EXHIBIT 10.51
AGREEMENT OF ASSIGNMENT OF AGREEMENT FOR PURCHASE AND SALE OF
REAL ESTATE AND RELATED PROPERTY (the "Assignment Agreement") entered into this
23rd day of October, 1996, between BRYEMERE, L.P., a Pennsylvania limited
partnership ("Contract Vendee"), having an office c/o 000 Xxxxx Xxxxx Xxxx, Xxxx
xx Xxxxxxx, Xxxxxxxxxxxx 00000 and FIVE SENTRY REALTY ASSOCIATES L.P.
("Assignee"), a Pennsylvania limited partnership, having an office c/o Cali
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, as of the 17th day of July, 1996, an Agreement for
Purchase and Sale of Real Estate and Related Property was entered into between
Mellon Bank, N.A., as Ancillary Trustee under Trust Agreement dated August 10,
1984, as seller ("Seller"), and Contract Vendee, as purchaser, covering the
purchase and sale of premises known as Five Sentry Parkway, East and West, City
of Blue Xxxx, Xxxxxxxxxx County, Pennsylvania, which agreement was amended by
that certain letter agreement (the "Letter Agreement") dated September 6, 1996
(collectively, the "Sales Agreement") and more particularly described in Exhibit
"A" annexed hereto ("Premises"); and
WHEREAS, Contract Vendee is desirous of assigning to Assignee
all of the right, title and interest of Contract Vendee in and to the Sales
Agreement; and
WHEREAS, the parties agree that any capitalized terms not
otherwise defined herein shall have the meaning attributed to them in the Sales
Agreement.
NOW, THEREFORE, in consideration of the Premises and the
mutual covenants expressed herein, the parties hereto hereby agree as follows:
1. ASSIGNMENT OF SALES AGREEMENT; ASSIGNMENT PRICE.
(a) So long as the conditions to the Closing have occurred,
Contract Vendee agrees to assign to Assignee all of Assignor's rights, titles
and interests in and to the Sales Agreement (but not including the Deposit
posted by Contract Vendee with Seller), which assignment shall be effective as
of the Closing, on the terms and conditions set forth below, pursuant to the
Assignment of Sales Agreement (the "Assignment") annexed hereto as Exhibit "B".
(b) The assignment price payable to Contract Vendee on account
of this Assignment Agreement is of One Million Five Hundred Thousand and xx/100
($1,500,000.00) Dollars (the "Assignment Price"), payable as follows:
(i) Two Hundred Thousand and xx/100 ($200,000.00)
Dollars (the "Deposit") to be paid to Xxxxxxx Xxxxxx Gold and Xxxxxx and Pryor,
Cashman, Xxxxxxx & Xxxxx (collectively, the "Escrow Agent") upon delivery to
Assignee of a fully executed copy of this Assignment Agreement, which Deposit
shall be held in escrow in accordance with the provisions hereinafter set forth;
and
(ii) One Million Three Hundred Thousand and xx/100
($1,300,000.00) Dollars at Closing (as defined below), by wire transfer of
immediately available funds to Contract Vendee and as provided herein.
(c) At and only upon the Closing, Assignee shall also pay to
Seller the amount due Seller under the Sales Agreement on account of the
Purchase Price thereunder in an amount equal to Ten Million Nine Hundred
Thousand and xx/100 ($10,900,000.00) Dollars, subject to adjustment as provided
in the Sales Agreement, which Contract Vendee represents and warrants to
Assignee is the Purchase Price. In the event that Seller has applied the Deposit
posted by Contract Vendee to the Purchase Price under the Sales Agreement,
Assignee shall reimburse Contract Vendee for the Deposit at Closing and shall
pay to Seller the Purchase Price in an amount equal to $10,700,000.00.
2. INTENTIONALLY OMITTED
3. MATTERS TO WHICH THIS SALE IS SUBJECT
(a) Except as set forth in subsection (b) below, title to the
Real Property and to the Personal Property shall be as set forth in Section 6 of
the Sales Agreement. Contract Vendee represents and warrants to Assignee that it
has not issued any notice of any defect, encumbrance or other title objection
and covenants that it (i) shall not issue any such notice without Assignee's
prior consent, (ii) will issue any such notice which Assignee so requests and
(iii) will exercise the options set forth in Section 6.C. of the Sales Agreement
as directed by Assignee.
(b) Notwithstanding the provisions of subsection (a) above,
Contract Vendee shall cause to be terminated and removed of record the matters
described in No. 17 of Schedule B, Section 1 of the Title Commitment, and title
to the Premises shall conveyed to Assignee free and clear of such matters at the
Closing.
