant to the provisions of this Agreement, including rights of termination, eviction and recapture of possession, and shall as landlord enforce the obligations of the tenants thereunder. Urban recognizes that such tenants under the Existing Leases may attempt to challenge, object to and/or raise defenses to PAID’s actions, but PAID agrees that the obligation under this Section 6.1.9 includes a duty to act in good faith to respond to, to defend and to contest, and to the extent required, appeal, any challenges, defenses or objections of tenants. So long as PAID so responds, defends, contests and, if necessary, appeals, PAID shall be deemed to be satisfying its obligations under this Section 6.1.9 . PAID shall not enter into any additional amendments, modifications, expansions or extensions of the River Associates Lease, the Moran Towing Lease, the Del/San Lease, the DRPA Lease or any new leases for the Option Property or the ROFO Property that would preclude Urban from deriving the benefits of this Agreement, including Urban’s ability to close its option to purchase, and thereafter to use for Urban’s Use, the Option Property free and clear of tenants or occupants in accordance with the Option to Purchase Agreement, and, subject to the provisions of Section 3.2.2 hereof regarding the DRPA Lease and the rights of DRPA, as tenant, thereunder, to close its purchase on the ROFO Property free and clear of the DRPA Lease and of any other tenants or occupants of the ROFO Property in accordance with the ROFO Agreement. PAID’s obligations pursuant to this Section 6.1.9 shall be a Surviving Obligation.

 

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6.1.10 Waiver of U.S. Navy Deed Restrictions . Notwithstanding the provisions of Section 7.2.1(d) , PAID has submitted a request to the U.S. Navy to waive the restriction which prohibits Building O and Building P from being used as an extended stay facility for the employees and guests of Urban with full time staff member(s) in residence (the “ U.S. Navy Waiver ”). If granted by the U.S. Navy, the U.S. Navy Waiver shall be in writing and in recordable form acceptable to Urban and the Title Company. Anything in this Agreement to the contrary notwithstanding, if the foregoing U.S. Navy Waiver has not been obtained by the Closing Date for Building O and Building P, Urban shall have the right and option not to lease either or both of such Buildings O and P, without affecting the respective rights and obligations of the parties hereto under this Agreement as to all of the other Properties. Furthermore, if the U.S. Navy Waiver has not been obtained by the Closing Date and Urban has elected to lease or to accept an option to lease either Building O and/or Building P, as hereinabove provided, PAID agrees to exercise its best efforts thereafter to obtain the U.S. Navy Waiver. PAID’s obligations pursuant to this Section 6.1.10 shall be a Surviving Obligation for a period of one (1) year after the completion of Closing. If such U.S. Navy Waiver has not been obtained within the aforesaid one (1) year period, then it shall no longer be a Surviving Obligation of PAID, whether or not Urban has leased either Building O and/or Building P.

 

6.1.11 Gaming . PAID shall use its best efforts to obtain, at or before Closing, the agreement of all other owners of properties located within the HCD, to the inclusion of a restriction which will run with the land as to those properties owned by such third parties, and to the recording of CCRs (as hereinafter defined) containing the same restrictions which will run with the land as to the balance of the HCD, prohibiting in perpetuity the conduct thereon, whether for public or private purposes, of any gaming or gambling activities, and whether or not such activities are permitted or promoted by any Governmental Authority, or otherwise (the “ Gaming Restriction ”); provided , however , that the Gaming Restriction shall not apply to the Property if it does not apply to all other properties located within the HCD. In the event that PAID is unable to procure the Gaming Restriction on or before the Closing Date, then Urban shall have as its sole and exclusive remedy the right to terminate this Agreement by providing written notice to PAID, in which event the provisions of Section 7.6 shall apply.

 

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6.1.12 Utilities . PAID, at its sole cost and expense and as part of the first phase of Stage I Work, shall install, or cause to be installed, underground, all utility lines, conduits, laterals and equipment, and shall provide, or cause to be provided, all utility services (potable water, electricity, storm water and sanitary sewer), having commercially reasonable capacities for Urban’s Use. The foregoing installation obligation shall require each utility to be brought to each of the Properties to one point of entry to each Property or Building, except as to electricity, as to which the utility may be brought to transformer(s) serving a Property or Building. PAID shall satisfy its obligations under this Section 6.1.12 with respect to the delivery of its utility services within the period provided for such purpose in Section 6.1.8(e) hereof.

 

6.2 Additional Urban’s Covenants .

 

6.2.1 Required Notices . Urban shall notify PAID of any material change in any of the information set forth in Article 5 hereof, the Exhibits and Schedules hereto or the other written information delivered by or on behalf of Urban pursuant to this Agreement, promptly after Urban has knowledge of such material change.

 

6.2.2 Plans . During the Due Diligence Period, Urban, at its sole cost and expense, shall prepare schematic plans for the Purchased Property and the fit-out of Building 10 (collectively, the “ Plans ”) and shall deliver a set thereof to PAID. With respect to the exteriors of the Buildings, the Plans shall be based on historic tax credit rehabilitation. In the event that Urban, with respect to the exteriors of the Buildings, does not elect to perform such work based upon historic tax credit rehabilitation, PAID shall have the right to approve such Plans as they pertain to the exteriors of the Buildings only, which approval shall not be unreasonably withheld, conditioned or delayed. If, and to the extent, PAID has approval rights under this Section 6.2.2 , Urban shall not make any material changes to such approved Plans as to any matters which were the subject of PAID’s approval thereafter without first obtaining the prior written approval of PAID, which approval shall not be unreasonably withheld, conditioned or delayed. In the event Urban has not completed the Plans by Closing, then the obligations set forth in this Section 6.2.2 shall be a Surviving Obligation. Whether or not Urban elects to perform an historic tax credit rehabilitation, PAID shall have the right to approve Urban’s site improvement work for each Property, which approval shall not be unreasonably withheld, conditioned or delayed so long as

 

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such work is consistent with any guidelines reasonably established by PAID with respect thereto in the context of, and consistent with, the Master Plan, and such guidelines are delivered to Urban within (30) days of the Effective Date.

 

6.2.3 Schedule . During the Due Diligence Period, Urban, at its sole cost and expense, shall prepare a preliminary schedule for construction, phasing and occupancy of the Purchased Property and the fit-out of Building 10. PAID shall have the right to approve such schedule, if such schedule provides for any Building Occupancy Date later than the date which is three (3) years after the Closing Date. In the event Urban has not completed the schedule by Closing, then the obligation set forth in this Section 6.2.3 shall be a Surviving Obligation.

 

6.2.4 Construction . Promptly after Closing and the completion of all design plans and construction drawings, as well as the receipt of all permits and approvals of the Governmental Authorities having jurisdiction with respect to the development of the Purchased Property and Building 10 as contemplated by Urban (which necessarily shall include the receipt of historic tax credit rehabilitation approval therefor), Urban shall cause the commencement of construction of the fit-out of Building 10, and shall cause the commencement of construction of the fit-out of the Purchased Property pursuant to the schedule referenced in Section 6.2.3 hereof. Urban shall complete the fit-out of Building 10, together with the construction of improvements to the Purchased Property, within three (3) years after the Effective Date. All of such work shall be performed in a good and workmanlike manner and in compliance with all Applicable Laws (as hereinafter defined) of all Governmental Authorities. Urban’s obligations pursuant to this Section 6.2.4 shall be a Surviving Obligation.

 

6.2.5 Subdivision . During the Due Diligence Period, but only after PAID and River Associates Inc. have entered into the River Associates Lease Amendment (all in accordance with the applicable provisions of Section 3.1.3 hereof), Urban and PAID shall mutually agree upon the boundary lines for each of the Properties (“ Subdivision ”) and attach hereto the proposed subdivision plans as Schedule 6.2.5 (each, a “ Subdivision Plan ”). After the Effective Date, Urban, at its sole cost and expense, shall apply for and diligently prosecute, the Subdivision. Urban shall promptly deliver to PAID copies of all such applications, and of any and all correspondence and notices sent or received by Urban with respect to such applications,

 

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and of all rulings or approvals relating thereto. PAID shall cooperate and assist Urban in obtaining the Subdivision, and PAID shall be permitted to review, comment and approve the application and prosecution process, but at no cost, liability, obligation or responsibility to PAID. At the expiration of the initial Due Diligence Period, the Subdivision shall be final and unappealed, with all appeal periods having expired. In the event that Subdivision is not final and unappealed, with all appeal periods having expired on or prior to the expiration of the initial Due Diligence Period, then Urban shall have the right, but not the obligation, to extend the Due Diligence Period as hereinafter provided in Article 7 for such time as is necessary for the Subdivision to become final and unappealed, with all appeal periods having expired.

 

ARTICLE 7

 

DUE DILIGENCE CONTINGENCY; TITLE MATTERS; FINANCING

 

7.1 Due Diligence .

 

7.1.1 Due Diligence Period and Inspections . For a period ending at the close of business on the date which is ninety-three (93) days after the Effective Date of this Agreement (as the same may be extended in accordance with the provisions of this Agreement, the “ Due Diligence Period ”), Urban (itself or by and through the Urban Representatives) shall have the right, at Urban’s sole cost and expense, to conduct all investigations, inspections, examinations, analyses, tests, studies, feasibility analyses of and with respect to the Property (collectively, the “ Due Diligence ”) as Urban deems necessary, appropriate or desirable to determine or confirm any matter or thing affecting or relating to the Property, including, but not limited to, the condition (physical and environmental), suitability, value, quality, economic viability and income potential; status (i.e., development, land use, the Survey (as hereinafter defined), Subdivision Plans, approvals and permits; approval of plans by any Governmental Authority, including, but not limited to, the Pennsylvania Historical and Museum Commission (including applicable demolition); zoning classification, permits and compliance (including, but not limited to, compliance with all applicable laws, statutes, ordinances, regulations and codes now existing or hereafter enacted or promulgated (including, but not limited to, those pertaining to zoning, planning, subdivision, occupancy, environmental, health, fire, historic preservation, historic tax credits, building, safety, and tax incentives) (collectively, the “ Applicable Laws ”) of any

 

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governmental, quasi-governmental or municipal entity, agency, department, authority, board or commission (collectively, the “ Governmental Authority ”); adequacy, location, condition, capacity and availability of on-site and off-site infrastructure and improvements and utilities and utility services and facilities; state and condition of title to the Property and the existence and nature of any liens, encumbrances, defects or title objections; and the overall feasibility and suitability of purchasing the Property for the construction, development and operation of the Project, which necessarily shall include the availability of tax credits and incentives and financing for the Project on terms and conditions acceptable to Urban. Applicable Laws may include, without limitation (a) the “Americans With Disabilities Act of 1990” P.L. Section 101-336, 42 U.S.C. § 1201 et seq .; (b) Environmental Laws (defined below); (c) the “Fair Practices Ordinance” (codified in the Philadelphia Code at Chapter 9-1100); and (d) the Philadelphia Code. For purposes of this Agreement, “ Environmental Laws ” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq ., as amended from time to time (“ CERCLA ”), the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq ., as amended from time to time (“ RCRA ”), and the Clean Water Act, 33 U.S.C. §§ 7401 et seq ., as amended from time to time, the Clean Air Act, 42 U.S.C. § 7401 et seq ., as amended from time to time, the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq ., as amended from time to time, as well as any other federal, state, interstate and local environmental statutes, ordinances, rules, guidelines, regulations and orders relating to health, safety or the environment.

