EXHIBIT 10.1
AGREEMENT OF SALE
AGREEMENT OF SALE (this "Agreement"), dated as of March 1, 2002, between
INTERSTATE 78 OFFICE PARK, LTD., a New Jersey limited partnership, FIN
ASSOCIATES LIMITED PARTNERSHIP, a New Jersey limited partnership, NEW YORK
DISTRIBUTION CENTER, L.P., a New Jersey limited partnership, RARITAN BUILDING
ASSOCIATES LIMITED PARTNERSHIP, a New Jersey limited partnership, 000 XXXXXXXX
XXXX REALTY HOLDINGS, L.P., a New Jersey limited partnership, WEDGEWOOD PLAZA,
L.P., a New Jersey limited partnership, CARLSTADT BUILDING REALTY HOLDINGS,
L.P., a New Jersey limited partnership and CARLSTADT ASSOCIATES, LTD., a New
Jersey limited partnership (each such party being herein called a "Seller" and
all such parties being herein collectively called the "Sellers") and KEYSTONE
NEW JERSEY ASSOCIATES, LLC, a Delaware limited liability company ("Purchaser").
Preliminary Statement
Each Seller is the owner in fee simple of the lands identified as being
owned by such Seller and described on Exhibit A annexed hereto (the "Lands"),
(b) the buildings and other improvements presently located on such Lands (the
"Improvements"), (c) all fixtures, equipment and machinery on such Lands and in
the Improvements used in connection with the ownership, operation, maintenance
and repair thereof but excluding all trade fixtures and personal property owned
by the existing tenants (the "Personal Property"), (d) the rights, as landlord,
under the leases described on Exhibit B annexed hereto, including all rights
under any guarantees thereof and any security given for the performance of the
tenant's obligations under such Leases (collectively the "Leases"), and (e) all
easements, licenses, rights (including any development rights) and appurtenances
relating to the Lands and the Improvements (the "Rights").
Sellers desire to sell, convey, transfer and assign to Purchaser, and
Purchaser desires to acquire from Sellers, subject to the terms and conditions
of this Agreement, the Lands, the Improvements, the Personal Property, the
Leases and the Rights and certain other property herein described (all such
property intended to be sold, conveyed, transferred or assigned by each Seller
to Purchaser being herein called
the "Property", and all such Property being herein collectively called the
"Properties").
NJ Mortgage Acquisitions LLC ("Mortgagee") currently is the owner and
holder of a certain Mortgage, Security Agreement, Assignment of Rents and Leases
and Fixture Filings, all dated January 22, 1998 encumbering, among other
properties, the Properties, (such Mortgage, Security Agreement, Assignment of
Rents and Leases and Fixture Filings, together with all other liens,
assignments, security interests and pledges held by Mortgagee relating to the
Properties being herein called the "Loan Documents"). Mortgagee has commenced an
action against Sellers and certain other parties to foreclose the Loan Documents
and to obtain certain other relief in the United States District Court, District
of New Jersey (Civil Action Xx. 00 XXX 0000 (XXX)) and such action is currently
pending (the "Mortgage Foreclosure Proceeding").
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE 1
Definitions; Construction
1.1 Definitions. As used in this Agreement, the following terms have the
following respective meanings:
"Actual Per Property Net Rental Income" means the actual annual Net
Rental Income being paid by all tenants under existing Leases and
Qualifying New Leases of an individual Property who are in occupancy
of the space leased and paying rent in accordance with such lease on
the Closing Date for the one (1) year period after the Closing Date.
"Agreement" has the meaning specified in the initial paragraph
hereof.
"Allocable Purchase Price" means the respective purchase price for
each Property specified on Exhibit C annexed hereto.
"Broker" means Xxx Xxxxxxx & Company, Inc.
2
"Brokerage Contracts" means all contracts pursuant to which a
commission or payment is required to be made as a result of the
leasing of any of the Properties prior to the Closing Date,
including commissions payable in connection with the original term
of any Qualifying New Lease.
"Cap Rate" means nine and one-half percent (9.5%).
"Closing Date" has the meaning specified in Section 9.3.
"Confidential Information" means any proprietary information
concerning the Properties provided to Purchaser by any Seller,
excluding information that is available to the public or from
sources other than a Seller.
"Contracts" means all service, management, supply contracts, and
other contracts affecting any of the Properties, excluding Brokerage
Contracts, Guarantees and Warranties and construction contracts
approved by Purchaser for tenant fit-up work required to be
completed pursuant to any Qualifying New Lease.
"DEP" means the Department of Environmental Protection of the State
of New Jersey.
"Deposit" means the amount paid by Purchaser to the Escrow Agent
pursuant to clauses (a) and (b) of Section 2.7 and includes all
interest earned thereon.
"Due Diligence Period" means a period of forty-five (45) calendar
days from the date of this Agreement.
"Escrow Agent" means the Title Insurer, or any substitute escrow
agent appointed hereunder.
"Guarantees and Warranties" means any guaranty or warranty from any
construction manager, contractor, subcontractor, material supplier
or vendor relating to any of the Improvements.
3
"Hazardous Substance" means any substance, chemical, pollutant or
waste that is listed as hazardous, toxic or dangerous under any
applicable federal, state, county or local statute, rule,
regulation, ordinance or order.
"Improvements" has the meaning specified in the Preliminary
Statement.
"Lands" has the meaning specified in the Preliminary Statement and
shall include all right, title and interest of Sellers in and to any
easements and appurtenances.
"Leases" has the meaning specified in the Preliminary Statement, and
includes any Qualifying New Lease and for purposes of Sections
2.5(b) and 2.6(b), shall include non-Qualifying New Leases.
"Lease Proposal Notice" shall mean a written notice from Seller to
Purchaser in accordance with Section 7.5 that: (a) identifies a
proposed tenant by name and business; (b) includes all material
documents submitted to Sellers by or for the tenant, including any
financial statements or other information concerning the proposed
tenant, if any; and (c) contains a term sheet, letter of intent or
other description of the material business terms of a proposed Lease
Transaction.
"Lease Transaction" shall mean any of the following actions with
respect to any Lease (or proposed new lease): (a) the execution of
any new lease; (b) the renewal or material modification of any
Lease, or the consent to any assignment of or subletting under any
Lease, other than any renewal, expansion, assignment or subletting
that must be entered into or approved under the terms of any Lease;
or (c) the termination of any Lease.
"Legal Requirements" means all laws, statutes, codes, ordinances,
orders, regulations and requirements of all federal, state, county
and
4
municipal governments, departments, boards, authorities, agencies,
officials and officers.
"Loan Documents" has the meaning specified in the Preliminary
Statement.
"Mortgagee" has the meaning specified in the Preliminary Statement.
"Mortgage Foreclosure Proceeding" has the meaning specified in the
Preliminary Statement.
"Net Rental Income" means, in the case of Stipulated Per Property
Net Rental Income, the annual rent specified on Exhibit D annexed
hereto with respect to each Lease and, in the case of Actual Per
Property Net Rental Income, means, if the space is leased on a
Triple Net Basis, the actual annual net rent being paid on the
Closing Date by tenants who are in occupancy and paying rent, or if
rent is not being paid on a Triple Net Basis, the actual annual
gross rent being paid on the Closing Date by tenants who are in
occupancy and paying rent on the Closing Date less a sum equal to
the product obtained by multiplying the amount specified on Exhibit
D as the per square foot projected annual operating expenses for
such space times the number of square feet of space leased to such
tenant. For purposes of Section 2.5(b), the term "Net Rental Income"
shall include income from non-Qualifying New Leases.
"Occupancy Factor" means ninety two percent (92%).
"Permitted Exceptions" has the meaning specified in Section 3.1.
"Personal Property" has the meaning specified in the Preliminary
Statement.
"Property" or "Properties" has the meaning specified in the
Preliminary Statement.
"Purchase Price" means the aggregate purchase price for all
Properties specified in Section
5
2.2, as adjusted in accordance with any provision of this Agreement
permitting such adjustment.
"Purchaser" has the meaning specified in the initial paragraph of
this Agreement and includes any assignee of Purchaser's right, title
and interest under this Agreement.
"Purchaser Default" has the meaning specified in Section 11.1.
"Qualifying New Lease" means a new lease executed prior to the
Closing Date in connection with any of the Properties which is on
commercially reasonable terms and conditions, including the rent and
additional rent, does not require the construction of any tenant
improvements the cost of removal of which would be materially in
excess of the cost of removing improvements ordinarily constructed
for similar tenants and the terms of such lease are negotiated in an
arms length transaction with a party not affiliated, directly or
indirectly, with any Seller or any partner of any Seller.
"Reciprocal Easement Agreements" means any reciprocal easement
agreement, declaration of covenants, restriction, easement, common
area agreement, shared maintenance agreement, common use agreement
or any similar agreement which benefit or burden any of the Lands
and other adjacent real property.
"Restoration" means the repair and replacement of the Improvements
or Personal Property substantially to the same condition as existed
prior to any damage or destruction.
"Rights" has the meaning specified in the Preliminary Statement.
"Seller" and "Sellers" has the meaning specified in the initial
paragraph of this Agreement.
"Sellers Default" has the meaning specified in Section 11.2.
6
"Stipulated Per Property Net Rental Income" means the Net Rental
Income assumed by the parties to be payable by all tenants of an
individual Property as specified on Exhibit D annexed hereto.
"Stipulated Term" means the Stipulated Term of each Lease as
specified on Exhibit E annexed hereto.
"Termination Limitation" means that, (i) pursuant to the provisions
of Sections 2.4 and 2.5(a), Purchaser shall have the right to
terminate this Agreement with respect to only one (1) Property; (ii)
pursuant to any other provisions of this Agreement, Purchaser shall
only have the right to terminate this Agreement with respect to an
aggregate of two (2) Properties, and (iii) that under no
circumstances, except as provided for in this definition paragraph,
shall Purchaser be permitted to terminate this Agreement with
respect to an aggregate of more than two (2) Properties under any
one or more provisions of this Agreement permitting such
termination, it being understood that, if Purchaser desires to
terminate this Agreement with respect to more than two (2)
Properties, Purchaser must terminate this Agreement with respect to
all Properties. In the event a non-Qualifying New Lease is executed
with respect to any Property, then Purchaser shall have the right to
terminate this Agreement with respect to any Property encumbered by
such non-Qualifying New Lease except that if more than two (2)
Properties are subject to non-Qualifying New Leases, Purchaser shall
only have the right to terminate this Agreement in its entirety.
Anything to the contrary notwithstanding, only in the event
Purchaser terminates this Agreement as to one or more Properties
solely by reason of non-Qualifying New Leases, then Purchaser's
rights to terminate this Agreement under any one or more provisions
of this Agreement permitting termination shall be increased to a
total of three (3) Properties, it being understood that,
7
if Purchaser desires to terminate this Agreement with respect to
more than three (3) Properties, Purchaser must terminate this
Agreement with respect to all Properties. The foregoing limitation
on Purchaser's termination rights shall not be applicable to any
Property terminated pursuant to Section 7.8. and any Property
terminated pursuant to Section 7.8 shall not be counted in
determining the Termination Limitation.
"Title Insurer" means Chicago Title Insurance Company.
"Title Objection" has the meaning specified in Section 3.3.
"Triple Net Basis" means (a) in the case of space that is subject to
a Lease as of the date hereof, the gross rent payable under such
Lease less an amount equal to the aggregate expense reimbursements
specified on Exhibit D with respect to such Lease and (b) in the
case of space which is not subject to a Lease as of the date hereof,
the gross rent payable by the tenant less the expense reimbursements
specified on Exhibit F, attached hereto applicable to such space.
"Voluntary Encumbrance" means any (a) mortgage or deed of trust, (b)
mechanics' or materialmens' liens, (c) liens for unpaid taxes,
assessments, utility charges or other governmental impositions, (d)
any other lien or encumbrance granted, assumed or suffered to exist
securing the repayment of money or the performance of an obligation
and (e) any encumbrance, including a lease, easement, license,
covenant or restriction, granted by a Seller after the date hereof.
1.2 Drafting Ambiguities; Interpretation. In interpreting any provision of
this Agreement, no weight shall be given to, nor shall any construction or
interpretation be influenced by, the fact that counsel for one of the parties
drafted this Agreement, each party recognizing that it and its counsel have had
an opportunity to review this Agreement
8
and have contributed to the final form of same. Unless otherwise specified (a)
whenever the singular number is used in this Agreement, the same shall include
the plural, and the plural shall include the singular, (b) the words "consent"
or "approve" or words of similar import, mean the prior written consent or
approval of Seller or Purchaser, (c) the words "include" and "including", and
words of similar import, shall be deemed to be followed by the words "without
limitation" and (d) the Exhibits to this Agreement are incorporated herein by
reference.