4. REPRESENTATIONS AND WARRANTIES.
(a) Contract Vendee, to induce Assignee to enter into this
Assignment Agreement and to complete the Closing, makes the following
representations and warranties to Assignee, which representations and warranties
are true and correct as of the date of this Assignment Agreement, and shall be
true and correct at and as of the Closing in all respects as though such
representations and warranties were made both at and as of the date of this
Assignment Agreement, and at and as of the Closing:
(i) Annexed hereto as Exhibit "C" annexed hereto is a
true, complete and correct copy of the Sales Agreement, and the Sales Agreement
has not been modified, changed or amended (other than by the Letter Agreement);
(ii) The Sales Agreement is in full force and effect,
is a valid contract and is legally enforceable in accordance with its terms, and
represents the entire agreement between Contract Vendee and Seller with respect
to the Premises;
(iii) Contract Vendee has, to the best of its
knowledge, heretofore timely performed and observed all of the duties,
obligations, terms, covenants and conditions of the Sales Agreement on its part
to be performed or observed thereunder;
(iv) All representations contained in the Sales
Agreement made by Contract Vendee, and to the best knowledge of Contract Vendee,
made by Seller, are and continue to be true and correct;
(v) Neither Seller nor Contract Vendee has declared a
default under the Sales Agreement, and, to the best knowledge of Contract
Vendee, no event has occurred or failed to occur which, but for the giving of
notice or passage of time, or both, would constitute a default thereunder by
either Seller or Contract Vendee;
(vi) Contract Vendee has not assigned, conveyed,
encumbered, mortgaged, pledged or transferred all or any part of its interest in
the Sales Agreement;
(vii) No person, firm, corporation or other entity
other than Assignee has any right or option to acquire the Premises or any part
thereof arising from any act of Contract Vendee;
(viii) Contract Vendee has delivered or made
available to Assignee true, correct and complete copies any and all documents,
instruments, agreements and other items in its possession with respect to the
Premises, including without limitation the Leases, the Service Contracts, the
Title Commitment, the Required Number of Estoppel Certificates, Seller's
Estoppel Certificates, the Information Package, any schedules, summaries and
projections of tenant improvement costs and leasing commission obligations,
tenant profiles and summaries and structural, engineering and environmental
assessment reports with respect to the Premises;
(ix) Contract Vendee has not received from Seller or
any other party any notice of any litigation, insurance claim, personal injury,
proceeding (zoning or otherwise) or governmental investigation pending or
threatened against or relating to the Premises or the transaction contemplated
by the Sales Agreement other than as set forth on Exhibit "D" annexed hereto; to
the extent any matter is set forth on Exhibit "D"; Contract Vendee represents
and warrants that there is adequate liability insurance coverage for same;
(x) To the best knowledge of Contract Vendee, the
only leases, tenancies, licenses and other agreements for the use and occupancy
of any portion of the Premises other than the Leases are those leases,
tenancies, licenses and other agreements listed on Exhibit "E" (the "New
Leases"), which Exhibit is a true, correct and complete list of New Leases; the
representations and warranties of Seller with respect to the Leases set forth in
Sections 8.A.9 and 8.A.10. of the Sales Agreement are hereby deemed repeated in
their entirety in this Assignment Agreement by Contract Vendee with respect to
the New Leases;
(xi) Annexed hereto as Exhibit "F" is a true,
complete and correct schedule of the leasing commission agreements for the New
Leases. True, complete and correct copies of said agreements are annexed hereto
as a schedule to Exhibit "F";
(xii) To the best knowledge of Contract Vendee, there
has been no material adverse change in the status of the Premises or any
contracts or agreements relating thereto (including without limitation
additional leases, renewals, extensions or amendments thereto, or additional
service contracts) except for the New Leases;
(xiii) The execution and delivery of this Assignment
Agreement and the performance by Contract Vendee of its obligations hereunder
will not conflict with or result in a breach of any law, regulation or order, or
any agreement or instrument to which Contract Vendee is a party or by which
Contract Vendee is bound; and this Assignment Agreement and the documents to be
delivered by Contract Vendee pursuant to this Assignment Agreement will each
constitute the legal, valid and binding obligations of Contract Vendee,
enforceable in accordance with their respective terms, covenants and conditions
subject only to the Seller's consent to the assignment of the Sales Agreement to
Assignee as set forth in the Sales Agreement; and there are no claims, defenses
(personal or otherwise) or offsets to the validity of or enforceability against
Contract Vendee of this Assignment Agreement and the documents to be delivered
pursuant hereto;
(xiv) Intentionally Deleted.