 

7.1.2 Property Access . During the Due Diligence Period, Urban and the Urban Representatives shall have the right to enter upon the Property in accordance with the ROE Agreement, provided this Agreement has not been terminated in accordance with the terms hereof.

 

7.1.3 Document Delivery . At or prior to the Effective Date of this Agreement, PAID has delivered or made available to Urban the Disclosure Documents. Within thirty (30) days after the Effective Date of this Agreement, Urban shall advise PAID in writing if there are any additional materials related to the Properties that Urban may want to review which were not included in the Disclosure Documents. If so advised and in PAID’s possession, PAID shall deliver such items to Urban with respect to Urban’s notice in this regard within five (5) days

 

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after PAID’s receipt of Urban’s notice. Furthermore, if any materials relating to the Properties come into the possession of PAID at any time after the Effective Date, PAID shall immediately provide copies thereof to Urban.

 

7.2 Title .

 

7.2.1 Title to the Purchased Property and the Leased Property shall be good and marketable and insurable at regular rates by First American Title Insurance Company (the “ Title Company ”), subject to all liens, claims encumbrances, easements, reservations, restrictions and objections of record (collectively, the “ Permitted Exceptions ”) including, but not limited to:

 

(a) Acts of Assembly and local ordinances and such easements, restrictions, easements for abutting streets and privileges or rights of or for utilities as do not interfere with use of the Purchased Property and the Leased Property for Urban’s Use;

 

(b) All items shown on the Survey of the Purchased Property and the Leased Property prepared for Urban. Urban agrees to supply PAID with an ALTA survey of the Purchased Property and the Leased Property (together with a boundary and legal description for each) prepared by a professional land surveyor who is registered in and licensed by the Commonwealth of Pennsylvania (collectively, the “ Survey ”). The legal description of each Purchased Property and the Leased Property shall be consistent with the respective approved Subdivision Plan and then drawn on the Survey and shall be attached to and recorded with the Deed (as hereinafter defined). All costs related to the Survey shall be borne by Urban.

 

(c) Real estate taxes, personal property taxes and all other public or governmental charges and public or private assessments against the Purchased Property and the Leased Property (including, but not limited to, special or general assessments, or charges, liens or encumbrances for sewer, water, drainage or other public improvements; subject , however , to applicable prorations as of the Closing Date between the parties hereto;

 

(d) Any and all restrictions set forth in the Quitclaim Deed delivered to PAID by the United States of America for the Purchased Property and the Leased Property, a copy of which is attached hereto as Schedule 7.2.1 (the “ Navy Deed ”), subject to the provisions of Section 6.1.10 concerning the U.S. Navy Waiver.

 

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7.2.2 Urban acknowledges and agrees that PAID is in the process of preparing covenants, conditions and restrictions in conjunction with the Master Plan that PAID intends to record against the PAID Parcel which shall address, inter alia , uses of the PAID Parcel, including without limitation, the formation of districts which includes the HCD, restrictions affecting property located in the PAID Parcel, and covenants concerning utilities and utility services (collectively, the “ CCRs ”). With respect to the CCRs which PAID intends to record against the Property at or before Closing, PAID shall provide Urban with a copy of such CCRs for Urban’s review, comment and approval during the Due Diligence Period. PAID covenants and agrees not to modify the CCRs without Urban’s prior approval after the expiration of the Due Diligence Period and prior to the completion of Closing.

 

7.2.3 All title search and title insurance costs shall be paid by Urban.

 

7.2.4 After Urban’s receipt of the title commitment and the Survey, but in any case within seventy-five (75) days following the Effective Date of this Agreement, Urban shall deliver to PAID a written notice identifying any exceptions in the title commitment and/or matters on the Survey which are unacceptable to Urban. Within five (5) days after receipt of Urban’s notice, PAID shall advise Urban in writing whether or not PAID is able to cause the objectionable matters to be removed at or prior to Closing, and in that regard PAID agrees to cause to be released and removed at or before Closing all mortgages, deeds of trust and other monetary liens, all rights of occupancy which and not specifically intended to survive Closing, options, rights of first refusal or rights of first offer to purchase, sell, lease or exchange any of the Properties other than those options or rights created by this Agreement. If PAID’s notice indicates matters that PAID is unable to remove such objectionable matters, then within five (5) days after receipt of PAID’s notice, Urban shall, by written notice to PAID, either elect to take such title as PAID can give, without abatement of the Purchase Price except as to monetary liens, or, in the alternative, to terminate this Agreement in accordance with Section 7.5 and Section 7.6 .

 

7.2.5 The Purchased Property as described herein shall be conveyed at Closing by PAID to Urban by quitclaim deed (the “ Deed ”), subject to the Permitted Exceptions. The

 

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Deed will also include provisions substantially similar to those set forth in the Navy Deed. The form of Deed is attached hereto as Schedule 7.2.5.

 

7.2.6 The Navy Deed contains indemnification provisions from the United States of America, as grantor, which inure to the benefit of PAID, as grantee. It is the intent of PAID and Urban that Urban be entitled to the benefits and obligations of the indemnification provisions in the Navy Deed, as such provisions apply to any grantee, successor or assign of PAID. At the request of Urban, PAID shall cooperate with Urban, at Urban’s sole cost and expense, to obtain an assignment of the benefit of the indemnification provisions from the United States of America to Urban, which cooperation shall be a Surviving Obligation of PAID.

 

7.2.7 During the Due Diligence Period, Urban and PAID shall negotiate the terms and conditions of any reciprocal easement and operating agreement (the “ Reciprocal Agreement ”) necessary to create certain reciprocal easements and obligations not addressed in the CCRs, but subject to the terms, covenants, conditions and agreements contained in this Agreement, such as:

 

(a) Maintenance of utilities serving Purchased Property and the PAID Parcel;

 

(b) Maintenance by PAID of common areas within the PAID Parcel;

 

(c) Granting of exclusive parking rights to Urban on the PAID Parcel including, without limitation, the diagonal on-street parking spaces (i) adjacent to Building 10 along Broad Street and any parking spaces on the south side of Kitty Hawk Avenue between Broad and Sixteenth Streets (to the extent physically feasible), and (ii) except for those parking spaces contractually granted by PAID to the Philadelphia Museum of Art prior to the Effective Date, any parking spaces on the north side of Flagship Drive between Broad and Sixteenth Streets (to the extent physically feasible), together with the obligation of PAID, at its sole cost and expense, to enforce such parking rights on behalf of Urban;

 

(d) Payment of CAM by Urban commencing as to each Property (except as to Building 543 and to Building 10) on its respective Building Occupancy Date. As to

 

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Building 10, the payment of CAM shall commence as provided in Section 2.1.1(a) hereof. As to Building 543 only, CAM shall be phased in as follows: (i) there shall be no CAM during the first twelve (12) month period after the Building Occupancy Date; (ii) during the second full twelve (12) month period after the Building Occupancy Date: twenty (20%) percent; (iii) during the third full twelve (12) month period after the Building Occupancy Date: forty (40%) percent, (iv) during the fourth full twelve (12) month period after the Building Occupancy Date: sixty (60%) percent; (v) during the fifth full twelve (12) month period after the Building Occupancy Date: eighty (80%) percent; and (vi) during the sixth full twelve (12) month period after the Building Occupancy Date and thereafter: one hundred (100%) percent; each calculated at the square footage rate of CAM then due and payable for the other Properties; and

 

(e) The parties acknowledge that a continuation of the present view to and over the Delaware River for the distance of the frontage of such of the Properties bordering the Delaware River and located thereon from Broad Street to Sixteenth Street was one of the considerations of Urban to develop the Project. In order to satisfy Urban’s reasonable expectation of this view, PAID agrees that PAID will use its best efforts in order to preserve as much of Urban’s view to and over the Delaware River for the distance of the frontage of such of the Properties bordering the Delaware River and located thereon from Broad Street to Sixteenth Street, subject to the rights of the DRPA under the DRPA Lease. Against this background, PAID agrees not to construct any permanent improvement, reconstruct any existing building above its current elevation, without first obtaining the consent of Urban, which consent shall not be unreasonably withheld, conditioned or delayed (which right shall be a covenant to run with the land), subject to the rights of DRPA under the DRPA Lease. PAID reserves the right to construct improvements as shown on the Master Plan, such as a jogging path, sidewalks, ancillary amenities and/or support buildings.

 

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7.2.8 During the Due Diligence Period, Urban and PAID shall negotiate the terms and conditions of any necessary Cooling Tower Easement, to the extent such rights are not available under currently existing documents to the satisfaction of Urban.

 

7.3 Financing .

 

7.3.1 During the Due Diligence Period, PAID, through PIDC, shall identify, facilitate and arrange for (a) loan commitments binding until Closing (or until such later date as may be acceptable to Urban in its absolute discretion) as to approximately seventy percent (70%) of the total loan package, on such terms and conditions as are acceptable to Urban, and (b) such other assurances as are acceptable to Urban binding until Closing (or until such later date as may be acceptable to Urban in its absolute discretion) for the remaining approximately thirty percent (30%) of the total loan package, on such terms and conditions as are consistent with the loan programs available to PAID, all from a public, quasi-public or economic development authority(ies), for a total loan package of the lesser of either Fifteen Million Dollars ($15,000,000), or fifty percent (50%) of Urban’s total cost for Buildings 10, 7, 12 and 15 as established during the Due Diligence Period by Urban to the reasonable satisfaction of PAID (the “ Public Financing ”). The Public Financing shall have a blended interest rate of three and one-half percent (3.5%), and an average maturity date of fifteen (15) years from the Closing Date and shall be funded in accordance with the programs for such loans. Urban confirms that the Public Financing shall be secured by a first fee mortgage(s) on the Purchased Property, and/or first leasehold mortgages on the Leased Property, and PAID confirms that it consents to any such leasehold mortgages and shall execute and deliver, in recordable form, such instruments and documents as may be requested of PAID as the fee owner and landlord by the leasehold mortgagees with respect to the leasehold mortgages. PAID’s obligation to identify, facilitate and arrange for the Public Financing shall be conditioned upon Urban timely providing to PAID any and all information and applications which are necessary. Urban, in its sole and absolute discretion, shall have the right to accept or reject any and all of the aforesaid loan commitments without impairing any of Urban’s rights under this Agreement.