ARTICLE 2
SALE OF PROPERTY; PURCHASE PRICE; PURCHASE PRICE ADJUSTMENTS;
ESCROWS; PAYMENT TERMS
2.1 Sale of Properties. Sellers hereby agree to sell, convey, transfer and
assign to Purchaser, and Purchaser hereby agrees to purchase and acquire from
Sellers, the Properties upon the terms and conditions herein contained. The
conveyance shall include all right title and interest of the respective Sellers
in and to (a) all licenses, permits and other authorizations for the use,
operation, maintenance, ownership and development of the Properties, (b) all
plans, specifications, shop drawings, operating manuals and other technical data
relating to the Improvements and the Personal Property, (c) all software and
security codes relating to the operation of the Improvements and the Personal
Property and (e) all rights under Guarantees and Warranties.
2.2 Purchase Price. The aggregate purchase price for the Properties is
Eighty Five Million Dollars ($85,000,000) (the "Purchase Price"), subject to the
adjustments provided herein. The Allocable Purchase Price for each of the
Properties is shown on Exhibit C annexed hereto. The Allocable Purchase Price
for each Property included in the sale shall be subject to the adjustments
provided herein.
2.3 Changes in Net Rental Income. Sellers shall promptly (a) advise
Purchaser in writing of any changes in the Net Rental Income from each Property
upon obtaining knowledge thereof, identifying the Property affected, the amount
or any increase or decrease in such income and the reason therefor and (b)
forward to Purchaser upon receipt copies of any Qualifying New Leases and
non-Qualifying New Leases.
9
2.4 Increases in Net Rental Income; Purchase Price Adjustments;
Termination Rights. If as of the Closing Date, the Actual Per Property Net
Rental Income from any Property exceeds the Stipulated Per Property Net Rental
Income from such Property, the Purchase Price for such Property shall be
increased by an amount determined as follows: The Stipulated Per Property Net
Rental Income shall be deducted from the Actual Per Property Net Rental Income
for such Property, the difference shall be multiplied by the Occupancy Factor
and the resulting number shall be divided by the Cap Rate. The amount so
determined shall then be added to the Purchase Price for such Property. If at
any time on or prior to the Closing Date, the difference between the Stipulated
Per Property Net Rental Income and the Actual Per Property Net Rental Income is
more than five percent (5%) of the Stipulated Per Property Net Rental Income,
Purchaser may, subject to the Termination Limitation, at its option, upon notice
to Sellers and Escrow Agent, given upon the earlier of (a) the Closing Date or
(b) five (5) business days after Purchaser is advised by Sellers in writing of
the Actual Per Property Net Rental Income for that Property, terminate this
Agreement with respect to such Property. Time shall be of the essence with
respect to the giving of such notice. If Purchaser elects to terminate this
Agreement as to a Property, the Purchase Price shall be reduced by an amount
equal to the Allocable Purchase Price for such Property as shown on Exhibit C.
In the event the time period for giving notice of termination as set forth above
shall expire without Purchaser giving such notice, except as otherwise provided
below in this Section 2.4, Purchaser shall no longer have the right to terminate
under this Section 2.4 with respect to the affected Property. If there is a
subsequent change in the Actual Per Property Rental Income from such Property or
there is a change in the Actual Per Property Rental Income from any of the other
Properties, the provisions of this Section 2.4 shall again be operative. If the
Termination Limitation prohibits Purchaser from terminating this Agreement with
respect to a Property under this Section 2.4, Purchaser shall have the right to
terminate this Agreement under this Section 2.4 with respect to all Properties
whereupon the Deposit shall be returned to Purchaser and neither party shall
have any further liability hereunder.
2.5 Decreases in Net Rental Income; Purchase Price Adjustments;
Termination Rights.
10
(a) If at any time on or prior to the Closing Date, the Actual Per
Property Net Rental Income from any Property is less than the Stipulated Per
Property Net Rental Income from such Property by more than five percent (5%) of
the Stipulated Per Property Net Rental Income, Purchaser may, subject to the
Termination Limitation, at its option, upon notice to Sellers and Escrow Agent,
given upon the earlier of (i) the Closing Date or (ii) five (5) business days
after Purchaser is advised by Sellers in writing of the Actual Per Property Net
Rental Income for that Property, terminate this Agreement with respect to such
Property. Time shall be of the essence with respect to the giving of such
notice. In the event Purchaser elects to terminate this Agreement with respect
to a Property, the Purchase Price shall be reduced by an amount equal to the
Allocable Purchase Price for such Property as shown on Exhibit C. In the event
the time period for giving notice of termination as set forth above shall expire
without Purchaser giving such notice, except as otherwise provided below in this
Section 2.5(a), Purchaser shall no longer have the right to terminate under this
Section 2.5(a) with respect to the affected Property, and there shall be no
adjustment or reduction to the Purchase Price. If there is a subsequent change
in the Actual Per Property Rental Income from such Property or there is a change
in the Actual Per Property Rental Income from any of the other Properties, the
provisions of this Section 2.5(a) shall again be operative. If the Termination
Limitation prohibits Purchaser from terminating this Agreement with respect to a
Property under this Section 2.5(a), Purchaser shall have the right to terminate
this Agreement under this Section 2.5(a) with respect to all Properties,
whereupon the Deposit shall be returned to Purchaser and neither party shall
have any further liability hereunder. Notwithstanding anything to the contrary
contained in Section 2.4 or Section 2.5(a), Purchaser shall not have the right
to terminate this Agreement solely with respect to the Property commonly known
as 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx, and there shall be no escrows
or adjustments to the Allocable Purchase Price for such Property, provided that
if this Agreement is terminated with respect to all other Properties, this
Agreement shall terminate with respect to such Property.
(b) If as of the Closing Date, there is a modification to any of the
Leases specified on Exhibit B or
11
\
a non-Qualifying New Lease is executed, and the rental income which such tenant
is obligated to pay under such Lease is less than the Stipulated Per Property
Net Rental Income specified on Exhibit D for the unexpired current term for such
lease as shown on Exhibit E, then, provided Purchaser does not exercise its
termination right under Section 2.5(a), if applicable, the Purchase Price for
the Property subject to any such Lease shall be decreased by an amount equal to
the present value of the difference between (i) each installment of Net Rental
Income payable under each such Lease specified on Exhibit D during the unexpired
current term of such Lease (or, if applicable, the replaced Lease) as specified
on Exhibit E and (ii) each installment of actual Net Rental Income payable under
such lease as modified for the unexpired current term of the Lease, discounted
to present value at the rate of 9.5% per annum from the date each such
installment of rental income would be due and payable to the Closing Date.
Nothing contained herein shall be deemed a consent by Purchaser to the execution
of any non-Qualifying New Lease, nor, subject to the Termination Limitation,
constitute a waiver by Purchaser of the right to terminate this Agreement as to
any or all of the Properties in the event a non-Qualifying New Lease is executed
without the prior written consent of Purchaser. In the event a non-Qualifying
New Lease is executed, notwithstanding any provision hereof, Purchaser shall not
be entitled to any escrows with respect to any such lease.
(c) There shall be the following special adjustments with respect to
the Property known as 0 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx ("0 Finderne
Avenue") and the Property known as 0 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx
("0 Finderne Avenue"), which shall be in lieu of any other adjustments provided
in any other provision of this Section 2 :
(i) If as of the Closing Date, 0 Xxxxxxxx Xxxxxx has not been
leased pursuant to a Qualifying New Lease, the Allocable Purchase Price for 0
Xxxxxxxx Xxxxxx shall be reduced by the sum of $700,000 and there shall be no
adjustment of the Allocable Purchase Price for 0 Xxxxxxxx Xxxxxx.
(ii) If as of the Closing Date, 0 Xxxxxxxx Xxxxxx has been
leased pursuant to a Qualifying New Lease and the term of the Lease for 0
Xxxxxxxx Xxxxxx has been
12
extended for a period of at least five (5) years at a rental not less than the
Stipulated Per Property Net Rental Income specified in Exhibit D applicable to
the period of the extension, then there shall be no adjustment to the Allocable
Purchase Price for either 0 Xxxxxxxx Xxxxxx or 0 Xxxxxxxx Xxxxxx, except if the
extension for the first five (5) years of the extended portion of the term is at
a rental less than the Stipulated Per Property Net Rental Income specified in
Exhibit D, the Allocable Purchase Price for 0 Xxxxxxxx Xxxxxx shall be decreased
by an amount equal to the difference between (x) each installment of Net Rental
Income for 0 Xxxxxxxx Xxxxxx specified on Exhibit D payable during the unexpired
current term of such lease as specified on Exhibit E and (y) each installment of
actual Net Rental Income payable pursuant to the extension for the unexpired
current term of the Lease, discounted to present value at the rate of 9.5% per
annum from the date each such installment would be due and payable to the
Closing Date.
(iii) If as of the Closing Date, 0 Xxxxxxxx Xxxxxx has been
leased pursuant to a Qualifying New Lease and the term of the Lease for 0
Xxxxxxxx Xxxxxx has not been extended, then the Allocable Purchase Price for 0
Xxxxxxxx Xxxxxx shall be reduced by $150,000 and there shall be no adjustment of
the Allocable Purchase Price for 0 Xxxxxxxx Xxxxxx.
(iv) If as of the Closing Date, 0 Xxxxxxxx Xxxxxx has been
leased pursuant to a Qualifying New Lease and the term of the Lease for 0
Xxxxxxxx Xxxxxx has been extended for a period of less than five (5) years at
the rental of not less than the Stipulated Per Property Net Rental Income
specified in Exhibit D for the period of the extension, then the Allocable
Purchase Price for 0 Xxxxxxxx Xxxxxx shall be reduced by an amount determined by
multiplying $150,000 by a fraction which has the length of the extension
expressed in months as the numerator and 60 as the denominator; and there shall
be no adjustment of the Allocable Purchase Price for 0 Xxxxxxxx Xxxxxx.
(v) If as of the Closing Date, 0 Xxxxxxxx Xxxxxx has been
leased pursuant to a Qualifying New Lease and the term of the Lease for 0
Xxxxxxxx Xxxxxx has been extended for a period of less than five (5) years at a
rental less than the Stipulated Per Property Net Rental Income specified on
Exhibit D for the period of the extension, then there shall be no adjustment in
the
13
Allocable Purchase Price for 0 Xxxxxxxx Xxxxxx, and the Allocable Purchase Price
for 0 Xxxxxxxx Xxxxxx shall be reduced as provided for in Section 2.5(c)(iv) for
the less than five (5) year term, and there shall be an additional reduction in
the Purchase Price for 0 Xxxxxxxx Xxxxxx by an amount equal to the difference
between (x) each installment of Stipulated Per Property Net Rental Income for 0
Xxxxxxxx Xxxxxx specified on Exhibit D for the period of the reduced term under
the Lease (as extended) from the Closing Date and (y) each installment of actual
Net Rental Income payable under the Lease (as extended) for the period of the
reduced term under the Lease from the Closing Date, discounted to present value
at the rate of 9.5% per annum from the date each installment would be due and
payable to the Closing Date, subject to the limitation that the reduction to the
Allocable Purchase Price in the aggregate under this Section 2.5(c)(v) shall not
be greater than $150,000.