(xv) Intentionally Deleted.
(xvi) Contract Vendee has not received any Lease
Proposals from Seller nor has Contract Vendee consented to or been deemed to
have consented to any Lease Proposals except for the sublease identified on
Exhibit "I";
(xvii) Annexed hereto as Exhibit "J" is a true and
correct list of Service Contracts which have been assigned to and/or assumed by
Contract Vendee under the Sales Agreement;
(xviii) As of the date of Closing, there are no
payments required to be paid with respect to the period prior to Closing under
the documents specified in Xx. 0, Xx. 0 and No. 12 of Schedule B, Section 2 of
the Title Commitment; and
(xix) Contract Vendee shall maintain a net worth of
at least $500,000 for at lease one (1) year following the Closing.
(b) Assignee, to induce Contract Vendee to enter into this
Assignment Agreement and to complete the Closing, hereby represents and warrants
that the execution and delivery of this Assignment Agreement and the performance
by Assignee of its obligations hereunder will not conflict with or result in a
breach of any law, regulation or order, or any agreement or instrument to which
Assignee is a party or by which Assignee is bound; and this Assignment Agreement
and the documents to be delivered by Assignee pursuant to this Assignment
Agreement will each constitute the legal, valid and binding obligations of
Assignee, enforceable in accordance with their respective terms, covenants and
conditions; and there are no claims, defenses (personal or otherwise) or offsets
to the validity of or enforceability against Assignee of this Assignment
Agreement and the documents to be delivered pursuant hereto.
5. COVENANTS.
Contract Vendee hereby covenants and agrees that between the
date hereof and the Closing, and with respect to the Closing, it shall perform
and observe the following with respect to the Premises and the Sales Agreement:
(a) Contract Vendee shall continue to timely perform and
observe all of the duties, obligations, terms, covenants and conditions of the
Sales Agreement on its part to be performed or observed thereunder;
(b) Contract Vendee shall not modify, terminate, amend,
cancel, surrender or, with the exception of this Assignment Agreement, make any
agreement affecting the Sales Agreement without first obtaining Assignee's prior
written consent, which will not be unreasonably withheld or delayed;
(c) Contract Vendee shall not grant any consents or approvals
with respect to the Premises and shall not enter into or caused to be entered
into any agreements, leases, tenancies, licenses or contracts with respect to
the Premises without first obtaining Assignee's prior written consent, which
will not be unreasonably withheld or delayed;
(d) Contract Vendee shall use its best efforts to cause Seller
(i) to operate and maintain the Premises in the ordinary course of business and
use reasonable efforts to reasonably preserve for Assignee the relationships of
Seller and Seller's tenants, suppliers, managers, employees and others having
on-going relationships with the Premises, (ii) to complete any capital
expenditure program currently in process or anticipated to be completed through
the date of closing under the Sales Agreement and (iii) not to defer taking
actions or spending its funds, or otherwise manage the Premises differently, due
to the pending sale of the Premises, except as specifically permitted in the
Sales Agreement;
(e) Contract Vendee shall forward to Assignee all notices,
communications, demands or requests received by Contract Vendee with respect to
the Premises promptly after receipt;
(f) Contract Vendee shall advise Seller that Contract Vendee
has assigned the Sales Agreement to Assignee effective as of the Closing, and
shall use its best efforts to obtain and deliver an original counterpart of
Seller's unconditional written consent to Assignee as to such assignment in form
and substance reasonably satisfactory to Assignee, and cause Seller to prepare
and execute all documents, items and instruments required to be delivered at
Closing under the Sales Agreement in the name and for the benefit of Assignee.
The Seller's consent to the assignment of the Sales Agreement to Assignee shall
be unconditional or, if conditions are imposed, Contract Vendee, and not
Assignee, shall be required to perform or satisfy same, except that Assignee
shall agree to be bound by and assume the obligations of the Purchaser under the
Sales Agreement;
(g) Contract Vendee shall include Assignee and its agents in
all aspects in the closing of the Sales Agreement, including by way of example
and not limitation, closing documents and closing adjustments provided that
Closing under this Assignment Agreement occurs simultaneously with closing under
the Sales Agreement;
(h) Contract Vendee shall cooperate in all respects with
Assignee in connection with the acquisition by Assignee of the Premises;
(i) Contract Vendee shall cause to be completed, at no cost to
Assignee, no later than December 31, 1996, all parking lot renovations in
accordance with the revised layout plans illustrating a minimum of 448
additional parking spaces (3.4 spaces per thousand square feet) attached hereto
as Exhibit "K", in a good "and workmanlike manner, lien free and in accordance
with all applicable laws and all insurance requirements. Contract Vendee shall
deliver (or cause to be delivered) to Assignee within ten (10) days following
completion of the work, (x) a copy of a final, unconditional Certificate of
Occupancy (or other reasonable documentary proof) evidencing the completion of
such work in accordance with law, (y) a certificate from a licensed architect
that such work has been completed in accordance with law and the plans attached
as Exhibit "K", and (z) evidence reasonably satisfactory to Assignee and its
title company that such work has been paid for in full and free from any liens.