 

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7.3.2 In addition to the Public Financing described in Section 7.3.1 above, during the Due Diligence Period, PAID shall arrange for the commitment, binding until Closing, for a total tenant improvement allowance of One Million Four Hundred Thousand Dollars ($1,400,000.00), plus an additional amount equal to the estimated costs to be incurred by Urban to commence and complete the internal demolition of the Aphton Space in Building 10, which estimate shall be provided by Urban to PAID during the Due Diligence Period (collectively, the “ Fit-Out Allowance ”). The Fit-Out Allowance shall be paid to Urban in full within ten (10) days after Urban deliveries to PAID a copy of (i) either a temporary or permanent certificate of occupancy (or its equivalent) for Building 10 issued to Urban by the appropriate Governmental Authority; and (ii) an executed certification from Urban’s architect Urban’s general contractor and the City confirming that federal prevailing wages under the Davis-Bacon Act have been paid by the general contractor with respect to work covered by the Fit-Out Allowance; and (iii) AIA Certification Forms 702 and 703 or their equivalent, as to the work which is the subject of the Fit-Out Allowance, a sample of which is attached hereto as Schedule 7.3.2 , executed by Urban’s architect and general contractor, evidencing that One Million Four Hundred Thousand Dollars ($1,400,000.00) of work has been completed.

 

7.3.3 During the Due Diligence Period, PAID shall identify the availability of, if any, and, facilitate and arrange for, grants any of which may then be available through the Commonwealth of Pennsylvania and instrumentalities thereof, the proceeds of which are intended to reimburse a person or entity, in whole or in part, of the costs and expenses which that person or entity actually incurs with respect to the environmental remediation so that Urban may avail itself of such grant after Closing with respect to the Purchased Property and Leased Property.

 

7.4 Extension of Due Diligence Period . Urban shall have the right and option to extend the Due Diligence Period for three (3) successive periods of thirty (30) days each. Urban shall exercise each option by giving notice to PAID no later than ten (10) days prior to the expiration date of the then current Due Diligence Period.

 

7.5 Termination . On or before the last day of the Due Diligence Period, as the same may be extended as provided in Section 7.4 hereof (the “Decision Date”), Urban shall have the

 

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right to terminate this Agreement upon notice to PAID for any reason or no reason, including, without limitation, the procurement of Public Financing as described in Section 7.3.1 hereof and/or Urban’s dissatisfaction with title as described in Section 7.2.4 . If for any reason whatsoever, PAID shall not have actually received Urban’s notice of termination under this Section 7.5 on or before the Decision Date, Urban shall be deemed to have absolutely and irrevocably waived such right of termination and such right of termination shall be of no further force or effect.

 

7.6 Effect of Termination . Upon termination of this Agreement by either PAID or Urban pursuant to any termination rights set forth in this Agreement:

 

7.6.1 The ROE Agreement and any other agreement providing Urban itself or by and through the Urban Representatives with rights to enter upon, use or occupy all or any part of the Property as provided for in this Agreement shall terminate in accordance with the provisions contained therein upon termination of this Agreement.

 

7.6.2 Except for the Surviving Obligations, this Agreement shall be of no further force or effect and neither party hereto shall have any further rights, obligations or liabilities hereunder.

 

7.6.3 Except as a result of a PAID Default (as hereinafter defined), Urban shall promptly deliver to PAID all information provided to Urban by PAID and all information, documents, materials and data that Urban itself or by and through the Urban Representatives discover, obtain or generate in connection with or relating to the Property, to the extent Urban is permitted to deliver such information to PAID.

 

ARTICLE 8

 

CLOSING CONDITIONS

 

8.1 Conditions Precedent to Closing .

 

8.1.1 Urban’s Conditions . The obligation of Urban to purchase and lease the Property in accordance with this Agreement is expressly conditioned on the satisfaction of each of the following conditions at or prior to the Closing:

 

(a) Representations and Warranties . Each of the representations and warranties made by PAID in Article 5 of this Agreement shall be in all material respects true and correct at and as of the Closing Date as though such representations and warranties were made on such date.

 

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(b) Condition of Property; Occupancy . The Purchased Property and the Leased Property shall be in the condition on the Closing Date as required by the provisions of this Agreement, except for damage by casualty (which shall be governed by Article 10 hereof) and condemnation (which shall be governed by Article 10 hereof) and normal wear and tear. At Closing, the Purchased Property and Leased Property shall be free and clear of all leases, and rights and claims of occupancy in favor of third parties, including, but not limited to, Aphton, except for those specific leases which by the provisions of this Agreement are intended to survive.

 

(c) Performance by PAID . Each of the agreements, undertakings and obligations PAID set forth in Article 6 hereof and all other agreements, undertakings and obligations to be performed by PAID pursuant to this Agreement at or prior to Closing shall have been performed, except to the extent waived by Urban in writing.

 

(d) Title Commitment . The Title Company shall have issued to Urban marked-up Owner’s and Leasehold Title Commitments, as well as commitments affirmatively insuring Urban’s right and option to purchase the Option Property, or pro forma title policies evidencing that the Title Company is prepared to issue to Urban, as the sole named insured, an ALTA Form B owner’s and leasehold policies of title insurance (collectively, the “ Title Policies ”) for the Purchased Property, the Leased Property and the Option Property in such amounts as Urban shall determine in its sole and absolute discretion, which amounts shall approximate Urban’s acquisition and improvement costs, insuring title to the Property in Urban, subject only to the Permitted Exceptions and containing such endorsements and affirmative insurance as Urban may require that are available in Pennsylvania. Without limiting the generality of the foregoing, the Title Policies for the Purchased Property, Leased Property and Option Property, shall not contain any exceptions for mechanic’s or materialmen’s liens or the rights of parties in possession (exclusive of parties under Existing Leases having a continuing

 

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right of possession with respect to portions of the Option Property in a manner which is consistent with the provisions of this Agreement applicable thereto).

 

(e) Concurrent Obligations . PAID shall have delivered or caused to be delivered the documents referred to in Section 8.2 hereof to Urban.

 

All of the foregoing conditions precedent set forth in this Section 8.1.1 are for the benefit of Urban and not PAID. Urban may elect, at its sole discretion, to (i) waive any such conditions precedent or, (ii) extend the time for the satisfaction of such conditions for such additional period and upon such conditions as Urban may elect by written notice to PAID, or (iii) terminate this Agreement by written notice of such intent delivered to PAID by the Closing Date, in which event the provisions of Section 7.6 shall apply. No such waiver shall be deemed a waiver of any other or subsequent conditions hereunder.

 

8.1.2 PAID’s Conditions . The obligation of PAID to sell and lease the Property in accordance with this Agreement is expressly conditioned on the satisfaction of each of the following conditions at or prior to the Closing:

 

(a) Representations and Warranties . Each of the representations and warranties made by Urban in Article 5 of this Agreement shall be in all material respects true and correct at and as of the Closing Date as though such representations and warranties were made on such date.

 

(b) Performance by Urban . Each of the agreements, undertakings and obligations of Urban set forth in Article 6 hereof and all other agreements, undertakings and obligations to be performed by Urban pursuant to this Agreement at or prior to Closing shall have been performed, except to the extent waived by PAID in writing.

 

(c) Concurrent Obligations . Urban shall have delivered or cause to be delivered to PAID the Purchase Price and the documents referred to in Section 8.2 hereof.

 

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(d) All of the foregoing conditions precedent set forth in this Section 8.1.2 are for the benefit of PAID and not Urban. PAID may elect, at its sole discretion, to (i) waive any such conditions precedent, or (ii) extend the time for the satisfaction of such conditions for such additional period and upon such conditions as PAID may elect by written notice to Urban, or (iii) terminate this Agreement by written notice of such intent delivered to Urban by the Closing Date, in which event the provisions of Section 7.6 shall apply. No such waiver shall be deemed a waiver of any other or subsequent conditions hereunder

 

8.1.3 Contingencies . PAID and Urban agree that all contingencies, whether set forth in Article 7 or otherwise contained in this Agreement, as of the Closing Date, shall be deemed waived, satisfied and released unless otherwise identified herein as a Surviving Obligation.

 

8.2 Deliveries at Closing .

 

8.2.1 By PAID . At Closing, PAID shall deliver to Urban the following:

 

(a) Deed . The Deed in the form attached as Schedule 7.2.5 , duly executed and acknowledged by PAID.

 

(b) Bill of Sale . If applicable, a duly executed and acknowledged Bill of Sale without warranty, conveying to Urban all of the Personal Property, prepared by Urban’s counsel in form reasonably acceptable to PAID.

 

(c) Miscellaneous Assignment . A duly executed and acknowledged Assignment, without warranty, prepared by Urban’s counsel in form reasonably acceptable to PAID, transferring to Urban all of PAID’s right, title and interest, if any, in and to (i) all assignable warranties and guarantees in respect of the Real Property and the Personal Property; and (ii) all transferable licenses, permits and authorizations of any kind obtained by PAID in connection with the ownership, operation or maintenance of the Purchased Property (the “ Miscellaneous Assignment ”).

 

(d) Right of First Offer . A duly executed and acknowledged counterpart of the ROFO Agreement.

 

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(e) Option to Purchase Agreement . A duly executed and acknowledged counterpart of the Option to Purchase Agreement.

 

(f) Repurchase Agreement . A duly executed and acknowledged counterpart of the Repurchase Agreement (as hereinafter defined).

 

(g) Cooling Tower Easement . A duly executed and acknowledged counterpart of the Cooling Tower Easement, if applicable.

 

(h) Gaming Restriction . Evidence of the Gaming Restriction, if procured.

 

(i) Lease Agreements; Memoranda of Lease . A duly executed counterpart of the lease agreement and a memorandum of lease therefor (in recordable form acceptable to Urban) for each of Building 10, and, if Urban so elects, Building O and/or Building P, in the forms to be attached hereto as Schedule 2.1(a) , 2.1(b) and 2.1(c) , respectively.

 

(j) Reciprocal Agreement . A duly executed and acknowledged counterpart of the Reciprocal Agreement, if applicable.

 

(k) Original Documents . Executed originals of each of the following, to the extent in the possession of or reasonably available to PAID: (i) all certificates of occupancy, licenses, permits, authorizations and approvals issued in connection with the construction and/or operation of the Property; and (ii) all unexpired assignable warranties and guarantees made by or received from any third party with respect to the Property or any part thereof.

 

(l) Title Insurance Requirements . Such documentation as may be required to clear title of liens and encumbrances to be removed by PAID at Closing, including, without limitation, such affidavits of title or other certifications as the Title Company may reasonably require to issue the Title Policy in accordance with this Agreement.