(vi) If under Sections 2.5(c)(ii), (iii), (iv) or (v), 0
Xxxxxxxx Xxxxxx has been leased pursuant to a Qualifying New Lease, but the
tenant thereunder has not taken occupancy and commenced paying rent in
accordance with the provisions of such Qualifying New Lease, in addition to any
price reductions provided for under Section 2.5(c)(iv), there shall be deposited
with the Escrow Agent an amount equal to the sum of (1) rent for a period of 365
days calculated at the rate specified in said Qualifying New Lease, (2)
operating expenses the tenant under the Qualifying New Lease would pay for a
period of 365 days calculated at the rate of $1.00 per square foot of space
leased, (3) a sum representing a tenant improvement allowance for the Qualifying
New Lease equal to $1.00 per square foot for space, adjusted as provided in
Section 7.7, less any monies previously paid to contractors for any of the
tenant improvements completed in accordance with such Qualifying New Lease,
provided duly executed lien waivers are delivered to Purchaser, and (4) unless
Sellers can demonstrate to the reasonable satisfaction of Purchaser that there
is no commission payable in connection with the Qualifying New Lease or the
commission for the Qualifying New Lease has been paid and Sellers deliver to
Purchaser a receipt from the broker evidencing the payment thereof (in either
event, no escrow will be established for this category), an amount equal to five
percent (5%) of the applicable rent under the Qualifying New Lease payable in
the aggregate over the first five (5) years of the term
14
adjusted as provided in Section 7.7, but in no event shall the prorated amount
to be escrowed under this clause (4) be more or less than the actual commission
still payable for the first five (5) years of the Qualifying New Lease as of the
Closing Date. Purchaser shall have the right, commencing on the corresponding
day of the month immediately succeeding the Closing Date and continuing on the
same day of each succeeding month for a total period of twelve (12) consecutive
months, to draw from such escrow account a sum equal to one-twelfth (1/12) of
the amounts for rent and operating expenses under escrow categories (1) and (2)
until the first of the following to occur: (x) the tenant under the Qualifying
New Lease takes occupancy of the demised premises, or (y) such tenant commences
the payment of rent, or (z) thirteen (13) months shall have expired after the
Closing Date, whereupon the balance of funds remaining in such escrow account
under escrow categories (1) and (2), if any, shall be paid to the applicable
Seller. The amount to be released to Purchaser in any month under escrow
categories (1) and (2) shall be reduced by the amount of any rent received by
Purchaser from any Qualifying New Lease or any non-Qualifying New Lease relating
to such Property for the period from the Closing Date to the first anniversary
of the Closing Date. Purchaser shall direct the Escrow Agent, and Sellers hereby
authorize the Escrow Agent, to release funds from escrow category (3) directly
to contractors performing tenant improvement work as such work is completed,
provided duly executed lien waivers are delivered to Purchaser and promptly
after receipt of written confirmation from the broker that the broker has been
paid its commission, Purchaser shall authorize the Escrow Agent to release to
Seller the funds deposited pursuant to escrow category (4) above. If as of the
date occurring fourteen (14) months after the Closing Date, there are monies in
the escrow account established pursuant to category 3 above, any such monies in
excess of the amount acknowledged by contractors to be payable to them for the
tenant improvement work required under the Qualifying New Lease with respect to
which the escrow was established shall be paid to the applicable Seller, and
thereafter, the balance of such monies shall be paid to the applicable Seller
after payment in full to all such contractors for the tenant improvement work
pursuant to a Qualifying New Lease, provided duly executed lien waivers are
delivered to Purchaser. If at any time after the Closing Date, there are monies
in the escrow account established under category 4 above, any such
15
monies in excess of the amount acknowledged by the broker to be payable to it
for the first five (5) years of the extended term shall be paid to the
applicable Seller, and as of the date occurring fourteen (14) months after the
Closing Date, the balance of any monies in the account shall be paid to the
applicable Seller.
2.6 Closing Escrows.
(a) Anything to the contrary notwithstanding, the provisions of this
Section 2.6(a) for the establishment of escrows at closing under certain
conditions shall not limit Purchaser's rights of termination under Sections 2.4,
2.5(a), and 2.5(b) and shall not apply to any space leased pursuant to a
non-Qualifying New Lease or any space described in clauses (c) through (d) of
this Section 2.6 or clauses (b) and (c) of Section 2.5. If as of the Closing
Date, a Qualifying New Lease is executed and delivered but as of the Closing
Date the tenant has not taken occupancy and commenced the payment of rent
thereunder in accordance with the provisions of such Qualifying New Lease, then,
with respect to that Qualifying New Lease, there shall be withheld from the
Allocable Purchase Price and deposited with the Escrow Agent at closing an
amount, subject to the Escrow Cap, equal to the sum of (i) rent for period of
365 days calculated at the rate specified on Exhibit G; (ii) operating expenses
for a period of 365 days calculated at the rate specified on Exhibit G; (iii) a
sum representing a tenant improvement allowance equal to $10.00 per square foot
for a Qualifying New Lease, adjusted as provided in Section 7.7, if the demised
premises thereunder is to be used primarily for office use or $1.00 per square
foot if the demised premises thereunder is to be used primarily for industrial
use, adjusted as provided in Section 7.7 (said calculation of the allowance to
be pro rated by multiplying it by the fraction which has as its numerator the
number, expressed in months or portions thereof, which would have been, at the
Closing Date, the unexpired term of the Lease being replaced by the Qualifying
New Lease, and 60 as its denominator), less any monies then paid to contractors
for the tenant improvements completed in accordance with such Qualifying New
Lease, provided duly executed lien waivers are delivered to Purchaser; and (iv)
unless Sellers can demonstrate to the reasonable satisfaction of Purchaser that
there is no commission payable in connection with the Qualifying New Lease or
the commission for the Qualifying New Lease has been paid and Sellers deliver to
Purchaser a
16
receipt from the broker evidencing payment thereof (in either event, no escrow
will be taken for this category), an amount attributable commissions equal to
the product of five percent (5%) of the rent specified in escrow category (i)
above multiplied by the number five (5), adjusted as provided in Section 7.7,
unless the term of the Lease as shown on Exhibit E was to expire less than five
(5) years after the Closing Date, in which event the amount to be escrowed under
this clause (iv) shall be prorated by multiplying such sum by a fraction, the
numerator of which is the unexpired term of such Lease expressed in months and
the denominator of which is 60, but in no event shall any prorated amount to be
escrowed under this clause (iv) be more or less than the actual commission
payable for the Qualifying New Lease as of the Closing Date. Purchaser shall
have the right, commencing on the corresponding day of the month immediately
succeeding the Closing Date and continuing on the same day of each succeeding
month for a total period of twelve (12) consecutive months, to draw from such
escrow account a sum equal to one-twelfth (1/12) of the amounts for rent and
operating expenses under escrow categories (i) and (ii) above, until the first
of the following to occur: (y) the tenant under the Qualifying New Lease takes
occupancy and commences the payment of rent, or (z) thirteen (13) months shall
have expired after the Closing Date, whereupon the balance of funds remaining is
such escrow account, if any, shall be paid to the applicable Seller. The amount
to be released to Purchaser in any month under escrow categories (i) and (ii)
shall be reduced by the amount of any rent received by Purchaser from any lease
applicable to such space for the period from the Closing Date to the first
anniversary of the Closing Date. Purchaser shall direct the Escrow Agent, and
Sellers hereby authorize the Escrow Agent, to release funds from escrow category
(iii) directly to contractors performing tenant improvement work as such work is
completed, provided duly executed lien waivers are delivered, and promptly after
receipt of written confirmation from the broker that the broker has been paid
its commissions, Purchaser shall authorize the Escrow Agent to release to the
applicable Seller funds deposited pursuant to escrow category (iv) above. If as
of the date occurring fourteen (14) months after the Closing Date, there are
monies in the escrow account established pursuant to category (iii) above, any
such monies in excess of the amount acknowledged by contractors to be payable to
them for the tenant improvement work required under the Qualifying New Lease
17
with respect to which the escrow was established shall be paid to the applicable
Seller, and thereafter, the balance of such monies shall be paid to the
applicable Seller after payment in full to all such contractors for the tenant
improvement work pursuant to a Qualifying New Lease, provided duly executed lien
waivers are delivered to Purchaser. If at any time after the Closing Date, there
are monies in the escrow account established under category (iv) above, any such
monies in excess of the amount acknowledged by the broker to be payable to it
for the first five (5) years shall be paid to the applicable Seller, and as of
the date occurring fourteen (14) months after the Closing Date, the balance of
any monies in the account shall be paid to the applicable Seller.
(b) Anything to the contrary notwithstanding, the provisions of this
Section 2.6(b) for the establishment of escrows at closing under certain
conditions shall not limit Purchaser's rights under Sections 2.4, 2.5(a), and
2.5(b) and shall not apply to any space leased pursuant to a non-Qualifying New
Lease or space described in clauses (c) through (d) of this Section 2.6 or
clauses (b) and (c) of Section 2.5. If as of the Closing Date, a Lease has
terminated or a tenant has vacated space or ceased paying rent as of the due
date for two (2) consecutive months, which includes the month of Closing and a
Qualifying New Lease has not been signed to replace it, then, with respect to
the demised premises under such Lease, there shall be withheld from the
Allocable Purchase Price and deposited with the Escrow Agent at closing an
amount equal to the sum of (i) rent for a period of 365 days calculated at the
rate specified on Exhibit G; (ii) operating expenses for a period of 365 days
calculated at the rate specified on Exhibit G; (iii) a sum representing a tenant
improvement allowance equal to $1.00 per square foot if the demised premises
under such Lease was used primarily for industrial purposes and $10.00 per
square foot if the demised premises under such Lease was used primarily for
office purposes, adjusted as provided in Section 7.7 (said calculation of the
allowance to be pro rated by multiplying it by the fraction which has as its
numerator the number, expressed in months, which would have been, at the Closing
Date, the unexpired term of the Lease, and 60 as its denominator); and (iv) an
amount attributable to commissions equal to the product of five percent (5%) of
the rent specified in escrow category (i) above multiplied by the number five
(5), adjusted as provided in Section 7.7, unless the term
18
of the Lease as shown on Exhibit E was to expire less than five (5) years after
the Closing Date, in which event the amount to be escrowed under this clause
(iv) shall be prorated by multiplying such sum by a fraction, the numerator of
which is the unexpired term of such Lease expressed in months and the
denominator of which is 60. Purchaser shall have the right, commencing on the
first day of the month immediately succeeding the Closing Date and continuing on
the first day of each succeeding month for a total period of twelve (12)
consecutive months, to draw from such escrow account a sum equal to one-twelfth
(1/12) of the amounts for rent and operating expenses under escrow categories
(i) and (ii), until the first of the following to occur: (y) such time as
Purchaser leases the space at the Property which was subject to such terminated
Lease and the tenant thereunder takes occupancy or commences to pay rent, or (z)
thirteen (13) months shall have expired after the Closing Date, whereupon the
balance of funds remaining in such escrow account under categories (i) and (ii)
above in this Section 2.6(b), if any, shall be paid to the applicable Seller.
The amount to be released to Purchaser in any month under escrow categories (i)
and (ii) shall be reduced by the amount of any rent received by Purchaser from
any lease relating to such space for the period from the Closing Date to the
first anniversary of the Closing Date. The funds escrowed under escrow
categories (iii) and (iv) above shall be paid to Purchaser at closing.
(c) If as of the Closing Date, the portion of the Property known as
0000 Xxxxx 00, Xxxxxxxxxxx, Xxx Xxxxxx, now occupied by Xxxxxx Packaging on a
month to month basis ("Xxxxxx Space"), (i) has not been leased pursuant to a
Qualifying New Lease or (ii) has been leased pursuant to a Qualifying New Lease,
but the tenant thereunder is not occupying the Xxxxxx Space and paying rent
thereunder in accordance with the terms of a Qualifying New Lease, then, with
respect to the Xxxxxx Space, there shall be withheld from the Allocable Purchase
Price for such Property and deposited with the Escrow Agent at closing the
amount of $456,000 representing one (1) year of gross rent. Purchaser shall have
the right, commencing on the corresponding day of the month immediately
succeeding the Closing Date and continuing on the same day of each succeeding
month for a total period of twelve (12) consecutive months, to draw from such
escrow account a sum equal to one-twelfth (1/12) of the amount thereof, until
the first of the following to occur: (x) the date the
19
tenant under the Qualifying New Lease takes occupancy and commences paying rent,
or (y) the date Purchaser leases the Xxxxxx Space to a tenant and such tenant
takes occupancy or commences paying rent, or (z) thirteen (13) months shall have
expired after the Closing Date, whereupon the balance of funds remaining in such
escrow account, if any, shall be paid to the applicable Seller. The amount to be
released to Purchaser in any month under this clause (c) shall be reduced by the
amount of any rent received by Purchaser for the Xxxxxx Space for the period
from the Closing Date to the first anniversary of the Closing Date.
