EXHIBIT 10.52
PURCHASE AGREEMENT
DATED OCTOBER 11, 1996 BETWEEN
WHITEWELD CENTRE, INC.
and
CALI REALTY ACQUISITION CORPORATION
INDEX TO PURCHASE AGREEMENT
dated October 11, 1996, between
WHITEWELD CENTRE, INC.
and
CALI REALTY ACQUISITION CORPORATION
Section
1. Subject of Conveyance
2. Definitions of Certain Terms
3. Inspection Period;
Purchaser's Right of Inspection Prior to Closing
4. Purchase Price and Terms of Payment
5. Matters to Which this Sale is Subject
6. Adjustments
7. Estoppel Certificates
8. Items to be Delivered by Seller on the Closing Date
9. Seller's Representations and Warranties
10. Seller's Covenants
11. Conditions Precedent to Purchaser's Obligations
12. Expenses
13. Tax Reduction and Appeals
14. Leasing Commissions and Tenant Improvement Obligations
15. Broker
16. Title Report
17. Casualty Loss
18. Condemnation
19. Remedies
20. Assessment
21. Closing
22. Notice
23. Escrow Agreement
24. Assignment
25. Environmental Representations
26. Miscellaneous
SCHEDULE OF EXHIBITS
Exhibit A Land
Exhibit B List of Personal Property
Exhibit C Schedule of Leases
Exhibit D Title Exceptions
Exhibit E Estoppel Certificates
Exhibit F Rent Roll
Exhibit G Schedule of Service Contracts
Exhibit H Tax Reduction Proceeding
Exhibit I Schedule of Leasing Commissions
AGREEMENT
THIS AGREEMENT made this 11th day of October, 1996 between WHITEWELD
CENTRE, INC., a New Jersey corporation having an office c/o Whiteweld, Barrister
& Xxxxx, Inc., 000 Xxxx Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000 ("Seller")
and CALI REALTY ACQUISITION CORPORATION, a Maryland corporation, having an
office at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Purchaser").
RECITALS
A. Seller is the owner of the Premises (as hereinafter defined) located
in the County of Bergen, Township of Woodcliff Lake, State of New Jersey,
commonly known as Xxxxxxxxx Xxxxxx, 000 Xxxx Xxxxxxxxx, Xxxxxxxxx Xxxx.
B. Seller has agreed to sell to Purchaser, and Purchaser has agreed to
purchase from Seller, the Premises (as hereinafter defined), subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, do hereby agree as follows:
1. SUBJECT OF CONVEYANCE.
Seller hereby agrees to sell and convey, and Purchaser hereby
agrees to purchase, subject to all terms and conditions set forth in this
Agreement:
(i) those certain plots, pieces or parcels of land
situate, lying and being in the County of Bergen, Township of Woodcliff Lake and
State of New Jersey comprised of approximately 20 acres in the aggregate of
developed land, as described in Exhibit A annexed hereto (the "Land"); and
(ii) the buildings, open parking areas and
improvements, including without limitation, all mechanical, electrical, heating,
ventilation, air conditioning and plumbing fixtures, systems and equipment as
well as all compressors, engines, elevators and escalators, if any, erected on
the Land and commonly known as Whiteweld Centre, 300 Xxxx Boulevard, Woodcliff
Lake, New Jersey (collectively, the "Building"); and
(iii) All leases and other agreements with respect to
the occupancy of the Land and Building, together with all amendments and
modifications thereto, and rents, additional rents, reimbursements, profits,
income, receipts and Security Deposits thereunder ("Leases") and all of Seller's
right, title and interest in and to those contracts and agreements for the
servicing, maintenance and operation of the Land and Building ("Service
Contracts") to the extent Purchaser elects to assume same as provided in Section
8 herein; and
(iv) all right, title and interest, if any, of the
Seller in and to those certain fixtures, equipment, furniture and other personal
property affixed to or appurtenant to the Land and Building including, without
limitation, all carpets, drapes and other furnishings; maintenance equipment and
tools; keys to locks on or in the Building; and all other machinery, equipment,
meters, boilers, repair parts, fixtures and tangible personal property of every
kind and character and all accessions and additions thereto owned by and in the
possession of Seller and attached to or located upon and used in connection with
the ownership, maintenance, or operation of the Land or Building which are not
the property of tenants of the Building or of other persons (the "Personal
Property"); and
(v) all right, title and interest, if any, of the
Seller in and to any land lying in the bed of any public street, road, alley,
easements, rights of way, water, water courses, hereditaments or avenue opened
or proposed, in front of or adjoining said Land and Building, including all
strips and gores between the Land and abutting property, to the center line
thereof; and
(vi) all right, title and interest of Seller, if any,
in and to all site plans, surveys, soil and substrata studies, architectural
drawings, plans and specifications, engineering plans and studies, floor plans,
landscape plans, operating or maintenance manuals and other plans and studies of
any kind owned by Seller, if any, with respect to the Land, the Building, or the
Personal Property ("Plans"); and
(vii) all books, records, promotional material,
tenant data, leasing material and forms, past and current rent rolls, paid xxxx
files, bank statements, tax returns, market studies, keys, and other materials
of any kind owned by Seller, if any, which are or may be used in Seller's
ownership or use of the Land, the Building or the Personal Property ("Books and
Records"); and
(viii) all right, title and interest of Seller, if
any, in and to any and all
licenses and permits owned or held by Seller (including any certificates of
occupancy) to the extent such are assignable and in any way related to or
arising out of or used in connection with the ownership or operation of the
Land, the Building or the Personal Property (collectively, "Licenses and
Permits"); and
(ix) all other rights, privileges and appurtenances
owned by Seller, if any, and in any way related to the rights and interests
described above in this Section.
The foregoing properties, rights and interests set forth or described in
sub-sections (i) - (ix) of this Section 1 are hereinafter collectively referred
to as the "Premises".
2. DEFINITIONS OF CERTAIN TERMS.
For purposes of this Agreement, unless the context otherwise
requires:
"Additional Rent" shall mean any component of
additional rent, however characterized, under a Lease, including without
limitation, real estate taxes, electrical charges, utility costs and operating
expenses.
"Appurtenances" shall mean all right, title and
interest, if any, of Seller in and to any award or payment made, or to be made,
(x) for any taking in condemnation, eminent domain or agreement in lieu thereof
of land adjoining all or any part of the Land or Building, (y) for damage to the
Land or Building or any part thereof by reason of change of grade or closing of
any such street, road, highway or avenue, and (z) for any taking in condemnation
or eminent domain of any part of the Land or Building.
"Cash Payment" is Thirty-Four Million Nine Hundred
and Fifty Thousand ($34,950,000) Dollars, subject to adjustment as provided
herein.
"Closing" is on or about December 6, 1996 but subject
to the provisions of Section 21.
"Closing Date" shall mean the date on which the deed
to the Premises shall be delivered and title thereto conveyed to Purchaser.
"Deed" shall mean a bargain and sale deed with
covenants in proper statutory form for recording so as to convey to Purchaser
good and marketable title to the fee simple of the Premises, free and clear of
all liens and encumbrances, except the Permitted Encumbrances.
"Deposit" is Two Hundred and Fifty Thousand
($250,000) Dollars.
"Element" is as defined in Section 25.
"Environmental Documents" is as defined in Section
25.
"Environmental Inspection Period" is the period
commencing on the Execution Date and ending November 29, 1996.
"Escrow Agent" is Commonwealth Land Title Insurance
Company.
