EXHIBIT 10.z
AGREEMENT OF SALE
AGREEMENT OF SALE (this "Agreement") made this 5th day of April, 2001 by
and among FLIP/BRE II, INC., a New Jersey corporation ("FLIP"); MBP/BRE, L.L.C.,
a New Jersey limited liability company ("MBP"); OIP/BRE, L.L.C., a New Jersey
limited liability company ("OIP"); and NJA/BRE, L.L.C., a New Jersey limited
liability company ("NJA/BRE"; FLIP, MBP, OIP and NJA/BRE are sometimes together
and individually referred to as "Seller"), and XX XXXXXX ASSOCIATES, L.L.C., a
New Jersey limited liability company ("Buyer").
WITNESS:
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. SALE AND PURCHASE. Seller agrees to sell and convey to Buyer, and Buyer
agrees to purchase from Seller, upon the terms and conditions set forth in this
Agreement:
(a) REAL PROPERTY. Those certain lots or parcels of ground situate in
the State of New Jersey and more fully described by metes and bounds on Exhibit
"A" to this Agreement, together with the buildings and improvements situate
thereon (the "Premises"), together with all the rights and easements appurtenant
to the Premises, including any right, title and interest of Seller (if any) in
and to adjacent streets and rights-of-way; and
(b) PERSONAL PROPERTY. The fixtures, furnishings, equipment and other
items of personal property owned by Seller and located on, and used in
connection with the operation of, the Premises which are listed on Exhibit "B"
to this Agreement (collectively, the "Tangible Personal Property"); and
(c) INTANGIBLE PERSONAL PROPERTY. The interests of Seller in the
intangible personal property listed below:
(i) all existing surveys, blueprints, drawings, plans and
specifications (including, without limitation, structural, HVAC, mechanical and
plumbing plans and specifications) and other similar documentation for or with
respect to the Premises or any part thereof (all to the extent assignable or
transferable), to the extent in the possession of Seller;
(ii) all warranties and guaranties issued in connection with the
Premises (all to the extent assignable or transferable);
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(iii) all consents, authorizations, variances or waivers, licenses,
permits and approvals from any governmental or quasi-governmental agency,
department, board, commission, bureau or other instrumentality (all to the
extent assignable or transferable) with respect to the Premises; and
(iv) all of Seller's rights, title and interests in and to the
Existing Leases, as hereinafter defined.
(all of the foregoing, collectively, the "Intangible Personal Property").
(d) PERSONAL PROPERTY. The Tangible Personal Property and the Intangible
Personal Property are sometimes collectively referred to in this Agreement as
the "Personal Property."
2. PURCHASE PRICE. The purchase price to be paid by Buyer to Seller for the
Premises and the Personal Property is the sum of Seventy-Five Million Fifty
Thousand Dollars ($75,050,000.00) (the "Purchase Price"). The Purchase Price
shall be paid as follows:
(a) DEPOSIT.
(i) The sum of One Million Nine Hundred Thousand Dollars
($1,900,000.00) (the "Deposit") upon the execution of this Agreement.
(ii) Buyer shall deliver the Deposit by the delivery of Buyer's
certified check, by bank check, subject to collection, or by wire transfer of
funds payable to the order of Chicago Title Insurance Company (the "Escrowee").
The Escrowee shall immediately present Buyer's checks for collection, if
applicable, and then, pending consummation of this transaction, hold the Deposit
in escrow in accordance with the provisions of Paragraph 21.
(b) ASSUMPTION OF LOAN. Buyer's assumption of and agreement to pay the
outstanding balance of the loan as of the Closing Date, as hereinafter defined,
(the "Existing Loan") evidenced by those certain Promissory Notes (the "Existing
Notes") dated September 22, 1997 in the original aggregate principal amount of
$45,000,000.00 from Seller, as maker, to Nomura Asset Capital Corporation, as
payee ("Lender") as more particularly set forth on Schedule 2(b)(i) attached
hereto. As of February 28, 2001, the outstanding principal balance of the
Existing Loan is estimated to be $42,865,000.00. The Existing Notes are secured
by, among other instruments, those certain Mortgages, Assignments of Rents,
Security Agreement and Fixture Filing dated September 22, 1997 encumbering the
Premises between Seller and Lender (the "Existing Mortgages"). The Existing
Mortgages are more particularly set forth on Schedule 2(b)(ii) attached hereto.
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(c) CLOSING PAYMENT. The balance of the Purchase Price (the "Closing
Payment") at closing (the "Closing") by wire transfer of immediate United States
federal funds to Seller's account at a bank designated by Seller.
3. CLOSING. The Closing shall take place on July 15, 2001 ("Closing Date")
at the offices of Seller's counsel, Xxxxxxx Xxxxx LLP, 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000. Seller shall have the right to extend the Closing Date for
any reason for a period of fifteen (15) days upon written notice to the other
party, and thereafter for an additional period of thirty (30) days upon the
consent of GMAC or Buyer's other lender/equity participant. Buyer shall have the
right to extend the Closing Date for a period of up to forty five (45) days upon
written notice to Seller in the event that the Lender does not approve Buyer's
assumption of the Existing Loan and/or Buyer's lender/equity participant is not
in a position to close on or before the Closing Date. Buyer will have an
additional right to extend the Closing Date for an additional sixty (60) days in
the event that the Lender does not approve Buyer's assumption of the Existing
Loan because of the financing structure proposed by GMAC or Buyer's other
lender/equity participant. This sixty (60) day extension is also exercisable if
GMAC is not the lender/equity participant and notice as such has been given by
Buyer to Seller within forty five (45) days of the date of this Agreement. In
the event that the Lender does not approve Buyer's assumption of the Existing
Loan or agree to release Seller pursuant to Paragraph 10(b)(iii) below, then
either party may terminate this Agreement and the Deposit shall be paid to
Seller. Notwithstanding the foregoing, in the event that Lender requires, as a
condition of its approval of the assumption of the Loan, that Buyer assume or
replace the existing XxXxxxx guaranty to Lender, then Buyer can terminate the
Agreement and in such case the Deposit shall be paid to Buyer. Upon the
termination of this Agreement pursuant to the provisions of this Paragraph 3,
this Agreement shall be null and void, neither party shall have any further
rights or obligations under this Agreement (except for the confidentiality and
indemnity obligations of Buyer to Seller as set forth in Paragraph 16 of this
Agreement which shall survive the cancellation of this Agreement), and all
executed counterparts of this Agreement shall be returned to Seller.
4. CONDITION OF TITLE.
(a) TITLE TO PREMISES. Fee simple title to that portion of the Premises
owned by each party comprising Seller shall be conveyed to Buyer at the
completion of Closing by Seller's bargain and sale deeds with covenants against
grantor's acts in the form of Exhibit F-1 to this Agreement (the "Deeds"),
excluding from Seller's warranty the Permitted Title Exceptions (defined below).
Title to the Personal Property shall be conveyed to Buyer at the completion of
Closing by bills of sale in the form of Exhibit F-2 to this Agreement (the
"Bills of Sale"). Title to the Premises shall be such as will be insured as good
and marketable (at Buyer's sole cost and expense) by Escrowee pursuant to the
standard stipulations and conditions of the most current form of ALTA Policy of
Owner's Title Insurance in use in the state in which the Premises is located,
free and clear of all liens and encumbrances except for the Permitted Title
Exceptions. The term "Permitted Title Exceptions" shall mean the Existing
Leases, as defined below, and the additional title exceptions set forth on
Exhibit "C" to this Agreement. Title to the Personal Property shall also be
subject to the
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Permitted Title Exceptions. Since Buyer has obtained current title
insurance commitments for the Premises ("Buyer's Commitments"), Buyer agrees
that all exceptions to title set forth in the Buyer's Commitments and all other
easements, restrictions, agreements and matters of record as of the effective
date of Buyer's Commitments are deemed to be and constitute Permitted Title
Exceptions (in addition to those set forth on Exhibit C to the Agreement. Buyer
shall provide Seller with copies of Buyer's Commitments on or before the date
hereof.
(b) FAILURE OF TITLE. If on the Closing Date title to the Premises is
not insurable because of a material defect in title arising during the period
from the date hereof until Closing (the "Title Run-Down") and which Seller
cannot cure prior to the Closing Date, Buyer may elect, as its sole right and
remedy, either (i) to take such title to the Premises as Seller can convey, with
abatement of the Purchase Price only to the extent of monetary liens of a
definite, fixed and ascertainable amount not in excess of the Purchase Price or
(ii) to terminate this Agreement and receive on written demand to Seller and
Escrowee the return of the Deposit. Upon the return of the Deposit, this
Agreement shall be null and void, neither party shall have any further rights or
obligations under this Agreement (except for the confidentiality and indemnity
obligations of Buyer to Seller as set forth in Paragraph 16 of this Agreement
which shall survive the cancellation of this Agreement), and all executed
counterparts of this Agreement shall be returned to Seller.