Contract Vendee shall indemnify, defend and hold Assignee harmless from and
against all claims, suits, liens, actions proceedings, liabilities, damages and
expenses (including, without limitation, reasonable attorneys fees) arising out
of or relating to the performance of the work (including, without limitation,
any injury or damage to property) or the failure liensto complete the same in
accordance with this paragraph. The provisions of this paragraph shall survive
the closing; and
(j) Contract Vendee shall use its best efforts to cause the
Seller to perform all of its covenants and obligations under the Sales Agreement
in accordance with its terms up to the date of the Closing.
6. ASSIGNEE'S RIGHTS RESPECTING SALES AGREEMENT.
If Contract Vendee shall fail to obtain Seller's consent to
the assignment of the Sales Agreement to Assignee in accordance with Section
5(f) above, Contract Vendee shall notify Assignee of such failure and Contract
Vendee shall close title to the Premises in its own name and immediately
thereafter convey title to the Premises to Assignee upon, and subject to, the
terms and conditions set forth in the Sales Agreement as modified by this
Assignment Agreement except that: (i) at the Closing, Assignee shall pay
Contract Vendee (or, at the Contract Vendee's direction, the Seller) the amount
due Seller under the Sales Agreement on account of the Purchase Price in an
amount equal to $10,900,000.00, subject to adjustment as provided herein and in
the Sales Agreement; (ii) Contract Vendee shall be deemed to have made, for the
benefit of Assignee, all representations, warranties and covenants of the Seller
contained in the Sales Agreement, and Contract Vendee shall execute and deliver
to Assignee at the Closing a certification of same; and (iii) Contract Vendee
shall pay, and indemnify and hold Assignee harmless from, all costs and expenses
relating to or arising out of Contract Vendee's failure to obtain the consent of
the Seller to the assignment of the Sales Agreement to Assignee including,
without limitation, Contract Vendee's closing title to the Premises and
conveyance of same to Assignee, all transfer taxes, title insurance fees and
premiums and recording fees, but excluding Assignee's attorney's fees incurred
in connection with such transaction, which obligation shall survive the Closing.
7. ITEMS TO BE DELIVERED OR CAUSE TO BE DELIVERED BY CONTRACT
VENDEE ON THE CLOSING DATE
On the Closing date, Contract Vendee, at its sole cost and
expense, will deliver or cause to be delivered to Assignee the following:
(a) All of the documents, items and instruments to be
delivered by Seller and Contract Vendee under and pursuant to the Sales
Agreement;
(b) Any documents reasonably required by Assignee or necessary
in order to effectuate the transactions contemplated by this Assignment
Agreement, including by way of example and not limitation, affidavits,
assurances, acknowledgments, deeds, and transfer tax returns;
(c) The Assignment;
(d) Seller's written consent and approval to the assignment of
the Sales Agreement to Assignee as provided in Section 5(f) above (subject,
however, to Section 6 above);
(e) An affidavit on account of Contract Vendee in the form of
Exhibit "G", FIRPTA Affidavit;
(f) Any agreements contracts, reports, analysis, studies,
leases, licenses, tenancies, material, documents and items with respect to the
Premises in the possession of Contract Vendee or required to be delivered to
Assignee pursuant to the terms hereof which have not previously been delivered
to Assignee;
(g) All estoppel certificates required to be delivered by
Seller pursuant to Section 10.D.(ii) of the Sales Agreement and those estoppel
certificates which Contract Vendee has acknowledged as having been
satisfactorily delivered pursuant to Paragraph 2 of the Letter Agreement;
(h) The Replacement Reserve and the Common Area Reserve
described in Section 17 hereof, together with Escrow Agreement I and Escrow
Agreement II (as hereinafter defined); and
(i) All other documents, instruments and materials required to
be delivered to Assignee pursuant to the terms of this Assignment Agreement.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
The representations, warranties and obligations of Contract
Vendee set forth in Sections 4(a)(i), (vi), (vii) and (xix) of this Assignment
Agreement shall remain in effect for a period of one (1) year following the
Closing and thereafter if Assignee shall have given to Contract Vendee notice of
a breach thereof within one (1) year period.