"Estoppel Certificate" is as defined in Section 7.
"Execution Date" is the date that a fully executed
copy of this Agreement is in the possession of counsel to Purchaser and Seller.
"Governmental Authorities" shall mean any agency,
board, bureau, commission, department or body of any municipal, county, state or
federal governmental unit, or any subdivision thereof, having, asserting or
acquiring jurisdiction over all or any part of the Premises or the management,
operation, use or improvement thereof.
"Hazardous Materials" shall include, without
limitation, gasoline, petroleum products, explosives, radioactive materials,
polychlorinated biphenyls, asbestos or any materials containing asbestos, or
related or similar materials, or any other substance or material defined as a
hazardous or toxic substance or waste or toxic pollutant by any federal, state
or local law, ordinance, rule, or regulation.
"Inspection Period" is the period commencing on the
Execution Date and ending November 8, 1996.
"ISRA" is the Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et seq., the regulations promulgated thereunder and any amending or
successor legislation and regulations.
"ISRA Compliance Date" is as defined in Section 25.
"Major Facility" is as defined in the Spill Act.
"NJDEP" is the New Jersey Department of Environmental
Protection.
"Permitted Encumbrances" is as defined in Section 5.
"Premises" is as defined in Section 1.
"Purchase Price" is as defined in Section 4.
"Rent Roll" is the rent roll for the Premises set
forth in Exhibit F in the form required under Section 9(b).
"Security Deposits" are those deposits posted under
the Leases and all other deposits, if any, in the nature of security for a
Tenant's performance under its Lease.
"Service Contracts" shall mean those contracts set
forth in Exhibit G.
"Spill Act" shall mean the Spill Compensation and
Control Act, N.J.S.A. 58:10-23.11 et seq., together with any amendments or
revisions thereof and any regulations promulgated thereunder and any amending or
successor legislation and regulations.
"Tenants" shall mean any and all occupants of the
Premises as of the date hereof.
"Tests and Studies" is as defined in Section 3.
"Title Company" is Commonwealth Land Title Insurance
Company.
"Title Policy" is as defined in Section 16.
3. INSPECTION PERIOD; PURCHASER'S RIGHT OF INSPECTION PRIOR TO CLOSING
During the Inspection Period (except as otherwise set forth
herein), Purchaser, at its sole expense, may perform Tests and Studies and may
inspect the physical (including environmental) and financial condition of the
Premises, including but not limited to the Leases, contracts, engineering and
environmental reports, development approval agreements, permits and approvals
and Service Contracts, which inspection shall be satisfactory to Purchaser in
its sole discretion. Purchaser may terminate this Agreement for any reason, by
written notice to Seller given within the Inspection Period (except as otherwise
set forth herein). In the event Purchaser terminates this Agreement, Purchaser
shall be entitled to the return of the Deposit with interest earned thereon, and
this Agreement shall be null and void and the parties hereto shall be relieved
of all further obligations hereunder except as otherwise provided herein.
During the Inspection Period (except as otherwise set forth
herein), Purchaser, its agents and contractors, shall have the right to enter
upon the Premises and perform (or cause to be performed) tests, investigations
and studies of or related to the Premises including, but not limited to, soil
borings, ground water investigation, percolator tests, surveys, architectural,
engineering, subdivision, environmental, access, financial, market analysis,
development and economic feasibility studies and other tests, investigations or
studies as Purchaser, in its sole discretion, determines is necessary or
desirable to satisfy Purchaser of the feasibility of owning and using the
Premises (collectively the "Tests and Studies"), provided that it shall give
Seller notification of its intention to conduct any such inspection and that
such inspection shall not unreasonably impede the normal day-to-day business
operation of the Premises. Such right of inspection and the exercise of such
right shall not constitute a waiver by Purchaser of the breach of any
representation or warranty of Seller which might have been disclosed by such
inspection.
Notwithstanding the foregoing, during the Environment
Inspection Period, Purchaser, its agents and contractors may continue to inspect
the environmental condition of the Premises and may have the right to enter upon
the Premises and perform (or cause to be performed) those Tests and Studies
which relate to the environmental condition of the Premises, including but not
limited to, soil borings, ground water investigation, percolator tests and
environmental studies, upon the terms and conditions set forth in this Section
3, which inspection shall be satisfactory to Purchaser in its sole discretion.
Purchaser may terminate this Agreement for any reason relating to the
environmental condition of the Premises, by written notice to the Seller given
within the Environmental Inspection Period. In the event that Purchaser has not
notified Seller of its intention to terminate this Agreement upon the expiration
of the Environmental Inspection Period, Purchaser shall be deemed to have
terminated this Agreement and the provisions of this Section 3 shall apply.
Seller agrees to permit Purchaser access to the Premises upon
prior notice to Seller for the purpose of performing the Tests and Studies. To
assist Purchaser in the performance of its Tests and Studies, Seller has
previously delivered to Purchaser true and complete copies of all test borings,
environmental reports (including, without limitation, all Environmental
Documents), surveys, title materials and engineering and architectural data and
the like relating to the Premises that are in Seller's possession or under its
control. In the event any additional materials or information come within
Seller's possession or control after the date of this Agreement, Seller shall
promptly submit true and complete copies of the same to Purchaser. Seller shall
cooperate with Purchaser in facilitating the Tests and Studies and shall obtain,
at no cost or expense to Seller, any consents that may be necessary in order for
Purchaser to perform the same. Purchaser shall repair and restore any portion of
the surface of the Premises disturbed by Purchaser, its agents or contractors
during the conduct of any of the Tests and Studies to substantially the same
condition as existed prior to such disturbance.
4. PURCHASE PRICE AND TERMS OF PAYMENT.
The purchase price for the Premises is THIRTY FIVE MILLION TWO
HUNDRED THOUSAND and xx/100 ($35,200,000) Dollars (the "Purchase Price"),
payable as follows:
(a) Delivery of the Deposit to the Escrow Agent on the
Execution Date, which shall be held pursuant to the terms of Section 23; and
(b) The Cash Payment, by a bank, certified or cashier's check
on the Closing Date or by the wiring of federal funds to Seller or the Escrow
Agent, subject to adjustment as provided herein.
5. MATTERS TO WHICH THIS SALE IS SUBJECT
The Premises are sold and are to be conveyed subject to the
following (collectively the "Permitted Encumbrances"):
(a) The liens of real estate taxes, personal property taxes,
water charges, and sewer charges provided same are not due and payable;
(b) The rights of Tenants, as tenants only;
(c) Those restrictions, covenants, agreements, easements,
matters and things affecting title to the Premises and more particularly
described in Exhibit "D" annexed hereto and by this reference made a part
hereof;
(d) Any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates as the same may be amended
subsequent to the date hereof affecting the Premises adopted by the United
States, the State of New Jersey, the Township of Woodcliff Lake and any and
every other Governmental Authority having jurisdiction thereof;
(e) The state of facts shown on that certain survey prepared
by Xxxxx Associates and dated December 12, 1994 and any other state of facts
which a recent and accurate survey of the Premises would actually show, provided
same do not impair the use of the Premises as an office building and do not
render title uninsurable at standard rates; and
(f) Those Service Contracts which are assumed by Purchaser, at
its option, at Closing.