(c) TENANT PURCHASE RIGHTS. Except as otherwise set forth on Schedule
4(c), no tenant of the Premises has purchase rights or rights of first refusal
to purchase the Premises.
5. POSSESSION. Possession of the Premises and the Personal Property is to
be given by Seller to Buyer at the completion of Closing by delivery of the
Deeds and the Bills of Sale.
6. LEASES; AGREEMENTS.
(a) EXISTING LEASES. Seller shall not amend any Existing Lease, as
defined below, in any material respect or execute any new or renewal lease,
license, or other agreement affecting the ownership or operation of all or any
portion of the Premises nor may Seller execute any new lease or renewal lease at
a net effective rent less than that set forth in the Confidential Offering
Memorandum prepared by CB Xxxxxxx Xxxxx, Inc., without the prior consent of
Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
For purposes of this paragraph, net effective rent will include a deduction for
tenant improvements, leasing commissions, and rollover downtime prorated over
the new lease term. All existing leases listed on Exhibit "D" to this Agreement,
together with lease amendments and new leases entered in accordance with this
Paragraph, are collectively called the "Existing Leases". Without limiting the
effect of any other condition to Closing contained in this Agreement, the
termination of any of the Existing Leases prior to Closing by reason of the
expiration of its term or by reason of the tenant's default or exercise of a
termination right shall not excuse Buyer from its obligation to complete Closing
and to pay the Purchase Price.
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(b) EXISTING AGREEMENTS. Seller shall also assign to Buyer at the
completion of Closing, to the extent assignable, Seller's interests under the
existing agreements listed on Exhibit "E" to this Agreement (collectively, the
"Existing Agreements"), which to the best of Seller's knowledge, constitutes an
exclusive list of the Existing Agreements. Seller shall, prior to Closing, have
the right to enter into new service agreements, provided any such agreement
shall be terminable without penalty on not more than thirty (30) days' notice.
Seller shall promptly provide Buyer with a copy of any new service agreement.
All such new service agreements shall also constitute Existing Agreements. The
termination of any of the Existing Agreements prior to Closing by reason of the
expiration of its term or by reason of a default thereunder shall not excuse
Buyer from its obligation to complete Closing and to pay the full Purchase
Price. Seller shall cause its existing management agreement with Keystone Realty
Services, Inc. ("Manager") to be terminated as of Closing.
(c) ASSIGNMENT AND ASSUMPTION. At Closing, Seller and Buyer shall
execute and acknowledge an assignment and assumption agreement in the form of
Exhibit "G" to this Agreement (the "Assignment and Assumption Agreement")
pertaining to the Existing Leases and the Existing Agreements.
7. APPORTIONMENTS.
(a) ITEMS TO BE APPORTIONED. Real estate taxes and annual municipal or
special district assessments (on the basis of the actual fiscal years for which
such taxes are assessed), lienable water and sewer rentals, sums paid to or paid
or payable by Seller under the Existing Agreements, prepaid fees for licenses
and permits to remain in effect for Buyer's benefit after closing, rent and
other sums paid to Seller under the Existing Leases and such other items as are
customarily adjusted between sellers and buyers of real estate, shall be
apportioned at Closing pro rata between Buyer and Seller on a per diem basis as
of the Closing Date, with Buyer to receive the economic benefits and burdens of
ownership for the Closing Date.
(b) TENANT PASS-THROUGHS. If the apportionment of any "escalation"
payments relating to operating expenses, real estate taxes and assessments or
other additional rent payments under any of the Existing Leases on account of
periods prior to Closing and on account of sums which are attributable to
expenses incurred by the lessor for periods of time prior to Closing, cannot be
precisely determined at the time of Closing, Seller and Buyer shall reasonably
estimate the apportionment of such sums, and such estimated sums shall be
apportioned pro-rata between Buyer and Seller on a per diem basis as of the
Closing Date. A post-Closing adjustment shall be made, if necessary, between
Buyer and Seller for such apportioned items within thirty (30) days after such
sums can be precisely determined.
(c) TENANT SECURITY DEPOSITS. At Closing, Seller shall credit against
the Purchase Price the amount of all cash security deposits payable to tenants
then held by or for Seller under the Existing Leases, together with an amount
equal to interest thereon as may be required by law or under the terms of an
Existing Lease, as more particularly set forth on Schedule 7(c) attached hereto,
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to be paid to any such tenants. At Closing, Seller shall instruct each tenant,
as more particularly set forth in Schedule 7(c), whose security deposit consists
of a letter of credit to cause such letter of credit to be amended to name Buyer
as the beneficiary thereunder.
(d) ARREARAGES.
(i) RENT ARREARAGES. No prorations shall be made at Closing with
respect to delinquent rents. Any payments received by Buyer after the Closing
Date from a tenant under any of the Existing Leases in arrears on account of
rentals or other sums which are applicable to periods prior to Closing, shall be
apportioned by Buyer upon receipt and the portion thereof attributable to
periods prior to Closing shall immediately be paid by Buyer to Seller; provided
all payments by such tenants after Closing will be deemed as being applicable,
first, as against current month's rental due, then, as against such arrearages
which existed as of Closing. Seller shall be deemed to have retained all claims
existing against tenants for arrearages under any of the Existing Leases as of
Closing.
(ii) ACCOUNTING. Until the earlier to occur of (A) such time as
Seller shall have received in full all sums which are potentially payable to it
on account of any of the Existing Leases as provided in subparagraph 7(d)(i) or
(B) twelve (12) months after Closing, Buyer shall provide to Seller after
Closing a monthly statement of rent received by Buyer under any of the Existing
Leases for those tenants pursuant to which Seller might be entitled to payments
as provided in said subparagraph.
(e) LEASING COMMISSIONS; TENANT IMPROVEMENTS. Seller shall pay or
provide Buyer with a credit against the Purchase Price and retain responsibility
for all leasing commissions and tenant improvement allowances set forth on
Schedule 7(e) due on or before the Closing Date in connection with or arising
out of the negotiation, execution and delivery of the Existing Leases. At
Closing, Buyer shall reimburse Seller for all leasing commissions and tenant
costs actually paid or payable by Seller (A) except as set forth below, for
lease transactions entered after the date of this Agreement in accordance with
Paragraph 6(a) of this Agreement and (B) as a result of any renewal or expansion
of Existing Leases which occurs between the date of this Agreement and the
Closing Date which is effectuated pursuant to existing renewal or expansion
options under Existing Leases. Seller shall provide Buyer with invoices and
evidence of Seller's payment of such costs for which Buyer is to reimburse
Seller. Buyer shall timely pay after the Closing Date all leasing commissions
and tenant costs which become due and payable after the Closing Date in
connection with or arising out of the negotiation, execution and delivery of the
Existing Leases . Tenant costs include tenant improvement costs and if the
lease(s) so provides moving costs, design costs incurred by the tenant, lease
buyout costs and tenant inducement costs. Buyer and Seller agree that the
portion of any leasing commission due and payable pursuant to a written
commission agreement by and between Seller and XxXxxxx Corporate Real Estate,
Inc. ("XxXxxxx") on any lease renewal for any of the Existing Leases in excess
of the amount of five percent (5%) (the "Override") shall be paid by Seller, as
set forth in Exhibit D. The parties agree that the amount of any such leasing
commissions up to and including the amount of five percent (5%) shall be paid by
Buyer. (At Closing, Seller shall
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deliver a letter from XxXxxxx confirming the foregoing regarding the
Override.) Seller represents to the best of its knowledge that: (A) Schedule
7(e) is a complete listing of any leasing agreements with respect to any
extensions, expansions, modifications or renewals of the Existing Leases; and
(B) to the extent that Seller derives the benefit of new rental payments between
the date of this Agreement and the Closing Date for new leases entered into
during such period, any leasing commission or tenant costs due shall be prorated
between Seller and Buyer on the basis of the period of time the respective party
derived a benefit from the new lease. In addition, Buyer will reimburse Seller
for the prorated leasing commissions and tenant costs on Schedule 7(e)(e) for
leases executed and approved by Buyer prior to the Closing Date. The provisions
of this Paragraph 7(e) shall survive Closing and delivery of title to the
Premises.
(f) NO TAX XXXX. If, on the Closing Date, bills for real estate taxes
imposed upon the Premises for the tax fiscal years in which closing occurs have
been issued but shall not have been paid, such taxes shall be paid at the time
of Closing. If such bills shall not have been issued on the Closing Date, the
amount of the taxes shall be reasonably estimated by Seller and Buyer based upon
the then current assessment and anticipated tax rate, and the portions of such
taxes to be borne by Buyer and Seller shall be deposited in escrow with the
Escrowee, to be disbursed by Escrowee promptly after the real estate tax bills
have been issued for the payment of such tax bills. If the actual taxes are
greater than the amounts estimated, Seller and Buyer shall each pay to the
Escrowee, on demand, its pro rata share of such excess.