(d) If as of the Closing Date, the portion of the Property known as
0000 Xxxxx 00, Xxxxxxxxxxx, Xxx Xxxxxx, formerly occupied by GMR ("GMR Space"),
(i) has not been leased pursuant to a Qualifying New Lease or (ii) has been
leased pursuant to a Qualifying New Lease, but the tenant thereunder is not
occupying the GMR Space and paying rent thereunder in accordance with the terms
of a Qualifying New Lease, then, with respect to the GMR Space, there shall be
withheld from the Allocable Purchase Price and deposited with the Escrow Agent
at closing an amount equal to the sum of (i) rent for a period of 365 days
calculated at the rate specified on Exhibit G, (ii) operating expenses for a
period of 365 days calculated at the rate specified on Exhibit G, (iii) a sum
representing a tenant improvement allowance equal to $10.00 per square foot,
adjusted as provided in Section 7.7, less any monies then paid to contractors
for the tenant improvements completed in accordance with the Qualifying New
Lease, provided duly executed lien waivers are delivered to Purchaser, and (iv)
unless Seller can demonstrate to the reasonable satisfaction of Purchaser that
there is no commission payable in connection with the Qualifying New Lease or
the commission for the Qualifying New Lease has been paid (in either event, no
escrow will be taken for this category), an amount attributable to a commission
equal to the product of multiplying five percent (5%) of the rent specified in
escrow category (i) above by five (5), adjusted as provided in Section 7.7, to
the extent the commission has not been paid. Purchaser shall have the right,
commencing on the corresponding day of the month immediately succeeding the
Closing Date and continuing on the same day of each succeeding month for a total
of twelve (12) consecutive months, to draw from such escrow account a sum equal
to one-twelfth (1/12) of the amounts for rent and operating expenses under
escrow categories (i) and (ii)
20
above, until the first of the following to occur: (x) the date the tenant under
the Qualifying New Lease obtained by Seller takes occupancy or commences the
payment of rent thereunder, or (y) a tenant under a lease with respect to the
GMR Space obtained by Purchaser takes occupancy and commences the payment of
rent thereunder, or (z) thirteen (13) months shall have expired after the
Closing Date whereupon the balance of funds remaining in such escrow account, if
any, shall be paid to the applicable Seller. Purchaser shall direct the Escrow
Agent to release funds from escrow category (iii) directly to contractors
performing tenant improvement work as such work is completed provided duly
executed lien waivers are delivered to Purchaser, and promptly after receipt of
written confirmation from the broker that the broker has been paid its
commission, Purchaser shall authorize the Escrow Agent to release to the
applicable Seller funds deposited pursuant to escrow category (iv) above. The
amount to be released to Purchaser in any month under escrow categories (i) and
(ii) shall be reduced by the amount of any rent received by Purchaser with
respect to the GMR Space for the period from the Closing Date to the first
anniversary of the Closing Date. In the event there is not a Qualifying New
Lease on the Closing Date with respect to the GMR Space, the sums escrowed under
escrow categories (iii) and (iv) above shall be released to Purchaser on the
Closing Date. Any monies remaining in the escrow on the date occurring fourteen
(14) months after the anniversary of the Closing Date shall be released to the
applicable Seller.
(e) Anything to the contrary contained in Section 2.6
notwithstanding, the maximum amount that may be escrowed under Section 2.6 in
the aggregate for each Property ("Escrow Cap") shall be (1) as to escrow
category (i) under any subsection in Section 2.6, 5% of the Stipulated Per
Property Net Rental Income as specified in Exhibit D; (2) as to escrow category
(ii) under any subsection in Section 2.6, 5% of the operating expenses for that
entire Property for a period of 365 days calculated at the rate specified on
Exhibit D; (3) as to escrow category (iii) under any subsection in Section 2.6,
5% of what the tenant improvement allowance would be for that entire Property if
vacant based on $1.00 per square foot for space used for industrial space and
$10.00 per square foot for space used for office space; and (4) as to escrow
category (iv) under any subsection in Section 2.6, 5% of the product of
multiplying the applicable rent to be escrowed pursuant
21
to clause (w) above by 5. In the event escrows under any one or more of the
subsections of Section 2.6 to be established at Closing are for more than one
Lease at an individual Property, and the escrows are subject to the Escrow Cap,
the amount of the escrow to be allocated to each such Lease shall be determined
by the relative amount of monies that would be escrowed under escrow category
(i), without imposition of the Escrow Cap, among such Leases for which the
escrows are being established.
(f) If, pursuant to Section 7.7, Sellers are required to escrow for
tenant improvement costs an amount in excess of that specified in the applicable
escrow categories for tenant improvement costs described in Article 2, the
additional amounts to be escrowed under Section 7.7 shall be based on contracts
executed by the applicable Seller and approved by Purchaser pursuant to Section
7.7 or, if no contracts have been executed and approved for any portion of such
work, a reasonable amount shall be escrowed therefor.
(g) All monies deposited in escrow pursuant to this Article 2 shall
be deposited by the Escrow Agent in a federally-insured interest bearing account
as set forth on Exhibit XX hereto. The provisions of clauses (c), (d), (e), (f)
and (g) of Section 2.8 shall be applicable to the monies held in escrow pursuant
to Sections 2.5 and 2.6
2.7 Payment Terms. The Purchase Price shall be payable as follows:
(a) within two (2) business days after the execution of this
Agreement, time being of the essence and such payment being a
condition to the effectiveness of this Agreement, the sum of
$500,000 shall be paid by Purchaser to the Escrow Agent, at the
option of Purchaser, by check (subject to collection) or by wire
transfer;
(b) within two (2) business days after the expiration of the Due
Diligence Period, time being of the essence and such payment being a
condition to the effectiveness of this Agreement, if Purchaser does
not terminate this Agreement, an additional sum of $500,000 shall be
paid by Purchaser to the Escrow Agent, at the
22
option of Purchaser, by check (subject to collection) or by wire
transfer; and
(c) upon closing of title, the balance of the Purchase Price, plus
or minus any net closing adjustments, shall be paid by wire transfer
of immediately available funds to Sellers or their designee.
2.8 Terms of Escrow.
(a) The Deposit shall be held by Escrow Agent in escrow in an
interest bearing account. Any interest accrued on the Deposit shall
be paid to whichever party is entitled to the Deposit in accordance
with the provisions of this Agreement, provided that if this
transaction closes, fifty percent (50%) of the interest shall be
paid to Sellers and fifty percent (50%) of the interest shall be
paid to Purchaser. The Deposit shall be held and disbursed by Escrow
Agent in the following manner:
(i) to Sellers upon consummation of the closing; or
(ii) to Sellers upon receipt of written demand therefor,
stating that Purchaser has defaulted in the performance
of Purchaser's obligations under this Agreement beyond
any applicable cure period and the facts and
circumstances underlying such default; provided,
however, that Escrow Agent shall not honor such demand
until at least ten (10) days after it has sent a copy of
such demand to Purchaser, nor thereafter if Escrow Agent
shall have received written notice of objection from
Purchaser in accordance with the provisions of clause
(b) of this Section 2.8; or
(iii) to Purchaser upon receipt of written demand
therefor, stating that either (x) this Agreement has
been terminated pursuant to a provision hereof which
states that Purchaser is entitled to the Deposit upon
termination, and
23
certifying the basis for such termination, or (y) a
Seller has defaulted in performance of its obligations
under this Agreement and the facts and circumstances
underlying such default; provided, however, that, except
in the case of a termination by Purchaser pursuant to
Section 4.1, Escrow Agent shall not honor such demand
until at least ten (10) days after it has sent a copy of
such demand to Sellers, nor thereafter if Escrow Agent
shall have received written notice of objection from
Sellers in accordance with the provisions of clause (b)
of this Section 2.8. In the event of a termination by
Purchaser pursuant to Section 4.1, Escrow Agent shall
promptly remit the Deposit to Purchaser.
(b) Upon receipt of written demand for the Deposit by Purchaser or
Sellers pursuant to clauses (ii) or (iii) of Section 2.8(a), Escrow
Agent shall promptly send a copy thereof to the other party. Except
in the case of a termination pursuant to Section 4.1, the other
party shall have the right to object to the delivery of the Deposit
by sending written notice of such objection to Escrow Agent within
the five (5) days after Escrow Agent delivers a copy of the written
demand to the objecting party but not thereafter. Such notice shall
set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of such notice, Escrow Agent shall promptly send a copy
thereof to the party who made the written demand.
(c) In the event of any dispute between the parties regarding the
Deposit, Escrow Agent, at its option, may disregard all instructions
received and either (i) hold the Deposit until the dispute is
mutually resolved and Escrow Agent is advised of this fact in
writing by both Seller and Purchaser, or Escrow Agent is otherwise
instructed by a final unappealable judgment of a court of competent
jurisdiction, or (ii) deposit the Deposit with a court of competent
jurisdiction (whereupon Escrow Agent shall be released and relieved
of any and all
24
liability and obligations hereunder from and after the date of such
deposit).
(d) In the event Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive conflicting instructions, claims
or demands from the parties hereto, or instructions which conflict
with any of the provisions of this Agreement, Escrow Agent shall be
entitled (but not obligated) to refrain from taking any action other
than to keep safely the Deposit until Escrow Agent shall be
instructed otherwise in writing signed by both Sellers and
Purchaser, or by final judgment of a court of competent
jurisdiction.
(e) Escrow Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any written notice, instruction or
request furnished to it hereunder and believed by it to be genuine
and to have been signed or presented by the proper party or parties,
provided that any modification of this Agreement shall be signed by
Escrow Agent, Purchaser and Sellers.
(f) Sellers and Purchaser shall jointly and severally hold Escrow
Agent harmless against any loss, damage, liability or expense
incurred by Escrow Agent not caused by its willful misconduct or
gross negligence, arising out of or in connection with its entering
into this Agreement and the carrying out of its duties hereunder,
including the reasonable costs and expenses of defending itself
against any claim of liability or participating in any legal
proceeding. Escrow Agent may consult with counsel of its choice, and
shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
(g) Sellers and Purchaser shall share equally the responsibility for
reimbursement to Escrow Agent of all out-of-pocket expenses,
disbursements and advances (including reasonable attorneys' fees)
incurred or made by Escrow
25
Agent in connection with the carrying out of its duties hereunder.
(h) Escrow Agent's agreements and obligations hereunder shall
terminate and Escrow Agent shall be discharged from further duties
and obligations hereunder upon final payment of the Deposit in
accordance with the terms of this Agreement.
ARTICLE 3
TITLE TO PROPERTIES
3.1 Title to Lands and Improvements. Title to the Lands and Improvements
shall be good, marketable and insurable at regular rates by the Title Insurer,
subject to (a) the exceptions listed on Exhibit H annexed hereto, (b) the Leases
and (c) any exceptions to which Purchaser does not object pursuant to Section
3.3 (the "Permitted Exceptions").
3.2 Title to Other Property. Title to the Personal Property and all other
property intended to be conveyed or assigned hereunder to Purchaser shall be
good and valid, subject to no encumbrances or security interests.
3.3 Title Defects. Purchaser shall furnish to Sellers within thirty (30)
calendar days from the date hereof a copy of title commitments with respect to
the Properties prepared by the Title Insurer and a copy of any other searches
conducted with respect to the Properties, together with a statement specifying
any objections to title or survey matters ("Title Objection"). Sellers shall
cure any Voluntary Encumbrance prior to the Closing Date, provided Sellers shall
not be obligated to expend more than the net Allocable Purchase Price (after
closing adjustments) to remove any Voluntary Encumbrance from the affected
Property. If Sellers do not agree to remove any Title Objection (excluding a
Voluntary Encumbrance) within ten (10) days after receipt of notice of the Title
Objection, Purchaser shall have the option, to be exercised within five (5)
business days after receipt of such notice from Sellers, to either (a) waive the
Title Objection which is not removed and close title without abatement or
reduction of the Purchase Price or (b) terminate this Agreement, whereupon, the
Deposit shall be returned to Purchaser, and upon such return, this Agreement and
all rights and obligations of the respective
26
parties hereunder shall be null and void. The failure or refusal of Sellers to
remove a Voluntary Encumbrance to the extent provided above, shall constitute a
default hereunder.
3.4 Right to Pay Off Monetary Encumbrances. Sellers shall have the right
to pay off any monetary encumbrances against the Properties on the Closing Date
out of the cash then payable provided recordable instruments of release or
discharge of such encumbrances in form and substance satisfactory to counsel for
Purchaser and the Title Insurer are then delivered to Purchaser.
3.5 Integrated Transaction. This is an integrated transaction and, except
as expressly provided herein, Sellers shall not be required to sell and convey,
and Purchaser shall not be required to close title, to less than all of the
Properties.
ARTICLE 4
TERMINATION RIGHTS
4.1 Due Diligence Period; Termination. Purchaser shall have the right,
during the Due Diligence Period, to inspect the Properties and to investigate
existing zoning, the Leases, the physical and environmental condition of the
Properties, the adequacy of existing utilities, the plans and specifications for
the Improvements, surveys, appraisals, service contracts, real estate taxes,
economic feasibility and any other factors Purchaser deems relevant in
determining whether to purchase the Properties. If for any or no reason
Purchaser is not satisfied with the results of its investigations, Purchaser may
terminate this Agreement on notice to Sellers and Escrow Agent given within the
Due Diligence Period, the time for giving such notice being of the essence. In
the event of such termination, the Deposit shall be returned to Purchaser,
whereupon this Agreement and all rights and obligations of the respective
parties hereunder shall be null and void. If Purchaser does not elect to
terminate this Agreement pursuant to this Section 4.1 within the Due Diligence
Period, Purchaser shall conclusively be deemed to have waived its right of
termination under this Section 4.1.