 

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(m) Closing Statement . A closing statement, in form reasonably satisfactory to PAID and Urban, setting forth the Purchase Price and the closing adjustments and prorations, signed by PAID.

 

8.2.2 By Urban . At Closing, Urban shall deliver to PAID the following:

 

(a) Purchase Price . The Purchase Price for the Property.

 

(b) Miscellaneous Assignment . A duly executed and acknowledged counterpart of the Miscellaneous Assignment.

 

(c) Right of First Offer . A duly executed and acknowledged counterpart of the ROFO Agreement.

 

(d) Option to Purchase Agreement . A duly executed and acknowledged counterpart of the Option to Purchase Agreement.

 

(e) Repurchase Agreement . A duly executed and acknowledged counterpart of the Repurchase Agreement.

 

(f) Lease Agreements; Memoranda of Lease . A duly executed counterpart of the lease agreement and a memorandum of lease therefor (in recordable form acceptable to PAID) for each of Building 10, and, if Urban so elects, Building O and/or Building P, in the forms to be attached hereto as Schedule 2.1(a) , 2.1(b) and 2.1(c) , respectively.

 

(g) Reciprocal Agreement . A duly executed and acknowledged counterpart of the Reciprocal Agreement, if applicable.

 

(h) Cooling Tower Easement . A duly executed and acknowledged counterpart of the Cooling Tower Easement, if applicable.

 

(i) Closing Statement . A closing statement, in form reasonably satisfactory to PAID and Urban, setting forth the Purchase Price and the closing adjustments and prorations, signed by Urban.

 

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(j) Title Policy . The Title Company shall deliver to Urban the title policies as required by Section 7.2 hereof.

 

8.2.3 Further Instruments . PAID and Urban shall each execute and deliver such other instruments as are reasonably required to close the purchase and sale of the Property in accordance with the terms hereof.

 

8.2.4 Memoranda of Agreements . Urban reserves the right, in lieu of recording the Repurchase Agreement, to have PAID and Urban execute and deliver a memorandum thereof for recordation purposes.

 

8.3 Closing Adjustments and Expenses .

 

8.3.1 The following shall be apportioned between PAID and Urban at the Closing on the basis of the month, year or other period for which such items are computed, Urban being responsible for all expenses to be assumed by Urban hereunder, and entitled to all income from the Property, attributable to periods from and including the Closing Date, and PAID being responsible for all expenses and entitled to all income from the Property prior to the Closing Date:

 

8.3.2 Utility charges, if any, including electricity, gas, fuel, water and sewer charges.

 

8.3.3 Real estate taxes, if any, for the tax fiscal periods in which the Closing Date occurs.

 

8.3.4 Any and all other properly apportionable charges or obligations of PAID which Urban agrees to assume at Closing which relate to the ordinary cost of operation of the Property.

 

8.3.5 Urban shall be responsible for all realty transfer taxes, if any, payable in connection with the conveyance of the Purchased Property and the leasing of the Leased Property. Urban shall be responsible for all recording costs and title insurance premiums and fees.

 

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8.3.6 PAID shall be responsible for and pay all expenses incurred by PAID, including, without limitation, PAID’s accountants, consultants and attorneys, and other costs and expenses incurred by PAID in connection with this Agreement and either the sale or lease of the Property, whether or not Closing occurs hereunder. PAID shall be responsible for all fees and commissions payable to CB Richard Ellis and the Julien J. Studley Company and any subagents (the “ Broker ”) in connection with sale or lease of the Properties by PAID to Urban pursuant to a separate agreement between Broker and PAID, which agreement shall include a release of both PAID and Urban of any claims for a commission on the part of the McDevitt Company, a copy of such agreement and release are attached hereto as Schedule 8.3.6 . PAID and Urban represent and warrant to each other that the only agents or brokers involved in these transactions have been the Broker and the McDevitt Company, and PAID and Urban each indemnify, defend and hold harmless the other as to any and all claims brought by any other person or entity arising out of a misrepresentation or breach of warranty under this Section 8.3.6 . The indemnity set forth in the prior sentence shall be a Surviving Obligation.

 

8.3.7 Urban shall be responsible for all expenses incurred by Urban, including, without limitation, Urban’s accountants, appraisers, engineers, building inspectors, attorneys, and other costs and expenses incurred by Urban in connection with its Due Diligence and the purchase and lease of the Property, whether or not Closing occurs hereunder.

 

ARTICLE 9

 

POST-CLOSING OBLIGATIONS

 

9.1 PAID’s Post-Closing Obligations . Each of the following shall be a Surviving Obligation (in addition to all others set forth and deemed to be a Surviving Obligation of PAID pursuant to the provisions of this Agreement):

 

9.1.1 Stage I Work . The completion of the Stage I Work as provided by the provisions of this Agreement.

 

9.1.2 Stage II Work . Provided that there is no Urban Post-Closing Default (as hereinafter defined) and PAID has received a definitive funding commitment, PAID shall

 

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proceed with the design of the Stage II Work, and shall complete the Stage II Work promptly and diligently thereafter.

 

9.1.3 Continuous Access . PAID shall provide Urban, its agents, contractors, officers, directors, employees and invitees access, ingress and egress to and from the Properties (a) seven (7) days a week, twenty-four (24) hours a day, through a gated entrance at Broad Street, and (b) through and over 26 ^th Street on the hours and days as set forth in Section 6.1.8(c) hereof.

 

9.1.4 Shuttle Bus Service . PAID, at PAID’s sole cost and expense, shall provide to Urban shuttle bus service between the Pattison Avenue Station of the Broad Street Subway (“ Pattison Avenue Station ”) and a pick-up/drop-off point at the intersection of Broad Street and Kitty Hawk Avenue or Flagship Drive (the “ Bus Stop ”), until such time as the Broad Street Subway may be extended to a point within the PAID Parcel and such subway service is open to the public. The shuttle bus service shall run at the intervals hereinafter provided from 7:30 a.m. to 9:30 p.m. Monday through Friday, exclusive of Holidays (as hereinafter defined), and from 9:00 a.m. to 5:00 p.m. on Holidays, Saturdays and Sundays. The frequency interval on (i) Monday through Friday, excluding Holidays, from 7:30 a.m. to 7:00 p.m., shall be at least once every fifteen (15) minutes, and (ii) Holidays, Saturdays and Sundays, from 9:30 a.m. to 5:00 p.m., shall be at least once every one-half (1/2) hour. For purposes of this Section 9.1.4 , “ Holidays ” shall be New Year’s Day, Christmas, Easter, Fourth of July and Thanksgiving. If the Broad Street Subway ceases operations for reasons other than labor strikes or Acts of God, then PAID will use its best efforts to evaluate alternative transit connections to the PAID Parcel, subject to PAID’s determination of the feasibility and funding therefor, and the receipt of the funding therefor. On or before the later of the date which is ninety (90) days after the Closing Date, or May 31, 2005, PAID, at its sole cost and expense, shall erect a passenger shelter at the Bus Stop consistent with those bus shelters utilized by SEPTA on the PAID Parcel. At any time, PAID may propose to Urban an alternative to maintaining the aforesaid shuttle bus service on Saturdays, Sundays and/or Holidays, which alternative shall be subject to Urban’s prior approval, which approval may be granted or withheld in Urban’s sole and absolute discretion.

 

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9.1.5 Enforcement . PAID, at its sole cost and expense, shall exercise and enforce all of its rights and privileges (a) as landlord, under any leases with third parties occupying space within any buildings or structures within the HCD, including the Existing Leases, including all subsequent amendments, modifications or other agreements pertaining thereto specifically contemplated by this Agreement, such as the termination, eviction and recapture of possession provisions of the Aphton Lease, the Moran Towing Lease and the River Associates Lease Amendment to be executed and delivered pursuant to the River Associates relocation, and (b) as owner, under the CCRs, to ensure compliance with the CCRs.

 

9.1.6 Common Areas Obligations . PAID covenants and agrees to operate and maintain the Common Areas in good order, condition and repair, and in a safe, secure, well-lit and clean condition, and to provide the common services to the Properties and to the other properties within the PAID Parcel, all in the most cost-effective manner that is reasonable and consistent with the needs of the tenants and occupants of the PAID Parcel, and at least equivalent to the standards at other first-class office campuses located within the greater Philadelphia geographic area (the “ Common Areas Obligations ”).

 

9.2 Urban’s Post-Closing Obligations . Each of the following shall be a Surviving Obligation (in addition to all others set forth and deemed to be a Surviving Obligation of Urban pursuant to the provisions of this Agreement):

 

9.2.1 Plans . Urban, at its sole cost and expense, shall complete any Plans not completed during the Due Diligence Period in accordance with the provisions of Section 6.2.2 .

 

9.2.2 Construction . Promptly after Closing, Urban shall cause the commencement of the fit-out of Building 10 and the construction relating to the Purchased Property in accordance with the provisions of Section 6 and otherwise in accordance with Applicable Laws.

 

9.2.3 Occupancy . Urban shall occupy each of the Properties upon the completion of construction of each such Property and the issuance to Urban of either a temporary or permanent certificate of occupancy (or its equivalent) with respect thereto. After such initial

 

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occupancy, Urban’s only obligation in this regard shall be to ensure that each such Property is not left vacant for a period of twenty-four (24) consecutive months.

 

9.3 Time of the Essence . Time shall be of the essence in the performance of each and every Surviving Obligation to be commenced and completed by PAID and Urban Post-Closing.

 

ARTICLE 10

 

CASUALTY AND CONDEMNATION

 

10.1 Casualty .

 

10.1.1 If prior to the Closing there shall be any loss, damage or destruction to the Purchased Property and/or the Leased Property (except for Building 10 which shall be governed by Section 10.1.3 below) by fire or other casualty, PAID shall give prompt notice thereof to Urban. Urban shall inspect such damaged Purchased Property and/or Leased Property, as applicable, promptly after receipt of such notice. Within ten (10) days after the date of PAID’s notice, Urban may elect to terminate this Agreement by giving PAID written notice to that effect. In such event, the provisions of Section 7.6 hereof shall govern.

 

10.1.2 If prior to Closing there shall be any loss, damage or destruction to the Purchased Property and/or the Leased Property (except for Building 10 which shall be governed by Section 10.1.4 below) by fire or other casualty, and this Agreement is not terminated as provided in Section 10.1.1 , then Urban shall proceed to Closing and PAID shall have no obligation to repair or restore the Purchased Property and/or the Leased Property, as applicable.

 

10.1.3 If prior to Closing there shall be any loss, damage or destruction to Building 10, by fire or other casualty, PAID shall give prompt notice thereof to Urban. Urban shall inspect Building 10 promptly after receipt of such notice. Within ten (10) days after the date of PAID’s notice, Urban may elect to terminate this Agreement by giving PAID written notice to that effect. In such event, the provisions of Section 7.6 hereof shall govern.