(g) UTILITY READINGS. Seller shall use reasonable efforts to obtain
readings of the water and electric meters on the Premises to a date no sooner
than two (2) business days prior to the Closing Date. At or prior to Closing,
Seller shall pay all charges based upon such meter readings. However, if after
reasonable efforts Seller is unable to obtain readings of any meters prior to
Closing, Closing shall be completed without such readings and upon the obtaining
thereof after closing, Seller shall pay the charges incurred prior to Closing as
reasonably determined by the Seller and Buyer based upon such readings.
(h) TRANSFER TAXES. Seller shall pay all realty transfer taxes imposed
upon the delivery and/or recording of the Deed(s) and calculated upon the
Purchase Price.
(i) ASSUMPTION FEES AND COSTS. Buyer shall pay at Closing fifty (50%)
percent of any fee, whether denominated an assumption fee, administrative fee,
facility fee, commitment fee, or otherwise of Lender. Buyer shall also pay at
Closing all costs and expenses of Lender, including, without limitation,
Lender's attorneys' and auditor's fees, costs of third party consultants,
appraisals, environmental and engineering reports, servicer and trustee costs
and expenses, and title insurance costs and premiums which are payable in
connection with the assignment and assumption of the Existing Loan. If required
by Lender, Buyer shall form, at its own cost and expense, one or more special
purpose bankruptcy remote entities to take title to the Premises and to assume
the Existing Loan.
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(j) LENDER ESCROWS. Attached hereto as Schedule 7(j) is a list of monies
escrowed with Lender for which Seller shall be entitled to a credit on the
Closing Date.
8. SELLER'S REPRESENTATIONS AND WARRANTIES.
(a) Seller represents and warrants to Buyer as follows:
(i) ORGANIZATION.
(A) FLIP is a corporation, duly organized and validly existing
under the laws of the State of New Jersey and has all requisite corporate power
and authority to carry on its business as now conducted.
(B) MBP, OIP and NJA/BRE are limited liability companies, duly
organized and validly existing under the laws of the State of New Jersey and
have all requisite limited liability company power and authority to carry on
their businesses as now conducted.
(ii) AUTHORIZATION. Seller has the requisite partnership, corporate
and/or limited liability power and authority to enter into and perform this
Agreement, and Seller has duly authorized the execution of this Agreement.
(iii) NO CONDEMNATION. To Seller's knowledge, there are no existing
or pending condemnation proceedings or deeds in lieu of condemnation affecting
the Premises, nor, to Seller's knowledge, have any such condemnation proceedings
been threatened.
(iv) NO NOTICES. Except as set forth in Schedule 8(a)(iv) to this
Agreement, Seller has not received any written notice from any public authority
asserting the existence of any presently uncorrected violation of any ordinance,
public regulation or statute with respect to the Premises ("Notice of
Violation"). In the event that Seller receives any such Notice of Violation
prior to the Closing Date, Seller's obligation to remedy such Notice of
Violation should not exceed $100,000.00 singularly or in the aggregate. In the
event the cost of remediation shall exceed $100,000.00, and the Seller elects
not to cure the violations or pay such additional amount to remediate the
violations, Buyer shall have the option of either (1) taking a credit of
$100,000.00 from the Seller and proceeding to closing, whereupon Buyer shall be
solely responsible for remedying the violations, or (2) Buyer shall have the
right to terminate this Agreement, whereupon the Deposit plus interest shall be
returned to the Buyer and this Agreement shall be null and void. Buyer
represents and warrants that Buyer shall not request or encourage an
inspection(s) of the Premises by any federal, state or municipal official(s)
having jurisdiction over the Premises in connection with Buyer's due diligence
with respect to a Notice of Violation(s).
(v) NO PROCEEDINGS. Except as set forth on Schedule 8(a)(v) to this
Agreement, Seller has received no written notice of any pending actions, suits
or proceedings against
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Seller or the Premises which are not covered by Seller's insurance nor, to
Seller's knowledge, is there any action, suit or proceeding against Seller or
the Premises threatened which would materially and adversely affect the Premises
or Seller's ability to perform its obligations under this Agreement.
(vi) EXISTING LEASES. The list of Existing Leases attached to this
Agreement as Exhibit "D" is true, correct and complete in all material respects.
To Seller's knowledge, all of the Existing Leases listed on Exhibit "D" are,
except as otherwise noted thereon, in full force and effect and Seller has
received no notice of default from any of the tenants thereunder which remains
uncured. To Seller's knowledge, except as otherwise noted on Exhibit "D", Seller
and none of the tenants are in default under the respective Existing Lease
(except for rental obligations for the current month) in any material respect.
Except as set forth on Exhibit "D", Seller has received no prepayments of rent
under any Existing Lease. Except as set forth on Exhibit "D", all tenant
allowances payable to the date of this Agreement have been paid in full, and all
tenant improvement obligations of the Landlord under the Existing Leases to be
performed to the date of this Agreement have been materially completed. The
copies of the Existing Leases previously delivered by Seller to Buyer or made
available by Seller to Buyer for review are true and complete copies in all
material respects of such Existing Leases and the same have not been further
amended, modified or supplemented.
(vii) EXISTING AGREEMENTS. Exhibit "E" is a true, correct and
complete list of all Existing Agreements to which Seller is a party or by which
Seller is bound for the provision of services to or management of the Premises.
Seller has delivered to Buyer true and correct copies of all Existing
Agreements. There are no service agreements which Seller has executed affecting
the Premises other than those listed on Exhibit "E".
(viii) EXISTING LOAN. Attached as Exhibit "L" to this Agreement is a
schedule of documents evidencing and securing the Existing Loan, together with
copies of the loan documents listed on such schedule (the "Loan Documents"). The
copies of the Loan Documents set forth on Exhibit "L" are true, correct and
complete in all material respects. The Loan Documents have not been modified or
amended, except as may be set forth on Exhibit "L", and remain in full force and
effect. Seller has received no written notice from Lender asserting a default
under the Exiting Loan.
(ix) TAX APPEALS. Buyer shall have the right to file real estate tax
appeals for the Premises, between the date of this Agreement and the Closing
Date upon Seller's prior consent which shall not be unreasonably withheld or
delayed. If any tax appeals are currently pending with respect to the Premises,
Seller shall cause Buyer's attorney to be substituted as counsel and any awards
shall be adjusted according to the respective party's period of ownership after
any expenses have been paid.
(x) SECURITY DEPOSITS. Seller agrees not to apply any tenant security
deposits to rent or other amounts due for any tenants in possession as of the
Closing Date.
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(b) All references in this Paragraph 8 or elsewhere in this Agreement to
"Seller's knowledge" or "Seller's actual knowledge" shall refer solely to the
actual knowledge (without independent investigation) of Xxxxxxx X. Butte, an
officer of Keystone Property Trust, and shall not be construed to refer to the
knowledge of any other employee, officer, director, shareholder or agent of
Seller or any affiliate of Seller, and shall not include imputed or constructive
knowledge.
9. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants to
Seller as follows:
(a) ORGANIZATION. Buyer is a limited liability company duly organized
and validly existing under the laws of the State of New Jersey and has all
requisite power and authority to carry on its business as now conducted.
(b) AUTHORIZATION. Buyer has the requisite power and authority to enter
into and perform this Agreement and Buyer has duly authorized the execution of
this Agreement.
(c) Buyer shall diligently pursue all financing in connection with the
acquisition of the Premises and shall promptly file or cause to be filed all
necessary application(s) and third party reports.
(d) Within seven (7) days of Seller's request, Buyer shall submit to
Seller an allocation of the Purchase Price for each of the properties comprising
the Premises.
10. CONDITIONS TO CLOSING.
(a) BUYER'S CONDITIONS. Buyer shall not be obligated to close under this
Agreement unless each of the following conditions shall be satisfied on the
Closing Date:
(i) TITLE POLICY. The Title Run-Down for the Premises undertaken by
Escrowee shall not contain any material defects in title occurring after the
date hereof until Closing not otherwise curable by Seller prior to the Closing
Date.
(ii) ACCURACY OF REPRESENTATIONS. The representations and warranties
made by Seller in this Agreement shall be true and correct as of the Closing
Date in all material respects.