6. ADJUSTMENTS
(a) The following items with respect to the Premises are to be
apportioned as of midnight on the date preceding the Closing:
(i) Rents, escalation charges and percentage rents
payable by Tenants as and when collected. All monies received from Tenants from
and after the Closing shall belong to Purchaser and shall be applied by
Purchaser to current rents and other charges under the Leases. After application
of such monies to current rents and charges, Purchaser agrees to remit to Seller
any excess amounts paid by a Tenant to the extent that such Tenant was in
arrears in the payment of rent prior to the Closing, not in excess of one (1)
month's rent. The provisions of this subsection 6(a) shall survive the Closing
Date.
(ii) Utility charges payable by Seller, including,
without limitation, electricity, water charges and sewer charges. If there are
meters on the Premises, Seller will cause readings of all said meters to be
performed not more than five (5) days prior to the Closing Date.
(iii) Amounts payable under the Service Contracts, to
the extent Purchaser assumes such Service Contracts at Closing.
(iv) Real estate taxes due and payable over the
calendar year. If the Closing Date shall occur before the tax rate is fixed, the
apportionment of real estate taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. If subsequent to
the Closing Date, real estate taxes (by reason of change in either assessment or
rate or for any other reason) for the Premises should be determined to be higher
or lower than those that are apportioned, a new computation shall be made, and
Seller agrees to pay Purchaser any increase shown by such recomputation and vice
versa. The provisions of this Subsection 6(a)(v) shall survive the Closing Date.
(v) Income from vending machines, if any, and all
other income, if any, other than rents.
(b) At the Closing, Seller shall deliver to Purchaser a list
of the Additional Rents billed to Tenants for the calendar year 1996 (both on a
monthly basis and in the aggregate), the basis for which the monthly amounts are
being billed and the amounts incurred by Seller on account of the components of
Additional Rent for calendar year 1996. Upon the reconciliation by Purchaser of
the Additional Rents billed to Tenants, and the amounts actually incurred for
calendar year 1996, Seller and Purchaser shall be liable for overpayments of
Additional Rents, and shall be entitled to payments from Tenants, as the case
may be, on a pro rata basis based upon each party's period of ownership during
calendar year 1996. To the extent that Purchaser determines, in its reasonable
discretion, that any overpayments due to Tenants are material in light of the
amounts actually incurred, Purchaser shall be given a credit at the Closing.
Purchaser agrees to remit to Tenants such overpayments as are due to each
Tenant.
(c) Except as otherwise provided in this Agreement, the
adjustments shall be made in accordance with the customs in respect to title
closings in the State of New Jersey.
(d) Any errors in calculations or adjustments shall be
corrected or adjusted as soon as practicable after the Closing.
(e) The provisions of this Section 6 shall survive the Closing
Date.
7. ESTOPPEL CERTIFICATES
(a) Seller represents to Purchaser that Seller has delivered
to each Tenant an estoppel certificate in the form annexed hereto as Exhibit "E"
for Tenant's execution, completed to reflect the Tenant's particular Lease
status.
(b) Seller agrees to use its best efforts to obtain from all
Tenants and deliver same to Purchaser (i) the estoppel certificates referred to
in subsection 7(a), or at a minimum and in satisfaction of the remainder of this
Section 7, (ii) estoppel certificates in the form in which each Tenant is
obligated to deliver same as provided in its Lease. All certificates referred to
in (i) and (ii) above shall be collectively referred to as "Estoppel
Certificates".
(c) As a condition to Closing, Seller shall deliver (i) an
Estoppel Certificate from each Tenant which is leasing demised space in the
Premises of 10,000 square feet or more and (ii) Estoppel Certificates from the
remaining Tenants leasing seventy-five (75%) percent of the aggregate remaining
square footage of the Premises.
(d) For an Estoppel Certificate to be deemed delivered for
purposes of this Agreement, it must certify that the Tenant's most recent rental
payment under its Lease was made not more than one (1) month prior to the month
in which the Closing occurs.
(e) Seller shall deliver its own Estoppel Certificate on
behalf of each Tenant which has failed to deliver such certificate on its own
behalf.
8. ITEMS TO BE DELIVERED BY SELLER ON THE CLOSING DATE
On the Closing Date, Seller, at its sole cost and expense,
will deliver or cause to be delivered to Purchaser the following documents in
connection with the Premises in form and substance reasonably satisfactory to
Purchaser:
(a) The Deed duly executed and acknowledged. The delivery of
the Deed shall also be deemed to transfer all of Seller's right, title and
interest in and to the Personal Property.
(b) All original Leases and all other documents pertaining
thereto, and certified copies of such Leases or other documents where Seller,
using its best efforts, is unable to deliver originals of same.
(c) All other original documents or instruments initialed by
or on behalf of the parties to this Agreement or referred to herein, and
certified copies of same where Seller, using its best efforts, is unable to
deliver originals.
(d) A letter to Tenants advising the Tenants of the sale
hereunder and directing that rent and other payments thereafter be sent to
Purchaser or its designee, as Purchaser shall so direct.
(e) Duly executed and acknowledged assignment of all Leases,
Security Deposits and Intangible Property in form reasonably acceptable to
Purchaser.
(f) A cashier's check to the order of Purchaser in the amount
of the Security Deposits and any prepaid rents, together with interest required
to be paid thereon. At the election of Purchaser, such amount may be allotted to
Purchaser as a credit against the Cash Payment.
(g) An affidavit, or such other documents as required by the
Title Company, executed by Seller certifying (i) against any work done or
supplies delivered to the Premises which might be grounds for a materialman's or
mechanic's lien under or pursuant to New Jersey law, in form sufficient to
enable the Title Company to affirmatively insure Purchaser against any such
lien, (ii) that the signatures on the Deed are sufficient to bind Seller and
convey the Premises to Purchaser, (iii) the conveyance is not prohibited or
restricted in any way under the laws of the State of New Jersey and (iv) the
Rent Roll. Seller shall also deliver a survey affidavit in the form and
substance required by the Title Company.
(h) Any and all affidavits and other instruments (including
but not limited to all organizational documents of the Seller and Seller's
general partner including limited partnership agreements, certificates of
partnership, by laws, articles of incorporation, and good standing certificates)
and documents which the Title Company shall reasonably require in order to
insure title to Purchaser, subject to no exceptions other than the Permitted
Encumbrances.
(i) The Estoppel Certificates required in Section 7.
(j) Plans, Books and Records.
(k) The certificates of occupancy for the Building and a
letter from the local municipal zoning department certifying that the Premises
complies in all respects with the current zoning ordinance.
(l) A Rent Roll, current as of the Closing Date, certified by
Seller as being true and correct in all respects.
(m) All proper instruments as shall be reasonably required for
(i) the conveyance of title to the Appurtenances, and (ii) the assignment of
and/or collection rights to any condemnation or eminent domain claims, awards or
payments, as well as the right to claim or collect damages resulting from damage
to the Premises or any part thereof by reason of the changing of grade or
closing of any street, road, highway or avenue.
(n) Duly executed and acknowledged assignment of those Service
Contracts which Purchaser has elected to assume in form reasonably acceptable to
Purchaser.
(o) A certificate signed by an officer of Seller to the effect
that Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended.
(p) All such transfer and other tax declarations and returns
and information returns, duly executed and sworn to by Seller as may be required
of Seller by law in connection with the conveyance of the Premises to Purchaser,
including but not limited to, Internal Revenue Service forms 1099-S and 1096.
(q) A statement setting forth the Purchase Price with all
adjustments and prorations shown thereon.
(r) The Seller's closing certificate with respect to the
representations and warranties described in Section 9 hereof and recertifying
that same are true and correct on the Closing Date.