 

10.1.4 If prior to Closing there shall be any loss, damage or destruction to Building 10 by fire or other casualty, and this Agreement is not terminated as provided in Section 10.1.3 , then Urban shall proceed to Closing and PAID shall have no obligation to repair

 

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or restore Building 10. PAID shall (a) pay over to Urban the amount of the insurance proceeds, if any, collected by or on behalf of PAID with respect to Building 10, and (b) assign, transfer and set over to Urban by instrument in form in substance reasonably satisfactory to Urban, all of PAID’s right, title and interest in and to any insurance proceeds that are uncollected and that may be paid in respect of Building 10 related to such loss, damage or destruction.

 

10.2 Condemnation .

 

10.2.1 If prior to Closing condemnation or eminent domain proceedings are commenced against all or any part of the Purchased Property and/or Leased Property, PAID shall give prompt notice thereof to Urban. Urban shall inspect such Purchased Property and/or Leased Property, as applicable, promptly after receipt of such notice. Within ten (10) days after the date of PAID’s notice, Urban may elect to terminate this Agreement by giving PAID written notice to that effect. In such event, the provisions of Section 7.6 hereof shall govern.

 

10.2.2 If prior to Closing condemnation or eminent domain proceedings are commenced against all or any part of the Purchased Property and/or Leased Property, and this Agreement is not terminated as provided in Section 10.2.1 , then Urban shall proceed to Closing and PAID shall have no obligation to repair or restore the Purchased Property and/or Leased Property affected by such taking. PAID shall (a) pay over to Urban the amount of the condemnation award, if any, collected by or on behalf of PAID with respect to such taking, and (b) assign, transfer and set over to Urban by instrument in form in substance reasonably satisfactory to Urban, all of PAID’s right, title and interest in and to any condemnation awards that are uncollected and that may be paid in respect of any such taking.

 

ARTICLE 11

 

DEFAULTS AND REMEDIES; REPURCHASE OPTION

 

11.1 Default by Urban Prior to Closing . If Urban either fails to keep, observe and perform any terms, covenants, conditions, or provisions of this Agreement or to complete the Closing in accordance with the provisions of this Agreement for any reason whatsoever (an “ Urban Default ”), PAID shall be entitled, as its sole and exclusive remedy for the Urban

 

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Default, to terminate this Agreement by written notice to Urban in which event the provisions of Section 7.6 shall apply.

 

11.2 Default by PAID Prior to Closing . If PAID either fails to keep, observe, and perform any terms, covenants, conditions, or provisions of this Agreement or to complete the Closing in accordance with the provisions of this Agreement (a “ PAID Default ”), Urban shall be entitled, at its sole and exclusive remedy for the PAID Default, to either (a) terminate this Agreement by written notice to PAID which event the provisions of Section 7.6 shall apply, or (b) seek specific performance of PAID’s obligation to consummate the Closing under this Agreement, provided that Urban must commence such an action for specific performance within thirty (30) days after the Closing Date, failing which Urban shall be deemed to have absolutely and irrevocably waived and relinquished its right to commence such an action for specific performance.

 

11.3 Waiver of Other Rights and Remedies . Unless otherwise expressly set forth in this Agreement, Urban and PAID hereby expressly waive, relinquish and release all claims, whether in contract or tort, and any other rights or remedies available to them at law, in equity or otherwise by reason of a PAID Default or an Urban Default hereunder, including, but not limited to, the right to seek actual and consequential damages. Urban and PAID hereby expressly waive, relinquish and release all claims, whether in contract or tort, and any other rights or remedies available to them at law, in equity or otherwise by reason of any other breach of a representation, warranty or covenant contained in this Agreement resulting in the non-consummation of Closing.

 

11.4 Default by Urban After Closing . If after the Closing Date Urban breaches a Surviving Obligation, PAID shall give written notice to Urban specifying the nature thereof, and Urban shall have sixty (60) days after Urban’s receipt of PAID’s notice to effectuate such cure, unless a cure cannot be effectuated within such sixty (60) day period, in which case Urban shall have such additional time (not to exceed 120 days) as necessary to effectuate a cure so long as Urban commences a cure within such sixty (60) day period and prosecutes the same to completion. If Urban fails to effectuate a cure therefor within the time period provided for such purpose (as the same may be extended as aforesaid), the same shall be deemed an “ Urban Post-Closing Default ”. PAID shall be entitled, at its sole election, to commence in a court of

 

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competent jurisdiction enforcement proceedings with respect to an Urban Post-Closing Default, as its sole remedy for such Urban Post-Closing Default, except if the Urban Post-Closing Default pertains to Urban’s obligations under Section 9.2.3 with respect to a Purchased Property in which event PAID may repurchase any or all Property as to which such specific Urban Post-Closing Default applies for their then fair market value, as determined by appraisal, all pursuant to an agreement containing the business terms set forth herein and such other terms, covenants, conditions and provisions as may be agreed upon by PAID and Urban during the Due Diligence Period (the “ Repurchase Agreement ”) to be attached hereto as Schedule 11.4 , and to terminate the leases for the Leased Property in accordance with the provisions contained therein.

 

11.5 Default by PAID After Closing . If after the Closing Date PAID breaches a Surviving Obligation, Urban shall give written notice to PAID specifying the nature thereof, and PAID shall have sixty (60) days after PAID’s receipt of Urban’s notice to effectuate such cure, unless a cure cannot be effectuated within such sixty (60) day period, in which case PAID shall have such additional time (not to exceed 120 days) as necessary to effectuate a cure so long as PAID commences a cure within such sixty (60) day period and prosecutes the same to completion. If PAID fails to effectuate a cure therefor within the time period provided for such purpose (as the same may be extended as aforesaid), the same shall be deemed an “ PAID Post-Closing Default ”. Urban shall be entitled, at its sole election and, except for the set-off rights hereinafter set forth, as its sole remedy for such PAID Post-Closing Default, to seek specific performance of PAID’s obligations and responsibilities pursuant to the terms contained in this Agreement. Notwithstanding the foregoing, in addition to the right of specific performance, in the event of a PAID Post-Closing Default which would adversely affect the operation of Urban’s business in or from the Properties, Urban may elect:

 

(a) any rights or remedies set forth in any its leases for the Leased Property, in the ROFO Agreement, in the Option to Purchase Agreement and in the Reciprocal Agreement, and

 

(b) to cure the PAID Post-Closing Default and, upon presentation of reasonable evidence that Urban has expended sums to cure the same and otherwise has incurred damages and/or expenses as a result of the PAID Post-Closing Default, to deduct such damages

 

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and expenses from the base rent to become due under any lease for the Leased Property or on account of any purchase price payable under the ROFO Agreement and/or the Option to Purchase Agreement, at Urban’s election, until Urban has been reimbursed in full therefor. PAID Post-Closing Defaults which would adversely affect the operation of Urban’s business include the completion of Stage I Work in accordance with the provisions of this Agreement; the completion of all utility connections, and the maintenance, repair and replacement, as necessary, of all utilities lines to the point of connection to each Building; the failure to provide shuttle bus service as provided by this Agreement; the failure to keep, perform and observe its obligations, as amended or modified pursuant to the provisions of this Agreement, under the Existing Leases; the failure to cause River Associates, Inc. to timely vacate and relocate as provided by this Agreement ( subject , however , to the cumulative rent credits as hereinabove provided as a result thereof); the failure to cause Moran Towing Corporation to timely vacate as provided by this Agreement ( subject , however , to the cumulative rent credits as hereinabove provided as a result thereof); the failure to deliver possession of the Aphton Space as provided by this Agreement ( subject , however , to the cumulative rent credits as hereinabove provided for a delay in delivery of such possession); the failure to pay when due any sums owed by PAID to Urban under this Agreement or under any other agreement contemplated hereby; failure to continue to provide access, ingress and egress over the 26 ^th Street corridor as the same is to be opened as part of Stage I Work; and the failure to keep, observe and perform the Common Areas Obligations. Notwithstanding the forgoing, Urban recognizes that as to a PAID Post-Closing Default relating to the aforesaid completion of all utility connections and the maintenance, repair and replacement of utilities lines, and keeping, performing and observing obligations under the Existing Leases, Urban shall not have the remedy of self-help to cure the same, and its rights and remedies shall only be those rights and remedies provided at law or in equity, including an action for damages and/or specific performance. The rights and remedies in favor of Urban under this Agreement and the other agreements contemplated hereby shall be cumulative and consecutive, any presumption, at law or in equity, or any provision of this Agreement to the contrary notwithstanding.

 

(c) PAID acknowledges and agrees that the various rent credits or set-off rights to which Urban is entitled under this Agreement and under any of the other agreements contemplated hereby to be applied against base rent due and payable under the lease agreement

 

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for Building 10 are intended to be cumulative and may be applied from and after the date that the obligation to base rent commences therefor, and that such applications are intended to continue thereunder until Urban is reimbursed, in full, therefor. PAID further acknowledges and agrees that, to the extent Urban is entitled to rent credits or set-off rights under this Agreement and under any of the other agreements contemplated hereby, and the base rent due and payable under the lease agreement for Building 10 is insufficient to reimburse Urban, in full, for such sums, Urban may set-off the remaining sums against the purchase prices for the Option Property and/or the ROFO Property, in addition to any and all collection rights and remedies available to Urban at law or in equity with respect thereto, so that Urban is reimbursed, in full, therefor.

 

11.6 Waiver of Consequential Damages . Urban and PAID hereby expressly waive, relinquish and release all claims for consequential damages by reason of a PAID Post-Closing Default or an Urban Post Closing Default, anything at law or in equity to the contrary notwithstanding.

 

ARTICLE 12

 

MISCELLANEOUS

 

12.1 Notices . Any notice, request, consent, demand or other communication required or permitted to be given under this Agreement shall be in writing (whether or not the specific provision of this Agreement provides that the same must be written) and given by next business day delivery service with next business day delivery charges paid by sender or by United States mail, registered or certified, with postage prepaid and return receipt required. Notices shall be deemed properly given for purposes of this Agreement one business day after deposit with a next business day delivery service, or three (3) business days after delivery to the United States Postal Service, or otherwise upon actual receipt. Such notices and communications shall be sent to the parties at the following addresses (or to such other or further addresses as the parties may designate by like notice similarly sent):

 

 

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12.2 Survival . Any and all obligations of this Agreement which, by its or their express terms are intended to survive or which are expected to be complied with or performed after the Closing Date and delivery of the Deed are hereinafter collectively referred to as “ Surviving Obligations ”. Any express statement of survival contained in any section of this Agreement shall not be construed to imply the survival of any other section of this Agreement. None of the Surviving Obligations of this Agreement shall be deemed or are intended to be merged by reason of any subsequent deed, and any subsequent deed which shall be recorded shall not be deemed to affect or impair the Surviving Obligations under this Agreement. The enforcement of any Surviving Obligation shall be by litigation in accordance with the provisions of Section 12.7 hereof, except and to the extent the provisions of this Agreement specifically provide Urban with rent credits, the right to cure or self help, and the right to set off damages; provided , however , the exercise of any of such rights shall not preclude PAID from challenging the same by litigation in a court of competent jurisdiction.