9. OBLIGATIONS WITH RESPECT TO SALES AGREEMENT.
Contract Vendee and Assignee hereby agree as to the following
with respect to certain of the obligations of Contract Vendee under the Sales
Agreement and this Assignment Agreement:
(a) Contract Vendee shall pay an amount which is equal to the
amount Contract Vendee is obligated to pay pursuant to Section 9.A. of the Sales
Agreement, all realty transfer taxes, recordation and documentary stamps and
taxes imposed on account of the Assignment Price, and one-half of all reasonable
escrow fees. Contract Vendee's tax obligation attributable to the Assignment
Price shall be held in escrow by Pryor, Cashman, Xxxxxxx & Xxxxx ("PCS&F")
pending a final determination by the Pennsylvania Supreme Court regarding taxes
of this type. If it is finally determined that said tax is due, then such amount
shall be promptly paid to the appropriate taxing authority; if it is determined
that no such tax is due, then such amount shall be promptly returned to Contract
Vendee together with any interest thereon.
(b) Any claims arising out of Contract Vendee's entry upon the
Premises shall be the responsibility of Contract Vendee, and any claims arising
out of Assignee's entry upon the Premises shall be the responsibility of
Assignee;
(c) Contract Vendee shall be obligated to make the payments
required of it pursuant to Section
9. of the Sales Agreement;
(d) Contract Vendee shall be obligated to make all payments
due on account of outstanding or deferred leasing commissions and costs for
tenant improvements for all Leases (including but not limited to the obligations
under the Merck lease and Selas Fluids lease) executed prior to Closing under
the Sales Agreement, and all Leasing Costs with respect to (i) New Leases
executed prior to Closing under the Sales Agreement, (ii) extensions or
expansions of existing Leases executed prior to Closing under the Sales
Agreement, and (iii) the failure of a tenant to exercise a cancellation option
(if any) contained in a New Lease executed prior to Closing under the Sales
Agreement. The foregoing obligations shall survive Closing;
(e) Contract Vendee shall cause Seller to pay one-half of the
cost of the title commitment and the new owner's title insurance policy insuring
Assignee; and
(f) Contract Vendee shall deliver to Assignee reasonably
satisfactory evidence that the base amount to be used for calculating operating
expense escalation payments under each of the Merck leases shall be a total of
no less than $639,668.
10. TITLE.
Notwithstanding anything to the contrary contained in the
Sales Agreement, title to the Premises shall be insured by Commonwealth Land
Title Insurance Company or such other title company selected by Assignee (with
the consent of Seller, to the extent such consent is required under the Sales
Agreement) which is licensed in the State of Pennsylvania (the "Title Company").
If title to the Premises is not conveyed to Assignee pursuant to the Sales
Agreement and this Assignment Agreement as a result of any act or omission of
Contract Vendee, Contract Vendee shall be responsible for all title fees, survey
expenses and search charges of the Title Company. In all other events, Assignee
and Seller shall be responsible for the premiums, costs and expenses of the
Title Company.
11. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
The obligations of Assignee to accept the Assignment, to
acquire the Premises and to perform the other covenants and obligations to be
performed by Assignee on the Closing date shall be subject to the following
conditions (all or any of which may be waived, in whole or in part, by
Assignee):
(a) The representations and warranties made by Seller in the
Sales Agreement and Contract Vendee in this Assignment Agreement shall be true
and correct in all respects with the same force and effect as though such
representations and warranties had been made on and as of the Closing, except
that for purposes of this paragraph (a), the representations and warranties of
Contract Vendee shall be without regard to any knowledge standard of Contract
Vendee.
(b) Seller and Contract Vendee, respectively, shall have
performed all covenants and obligations undertaken by Seller in Section 10 of
the Sales Agreement and Contract Vendee in Section 5 of this Assignment
Agreement in all respects and complied with all conditions required by the Sales
Agreement and this Assignment Agreement to be performed or complied with by it
on or before the Closing.
(c) The satisfaction by Seller of its obligations as set forth
in Section 8.D., 9.B.4., 9.B.5., 10.D., 10.E. and 10.G. of the Sales Agreement
and which shall be subject to Assignee's approval, which approval shall not be
unreasonably withheld or delayed.