(s) The Additional Rent list described in Section 6 hereof.
9. SELLER'S REPRESENTATIONS AND WARRANTIES
In order to induce Purchaser to purchase the Premises, Seller
hereby warrants, represents and agrees that the following are true as of the
date hereof and will be true on the Closing Date:
(a) Annexed hereto as Exhibit "C" is a true, complete and
correct schedule of all Leases, which Leases are valid and bona fide and are now
in full force and effect. No defaults exist thereunder and no condition exists
which, with the passage of time or the giving of notice or both, will become a
default; the Leases constitute all of the leases, tenancies or occupancies
affecting the Premises on the date hereof; all Tenants have commenced occupancy;
there are no agreements which confer upon any Tenant or any other person or
entity any rights with respect to the Premises, nor is any Tenant entitled now
or in the future to any concession, rebate, offset, allowance or free rent for
any period, nor has any such claim been asserted by any Tenant.
(b) Annexed hereto as Exhibit "F" (the "Rent Roll") is a true,
complete and correct listing of all Leases, which sets forth: (i) the total
number of Tenants at the Premises; (ii) the name of each Tenant; (iii) fixed
rent actually being collected; (iv) expiration date or status of the Leases
(including all rights or options to renew); (v) Security Deposits; (vi)
arrangements under which any Tenant is occupying space on the date hereof or
will in the future, occupy such space; (vii) any notices given by any Tenant of
an intention to vacate space in the future; and (viii) the base year(s) and base
year amounts for all items of rent or additional rent billed to each Tenant on
that basis. Seller has performed all of the obligations and observed all of the
covenants required of the landlord under the terms of the Leases.
(c) All work, alterations, improvements or installations
required to be made for or on behalf of all Tenants under the Leases have in all
respects been carried out, performed and complied with, and there is no
agreement with any Tenant for the performance of any work to be done in the
future. No work has been performed at the Premises which would require an
amendment to the certificate of occupancy, and any and all work performed at the
Premises to the date hereof and to the Closing Date has been and will be in
accordance with the rules, laws and regulations of all applicable authorities.
All bills and claims for labor performed and materials furnished to or for the
benefit of the Premises will be paid in full on the Closing Date.
(d) There are no service contracts, union contracts,
employment agreements or other agreements affecting the Premises or the
operation thereof, except the Service Contracts. True, accurate and complete
copies of the Service Contracts have been initialed by the parties. All of the
Service Contracts are and will on the Closing Date be unmodified and in full
force and effect without any default or claim of default by any of the parties
thereto. All sums presently due and payable by Seller under the Service
Contracts have been fully paid and all sums which become due and payable between
the date hereof and the Closing Date shall be fully paid on the Closing Date.
(e) There are no actions, suits, labor disputes, litigation or
proceedings currently pending or, to the knowledge of Seller, threatened against
or related to Seller or to all or any part of the Premises or the operation
thereof, nor does Seller know of any basis for any such action.
(f) There are no outstanding requirements or recommendations
by (i) the insurance company(s) which issued the insurance policies insuring the
Premises; (ii) any board of fire underwriters or other body exercising similar
functions, or (iii) the holder of any mortgage, which require or recommend any
repairs or work to be done on the Premises.
(g) No Tenants are in arrears for the payment of rent for any
month preceding the month of the date of this Agreement, nor has Seller received
notice of an intention to vacate from any Tenant, except as noted on the Rent
Roll.
(h) The Seller has received no written notice and has no
knowledge of (i) any pending or contemplated annexation or condemnation
proceedings, or private purchase in lieu thereof, affecting or which may affect
the Premises, or any part thereof, (ii) any proposed or pending proceeding to
change or redefine the zoning classification of all or any part of the Premises,
(iii) any proposed or pending special assessments affecting the Premises or any
portion thereof, (iv) any penalties or interest due with respect to real estate
taxes assessed against the Premises and (v) any proposed change(s) in any road
or grades with respect to the roads providing a means of ingress and egress to
the Premises. Seller agrees to furnish Purchaser with a copy of any such notice
received within two (2) days after receipt.
(i) Seller has provided Purchaser with all reports in Seller's
possession or under its control related to the physical condition of the
Premises and all Books and Records necessary for Purchaser to conduct its due
diligence and Tests and Studies.
(j) Seller has no knowledge of any notices, suits, or
judgments relating to any violations (including environmental) of any laws,
ordinances or regulations affecting the Premises, or any violations or
conditions that may give rise thereto and has no reason to believe that any
Governmental Authorities contemplates the issuance thereof.
(k) There are no employees working at or in connection with
the Premises. There is currently no union agreement affecting the Premises and
none will be in effect on the Closing Date.
(l) Annexed hereto as Exhibit "I" is a schedule of all leasing
commission obligations affecting the Premises. The respective obligations of
Seller and Purchaser with respect to said commissions are set forth in Section
14.
(m) Seller (A) is a duly organized and validly existing
corporation under the laws of the State of New Jersey, and is duly authorized to
transact business in the State of New Jersey; (B) has all requisite power and
authority to execute and deliver this Agreement and all other documents and
instruments to be executed and delivered by it hereunder, and to perform its
obligations hereunder and under such other documents and instruments in order to
sell the Premises in accordance with the terms and conditions hereof and all
necessary actions of the stockholders and board of directors of Seller to confer
such power and authority upon the persons executing this Agreement and all
documents which are contemplated by this Agreement on its behalf have been
taken.
(n) This Agreement, when duly executed and delivered, will be
the legal, valid and binding obligation of Seller, enforceable in accordance
with the terms of this Agreement. Seller's performance of its duties and
obligations under this Agreement and the transfer documents contemplated hereby
will not conflict with, or result in a breach of or default under, any provision
of any of Seller's organizational documents, any agreements, instruments,
decrees, judgments, injunctions, orders, writs, laws, rules or regulations, or
any determination or award of any court or arbitrator, to which Seller is a
party or by which its assets are or may be bound.
(o) No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending or
threatened against, or contemplated by Seller.
(p) No person, firm, or entity has any rights in, or rights to
acquire all or any part of the Premises.
(q) The Personal Property is now owned and will on the Closing
Date be owned by Seller free and clear of any conditional bills of sale, chattel
mortgages, security agreements or financing statements or other security
interests of any kind.
All representations and warranties provided by Seller in this Agreement shall
survive the Closing Date for a period of one (1) year and shall not be merged in
the delivery of the Deed. Seller agrees to indemnify and hold Purchaser harmless
against all claims, liabilities, losses, deficiencies and damages as well as
reasonable expenses (including attorney's fees), and interest and penalties
related thereto, asserted by any third party against or incurred by Purchaser,
by reason of or resulting from any breach, inaccuracy, incompleteness or
nonfulfillment of the covenants, representations and warranties of Seller
contained in this Agreement.
10.SELLER'S COVENANTS
10.1 Seller covenants and agrees that between the date hereof
and the Closing Date it shall perform or observe the following with respect to
the Premises:
(a) Seller, as landlord, will not enter into any new leases
with respect to the Premises, or renew or modify any Lease, without Purchaser's
prior written consent.
(b) If prior to the Closing Date Seller shall have received
from (i) any insurance company which issued a policy with respect to the
Premises, (ii) any board of fire underwriters or other body exercising similar
functions, or (iii) the holder of any mortgage, any notice requiring or
recommending any repair work to be done on the Premises, Seller will do the same
expeditiously and diligently at its own cost and expense prior to the Closing
Date.