(iii) TENANT ESTOPPEL CERTIFICATES. Seller shall have obtained and
delivered to Buyer by Closing Tenant Estoppel Certificates (as defined below)
for (A) tenants constituting 75% of the total aggregate net rentable square
footage for all of the Premises; and (B) tenants listed on Schedule 10(a)(iii)
to this Agreement. (Those tenants set forth in Schedule 10(a)(iii) are
hereinafter referred to as the "Major Tenants"). Seller may satisfy these
conditions by delivering to Buyer at
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Closing Tenant Estoppel Certificates executed by Seller ("Seller
Estoppels") with respect to the Major Tenants for which no Tenant Estoppel
Certificate is obtained. Each Seller Estoppel shall cease to be effective, and
Seller's obligations thereunder will terminate, upon the earlier of receipt from
the applicable tenant of a Tenant Estoppel Certificate consistent with the
requirements of this Paragraph or twelve (12) months after Closing. The term
"Tenant Estoppel Certificate" shall refer to a written statement in
substantially the form of the Tenant Estoppel Certificate set forth on Exhibit
"H-1" to this Agreement or in the form which any tenant is required to give
under its lease. Buyer agrees not to object to any non-material qualifications
or modifications, including any "knowledge" qualification as to defaults which a
tenant may make to the form of Tenant Estoppel Certificate. If any tenant has a
valid claim which would entitle it to set-off the amount of the claim against
rent due under such tenant's lease and the amount of such claim is
ascertainable, Seller shall have the right, at its sole option, to give Buyer a
credit against the Purchase Price in the amount of the claim and, in such event,
Buyer shall, subject to the provisions of this Agreement, complete Closing
subject to such claim and shall automatically be deemed to release and indemnify
Seller from and against all liability in connection therewith. With respect to
any Tenants from whom the Seller does not obtain Tenant Estoppel Certificates,
Seller shall deliver a landlord estoppel certificate representing that there are
no rent concessions. The Seller's landlord estoppel certificate shall survive
through the end of the respective lease term(s).
(iv) At Closing, Seller shall deliver to Buyer either (1) an executed
lease extending the term of the lease with the tenant, Aramis, Inc., in the
building located at 0 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx, substantially in
accordance with the terms and conditions set forth in Schedule 10(a)(iv)
attached hereto or (2) alternatively, Seller shall deliver to Buyer a waiver of
tenant's right of first refusal as provided in paragraph 29 of its lease with
Seller. If Seller cannot deliver said executed lease or waiver at Closing,
either party shall have the right to terminate the Agreement, provided however,
prior to the Seller having the right to terminate the Agreement, Buyer shall
have the opportunity, but not the obligation, for a period of thirty (30) days
to negotiate a lease extension with Aramis, Inc. In the event of a termination
hereunder, the Deposit shall be returned to the Buyer and the parties shall have
no further obligations under the Agreement. Seller and Buyer agree that the
Third Amendment to Lease Extension Agreement dated as of May 1, 2000 between
NJA/BRE and Aramis, Inc. satisfies the condition specified in Paragraph
10(a)(iv) of the Agreement.
(v) At Closing, Seller shall deliver to Buyer a seven (7) year lease
renewal with the Reckitt Benckiser, Inc. (formerly Reckitt & Xxxxxxx, Inc.)
("Reckitt Benckiser") for the building located at 0000 Xxxxxx Xxxx, Xxxxx, Xxx
Xxxxxx, substantially in accordance with the terms and conditions set forth in
Schedule 10(a)(v) attached hereto. If Seller is unable to deliver an executed
lease at Closing for said terms and conditions, or alternatively, upon terms and
conditions mutually acceptable to Seller and Buyer, Seller shall provide Buyer
with a credit of $1,000,000.00 against the Purchase Price. Buyer shall be
responsible for all leasing and tenant improvement costs associated with any
Reckitt Benckiser lease renewal amendment in accordance with the terms of the
amended Reckitt Benckiser lease and Schedule 7(e) of the Agreement. Buyer
further agrees to reimburse Seller at Closing for all leasing commissions and
tenant costs incurred
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by Seller or due and payable in connection with the lease renewal by and
between Seller and Reckitt Benckiser and in accordance with Paragraph 7(e).
(b) SELLER'S CONDITIONS. Seller shall not be obligated to complete
Closing under this Agreement unless each of the following conditions shall be
satisfied on the Closing Date:
(i) BUYER'S PERFORMANCE. Buyer shall have paid the Purchase Price and
shall have complied with and performed in all material respects all of its other
obligations under this Agreement.
(ii) ISRA. Seller shall have obtained Evidence of ISRA Compliance (as
such term is defined in Paragraph 22 of this Agreement).
(iii) LOAN ASSUMPTION. Upon the assumption of the Existing Loan,
Lender shall have agreed to release Seller, under the Existing Loan, from all
liability under the Existing Loan pursuant to a release agreement in a form
reasonably acceptable to Seller and its counsel.
11. SELLER'S DELIVERIES AT CLOSING.
(a) SELLER'S DELIVERIES. On the Closing Date, each party comprising
Seller shall deliver or cause to be delivered to Escrowee for delivery to Buyer
upon the completion of Closing the following:
(i) DEEDS. The Deeds and any necessary transfer tax documents.
(ii) BILLS OF SALE. The Bills of Sale.
(iii) ASSIGNMENT AND ASSUMPTION AGREEMENTS. The Assignment and
Assumption Agreements.
(iv) AUTHORITY DOCUMENTS. A resolution evidencing Seller's
authorization of the transaction contemplated by this Agreement and an
incumbency certificate to evidence the capacity of the signatories for Seller.
(v) FIRPTA CERTIFICATIONS AND TITLE AFFIDAVITS. The Certification in
the form attached to this Agreement as Exhibit "I" with respect to the Foreign
Investment in Real Property Tax Act (Internal Revenue Code Section 1445, as
amended, and the regulations issued thereunder) and a title affidavit in favor
of Escrowee in the form of Exhibit "J" to this Agreement (which affidavit in no
event will expand Seller's warranty contained in the Deed).
(vi) KEYS. All keys, codes and other security devices for the
Premises.
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(vii) BOOKS AND RECORDS. Copies (to the extent in Seller's
possession) of all books and records for the orderly transition of operation of
the Premises.
(viii) ORIGINAL DOCUMENTS. The originals (to the extent in Seller's
possession) of all Existing Leases, Existing Agreements, tenant files and
Intangible Personal Property.
(ix) SELLER'S CLOSING CERTIFICATE. Seller's Closing Certificate in
the form of Exhibit "K" to this Agreement.
(x) CLOSING STATEMENT. An executed original closing statement setting
forth the Purchase Price and prorations between the parties.
(xi) OTHER DOCUMENTS. Any other documents which Seller is obligated
to deliver to Buyer pursuant to this Agreement.
(b) BUYER'S DELIVERIES. On the Closing Date, Buyer will deliver to
Escrowee for delivery to Seller upon the completion of Closing the following:
(i) ASSIGNMENT AND ASSUMPTION AGREEMENTS. The Assignment and
Assumption Agreements.
(ii) AUTHORITY DOCUMENTS. A corporate resolution or partnership
resolution executed by the general partners, as the case may be, and an
incumbency certificate to evidence the capacity of the signatory for Buyer.
(iii) PURCHASE PRICE. That portion of the Purchase Price payable at
closing.
(iv) CLOSING STATEMENT. An executed original closing statement
setting forth the Purchase Price and prorations between the parties.
(v) OTHER DOCUMENTS. Any other documents which Buyer is obligated to
deliver to Seller pursuant to this Agreement.
12. DEFAULT.
(a) BUYER DEFAULT. If Buyer defaults under this Agreement at or prior to
the Closing Date by failing to complete Closing in accordance with the terms of
this Agreement or fails to perform or observe any of the covenants or agreements
to be performed by Buyer hereunder, then on the earlier of the Closing Date or
the date of such default, the Deposit shall be paid to Seller by Escrowee. The
Deposit shall be retained by Seller as liquidated damages and not as a penalty.
The
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retention of the Deposit shall be Seller's sole and exclusive remedy in the
event of Buyer's failure to complete Closing, and Seller in such event waives
any right, unless Closing is completed, to recover the balance of the Purchase
Price. Seller and Buyer agree that the actual damages to Seller in the event of
such breach are impractical to ascertain as of the date of this Agreement and
the amount of the Deposit is a reasonable estimate thereof. If Seller shall
retain the Deposit as liquidated damages, this Agreement shall be and become
null and void and all copies will be surrendered to Seller; provided, nothing in
this Paragraph shall limit Seller's rights against Buyer by reason of any
indemnity or confidentiality obligations of Buyer to Seller set forth in this
Agreement all of which shall survive the termination of this Agreement.
(b) SELLER DEFAULT. If Seller defaults under this Agreement by failing
to complete Closing in accordance with the terms of this Agreement, then Buyer
shall be entitled, as Buyer's sole and exclusive remedy, to either (i) institute
an action for specific performance of this Agreement; or (ii) seek reimbursement
of the Deposit.
