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EXHIBIT 10.1
AGREEMENT OF SALE
1120 Executive Plaza, Mt. Laurel Corporate Park, Executive Court and
Option Parcel
AGREEMENT OF SALE made this 20th day of January, 1997, between
BRANDYWINE REALTY TRUST, a Maryland Real Estate Investment Trust, its assignee
or nominee, having its principal office at 16 Campus Boulevard, Suite 150,
Newtown Square, Pennsylvania 19073 ("Buyer"), and 1120 ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, having its principal office at 4A
Eves Drive, Marlton, New Jersey 08053 ("1120"), MLCP ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, having its principal office at 4A
Eves Drive, Marlton, New Jersey 08053 ("MLCP"), and EXECUTIVE COURT ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited partnership, having its principal
office at 4A Eves Drive, Marlton, New Jersey 08053 ("ECA") (collectively, but
specifically not jointly and severally, 1120, MLCP and ECA shall be referred
to hereunder as "Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. 1120 is the owner of a certain parcel of land comprising
approximately 7.86 acres, together with the building and improvements thereon,
including a four story office building containing approximately 95,124 net
rentable square feet, commonly known as 1120 Executive Plaza, Mount Laurel, New
Jersey, being Lot 3 of Block 1301 and Lots 1, 2 and 3 of Block 1306.01; and
B. MLCP is the owner of a certain parcel of land comprising
approximately 6.34 acres, together with the building and improvements thereon,
including a four story office building containing approximately 105,312 net
rentable square feet, commonly known as the Mt. Laurel Corporate Park, Mt.
Laurel, New Jersey being Lot 1.01 of Block 1104, and a certain undeveloped
parcel of land comprising approximately 8 acres, being Lot 8 of Block 1104 (the
"Option Parcel") as more fully described on Exhibit A-2-B; and
C. ECA is the owner of a certain parcel of land comprising
approximately 9.88 acres, together with three buildings and improvements
thereon, including a two story office building containing approximately 37,857
net rentable square feet commonly known as Building 2, a one story office
building containing approximately 24,687 net rentable square feet commonly
known as Building 4A, and a one story office building containing approximately
27,031 net rentable square feet commonly known as Building 4B, all such
buildings being commonly known as the Executive Court, Evesham Township, New
Jersey, being Lots 1 and 2 of Block 2.05; and
D. Seller desires to sell to Buyer and Buyer desires to purchase
from Seller the property referred to in this Agreement, upon the terms and
conditions set forth herein.
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TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to he legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Each of 1120, MLCP and ECA, as the case may be, with respect
to their particular assets, shall sell, transfer and convey to Buyer on the
Closing Date (as hereinafter defined),
1.1 Real Property.
1.1.1. 1120's fee simple interest in the
approximately 7.86 acre parcel of land, all as more fully described on Exhibit
"A-1", with the building and improvements thereon, including the four story,
approximately 95,124 net rentable square foot office building, commonly known
as 1120 Executive Plaza, Mount Laurel, New Jersey, being Lot 3 of Block 1301
and Lots 1, 2 and 3 of Block 1306.01, and all of 1120's right, title, and
interest, if any, in all easements, licenses, rights of way, privileges,
hereditaments, appurtenances, and rights to any land lying in the beds of any
street, road or avenue, open or proposed, adjoining thereto, and inuring to the
benefit of said land (hereinafter collectively referred to as the "1120
Premises"); and
1.1.2. MLCP's fee simple interest in (a) the
approximately 6.34 acre parcel of land, all as more fully described on Exhibit
"A-2-A", with the building and improvements thereon, including the four story,
approximately 105,312 net rentable square foot office building, commonly known
as Mt. Laurel Corporate Park, Mount Laurel, New Jersey, being Lot 3 of Block
1104, together with all of MLCP"s right, title and interest, if any, in all
easements, licenses, rights of way, privileges, hereditaments, appurtenances,
and rights to any land lying in the beds of any street, road or avenue, open or
proposed, adjoining thereto, and inuring to the benefit of said land described
above, together with a perpetual easement for the use of Howard Boulevard as a
means of ingress, egress and regress to and from the foregoing, and a perpetual
easement for the use of such portion of MLCP"s remaining property as shall be
necessary to utilize all of the parking spaces depicted on the survey prepared
by Abbington and Associates heretofore delivered by Seller to Buyer, to the
extent that such parking spaces are located outside of the perimeter
description of record of the MLCP Premises (hereinafter collectively referred
to as the "MLCP Premises"). Buyer shall assume responsibility to maintain
Howard Boulevard until such time as either Seller or any other persons or
parties shall commence development or otherwise utilize Howard Boulevard, or
any portion thereof, as a means of access to any other property, at which time
Buyer, Seller and such third party (if any) shall amend and restate the
existing covenant(s) of record allocating among Buyer, Seller and such other
third parties the responsibilities to repair and maintain Howard Boulevard and
addressing other issues including without limitation, approval rights (re:
architectural review, landscaping, common areas and other matters), use
restrictions, insurance, cost allocation issues,
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and other matters. Any such amendatory documentation or new covenant(s) of
record shall be in form satisfactory to Buyer and Seller. The covenants set
forth in this Section shall survive delivery of the Deeds and Closing
hereunder.
1.1.3. ECA"s fee simple interest in the parcel of
land comprising approximately 9.88 acres, all as more fully described on
Exhibit "A-3", together with three buildings and improvements thereon,
including a two story office building containing approximately 37,857 net
rentable square feet commonly known as Building 2, a one story office building
containing approximately 24,687 net rentable square feet commonly known as
Building 4A, and a one story office building containing approximately 27,031
net rentable square feet commonly known as Building 4B, all such buildings
being commonly known as the Executive Court, Evesham Township, New Jersey,
being Lots 1 and 2 of Block 2.05, and all of ECA"s right, title and interest,
if any, in all of the easements, licenses, rights of way, privileges,
hereditaments, appurtenances, and rights to any land lying in the beds of any
street, road or avenue, open or proposed, adjoining thereto, and inuring to the
benefit of said land (hereinafter collectively referred to as the "ECA
Premises"); and
1.2 Personal Property. All of 1120's, MLCP's and ECA's,
as the case may be, with respect to their particular assets, equipment,
fixtures, machinery and personalty of every description attached to or used in
connection with the 1120 Premises (and not owned by tenants under leases of
the 1120 Premises), the MLCP Premises (and not owned by tenants under leases
of the MLCP Premises) and the ECA Premises (and not owned by tenants under
leases of the ECA Premises), including, without limitation, those listed on,
the Schedule of Inventory attached hereto as Exhibit "B-1" as to 1120, Exhibit
"B-2, as to MLCP, "Exhibit "B-3" as to ECA, and all renderings, flags, and to
the extent assignable and in such Seller"s possession, intangible personal
property owned by such Seller and used in connection with the ownership,
operation and maintenance of the Property (as defined below), including
without limitation, all contract rights, guaranties and warranties of any
nature, all architects", engineers", surveyors" and other real estate
professionals" plans, specifications, certifications, contracts, reports, data
or other technical descriptions, reports or audits (including, without
limitation, all environmental, structural and mechanical inspection reports),
and all marketing materials ("Contract Documents"), all governmental permits,
licenses, certificates, and approvals in connection with the ownership of the
1120 Premises, the MLCP Premises and the ECA Premises, as the case may be
("Licenses"), all escrow accounts, deposits (excluding, ratably, any escrows
and deposits held by Mt. Laurel Township in connection with the portion of the
land owned by MLCP not being sold hereunder), instruments, documents of title,
general intangibles, data and business records pertaining to the 1120 Premises,
the MLCP Premises and the ECA Premises, as the case may be and all of each
Seller's rights, claims, and causes of action if any, to the extent they are
assignable, under any warranties and/or guarantees of manufacturers,
contractors or installers, all rights against tenants and others relating to
the 1120 Premises, the MLCP Premises and the ECA Premises and the operation or
maintenance thereof, including to the extent applicable, any warranties from
any previous owners of the 1120 Premises, the MLCP Premises and the ECA
Premises (hereinafter referred to as "1120 Personal Property", the "MLCP
Personal Property" and the "ECA Personal Property", as the case may be); and
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1.3 Leases. All leases, licenses and other occupancy
agreements for all of the 1120 Premises, the MLCP Premises and the ECA Premises
and, except as otherwise set forth herein, all prepaid rent and unapplied
security deposits (the "1120 Leases", the "MLCP Leases" and the "ECA Leases" as
the case may be); and
1.4 Right to Names. Any and all right, title and
interest of Seller, if any, and without representation or warranty, in and to
the name "1120 Executive Plaza", "Mt. Laurel Corporate Park", "Executive Court"
and each Seller"s right, if any, without representation or warranty, to all
printing styles, trademarks and logos regarding the foregoing (collectively,
the "1120 Names", the "MLCP Names" and the "ECA Names" as the case may be).
The 1120 Premises, 1120 Personal Property, 1120
Leases and 1120 Names are sometimes hereinafter referred to as "1120 Property."
The MLCP Premises, the MLCP Personal Property, MLCP Leases and the MLCP Names
are sometimes hereinafter referred to as "MLCP Property." The ECA Premises, the
ECA Personal Property, ECA Leases and the ECA Names are sometimes hereinafter
referred to as "ECA Property." The 1120 Property, the MLCP Property and the ECA
Property are sometimes referred to herein collectively as the "Property".
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of
Thirty Two Million, One Hundred Fifty Thousand Dollars ($32,150,000)
(hereinafter referred to as the "Purchase Price") subject to adjustments as set
forth herein.
2.2 Manner of Payment. The Purchase Price shall be paid
in the following manner:
2.2.1 Deposit. By delivery, upon Seller's
execution and delivery of this Agreement, of Buyer's wire transfer of
immediately available funds in the amount of One Million Dollars $1,000,000 to
Sherman, Silverstein, Kohl, Rose & Podolsky (hereinafter referred to as "Escrow
Agent" or "Escrowee"). This sum, and all other sums paid by Buyer to the Escrow
Agent under this Agreement (hereinafter referred to as the "Deposit") shall be
non-refundable, except as specified under Section 13.1 and 13.3 hereof, and
shall be held by Escrow Agent in a federally-insured, segregated money market
account at an institution to be designated by Buyer and Seller until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or paid to the party otherwise entitled to the
Deposit in the event of the termination of this Agreement prior to Closing.
2.2.2 Assumption of Sun Loan; Cash Balance. The
balance by assumption of outstanding debt owed to Sun Life Assurance Company of
Canada (U.S.) ("Sun") by (i) 1120 pursuant to that certain Note and security
therefor dated March 17, 1995 in the original principal amount of $6,500,000
(the "1120 Debt") and (ii) MLCP pursuant to that certain Note and security
therefor dated October 19, 1994 in the original principal amount of $6,500,000
(the "MLCP Debt") (the 1120 Debt and the MLCP Debt are collectively, but
specifically not
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jointly and severally, referred to as the "Sun Loans"), and the remainder to be
delivered to the Seller on the Closing Date, by wire transfer of immediately
available funds, in the amount by which the Purchase Price exceeds the sum of
(i) the Deposit, and (ii) the outstanding principal balance and accrued and
unpaid interest, if any, on the Sun Loans as of the Closing Date, subject to
adjustments and apportionments as set forth in the Agreement.
3. TITLE. On the Closing Date, each of 1120, MLCP and ECA with
respect to its assets, shall convey to Buyer good and marketable fee simple
title to the 1120 Premises, the MLCP Premises and the ECA Premises, as the
case may be, subject only to those rights of way, easements, covenants
restrictions, and objections to title (hereinafter "1120 Permitted Exceptions"
with respect to the 1120 Premises, the "MLCP Permitted Exceptions" with
respect to the MLCP Premises and the "ECA Permitted Exceptions" with respect
to the ECA Premises) listed on Exhibit "C-1" hereto regarding the 1120
Premises, Exhibit "C-2" hereto regarding the MLCP Premises and Exhibit "C-3"
hereto regarding the ECA Premises and subject to the rights of tenants listed
on the rent roll attached hereto as Exhibit "D-1" regarding the 1120 Premises,
Exhibit "D-2" hereto regarding the MLCP Premises and Exhibit "D-3" hereto
regarding the ECA Premises, all of which title shall be insurable at regular
rates by Commonwealth Land Title Insurance Company ("Title Company") under an
ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title insurance policy ("Title
Policy"), with the endorsements and affirmative insurance specified in Section
12.2.1.10 below.