(c) Seller will operate and maintain the Premises in the
ordinary course of business and use reasonable efforts to reasonably preserve
for Purchaser the relationships of Seller and Seller's Tenants, suppliers,
managers, employees and others having on-going relationships with the Premises.
Seller will complete any capital expenditure program currently in process or
anticipated to be completed. Seller will not defer taking any actions or
spending any of its funds, or otherwise manage the Premises differently, due to
the pending sale of the Premises.
(d) Seller shall not:
(i) Enter into any agreement requiring Seller to do
work for any Tenant after the Closing Date without first obtaining the prior
written consent of Purchaser; or
(ii) Accept the surrender of any Service Contract or
Lease, or grant any concession, rebate, allowance or free rent.
(e) Seller shall not, between the date hereof and the Closing
Date, apply any of such Security Deposits with respect to any Tenant in
occupancy on the Closing Date.
(f) Between the date hereof and the Closing Date, Seller will
not renew, extend or modify any of the Service Contracts without the prior
written consent of the Purchaser in each instance first had and obtained. At the
Closing, Seller will cancel or will have previously cancelled (effective on the
Closing Date) all Service Contracts except those which Purchaser has agreed in
writing to assume, with all cancellations at Seller's sole cost and expense.
(g) Seller shall not remove any Personal Property as set forth
in Exhibit "B" annexed hereto, fixtures or equipment located in or on the
Premises, except as may be required for repair and replacement. All replacements
shall be free and clear of liens and encumbrances and shall be of quality at
least equal to the replaced items and shall be deemed included in this sale,
without cost or expense to Purchaser.
(h) Seller shall, upon request of Purchaser at any time after
the date hereof, assist Purchaser in its preparation of audited financial
statements, statements of income and expense, and such other documentation as
Purchaser may reasonably request, covering the period of Seller's ownership of
the Premises.
(i) Between the date hereof and the Closing Date, Seller will
make all required payments under any mortgage affecting the Premises within any
applicable grace period, but without reimbursement by Purchaser therefor. Seller
shall also comply with all other terms covenants, and conditions of any mortgage
on the Premises.
(j) Seller shall not cause or permit the Premises, or any
interest therein, to be alienated, mortgaged, liened, encumbered (other than by
mechanic's or materialman's liens or claims which are removed or bonded against
prior to Closing) or otherwise be transferred.
(k) Up to and including the Closing Date, Seller agrees to
maintain and keep such hazard, liability and casualty insurance policies in full
force and effect in such amounts and covering such risks sufficiently to protect
the Premises and to protect, to a reasonable and prudent extent, the owner of
the Premises, in such amounts as are required so as not to be deemed a
co-insurer, and for actual replacement cost, against any loss, damage, claim or
liability.
(l) Seller shall permit Purchaser and its authorized
representatives to inspect the Books and Records of its operations at all
reasonable times for a period of one (1) year subsequent to the Closing Date.
All Books and Records not conveyed to Purchaser hereunder shall be maintained
for Purchaser's inspection at Seller's address as set forth above.
(m) All violations of laws, statutes, ordinances, regulations,
orders or requirements affecting the Premises, whether or not such violations
are now noted in the records of or have been issued by any Governmental
Authorities will be complied with by Seller and the Premises will be conveyed
free of any such violations.
10.2 Seller covenants and agrees that commencing at the
Closing and continuing during such time as Whiteweld, Barrister & Xxxxx, Inc.
occupies space in the Building, Purchaser shall retain the right, at Purchaser's
sole discretion, to use the name "Whiteweld Centre". Provided that Purchaser is
using said name, Seller, its affiliates or both shall not use said name in
competition with Purchaser.
11.CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
The obligations of Purchaser to purchase the Premises and to
perform the other covenants and obligations to be performed by Purchaser on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Purchaser):
(i) The representations and warranties made by Seller
herein shall be true and correct in all respects with the same force and effect
as though such representations and warranties had been made on and as of the
Closing Date.
(ii) Seller shall have performed all covenants and
obligations undertaken by Seller in Section 10 hereof in all respects and
complied with all conditions required by this Agreement to be performed or
complied with by it on or before the Closing Date.
(iii) The Title Company is unconditionally prepared
to issue to Purchaser a Title Policy meeting the requirements set forth in
Section 17 hereof for an "insurable title".
(iv) Seller shall have delivered to Purchaser all of
the documents enumerated in Section 8 hereof.
12.EXPENSES
(a) Seller shall pay the fees, costs and expenses of Seller's
counsel, and any and all sales taxes, transfer taxes, documentary stamps and
other taxes and charges imposed in connection with the delivery and recording of
the Deed, all customary prorations and appointments and one-half of all
reasonable escrow fees.
(b) Purchaser shall pay the fees, costs and expenses of
Purchaser's counsel, all title insurance premiums and charges, all recording
fees, all survey or surveyor charges, and any fees, costs or expenses incurred
by Purchaser in connection with its inspection of the Premises, including, but
not limited to, any architects', engineers', accountants', appraisers' or
contractors' fees or costs, all customary prorations and appointments and
one-half of all reasonable escrow fees.
(c) The obligations of Seller and Purchaser set forth in this
Section 12 shall survive the Closing or the earlier termination of this
Agreement.
00.XXX REDUCTION AND APPEALS
Seller is hereby authorized to continue the proceeding or
proceedings now pending for the reduction of the assessed valuation of the
Premises as set forth on Exhibit "H" and to litigate or settle the same in
Seller's discretion. Any refund payable on account of tax years or portions
thereof preceding the Closing shall be the property of Seller. Purchaser is
hereby authorized by Seller, in Purchaser's sole discretion, to file any
applicable proceeding for the 1996 fiscal year for the reduction of the assessed
valuation of the Premises. The net refund of taxes, if any, for any tax year for
which Seller or Purchaser shall be entitled to share in the refund shall be
divided between Seller and Purchaser in accordance with the apportionment of
taxes pursuant to the provisions hereof. All expenses in connection therewith,
including counsel fees, shall be borne by Seller. The provisions of this Section
shall survive the Closing Date.
14. LEASING COMMISSIONS AND TENANT IMPROVEMENT OBLIGATIONS
All leasing commissions due on account of the original term of
all Leases made before the date of this Agreement and extensions and renewals
which are presently effective (but not renewals or extensions of such leases
which are exercised after the Closing Date) shall be paid by Seller. All leasing
commissions on account of extensions or renewals of Leases made after the
Closing Date shall be paid by Purchaser. All tenant improvements obligations
shall be satisfied prior to the Closing Date. The provisions of this Section
shall survive the Closing.
15. BROKER
Purchaser and Seller represent that they have not dealt with
any brokers, finders or salesmen, in connection with this transaction, and agree
to indemnify, defend and hold each other harmless from and against any and all
loss, cost, damage, liability or expense, including reasonable attorneys' fees,
which they may sustain, incur or be exposed to by reason of any claim for fees
or commissions. The provisions of this Section shall survive the Closing Date or
other termination of this Agreement.