13. NOTICES; COMPUTATION OF PERIODS.
(a) NOTICES. All notices given by either party to the other shall be in
writing and shall be sent either (i) by United States Postal Service registered
or certified mail, postage prepaid, return receipt requested, (ii) by nationally
recognized overnight courier service for next business day delivery, addressed
to the other party at the following addresses listed below or (iii) via
telecopier or facsimile transmission to the facsimile numbers listed below,
provided, however, that if such communication is given via telecopier or
facsimile transmission, an original counterpart of such communication shall
concurrently be sent in the manner specified in clause (ii) above. Addresses and
facsimile numbers of the parties are as follows:
As to Seller:
200 Four Falls Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Butte
Fax: (000) 000-0000
with copies at the same time to:
Xxxxxxx Xxxxx LLP
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
As to Buyer:
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Fawn Realty L.L.C..
00 Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxxx
Fax: (000) 000-0000
with a copy at the same time to:
Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx Hammer & Gladstone
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
As to Escrowee:
Chicago Title Insurance Company
c/o Professional Abstract & Title Agency, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
or to such other address as the respective parties may hereafter designate by
notice in writing in the manner specified above. Any notice may be given on
behalf of any party by its counsel. Notices given in the manner aforesaid shall
be deemed sufficiently served or given for all purposes under this Agreement
upon the earliest of (i) actual receipt or refusal by the addressee, or (ii) the
date such notices, demands or requests shall be deposited in any Post Office, or
branch Post Office regularly maintained by the United States Government or
delivered to the overnight courier service.
(b) COMPUTATION OF PERIODS. If the final day of any period of time in
any provision of this Agreement falls upon a Saturday, Sunday or a holiday
observed by federally insured banks in the Commonwealth of Pennsylvania or the
State in which the Premises is located or by the United States Postal Service,
then, the time of such period shall be extended to the next day which is not a
Saturday, Sunday or holiday. Unless otherwise specified, in computing any period
of time described in this Agreement, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day
of the period is so computed is to be included, unless such last day is a
Saturday, Sunday or holiday in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday or holiday.
14. FIRE OR OTHER CASUALTY.
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(a) CASUALTY INSURANCE. Seller agrees to maintain in effect until the
Closing Date the fire and extended coverage insurance policies now in effect for
the Premises.
(b) CASUALTY DAMAGE. Subject to subparagraph (c) below, the obligations
of the parties to complete Closing under this Agreement shall in no way be
voided or impaired if the Premises or Personal Property, or any part thereof,
shall be damaged or destroyed by fire or other casualty between the date of this
Agreement and the Closing Date. If any such damage or destruction occurs after
the date of this Agreement: (i) Seller shall provide Buyer with notice thereof,
(ii) the cash proceeds of all fire and extended coverage insurance policies
attributable to the Premises or the Personal Property received by Seller or the
holder of any mortgage encumbering the Premises prior to the Closing Date and
not used for the repair of the Premises and the Personal Property (and Buyer
hereby authorizes Seller to use the proceeds for such purpose) shall be applied
on account of the cash portion of the Purchase Price payable at Closing and
(iii) all unpaid claims of Seller under such insurance policies attributable to
the Premises and Personal Property shall be assigned by Seller to Buyer at the
Closing.
(c) RIGHT OF TERMINATION. Notwithstanding any of the preceding
provisions of this Paragraph 14, if the cost to repair damage caused by fire or
other casualty to the Premises exceeds Six Million Dollars ($6,000,000.00),
Buyer shall have the right to terminate this Agreement by written notice to
Seller. Upon such termination, the Deposit shall be returned by Escrowee to
Buyer and neither party shall have any further rights or obligations under this
Agreement (except for the indemnity and confidentiality obligations of Buyer to
Seller set forth in Paragraph 16 of this Agreement which shall survive the
termination of this Agreement). If Buyer desires to terminate this Agreement
pursuant to this subparagraph (c), Buyer shall give a written notice of
termination to Seller within ten (10) business days after Seller's notice to
Buyer of the occurrence of the casualty. If Seller's notice pursuant to
Paragraph 14(b)(i) is given to Buyer less than ten (10) business days prior to
Closing, at Buyer's option Closing may be postponed to a date not earlier than
ten (10) business days or later than thirty (30) days after Buyer's receipt of
such notice. Notwithstanding anything to the contrary, in the event the Lender
applies substantially all of the insurance proceeds in connection with a fire or
other casualty to pay down the debt under the Existing Loan, the Buyer shall
have the right to terminate this Agreement.
15. ASSIGNABILITY.
(a) LIMITED ASSIGNMENT. Subject to the further limitations in
subparagraph (b) below, this Agreement, and all, but not part, of Buyer's rights
under this Agreement, may be assigned by Buyer, without the prior written
consent of Seller, to an entity which is qualified to do business in the State
of New Jersey and which is managed or controlled by Xxxxxxx Xxxxxxx; provided,
however, that such assignment shall not release or relieve Buyer of and from any
liability or obligation under this Agreement, and Buyer shall continue to be
primarily liable to Seller under this Agreement. No such assignment shall be
effective, however, unless and until Buyer shall
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have furnished to Seller both an executed copy of the assignment plus a
written assumption agreement, in form satisfactory to Seller, by the assignee to
assume, perform and be responsible, jointly and severally with the Buyer named
herein, for the performance of all of the obligations of Buyer under this
Agreement and to pay all additional transfer or documentary taxes imposed as a
result of such assignment, and which contains a representation by the assignee
that all of the representations and warranties made by Buyer in this Agreement
are true and correct with respect to the assignee as of the date of the
assumption agreement. Seller shall have the right to rely in good faith on the
genuineness and validity of the notice from Buyer of an assignment and to convey
the Premises to the assignee without liability to Buyer or any other person.
Buyer shall indemnify and save Seller harmless from and against any such
liability in connection with such conveyance to the assignee.
(b) SUCCESSORS AND ASSIGNS. Except as provided in subparagraph 15(a),
Buyer may not assign or suffer an assignment of this Agreement and its rights
under this Agreement, without the prior written consent of Seller, which consent
Seller may deny in its sole and absolute discretion. Subject to the foregoing
limitations, this Agreement shall extend to, and shall bind, the respective
heirs, executors, personal representatives, successors and assigns of Seller and
Buyer.
16. INSPECTION PERIOD.
(a) RIGHT TO INSPECT. Buyer, and Buyer's agents and representatives,
have completed their inspection of the Premises and Buyer is satisfied with the
condition of the Premises. Seller represents and warrants, to the best of its
knowledge and without independent investigation, that as of March 17, 2000 (i)
there has been no material change in the condition of the Premises, ordinary
wear and tear excepted, and (ii) it has not received any correspondence from any
of the tenants at the Premises indicating the presence of any material defect in
the condition of the Premises, ordinary wear and tear excepted. The costs of all
inspections and examinations so performed shall be borne by Buyer.
(b) NO LIENS PERMITTED. Nothing contained in this Agreement shall be
deemed or construed in any way as constituting the consent or request of Seller,
express or implied by inference or otherwise, to any party for the performance
of any labor or the furnishing of any materials to the Premises or any part
thereof, nor as giving Buyer any right, power or authority to contract for or
permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any liens against the Premises or any part
thereof.
(c) [intentionally deleted]
(d) DELIVERIES. Buyer acknowledges that Seller has made available for
inspection by Buyer the following:
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(i) copies of plans and specifications for the Premises, to the
extent currently in Seller's possession;
(ii) the current books and records (excluding, however, tax records,
internal memoranda, financial projections, appraisals and projected budgets)
customarily prepared by or at Seller's request with respect to the Premises,
including, without limitation, to the extent so prepared, all ledgers, records
of income, expense, capital expenditures, utility bills and the most recent
property tax xxxx;
(iii) copies of all Existing Agreements currently in force with
respect to the Premises;
(iv) copies of all Existing Leases currently in force with respect to
the Premises;
(v) copies of environmental assessment reports listed on Schedule
16(d)(v);
(vi) copies of engineering reports, title documents and surveys for
the Premises to the extent currently in Seller's possession;
(vii) copies of all service, maintenance and other contracts
currently in force with respect to the Premises to the extent currently in
Seller's possession;
(viii) copies of all certificates of occupancy issued with respect to
the Premises to the extent currently in Seller's possession;
(ix) copies of real estate tax bills for the Premises for the most
recent tax year.
(e) NO WARRANTY. NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH 16(d),
BUYER ACKNOWLEDGES THAT SOME OF THE MATERIALS DELIVERED BY SELLER HAVE BEEN
PREPARED BY PARTIES OTHER THAN SELLER. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, AS TO THE COMPLETENESS, CONTENT OR ACCURACY OF THE DELIVERED MATERIALS
WHICH WERE NOT PREPARED BY SELLER.
(f) Buyer shall hold as confidential all information concerning Seller
or the Premises obtained by Buyer in connection with the transactions
contemplated by this Agreement. Buyer shall not, prior to completion of Closing,
release any such information relating to Seller or the Premises without Seller's
prior written consent, except pursuant to court order or as may otherwise
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be required by law. Seller hereby consents to Buyer's disclosure of
information relating to Seller or the Premises to Buyer's prospective mortgage
lenders and investors, consultants, officers, directors and attorneys.