4. COVENANTS. In addition to the covenants contained in the
other Sections of this Agreement, between the date hereof and Closing, each of
1120, MLCP and ECA with respect to its assets, covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date,
maintain the 1120 Property, the MLCP Property and the ECA Property, as the case
may be, in good condition and repair, reasonable wear and tear and damage by
casualty excepted, operate the 1120 Property, the MLCP Property and the ECA
Property, as the case may be, in the same manner as it is currently being
operated, and pay except as specifically set forth herein in the normal course
of business prior to Closing, all sums due for work, materials or service
furnished or otherwise incurred in the ownership and operation prior to
Closing.
4.2 Alterations. Not make or permit to be made any
alterations, improvements or additions to the 1120 Property, the MLCP Property
and the ECA Property, as the case may be, without the prior written consent of
Buyer, which consent shall not be unreasonably withheld or delayed, except
those made by or for tenants pursuant to the right to do so under their Leases,
or by such Seller if required by applicable law or ordinance, or as required
under any Lease, subject to the provisions of Section 4.7 below..
4.3 Lease. Except as specifically set forth in Section 14.5
below, not enter into any new Lease, nor amend, modify or terminate any
existing Lease without Buyer's consent, such consent not to be unreasonably
withheld.
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4.4 Security Deposits. Not apply any Tenant's security
deposit to the discharge of such Tenant's obligations, without Buyer's consent,
such consent not to be unreasonably withheld.
4.5 Bill Tenants. Timely bill all Tenants for all rent
billable under Leases, and use its commercially reasonable efforts consistent
with Seller"s existing practices to collect any rent in arrears.
4.6 Notice to Buyer. Notify Buyer promptly of the
occurrence of any of the following: (i) a fire or other casualty causing
damage to the 1120 Property, the MLCP Property and the ECA Property, as the
case may be, or any portion of the foregoing; (ii) receipt of written notice
of eminent domain proceedings or condemnation of or affecting the 1120
Property, the MLCP Property or the ECA Property, as the case may be or any
portion thereof; (iii) receipt of notice from any governmental authority or
insurance underwriter relating to the condition, use or occupancy of the 1120
Property, the MLCP Property and the ECA Property, as the case may be, or any
portion of the foregoing, or any real property adjacent to any of the
foregoing, or setting forth any requirements with respect thereto; (iv)
receipt or delivery of any written default or termination notice or claim of
offset or defense to the payment of rent from any tenant; (v) receipt of any
written notice of default from the holder of any lien or security interest in
or encumbering the 1120 Property, the MLCP Property or the ECA Property, as
the case may be, or any portion thereof; or (vi) written notice of any actual
or threatened litigation against 1120, MLCP or ECA or affecting or relating to
the 1120 Property, the MLCP Property or the ECA Property, as the case may be
or any portion thereof.
4.7 Comply with Leases. Perform all material
obligations of the landlord as required by the 1120 Leases, the MLCP Leases
and the ECA Leases, as the case may be, or by any order or direction of any
governmental authority having jurisdiction thereof, provided that if the cost
to perform any such governmental obligations (the "Seller Compliance Costs")
exceeds $90,000 in the aggregate, Seller shall have the right to terminate
this Agreement if Buyer is unwilling to pay for the costs of such obligations
in excess of $90,000, in which event the Deposit and Buyer's reasonably
documented Transaction Costs (as hereinafter defined) shall be returned to
Buyer and neither party shall owe any further obligation hereunder to the other;
provided, however, if the Seller Compliance Costs exceed $90,000 in the
aggregate, and Buyer agrees to pay for the second $90,000 of such costs, the
remaining cost of such Seller Compliance Costs above $180,000, if any, shall be
evenly shared by Buyer and Seller, provided that in no event shall Seller be
obligated to pay more than $180,000.00 in the aggregate in connection with the
Seller Compliance Costs (e.g., if the total Seller Compliance Costs equal
$200,000 and Buyer agrees to pay for the second $90,000, the additional $20,000
above the $180,000 shall be shared by Buyer and Seller, so that Seller shall be
responsible for $100,000 and Buyer shall be responsible for $100,000). The
parties acknowledge and agree that Buyer is under no obligation to agree to pay
for any Seller Compliance Costs, but that the aforesaid cost allocation
mechanism is an agreed upon compromise in order to permit Buyer to avoid
Seller"s termination of this Agreement. Seller"s obligation to incur Seller
Compliance Costs and the limitations thereto hereinabove specified shall
expressly not apply to any tenant improvement costs or expenses, and
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any other costs or expenses incurred by Seller in discharging any lease
obligations (except to the extent such lease obligations relate to governmental
compliance issues noted above).
4.8 No New Agreements. Except for agreements which can be
terminated on not more than thirty (30) days' notice, not enter into any other
agreements which affect the 1120 Property, the MLCP Property and the ECA
Property or the transactions contemplated by this Agreement, without the prior
written consent of Buyer, which consent shall not be unreasonably withheld or
delayed; and, except for the Sun Loans and the Permitted Exceptions, not permit
the creation of any liability which shall bind Buyer or the 1120 Property, the
MLCP Property or the ECA Property after Closing.
4.9 Tax Disputes. Notify Buyer of any tax assessment
disputes (pending or threatened) with respect to the 1120 Property, the MLCP
Property and the ECA Property, as the case may be, prior to Closing, and not
agree to any changes in the real estate tax assessment, nor settle, withdraw
or otherwise compromise any pending claims with respect to prior tax
assessments, without Buyer's prior written consent. If any proceedings shall
result in any reduction of assessment and/or tax for the tax year in which the
Closing occurs, it is agreed that the amount of tax savings or refund for such
tax year, less the reasonable fees and disbursements in connection with such
proceedings, shall be apportioned between the parties as of the date real
estate taxes are apportioned under this Agreement. Any reduction relating to
tax years prior to 1997 shall be payable to 1120, MLCP or ECA, as appropriate.
4.10 No Removal of Personalty. Not remove any
non-consumable Personal Property from the 1120 Property, the MLCP Property and
the ECA Property without replacing it with similar personal property which is
new or of equal or better quality.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to
enter into this Agreement, each of 1120, MLCP and ECA, solely with respect to
itself, and not with respect to the other entities constituting the Seller,
hereby represents and warrants to Buyer that the following representations and
warranties are true now, and where the representation specifically provides,
will be true at Closing:
5.1 Seller's Authority For Binding Agreement.
5.1.1. 1120 represents and warrants that: (i) 1120
is a duly authorized and validly existing partnership formed under the laws of
the State of Delaware and is duly qualified to do business in the State of New
Jersey, (ii) 1120 has full power, right and authority to own its properties, to
carry on its business as now conducted, and to enter into and fulfill its
obligations under this Agreement, (iii) each of the persons executing this
Agreement on behalf of 1120 is authorized to do so, (iv) this Agreement is the
valid and legally binding obligation of 1120, enforceable against 1120 in
accordance with its terms, (v) the execution and delivery of this Agreement and
compliance with its terms will not conflict with or result in the breach of any
law, judgement, order, writ, injunction, decree, rule or regulation, or
conflict with or result in the
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breach of any other agreement, document or instrument to which 1120 is a party
or by which it or the 1120 Property is bound or affected.
5.1.2. MLCP represents and warrants that: (i) MLCP
is a duly authorized and validly existing partnership formed under the laws of
the State of Delaware and is duly qualified to do business in the State of New
Jersey, (ii) MLCP has full power, right and authority to own its properties, to
carry on its business as now conducted, and to enter into and fulfill its
obligations under this Agreement, (iii) each of the persons executing this
Agreement on behalf of MLCP is authorized to do so, (iv) this Agreement is the
valid and legally binding obligation of MLCP, enforceable against MLCP in
accordance with its terms, (v) the execution and delivery of this Agreement and
compliance with its terms will not conflict with or result in the breach of any
law, judgement, order, writ, injunction, decree, rule or regulation, or
conflict with or result in the breach of any other agreement, document or
instrument to which MLCP is a party or by which it or the MLCP Property is
bound or affected.
5.1.3. ECA represents and warrants that: (i) ECA is
a duly authorized and validly existing partnership formed under the laws of the
State of Delaware and is duly qualified to do business in the State of New
Jersey, (ii) ECA has full power, right and authority to own its properties, to
carry on its business as now conducted, and to enter into and fulfill its
obligations under this Agreement, (iii) each of the persons executing this
Agreement on behalf of ECA is authorized to do so, (iv) this Agreement is the
valid and legally binding obligation of ECA, enforceable against ECA in
accordance with its terms, (v) the execution and delivery of this Agreement and
compliance with its terms will not conflict with or result in the breach of any
law, judgement, order, writ, injunction, decree, rule or regulation, or
conflict with or result in the breach of any other agreement, document or
instrument to which ECA is a party or by which it or the ECA Property is bound
or affected.
The representations contained in this Section 5.1 shall be true at and as of
Closing.
5.2 Employment on "At-Will" Basis. There are no
employees of 1120, MLCP or ECA and Buyer assumes no obligations or
responsibilities whatsoever for any employees of 1120, MLCP or ECA. The
representation contained in this Section 5.2 shall be true at and as of Closing.
5.3 Service Contracts.
5.3.1. 1120 represents and warrants that, to the
best of its knowledge, Exhibit "E-1" attached hereto is a complete list of all
existing service, equipment, supply and maintenance contracts with respect to
or affecting the 1120 Property, (the "1120 Service Contracts"). 1120 has not
received any written notice of default or breach by 1120 in the terms of any of
such Service Contracts. To 1120's knowledge, 1120 has performed, and at Closing
shall have performed, all obligations which it has under said 1120 Service
Contracts.
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5.3.2. MLCP represents and warrants that, to the
best of its knowledge Exhibit "E-2" attached hereto is a complete list of all
existing service, equipment, supply and maintenance contracts with respect to
or affecting the MLCP Property, (the "MLCP Service Contracts"). MLCP has not
received any written notice of default or breach by MLCP in the terms of any of
such Service Contracts. To MLCP"s knowledge, MLCP has performed, and at Closing
shall have performed, all obligations which it has under said MLCP Service
Contracts.
5.3.3. ECA represents and warrants that, to the
best of its knowledge, Exhibit "E-3" attached hereto is a complete list of all
existing service, equipment, supply and maintenance contracts with respect to
or affecting the ECA Property, (the "ECA Service Contracts"). ECA has not
received written notice of default or breach by ECA in the terms of any of such
Service Contracts. To ECA"s knowledge, ECA has performed, and at Closing shall
have performed, all obligations which it has under said ECA Service Contracts.
The 1120 Service Contracts, the MLCP Service Contracts and the ECA Service
Contracts shall be referred to collectively as the "Service Contracts".
Anything herein contained to the contrary notwithstanding, except with respect
to the CSC (as hereinafter defined) premises which shall be governed by Section
14 hereof, each of 1120, MLCP and ECA represent, warrant, covenant and agree
that all existing management agreements and exclusive leasing agreements shall
be terminated as of Closing, Seller having fully paid and discharged any and
all obligations accruing thereunder, and Buyer shall assume no liability under
or in respect of any such agreements.
Other than the representations regarding receipt of written notices of default,
which, to the extent not true and correct at Closing shall be noted in writing
by Seller to Buyer before Closing, the representations contained in this
Section 5.3 shall be true at and as of Closing.
5.4 Condemnation. None of 1120, MLCP, or ECA, with
respect to its particular assets has received any written notice of any pending
condemnation or eminent domain proceeding pending with regard to any part of
the 1120 Property, the MLCP Property and the ECA Property, and to the best of
each of 1120's, MLCP"s and ECA"s knowledge with respect to its particular
asset, no such proceedings are proposed.
5.5 No Lawsuits.
5.5.1. Except as set forth on Exhibit F-1, 1120 has
received no written notice of any claims, lawsuits or proceedings
(collectively, "Suits") pending, and to the best of 1120's knowledge, there are
no Suits threatened against or relating to 1120 or the 1120 Property, or which
could affect them, or either of them, in any court or before any governmental
agency, except for actions for possession, damages and or rent, if any, against
defaulted tenants as disclosed in Exhibit "F-1".
5.5.2. Except as set forth on Exhibit F-2, MLCP
has received no written notice of any Suits pending, and to the best of MLCP's
knowledge, there are no Suits threatened
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against or relating to MLCP or the MLCP Property, or which could affect them,
or either of them, in any court or before any governmental agency, except for
actions for possession, damages and or rent, if any, against defaulted tenants
as disclosed in Exhibit "F-2".
5.5.3. Except as set forth on Exhibit F-3, ECA has
received no written notice of any Suits pending, and to the best of ECA"s
knowledge, there are no Suits threatened against or relating to ECA or the ECA
Property, or which could affect them, or either of them, in any court or before
any governmental agency, except for actions for possession, damages and or
rent, if any, against defaulted tenants as disclosed in Exhibit "F-3".