 

12.3 Entire Agreement . This Agreement and the Exhibits and Schedules attached hereto constitute the entire agreement between the parties with respect to the acquisition, leasing and development of the Property and supersede all prior agreements and understandings between the parties hereto relating to the subject matter hereof.

 

12.4 Integration; Interpretation . The Background provisions of this Agreement are hereby incorporated by reference as if fully set forth herein. This Agreement constitutes the entire understanding between the parties hereto and the parties shall not be bound by any prior agreements, understandings or conditions respecting the subject matter hereof other than those expressly set forth and stipulated in this Agreement.

 

12.5 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject to the following:

 

12.5.1 Without the necessity of obtaining PAID’s prior consent, Urban may assign this Agreement to assignees who are Affiliates (as hereinafter defined) of Urban or any non-Affiliate which is a governmental or quasi-governmental authority providing all or some of the Public Financing to Urban if such assignment is a condition or requirement thereof. However, Urban shall promptly notify PAID of any such assignment and no such assignment

 

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shall relieve Urban of its obligations hereunder. In addition, Urban, in conjunction with either the completion of Closing or a closing with respect to the Option Property, the ROFO Property and any of the Purchased Property, and/or in conjunction with the leasing of any of the Leased Property, may name nominees which are Affiliates to either take title thereto or to hold the leasehold interest therein. For the purposes of this Section, an “Affiliate” shall mean any entity (a) into or with which Urban may be merged or consolidated, (b) which is controlled by, controls, or is under common control of or with Urban, or (c) which acquires or controls the majority of the assets of Urban. For purposes of this definition, the terms “controlled by,” “controls” or “under common control with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of Urban, whether through ownership, legally or beneficially, of voting securities, by contract or otherwise.

 

12.5.2 Except as set forth in Section 12.5.1 above, Urban shall not, directly or indirectly, assign or attempt to assign all or any part of, or any rights Urban may have in, this Agreement (whether by sale, assignment, or transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceedings), without PAID’s prior written consent, which may be granted or withheld in PAID’s sole discretion. Any assignment which requires PAID’s consent which is completed without PAID’s prior written consent shall be deemed to be a violation of this Agreement. Any attempted assignment made in violation of this Agreement which requires PAID’s consent shall automatically constitute an Urban Default under this Agreement.

 

12.5.3 PAID, except for a transfer to a Governmental Authority for which no consent is needed, shall not directly or indirectly, assign or attempt to assign all or any part of, or any rights or obligations PAID may have in this Agreement (whether by sale, assignment, or transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceedings), without Urban’s prior written consent, which consent may be withheld in Urban’s reasonable discretion if such assignment, sale or transfer would materially, adversely effect any of the rights or benefits in favor of Urban under this Agreement or any other document or agreement contemplated hereby.

 

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12.6 Time of Essence . Time is of the essence of this Agreement. In the event the last day permitted for the performance of any act required or permitted under this Agreement falls on a day that is not a business day, the time for such performance shall be extended to the next succeeding business day. For purposes of this Agreement, a “business day” is a day other than a Saturday, Sunday or legal holiday of the United States or the Commonwealth of Pennsylvania.

 

12.7 Governing Law . This Agreement is being executed, delivered and is intended to be performed in Philadelphia County, Pennsylvania and the substantive laws of the Commonwealth of Pennsylvania will govern the validity, construction, interpretation and enforcement of this Agreement. The parties consent to the venue and jurisdiction of any federal or state trial or appellate courts of Philadelphia County, Pennsylvania or the Eastern District of Pennsylvania in any action brought to enforce the terms of this Agreement. The parties irrevocably and unconditionally submit to the jurisdiction (both subject matter and personal) of any such courts and irrevocably and unconditionally waive: (a) any objection any party might now or hereafter have to the venue in any such courts; and (b) any claim that any action or proceeding brought in any such courts has been brought in an inconvenient forum.

 

12.8 Captions . The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof.

 

12.9 Amendments . This Agreement may be amended or modified only by a written instrument executed by PAID and Urban.

 

12.10 Counterparts; Facsimile Delivery . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties hereto. Delivery of an executed counterpart of this Agreement by facsimile shall have the same binding effect as delivery of an executed original.

 

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12.11 No Recording . Neither this Agreement nor any memorandum or assignment hereof shall be filed in any public place of record. If recorded, such recording shall not constitute constructive or other notice to any third party. The recording or attempt to record this Agreement or any memorandum or assignment hereof by or on behalf of Urban shall constitute a Urban Default.

 

12.12 No Joint Venture . Nothing contained in this Agreement will make or will be construed to make the parties hereto partners or joint venturers with each other, it being understood and agreed that the only relationship between PAID and Urban hereunder is that of buyer and seller. Neither will anything in this Agreement render or be construed to render either of the parties hereto liable to any third party for debts or obligations of the other party hereto.

 

12.13 Limitation of Liability . Anything in Section 11.5 hereof to the contrary notwithstanding, no official, officer, director, shareholder, trustee or employee of PAID or of its agent, the PIDC, shall have any liability, personal or otherwise, with respect to this Agreement, any document or instrument delivered by PAID or PIDC, or the transactions contemplated thereby, nor shall the property of any such person or entity be subject to attachment, levy, execution or other judicial process (except as permitted by the following sentence). Any liability of PAID (or any of its officials, officers, shareholders, trustees, directors, agents, employees, representatives, successors and assigns) under this Agreement shall be enforceable solely out of PAID’s interests in the Properties, it being specifically understood that there shall be no recourse against any other assets, or any personal liability, of PAID, or of PIDC, or any official, officer, director, shareholder, trustee or employee of PAID, or of PIDC. Without in any way limiting the generality of the foregoing provisions of this Section 12.13 , nothing contained herein shall waive or amend any defense or immunity which PAID, or PIDC, its officials, officers, directors, shareholders, trustees or employees may have under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541, et seq ., or any similar or comparable local, state or federal law or statute. The provisions of this Section 12.13 are deemed to be personal to PAID, shall not run with the land, and shall terminate and be of no further force and effect upon the sale, transfer or other conveyance of any of PAID’s interest in the Properties to other than a Governmental Authority (it being understood that such Governmental Authority as the successor of PAID, may avail itself of the limitation of liability set forth in this Section 12.13 to the same extent as

 

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available hereunder to PAID). The provisions of this Section 12.13 are not intended to abrogate any of Urban’s remedies specifically enumerated in this Agreement.

 

12.14 No Waiver . The failure of either party hereto to insist in any one or more instances upon strict performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or a relinquishment of that party’s rights to the future performance of any such terms, covenants, or conditions by the other party, in accordance with the terms hereof.

 

12.15 Severability . If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties hereto shall be relieved of all obligations under that provision. The remainder of this Agreement shall remain enforceable to the fullest extent permitted by law.

 

12.16 Attorney’s Fees . If either PAID or Urban shall institute any action or proceeding against the other relating to any of the terms, covenants, conditions or provisions of this Agreement, or if there occurs any default by either PAID or Urban hereunder, the unsuccessful party in such action or proceeding shall reimburse the successful party for reasonable attorney’s fees and other costs and expenses incurred therein by the successful party, including fees, costs and expenses incurred in any appellant proceeding. The parties hereto agree that a provision similar to the foregoing with respect to attorney’s fees, costs and expenses shall be included in each of the lease agreements for the Leased Property in the ROFO Agreement, and in the Option to Purchase Agreement, and in any other agreement contemplated hereunder and executed and delivered by PAID and Urban pursuant hereto, and further agree that in any action or proceeding their prayers for relief shall include a plea for the awarding of attorney’s fees, costs, and expenses in a manner consistent with the provisions of this Section 12.16.

 

12.17 Further Assurances . After Closing, PAID and Urban shall each reasonably cooperate with the other and shall execute and deliver such instruments and documents as may be necessary in order to fully carry out the intent and purposes of the transactions contemplated by this Agreement.

 

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12.18 Waiver of Tender . The parties hereto agree that the formal tender of the Purchase Price and of the Deed are hereby waived.

 

(next page is signature page)

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

 

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Schedule 2.1

 

PAID FORM OF LEASE

 

GENERAL TERMS AND CONDITIONS TO

 

AGREEMENT OF LEASE OF

 

COMMERCIAL REAL ESTATE

 

Philadelphia Naval Business Center

 

Building/Unit:

Street Address:

 

Philadelphia, PA 19112

TABLE OF CONTENTS

 

 

 

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GENERAL TERMS AND CONDITIONS TO

LEASE OF COMMERCIAL REAL ESTATE

 

Building/Unit:

Street Address:

Philadelphia, PA 19112

Philadelphia Naval Business Center

 

General Terms and Conditions to Lease (“Lease”) is executed as of                  ,              between PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEVELOPMENT, a body politic and corporate existing under the laws of the Commonwealth of Pennsylvania , as Landlord (“Landlord”) and                          , a                                          with a principal place of business at                      ,                      ,                   , as Tenant (“Tenant”). This Lease is based upon the following:

 

ARTICLE I

TERM

 

SECTION 1.01 Incorporation of Terms

 

The capitalized defined terms set forth in the attached Agreement of Lease are incorporated herein by reference.

 

SECTION 1.02 Commencement and Expiration of Term

 

(a) The Term of this Lease shall, except as otherwise specified herein, commence on the Commencement Date.

 

(b) Unless shortened, extended, or otherwise revised pursuant to the provisions hereof or as a matter of law, this Lease will end on the Termination Date.

 

(c) “Term” shall include any and all properly effectuated extension terms.

 

(d) All references herein to “month” or “months” shall, unless the context requires otherwise, refer to calendar months.

 

ARTICLE II

RENT

 

SECTION 2.01 Base Rent

 

During the Term, beginning on the Rent Commencement Date, Tenant shall pay, without deduction, setoff or counterclaim, Landlord the Base Rent and in advance on or before the first day of each calendar month.

 

SECTION 2.02 Additional Rent

 

“Additional Rent” shall mean all the sums required to be paid by Tenant under the terms and conditions of this Lease, including, but not limited to, the following items (regardless of whether or not the amount at issue is specifically defined as Additional Rent when it appears in this Lease): (i) Tenant’s Expense Share, as defined in Section 9.01, (ii) Tenant’s share of Taxes, (iii) any applicable payments in lieu of taxes, and (iv) payments for utility services, all of which shall be paid in advance, without deduction, setoff or counterclaim, on or before the first day of each calendar month.