(g) INDEMNIFICATION. Buyer shall (i) restore any damage to the Premises
or any adjacent property arising from the exercise by Buyer of its rights under
subparagraph 16(a) and (ii) indemnify, defend and save Seller and, as the case
may be, its partners and its and their trustees, shareholders, directors,
officers, members, employees, and agents (each, an "Indemnified Party") harmless
from and against all claims, costs, liabilities and expenses (including without
limitation attorneys' fees and court costs) incurred by any Indemnified Party
and arising from the exercise by Buyer of its rights under subparagraph 16(a) or
from the breach by Buyer of its obligations under subparagraph 16(f).
Notwithstanding anything contained in this Agreement, in no event shall Seller's
remedies or right to collect damages under this subparagraph 16(g) be limited to
the Deposit or the amount thereof, and in such event Seller may pursue all
rights and remedies available to Seller at law or equity.
17. CONDEMNATION.
(a) IMMATERIAL TAKING. If any part of the Premises shall be taken by
exercise of the power of eminent domain after the date of this Agreement which
does not materially interfere with the use of the Premises for the purposes for
which it is currently intended to be used, this Agreement shall continue in full
force and effect and there shall be no abatement of the Purchase Price. Seller
shall be relieved, however, of its duty to convey title to the portion so taken,
but Seller shall, on the Closing Date, assign to Buyer all rights and claims to
any awards arising therefrom as well as any money theretofore received by Seller
on account thereof, net of any expenses to Seller, including attorneys' fees of
collecting the same. Seller shall promptly furnish Buyer with a copy of the
declaration of taking property after Seller's receipt thereof.
(b) MATERIAL TAKING. If any such taking of a portion of the Premises
materially interferes with the use of the Premises for the purposes for which it
is currently intended to be used, either Seller or Buyer may terminate this
Agreement by written notice to the other party. Upon the giving of such
termination notice, this Agreement shall become null and void except for the
indemnity obligations of Buyer to Seller set forth in this Agreement which will
survive termination of this Agreement, and all executed counterparts of this
Agreement shall be returned to Seller. If this Agreement is not so terminated
pursuant to this subparagraph (b), the provisions of subparagraph (a) above
shall govern.
18. BROKERS.
(a) Buyer represents and warrants to Seller that Buyer has dealt with no
broker or other intermediary in connection with this transaction or the Premises
other than Kislak Realty (the "Buyer's Disclosed Broker"). Buyer shall pay
Buyer's Disclosed Broker a brokerage
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commission pursuant to a separate agreement. If any broker or other
intermediary other than the Buyer's Disclosed Broker claims to have dealt with
Buyer in connection with this transaction or the Premises, to have introduced
the Premises to Buyer for sale, or to have been the inducing cause to the sale,
Buyer shall indemnify, defend and save Seller harmless of and from any claim for
commission or compensation by such broker or other intermediary.
(b) Seller represents and warrants to Buyer that Seller has dealt with
no broker in connection with this transaction or the Premises other than CB
Xxxxxxx Xxxxx, Inc. (the "Seller's Disclosed Broker"). Seller shall pay Seller's
Disclosed Broker a brokerage commission pursuant to a separate agreement. If any
broker or other intermediary other than the Seller's Disclosed Broker claims to
have dealt with Seller in connection with this transaction or the Premises, or
to have been the inducing cause to the sale, Seller shall indemnify, defend and
save Buyer harmless of and from any claim for commission or compensation by such
broker or other intermediary.
19. CONDITION OF PREMISES.
(a) NO WARRANTIES. THE ENTIRE AGREEMENT BETWEEN THE SELLER AND BUYER
WITH RESPECT TO THE PREMISES AND THE PERSONAL PROPERTY AND THE SALE THEREOF IS
EXPRESSLY SET FORTH IN THIS AGREEMENT. THE PARTIES ARE NOT BOUND BY ANY
AGREEMENTS, UNDERSTANDINGS, PROVISIONS, CONDITIONS, REPRESENTATIONS OR
WARRANTIES (WHETHER WRITTEN OR ORAL AND WHETHER MADE BY SELLER OR ANY AGENT,
EMPLOYEE OR PRINCIPAL OF SELLER OR ANY OTHER PARTY) OTHER THAN AS ARE EXPRESSLY
SET FORTH AND STIPULATED IN THIS AGREEMENT. WITHOUT IN ANY MANNER LIMITING THE
GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT IT AND ITS REPRESENTATIVES
HAVE FULLY INSPECTED THE PREMISES, THE PERSONAL PROPERTY, THE ASSIGNED EXISTING
AGREEMENTS, OR WILL BE PROVIDED WITH AN ADEQUATE OPPORTUNITY TO DO SO, ARE OR
WILL BE FULLY FAMILIAR WITH THE FINANCIAL AND PHYSICAL (INCLUDING WITHOUT
LIMITATION, ENVIRONMENTAL) CONDITION THEREOF, AND THAT THE PREMISES, THE
PERSONAL PROPERTY, THE ASSIGNED EXISTING AGREEMENTS HAVE BEEN PURCHASED BY BUYER
IN AN "AS IS" AND "WHERE IS" CONDITION AND WITH ALL EXISTING DEFECTS AS A RESULT
OF SUCH INSPECTIONS AND INVESTIGATIONS AND NOT IN RELIANCE ON ANY AGREEMENT,
UNDERSTANDING, CONDITION, WARRANTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR
REPRESENTATION MADE BY SELLER OR ANY AGENT, EMPLOYEE OR PRINCIPAL OF SELLER OR
ANY OTHER PARTY (EXCEPT AS EXPRESSLY ELSEWHERE PROVIDED IN THIS AGREEMENT) AS TO
THE FINANCIAL OR PHYSICAL (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL)
CONDITION OF THE PREMISES OR THE PERSONAL PROPERTY OR THE AREAS SURROUNDING THE
PREMISES, AS TO ANY MATTER, INCLUDING WITHOUT LIMITATION AS TO ANY PERMITTED USE
THEREOF, THE ZONING CLASSIFICATION THEREOF OR COMPLIANCE
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THEREOF WITH FEDERAL, STATE OR LOCAL LAWS, AS TO THE INCOME OR EXPENSE IN
CONNECTION THEREWITH, OR AS TO ANY OTHER MATTER IN CONNECTION THEREWITH. BUYER
ACKNOWLEDGES THAT NEITHER SELLER, NOR ANY AGENT OR EMPLOYEE OF SELLER, NOR ANY
OTHER PARTY ACTING ON BEHALF OF SELLER HAS MADE OR SHALL BE DEEMED TO HAVE MADE
ANY SUCH AGREEMENT, CONDITION, REPRESENTATION OR WARRANTY EITHER EXPRESSED OR
IMPLIED. THIS PARAGRAPH SHALL SURVIVE CLOSING, AND SHALL BE DEEMED INCORPORATED
BY REFERENCE AND MADE A PART OF ALL DOCUMENTS DELIVERED BY SELLER TO BUYER IN
CONNECTION WITH THE SALE OF THE PREMISES AND THE PERSONAL PROPERTY.
(b) CONDITION OF DELIVERY. Seller has no obligation to deliver the
Premises in a "broom clean" condition if it is currently not in broom clean
condition, and at Closing Seller may leave in the Premises all items of personal
property and equipment, partitions and debris as are now presently therein;
provided, however, that in cases where an Existing Lease has terminated or
expired, as of the Closing Date, Seller shall deliver the subject premises in
good clean condition, ordinary wear and tear excepted.
(c) SELLER REPAIRS. Between the date of the execution of this Agreement
and the Closing Date, Seller shall perform such ordinary repairs to the Premises
and the Personal Property as Seller has customarily previously performed to
maintain them in substantially the same condition as they are as of the end of
the Inspection Period, as said condition shall be changed by wear and tear and
damage by fire or other casualty.