The representations contained in this Section 5.5 shall be true at and as of
Closing.
5.6 No Tax Assessments. Each of 1120, MLCP and ECA have
not received written notice of any public improvements in the nature of off-site
improvements, or otherwise, which have been ordered to be made and/or which
have not heretofore been assessed, and, to 1120's, MLCP"s and ECA"s knowledge,
there are no special or general assessments currently affecting or pending
against the 1120 Property, the MLCP Property and the ECA Property, as the case
may be, except as set forth in the Title Binder. The representations contained
in this Section 5.6 shall be true at and as of Closing.
5.7 Leases.
5.7.1. 1120 represents and warrants that there are
no oral or written leases or rights of occupancy or grants or claims of right,
title or interest in any portion of the Premises other than the leases (the
"1120 Leases") listed on the rent roll attached hereto as Exhibit "D-1".
Exhibit "D-1" identifies (i) each tenant of the 1120 Premises, (ii) the date of
that tenant's lease, (iii) the expiration date of that tenant's lease, (iv) the
annual and monthly minimum rental charge, the tenant's share of building
operating costs (including, without limitation, taxes) and any and all costs,
expenses and other charges payable by the tenant under the 1120 Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (vii) any options to renew, extend,
purchase, cancel or terminate; (viii) any defaults, outstanding notices of
defaults of any kind or nature whatsoever, claims of defaults or similar claim
under Leases, and (ix) all unpaid tenant improvement allowances and/or unpaid
leasing commissions. No tenant has advised 1120 in writing that 1120 is in
default under any of the 1120 Leases, or asserted any written claim or basis
for any claim for free or reduced rent or right of setoff against the landlord
or the rent under the 1120 Leases, and 1120 and its agent have no actual
knowledge of any default or any event which has taken place which, with the
passage of time, or the delivery of notice, or both, could become an event of
default. 1120 has the sole right to collect rents under the Leases, and except
with respect to the Sun Loan, neither such right nor any of the Leases has been
assigned, pledged, hypothecated or otherwise encumbered by 1120. To the best of
1120's knowledge, each of the 1120 Leases is valid and subsisting and in full
force and effect, the tenant is in actual possession in the normal course, and
the rents set forth in Exhibit "D-1" are the actual rents, income and charges
being collected by 1120 under the 1120 Leases. Any tenant improvements which
1120 is
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obligated to complete pursuant to any Lease (or any unsigned lease proposal or
lease amendment), all as set forth on the attached Schedule of Tenant
Improvements, has been completed as of this date or shall be assumed by Buyer
at and as of Closing, and all costs for completed work have been or shall be
paid by 1120. Buyer shall assume the responsibility for all tenant improvement
work required to be completed by the landlord under any 1120 which has not been
completed by 1120 prior to Closing and which is specifically set forth on the
Schedule of Tenant Improvements. At Closing, Buyer shall receive a credit
against the Purchase Price in the amount of the Tenant Improvements shown on
the Schedule of Tenant Improvements as such relates to the completion of
unfinished tenant work at the 1120 Property. No tenant or other person has any
right or option to acquire the 1120 Property, or any part thereof, or to 1120
knowledge to terminate any of the rights currently appurtenant to the 1120
Premises. No tenant of the 1120 Premises under any of the 1120 Leases has, and
shall not at Closing have, prepaid any rent under any of the 1120 Leases for
more than one (1) month. Except as otherwise set forth on Exhibit "D-1", no
security deposits by tenants have heretofore been returned or applied to
charges against the tenants.
5.7.2. MLCP represents and warrants that there are
no oral or written leases or rights of occupancy or grants or claims of right,
title or interest in any portion of the Premises other than the leases (the
"MLCP Leases") listed on the rent roll attached hereto as Exhibit "D-2".
Exhibit "D-2" identifies (i) each tenant of the MLCP Premises, (ii) the date of
that tenant's lease, (iii) the expiration date of that tenant's lease, (iv) the
annual and monthly minimum rental charge, the tenant's share of building
operating costs (including, without limitation, taxes) and any and all costs,
expenses and other charges payable by the tenant under the MLCP Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (vii) any options to renew, extend,
purchase, cancel or terminate; (viii) any defaults, outstanding notices of
defaults of any kind or nature whatsoever, claims of defaults or similar claim
under Leases, and (ix) all unpaid tenant improvement allowances and/or unpaid
leasing commissions. No tenant has advised MLCP in writing that MLCP is in
default under any of the MLCP Leases, or asserted any written claim or basis
for any claim for free or reduced rent or right of setoff against the landlord
or the rent under the MLCP Leases, and MLCP and its agent have no actual
knowledge of any default or any event which has taken place which, with the
passage of time, or the delivery of notice, or both, could become an event of
default. MLCP has the sole right to collect rents under the MLCP Leases, and
except with respect to the Sun Loan, neither such right nor any of the MLCP
Leases has been assigned, pledged, hypothecated or otherwise encumbered by
MLCP. To the best of MLCP's knowledge, each of the MLCP Leases is valid and
subsisting and in full force and effect, the tenant is in actual possession in
the normal course, and the rents set forth in Exhibit "D- 2" are the actual
rents, income and charges being collected by MLCP under the MLCP Leases. Any
tenant improvements which MLCP is obligated to complete pursuant to any Lease
(or any unsigned lease proposal or lease amendment), all as set forth on the
attached Schedule of Tenant Improvements, has been completed as of this date or
shall be assumed by Buyer at and as of Closing, and all costs for completed
work have been or shall be paid by MLCP. Buyer shall assume the responsibility
for all tenant improvement work required to be completed by the landlord under
any MLCP which has not been completed by MLCP prior
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to Closing and which is specifically set forth on the Schedule of Tenant
Improvements. At Closing, Buyer shall receive a credit against the Purchase
Price in the amount of the Tenant Improvements shown on the Schedule of Tenant
Improvements as such relates to the completion of unfinished tenant work at the
MLCP Property. No tenant or other person has any right or option to acquire the
MLCP Property, or any part thereof, or to MLCP' s knowledge to terminate any of
the rights currently appurtenant to the MLCP Premises. No tenant of the MLCP
Premises under any of the MLCP Leases has, and shall not at Closing have,
prepaid any rent under any of the MLCP Leases for more than one (1) month.
5.7.3. ECA represents and warrants that there are
no oral or written leases or rights of occupancy or grants or claims of right,
title or interest in any portion of the Premises other than the leases (the
"ECA Leases") listed on the rent roll attached hereto as Exhibit "D-3". Exhibit
"D-3" identifies (i) each tenant of the ECA Premises, (ii) the date of that
tenant's lease, (iii) the expiration date of that tenant's lease, (iv) the
annual and monthly minimum rental charge, the tenant's share of building
operating costs (including, without limitation, taxes) and any and all costs,
expenses and other charges payable by the tenant under the ECA Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (vii) any options to renew, extend,
purchase, cancel or terminate; (viii) any defaults, outstanding notices of
defaults of any kind or nature whatsoever, claims of defaults or similar claim
under Leases, and (ix) all unpaid tenant improvement allowances and/or unpaid
leasing commissions. No tenant has advised ECA in writing that ECA is in
default under any of the ECA Leases, or asserted any written claim or basis for
any claim for free or reduced rent or right of setoff against the landlord or
the rent under the ECA Leases, and ECA and its agent have no actual knowledge
of any default or any event which has taken place which, with the passage of
time, or the delivery of notice, or both, could become an event of default. ECA
has the sole right to collect rents under the Leases neither such right nor any
of the ECA Leases has been assigned, pledged, hypothecated or otherwise
encumbered by ECA except as additional collateral for the existing mortgage
upon the ECA Premises which shall be satisfied at Closing. To the best of ECA's
knowledge, each of the ECA Leases is valid and subsisting and in full force and
effect, the tenant is in actual possession in the normal course, and the rents
set forth in Exhibit "D-3" are the actual rents, income and charges being
collected by ECA under the ECA Leases. Any tenant improvements which ECA is
obligated to complete pursuant to any Lease (or any unsigned lease proposal or
lease amendment), all as set forth on the attached Schedule of Tenant
Improvements, has been completed as of this date or shall be assumed by Buyer
at and as of Closing, and all costs for completed work have been or shall be
paid by ECA. Buyer shall assume the responsibility for all tenant improvement
work required to be completed by the landlord under any ECA which has not been
completed by ECA prior to Closing and which is specifically set forth on the
Schedule of Tenant Improvements. At Closing, Buyer shall receive a credit
against the Purchase Price in the amount of the Tenant Improvements shown on
the Schedule of Tenant Improvements as such relates to the completion of
unfinished tenant work at the ECA Property. No tenant or other person has any
right or option to acquire the ECA Property, or any part thereof, or to ECA's
knowledge to terminate any of the rights currently appurtenant to the ECA
Premises. No tenant of the ECA Premises under any of the ECA Leases has, and
shall not at Closing have, prepaid
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any rent under any of the ECA Leases for more than one (1) month. Except as
otherwise set forth on Exhibit "D-3", no security deposits by tenants have
heretofore been returned or applied to charges against the tenants. The parties
acknowledge and agree that Buyer hereby grants Columbia Investment Builders,
Inc. ("CIB") the right, on ECA"s standard form lease, to lease the 2,368 square
foot space where CIB is currently located in the ECA Property for a two year
term commencing February 1, 1997, with two, one year renewal options
exercisable on 3 months prior written notice, for a Base Rent of $12 per square
foot on a full service basis excluding tenant electric charges which will be
billed separately during the initial term and the two, one (1) year renewal
terms.
The representations contained in this Section 5.7 shall be true at and as of
Closing.
5.8 Compliance with Law.
5.8.1 None of 1120, MLCP nor ECA have received
any outstanding written notices of any violations issued by governmental
authority having jurisdiction over the 1120 Property, the MLCP Property and the
ECA Property, as the case may be.
5.8.2 To the best of 1120's knowledge and except
as otherwise shown on that certain Environmental Report prepared by Lippincott,
Jacobs & Gouda dated March, 1995 (the "1120 Report"), no Hazardous Substances
(defined below) and no Hazardous Wastes (defined below) are present on the
Property including, without limitation, asbestos, flammable substances,
explosives, radioactive materials, hazardous wastes, toxic substances,
pollutants, pollution, contaminant, polychlorinated byphenyls ("PCBs"), urea
formaldehyde foam insulation, radon, corrosive, irritant, biologically
infectious materials, petroleum product, garbage, refuse, sludge, hazardous or
waste materials, except to the extent such substances or materials are used in
the ordinary course of 1120's business or that of any Tenant in accordance with
all applicable laws, and there has, to the best of 1120"s knowledge, been no
use of the 1120 Property that may, under any federal, state or local
environmental statute, ordinance or regulation, require, at any time, any
closure or cessation of the use or occupancy of the 1120 Property and/or
impose, at any time, upon the owner of the 1120 Property any clean-up or other
monetary obligation. 1120 has received no written notice that it has been
identified in any litigation, administrative proceeding or investigation as a
responsible party or potentially responsible party for any liability for
clean-up costs, natural resource damages or other damages or liability for
prior disposal or release of Hazardous Substances, Hazardous Wastes or other
environmental pollutants or contaminants, and no lien or superlien has been
recorded, filed or otherwise asserted against any real or personal property of
1120 for any clean-up costs or other responses costs incurred in connection
with any environmental contamination that is attributable, in whole or in part,
to 1120. 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 all
applicable federal, state and local laws including the New Jersey Industrial
Site Recovery Act, as amended ("ISRA"); and "Hazardous Wastes" means any
hazardous waste, residential or household waste, solid waste, or other waste as
defined in applicable federal, state and local laws
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including the New Jersey Industrial Site Recovery Act, as amended ("ISRA").
1120 has not received any summons, citation, directive, letter or other
communication, written or oral, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
1120's part which (a) resulted in the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of Hazardous Substances or Hazardous
Wastes, or (b) related in any way to the generation, storage, transport,
treatment or disposal of Hazardous Substances or Hazardous Wastes. To the best
of 1120's knowledge, there are no underground or above-ground storage tanks
located on the 1120 Property.