4.2 Right of Entry. Purchaser and its agents, employees and consultants
shall, subject to the rights of the Mortgagee and existing tenants, have access
to the Lands and
27
Improvements from time to time, upon reasonable notice, prior to the Closing
Date for the purpose of inspecting the Properties and undertaking tests and
studies thereof, provided (a) Purchaser promptly repairs any damage caused by
such entry, (b) Purchaser restores the Properties to the condition that existed
prior to such entry and (c) Purchaser does not unreasonably interfere with the
rights of existing tenants. Purchaser shall hold and save each Seller harmless
from and against any and all loss, cost, damage, injury or expense arising out
of the activities of Purchaser, its agents, employees and consultants, relating
to any such entry, provided that Purchaser shall not be liable for (a) the
discovery of any preexisting condition, (b) any claims of diminution in the
value of any Property as a consequence of the results revealed by any such
investigations or testing or (c) the acts of Sellers or their agents or
representatives. Prior to conducting any intrusive testing on any Property,
Purchaser shall furnish to the Seller owing such Property evidence that
Purchaser has procured comprehensive general liability insurance from an insurer
authorized to do business in the State of New Jersey, which is reasonably
acceptable to such Seller, insuring such Seller against claims for bodily
injury, death or damage to property in single limit amount of not less than
$2,000,000, naming such Seller as an additional insured. The indemnification
provision contained in this Section 4.2 shall survive the termination of this
Agreement and the closing of title.
4.3 Availability of Documents and Inquiries. Sellers represent and warrant
that, prior to the date of this Agreement, Sellers have furnished to Purchaser
copies of the title policies insuring the priority of the mortgage held by the
Mortgagee, copies of existing surveys in their possession, copies of the Leases
and copies of the most current environmental reports in their possession for
each Property. Seller will permit Purchaser to review and copy tenant files and
operating expense information, and to the extent in the possession of Sellers,
plans and specifications (including as built plans and shop drawings),
certificates of occupancy, engineering data and reports and soils investigation
reports. Sellers shall also promptly respond to any inquiries of Purchaser with
respect to the ownership, operation, maintenance or repair of the Properties.
Purchaser, personally or through its authorized representatives or agents, shall
be entitled to interview tenants.
28
4.4 Audits. Purchaser shall also have the right at any time prior to the
Closing Date, at Purchaser's expense, to have independent accountants selected
by Purchaser prepare audited financial statements with respect to any or all of
the Properties from any books and records that are in the possession of Sellers.
Each Seller agrees to cooperate in the conduct of any such audit, to make its
books and records available and to furnish to such accounting firm with such
information as is customarily provided in connection with similar audits.
4.5 Termination of Contracts. Effective as of the Closing Date, Sellers
shall terminate all Contracts and all exclusive listing agreements at no cost to
Purchaser.
4.6 Brokerage Obligations. On the Closing Date, Purchaser shall assume the
obligations of the applicable Sellers under the Brokerage Commission Agreements
identified on Exhibit YY annexed hereto, but only to the extent of commissions
that become due and payable thereunder as a result of the exercise by the
applicable tenant of an extension or expansion right after the Closing Date.
Sellers have advised Purchaser that the brokers identified on Exhibit YY annexed
hereto may be entitled to commissions in connection with the tenancies
identified on Exhibit YY, but that there are no written agreements with any such
brokers. Purchaser agrees to pay a broker listed on Exhibit YY a commission upon
the exercise by any applicable tenant of an extension or expansion right after
the Closing Date but only to the extent such obligation is stated on Exhibit YY.
4.7 Confidential Information. Prior to the closing, Purchaser shall use
the Confidential Information only for purposes of evaluating the Properties in
connection with its potential purchase thereof (and if this transaction closes,
in connection with the ownership and operation of the Properties).
Notwithstanding the foregoing, Purchaser may disclose the Confidential
Information to legal counsel, accountants, lenders, potential investors,
regulatory authorities and consultants and Purchaser may disclose the
Confidential Information to the extent that such disclosure is required by law
or court order or by discovery rules in any legal proceeding, provided Purchaser
gives Sellers prior notice thereof. If this Agreement is terminated by Purchaser
29
prior to closing, Purchaser shall return the Confidential Information to
Sellers.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLERS
5.1 Representations and Warranties. As an inducement to Purchaser to enter
into this Agreement, Sellers represent and warrant to Purchaser that:
(a) each Seller is duly organized and validly existing under the
laws of the State of its formation, is in good standing both in the
State of its formation and in the State of New Jersey, has the power
and authority to enter into this Agreement and to consummate the
transactions herein contemplated, and the execution and delivery
hereof and the performance by each Seller of its obligations
hereunder will not violate or constitute an event of default under
the terms or provisions of any agreement, document or other
instrument to which such Seller is a party or by which it or the
Property owned by it is bound;
(b) the execution, delivery and performance of this Agreement by
each Seller and the consummation of the transactions contemplated
hereby in the manner contemplated herein will not violate any
provision of law, statute, rule or regulation to which such Seller
or the Property owned by it is subject or violate any judgment,
order, writ, injunction or decree of any court applicable to such
Seller or the Property owned by such Seller;
(c) all proceedings required to be taken by or on behalf of each
Seller to authorize it to make, deliver and carry out the terms of
this Agreement have been or will be duly and properly taken and this
Agreement is the legal, valid and binding obligation of each Seller
enforceable in accordance with its terms;
(d) no Seller has executed or has actual knowledge of any other
agreement of sale, option
30
agreement, right of first refusal or right of first offer with
respect to the Property owned by it and, except as specified on
Exhibit I annexed hereto, no tenant under any of the Leases has any
option, right of first refusal or right of first offer with respect
to any of the Properties;
(e) (i)the Leases are the only leases or possessory rights currently
affecting or relating to the Properties executed by Sellers or about
which Sellers have actual knowledge; (ii) the copies of the Leases
furnished or to be furnished to Purchaser are true, correct and
complete copies thereof; (iii) none of the Leases has been modified
or amended by Sellers, or, to the actual knowledge of Sellers, by
Mortgagee; (iv) the Leases are in full force and effect; (v) to the
actual knowledge of Sellers, no rent or additional rent has been
paid under any of the Leases in advance of the applicable due date;
(vi) except as indicated on Exhibit J annexed hereto, there is no
default, or alleged default, by landlord or, to the best of Sellers'
knowledge, any default by any tenant in the keeping, observance or
performance of any covenant, agreement, term, provision or condition
contained in any of the Leases; (vii) to the actual knowledge of
Sellers, no tenant has any offsets, deductions or defenses to the
payment of any rent or additional rent under any of the Leases;
(viii) Sellers have received and hold only the security deposits in
respect of the Leases identified on Exhibit K; and the information
contained on Exhibits B, F and K is true, correct and complete; (ix)
to the best knowledge of Sellers, none of the tenants under the
Leases has filed or intends to file any bankruptcy or insolvency
proceedings; (x) to the actual knowledge of Sellers, there are no
outstanding tenant improvement allowances, moving allowances or
other inducements or concessions owed to any tenant under the
Leases; (xi) to the best knowledge of Sellers, except as specified
on Exhibit L annexed hereto, no tenant under the Leases has overpaid
any rent or additional rent, except additional rent subject
31
to reconciliation under the Lease; and (xii) to the best knowledge
of Sellers, no tenant is currently auditing the operating expenses
of any Seller and no Seller has received notice that any tenant
intends to conduct such an audit.
(f) (i) the agreements identified on Exhibit M annexed hereto are
the only Brokerage Contracts executed by any Seller or of which
Seller has knowledge in connection with the Properties; (ii) the
copies of the Brokerage Contracts furnished or to be furnished to
Purchaser are true, correct and complete copies thereof; (iii)
except as indicated on Exhibit M annexed hereto, each Seller has
paid all commissions due and payable thereunder with respect to the
term of any Lease which is now in effect or any pre-existing term;
and (iv) there is no default, or alleged default, by any Seller, or
the to best knowledge of Sellers, any default by any other party
under any of the Brokerage Contracts;
(g) except as listed on Exhibit N annexed hereto, there are no
proceedings at law or in equity (including proceedings contesting
any tax or assessment) before any court, grand jury, administrative
agency or other investigative agency, bureau or instrumentality of
any kind pending or, to the best of Sellers' knowledge, threatened,
against or affecting any Seller or any Property that (i) involve the
validity or enforceability of this Agreement or any other instrument
or document to be delivered by Sellers pursuant hereto, (ii) enjoin
or prevent or threaten to enjoin or prevent the performance of the
obligations of any Seller hereunder or (iii) relate specifically to
any of the Properties or the title thereto;
(h) attached hereto as Exhibit O is a true and complete list of all
Personal Property included in this transaction;
(i) no consent, authorization, license, permit, registration or
approval of, or exemption or other action by, any governmental or
public body, commission or authority is required in
32
connection with the execution, delivery and performance by any
Seller of this Agreement;
(j) none of the Sellers is a "foreign person" under the Foreign
Investment in Real Property Tax Act of 1980 and upon consummation of
the transaction contemplated hereby, Purchaser will not be required
to withhold from the Purchase Price any withholding tax;
(k) none of the Sellers has received any notice from any
governmental authority having jurisdiction over any Property that
any Property does not comply with any applicable Legal Requirement
or with any requirement of any insurer or rating bureau;
(l) except as specified in the environmental reports identified on
Exhibit P annexed hereto, (i) to the best knowledge of Sellers,
there are no Hazardous Substances on, in or under any of the
Properties in violation of applicable Legal Requirements; (ii) there
is no order, judgement or decree outstanding requiring any Seller or
any other party to undertake any remedial activity on any of the
Properties; (iii) there is no ongoing remediation on any of the
Properties; and (iv) to the best knowledge of Sellers, there are no
underground storage tanks on any of the Properties and, except as
disclosed on Exhibit Q annexed hereto, no storage tanks have been
removed from any of the Properties;
(m) to the best knowledge of Sellers, attached hereto as Exhibit R
is a true and correct copy of the rent roll for each of the
Properties identifying all rent and additional rent actually being
collected under the Leases;
(n) (i) attached hereto as Exhibit S is a list of all permits,
licenses and approvals relating to the ownership and operation of
the Properties; (ii) such permits, licenses and approvals are in
full force and effect and free from material default; and (iii) none
of the
33
Sellers has received any notice that any permit, license or approval
not listed on Exhibit S is required in connection with the ownership
or operation of the Properties;
(o) (i) attached hereto as Exhibit T is a list of all Guarantees and
Warranties relating to the Properties; (ii) such Guarantees and
Warranties are in full force and effect and (iii) there are no
defaults or alleged defaults by any party thereunder;
(p) all information with respect to the operating expenses of the
Properties furnished or to be furnished by Sellers to Purchaser with
respect to the Properties is true, correct and complete;
(q) to the actual knowledge of Sellers, except as disclosed in the
environmental reports identified on Exhibit P, there is no
environmental condition on any of the Properties that materially
affects the value or use of any of the Properties; and
(r) there are no union or collective bargaining agreements relating
to the Properties or any person employed by any Seller in connection
with any Property.
5.2 Intentionally Deleted.
5.3 Limitation on Representations and Warranties. PURCHASER ACKNOWLEDGES
AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
SELLERS, NOR ANY AGENT OR REPRESENTATIVE OF SELLERS, HAS MADE, ANY EXPRESS OR
IMPLIED REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, OBLIGATIONS,
GUARANTEES, STATEMENTS, INFORMATION OR INDUCEMENTS PERTAINING TO THE PROPERTIES,
TITLE TO THE PROPERTIES, THE PHYSICAL CONDITION THEREOF, THE FITNESS AND QUALITY
THEREOF, THE VALUE AND PROFITABILITY THEREOF, OR ANY OTHER MATTER WITH RESPECT
THERETO. PURCHASER ACKNOWLEDGES THAT AS OF THE EXPIRATION OF THE DUE DILGENCE
PERIOD IT WILL HAVE HAD SUCH ACCESS TO THE PROPERTIES AND SUCH OTHER MATTERS AND
TO INFORMATION AND DATA RELATING TO ALL OF SAME AS PURCHASER HAS CONSIDERED
NECESSARY, PRUDENT, APPROPRIATE OR DESIRABLE FOR THE PURPOSES OF THIS
34
TRANSACTION. WITHOUT LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES AND AGREES
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLERS NOR ANY
REPRESENTATIVE OF SELLERS IS LIABLE OR RESPONSIBLE FOR OR BOUND IN ANY MANNER BY
(AND PURCHASER HAS NOT RELIED UPON) ANY VERBAL OR WRITTEN OR SUPPLIED
REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, OBLIGATIONS, GUARANTEES,
STATEMENTS OR INFORMATION PERTAINING TO THE PROPERTIES. PURCHASER ACKNOWLEDGES
AND AGREES THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, PURCHASER IS
PURCHASING THE PROPERTIES, "AS IS" AT THE DATE HEREOF, SUBJECT TO ANY REASONABLE
WEAR AND TEAR BETWEEN THE DATE HEREOF AND THE CLOSING DATE
5.4 Survival of Seller's Representations and Warranties. The
representations and warranties contained in Section 5.1 are true, accurate and
complete and not misleading in any material respect as of the date hereof and
shall be deemed to be repeated at and as of the Closing Date, and shall be true,
accurate and complete and not misleading in any material respect as of such
date, subject, in each such case, to the discovery of any inaccuracy not caused
by the willful action of Sellers arising from any events occurring subsequent to
the date hereof. The representations and warranties in Section 5.1 shall survive
the closing for a period of one (1) year from the Closing Date.