(d) RELEASE. WITHOUT LIMITING THE PROVISIONS OF SUBPARAGRAPH 19(a)
ABOVE AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
BUYER HEREBY RELEASES SELLER AND (AS THE CASE MAY BE) SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, TRUSTEES, PARTNERS, EMPLOYEES, MANAGERS, ATTORNEYS AND
AGENTS FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTIONS, LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES WHETHER SUIT IS
INSTITUTED OR NOT) WHETHER KNOWN (PROVIDED THE SAME IF ACTUALLY KNOWN BY SELLER
ARE DISCLOSED BY SELLER) OR UNKNOWN, LIQUIDATED OR CONTINGENT (COLLECTIVELY THE
"CLAIMS") ARISING FROM OR RELATING TO (i) ANY DEFECTS, ERRORS OR OMISSIONS IN
THE DESIGN OR CONSTRUCTION OF THE PREMISES WHETHER THE SAME ARE THE RESULT OF
NEGLIGENCE OR OTHERWISE, OR (ii) ANY OTHER CONDITIONS, INCLUDING ENVIRONMENTAL
AND OTHER PHYSICAL CONDITIONS, AFFECTING THE PREMISES WHETHER THE SAME ARE A
RESULT OF NEGLIGENCE OR OTHERWISE. THE RELEASE SET FORTH IN THIS SECTION
SPECIFICALLY INCLUDES, WITHOUT LIMITATION, ANY CLAIMS UNDER ANY ENVIRONMENTAL
LAWS OF THE UNITED STATES, THE STATE IN WHICH THE PREMISES IS LOCATED OR ANY
POLITICAL SUBDIVISION THEREOF OR UNDER THE
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AMERICANS WITH DISABILITIES ACT OF 1990, AS ANY OF THOSE LAWS MAY BE AMENDED
FROM TIME TO TIME AND ANY REGULATIONS, ORDERS, RULES OF PROCEDURE OR GUIDELINES
PROMULGATED IN CONNECTION WITH SUCH LAWS, REGARDLESS OF WHETHER THEY ARE IN
EXISTENCE ON THE DATE OF THIS AGREEMENT. BUYER ACKNOWLEDGES THAT BUYER HAS BEEN
REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF BUYER'S SELECTION AND BUYER IS
GRANTING THIS RELEASE OF ITS OWN VOLITION AND AFTER CONSULTATION WITH BUYER'S
COUNSEL.
(e) SELLER REPORTS. Buyer acknowledges that Seller makes no warranties
or representations regarding the adequacy, accuracy or completeness of
environmental and engineering reports delivered to Buyer by Seller (collectively
the "Reports") or other documents relating to the Reports, and Buyer shall have
no claim against Seller based upon the Reports or such other documents relating
to the Reports. Buyer further acknowledges that Buyer has had full opportunity
to perform such environmental and engineering investigations as Buyer deems
appropriate prior to entering into this Agreement or shall have such opportunity
during the Inspection Period, and Buyer obtained or shall obtain its own
environmental and engineering reports of the Premises. At Seller's request,
Buyer agrees to provide Seller with copies of all environmental and engineering
reports and appraisals ordered by Buyer with respect to the Premises.
(f) EFFECT OF DISCLAIMERS. Buyer acknowledges and agrees that the
Purchase Price has been negotiated to take into account that the Premises and
Personal Property are being sold subject to the provisions of Section d of this
subparagraph 19 and that Seller would have charged a higher purchase price if
the provisions in this Paragraph 19 were not agreed upon by Buyer.
20. SURVIVAL OF PROVISIONS.
(a) Except as otherwise provided in this Paragraph 20, acceptance by
Buyer of the Deeds at Closing shall constitute an acknowledgment by Buyer of
full performance by Seller of all of Seller's obligations under this Agreement
and none of Seller's representations and warranties contained in this Agreement
shall survive closing.
(b) (i) Notwithstanding any provision to the contrary set forth in this
Agreement, the agreements and obligations of Seller under Paragraphs 7 and 18
shall survive Closing, and the warranties and representations of Seller set
forth in subparagraph 8(a) (the "Surviving Warranties") shall survive Closing
under this Agreement for a period of six (6) months, and Seller's
representations set forth on the Schedules and Exhibits attached to this
Agreement shall survive the Closing of title for a period of three (3) months,
provided however, the parties acknowledge that the Schedules and Exhibits
attached hereto are incomplete and the parties shall endeavor to complete the
Schedules and Exhibits within fourteen (14) days of this Agreement.
Notwithstanding the foregoing, the representations and warranties of Seller
contained in subparagraph 8(a)(vi) with respect to any Existing Lease shall not
survive the delivery to Buyer of
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a Tenant Estoppel Certificate to the extent such Tenant Estoppel Certificate
confirms matters represented and warranted by Seller with respect to such
Existing Lease, and the representations and warranties of Seller contained in
subparagraph 8(a)(viii) shall not survive Closing to the extent the Lender
confirms for Buyer matters represented and warranted by Seller in subparagraph
8(a)(viii). For example, if a Tenant Estoppel Certificate is received from a
tenant and such certificate confirms some but not all of Seller's
representations and warranties with respect to such Existing Lease contained in
Paragraph 8(a)(vi), the representations and warranties of Seller with respect to
the matters so confirmed shall not survive Closing and the representations and
warranties of Seller with respect to the matters not so confirmed shall survive
Closing as provided above.
(ii) If Buyer determines that any of the Surviving Warranties are
inaccurate in any material respect prior to the Closing Date, Buyer's sole right
and remedy shall be to terminate this Agreement by giving to Seller written
notice of such termination on or prior to the Closing Date. If Buyer fails to
timely give such written termination notice to Seller, Buyer shall be deemed to
have waived any right or remedy (including, without limitation, any right under
this Agreement to terminate this Agreement) against Seller by reason of the
inaccuracy of such warranty. If Buyer terminates this Agreement pursuant to this
Paragraph, Buyer shall be entitled to the return of the Deposit, and upon the
return of the Deposit to Buyer, neither Buyer nor Seller shall have any further
rights nor obligations under this Agreement (except for the indemnity and
confidentiality obligations of Buyer to Seller set forth in Paragraph 16 of this
Agreement which will survive such termination).
(iii) Seller shall have no liability to Buyer by reason of a breach
or default of any of the Surviving Warranties unless Buyer shall have given to
Seller written notice ("Warranty Notice") of such breach or default within six
(6) months of the Closing Date, and shall have given to Seller an opportunity to
cure any such breach or default within a reasonable period of time after Buyer's
learning of such breach of warranty. In no event shall Seller's liability to
Buyer by reason of a breach or default of any or all of the Surviving Warranties
exceed $2,000,000.00, and Seller shall have no liability to Buyer for breach of
the Surviving Warranties except to the extent of the loss incurred by Buyer as a
result thereof exceeds $50,000.00. Any litigation to enforce any Surviving
Warranty must be commenced within three (3) months from the date of the Warranty
Notice, and if not commenced within such time period, Buyer shall be deemed to
have waived its claims for such breach or default.
(c) Buyer's obligations under this Agreement as shall possibly imply
performance or observance after the Closing Date shall survive closing,
notwithstanding any presumption to the contrary; without in any manner limiting
the generality of the foregoing provisions of this sentence, the obligations of
Buyer under Paragraphs 7, 16, 18, 19, 20 and 23.
21. ESCROW PROVISIONS.
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(a) INVESTMENT OF DEPOSIT. Escrowee shall invest the Deposit in such
accounts, commercial paper, U.S. government securities, repurchase agreements or
other instruments as Buyer shall from time-to-time direct and Seller may
approve. Escrowee shall promptly advise Seller and Buyer of the investment of
the Deposit. All interest earned on the Deposit shall be added to and deemed
part of the Deposit. Interest shall follow the Deposit.
(b) PAYMENT AT CLOSING. If the Closing is completed under this
Agreement, Escrowee shall deliver the Deposit to Seller on the Closing Date on
account of the Purchase Price.
(c) OTHER PAYMENT. Notwithstanding anything contained in this Agreement,
upon receipt of any written notice from Seller or Buyer claiming the Deposit
pursuant to the provisions of this Agreement, Escrowee shall promptly forward a
copy thereof to the other party and, unless such other party within ten (10)
days thereafter notifies Escrowee of any objection to such request for the
disbursement of the Deposit, Escrowee shall disburse the Deposit to the party
demanding the same and Escrowee shall thereupon be released and discharged from
any further duty or obligation under this Agreement.
(d) STAKEHOLDER. Escrowee is acting as a stakeholder only with respect
to the Deposit. If there is any dispute as to whether Escrowee is obligated to
deliver the Deposit, or as to whom the Deposit is to be delivered, Escrowee may
refuse to make any delivery and may continue to hold the Deposit until receipt
by Escrowee of written authorization, signed by both Seller and Buyer, directing
the disposition of the Deposit or, in the absence of such joint written
authorization, until final determination of the rights of the parties in
appropriate judicial proceeding. Escrowee may also bring an appropriate action
or proceeding for leave to deposit the Deposit in a court of competent
jurisdiction and to interplead Seller and Buyer. Upon making delivery of the
Deposit, Escrowee shall have no further liability with respect to the Deposit.
Seller and Buyer agree that the duties of Escrowee in its capacity as escrow
holder under this Agreement are ministerial in nature and that Escrowee shall
incur no liability except for its willful misconduct or gross negligence so long
as Escrowee acts in good faith.
(e) TAX INFORMATION. The federal tax identification number of Buyer is
00-0000000.
(f) ESCROW FEES. Seller and Buyer shall each pay one-half of the fees
and expenses, if any, due to Escrowee as compensation for its escrow services
pursuant to this Agreement, and shall each reimburse Escrowee for one-half of
the expenses incurred by Escrowee in discharging its duties and obligations as
escrow holder under this Agreement.