5.8.3 To the best of MLCP's knowledge and except
as otherwise shown on that certain Environmental Report prepared by GHR
Consulting Services, Inc. dated September 13, 1994 (the "MLCP Report"), no
Hazardous Substances and no Hazardous Wastes are present on the Property
including, without limitation, asbestos, flammable substances, explosives,
radioactive materials, hazardous wastes, toxic substances, pollutants,
pollution, contaminant, polychlorinated byphenyls ("PCBs"), urea formaldehyde
foam insulation, radon, corrosive, irritant, biologically infectious materials,
petroleum product, garbage, refuse, sludge, hazardous or waste materials,
except to the extent such substances or materials are used in the ordinary
course of MLCP's business or that of any Tenant in accordance with all
applicable laws, and there has, to the best of MLCP"s knowledge, been no use of
the MLCP Property that may, under any federal, state or local environmental
statute, ordinance or regulation, require, at any time, any closure or
cessation of the use or occupancy of the MLCP Property and/or impose, at any
time, upon the owner of the MLCP Property any clean-up or other monetary
obligation. MLCP has received no written notice that it has been identified in
any litigation, administrative proceeding or investigation as a responsible
party or potentially responsible party for any liability for clean-up costs,
natural resource damages or other damages or liability for prior disposal or
release of Hazardous Substances, Hazardous Wastes or other environmental
pollutants or contaminants, and no lien or superlien has been recorded, filed
or otherwise asserted against any real or personal property of MLCP for any
clean-up costs or other responses costs incurred in connection with any
environmental contamination that is attributable, in whole or in part, to MLCP.
MLCP has not received any summons, citation, directive, letter or other
communication, written or oral, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
MLCP's part which (a) resulted in the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of Hazardous Substances or Hazardous
Wastes, or (b) related in any way to the generation, storage, transport,
treatment or disposal of Hazardous Substances or Hazardous Wastes. To the best
of MLCP's knowledge, other than that certain above ground storage tank
servicing Conrail with respect to which MLCP has not received written notice of
any violations of applicable laws, there are no underground or above-ground
storage tanks located on the MLCP Property.
5.8.4 To the best of ECA's knowledge and except
as otherwise shown on that certain Environmental Report prepared by Environ
Corp. dated October 2, 1992 (the "ECA Report"), no Hazardous Substances and no
Hazardous Wastes are present on the Property including, without limitation,
asbestos, flammable substances, explosives, radioactive materials, hazardous
wastes, toxic substances, pollutants, pollution, contaminant, polychlorinated
byphenyls ("PCBs"), urea formaldehyde foam insulation, radon, corrosive,
irritant, biologically
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infectious materials, petroleum product, garbage, refuse, sludge, hazardous or
waste materials, except to the extent such substances or materials are used int
he ordinary course of ECA's business or that of any Tenant in accordance with
all applicable laws, and there has, to the best of ECA"s knowledge, been no use
of the ECA Property that may, under any federal, state or local environmental
statute, ordinance or regulation, require, at any time, any closure or
cessation of the use or occupancy of the ECA Property and/or impose, at any
time, upon the owner of the ECA Property any clean-up or other monetary
obligation. ECA has received no written notice that it has been identified in
any litigation, administrative proceeding or investigation as a responsible
party or potentially responsible party for any liability for clean-up costs,
natural resource damages or other damages or liability for prior disposal or
release of Hazardous Substances, Hazardous Wastes or other environmental
pollutants or contaminants, and no lien or superlien has been recorded, filed
or otherwise asserted against any real or personal property of ECA for any
clean-up costs or other responses costs incurred in connection with any
environmental contamination that is attributable, in whole or in part, to ECA.
ECA has not received any summons, citation, directive, letter or other
communication, written or oral, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
ECA's part which (a) resulted in the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of Hazardous Substances or Hazardous
Wastes, or (b) related in any way to the generation, storage, transport,
treatment or disposal of Hazardous Substances or Hazardous Wastes. To the best
of ECA's knowledge, there are no underground or above-ground storage tanks
located on the ECA Property.
Subject to the provisions of Section 4.7 above, the representations contained
in Section 5.8.1 shall be true at and as of Closing. The representations
contained in Sections 5.8.2, 5.8.3 and 5.8.4 shall be true at and as of
Closing.
5.9 Insurance. Exhibits "G-1", "G-2", and "G-3" attached
hereto contain a true and correct description of all insurance policies
affecting the 1120 Property, the MLCP Property and the ECA Property
respectively, and the operation thereon. All of said insurance policies shall
remain in full force and effect until the completion of Closing hereunder. None
of 1120, MLCP nor ECA have received any written notice from any insurance
company board of fire underwriters or rating organization (or other body
exercising similar functions) (i) claiming any defects or deficiencies which
have not been addressed and fully cured or corrected, or (ii) requesting the
performance of any repairs, alterations or other work which have not been
performed, or (iii) claiming any default which, if not corrected, would result
in a cancellation of insurance coverage. The representations contained in this
Section 5.9 shall be true at and as of Closing.
5.10 Intentionally Omitted.
5.11 No Brokers. Except as set forth on Exhibit "D", no
brokerage or leasing commission or other compensation is now, or will at
Closing be, due or payable to any person, firm, corporation, or other entity
with respect to or on account of any of the Leases, or any extensions or
renewals thereof. The representations contained in this Section 5.11 shall be
true at and as of Closing.
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5.12 Utilities. To the best of 1120's, MLCP"s and ECA"s
knowledge, all installation, connection and "tap-in" charges for utilities
servicing their respective properties have been paid for in full. The
representations contained in this Section 5.12 shall be true at and as of
Closing.
5.13 Permits, Approvals and Certificates. To the best of
1120's, MLCP"s and ECA"s knowledge with respect to their particular assets, all
required certificates of occupancy for the 1120 Property, the MLCP Property and
the ECA Property and for separately demised spaces at the aforesaid, and all
other licenses, permits, authorizations and approvals necessary for the
operation of the aforesaid, have been validly issued and are in good standing
as of the Closing Date. All charges and fees for all of the foregoing have been
paid in full. Subject to the provisions of Section 4.7 above, the
representations contained in this Section 5.13 shall be true at and as of
Closing.
5.14 Good Title to Property. 1120 represents and warrants
that to the best of its knowledge, it holds good and marketable, indefeasible
fee simple title to the 1120 Property, free and clear of liens and
encumbrances, other than the 1120 Debt and the 1120 Permitted Exceptions. MLCP
represents and warrants that, to the best of its knowledge it holds good and
marketable, indefeasible fee simple title to the MLCP Property, free and clear
of liens and encumbrances, other than the MLCP Debt and the MLCP Permitted
Exceptions. ECA represents and warrants that to the best of its knowledge it
holds good and marketable, indefeasible fee simple title to the ECA Property,
free and clear of liens and encumbrances, other than the ECA Permitted
Exceptions. The representations contained in this Section 5.14 shall be true at
and as of Closing.
5.15 All Taxes and Assessments Paid. Each of 1120, MLCP
and ECA, with respect to its assets, will have paid prior to Closing, all
taxes and assessments, including assessments payable in installments, which
are to become due and payable prior to Closing and/or a lien on the 1120
Property, the MLCP Property and the ECA Property, except for taxes for the
current year which shall be prorated at Closing and except for installments of
current assessments which become due and payable after Closing which shall be
the sole responsibility of Buyer. The representations contained in this
Section 5.15 shall be true at and as of Closing.
5.16 FIRPTA. None of 1120, MLCP nor ECA are a "foreign
person" as such term is defined in Section 1445(f)(3) of the Internal Revenue
Code of 1954, as amended (the "Code"). The representations contained in this
Section 5.16 shall be true at and as of Closing.
5.17 Intentionally Omitted.
5.18 Construction Liens. To the best of 1120's, MLCP"s and
ECA"s knowledge, except as set forth on the Tenant Improvement Schedule no work
has been performed or is in progress at, and no materials have been furnished
to the 1120 Property, the MLCP Property and the ECA Property, as the case may
be, which, though not presently the subject of, might give rise to
construction, mechanic's, materialmen's, or other liens against the 1120
Property, the MLCP Property or the ECA Property or any portion thereof, except
that for
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which full and complete payment has been or will be made prior to Closing or
for which releases have been obtained. If any lien for any such work is filed
before or after Closing, Seller shall promptly discharge the same. The
representations contained in this Section 5.17 shall be true at and as of
Closing.
5.19 Inventory Schedule. The Schedule of Inventory
contains a correct and complete list of personal property owned by each of
1120, MLCP and ECA and located at or used in connection with the operation of
the 1120 Property, the MLCP Property and the ECA Property. The representations
contained in this Section 5.19 shall be true at and as of Closing.
5.20 Charges, Fees and Assessments. To the best of 1120's,
MLCP's and ECA's as the case may be, any and all applicable charges, fees and
assessments and any and all other sums due under declarations, cross-easements
and like agreements to which the 1120 Property, the MLCP Property and the ECA
Property or any portion thereof may be subject, have been paid, and, to the
best of 1120's, MLCP"s and ECA"s knowledge, no special assessments thereunder
are pending, and all consents and approvals required to be obtained under any
such declarations, cross-easements and like agreements (other than the Sun
Loan) have been obtained pursuant to the requirements of such documentation.
The representations contained in this Section 5.20 shall be true at and as of
Closing.
5.21 Rights to Purchase. There are no outstanding
agreements, options, rights of first refusal, conditional sales agreements or
other agreements or arrangements, whether oral or written, regarding the
purchase and sale of the 1120 Property, the MLCP Property and the ECA Property,
or which otherwise affect any portion of or all the foregoing. Without
limiting the generality of the foregoing, any and all option rights of Clinton
Corporation granted or referred to in that certain lease between 1120 and
Computer Sciences Corporation, have since expired by their terms and are no
longer valid or enforceable. The representations contained in this Section
5.21 shall be true at and as of Closing.
5.22 No Outstanding Obligations. To the best of 1120's,
MLCP's and ECA"s knowledge, as the case may be, except as set forth on the
Tenant Improvement Schedule, all debts, liabilities, and obligations of each of
1120, MLCP and ECA arising out of the construction, ownership, and operation of
the 1120 Property, the MLCP Property and the ECA Property, as the case may be,
including, but not limited to, construction costs, taxes, accounts payable and
the like, have been paid as they became due and payable and shall continue to
be so paid from the date hereof until the Closing Date. To the best of 1120's,
MLCP's and ECA's knowledge, as the case may be, no debts, liabilities, claims,
or obligations (whether known or unknown, accrued, absolute, contingent, or
otherwise) affecting the 1120 Property, the MLCP Property and the ECA Property,
other than the Sun Loans which is currently being paid and is not subject to
any defaults, shall be outstanding as of the Closing Date. The representations
contained in this Section 5.22 shall be true at and as of Closing.
5.23 Access. To the best of 1120's, MLCP's and ECA's
knowledge, all curb cut and street opening permits or licenses required for
vehicular access to and from the 1120 Property, the MLCP Property and the ECA
Property to any adjoining public street have been
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obtained and paid for by 1120, MLCP or ECA, as the case may be, and all of the
foregoing shall be in full force and effect at the Closing. Seller will provide
Buyer with an opportunity to review its files containing all conditional and
permanent zoning, site plan, subdivision, building, housing, safety, fire and
health approvals, including, without limitation, the local governmental
applications, resolutions and approvals supporting the same, if any, relating
to the 1120 Property, the MLCP Property and the ECA Property. The
representations contained in this Section 5.23 shall be true at and as of
Closing.
5.24 Abatement Programs. To the best of 1120's, MLCP's and
ECA's knowledge, as the case may be, none of the 1120 Property, the MLCP
Property and the ECA Property are subject to an written tax abatement program
or reduction of assessment agreements, which provides for an increase in
assessment at the expiration of the applicable abatement period. The
representations contained in this Section 5.24 shall be true at and as of
Closing.
5.25 Development Agreements. To the best of 1120's, MLCP's
and ECA's knowledge, as the case may be, each of 1120, MLCP and ECA are in
material compliance with and each of them have fully paid and discharged all
obligations arising under any and all development, tri-party and like
agreements, and any and all other agreements with county, municipal and other
governmental and quasi-governmental agencies and authorities respecting the
ownership, development and operation of the 1120 Property, the MLCP Property
and the ECA Property, as the case may be, and all portions thereof. The
representations contained in this Section 5.25 shall be true at and as of
Closing.
5.26 Structural Representation.
5.26.1. To the best of 1120"s knowledge, except as
otherwise set forth on that a certain structural engineering report prepared by
Architecture/Design Alliance, Inc. ("AAI") and dated December 2, 1994 (the
"1120 Structural Report"), all building and improvements situate on the 1120
Premises, and all appurtenant systems, including, without limitation, the roof,
the HVAC, plumbing, electrical and mechanical systems and equipment are in good
working order and condition, and there are no material patent or latent defects
therein. 1120 is aware of no material repairs, alterations or other work other
than ordinary maintenance, which is required to be performed in order to
maintain the structural integrity of the building and improvements, and the
efficient operation and good operating condition of the appurtenant systems and
equipment.