 

SECTION 2.03 Rent

 

(a) Each monthly installment of Base Rent and Additional Rent shall be due and payable on or before the date specified herein for payment, at the address set forth in the Agreement of Lease or at such other place as may be designated by Landlord from time to time, without prior notice or demand and without deduction, counterclaim, or setoff.

 

(b) In the event any Rent due from Tenant under the terms of this Lease is not paid to Landlord within five (5) days of the due date, Tenant shall also pay as Additional Rent a service, handling and late charge equal to five (5%) per cent of the total payment then due. All payments of Rent not paid within thirty (30) days of the due date shall bear interest in the amount of twelve (12%) percent per annum from the date payment was due to the date of payment. These provisions shall not prevent the Landlord from exercising any other right or remedy herein provided in the event of any default by Tenant.

 

ARTICLE III

IMPROVEMENTS

 

SECTION 3.01 Landlord’s Construction; Delays

 

(a) If Landlord is to perform any construction or renovation (“Landlord’s Work”) on the Leased Premises, the terms and conditions of Landlord’s Work shall be set forth in a rider to be attached hereto and incorporated herein.

 

(b) In the event Landlord cannot deliver possession of the Leased Premises, for any reason, on or before the Commencement Date (as initially scheduled), (i) Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, but (ii) the Commencement Date and the Termination Date shall automatically be extended by a period of time equal to any portion (or to the total of any portions) of the delay that is attributable solely to the acts or omissions of Landlord (and the validity of this Lease and the terms and conditions of this Lease shall otherwise be unaffected and the Lease shall continue in full force and effect). If Landlord is unable to deliver possession of the Leased Premises to Tenant within one (1) year after the date of execution of this Lease, either party shall have the right and option at any time thereafter to cancel this Lease, and in such event this Lease shall be terminated and any money or security deposited with Landlord by or on behalf of Tenant pursuant to this Lease shall be returned to Tenant and neither party shall have any other liability to the other hereunder or as a result of such termination.

 

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(c) On the Commencement Date of the Term of this Lease, it shall be presumed that all work theretofore performed by or on behalf of Landlord was satisfactorily performed in accordance with, and meeting the requirements of, this Lease, unless within sixty (60) days thereafter Tenant shall notify Landlord, in writing, of the specific deficiencies. The foregoing presumption shall not apply, however, to (i) work that was required but not actually completed by Landlord, which Landlord agrees it shall complete with reasonable speed and diligence (and as to such work the aforesaid sixty (60) day period shall be measured from the date of completion), or (ii) latent defects in such work which could not reasonably have been discovered within said sixty (60) day period, provided Tenant notifies Landlord thereof within sixty (60) days after discovery. Landlord will promptly undertake and diligently prosecute the correction of any defects or deficiencies of which it is notified within the required period. There shall be no abatement or reduction of Rent during the time period or periods in which Tenant identifies and Landlord corrects or otherwise cures such deficiencies and/or “punch list” items.

 

SECTION 3.02 Tenant’s Improvements; Plans

 

(a) If Tenant is required or intends to perform any construction, renovation, or demolition (“Tenant’s Work”), the terms and conditions of the Tenant’s Work will be set forth in a rider (“Tenant’s Work Rider”) attached hereto and incorporated herein.

 

(b) Prior to the commencement of Tenant’s Work at the Leased Premises, Tenant, at Tenant’s cost and expense, shall deliver to Landlord, for Landlord’s written approval, detailed plans and specifications (“Plans and Specifications”), including but not limited to plans and specifications that establish to Landlord’s satisfaction that there shall be no unnecessary or unnecessarily prolonged disruption of any utility service or of telephone service, for all Tenant’s Work. The Plans and Specifications shall be prepared, delivered and approved in accordance with the requirements set forth on the Tenant Work Rider.

 

(c) Without limiting the scope of the foregoing provisions of this Section 3.02, Tenant shall obtain (and deliver satisfactory evidence thereof to Landlord), prior to commencing the Tenant’s Work, all necessary licenses and permits from (i) the Department of Licenses and Inspections of the City of Philadelphia, (ii) any other local, state and/or federal agencies or authorities from whom such licenses and/or permits are required by law, and (iii) any utility provider(s).

 

(d) The Tenant’s Work shall comply with any and all rules and regulations established from time to time by the Pennsylvania Underwriter’s Association.

 

(e) Without limiting the scope of the foregoing provisions of this Section 3.02, the Tenant’s Work (i) shall comply with all applicable local, state or federal laws, (ii) shall comply with any other reasonable requirements (whether such requirements are already in effect or are imposed thereafter) of Landlord, (iii) shall be performed by qualified and reputable contractors and subcontractors, and (iv) shall be completed in a good and workmanlike manner in accordance with sound engineering and architectural procedures.

 

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(f) Tenant shall not construct or make, and Tenant shall not permit its assigns to construct or make, any substantial alterations, additions, or improvements to or installations upon, and Tenant shall not otherwise modify or alter the Leased Premises, in any way that may adversely affect the clean-up, human health, the environment, or the historical character thereof (all in compliance with the national and state historic preservation laws) without the prior written consent of Landlord and of all applicable local, state and federal historic-preservation authorities. Such consent may be conditioned upon Tenant providing Landlord and/or one or more of such historic-preservation authorities with one or more of the following: (i) a satisfactory performance and payment bond, (ii) written approval of any “Remedial Project Manager” who has responsibility for the work, and (iii) other requirements of Landlord and/or one or more of such historic-preservation authorities.

 

ARTICLE IV

MECHANICS’ LIENS

 

SECTION 4.01 Mechanics’ Liens

 

(a) Tenant shall promptly pay any contractors and materialmen who supply labor, work, or materials to Tenant at the Leased Premises in order to avoid the possibility of a lien attaching to the Leased Premises, the Building, or PNBC. Tenant shall take all steps permitted by law in order to avoid the imposition of any mechanic’s, laborer’s, or materialman’s lien upon the Leased Premises, the Building, or PNBC. Should any such lien or notice of lien be filed, Tenant shall bond against or discharge the same within fifteen business days after the lien or claim is filed or within fifteen business days after notice of any lien or claim has been issued, whichever is sooner, regardless of the validity of such lien or claim, and shall immediately commence steps to obtain such bond or discharge such lien. Nothing in this Lease is intended to authorize Tenant to do or cause any work or labor to be done or any materials to be supplied for the account of Landlord, and any such work or labor shall be solely for Tenant’s account and at Tenant’s risk and expense.

 

(b) Without limiting the scope of the above provisions in this Section 4.01, Tenant shall take all of the following actions:

 

(i) record and index with the Prothonotary and the Department of Records of Philadelphia, in compliance with the lien-waiver provisions of Pennsylvania’s mechanics-lien law, 49 Pa. Stat. § § 1401 et. seq., such recordation to be completed at least eleven (11) days before the commencement of any work (including but not limited to original construction, demolition, alteration, and repair), a complete and unconditional waiver of all rights that any and all contractors and/or any and all subcontractors (i.e., contractors of Tenant’s contractors, subcontractors of Tenant’s contractors, etc.) would otherwise have or would otherwise obtain with regard to such work,

 

(ii) include in any verbal or written contract with all contractors retained for such work a complete disclosure of such waiver and of the fact that such waiver binds all subcontractors of such contractors, and

 

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(iii) require that all such contractors disclose to all subcontractors whom they engage, before such subcontractors commence work, the existence of such waivers.

 

ARTICLE V

USE; CONDUCT OF BUSINESS BY TENANT

 

SECTION 5.01 Use of Leased Premises

 

(a) Tenant shall use and occupy the Leased Premises only for the Permitted Use. Permitted Use means                                      .

 

(b) Tenant acknowledges and agrees that the Permitted Use of the Leased Premises is not intended to be an exclusive use and Landlord may permit other tenants of PNBC to use other portions of PNBC for the same or similar use.

 

(c) Tenant shall, at all times during the Term, properly secure the Leased Premises in a manner so as to prevent entry by any unauthorized persons or entities.

 

SECTION 5.02 Rules and Regulations

 

Tenant shall observe and comply with all the rules and regulations and Policies and Procedures (collectively, “Rules”) of the PNBC, whether the Rules are now in force or whether they are adopted or otherwise implemented hereafter, as if the Rules were contained herein as covenants. Landlord reserves the right from time to time to amend or supplement the Rules and to adopt and promulgate additional Rules applicable to the Leased Premises, the Building and PNBC. Notice of additional Rules, and amendments and supplements, if any, shall be given to Tenant. Tenant agrees to thereupon comply with and observe all such Rules, as amended and supplemented, provided the same shall apply to Tenant in a reasonable and non-discriminatory manner. Notwithstanding the foregoing, Landlord agrees that it will not implement any rule or regulation or policy or procedure which would adversely affect or materially restrict Tenant’s use of the Leased Premises for the Permitted Use.

 

SECTION 5.03 Declarations of Covenants, Conditions and Restrictions

 

Tenant shall observe and comply with all terms and conditions of any “Reciprocal Easement Agreements” and any “Declaration of Covenants, Conditions and Restrictions” that have been implemented or that are implemented hereafter with regard to PNBC. Landlord may from time to time amend or supplement such Declaration (as so amended, the “Declaration”). Notice of the Declaration and any amendments and supplements shall be given to Tenant. Tenant agrees thereupon to comply with and observe the Declaration, provided the Declaration shall (a) apply to Tenant in a reasonable and non-discriminatory manner and (b) not adversely or materially restrict Tenant’s use of the Leased Premises. This Lease is also subject to all outstanding easements and rights of way for location of any type of facility over, across, in, and upon PNBC (including the Leased Premises) or any portion thereof granted by or reserved to the United States of America acting through the Department of Navy (“Government”).

 

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SECTION 5.04 Compliance with Laws

 

(a) Tenant shall comply with all laws, rules, regulations, guidelines, policies, orders, or ordinances of any governmental authorities with respect to this Lease and the use, occupation, or improvement of the Leased Premises (“Applicable Law”). Tenant, at Tenant’s expense, shall secure and keep in force all permits, licenses, and approvals from all applicable local, state and federal authorities (including but not limited to the Department of Licenses and Inspections of the City of Philadelphia) required for Tenant’s use, occupation, or improvement of the Leased Premises. In addition, Tenant shall also comply with all recommendations of the Association of Fire Underwriters, Factory Mutual Insurance Companies, the Insurance Services Organization, or other similar body establishing standards for fire-insurance ratings with respect to the use, occupancy, or improvement of the Leased Premises by Tenant.