16. TITLE REPORT
(a) Purchaser agrees promptly after execution of this
Agreement to order a report of title or title commitment from the Title Company
and to direct the Title Company to provide Seller with a copy thereof. It shall
be a condition to Closing that Seller transfer, and that the Title Company agree
to insure, title to the Premises in the amount of the Purchase Price (at a
standard rate for such insurance) in the name of Purchaser, after delivery of
the Deed, by a standard 1992 ALTA Owners Policy, with ALTA endorsements Form
3.1, Form 8.1, Form 9 and any other endorsements as required by Purchaser
attached, free and clear of all liens, encumbrances and other matters, other
than the Permitted Encumbrances (the "Title Policy"). The Title Company shall
provide affirmative insurance that any Permitted Encumbrances have not been
violated, and that any future violation thereof will not result in a forfeiture
or reversion of title and the exception for taxes shall apply only to the
current taxes not yet due and payable. Seller shall provide such affidavits and
undertakings as the Title Company insuring title to the Premises may require and
shall cure all other defects and exceptions. The words "insurable title" and
"insurable" as used in this Agreement are hereby defined to mean title which is
insurable at standard rates (without special premium) by the Title Company
without exception other than the Permitted Encumbrances, and standard printed
policy and survey exceptions. Seller shall be obligated to expend up to the
Purchase Price to cause title to the Premises to be conveyed to Purchaser in the
manner required under this Agreement.
(b) If, at the Closing, Seller is unable to convey to
Purchaser insurable title to the Premises subject to and in accordance with the
provisions of this Agreement, Seller shall be entitled, upon written notice
delivered to Purchaser at or prior to the Closing, to reasonable adjournments of
the Closing Date one or more times, for a period or periods not to exceed, in
the aggregate, thirty (30) days, to enable Seller to convey such title or to
fulfill such obligations. If Seller does not so elect to adjourn the Closing, or
if at the adjourned date Seller is still unable to convey insurable title
subject to, and in accordance with the provisions of, this Agreement, then
Purchaser may, at its option, (a) terminate this Agreement by written notice
delivered as provided in Section 22 hereof, in which event the sole liability of
Seller shall be to direct the Title Company to refund the Deposit with interest
thereon to Purchaser, and to refund to Purchaser all charges made for (i)
examining the title, (ii) any appropriate additional municipal searches made in
accordance with this Agreement, and (iii) survey and survey inspection charges;
or (b) accept title to the Premises subject to such defect(s), in which event
such defect(s) shall become Permitted Encumbrance(s). Upon such refund being
made to Purchaser in accordance with clause (a) of the immediately preceding
sentence, then this Agreement shall automatically become void and of no further
force or effect, and neither party shall have any obligations of any nature to
the other hereunder or by reason hereof, except obligations which, pursuant to
the provisions of this Agreement, are expressly stated to survive the
termination of this Agreement. If Seller elects to adjourn the Closing as
provided above, this Agreement shall remain in effect for the period or periods
of adjournments, in accordance with its terms.
(c) Upon notice to Seller, Purchaser shall have the right to
cause one or more title insurance companies, whether or not through abstract
agencies, to insure Purchaser's title to the Premises on a co-insurance basis or
to change title companies, so long as in each instance, said company and agency,
to the extent applicable, is a duly licensed title insurance company authorized
to conduct business in the State of New Jersey.
(d) Seller shall cause the surveyor to (a) certify and warrant
directly to Purchaser and to the Title Company the square footage and acreage of
the Land (to the nearest one-one hundredth (1/100)), (b) certify that the survey
is a complete and accurate representation of the Premises, (c) certify that
there are no gores, gaps or strips, and such other facts that are customarily
required by the Title Company, (d) provide directly to the Purchaser and the
Title Company a metes and bounds description of the Land and any off-site
private easements benefiting the Premises, and (e) otherwise prepare the survey
in accordance with the customary requirements of a lending institution financing
such a transaction. Seller shall cause the surveyor to update the survey as of
the Closing Date and shall have the general survey exception removed from the
Title Policy and the survey affirmatively insured to Purchaser.
17. CASUALTY LOSS
(a) If prior to the Closing Date any part of the Premises is
damaged as the result of fire or other casualty and the estimated cost of repair
of the damage exceeds $100,000, Purchaser shall have the option to either (i)
accept title to the Premises without any abatement of the Purchase Price
whatsoever, in which event on the Closing Date all of the insurance proceeds
shall be assigned by Seller to Purchaser and any moneys theretofore received by
Seller in connection with such fire or other casualty shall be paid over to
Purchaser, or (ii) cancel this Agreement and the Deposit together with all
interest earned thereon shall be returned to Purchaser by the Escrow Agent, and
upon such return neither party shall have any further liability or obligation to
the other. In the event that the damages shall not exceed $100,000, this
Agreement shall remain in full force and effect, the insurance proceeds shall be
assigned by Seller to Purchaser and all sums received by Seller in connection
therewith shall be paid over to Purchaser. Seller shall maintain adequate
insurance on the Premises to cover the full replacement value of the Building
without reduction for depreciation, including adequate rental value insurance,
so as not to be deemed a co-insurer and for actual replacement costs, with no
more than a $100,000 deductible and Seller shall give Purchaser a credit
therefor on the Closing Date in case of fire or other casualty occurring before
the Closing Date.
(b) Seller shall not settle any fire or casualty loss claims
in connection with the Premises without obtaining Purchaser's prior written
consent.
(c) Seller hereby agrees to furnish Purchaser with written
notification of any such fire or casualty within twenty-four (24) hours of such
event.
18. CONDEMNATION
In the event of the institution of any proceedings, judicial,
administrative or otherwise, which shall relate to the proposed material taking
of any portion of the Premises by eminent domain prior to the Closing Date, or
in the event of the material taking of any portion of the Premises by eminent
domain prior to the Closing Date, Purchaser shall have the right and option to
terminate this Agreement by giving the Seller written notice to such effect at
any time after its receipt of written notification of any such occurrence. Any
damage to or destruction of the Premises as a result of a taking by eminent
domain shall be deemed "material" for purposes of this Section 18 if the
estimate of the damage, which estimate shall be performed by an insurance
adjustor and Purchaser's architect, shall exceed $100,000. Should Purchaser so
terminate this Agreement in accordance with this Section 18, the Deposit
together with interest earned thereon shall immediately be returned to Purchaser
by the Escrow Agent and upon such return, neither party shall have any further
liability or obligations to the other. In the event Purchaser shall not elect to
cancel this Agreement, Seller shall assign all proceeds of such taking to
Purchaser, and same shall be Purchaser's sole property, and Purchaser shall have
the sole right to settle any claim in connection with the Premises.
19. REMEDIES
(a) In the event Purchaser fails to perform on the Closing
Date, Purchaser's sole liability and Seller's sole recourse shall be limited to
the amount of the Deposit. Seller agrees that retention of the Deposit
constitutes fixed and liquidated damages resulting from Purchaser's default, and
Seller waives any other claim, at law or in equity, either against Purchaser or
against any person, known or unknown, disclosed or undisclosed.
(b) (i) If, after complying with the terms of this Agreement,
Seller shall be unable to convey the Premises in accordance with the terms of
this Agreement, the sole obligation and liability of Seller shall be to direct
the Escrow Agent to refund to Purchaser the Deposit, and to pay Purchaser's net
cost of examining title, which cost is not to exceed the charges fixed by the
local board of title underwriters and actually to be paid by Purchaser, and
survey charges actually to be paid by Purchaser, which charges are not to exceed
$5,000, whereupon this Agreement shall be deemed cancelled and the parties
hereto shall be released of all obligations and liabilities under this
Agreement, except those that are expressly stated to survive the cancellation or
termination of this Agreement.