5.26.2. To the best of MLCP"s knowledge, except as
otherwise set forth on that a certain structural engineering report prepared by
AAI and dated October 13, 1994 (the "MLCP Structural Report"), all building and
improvements situate on the MLCP Premises, and all appurtenant systems,
including, without limitation, the roof, the HVAC, plumbing, electrical and
mechanical systems and equipment are in good working order and condition, and
there are no material patent or latent defects therein. MLCP is aware of no
material repairs, alterations or other work other than ordinary maintenance,
which is required to be performed in order to maintain the structural integrity
of the building and improvements, and the efficient operation and good
operating condition of the appurtenant systems and equipment.
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5.26.3. To the best of ECA"s knowledge, except as
otherwise set forth on that a certain structural engineering report prepared by
Edward Kuljian Associates and dated October 12, 1992 (the "ECA Structural
Report"), all building and improvements situate on the ECA Premises, and all
appurtenant systems, including, without limitation, the roof, the HVAC,
plumbing, electrical and mechanical systems and equipment are in good working
order and condition, and there are no material patent or latent defects
therein. ECA is aware of no material repairs, alterations or other work other
than ordinary maintenance which is required to be performed in order to
maintain the structural integrity of the building and improvements, and the
efficient operation and good operating condition of the appurtenant systems and
equipment.
The representations contained in this Section 5.26 shall be true at and as of
Closing.
5.27 Correct Copies of Documents. Where copies of any
documents have been delivered by Seller to Buyer, whether prior to or pursuant
to this Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to the
best of each of 1120's, MLCP"s and ECA"s knowledge, constitute, in each case,
the entire agreement between the parties thereto with respect to the subject
matter thereof, and the original instruments in the form delivered to Buyer,
are now in full force and effect, and valid and enforceable in accordance with
their respective terms, and no party thereto is in default, and no claim of
default by any party has been made or is now pending and there does not now
exist any default which, after either the giving of notice or the passing of
time, or both, will or may constitute a default, or would excuse performance by
any party thereto; and (iii) have not been changed or amended except for
amendments, if any, specifically referred to therein. The representations
contained in this Section 5.27 shall be true at and as of Closing.
When used throughout this Section 5, the phrase "knowledge" and "to
the best knowledge" as used herein shall be deemed to mean the actual knowledge
of Joseph D. Gonnelli and R. Brian Jackson.
6. POSSESSION. Possession of each of the 1120 Premises, the
MLCP Premises and the ECA Premises is to be given to Buyer, subject to the
right of tenants under the Leases on the Closing Date, by delivery of the
Deeds, and all keys, combinations and security codes at Closing.
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
7.1 Title Binder. On or before the execution of this
Agreement Seller made available to Buyer, Seller"s most recently dated title
commitment for the 1120 Property, the MLCP Property and the ECA Property
(complete with copies of all exceptions to title), and Buyer shall secure a
current title commitment (the "Title Binder") from the Commonwealth Land Title
Insurance Company. At Closing, Seller, so long as such amount does not exceed
$500,000.00 in the aggregate, shall pay all monetary liens (other than the Sun
Loans), which are not 1120 Permitted Exceptions, MLCP Permitted Exceptions or
ECA Permitted Exceptions. If such amount does exceed $500,000, and Buyer is
unwilling to pay such excess to discharge such
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liens in excess of $500,000, then either party may terminate this Agreement,
whereupon, the Deposit and Buyer"s reasonably documented Transaction Costs (as
defined below) shall be immediately refunded to Buyer.
7.2 Survey. Seller has provided Buyer with a copy of
Seller"s most recent 1120 Property, MLCP Property and ECA Property surveys.
7.3 Physical Inspection. Buyer shall have the right to
continue its physical and mechanical inspection, measurement and audit of the
1120 Property, the MLCP Property and the ECA Property and an inspection of all
books and records and financial information pertaining thereto, and Seller
shall cooperate with Buyer and shall furnish to Buyer such information,
materials and documents as Buyer may reasonably request and shall have its
accountant available throughout such period to assist in Buyer's inspection and
review. The inspection, audit and measurement of the 1120 Property"s, MLCP
Property"s and ECA Property's operation, condition and maintenance shall
include, without limitation, such title, survey, environmental and engineering
inspections, reviews and assessments that Buyer deems appropriate. Buyer agrees
that it shall not unreasonably interfere with tenants in performing its
inspection. If Buyer exercises its rights under the provisions of this
subsection, it shall (i) provide Seller with prior verbal notice of Buyer"s
entry, (ii) keep the 1120 Property, the MLCP Property and the ECA Property free
of any liens or third-party claims resulting therefrom except as may be
required by applicable law; (iii) maintain adequate liability insurance in an
amount of not less than $1,000,000.00 for a single occurrence and $50,000.00
for property damage which insurance shall name 1120, MLCP and ECA as an
additional insured; (iv) indemnify 1120, MLCP and ECA against any liability or
expense for injuries to or death of persons or damage to property arising from
the exercise of the rights hereunder that are not the result of any act or
omission of 1120, MLCP or ECA or their respective agents, employees or
contractors and (v) if Closing does not occur for any reason other than 1120's,
MLCP"s or ECA"s breach or default, restore as nearly as practicable the
Property substantially to its condition immediately before such exercise. The
indemnification and restoration provisions of this subsection shall survive the
termination of this Agreement.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer shall survive Closing and the delivery
of the Deeds for the statute of limitations pertaining thereto. The
representations and warranties of Seller set forth in Sections 5.1, 5.2, 5.6,
5.8.1, 5.11, 5.16, 5.21 and 5.24 shall survive Closing and delivery of the
Deed for the applicable period of the statute of limitations pertaining
thereto. The representations and warranties of Seller set forth in Sections
5.3, 5.5, 5.7 (except as set forth below), 5.8.2, 5.8.3, 5.8.4, 5.18, 5.19,
5.20, 5.22, 5.23, 5.25, 5.26 and 5.27 shall survive Closing and delivery of
the Deed for six (6) months from Closing. The representations and warranties
of Seller set forth in Sections 5.12 and 5.13 shall survive Closing and
delivery of the Deed for a three (3) month period from Closing.
Notwithstanding anything contained in this Agreement to the contrary, except
as expressly set forth in this Agreement, none of 1120, MLCP and ECA makes any
representation, either prior to or at the Closing, with respect to the
condition or character of the 1120 Property, the MLCP Property or the ECA
Property or the use or uses to which the foregoing may be put. Buyer
acknowledges that Buyer has or will carefully and
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thoroughly examine, inspect and investigate the 1120 Property, the MLCP
Property and the ECA Property, and 1120's, MLCP"s and ECA"s operations (as to
manner, income and expenses); and Buyer is purchasing the same on the basis of
such examination, inspection and investigation and not in reliance on any
representation or warranty of 1120, MLCP or ECA or any agent, employee or
representative of any of them of any kind or nature whatsoever, except as
specifically set forth herein. Accordingly, subject to the representations and
warranties contained herein and in Seller"s Documents, if Buyer closes
hereunder, Buyer hereby agrees to accept all of the assets being acquired by
Buyer hereunder, whether realty, personalty or mixed, on an absolutely and
unconditionally "as is" basis at the time of Closing. Notwithstanding the time
period for survival with respect to Section 5.7, if prior to the expiration of
such period, Seller delivers to Buyer an estoppel certificate on Buyer"s
prescribed form, which certificate confirms Seller"s representations under
Section 5 of this Agreement, Seller shall be released from all liability with
respect to its representations as they pertain to such tenancy.
9. FIRE OR OTHER CASUALTY.
9.1 Maintain Insurance. Seller shall maintain in effect
until the Closing Date the insurance policies (or like policies) now in effect
with respect to the Premises and Personal Property as set forth in Exhibits
"G-1", "G-2" and "G-3".
9.2 Minimal Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be $250,000 or less (as
established by good faith estimates obtained by Buyer), this Agreement shall
remain in force.
9.3 Substantial Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be more than $250,000 (as
established by good faith estimates obtained by Buyer), Buyer may terminate
this Agreement by giving written notice thereof to Seller, and if this
Agreement is so terminated, then the Deposit shall be immediately refunded to
Buyer, and thereafter neither party shall have any further liability hereunder
thereafter. If Buyer does not so terminate this Agreement, it shall remain in
full force and effect, and the provisions of Section 9.4 below shall apply.
9.4 Closing After Substantial Damage. So long as this
Agreement shall remain in force under Section 9.2 or 9.3, then (i) all proceeds
of insurance plus the amount of deductible under Seller's insurance policy,
shall be credited to Buyer against the Purchase Price payable by Buyer at
Closing, and (ii) all unpaid claims and rights in connection with losses shall
be assigned to Buyer at Closing, including the right to adjust any such loss.
9.5 Rent Insurance. All rental loss insurance and the
proceeds thereof allocable to any period subsequent to Closing shall be paid or
assigned to Buyer at Closing.
10. CONDEMNATION. If, prior to the Closing Date, all or any
material portion of the 1120 Premises, the MLCP Premises or the ECA Premises
(being any taking affecting any
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building or any other taking involving 10% or more of the 1120 Premises, the
MLCP Premises or the ECA Premises or their respective parking areas) is taken
by eminent domain or a notice of any eminent domain proceedings with respect to
the aforesaid or any part thereof is received by the Seller, then Seller shall
within five (5) days thereafter give notice thereof to Buyer and Buyer shall
have the option to (a) complete the purchase hereunder or (b) if such taking,
in Buyer's sole and absolute discretion, adversely affects the Premises or its
current economic viability, terminate this Agreement, in which event the
Deposit shall be immediately refunded to Buyer, and this Agreement shall be
null and void. Buyer shall deliver written notice of its election to the Seller
within two (2) days after the date upon which the Buyer receives written notice
of such eminent domain proceedings. If notice of condemnation is received by
Buyer and it fails to deliver said written notice of its election within said
time period, such failure shall constitute a waiver by Buyer of its right to
terminate this Agreement. If this Agreement is not so terminated, Buyer shall
be entitled to all awards or damages by reason of any exercise of the power of
eminent domain or condemnation with respect to or for the taking of the
Premises or any portion thereof, and until such time as closing has occurred,
or this Agreement terminates. Any negotiation for, or agreement to, and all
contests of any offers and awards relating to eminent domain proceedings shall
be conducted with the joint approval and consent of the Seller and the Buyer.
11. Expense Allocations.
11.1 Seller shall pay for all applicable realty transfer
taxes related to the execution, delivery and recording of the Deeds, Bills of
Sale, and other Closing Documents, and all related recording charges.
11.2 Subject to Section 13.3, Buyer shall pay for Buyer's
title examination for Buyer's title examination and premiums and for Buyer"s
due diligence expenses, including survey, structural analysis and environmental
analysis.
11.3 Buyer and Seller shall be responsible for paying
their own attorney's fees in connection with this transaction.
11.4 Buyer and Seller shall equally bear the cost and
expense incurred in connection with the assumption of the Sun Loan, including
but not limited to, any assumption fees, Sun"s attorney"s fees, recording
costs and other costs related thereto.
12. CLOSING.
12.1 Time and Date and Place. The Closing on the sale of
the Property (herein referred to as the "Closing") shall take place on January
24, 1997 at 9:00 a.m. at the offices of Pepper, Hamilton & Scheetz, Suite 500,
457 Haddonfield Road, Cherry Hill, New Jersey. Notwithstanding the foregoing,
Buyer may extend the outside date for Closing to January 29, 1997 upon prior
written notice to Seller on or before January 23, 1997. Time is of the essence
in this Agreement. Notwithstanding the foregoing, either party shall have the
option to extend the
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Closing three times, each for a period of ten (10) days, solely in the event
that the Seller has not obtained the consent of Sun as required in this
Agreement.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
12.2.1 Seller's Documents and Other Items. Each
of 1120, MLCP and ECA with respect to its assets shall execute and deliver or
cause to be executed and delivered to Buyer in proper form for recording:
12.2.1.1 Deeds. A bargain and sale
deed with covenants against grantor"s acts prepared by Buyer's counsel in form
acceptable to Seller (the "Deed"), conveying the 1120 Premises, the MLCP
Premises and the ECA Premises to Buyer, duly executed by Seller for recording.
The Deed description shall be based upon the metes and bounds description
attached as Exhibit "A-1" for the 1120 Premises, as Exhibit "A-2" for the MLCP
Premises and as Exhibit "A-3" for the ECA Premises, in addition, if Buyer
requests that Seller convey the 1120 Premises, the MLCP Premises or the ECA
Premises by the metes and bounds description shown on the new survey, if any,
obtained by Buyer, Seller covenants to execute a Quit Claim Deed for such new
description.