5.5 Changes to Representations and Warranties. If prior to the closing,
Sellers obtain actual knowledge that any representation or warranty of Sellers
becomes inaccurate or incomplete in any material respect, Sellers shall promptly
give Purchaser notice thereof, describing such inaccuracy and the circumstances
causing such inaccuracy. If Sellers do not cure such inaccuracy within ten (10)
calendar days, Purchaser shall have the right, at its option, to terminate this
Agreement with respect to the affected Property or, subject to the Termination
Limitation, terminate this Agreement with respect to all Properties, within ten
(10) days after receipt of such notice. If the termination is only with respect
to the affected Property, the Purchase Price shall be reduced by an amount equal
to the Allocable Purchase Price for such Property. If such termination is with
respect to all Properties, the Deposit shall be refunded to Purchaser, whereupon
neither Sellers nor Purchaser shall have any further rights against the other
hereunder. If Purchaser fails to give notice of a termination within such
period, unless the inaccuracy was caused by the willful action of Sellers or was
inaccurate as of the date hereof, Purchaser
35
shall conclusively be deemed to have waived its right to terminate this
Agreement as a result thereof. If such inaccuracy was caused by the willful
action of Sellers or such representation or warranty was inaccurate as of the
date hereof, Purchaser shall not be deemed to waive its termination right or any
other rights under this Agreement. If, however, Purchaser proceeds to close with
knowledge of such inaccuracy, then Purchaser shall be deemed to have waived same
and shall have no claim on account thereof against Sellers.
5.6 Inaccuracies Discovered by Purchaser. If prior to the closing,
Purchaser shall independently learn of any material inaccuracy in any of the
representations or warranties of Sellers, and with actual knowledge of such
inaccuracy elects to consummate the closing, the Purchaser shall be deemed to
have waived the same and shall have no claim on account thereof against Sellers.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PURCHASER
6.1 Representations and Warranties. As an inducement to Sellers to enter
into this Agreement, Purchaser represents and warrants that:
(a) Purchaser is a limited liability company duly organized and
validly existing under the laws of the State of Delaware, is
qualified to conduct business in the State of New Jersey, is in good
standing, has the power and authority to enter into this Agreement
and to consummate the transactions herein contemplated and the
execution and delivery hereof and the performance by Purchaser of
its obligations hereunder will not violate or constitute an event of
default under the terms or provisions of any agreement, document or
other instrument to which Purchaser is a party or by which it is
bound;
(b) the execution, delivery and performance of this Agreement by
Purchaser and the consummation of the transactions contemplated
hereby in the manner contemplated herein will not violate any
provision of law, statute, rule or regulation to which Purchaser is
subject or violate any
36
judgment, order, writ, injunction or decree of any court applicable
to Purchaser; and
(c) no consent, authorization, license, permit, registration or
approval of, or exemption or other action by, any governmental or
public body, commission or authority is required in connection with
the execution, delivery and performance by Purchaser of this
Agreement.
6.2 Survival. The representations and warranties contained in Section 6.1
are true, accurate and complete and not misleading in any material respect as of
the date hereof, shall be deemed to be repeated at and as of the Closing Date
and shall be true, accurate and complete and not misleading in any material
respect as of such date. Each such representation and warranty shall survive the
Closing Date for a period of one (1) year from the Closing Date.
ARTICLE 7
OTHER COVENANTS AND AGREEMENTS
7.1 No Contracts, Liens or Encumbrances. Sellers agree that they will not
create, suffer or permit to be created, and that they will promptly remove or
discharge, any liens or encumbrances against any of the Properties arising
subsequent to the date of this Agreement and prior to the Closing Date, provided
that Sellers shall not be obligated to expend more than the net Allocable
Purchase Price (after closing adjustments) to remove any Voluntary Encumbrance.
Sellers further agree that, except as provided in Section 7.5, they will not
enter into any contracts or agreements relating to any of the Properties prior
to the Closing Date, including any new Contracts or Brokerage Contracts.
7.2 Maintenance of the Properties. Sellers will cause each of the
Properties to be maintained in substantially the same condition as now
maintained, will operate the Properties in substantially the same manner as the
Properties have heretofore been operated and will use commercially reasonable
efforts to maintain in effect any Guarantees and Warranties. Sellers will cure
any violations of applicable Legal Requirements arising prior to the Closing
Date. Sellers will not enter into any construction, management, brokerage,
maintenance or service contracts which would become the obligation of Purchaser;
and will promptly
37
inform Purchaser in writing upon obtaining actual knowledge of any material
event adversely affecting the ownership, use, occupancy, operation or
maintenance of the Properties, whether or not insured against.
7.3 Insurance. Sellers will cause their existing fire, extended coverage
and public liability insurance covering the Properties to be maintained in full
force and effect as heretofore maintained by it.
7.4 Performance of Obligations. Sellers will promptly (a) comply with all
obligations of the landlord under the Leases, the Reciprocal Easement Agreements
and the Guarantees and Warranties and (b) promptly upon obtaining knowledge
thereof, notify Purchaser of any default by Seller or any tenant under any of
the Leases or by Sellers under any of the Reciprocal Easement Agreements
Guarantees and Warranties.
7.5 Leasing. After the date hereof, Sellers will not, without the prior
consent of Purchaser, which such consent may be denied by Purchaser for any
reason, enter into (or propose to Mortgagee that Mortgagee enter into) any Lease
Transaction, except that, without Purchaser's consent, Sellers may (a) enter
into (or propose to Mortgagee that Mortgagee enter into) Qualifying New Leases
within ten (10) calendar days after transmitting to Purchaser a Lease Proposal
Notice, provided that Sellers will not enter into (or propose to Mortgagee that
Mortgagee enter into) any Qualifying New Lease if Purchaser notifies Sellers
within ten (10) calendar days of receiving a Lease Proposal Notice that the
proposed transaction does not, in Purchaser's reasonable judgment, satisfy the
criteria for qualifying as a Qualifying New Lease and (b) renew or extend
existing Leases, or permit any existing tenant to lease additional space
pursuant to the exercise by a tenant of a renewal, extension or expansion option
presently contained in any such Lease. Sellers will promptly furnish to
Purchaser a copy of any document evidencing a transaction described in clause
(b) above. Any objection by Purchaser to a proposed Lease Transaction shall
specify the reasons therefor. Sellers shall promptly advise Purchaser of any
offers or solicitations to lease space in any of the Properties after obtaining
knowledge thereof, shall consult with Purchaser from time to time concerning
leasing activities and shall promptly furnish to Purchaser information relating
to any proposed leases, renewals and extensions after receipt thereof.
38
7.6 No Marketing. Sellers shall not, directly or indirectly, market any of
the Properties for sale, exchange or other disposition to any third party.
7.7 Obligations for Brokerage and Tenant Fit-Up. Seller will not enter
into any brokerage agreement with respect to any Qualifying New Lease that
requires the payment of a commission in excess of five percent (5%) of the gross
rent payable under such lease unless, on the Closing Date, the applicable Seller
deposits into the escrow for brokerage commissions required to be established
under Section 2.6, an amount equal to the excess. Sellers shall also pay when
due all costs and expenses for tenant fit-up work, allowances, moving expenses
and other monetary inducements granted to any tenant under any Qualifying New
Lease, provided that after the Closing Date, payments to contractors for tenant
fit-up work performed pursuant to Qualifying New Leases shall be funded in
accordance with the escrow provisions of Article 2. Sellers will not enter into
any construction contract for tenant fit-up, or grant any tenant any allowance,
moving expense reimbursement or other monetary inducement in connection with a
Qualifying New Lease if the cost of the work exceeds the applicable amount to be
escrowed therefor pursuant to Article 2 unless, on the Closing Date, the
applicable Seller deposits into the escrow for tenant improvement work required
to be established under Section 2.6(b), an amount equal to such excess. If
Sellers fail or refuse to comply with the provisions of this Section 7.7,
Purchaser shall have the right to draw from the escrow accounts amounts
sufficient to cure such defaults. Purchaser shall have the right to approve all
contractors and the terms and conditions of all construction contracts relating
to any tenant fit-up work pursuant to a Qualifying New Lease, which such consent
shall not be unreasonably withheld, delayed or conditioned. Purchaser hereby
approves the contractors identified on Exhibit U annexed hereto.
7.8. Rights of First Refusal. Within three (3) business days after
Purchaser pays the amount required to be paid pursuant to clause (a) of Section
2.7, Sellers shall send to any party having a right of first refusal or first
offer to purchase a Property or any portion thereof an effective notice
triggering such right of first refusal or first offer, the form of such notice
to be substantially as set forth on Exhibit CC hereto. Sellers will notify
Purchaser promptly upon obtaining any response from such
39
party, and will also promptly notify Purchaser if such party has failed to
respond within the period specified in the right of first refusal or first
offer. If any such tenant validly exercises its right of first refusal, this
Agreement shall terminate with respect to such Property and the Purchase Price
shall be reduced by the Allocable Purchase Price for such Property, provided
that if the tenant exercising such right thereafter waives its right of first
refusal, defaults thereunder or otherwise forfeits its right to acquire the
Property, such Property shall again become subject to this Agreement and the
Purchase Price shall be increased by an amount equal to the Allocable Purchase
Price for such Property.
ARTICLE 8
DAMAGE, DESTRUCTION AND CONDEMNATION
8.1 Casualty. The risk of loss or damage to the Properties by fire or
other casualty before the delivery of the deed hereunder is assumed by the
Seller owning each such Property. In the event of any damage to or destruction
of a Property due to fire or any other cause or hazard, Sellers shall promptly
give notice thereof to Purchaser describing such damage and indicating the
estimated cost and period required for Restoration. If the cost of Restoration
as estimated by Purchaser in good faith is in excess of $500,000, or as a result
of such damage or destruction a tenant is permitted to cancel its Lease, then
Purchaser, upon notice to Sellers given within ten (10) days after receipt of
notice of such occurrence, may, subject to the Termination Limitation, at its
option, terminate this Agreement with respect to such Property or terminate this
Agreement with respect to all Properties. If the termination is only with
respect to the Property that has been damaged or destroyed, the Purchase Price
shall be reduced by an amount equal to the Allocable Purchase Price for such
Property. If such termination is with respect to all Properties, the Deposit
shall be refunded to Purchaser, whereupon neither Sellers nor Purchaser shall
have any further rights against the other hereunder. In the event that the cost
of Restoration is less than $500,000 as determined by any of the architects or
contractors set forth on Exhibit ZZ hereto or such other party approved by
Sellers and Purchaser, or if in excess thereof and Purchaser does not elect to
terminate this Agreement, Purchaser shall be entitled to a credit on the Closing
Date against the Allocable Purchase Price for such
40
Property in an amount equal to the cost of Restoration.
8.2 Condemnation. In the event any proceedings or negotiations are
instituted which do or may result in a taking by condemnation or eminent domain
of any of the Properties or any portion thereof, Sellers shall promptly notify
Purchaser thereof, describing the nature and extent thereof. Purchaser may,
subject to the Termination Limitation, within ten (10) days after receipt of
such notice, at its option, terminate this Agreement with respect to such
Property or terminate this Agreement with respect to all Properties. If the
termination is only with respect to the Property that has or may be taken, the
Purchase Price shall be reduced by an amount equal to the Allocable Purchase
Price for such Property. If such termination is with respect to all Properties,
the Deposit shall be refunded to Purchaser, whereupon neither Sellers nor
Purchaser shall have any further rights against the other hereunder. In the
event Purchaser does not terminate this Agreement, the sale of the Properties
shall be consummated as herein provided and the Seller whose Property is or may
be taken shall assign to Purchaser on the Closing Date all of its right, title
and interest in and to all awards payable by reason thereof and shall pay over
to Purchaser all amounts theretofore received by such Seller or Mortgagee in
connection with such taking. Sellers agree not to settle or compromise any claim
for such award without the prior written consent of Purchaser. Purchaser shall
have the right, at its cost, to participate in any condemnation proceeding,
unless Purchaser terminates this Agreement with respect to such Property.