(d) The Title Company is prepared to issue to Assignee a Title
Policy meeting the requirements set forth in Section 6. of the Sales Agreement
subject only to the payment of the premium therefor by Assignee.
(e) Seller and Contract Vendee, respectively, shall have
delivered to Assignee all of the documents enumerated in Section 10.A. and 10.B.
of the Sales Agreement and Section 7 of this Assignment Agreement subject only
to the payment of the premium therefore by Assignee.
12. CLOSING.
The closing of title shall take place on or about November 1,
1996 (the "Closing"), at the time and location specified in the Sales Agreement,
unless extended in accordance with this Assignment Agreement. This transaction
shall be consummated simultaneously with the transaction covered by the Sales
Agreement. The Premises shall be conveyed directly from the Seller to Assignee
at the Closing so as to vest title to the Premises in the Assignee pursuant to
the terms of the Sales Agreement subject, however, to the terms of Section 6
hereof.
13. INTENTIONALLY OMITTED
14. REMEDIES.
(a) In the event Assignee fails to perform on the Closing,
Assignee's sole liability and Contract Vendee's sole recourse shall be limited
to the amount of the Deposit. Contract Vendee agrees that retention of the
Deposit constitutes fixed and liquidated damages resulting from Assignee's
default, and Contract Vendee waives any other claim, at law or in equity, either
against Assignee or against any person, known or unknown, disclosed or
undisclosed.
(b) (i) If, after complying with the terms of this Assignment
Agreement, Contract Vendee shall be unable to perform in accordance with the
terms of this Assignment Agreement, Contract Vendee shall direct the Escrow
Agent to refund to Assignee the Deposit, whereupon this Assignment Agreement
shall be deemed cancelled and the parties hereto shall be released of all
obligations and liabilities under this Assignment Agreement, except those that
are expressly stated to survive the cancellation or termination of this
Assignment Agreement.
(ii) In the event of any default on the part of
Seller or Contract Vendee, or Seller's or Contract Vendee's failure to comply
with any representation, warranty or agreement in the Sales Agreement or herein,
respectively, Assignee shall be entitled to (a) terminate this Assignment
Agreement upon notice to Contract Vendee, in which event the Deposit shall be
returned by Escrow Agent to Assignee and neither party shall thereafter have any
further obligations under this Assignment Agreement, (b) commence an action
against Seller, Contract Vendee or both seeking specific performance of Seller's
and Contract Vendee's obligations under the Sales Agreement and this Assignment
Agreement, respectively or (c) in the event of a willful default by Seller under
the Sales Agreement, Contract Vendee under the Assignment Agreement, or both,
Assignee may pursue any and all of its remedies at law or in equity or any
combination thereof against the defaulting party.
15. ESCROW AGREEMENT
The parties agree that the Deposit shall be held by the Escrow
Agent in escrow and disposed of only in accordance with the provisions of this
Section 15. The parties agree that if the Deposit is cash, such cash shall be
invested in an assignable interest-bearing certificate of deposit, money market
fund, treasury xxxx or other similar security approved by Contract Vendee and
Assignee, and all interest accruing thereon shall be paid to Assignee, except as
otherwise provided herein.
(a) The Escrow Agent will deliver the Deposit to Contract
Vendee or to Assignee, as the case may be, under the following conditions:
(i) To Contract Vendee at Closing;
(ii) To Contract Vendee upon receipt of written
demand therefor, such demand stating that Assignee has defaulted in the
performance of this Assignment Agreement and specifically setting forth the
facts and circumstances underlying such default. The Escrow Agent shall not
honor such demand until more than five (5) days have elapsed after the Escrow
Agent has mailed a copy of such demand to Contract Vendee or Assignee, as the
case may be, nor thereafter if the Escrow Agent shall have received written
notice of objection from Assignee in accordance with the provisions of clause
(b) of this Section 15; or
(iii) To Assignee upon receipt of written demand
therefor, such demand stating that this agreement has been terminated in
accordance with the provisions hereof, or Contract Vendee has defaulted in the
performance of this Assignment Agreement, and specifically setting forth the
facts and circumstances underlying the same. The Escrow Agent shall not honor
such demand until more than five (5) days have elapsed after the Escrow Agent
has mailed a copy of such demand to Contract Vendee or Assignee, as the case may
be, nor thereafter, if the Escrow Agent shall have received written notice of
objection from the other party in accordance with the provisions of clause (b)
of this Section 15.