12.2.1.2 Special Warranty Bills of
Sale. A special warranty bill of sale prepared by Buyer"s counsel in form
acceptable to Seller, assigning, conveying and transferring to Buyer, all of
the Personal Property.
12.2.1.3 Original Leases. All
original Leases, tenant files, tenant correspondence and repair records.
12.2.1.4 Original Licenses,
Contract Documents and Other Personal Property. All original Licenses, Contract
Documents, and other Personal Property described in Section 1.2 of this
Agreement to the extent in Seller"s possession.
12.2.1.5 Assignment of Leases. An
assignment and assumption agreement with indemnities consistent with this
Agreement, prepared by Buyer"s counsel in form acceptable to Seller (the
"Assignment"), duly executed by Seller and Buyer, assigning, conveying and
transferring to Buyer the Leases.
12.2.1.6 Assignment of Licenses,
Contract Documents and Other Personal Property. An assignment agreement with
indemnities consistent with this Agreement prepared by Buyer"s counsel, in form
acceptable to Seller, assigning, conveying and transferring to Buyer, to the
extent they are assignable, the Licenses, Contracts Documents and Other
Personal Property, including, specifically, the Names, without representation
or warranty.
12.2.1.7 FIRPTA Certificates. All
certificate(s) required under Section 1445 of the Code.
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12.2.1.8 Tenant Letter. Letters to
each tenant advising of the change in ownership and directing the payment of
rent to such party as the Buyer shall designate, said letter to be in form
acceptable to Buyer.
12.2.1.9 Intentionally Omitted.
12.2.1.10 Title Insurance
Certificates. Such affidavits of title or other certifications as shall be
required by the Title Company to insure Buyer's title to the Premises as set
forth in Section 3, and to provide affirmative endorsements (a) against
construction liens and (b) parties in possession other than tenants under the
Leases.
12.2.1.11 Certified Rent Roll. A
certified schedule of Tenant Leases, containing all information required to be
set forth in Exhibit "D", which schedule is correct and complete as of the date
of Closing.
12.2.1.12 Seller Certificate. A
written certification confirming that as of Closing confirming that the
representations and warranties which are required to be true at and as of
Closing, are true at and as of Closing.
12.2.1.13 Organization
Certifications. Confirmation of the good standing and existence of Seller and
its general partner and the due authority of those executing for them,
including, without limitation, the following documents issued no earlier than
30 days prior to Closing: (a) good standing certificate in state of
organization and in the State in which the Property are located, (b)
partnership agreement, (c) a certificate from the secretary of the corporation
or managing general partner of the partnership confirming the incumbency of the
signatories and the current force and effect of the resolution authorizing
their execution of the documents required under this Agreement.
12.2.1.14 Keys. All keys,
combinations and security codes for all locks and security devices on the
Property;
12.2.1.15 Intentionally Omitted.
12.2.1.16 Intentionally Omitted.
12.2.1.17 Mortgagee Estoppel.
Seller shall deliver to Buyer a Mortgagee Estoppel in the form reasonably
specified by Buyer as executed by Sun, confirming, among other items, (i) the
list of Sun Loan documents, (ii) the interest rate payable thereon and the
maturity date thereof, (iii) the outstanding principal balance and accrued and
unpaid interest thereon, and the status and amount of all tax, insurance and
other applicable escrows (if any) as of the Closing Date (iv) that no default
or event of default exists by the Borrower thereunder and that there exists no
facts or circumstances, which with the delivery of notice and the passage of
time, or either, would constitute a default or event of default, (v) that Sun
has not sold, assigned, participated or transferred the debt or any interest
therein, and (vi) that the assumption of the Sun
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Loan by Brandywine Operating Partnership, L.P., as nominee of Buyer, has been
approved by all requisite boards, committees and other authorities at Sun.
12.2.1.18 ISRA Non-Applicability
Letter. A written non- applicability letter issued within 30 days prior to
Closing by the New Jersey Department of Environmental Protection stating that
the transaction and the Property is not subject to ISRA.
Collectively, the documents set forth in Section
12.2.1 shall be referred to as "Seller"s Documents".
12.2.2 Buyer's Documents. Buyer shall deliver or
cause to be delivered to Seller:
12.2.2.1 The amounts required to be
paid to Seller pursuant to this Agreement;
12.2.2.2 Confirmation of the
existence and subsistence of Buyer, and the authority of those executing for
Buyer, including, without limitation, the following documents issued no earlier
than thirty (30) days prior to Closing: (a) good standing certificate in State
of Maryland, (b) Buyer"s Amendment and Restatement of Declaration of Trust
filed on August 27, 1996, as amended, (c) a certificate from any officer of
Buyer confirming the incumbency of the signatories and the current force and
effect of the resolution authorizing their execution of the documents required
under this Agreement.
12.2.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company or a substitute title insurance company
licensed to do business in New Jersey shall furnish Buyer at Closing with the
Title Policy, in the form approved by Buyer pursuant to Section 3, in the full
amount of the Purchase Price, wherein the Title Company shall insure fee simple
title to the Property in Buyer as of the Closing Date containing no exceptions
to title other than the Sun Loan and the Permitted Exceptions.
12.2.4 Necessary Documents. Buyer and Seller
shall execute and deliver such other documents and instruments as may be
reasonably necessary to complete the transaction contemplated by this
Agreement.
13. DEFAULT; REMEDIES
13.1.1 Prior to title passing and the completion
of Closing, in the event of 1120's, MLCP"s or ECA"s default hereunder, Buyer"s
sole remedies shall be that of (i) specific performance with abatement of the
Purchase Price to the extent of liens of a fixed or ascertainable amount
(subject to the dollar limitation contained in Section 7.1), or (ii)
termination of this Agreement and return of the Deposit, in no event shall
Buyer be entitled to damages of any kind or nature;
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13.1.2 Prior to title passing and
completion of Closing, with respect to any representations or warranties of
1120, MLCP and ECA contained in this Agreement, Buyer"s obligations hereunder
are contingent upon such representations and/or warranties contained in this
Agreement being true and correct as of the date hereof and where the context
indicates, as of the date of Closing, but recision of this Agreement and return
of the Deposit, shall be Buyer"s exclusive remedy for any breach of any
representation and/or warranty by 1120, MLCP, and ECA.
13.1.3 Notwithstanding the foregoing, in
the event of a willful or intentional breach of a covenant, obligation or
warranty by 1120, MLCP or ECA under this Agreement or if 1120, MLCP or ECA
makes a willful or intentional material misrepresentation in this Agreement,
Buyer shall be entitled to terminate this Agreement and to the return of the
Deposit and Buyer"s reasonably documented Transaction Costs sustained by Buyer
in connection with this Agreement; and the foregoing shall be Buyer"s sole
remedies under this subparagraph.
13.1.4 Subsequent to title passing and
completion of Closing, Buyer shall have recourse against 1120, MLCP and ECA
for its reasonably documented actual damages, sustained solely for 1120's,
MLCP"s and ECA"s breach of representations and warranties which survive
Closing, which breach is discovered by Buyer after Closing; the right to
pursue said recourse shall expire and terminate, as to any right on which
action has not then been initiated, at the expiration of the survival periods
set forth herein.
13.2 Buyer recognizes that the 1120 Property, the MLCP
Property and the ECA Property will be removed by Seller from the market during
the existence of this Agreement and that if this purchase and sale is not
consummated because of Buyer's default Seller shall be entitled to compensation
for such detriment. Seller and Buyer acknowledge that it is extremely difficult
and impracticable ascertain the extent of the detriment, and to avoid this
problem, Seller and Buyer agree that if the purchase and sale contemplated in
this Agreement is not consummated because of Buyer's default under this
Agreement, Seller shall be entitled to retain the Deposit as its sole and
liquidated damages. The parties agree that the sum stated above as liquidated
damages shall be in lieu of any other relief to which Seller might otherwise be
entitled, Seller hereby specifically waiving any and all rights which it may
have to damages or specific performance as a result of Buyer's default under
this Agreement.
13.3 Buyer"s Out-of-Pocket Costs. In the event of Seller"s
breach or default in accordance with Section 13.1.3 then, in any such event,
upon termination by Buyer hereunder, in addition to receiving the immediate
return of the Deposit, anything in the Agreement contained to the contrary
notwithstanding, Buyer shall also receive from Seller, upon demand, Buyer"s
actual, documented out-of-pocket costs and expenses associated with this
Agreement and Buyer"s anticipated acquisition of the Property including,
without limitation, Buyer"s reasonable counsel fees and costs, title expenses,
survey costs, financial and accounting due diligence, Buyer"s structural
inspection of the Property and Buyer"s environmental assessment of the
Property, and other costs and expenses associated with Buyer"s due diligence,
(collectively, "Transaction Costs"). The foregoing list is not intended to be
exclusive, but representative of the costs and expenses that the parties
anticipate that Buyer will incur in anticipation of this
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transaction. Seller"s maximum reimbursement liability under this Section 13
shall not exceed $60,000 in the aggregate.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer hereunder are subject to the
fulfillment of the following conditions prior to or on the Closing Date (any
one of which may be waived in whole or in part by Buyer at or prior to the
Closing) and in the event any of the conditions are not complied with, Buyer
may terminate this Agreement by notifying the Seller and Escrow Agent and
thereupon shall be refunded the Deposit and thereafter this Agreement shall be
null and void:
14.1 Correctness of Warranties and Representations. The
warranties and representations made by Seller which are specifically required
to be true and correct at and as of Closing shall be true and correct on the
Closing Date in all material respects as though such representations and
warranties were made on the Closing Date, except (i) immaterial variations
which occur in the ordinary course of Seller"s business which do not materially
affect Buyer"s valuation of the 1120 Property, MLCP Property or the ECA
Property or (ii) provided Buyer closes, any matter or occurrence within Buyer"s
actual knowledge prior to Closing shall not be construed as a failure of the
condition set forth in this Section 14.1.
14.2 Compliance with Terms and Conditions. Each of 1120,
MLCP and ECA shall have performed and complied in all material respects with
all of the terms and conditions required by this Agreement to be performed and
complied with by it prior to or on the Closing Date, including delivery of all
of the Seller Documents.
14.3 Buyer's Review of Structural and Environmental
Status, Fleer Corp. and ECA Title. Buyer shall be satisfied by 5:00 p.m. on
Thursday, January 23, 1997, time being of the essence, with Buyer"s review of
Buyer"s structural engineering, environmental investigations, the status of
Fleer Corp."s outstanding lease obligations (including the possible
implications of Fleer Corp."s bankruptcy), and the state of title to the ECA
Property, which review shall not reveal any fact, circumstance or information
which in Buyer"s sole judgment may materially and adversely affect the
Property or Buyer"s valuation of the 1120 Property, the MLCP Property and the
ECA Property.
14.4 Estoppel Certificate from Evesham Township and Mt.
Laurel Township. Subject to the provisions of Section 4.7 above, Buyer shall
have received an estoppel certificate from the zoning code enforcement (or
other appropriate) officer of Evesham Township and Mt. Laurel Township,
confirming that no portion of the 1120 Property, the MLCP and the ECA Property
is in violation of any applicable codes, and that each of the foregoing is in
compliance with applicable zoning restrictions.
14.5 Consent of Sun. Seller shall have obtained the
written consent of Sun to the transaction, contemplated by this Agreement in
form and substance reasonably satisfactory to Buyer, and a release of 1120 and
MLCP under the Sun Loans with respect to matters which accrue from and after
Closing. The Buyer shall, at or prior to Closing, execute and deliver such
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assumption agreements and other documents, reasonably acceptable in form and
content to Buyer, required by Sun to effectuate the assumption of the Sun Loan
on the same non-recourse basis as is applicable on the date hereof. At Closing,
Abdelwahabb Sallam ("AS") shall retain all of his obligations under the Master
Lease dated March 15, 1995 (the "Master Lease"), which Master Lease shall be
assigned to Buyer as Master Landlord, provided that the Master Lease shall be
terminated and of no further effect upon the consent of Sun to such termination
and the satisfaction of the conditions to the termination of the Master Lease
as set forth in the 1120 Debt. Buyer hereby appoints 1120 as Buyer's sole and
exclusive agent, without fee, commission or other compensation, for the purpose
of procuring the lease renewal of Computer Sciences Corporation ("CSC"). Buyer
shall execute any lease renewal with CSC procured by 1120 so long as the basic
form thereof is consistent with the present CSC lease, and the new business
terms thereof are sufficient to terminate the Master Lease pursuant to the
provisions of the 1120 Debt. Buyer shall not unreasonably withhold its consent
to any other lease renewal with CSC procured by 1120, provided that the Master
Lease remains effective. In the event that CSC does not renew its lease, if
requested by Seller, the Buyer hereby appoints 1120 as the Buyer's sole and
exclusive agent to procure a substitute tenant for such space without fee,
compensation or commission. Buyer shall execute any lease with any such
substitute tenant(s) procured by 1120 or any other party so long as the
provisions thereof are sufficient to terminate the Master Lease pursuant to the
provisions of the 1120 Debt and so long as such new tenant does not create a
conflict with any exclusive use clauses contained in existing leases at such
time. Buyer shall not unreasonably withhold its consent to any other lease
procured by 1120 or any other party, so long as the Master Lease remains
effective. Notwithstanding anything contained herein to the contrary, the Buyer
shall be solely responsible for any tenant improvement costs related to the
lease renewal with CSC or any substitute tenant(s), provided that the per share
foot cost thereof shall have been approved by Buyer in advance, such approval
not to be unreasonably withheld or delayed. The provisions of this Section 14.5
shall survive Closing.