(ii) In the event of any default on the part of
Seller or Seller's failure to comply with any representation, warranty or
agreement in any material respect, Purchaser shall be entitled to terminate this
Agreement upon notice to Seller, in which event the Deposit shall be returned by
Escrow Agent to Purchaser and neither party shall thereafter have any further
obligations under this Agreement; to commence an action against Seller seeking
specific performance of Seller's obligations under this Agreement; to pursue all
of its remedies at law or in equity; or to do any or all of the above.
(c) The acceptance of the Deed by Purchaser shall be deemed a
full performance and discharge of every agreement and obligation of Seller to be
performed under this Agreement, except those, if any, which are specifically
stated in this Agreement to survive the Closing.
20. ASSESSMENT
If, on the Closing Date, the Premises or any part thereof
shall be or shall have been affected by an assessment or assessments which are
or may become payable in annual installments, of which the first installment is
either then a charge or lien or has been paid, then for the purposes of this
Agreement all the unpaid installments of any such assessment, including those
which are to become due and payable after the Closing Date, shall be deemed to
be due and payable and to be liens upon the Premises and shall be paid and
discharged by Seller on the Closing Date.
21. CLOSING
The closing and delivery of the Deed (the "Closing") shall
take place at the offices of Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 on or about the Closing Date. Upon notice to Seller,
Purchaser may elect to accelerate the Closing Date to a date not less than five
(5) days after the date of Purchaser's notice.
22. NOTICE
All notices, demands, requests, or other writings in this
Agreement provided to be given or made or sent, or which may be given or made or
sent, by either party hereto to the other or by Escrow Agent, shall be in
writing and shall be delivered by depositing the same with any nationally
recognized overnight delivery service, or by telecopy or fax machine, in either
event with all transmittal fees prepaid, properly addressed, and sent to the
following addresses:
If to Purchaser: Cali Realty Acquisition Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxx and Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Xxxxxx X. Xxxxxx, Esq.
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If Seller: Whiteweld Centre, Inc.
c/o Whiteweld, Barrister & Xxxxx, Inc.
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Law Offices of Xxxxxxxxxx & Xxxxxx
Whiteweld Centre
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to Escrow Agent: Commonwealth Land Title Insurance Company
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed received and effective
on the first business day following such dispatch and (ii) telecopy or fax
machine shall be deemed given at the time and on the date of machine transmittal
provided same is sent prior to 4:00 p.m. on a business day (if sent later, then
notice shall be deemed given on the next business day) and if the sending party
receives a written send confirmation on its machine and forwards a copy thereof
by regular mail accompanied by such notice or communication. Notices may be
given by counsel for the parties described above, and such Notices shall be
deemed given by Purchaser or Seller, as the case may be, for all purposes
hereunder.
23. ESCROW AGREEMENT
Upon the signing of this Agreement by the parties, Purchaser
shall deliver the Deposit to the Escrow Agent. The parties agree that the
Deposit shall be held by the Escrow Agent in escrow and disposed of only in
accordance with the provisions of this Section 23. The parties agree that if the
Deposit is cash, such cash shall be invested in an assignable interest-bearing
certificate of deposit, money market fund, treasury xxxx or other similar
security approved by Seller and Purchaser, and all interest accruing thereon
shall be paid to Purchaser, except as otherwise provided herein.
(a) The Escrow Agent will deliver the Deposit to Seller or to
Purchaser, as the case may be, under the following conditions:
(i) To Seller on the Closing Date;
(ii) To Seller upon receipt of written demand
therefor, such demand stating that Purchaser has defaulted in the performance of
this Agreement and specifically setting forth the facts and circumstances
underlying such default. The Escrow Agent shall not honor such demand until more
than five (5) days have elapsed after the Escrow Agent has mailed a copy of such
demand to Seller or Purchaser, as the case may be, nor thereafter if the Escrow
Agent shall have received written notice of objection from Purchaser in
accordance with the provisions of clause (b) of this Section 23; or
(iii) To Purchaser upon receipt of written demand
therefor, such demand stating that this Agreement has been terminated in
accordance with the provisions hereof, or Seller has defaulted in the
performance of this Agreement, and specifically setting forth the facts and
circumstances underlying the same. The Escrow Agent shall not honor such demand
until more than five (5) days have elapsed after the Escrow Agent has mailed a
copy of such demand to Seller or Purchaser, as the case may be, nor thereafter,
if the Escrow Agent shall have received written notice of objection from the
other party in accordance with the provisions of clause (b) of this Section 23.
(b) Upon the filing of a written demand for the Deposit by
Purchaser or Seller, pursuant to subclause (ii) or (iii) of clause (a) of this
Section 24, the Escrow Agent shall promptly mail a copy thereof to the other
party. The other party shall have the right to object to the delivery of the
Deposit by filing written notice of such objection with the Escrow Agent at any
time within five (5) days after the mailing of such copy to it, but not
thereafter. Such notice shall set forth the basis for objecting to the delivery
of the Deposit. Upon receipt of such notice, the Escrow Agent shall promptly
mail a copy thereof to the party who filed the written demand.
(c) In the event the Escrow Agent shall have received the
notice of objection provided for in clause (b) above and within the time therein
prescribed, the Escrow Agent shall continue to hold the Deposit until (i) the
Escrow Agent receives written notice from Seller and Purchaser directing the
disbursement of said Deposit, in which case, the Escrow Agent shall then
disburse said Deposit in accordance with said direction, or (ii) in the event of
litigation between Seller and Purchaser, the Escrow Agent shall deliver the
Deposit to the Clerk of the Court in which said litigation is pending, or (iii)
the Escrow Agent takes such affirmative steps as the Escrow Agent may, in the
Escrow Agent's reasonable opinion, elect in order to terminate the Escrow
Agent's duties including, but not limited to, depositing the Deposit with the
Court and bringing an action for interpleader, the costs thereof to be borne by
whichever of Seller or Purchaser is the losing party.
(d) The Escrow Agent may act upon any instrument or other
writing believed by it in good faith to be genuine and to be signed and
presented by the proper person and it shall not be liable in connection with the
performance of any duties imposed upon the Escrow Agent by the provisions of
this Agreement, except for damage caused by the Escrow Agent's own negligence or
willful default. The Escrow Agent shall have no duties or responsibilities
except those set forth herein. The Escrow Agent shall not be bound by any
modification of this Agreement, unless the same is in writing and signed by
Purchaser and Seller, and, if the Escrow Agent's duties hereunder are affected,
unless the Escrow Agent shall have given prior written consent thereto. In the
event that the Escrow Agent shall be uncertain as to the Escrow Agent's duties
or rights hereunder, or shall receive instructions from Purchaser or Seller
which, in the Escrow Agent's opinion, are in conflict with any of the provisions
hereof, the Escrow Agent shall be entitled to hold and apply the Deposit
pursuant to clause (c) above and may decline to take any other action. The
Escrow Agent shall not charge a fee for its services as escrow agent.
24. ASSIGNMENT.
Purchaser shall have the right, at its sole option, to assign
its rights hereunder to an affiliate of Purchaser upon written notice to Seller.
No assignment shall relieve Purchaser of its obligations hereunder.