(b) Upon the filing of a written demand for the Deposit by
Assignee or Contract Vendee, pursuant to subclause (ii) or (iii) of clause (a)
of this Section 15, the Escrow Agent shall promptly mail a copy thereof to the
other party. The other party shall have the right to object to the delivery of
the Deposit by filing written notice of such objection with the Escrow Agent at
any time within five (5) days after the mailing of such copy to it, but not
thereafter. Such notice shall set forth the basis for objecting to the delivery
of the Deposit. Upon receipt of such notice, the Escrow Agent shall promptly
mail a copy thereof to the party who filed the written demand.
(c) In the event the Escrow Agent shall have received the
notice of objection provided for in clause (b) above and within the time therein
prescribed, the Escrow Agent shall continue to hold the Deposit until (i) the
Escrow Agent receives written notice from Contract Vendee and Assignee directing
the disbursement of said Deposit, in which case, the Escrow Agent shall then
disburse said Deposit in accordance with said direction, or (ii) in the event of
litigation between Contract Vendee and Assignee, the Escrow Agent shall deliver
the Deposit to 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, in
the Escrow Agent's reasonable opinion, elect in order to terminate the Escrow
Agent's duties including, but not limited to, depositing the Deposit with the
Court and bringing an action for interpleader, the costs thereof to be borne by
whichever of Contract Vendee or Assignee is the losing party.
(d) The Escrow Agent 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 it shall not be liable in connection with the
performance of any duties imposed upon the Escrow Agent by the provisions of
this Agreement, except for damage caused by the Escrow Agent's own negligence or
willful default. The Escrow Agent shall have no duties or responsibilities
except those set forth herein. The Escrow Agent shall not be bound by any
modification of this agreement, unless the same is in writing and signed by
Assignee and Contract Vendee, and, if the Escrow Agent's duties hereunder are
affected, unless Escrow Agent shall have given prior written consent thereto. In
the event that the Escrow Agent shall be uncertain as to the Escrow Agent's
duties or rights hereunder, or shall receive instructions from Assignee or
Contract Vendee which, in the Escrow Agent's opinion, are in conflict with any
of the provisions hereof, the Escrow Agent shall be entitled to hold and apply
the Deposit pursuant to clause (c) above and may decline to take any other
action. The Escrow Agent shall not charge a fee for its services as escrow
agent.
16. NOTICE
All notices, demands, requests, or other writings in this
agreement provided to be given or made or sent, or which may be given or made or
sent, by either party hereto to the other or by Escrow Agent, shall be in
writing and shall be delivered by depositing the same with any nationally
recognized overnight delivery service, or by telecopy or fax machine, in either
event with all transmittal fees prepaid, properly addressed, and sent to the
following addresses:
If to Assignee: Five Sentry Realty Associates L.P.
c/o Cali Realty Acquisition Corp.
00 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxx and Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Xxxxx Xxxxxxxx, Esq.
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to Contract Vendee: Bryemere, L.P.
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: J. Xxxxx X'Xxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Xxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxx Gold and Xxxxx
Xxxxx 0000
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to Escrow Agent: Commonweath Land Title Insurance Company
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxxx Xxxxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed received and effective
on the first business day following such dispatch and (ii) telecopy or fax
machine shall be deemed given at the time and on the date of machine transmittal
provided same is sent prior to 4:00 p.m. on a business day (if sent later, then
notice shall be deemed given on the next business day) and if the sending party
receives a written send verification on its machines and forwards a copy thereof
by regular mail accompanied by such notice or communication. Notices may be
given by counsel for the parties described above, and such Notices shall be
deemed given by Assignee or Contract Vendee, as the case may be, for all
purposes hereunder.
17. REPLACEMENT RESERVE ACCOUNT; COMMON AREA RENOVATIONS
(a) Contract Vendee shall remit a portion of the Assignment
Price in the amount of Five Hundred Thousand ($500,000.00) Dollars (the
"Replacement Reserve") directly to PCS&F and held by PCS&F, as escrow agent,
pursuant to the terms of the escrow agreement ("Escrow Agreement I") annexed
hereto as Exhibit "L". Assignee shall have the right to draw down any part of or
all of the Replacement Reserve to pay for replacement air conditioning units or
other capital expenditures as they occur for a period of five (5) years from the
Closing. Any funds remaining in the Replacement Reserve at the end of the five
(5) year period shall be returned to Contract Vendee with interest.