14.6 Tenant Estoppels and Discussions. Seller shall use
its best efforts to deliver to Buyer estoppel certificates in the form
specified by Buyer from Conrail, Lincoln Technical Institute and ISO
Commercial Risk Services, which estoppel certificates shall affirm Seller"s
representations and warranties with respect to such leases as contained in
Section 5 above. Buyer, with R. Brian Jackson or Joseph Gonnelli, prior to
Closing, shall have had the opportunity to discuss with Fleer Corp., Conrail,
Lincoln Technical Institute and ISO Commercial Risk Services the standard
information to be contained in the above-referenced estoppel certificates and
be reasonably satisfied that the responses confirm that such information
comports with the representations set forth in Section 5 of this Agreement.
15. PRORATIONS.
15.1 Operating Expenses. The following items shall be
prorated at Closing, as of close of business of the day immediately preceding
Closing "Adjustment Date":
15.1.1 Rents. All current collected rent,
additional rent, percentage rent (if any) and all other charges collected under
the Leases shall be apportioned on the Closing Date pro rata on a per diem
basis. If any tenant is in arrears in the payment of rent or additional rent
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on the Closing Date, rents received from such tenant ninety (90) days after the
Closing Date shall be applied in the following order of priority: (a) to the
Buyer, so long as such tenant is in arrears for current or prior rent arising
after Closing, then (b) to Seller for all rent in arrears prior to the Closing
Date; and then (c) to Buyer with no further claim by Seller thereto. Except as
herein provided, Buyer is not under any obligation to collect rents in arrears
for the benefit of Seller. Any rents which are delinquent or otherwise not paid
at the time of Closing, and collected by Buyer within ninety (90) days after
Closing shall be apportioned as aforesaid and the portion to which Seller is
entitled shall be promptly remitted by Buyer to Seller. Seller shall have no
claim to rents collected ninety (90) days after the Closing Date.
15.1.2 Taxes. Real estate and personal property
taxes, if any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate and personal property taxes at the Closing
shall be upon the basis of the tax rate for the next preceding year applied to
the latest assessed valuation. Final adjustment will be made upon the actual
tax amount, when determined.
15.1.3 Deposits. Tax and utility company
deposits, if any.
15.1.4 Water and Sewer Charges. Water and sewer
charges and fire protection and inspection services based upon meter readings
to be obtained by Seller effective as of the Adjustment Date, or if not so
obtainable, a date not more than ten (10) days prior to the Adjustment Date,
and the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to the Closing will be apportioned on a per
diem basis from the date of such reading immediately prior thereto and Seller
shall pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or
payable in respect of any service and maintenance contracts assigned to Buyer
in accordance herewith.
15.1.6 Electricity, gas, steam and fuel.
Electricity, gas and steam and fuel oil, if any, based on meter readings or a
fuel company letter showing measurement on the day immediately preceding
Closing, and valued at current prices.
15.1.7 Security Deposits. Buyer shall receive a
check from Seller for the full amount of any security deposits, with accrued
interest, or a credit against the Purchase Price in said amount.
15.2 Future Installments of Taxes. If at Closing, the
Property or any part thereof shall be or shall have been affected by an
assessment or assessments which are or may become payable in installments, then
for purposes of this Agreement, all unpaid installments of any such assessment
shall be paid and discharged by Seller at Closing; provided, however, that
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installments which are not due or payable until after the Closing shall be
assumed by Buyer from and after Closing.
15.3 Application of Prorations. If such prorations
result in a payment due Buyer, the cash payable at Closing shall be reduced by
such sum. If such prorations result in a payment due Seller, the same shall be
paid by wire transfer of immediately available funds at Closing.
15.4 Schedule of Prorations. The parties shall endeavor to
jointly prepare a schedule of prorations for the Property no less than two (2)
days prior to Closing.
15.5 Escalations. With respect to any sums due under
leases for operating expenses incurred by 1120, MLCP or ECA, as the case may
be, and collected by Seller for the calendar year 1996 (the "1996 Expense
Escalations"), Seller shall provide to each tenant a statement of the amount of
the 1996 Expense Escalation due from such tenant, if any, and Seller shall be
entitled to bill such tenants for any amounts owed to such tenants; provided,
that, if Seller, in fact, owes any such tenants amounts based on actual costs
for calendar year 1996, Seller shall promptly pay such amounts to the
applicable tenants upon Seller"s determination of such actual costs. Any 1996
Expense Escalations paid to the Buyer after Closing shall be immediately
remitted to Seller. Seller shall not be entitled to any expense escalations for
the calendar year 1997, and Seller shall credit the Purchase Price with any
such amounts for calendar year 1997 collected as of the Closing.
15.6 Readjustments. The parties shall correct any errors
in prorations as soon after the Closing as amounts are finally determined.
16. BROKERS. Each party hereby represents and warrants to the
other that it has not employed or retained any broker or finder in connection
with the transactions contemplated by this Agreement other than Jackson Cross
Company (the "Broker"), to whom Seller alone shall be responsible to pay any
fee or commission that may be due, and that neither has had any dealings with
any other person or party which may entitle that person or party to a fee or
commission. Each party shall indemnify the other of and from any claims for
commissions by any person or party claiming such commission by or through the
indemnifying party, other than Broker, as to whom Seller alone shall be
responsible.
17. ESCROW AGENT. The parties hereto have requested that the
Deposit be held in escrow by the Escrow Agent to be applied at the Closing or
prior thereto in accordance with this Agreement. The Escrow Agent will deliver
the Deposit to Seller or to Buyer, as the case may be under the following
conditions:
17.1 Payment to Seller. To Seller on the Closing Date upon
the consummation of Closing or if Buyer breaches this Agreement and fails to
close in accordance with the terms and conditions stated herein.
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17.2 Notice of Dispute. If either Seller or Buyer believes
that it is entitled to the Deposit or any part thereof, it shall make written
demand therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a
copy thereof to the other party in the manner specified in Section 18.1 below.
The other party shall have the right to object to the delivery of the Deposit,
by filing written notice of such objections with the Escrow Agent at any time
within three (3) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set
forth the basis for objection to the delivery of the Deposit. Upon receipt of
such notice, the Escrow Agent shall promptly deliver a copy thereof to the
party who filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow
Agent shall have received the notice of objection provided for in 17.2 above
of this Section, in the manner and within the time therein prescribed, the
Escrow Agent shall continue to hold the Deposit until (i) the Escrow Agent
receives written notice from both Seller and Buyer directing the disbursement
of the Deposit in which case the Escrow Agent shall then disburse said Deposit
in accordance with said direction, or (ii) litigation arises between Seller
and Buyer, in which event the Escrow Agent shall deposit the Deposit with the
Clerk of the Court in which said litigation is pending, or (iii) the Escrow
Agent takes such affirmative steps as the Escrow Agent may, at the Escrow
Agent's option elect in order to terminate the Escrow Agent's duties including,
but not limited to, deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent
shall not be required to determine questions of fact or law, and may act upon
any instrument or other writing believed by it in good faith to be genuine and
to be signed and presented by the proper person, and shall not be liable in
connection with the performance of any duties imposed upon Escrow Agent by the
provisions of this Agreement, except for Escrow Agent's own willful default or
gross negligence. Escrow Agent shall have no duties or responsibilities except
those set forth herein. Escrow Agent shall not be bound by any modification of
this Agreement, unless the same is in writing and signed by Buyer and Seller,
and, if Escrow Agent's duties hereunder are affected, unless Escrow Agent shall
have given prior written consent thereto. In the event that Escrow Agent shall
be uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent shall be entitled to
hold and apply the Deposit, pursuant to Section 17.3, and may decline to take
any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications
required or permitted to be given under the terms of this Agreement shall be
in writing, and shall be deemed effective when (i) sent by
nationally-recognized overnight courier, (ii) facsimile with original
following by regular mail, (iii) deposited in the United States mail and sent
by certified mail, postage prepaid, addressed, or (iv) personally delivered,
as follows:
18.1.1 If to Buyer, addressed to:
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Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
with a copy in each instance to:
Eric L. Stern, Esquire
and Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
18.1.2 If to Seller, addressed to:
1120 Associates Limited Partnership
4A Eves Drive
Marlton, New Jersey 08053
with a copy in each instance to:
Robert Schwartz, Esquire
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddonfield Road
Suite 311
Pennsauken, New Jersey 08109
or to such-other address or addresses and to the attention of such other person
or persons as any of the parties may notify the other in accordance with the
provisions of this Agreement.
18.2 Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
18.3 Entire Agreement. All Exhibits attached to this
Agreement are incorporated herein and made a part hereof. This Agreement
constitutes the entire agreement between the parties hereto and supersedes all
prior negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
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18.4 Governing Law. This Agreement shall be construed
and interpreted in accordance with the laws of the State of New Jersey.
18.5 No Recording. This Agreement shall not be recorded
in the Clerk"s Office for Burlington County or in any other office or place of
public record.
18.6 Tender. Tender of Deed by Seller and of the
Purchase Price by Buyer, are hereby mutually waived.
18.7 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
18.8 Further Instruments. Seller will, whenever and as
often as it shall be reasonably request so to do by Buyer, and Buyer will,
whenever and as often as it shall be reasonably requested so to do by Seller,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any and all conveyances, assignments, correction instruments and
all other instruments and documents as may be reasonably necessary in order to
complete the transaction provided for in this Agreement and to carry out the
intent and purposes of this Agreement. All such instruments and documents
shall be satisfactory to the respective attorneys for Buyer and Seller. The
provisions of this Article shall survive the Closing.
18.9 Time. Time is of the essence. In the event the last
day permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude
the first day and include the last day of such time period.
18.10 Designation of Nominee; Assignment of Agreement.
Buyer shall have the right to designate Brandywine Operating Partnership, L.P.
to acquire title to the Premises hereunder.
18.11 Effective Date. Whenever the term or phrase
"effective date hereof" or "date hereof" or other similar phrases describing
the date this Agreement becomes binding on Seller and Buyer are used in this
Agreement, such terms or phrases shall mean and refer to the date on which a
counterpart or counterparts of this Agreement executed by Seller and Buyer are
deposited with the Escrow Agent.
18.12 Prevailing Party. To the extent an action, law suit,
hearing or mediation (an "Action") is instituted to enforce a provision of this
Agreement or to obtain the Deposit hereunder, the prevailing party in such
action shall be entitled to reimbursement of its counsel costs and fees in
connection with such Action.
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18.13 Confidentiality. Each of the parties hereto covenants
and agrees to hold the nature, content and the Purchase Price contained herein
in strict confidence, and other than disclosure required by the SEC and except
as may be necessary to comply with this Agreement, neither party shall disclose
the nature, content and the Purchase Price of this Agreement without the
express written consent of the other party.
19. SEC REPORTING (8-K) REQUIREMENTS.
For the period of time commencing on the date hereof and
continuing through the first anniversary of the Closing Date, and without
limitation of other document production otherwise required of Seller hereunder,
Seller shall, from time to time, upon reasonable advance written notice from
Buyer, provide Buyer and its representatives, with access to all financial and
other information pertaining to the period of Seller"s ownership and operation
of the Property, which information is relevant and reasonably necessary, in the
opinion of Buyer"s outside, third party accountants (the "Accountants"), to
enable Buyer and its Accountants to prepare financial statements in compliance
with any or all of (a) Rule 3-05 or 3-14 of Regulation S-X of the Securities
and Exchange Commission (the "Commission"), as applicable; (b) any other rule
issued by the Commission and applicable to Buyer; and (c) any registration
statement, report or disclosure statement filed with the Commission by, or on
behalf of Buyer; provided, however, that in any such event(s), Buyer shall
reimburse Seller for those reasonably documented third party, out-of-pocket
costs and expenses that Seller incurs to comply with the requirements of this
Section 19. Seller acknowledges and agrees that the following is a
representative (but incomplete) description of the information and
documentation that Buyer and the Accountants may require in order to comply
with (a), (b) and (c) above.