25. ENVIRONMENTAL REPRESENTATIONS
A. Seller represents and warrants that (a) there are no Hazardous
Materials on or at the Premises, except those in compliance with all applicable
federal, state and local laws, ordinances, rules and regulations; (b) no owner
or occupant nor any prior owner or occupant of the Premises has received any
notice or advice from any Governmental Authority or any source whatsoever with
respect to Hazardous Materials on, from or affecting the Premises; (c) no
portion of the Premises has ever been used by Seller or any former owner,
occupant or operator to generate, manufacture, refine, produce, treat, store,
handle, dispose of, transfer, process or transport Hazardous Materials, whether
or not any of those parties has received notice or advice from any Governmental
Authority or other source with respect thereto; (d) no portion of the Premises
is now, or has ever been used as a "Major Facility," and Seller has not used,
and does not intend to use, any portion of the Premises for that purpose; and
(e) Hazardous Materials have not been transported from the Premises to another
location which is not in compliance with all applicable federal, state or local
environmental laws, regulations or permit requirements. Seller covenants that
the Premises has been kept free of Hazardous Materials, and neither Seller nor
any occupant of the Premises has used, transported, stored, disposed of or in
any manner dealt with Hazardous Materials on the Premises, except in compliance
with all applicable federal, state and local laws, ordinances, rules and
regulations. Seller has complied with, and ensures compliance by all occupants
of the Premises with, all applicable federal, state and local laws, ordinances,
rules and regulations, and has kept the Premises free and clear of any liens
imposed pursuant to such laws, ordinances, rules or regulations. In the event
that Seller receives any notice or advice from any governmental agency or any
source whatsoever with respect to Hazardous Materials on, from or affecting the
Premises, Seller shall immediately notify Purchaser.
B. Seller represents and warrants that no lien has been attached to the
Premises as a result of any action by the Commissioner of the NJDEP or its
successor or its designee pursuant to the New Jersey Spill Compensation Fund as
such term is defined in the Spill Act expending monies from said fund to pay for
"cleanup and removal costs" or "natural resources" damages as a result of any
"discharge" of any "hazardous substances" on or at the Premises, as such terms
are defined in the Spill Act. Seller further represents, covenants and agrees
that Seller has not in the past, and does not now own, operate or control any
Major Facility or any hazardous or solid waste disposal facility.
C. Notwithstanding anything to the contrary contained in this
Agreement, the obligation of the Purchaser to pay the Cash Payment and otherwise
close title to the Premises on the Closing Date shall be subject to the
condition that Seller obtain a Letter of Non-Applicability pursuant to ISRA from
the Industrial Site Evaluation Element or its successor (hereinafter called the
"Element") of the NJDEP, on or before the date (hereinafter called the "ISRA
Compliance Date"), that is thirty (30) days after the Execution Date. If this
condition is not satisfied on or before the ISRA Compliance Date, Purchaser
shall have the right to extend the ISRA Compliance Date or to terminate this
Agreement, in which event this Agreement shall be rendered null and void and of
no further force or effect, Seller shall promptly reimburse Purchaser for the
costs of obtaining its title search, appraisal and any survey of the Premises
obtained by Purchaser, the Deposit shall promptly be paid to Purchaser, and
neither party shall have any further liability or obligation to the other under
or by virtue of this Agreement.
D. Seller shall provide Purchaser with all information, reports,
studies and analysis which Seller delivered to the NJDEP for the application and
issuance of the Letter of Non-Applicability.
E. For purposes of this Agreement, the term "Environmental Documents"
shall mean all environmental documentation in the possession or under the
control of Seller concerning the Premises or its environs including, without
limitation, all sampling plans, cleanup plans, preliminary assessment plans and
reports, site investigation plans and reports, remedial investigation and
reports, remedial action plans and reports or the equivalent, sampling results,
sampling result quality assurance/quality control documentation, correspondence
to or from the Element or any other municipal, county, state or federal
Governmental Authority, submissions to the Element or any other municipal,
county, state or federal Governmental Authority and directives, orders,
approvals and disapprovals issued by the Element or any other Governmental
Authority. Within five (5) days from the date of this Agreement, and
subsequently promptly upon receipt by Seller or Seller's representatives, Seller
shall deliver to Purchaser: (i) all Environmental Documents concerning or
generated by or on behalf of predecessors in title or former occupants of the
Premises; (ii) all Environmental Documents concerning or generated by or on
behalf of Seller, whether currently or hereafter existing; (iii) all
Environmental Documents concerning or generated by or on behalf of current or
future occupants of the Premises, whether currently or hereafter existing; and
(iv) a description of all known operations, past and present, undertaken at the
Premises, and existing maps, diagrams and other Environmental Documents
designating the location of past and present operations at the Premises and past
and present storage of hazardous or toxic substances, pollutants or wastes, or
fill materials, above or below ground, in, on, under or about the Premises or
its environs.
F. Seller shall notify Purchaser in advance of all meetings scheduled
between Seller or Seller's representatives and NJDEP and Purchaser, and
Purchaser's representatives shall have the right, without obligation, to attend
and participate in all such meetings.
G. Seller shall indemnify, defend and hold harmless Purchaser from and
against all claims, liabilities, losses, damages, penalties and costs, foreseen
or unforeseen including, without limitation, counsel, engineering, attorney and
other professional or expert fees, which Purchaser may incur, resulting directly
or indirectly, wholly or partly, from any misrepresentation or breach of
warranty by Seller or by reason of Seller's action or non-action with regard to
Seller's obligation under this Section 26.
H. This Section 25 shall survive Closing.
26. MISCELLANEOUS
(a) If any instrument or deposit is necessary in order to
obviate a defect in or objection or exception to title, the following shall
apply: (i) any such instrument shall be in such form and shall contain such
terms and conditions as may be required by the Title Company to omit any defect,
objection or exception to title, (ii) any such deposit shall be made with the
Title Company, and (iii) Seller agrees to execute, acknowledge and deliver any
such instrument and to make any such deposit.
(b) This Agreement constitutes the entire agreement between
the parties and incorporates and supersedes all prior negotiations and
discussions between the parties.
(c) This Agreement cannot be amended, waived or terminated
orally, but only by an agreement in writing signed by the party to be charged.
(d) This Agreement shall be interpreted and governed by the
laws of the State of New Jersey and shall be binding upon the parties hereto and
their respective successors and assigns.
(e) Whenever in this Agreement there is a provision for the
return of the Deposit, the provision shall be deemed to include all interest
earned thereon and paid to Purchaser.
(f) The caption headings in this Agreement are for convenience
only and are not intended to be part of this Agreement and shall not be
construed to modify, explain or alter any of the terms, covenants or conditions
herein contained.
(g) If any term, covenant or condition of this Agreement is
held to be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such provision.
(h) Each party shall, from time to time, execute, acknowledge
and deliver such further instruments, and perform such additional acts, as the
other party may reasonably request in order to effectuate the intent of this
Agreement. Nothing contained in this Agreement shall be deemed to create any
rights or obligations of partnership, joint venture or similar association
between Seller and Purchaser. This Agreement shall be given a fair and
reasonable construction in accordance with the intentions of the parties hereto,
and without regard to or aid of canons requiring construction against Seller,
Purchaser or the party whose counsel drafted this Agreement.
(i) This Agreement shall not be effective or binding until
such time as it has been executed and delivered by all parties hereto. This
Agreement may be executed by the parties hereto in counterparts, all of which
together shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PURCHASER
CALI REALTY ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SELLER
WHITEWELD CENTRE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: President
The undersigned joins in the execution of the Agreement solely for the
purpose of acknowledging the receipt of the Deposit and its agreement to hold
the Deposit in escrow in accordance with the terms hereof.
ESCROW AGENT
By:/s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