8.3 Hazardous Substances. In the event that after Purchaser completes its
environmental audit of a Property and prior to the Closing Date there is a
spill, discharge, release, deposit or emplacement of any Hazardous Substance on
any of the Properties which results in contamination of such Property beyond
permitted governmental tolerances, Sellers shall, promptly upon obtaining
knowledge thereof, notify Purchaser of such event, describing the nature and
extent thereof. Purchaser may, within fifteen (15) days after receipt of such
notice, subject to the Termination Limitation, at its option, terminate this
Agreement with respect to such Property or terminate this Agreement with respect
to all Properties. If the termination is only with respect to the Property that
has been contaminated, the Purchase Price shall be reduced by an amount equal to
the Allocable Purchase Price for such Property. If such
41
termination is with respect to all Properties, the Deposit shall be refunded to
Purchaser, whereupon neither Sellers not Purchaser shall have any further rights
against the other hereunder. If Purchaser does not so terminate this Agreement,
Purchaser shall be entitled to a credit against the Allocable Purchase Price for
the affected Property in an amount equal to the cost to remediate the Property,
as estimated in good faith by Purchaser, provided that in no event shall such
credit exceed $500,000. Upon receipt of such credit, the applicable Seller shall
have no liability or responsibility for such remediation of such contamination.
ARTICLE 9
CONDITIONS PRECEDENT; CLOSING DATE AND DELIVERIES
9.1 Conditions Precedent to Sellers' Obligation to Complete Closing.
Purchaser agrees that Sellers' obligation to complete the closing hereunder
shall be subject to the fulfillment, on the Closing Date, of the following
conditions precedent, provided however, that Sellers, in their sole discretion,
may elect to waive any thereof:
(a) Purchaser shall pay to Sellers the Purchase Price as provided
in Article 2;
(b) Purchaser shall not be in material default in the performance
of its obligations under this Agreement and;
(c) the representations and warranties of Purchaser contained in
Section 6.1 shall be true, complete and accurate in all
material respects.
In the event any of the foregoing conditions precedent are not waived by
Sellers, Sellers shall have the rights and remedies provided in Section 11.3(a)
respecting a Purchaser Default.
9.2 Conditions Precedent to Purchaser's Obligation to Complete Closing.
Sellers agree that Purchaser's obligation to complete the closing hereunder
shall be subject to the fulfillment, prior to the Closing Date, of the following
conditions precedent, provided however, that
42
Purchaser, in its sole discretion, may elect to waive any thereof:
(a) title to each Property shall be as specified in Section 3.1 and
Section 3.2;
(b) none of the Sellers shall be in default in the performance of
its obligations under this Agreement;
(c) the representations and warranties of each of the Sellers
contained in Section 5.1 shall be true, complete and accurate in all
respects;
(d) on the Closing Date the Title Insurer shall issue to Purchaser
owner's title insurance policies (Form ALTA 10-17-92) each in the
amount of the Allocable Purchase Price insuring good and marketable
title to each of the Properties in Purchaser subject only to
Permitted Exceptions;
(e) Seller shall have delivered to Purchaser an estoppel certificate
from each of the tenants under the Leases, dated not more than
thirty (30) days prior to the Closing Date, substantially in form
annexed hereto as Exhibit Y, containing no material qualifications,
conditions or alleged defaults;
(f) each tenant leasing more than 20,000 square feet of space shall
have executed and delivered to Purchaser and its mortgagee a
Subordination, Attornment and Non-Disturbance Agreement from each
tenant under the Leases substantially in form of Exhibit Z annexed
hereto; and
(d) evidence shall have been delivered satisfactory to the Title
Insurer that Advertising Display Corporation and Lensclean, Inc.
have effectively waived their respective rights of first refusal
contained in their Leases.
In the event any of the foregoing conditions precedent are not waived by
Purchaser, Purchaser may terminate this Agreement on notice to Sellers and
Escrow Agent given at or
43
prior to the Closing Date, the time for giving such notice being of the essence.
In the event of such termination, the Deposit shall be returned to Purchaser,
whereupon this Agreement and all rights and obligations of the respective
parties hereunder shall be null and void. If Purchaser does not elect to
terminate this Agreement pursuant to this Section 9.2 at or prior to the Closing
Date, Purchaser shall conclusively be deemed to have waived its right of
termination under this Section 9.2. Sellers agree to exercise good faith and
commercially reasonable efforts to cause the tenants of the Properties to
execute and deliver the documents described in clauses (e) and (f) of this
Section 9.2.
9.3 Closing Date. The closing of this transaction shall be conducted on
March 29, 2002 at 10:00 A.M. (the "Closing Date"), provided the Closing Date
shall occur not later than April 30, 2002, such date being a time of the essence
closing date. The closing shall be conducted at the offices of Drinker Xxxxxx &
Xxxxxxx, LLP, 000 Xxxxxx Xxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000, or at such other
place as the parties shall elect. All of the Properties to be conveyed to
Purchaser under this Agreement shall be conveyed on the Closing Date. Upon the
closing, possession of the Properties shall be delivered to Purchaser, and
Purchaser shall thence have the right to enjoy the rents, issues and profits
therefrom.
9.4 Documents to be Delivered by Sellers. On the Closing Date, each Seller
shall deliver to Purchaser the following documents:
(a) duly executed Deed of Bargain and Sale with Covenant Against
Grantor's Acts for the Lands and the Improvements in proper
statutory form for recordation reciting the Allocable Purchase Price
as the consideration for the conveyance;
(b) duly executed Xxxx of Sale for the Personal Property in form
annexed hereto as Exhibit V;
(c) all as built plans, specifications and drawings and shop
drawings and all manuals relating to the maintenance and operation
of the Properties in Sellers' possession or control;
44
(d) duly executed Affidavit of Title in form annexed hereto as
Exhibit W;
(e) duly executed FIRPTA Affidavit in form of Exhibit X annexed
hereto;
(f) all keys to the Improvements in the possession of Sellers;
(g) originals of all Leases, tenant files and correspondence in the
possession of Sellers;
(h) originals of all Guarantees and Warranties;
(i) discharges of all mortgages, security interests, pledges and
liens created by or pursuant to the Loan Documents;
(j) notices from each Seller to each tenant under the Leases
advising that title to the Lands and the Improvements has been
conveyed to Purchaser and instructing that all rent and additional
rent payable under the Leases is to be remitted to Purchaser and
that all insurance required to be maintained by such tenant under
the Leases is to be amended to name Purchaser and its lender as a
named insured;
(k) a "letter of non applicability" from the DEP confirming that the
conveyance of each Property is not subject to the provisions of the
Industrial Site Recovery Act of the State of New Jersey or a "no
further action letter" from the DEP, provided such letter is not
conditioned upon any use restrictions, administrative or engineering
controls or any other restriction, including but not limited to, the
establishment of a classification exception area.
(l) an estoppel certificate from all parties to any Reciprocal
Easement Agreement, dated not more than thirty (30) days prior to
the Closing Date, in form and substance satisfactory to Purchaser;
(m) an updated rent roll for each Property certified by the Seller
owning such Property;
45
(n) such other documents and instruments as Purchaser or its Title
Insurer may reasonably request to perfect title to any of the
Properties in Purchaser, including evidence satisfactory to the
Title Insurer that Advertising Display Corporation and Lensclean,
Inc. have effectively waived their respective rights of first
refusal contained in their Leases;
(o) a statement explaining the method of calculating additional rent
under each Lease; and
(p) any original letters of credit delivered under the Leases as
security for the performance of the tenant's obligations, together
with documents in form reasonably satisfactory to Purchaser naming
Purchaser as the substitute beneficiary thereof; and
(q) a certificate, dated the Closing Date and signed by each Seller,
stating that the representations and warranties contained in Section
5.1 are true, correct and complete as of such date, except to the
extent provided in any notice given to Purchaser in accordance with
Section 5.5.
9.5 Documents to be Delivered by Purchaser. On the Closing Date, Purchaser
shall deliver to each Seller a certificate, dated as of the Closing Date and
signed by the general partner of Purchaser, stating that the representations and
warranties contained in Section 6.1 are true, correct and complete as of such
date.
9.6 Documents to be Delivered by Both Parties. On the Closing Date, each
Seller and Purchaser shall execute and deliver the following documents:
(a) duly executed Assignment in form annexed hereto as Exhibit AA;
(b) duly executed Assignments and Assumption of Leases in form
annexed hereto as Exhibit BB;
46
(c) duly executed Assignment and Assumption of any Guarantees and
Warranties and any construction contracts executed by any Seller and
approved by Purchaser for fit-up work required under any Qualifying
New Lease;
(d) Forms 1099; and
(e) statements relating to each Property showing all closing
prorations.
9.7 Certificates of Occupancy etc. If any applicable Legal Requirement
requires that a new certificate of occupancy, continued certificate of
occupancy, site plan approval, smoke detector inspection or any other government
approval is required as a condition to the conveyance of any of the Properties,
the Seller owning such Property or Properties, at its sole cost and expense,
shall comply with such requirement and deliver to Purchaser evidence of such
compliance on the Closing Date.
ARTICLE 10
CLOSING ADJUSTMENTS
10.1 Adjustment Time. All apportionments and adjustments shall be made as
of 12:00 midnight on the Closing Date.
10.2 Description of Items to be Adjusted. The following apportionments and
adjustments shall be made:
(a) real estate taxes assessed against the Lands and Improvements
based upon the calendar year assessed;
(b) the amount of the real estate transfer taxes payable in
connection with the conveyance of each of the Properties shall be
deducted from the Allocable Purchase Price and shall be paid by
Purchaser directly to the taxing authority;
(c) if there are any confirmed or unconfirmed special assessments
against the Lands or the Improvements, the Seller owning such
Property shall pay same if the work giving rise to the assessment
was completed prior to the date of
47
this Agreement, but if the work giving rise to the assessment was
not completed prior to the date of this Agreement, same shall be
paid or assumed by Purchaser;
(d) rents and all other charges (including cost reimbursement
payments) actually paid under the Leases, provided, however, that,
if any rents shall be accrued and unpaid at the Closing Date, the
rents collected by Purchaser on or after the Closing Date shall
first be applied to all rents due at the time of such collection on
or after the Closing Date with the balance payable to the applicable
Seller to the extent of rents delinquent as of the Closing Date;
provided, further, that Purchaser shall not be required to institute
any proceeding to collect any rents accrued and unpaid on the
Closing Date. Any rent or additional rent paid to any Seller after
the Closing Date shall promptly be remitted to Purchaser. If a
Seller shall not have received all accrued and unpaid rents due it
as of the Closing Date within one hundred twenty (120) days
thereafter, such Seller, at its sole cost and expense, shall be
entitled to bring such actions or proceedings not affecting
possession, the validity of the related Lease or any security held
by Purchaser thereunder as it shall desire to collect any such
accrued and unpaid rents, and Purchaser shall, at no cost to
Purchaser, cooperate with such Seller in any such action;
(e) payments under any Reciprocal Easement Agreement;
(f) all other income and expense from the Properties of every type
and nature. If any of the foregoing cannot be apportioned at the
Closing Date because of the unavailability of the amounts which are
to be apportioned, such items shall be apportioned as soon as
practicable after the Closing Date; and
(g) sewer, water, gas, electric, telephone and other utility charges
shall not be apportioned but shall be paid by Sellers based upon
current bills or meter readings.
48
10.3 Security Deposits. At closing, Purchaser shall be entitled to a
credit against the Allocable Purchase Price for all security deposits (including
any interest thereon to which a tenant may be entitled) held by any Seller
pursuant to the Leases or such Seller shall turn over such security deposits and
interest to Purchaser.
10.4 Closing Costs. Sellers and Purchaser shall pay their own legal fees
related to this transaction. Purchaser shall pay all its costs associated with
its due diligence investigation of the Properties, the cost of title searches
and surveys, title insurance premiums and the cost of recording the deeds.
Sellers shall pay the cost of curing any Title Objections, removing any
Voluntary Encumbrances and all transfer taxes.
ARTICLE 11
DEFAULT; REMEDIES
11.1 Default by Purchaser. Sellers may terminate this Agreement by notice
to Purchaser at any time prior to the Closing Date in the event of (a) a default
by Purchaser under this Agreement (which remains uncured for ten (10) days after
notice to Purchaser specifying such default and demanding that same be cured or
(b) a material breach by Purchaser of any representation or warranty expressly
set forth in this Agreement (a "Purchaser Default").