 

(b) Tenant agrees to pay upon demand, as Additional Rent under this Lease, any increase in the amount of insurance premium payable by Landlord for Landlord’s insurance related to PNBC or the Building over and above the rate now in force that may be caused by Tenant’s use or occupancy of the Leased Premises, or any act, omission, or negligence of Tenant, its agents, employees, contractors, or invitees.

 

ARTICLE VI

SECURITY DEPOSIT AND UTILITY DEPOSIT

 

SECTION 6.01 Amount of Deposit

 

Contemporaneously with the execution of this Lease, Tenant has deposited with Landlord the security deposit in the form and amount stated in the Agreement of Lease (the “Security Deposit”), receipt of which Landlord hereby acknowledges. The Security Deposit shall be held by Landlord as security for the full and faithful performance by Tenant of all of the terms, covenants, and conditions of this Lease to be kept by Tenant and performed during the term hereof. Tenant shall not be entitled to any interest on the Security Deposit. Landlord shall not be obligated to hold the Security Deposit in trust or in a separate account, and Landlord shall have the right to commingle the Security Deposit with its other funds.

 

Tenant has also deposited with Landlord an additional deposit in the form and amount stated in the Agreement of Lease (the “Utility Deposit”). The terms and conditions governing the Utility Deposit are set forth in Article XIII.

 

SECTION 6.02 Use and Return of Deposit

 

If Tenant fails to keep and perform any of the terms, covenants, and conditions of this Lease to be kept and performed by Tenant, Landlord, at Landlord’s option, may appropriate and apply the Security Deposit or Utility Deposit, as the case may be, or so much thereof as may be necessary to pay any rent or other sums due hereunder for which Tenant has failed to pay or to reimburse Landlord, or any amounts which Landlord has expended as a result of Tenant’s failure to perform its obligations hereunder. Should the entire Security Deposit or Utility Deposit, or any portion thereof, be appropriated and applied by Landlord, then Tenant upon the written

 

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demand of Landlord, shall provide to Landlord a sufficient amount in cash to restore the Security Deposit or Utility Deposit to the original sum deposited, and Tenant’s failure to do so within five (5) days after receipt of Landlord’s demand therefor shall constitute a default under the terms of this Lease. Upon Tenant’s full and faithful performance and compliance with all of the terms, covenants, and conditions of this Lease, upon the expiration of the Lease and Tenant’s surrender of the Leased Premises in compliance with the terms of the Lease, the Security Deposit and Utility Deposit shall be returned to Tenant.

 

SECTION 6.03 Transfer of Deposit

 

Landlord may deliver Tenant’s Security Deposit and Utility Deposit to any purchaser of the Leased Premises and, upon such delivery, Landlord shall be discharged from any further liability with respect to the Security Deposit and Utility Deposit.

 

ARTICLE VII

PARKING AND COMMON USE AREAS AND FACILITIES

 

SECTION 7.01 Common Areas; Remaining Areas

 

All areas, space, easements, facilities, equipment, and signs, to the extent made available by Landlord for the common and joint use and benefit of Landlord, Tenant and their respective employees, agents, concessionaires, licensees, customers and other invitees, are collectively referred to as “Common Areas.” Common Areas shall include, but shall not be limited to, the streets, sidewalks, parking areas, access roads, and drives, driveways, bridges, landscaped areas, truck serviceways, comfort and public washrooms, street lighting, and utility lines. All portions of PNBC which are not part of the Common Areas or leased to tenants, reserved by the Government or sold by Landlord to any purchaser are hereinafter collectively called the “Remaining Areas.” Whenever any portion of the Remaining Areas is leased or sold, it shall cease to be part of the Remaining Areas on the commencement date under the applicable lease or the settlement date under any agreement of sale. Whenever any lease of a former portion of the Remaining Areas is terminated, the area within such Lease shall be added back to the Remaining Areas automatically and immediately upon such termination of the Lease. All Common Areas and Remaining Areas within PNBC shall be under the exclusive control of Landlord. Landlord shall operate, manage, equip, light, surface, and maintain the Common Areas and Remaining Areas all in such manner as Landlord sees fit and Landlord shall have the sole right to employ and discharge all personnel with respect thereto. Landlord hereby expressly reserves the right, from time to time,

 

(i) to construct, maintain and operate lighting, utility and other facilities, equipment and signs on all of the Common Areas or Remaining Areas,

 

(ii) to use and allow others to use the Common Areas or Remaining Areas for any purpose,

 

(iii) to change or reduce the size, area, level, location, and arrangement of the Common Areas or Remaining Areas,

 

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(iv) to build multi-story and/or subterranean parking facilities,

 

(v) to alter, reduce or add property to the Common Areas or Remaining Areas,

 

(vi) to regulate parking by tenants and other occupants of PNBC and others entitled to use same and their respective employees, agents, tenants and licensees,

 

(vii) to close temporarily all or any portion of the Common Areas for the purpose of making repairs, changes, or alterations thereto or performing necessary maintenance in connection with any emergency, in connection with closing resulting from adverse weather conditions or for any other purpose whatsoever, whether such purpose is similar or dissimilar to the foregoing,

 

(viii) to prohibit or discourage parking by those not authorized to use the parking facilities, and

 

(ix) to establish, modify, and enforce reasonable rules and regulations with respect to the Common Areas and the use to be made thereof including restriction on or prohibition of access to portions of the Common Areas such as service areas not necessary for Tenant, and other areas which are not intended for the regular use of Tenant and members of the public.

 

Landlord further reserves the right to dedicate all or part of such streets, access roads, drives and utility lines, together with appropriate easements therefor, as Landlord, in its sole discretion, deems appropriate for the development of PNBC.

 

ARTICLE VIII

TAXES

 

SECTION 8.01 Taxes

 

(a) Tenant shall pay, as Additional Rent, (i) all “Taxes” (defined in Section 8.01(b)) that may be levied, assessed or imposed by any lawful authority against the Leased Premises and (ii) Tenant’s pro rata share (defined in Section 8.02) of all Taxes levied, assessed, or imposed on the Common Areas and Remaining Areas of PNBC (the amounts set forth in (i) and (ii) are collectively, “Tenant’s Share of Taxes”). Tenant shall pay Landlord’s estimate of Tenant’s Share of Taxes, in equal monthly installments, in advance, together with the monthly installment of Base Rent. Promptly after receipt of a bill for Taxes, Landlord shall submit an invoice to Tenant, and Tenant shall pay to Landlord, or Landlord shall credit to Tenant against the next payment for Taxes due from Tenant, as the case may be, the difference between the estimated payments and the actual amount of Tenant’s Share of Taxes due as reflected by the bill for Taxes.

 

(b) Taxes” shall include all taxes attributable to the Leased Premises and improvements now or hereinafter made to the Leased Premises, the Remaining Areas or the Common Areas of PNBC or any part thereof or the present or future installation of fixtures,

 

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machinery, or equipment in or on the Leased Premises or the Common Areas, all real estate taxes, assessments, water and sewer rents (not based on consumption), and other impositions and charges of every kind and nature whatsoever, nonrecurring as well as recurring, whether extraordinary or ordinary, foreseen or unforeseen, and all installments thereof levied, assessed, or imposed or due and payable or liens upon or arising in connection with the use, occupancy, or possession of, or ownership of any interest in the Leased Premises, Common Areas, or Remaining Areas, or any part thereof, or buildings or other improvements therein. Taxes shall also include use-and-occupancy taxes, real estate taxes, and any payments made in lieu of real estate taxes. Payments in lieu of taxes shall not exceed the amount which would have been paid had the property been assessed for real estate taxes. Extraordinary assessments made or imposed by any governmental authority for capital improvements to the Property shall be amortized as an Essential Capital Improvement (as defined in Article IX). If, at any time during the Term of this Lease, due to a future change in the method of taxation, an alternative or additional tax, sales tax on rents, assessment, or charge, however designated, shall be assessed, Tenant shall pay such alternative or additional tax.

 

SECTION 8.02 Pro Rata Share Defined

 

One or more of the buildings contained in PNBC may be assessed together or individually as a tax parcel for tax purposes. Where used in this Article VIII to refer to the Leased Premises, the words “pro rata share” shall mean a fraction, the numerator of which is the rentable square feet in the Leased Premises, and the denominator of which is the rentable square feet in the Property, whether or not leased or occupied, or, alternatively, the numerator of which is the acreage of the Leased Premises, and the denominator of which is the acreage of all space in the Property, whether or not leased or occupied.

 

ARTICLE IX

PNBC OPERATING COSTS

 

SECTION 9.01 Tenant’s Pro Rata Share of Expense

 

(a) Tenant shall pay to Landlord Tenant’s Pro Rata Share (as defined in the Agreement of Lease) of all PNBC Operating Costs of every kind and nature paid or incurred by Landlord in owning, operating and maintaining the Common Areas and the Remaining Areas (“Tenant’s Expense Share”).

 

(b) “PNBC Operating Costs” shall mean and include all costs and expenses of Landlord paid or incurred in the ownership, operation, management, supervision, cleaning, repair, maintenance, replacement, (including reasonable reserves) of the Building and, Common Areas and Remaining Areas, including, without limitation, snow removal, parking lot resurfacing and striping, street cleaning and repair, landscaping, providing security, lighting, providing public liability, property damage, fire, and extended coverage, business interruption and such other insurance as Landlord deems appropriate, repair of casualty damage to the extent not covered by insurance, maintenance of vacant buildings in PNBC, maintenance, repair, or replacement of any common utility system servicing PNBC, compensation and benefits (including premiums for workmen’s compensation and other insurance paid to or on behalf of

 

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employees working at the PNBC), costs of independent contractors hired for the operation, maintenance, and repair of the Building, the Common Areas, or Remaining Areas, personal property taxes on Landlord’s personal property used in the repair, maintenance, or operation of the Building, Common Areas or Remaining Areas, supplies, fire protection and fire hydrant charges, water, sewer, trash removal and other utility charges not paid directly by Tenants, license and permit fees, reasonable depreciation of equipment used in operating and maintaining the buildings, Common Areas or Remaining Areas and rent paid for leasing any such equipment (over a period not exceeding sixty (60) months), accounting fees, any other expense or charge which, in accordance with sound accounting and management principles, would be construed as an operating expense and certain capital expenditures described in subsection (c) below.

 

(c) If the Landlord makes a capital expenditure for an “Essential Capital Improvement,” during any Lease Year, the annual amortization of such expenditure (determined by dividing the amount of the expenditure by the useful life of the improvement, as determined by an accountant engaged by Landlord), plus any interest or financing charges thereon, shall be deemed part of PNBC Operating Costs for each year of such useful life. As used herein, an “Essential Capital Improvement” means any of the following:

 

(i) a labor-saving device, energy-saving device, or other installation, improvement, or replacement which is intended to reduce either PNBC Operating Costs, regardless of whether required by governmental mandate; or