20. TAX DEFERRED EXCHANGE. MLCP intends to effectuate a "like-kind
exchange" pursuant to Section 1031 of the Internal Revenue Code, and to utilize
the MLCP Property as "Relinquished Property" and the sale thereof in connection
with such like-kind exchange. The Buyer shall fully cooperate, at no additional
cost to Buyer, with MLCP in effectuating any like-kind exchange, including
Replacement Property or other real property ("Replacement Parcel") identified
by MLCP provided that nothing herein shall require the Buyer to close on or
take title to any Replacement Parcel. MLCP"s effectuation of the like-kind
exchange prior to any closing shall not be a condition or contingency to the
MLCP"s obligations hereunder. MLCP shall be responsible for all costs and
expenses incurred in connection with the effectuation of a like-kind exchange
over and above those Buyer would incur in a straight purchase/sale. MLCP shall
indemnify and hold harmless Buyer form any and all losses, costs, expenses and
damages associated with Buyer"s participation in the exchange transaction. The
MLCP Property subject to this Agreement constitute Relinquished Property in the
Internal Revenue Code Section 1031 exchange.
21. OPTION. MLCP grants Buyer the exclusive right and option to buy
the Option Parcel for a period of 18 months from the Closing Date (the "Initial
Option Termination Date") for a purchase price of $1,000,000. On or before 30
business days prior to the Initial Option Termination Date, Buyer shall have
the one time right, upon payment of a $100,000 non- refundable option fee, to
extend the Option closing date to June 30, 2000. The Option shall be
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memorialized in an Option Agreement, the form of which Option Agreement to be
mutually agreed upon by the parties prior to Closing. If the Buyer exercises
the option to buy the Option Parcel, the Buyer shall close such transaction
within 15 days after notice of the exercise of such option. The transfer of the
title to the Option Parcel shall be by Bargain and Sale Deed with Covenants
Against Grantor's Acts and quit claim assignment of licenses, permits and
approvals and all other Seller rights and interests in and to the Option
Parcel, but shall otherwise be without representation, warranty or recourse of
any kind whatsoever.
22. EXCULPATION.
No recourse shall be had for any obligation of Brandywine
Realty Trust under this Agreement or under any document executed in connection
herewith or pursuant hereto, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being expressly waived and released by 1120, MLCP
and ECA and all parties claiming by, through or under 1120, MLCP, ECA, and each
of them.
23. ALL OR NOTHING.
Each of 1120, MLCP and ECA's respective obligations hereunder
are expressly subject to and conditioned upon completion of closing under this
Agreement of all, but not less than all of the 1120 Property, the MLCP Property
and the ECA Property. Notwithstanding the foregoing, the obligations of each of
the entities constituting the Seller hereunder are independent of the other's
obligations, and such obligations shall not be joint or several.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
1120 ASSOCIATES LIMITED BRANDYWINE REALTY TRUST,
PARTNERSHIP a Maryland Real Estate Investment Trust
By: Palomino Corporation, its authorized
general partner
By: /s/ Joseph D. Gonnelli By: /s/ Gerard H. Sweeney
-------------------------------------- ----------------------------------------
Joseph D. Gonnelli, Vice President Gerard H. Sweeney,
President and Chief Executive Officer
MLCP ASSOCIATES LIMITED EXECUTIVE COURT ASSOCIATES
PARTNERSHIP LIMITED PARTNERSHIP
By: MLCP General Corporation, its authorized By: Palomino Corporation, its authorized
general partner general partner
By: /s/ Joseph D. Gonnelli By: /s/ Joseph D. Gonnelli
-------------------------------- ----------------------------------------
Joseph D. Gonnelli, President Joseph D. Gonnelli, Vice President
Agreed to by Escrow Agent with regard
to the obligations, terms, covenants
and conditions contained in this
Agreement relating to Escrow Agent.
Sherman, Silverstein, Kohl, Rose & Podolsky, P.A.
By: /s/ Robert Schwartz
----------------------------------
Robert Schwartz, a Shareholder
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AGREEMENT OF SALE
INDEX
Section Page
----
1. PROPERTY BEING SOLD......................................................................................2
1.1 Real Property...................................................................................2
1.2 Personal Property...............................................................................3
1.3 Leases..........................................................................................4
1.4 Right to Names..................................................................................4
2. PURCHASE PRICE AND MANNER OF PAYMENT.....................................................................4
2.1 Purchase Price..................................................................................4
2.2 Manner of Payment...............................................................................4
2.2.1 Deposit................................................................................4
2.2.2 Assumption of Sun Loan; Cash Balance...................................................4
3. TITLE....................................................................................................5
4. COVENANTS................................................................................................5
4.1 Maintenance.....................................................................................5
4.2 Alterations.....................................................................................5
4.3 Lease...........................................................................................5
4.4 Security Deposits...............................................................................6
4.5 Bill Tenants....................................................................................6
4.6 Notice to Buyer.................................................................................6
4.7 Comply with Leases..............................................................................6
4.8 No New Agreements...............................................................................7
4.9 Tax Disputes....................................................................................7
4.10 No Removal of Personalty........................................................................7
5. REPRESENTATIONS AND WARRANTIES...........................................................................7
5.1 Seller's Authority For Binding Agreement........................................................7
5.2 Employment on "At-Will" Basis...................................................................8
5.3 Service Contracts...............................................................................8
5.4 Condemnation....................................................................................9
5.5 No Lawsuits.....................................................................................9
5.6 No Tax Assessments.............................................................................10
5.7 Leases.........................................................................................10
5.8 Compliance with Law............................................................................13
5.9 Insurance......................................................................................15
5.10 Intentionally Omitted..........................................................................15
5.11 No Brokers.....................................................................................15
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5.12 Utilities......................................................................................16
5.13 Permits, Approvals and Certificates............................................................16
5.14 Good Title to Property.........................................................................16
5.15 All Taxes and Assessments Paid.................................................................16
5.16 FIRPTA.........................................................................................16
5.17 Intentionally Omitted..........................................................................16
5.18 Construction Liens.............................................................................16
5.19 Inventory Schedule.............................................................................17
5.20 Charges, Fees and Assessments..................................................................17
5.21 Rights to Purchase.............................................................................17
5.22 No Outstanding Obligations.....................................................................17
5.23 Access.........................................................................................17
5.24 Abatement Programs.............................................................................18
5.25 Development Agreements.........................................................................18
5.26 Structural Representation......................................................................18
5.27 Correct Copies of Documents....................................................................19
6. POSSESSION..............................................................................................19
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.........................................................19
7.1 Title Binder...................................................................................19
7.2 Survey.........................................................................................20
7.3 Physical Inspection............................................................................20
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..............................................................20
9. FIRE OR OTHER CASUALTY..................................................................................21
9.1 Maintain Insurance.............................................................................21
9.2 Minimal Damage.................................................................................21
9.3 Substantial Damage.............................................................................21
9.4 Closing After Substantial Damage...............................................................21
9.5 Rent Insurance.................................................................................21
10. CONDEMNATION............................................................................................21
11. EXPENSE ALLOCATIONS.....................................................................................22
12. CLOSING.................................................................................................22
12.1 Time and Date and Place........................................................................22
12.2 Documents......................................................................................23
12.2.1 Seller's Documents and Other Items....................................................23
12.2.1.1 Deeds................................................................23
12.2.1.2 Special Warranty Bills of Sale.......................................23
12.2.1.3 Original Leases......................................................23
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12.2.1.4 Original Licenses, Contract Documents and Other Personal
Property.............................................................23
12.2.1.5 Assignment of Leases.................................................23
12.2.1.6 Assignment of Licenses, Contract Documents and Other
Personal Property....................................................23
12.2.1.7 FIRPTA Certificates..................................................23
12.2.1.8 Tenant Letter........................................................24
12.2.1.9 .....................................................................24
12.2.1.10 Title Insurance Certificates.........................................24
12.2.1.11 Certified Rent Roll..................................................24
12.2.1.12 Seller Certificate...................................................24
12.2.1.13 Organization Certifications..........................................24
12.2.1.14 Keys.................................................................24
12.2.1.15 Intentionally Omitted................................................24
12.2.1.16 Intentionally Omitted................................................24
12.2.1.17 Mortgagee Estoppel...................................................24
12.2.1.18 ISRA Non-Applicability Letter........................................25
12.2.2 Buyer's Documents....................................................25
12.2.2.1 .............................................................................25
12.2.2.2 .............................................................................25
12.2.3 Title Insurance......................................................25
12.2.4 Necessary Documents..................................................25
13. DEFAULT; REMEDIES.......................................................................................25
13.2....................................................................................................26
13.3 Buyer's Out-of-Pocket Costs.....................................................................26
14. CONDITIONS PRECEDENT TO CLOSING.........................................................................27
14.1 Correctness of Warranties and Representations. ...............................................27
14.2 Compliance with Terms and Conditions...........................................................27
14.3 Buyer's Review of Structural and Environmental Status, Fleer Corp. and ECA
Title..........................................................................................27
14.4 Estoppel Certificate from Evesham Township and Mt. Laurel Township. ...........................27
14.5 Consent of Sun.................................................................................27
15. PRORATIONS..............................................................................................28
15.1 Operating Expenses.............................................................................28
15.1.1 Rents.................................................................................28
15.1.2 Taxes.................................................................................29
15.1.3 Deposits..............................................................................29
15.1.4 Water and Sewer Charges...............................................................29
15.1.5 Assigned Contracts....................................................................29
15.1.6 Electricity, gas, steam and fuel......................................................29
15.1.7 Security Deposits.....................................................................29
15.2 Future Installments of Taxes...................................................................29
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15.3 Application of Prorations......................................................................30
15.4 Schedule of Prorations.........................................................................30
15.5 Escalations....................................................................................30
15.6 Readjustments..................................................................................30
16. BROKERS.................................................................................................30
17. ESCROW AGENT............................................................................................30
17.1 Payment to Seller..............................................................................30
17.2 Notice of Dispute..............................................................................31
17.3 Escrow Subject to Dispute......................................................................31
17.4 Escrow Agent's Rights and Liabilities..........................................................31
18. GENERAL PROVISIONS......................................................................................31
18.1 Notices........................................................................................31
18.1.1.........................................................................................31
18.1.2.........................................................................................32
18.2 Binding Effect.................................................................................32
18.3 Entire Agreement...............................................................................32
18.4 Governing Law..................................................................................33
18.5 No Recording...................................................................................33
18.6 Tender.........................................................................................33
18.7 Execution in Counterparts......................................................................33
18.8 Further Instruments............................................................................33
18.9 Time...........................................................................................33
18.10 Designation of Nominee; Assignment of Agreement................................................33
18.11 Effective Date.................................................................................33
18.12 Prevailing Party...............................................................................33
18.13 Confidentiality................................................................................34
19. SEC REPORTING (8-K) REQUIREMENTS.........................................................................34
20. ........................................................................................................34
22. EXCULPATION.............................................................................................35
23. ALL OR NOTHING..........................................................................................35
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Exhibits to Agreement of Sale
"A-1" - Legal Description - 1120
"A-2-A" - Legal Description - MLCP
"A-2-B" - Legal Description - Option Parcel
"A-3" - Legal Description - ECA Premises
"B-1" - Schedule of Inventory - 1120
"B-2" - Schedule of Inventory - MLCP
"B-3" - Schedule of Inventory - ECA
"C-1" - Permitted Exceptions - 1120
"C-2" - Permitted Exceptions - MLCP
"C-3" - Permitted Exceptions - ECA
"D-1" - Rent Roll - 1120
"D-2" - Rent Roll - MLCP
"D-3" - Rent Roll - ECA
"E-1" - Service Contracts - 1120
"E-2" - Service Contracts - MLCP
"E-3" - Service Contracts - ECA
"F-1" - Litigation - 11120
"F-2" - Litigation - MLCP
"F-3" - Litigation - ECA
"G-1" - Insurance - 1120
"G-2" - Insurance - MLCP
"G-3" - Insurance - ECA
Schedule of Tenant Improvements
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AGREEMENT OF SALE
1120 EXECUTIVE PLAZA,
MT. LAUREL CORPORATE CENTER,
AND
EXECUTIVE CENTER
BETWEEN
BRANDYWINE REALTY TRUST
AND
1120 ASSOCIATES LIMITED PARTNERSHIP,
MLCP ASSOCIATES LIMITED PARTNERSHIP,
AND
EXECUTIVE COURT ASSOCIATES LIMITED
PARTNERSHIP
DATED: JANUARY 20, 1997
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