11.2 Default by Seller. Purchaser may terminate this Agreement by notice
to Seller at any time prior to the Closing Date in the event of (a) a default by
any Seller under this Agreement (which remains uncured for ten (10) days after
notice to Sellers specifying such default and demanding that same be cured,
unless such default cannot be cured by the payment of money and cannot with due
diligence be wholly cured within such ten (10) day period, in which case Sellers
may request a longer period as shall be necessary to cure such default, so long
as Sellers proceed promptly to cure such default within such ten (10) day
period, prosecute such cure to completion with due diligence within sixty (60)
days and advise Purchaser of the actions which Sellers are taking and the
progress being made) or (b) a material breach by any Seller of any
representation or warranty expressly set forth in this Agreement that is not
cured within the applicable grace period (a "Seller Default").
49
11.3 Remedies.
(a) Of Sellers. In the event of a Purchaser Default, Sellers shall,
as their sole and exclusive remedy hereunder, have the right to
terminate this Agreement and receive the Deposit and such payment
shall constitute and be liquidated and agreed damages, whereupon the
parties hereto shall be relieved of any further liability or
obligation to each other, it being expressly understood that the
receipt by Sellers of such monies shall be the sole and exclusive
right and remedy of Sellers and constitutes a fair and reasonable
amount for the damage sustained by Sellers by reason of Purchaser's
breach of this Agreement. Sellers hereby waive and release any right
to seek specific performance against Purchaser.
(b) Of Purchaser. In the event of a Seller Default, Purchaser shall
be entitled, either (i) to specific performance, or (ii) to
terminate this Agreement and receive from Sellers the Deposit or
(iii) to waive the Seller Default and consummate the transactions
contemplated hereby, provided that if any Seller willfully causes a
Seller Default or sells the Properties or any portion thereof to a
third party, or takes any action that renders the remedy of specific
performance impossible or impracticable to obtain, Sellers shall be
liable for any damages sustained by Purchaser.
11.4 Actions of Mortgagee. Purchaser acknowledges that the Mortgagee has
been authorized by the Court in the Mortgage Foreclosure Proceeding to take
certain actions with respect to the Properties, including certain actions with
respect to the management, operation and leasing of the Properties. Purchaser
agrees that any such action by the Mortgagee shall not be deemed a default by
Sellers under this agreement unless such action was taken at the request of
Sellers. Notwithstanding the foregoing, if Mortgagee takes any action which
would otherwise be a default by Sellers hereunder, or would cause any of the
representations and warranties of Sellers to be materially inaccurate, Purchaser
shall have the sole right, at its option, to terminate this
50
Agreement with respect to the affected Property, subject to the Termination
Limitation, or terminate this Agreement with respect to all Properties, within
ten (10) days after obtaining actual knowledge thereof. If the termination is
only with respect to the affected Property, the Purchase Price shall be reduced
by an amount equal to the Allocable Purchase Price for such Property. If such
termination is with respect to all Properties, the Deposit shall be refunded to
Purchaser, whereupon neither Sellers nor Purchaser shall have any further rights
against the other hereunder. Purchaser also acknowledges that the Mortgagee is
not obligated under the Loan Documents to release or discharge the Properties
from the liens, security interests and assignments created by the Loan Documents
and agrees that, if Mortgagee shall refuse to release or discharge such liens,
security interests and assignments on the Closing Date, Sellers shall not be
deemed to be in default hereunder. Sellers agree to exercise good faith and due
diligence to cause the Mortgagee to grant such releases or discharges, provided
that (a) the proceeds from the sale of the Properties are applied in full by
Mortgagee to the indebtedness evidenced and secured by the Loan Documents and
(b) Sellers are not required to release Mortgagee and its agents, contractors,
employees and other affiliates from any liabilities with respect to any
properties other than the Properties being conveyed to Purchaser under this
Agreement and (c) Seller shall not be required to comply with any other terms or
conditions of Mortgagee which are not acceptable to Seller. Sellers shall advise
Purchaser from time to time of the status of the negotiations with Mortgagee. If
Mortgagee refuses to discharge such liens, security interests and assignments on
the Closing Date on the above terms, and same are not discharged pursuant to an
unappealable judgment or order of a court having jurisdiction over Mortgagee,
Purchaser's sole remedy shall be to terminate this Agreement, whereupon the
Deposit shall be refunded to Purchaser and neither party shall have any further
rights under this Agreement.
ARTICLE 12
MISCELLANEOUS
12.1 Brokerage Commission and Finder's Fee. Sellers and Purchaser agree
that they have dealt with each other and not through any real estate broker,
investment banker,
51
person, firm or entity who would, by reason of such dealings, be able to claim a
real estate brokerage, business opportunity brokerage or finder's fee as the
procuring cause of this transaction, except the Broker. Sellers and Purchaser
agree to indemnify the other and hold the other harmless of and from any and all
loss, cost, damage, injury or expense arising out of, or in any way related to,
assertions, by any other person, firm or entity of a claim to real estate
brokerage, business opportunity brokerage or finder's fee based on alleged
contacts between the claiming party and the indemnifying party which have
resulted in allegedly providing a broker or finder with the right to claim such
commission or finder's fee. Purchaser agrees to pay the Broker a commission
pursuant to a separate agreement if, as and when title closes and Sellers shall
have no liability to the Broker. The provisions of this Section 12.1 shall
survive the closing of title. The parties acknowledge that SBWE, Inc. has
advised that it may assert a claim for commissions arising out of this
transaction. Each party denies SBWE, Inc is the procuring cause of this
transaction and that it has any liability to such broker. The parties further
agree that if such claim is asserted, the foregoing provisions relating to
indemnification shall not apply to such claim.
12.2 Assignment. Purchaser shall have the right to assign this Agreement
to an affiliate provided (a) a copy of the executed assignment is delivered to
Sellers not less that five (5) days prior to the Closing Date, (b) the assignee
assumes all obligations of Purchaser hereunder, and (c) Purchaser remains
primarily liable hereunder as a principal and not as a guarantor or surety.
Purchaser shall also have the right to designate a nominee or nominees to take
title to one or more of the Properties, and in such event all of the benefits of
this Agreement pertaining to such Property shall inure to the benefit of and be
enforceable by such nominee.
12.3 Notices. Any demand, notice or other communication required or
permitted to be given hereunder shall be in writing, and shall be delivered
personally, by telecopy (with a hard copy and a transmission confirmation sent
by a recognized overnight national courier service (such as Federal Express) for
next business day delivery) or by certified mail, return receipt requested,
first-class postage prepaid to the parties at the addresses set forth below (or
to such other addresses as the parties may specify by due notice to the other):
52
To Seller:
c/o Berger & Xxxxxxxxx, P.A.,
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Fax: 000-000-0000
Telephone: 000-000-0000
To Purchaser:
Keystone New Jersey Associates, LLC
c/o Keystone Operating Partnership, L.P.
200 Four Falls Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Executive Vice President,
Chief Investment Officer
Fax Number 000-000-0000
Telephone: 000-000-0000
and
Keystone New Jersey Associates, LLC
c/o Keystone Operating Partnership, L.P.
200 Four Falls Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Senior Vice President,
General Counsel and Secretary
Fax Number 000-000-0000
Telephone: 000-000-0000
53
with copies to:
Drinker Xxxxxx & Xxxxxxx LLP
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Xx., Esq.
Fax: 000-000-0000
Telephone: 000-000-0000
To Escrow Agent:
Chicago Title Insurance Company
00 Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax Number 000-000-0000
Telephone 000-000-0000
Any notice delivered to a party's designated address by (a) personal delivery,
(b) recognized overnight national courier service, or (c) certified mail, return
receipt requested, shall be deemed to have been received by such party at the
time the notice is delivered to such party. Any notice sent by fax to the
party's designated fax number shall be effective upon receipt, provided receipt
occurs before 5:00 PM on a business day in the State of New Jersey. Confirmation
by the courier delivering any notice given pursuant to this Section 12.3 shall
be conclusive evidence of receipt of such notice. Each party hereby agrees that
it will not refuse or reject delivery of any notice given hereunder, that it
will acknowledge, in writing, receipt of the same upon request by any other
party and that any notice rejected or refused by it shall be deemed for all
purposes of this Agreement to have been received by the rejecting party on the
date so refused or rejected, as conclusively established by the records of the
U.S. Postal Service or the courier service. Any notice given by an attorney for
a party shall be effective for all purposes.
12.4 Successors and Assigns. The terms, covenants and conditions herein
contained shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto.
12.5 Recordation. This Agreement shall not be recorded. Nothing herein
shall be deemed to prevent Purchaser from filing Notices of Settlement.
54
12.6 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New Jersey.
12.7 Incorporation of Prior Agreements. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof,
and no prior or other written or oral agreement or undertaking pertaining to any
such matter shall be effective for any purpose.
12.8 Modification of Agreement. This Agreement may not be amended or
modified, nor may any obligation hereunder be waived orally, and no such
amendment, modification or waiver shall be effective for any purpose unless it
is in writing and signed by the party against whom enforcement thereof is
sought.
12.9 Further Assurances. After the Closing Date, Seller shall execute,
acknowledge and deliver, for no further consideration, all such assignments,
transfers, consents and other documents as Purchaser may reasonably request to
carry out the provisions of this Agreement.
12.10 Invalidity. If any provision hereof shall be declared invalid by any
court or in any administrative proceedings, the provisions of this Agreement
shall be construed in such manner so as to preserve the validity hereof and the
substance of the transaction herein contemplated to the extent possible.
12.11 Counterparts. This Agreement may be executed and delivered in
several counterparts, each of which, when so executed and delivered, shall
constitute an original, fully enforceable counterpart for all purposes.
12.12 Tax Free Exchange. Each Seller agrees that it shall, upon written
request from Purchaser, reasonably cooperate in effecting a transaction commonly
referred to as a "like-kind exchange" or a "tax free exchange" in connection
with the transaction contemplated by this Agreement, provided that any such
exchange and the related documentation shall (a) be at the sole cost and expense
of Purchaser, (b) not require such Seller to incur any obligations or
liabilities, contingent or otherwise, to third parties, (c) not delay the
closing hereunder (d) not include such Seller taking title to
55
the replacement property or otherwise becoming involved in a transaction with a
third party and (e) shall not make Purchaser's obligations hereunder contingent
upon its ability to effectuate such exchange. Purchaser agrees to indemnify and
hold such Seller harmless from and against any additional cost or expense in
connection with such Seller's participation in such exchange.
56
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
Sellers:
INTERSTATE 78 OFFICE PARK, LTD.
A New Jersey Limited Partnership
By: Interstate 78 Office Park GP, L.L.C., A
New Jersey Limited Liability Company,
general partner
By: United States Land Resources, L.P.,
A New Jersey Limited Partnership,
Manager
By: United States Realty Resources,
Inc., A New Jersey Corporation
general partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
FIN ASSOCIATES LIMITED PARTNERSHIP
A New Jersey Limited Partnership
By: Fin Building GP, L.L.C., A New Jersey
Limited Liability Company, general
Partner
By: United States Land Resources, L.P.,
A New Jersey Limited Partnership,
Manager
By: United States Realty Resources,
Inc., A New Jersey Corporation,
general partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
57
NEW YORK DISTRIBUTION CENTER, L.P.
A New Jersey Limited Partnership
By: Carteret-Industrial Road Management
Corp., A New Jersey Corporation,
general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
RARITAN BUILDING ASSOCIATES LIMITED PARTNERSHIP,
A New Jersey Limited Partnership
By: Raritan Building GP, L.L.C.,
A New Jersey Limited Liability Company
general partner
By: United States Land Resources, L.P.,
A New Jersey Limited Partnership, Manager
By: United States Realty Resources,
Inc., A New Jersey Corporation
general partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
000 XXXXXXXX XXXX REALTY HOLDINGS, L.P.
A New Jersey Limited Partnership
By: 000 Xxxxxxxx Xxxx XX, Inc.
A New Jersey Corporation, general
partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
00
XXXXXXXXX XXXXX, X.X.
X Xxx Xxxxxx Limited Partnership
By: Wedgewood Lyndhurst Realty Holdings, Inc.,
A New Jersey Corporation, general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
CARLSTADT BUILDING REALTY HOLDINGS, L.P.
A New Jersey Limited Partnership
By: Carlstadt Triangle Property, Inc.,
A New Jersey Corporation, general partner
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
CARLSTADT ASSOCIATES, LTD.
A New Jersey Limited Partnership
By: Carlstadt Industrial Road GP, L.L.C.,
A New Jersey Limited Liability Company,
general partner
By: United States Land Resources, L.P.,
A New Jersey Limited Partnership, Manager
By: United States Realty Resources,
Inc., A New Jersey Corporation,
general partner
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
KEYSTONE NEW JERSEY ASSOCIATES, LLC
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
59
JOINDER BY TITLE INSURER
By execution hereof, the Title Insurer hereby agrees to hold the Deposit
in accordance with the provisions of this Agreement.
CHICAGO TITLE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: R.V.P.
60