(b) Contract Vendee shall also remit a portion of the
Assignment Price in an amount not to exceed One Hundred Thousand ($100,000.00)
Dollars (the "Common Area Reserve") directly to PCS&F and held by PCS&F who
shall act jointly with Xxxxxxx Xxxxxx Gold and Xxxxx as escrow agent pursuant to
the terms of an escrow agreement ("Escrow Agreement II"), to be agreed upon
between the parties for purposes of funding common area renovations. The Common
Area Reserve shall be released to Contract Vendee in accordance with the Escrow
Agreement as the common area renovations are completed pursuant to the plans and
specifications to be agreed upon between the parties. Any funds remaining in the
Common Area Reserve upon completion of the common area renovation shall be
returned to Contract Vendee with interest.
(c) Assignee hereby consents to Contract Vendee or its
affiliated construction entity to perform the common area renovations set forth
in Section 17(b). If Contract Vendee or its affiliated construction entity shall
not perform said work, then Assignee shall have the right to select the
contractor therefor. Any funds remaining in the Common Area Reserve upon
completion of the Common Area renovations shall be returned to Contract Vendee
with interest.
18. MISCELLANEOUS
(a) If any instrument or deposit is necessary in order to
obviate a defect in or objection or exception to title, the following shall
apply: (i) any such instrument shall be in such form and shall contain such
terms and conditions as may be required by the Title Company to omit any defect,
objection or exception to title, (ii) any such deposit shall be made with the
Title Company, and (iii) Contract Vendee agrees to execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any such
instrument and to make any such deposit.
(b) This Assignment Agreement constitutes the entire agreement
between the parties and incorporates and supersedes all prior negotiations and
discussions between the parties.
(c) This Assignment Agreement cannot be amended, waived or
terminated orally, but only by an agreement in writing signed by the party to be
charged.
(d) This Assignment Agreement shall be interpreted and
governed by the laws of the State of New Jersey and shall be binding upon the
parties hereto and their respective successors and assigns.
(e) Whenever in this Assignment Agreement there is a provision
for the return of the Deposit, the provision shall be deemed to include all
interest earned thereon and paid to Assignee.
(f) The caption headings in this Assignment Agreement are for
convenience only and are not intended to be part of this agreement and shall not
be construed to modify, explain or alter any of the terms, covenants or
conditions herein contained.
(g) If any term, covenant or condition of this agreement is
held to be invalid, illegal or unenforceable in any respect, this agreement
shall be construed without such provision.
(h) Each party shall, from time to time, execute, acknowledge
and deliver such further instruments, and perform such additional acts, as the
other party may reasonably request in order to effectuate the intent of this
agreement. Nothing contained in this Assignment Agreement shall be deemed to
create any rights or obligations of partnership, joint venture or similar
association between Contract Vendee and Assignee. This Assignment Agreement
shall be given a fair and reasonable construction in accordance with the
intentions of the parties hereto, and without regard to or aid of canons
requiring construction against Contract Vendee, Assignee or the party whose
counsel drafted this agreement.
(i) This Assignment Agreement shall not be effective or
binding until such time as it has been executed and delivered by all parties
hereto. This Assignment Agreement may be executed by the parties hereto in
counterparts, all of which together shall constitute a single agreement.
(j) This Assignment Agreement shall not create any rights in
any third parties against Assignee not otherwise heretofore in existence.
IN WITNESS WHEREOF, the parties have executed this agreement
as of the day and year first above written.
CONTRACT VENDEE:
BRYEMERE, L.P.
By: Bryemere Estate Planning and
Construction, Inc.,
its general partner
By: /s/J. Xxxxx X'Xxxxx
-------------------
Name: J. Xxxxx X'Xxxxx
Title:
ASSIGNEE:
FIVE SENTRY REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ESCROW AGENT:
PRYOR, CASHMAN, XXXXXXX & XXXXX
By: /s/ Pryor, Cashman, Xxxxxxx & Xxxxx
------------------------------------
Name:
Title:
XXXXXXX XXXXXX GOLD AND XXXXX
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
LIST OF EXHIBITS
Exhibit "A" - Description of Premises
Exhibit "B" - Form of Assignment of the Sales Agreement
Exhibit "C" - Sales Agreement
Exhibit "D" - Schedule of Litigation/Proceedings
Exhibit "E" - New Leases
Exhibit "F" - Schedule of Leasing Commissions for New Leases
Exhibit "G" - FIRPTA Affidavit
Exhibit "H" - 1995 Income and Expense Statement
Exhibit "I" - Lease Proposal
Exhibit "J" - Service Contracts Assigned to and/or Assumed by Contract
Vendee under the Sales Agreement
Exhibit "K" - Parking Lot Renovation Plans
Exhibit "L" - Escrow Agreement I