22. ISRA.
(a) EVIDENCE OF ISRA COMPLIANCE. Seller shall use commercially
reasonable efforts to obtain, as appropriate, from the New Jersey Department of
Environmental Protection
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("NJDEP"): (i) a Letter of Nonapplicability ("LNA"); (ii) an approval of a
Negative Declaration ("Negative Declaration Approval"); (iii) a no further
action letter; (iv) an approval of a de minimis quantity exemption application;
(v) an approval of a remediation agreement; or (vi) a Remediation in Progress
Waiver ("Remediation in Progress Waiver," and together with the items set forth
in (i), (ii), (iii), (iv) and (v), "Evidence of ISRA Compliance"). Seller shall
provide Buyer with copies of all filings and submissions made by Seller pursuant
to ISRA concurrently with the delivery of such filings or submissions to NJDEP
and shall also provide Buyer with copies of all correspondence and responses
received from NJDEP promptly after receipt thereof.
(b) ISRA DEFECTS. If Seller shall be unable to obtain Evidence of ISRA
Compliance with respect to any property comprising the Premises (such failure
being referred to herein as an "ISRA Defect"), then the Closing Date shall be
postponed (for a period not to exceed sixty (60) days) until such time as such
ISRA Defect no longer exists. At such time as Seller shall obtain Evidence of
ISRA Compliance with respect to each of the properties comprising the Premises,
such that no ISRA Defect exists prior to the termination of such sixty (60) day
period, the parties shall promptly proceed with the Closing. If Seller shall be
unable to obtain Evidence of ISRA Compliance with respect to each of the
properties comprising the Premises such that an ISRA Defect shall no longer
exist prior to the termination of such sixty (60) day period, each of Seller and
Buyer shall have the right to terminate this Agreement, provided, however,
either party may upon written notice extend such sixty (60) day period for an
additional thirty (30) days.
23. MISCELLANEOUS.
(a) CAPTIONS OR HEADINGS; INTERPRETATION. The captions or headings of
the Paragraphs and subparagraphs of this Agreement are for convenience only, and
shall not control or affect the meaning or construction of any of the terms or
provisions of this Agreement. Wherever in this Agreement the singular number is
used, the same shall include the plural and vice versa and the masculine gender
shall include the feminine gender and vice versa as the context shall require.
(b) AMENDMENTS AND WAIVERS. No change, alteration, amendment,
modification or waiver of any of the terms or provisions of this Agreement shall
be valid unless the same shall be in writing and signed by Buyer and Seller.
(c) NO RULE OF CONSTRUCTION. This Agreement has been negotiated at arms
length by both Seller and Buyer, and no rule of construction shall be invoked
against either party with respect to the authorship thereof or of any of the
documents to be delivered by the respective parties at the closing.
(d) COUNTERPARTS. This Agreement may be executed in multiple
counterparts each of which shall be deemed an original but together shall
constitute one agreement.
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(e) APPLICABLE LAW. This Agreement shall be governed and construed
according to the laws of the state in which the Premises are located.
(f) RIGHT TO WAIVE CONDITIONS OR CONTINGENCY. Either party may waive any
of the terms and conditions of this Agreement made for its benefit provided such
waiver is in writing and signed by the party waiving such term or condition.
(g) PARTIAL INVALIDITY. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance shall be
invalid or unenforceable, at any time or to any extent, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby. Each term, covenant, condition and provision of
this Agreement shall be valid and enforced to the fullest extent permitted by
law.
(h) CONFIDENTIALITY. Buyer agrees to keep this Agreement confidential
and not make any public announcements or disclosures with respect to the subject
matter of this Agreement without the written consent of Seller. This provision
shall survive Closing.
(i) AGREEMENT NOT TO BE RECORDED. This Agreement shall not be filed of
record by or on behalf of Buyer in any office or place of public record. If
Buyer fails to comply with the terms hereof by recording or attempting to record
this Agreement or a notice thereof, such act shall not operate to bind or cloud
the title to the Premises. Seller shall, nevertheless, have the right forthwith
to institute appropriate legal proceedings to have the same removed from record.
If Buyer or any agent, broker or counsel acting for Buyer shall cause or permit
this Agreement or a copy thereof to be filed in an office or place of public
record, Seller, at its option, and in addition to Seller's other rights and
remedies, may treat such act as a default of this Agreement on the part of
Buyer. However, the filing of this Agreement in any lawsuit or other proceedings
in which such document is relevant or material shall not be deemed to be a
violation of this subparagraph 23(i).
(j) TIME OF THE ESSENCE. Time, wherever specified herein for the
performance by Seller or Buyer of any of their respective obligations hereunder,
is hereby made and declared to be of the essence of this Agreement.
(k) COMPUTATION OF PERIODS. If the final day of any period of time in
any provision of this Agreement falls upon a Saturday, Sunday or a holiday
observed by federally insured banks in the State in which the Premises is
located or by the United States Postal Service, then, the time of such period
shall be extended to the next day which is not a Saturday, Sunday or holiday.
Unless otherwise specified, in computing any period of time described in this
Agreement, the day of the act or event after which the designated period of time
begins to run is not to be included and the last day of the period is so
computed is to be included, unless such last day is a Saturday, Sunday or
holiday in which event the period shall run until the end of the next day which
is neither a Saturday, Sunday or holiday.
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(l) EXHIBITS AND SCHEDULES. All exhibits and schedules annexed to this
Agreement, which may be amended from time to time, are incorporated by reference
into and made a part of this Agreement.
(m) 1031 EXCHANGE. Seller advises Buyer that Seller may seek to
effectuate a like-kind exchange as permitted under Section 1031 of the Internal
Revenue Code of 1986 ("Code") relating to Seller's sale of the Premises. If
Seller so elects, Buyer agrees to cooperate with Seller in order that Seller can
effectuate a Section 1031 like-kind exchange and agrees to execute such
documents as may be reasonably necessary in order to assist Seller in
consummating such an exchange, including but not limited to, permitting Seller
to assign this Agreement to a qualified intermediary; provided, however, that:
(i) the total sum to be paid by Buyer for the Premises shall not
exceed or be less than the Purchase Price;
(ii) the Buyer's rights (and the Seller's obligations to Buyer)
respecting all other provisions of this Agreement shall not be adversely
affected by any such exchange, whether or not effected by Seller;
(iii) Buyer's expenses with respect to the conveyance of the Premises
shall be limited to the expenses it would have to expend under this Agreement
without regard to this subparagraph 23(m) and Seller shall pay any additional
expenses as may be occasioned by such exchange;
(iv) Buyer shall not be required to undertake contractual or other
liabilities or obligations by reason of the exchange other than the liabilities
and obligations undertaken by it under the terms of this Agreement without
regard to this subparagraph 23(m);
(v) Buyer shall not in any way be liable to Seller or any other party
whatsoever for any failure of the transaction to qualify as a tax free exchange
under the Code; and
(vi) Seller retains the right, but not the obligation, to prepare and
provide to the qualified intermediary an allocation of the Purchase Price with
respect to the Premises in order to facilitate the 1031 exchange; and
(vii) Buyer shall not be obligated to take title to the exchange
properties (i.e., the property which Seller seeks to acquire).
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IN WITNESS WHEREOF, the parties, intending legally to be bound, have
executed this Agreement as of the date first above written.
SELLER:
------
FLIP/BRE II, Inc., a New Jersey corporation
By: /s/ XXXXXXX X. BUTTE
----------------------------------------
Name: Xxxxxxx X. Butte
Title: Vice President
MBP/BRE, L.L.C., a New Jersey limited
liability company
By: REA/SPC II, INC., a New Jersey
corporation
By: /s/ XXXXXXX X. BUTTE
----------------------------------------
Name: Xxxxxxx X. Butte
Title: Vice President
OIP/BRE, L.L.C., a New Jersey limited
liability company
By: REA/SPC II, INC., a New Jersey
corporation
By: /s/ XXXXXXX X. BUTTE
-----------------------------------------
Name: Xxxxxxx X. Butte
Title: Vice President
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NJA/BRE, L.L.C., a New Jersey limited
liability company
By: REA/SPC II, INC., a New Jersey
corporation
By: /s/ XXXXXXX X. BUTTE
-----------------------------------------
Name: Xxxxxxx X. Butte
Title: Vice President
BUYER:
-----
XX XXXXXX ASSOCIATES, L.L.C., a New Jersey
limited liability company
By: XX Xxxxxx Realty Corp., a New Jersey
corporation
BY: /s/ XXXXXXX XXXXXXXXXX
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Agreed to and acknowledged with respect to
the obligations set forth in Paragraphs 2,
3, 4, 12, 14 and 21 of this Agreement
ESCROWEE:
--------
CHICAGO TITLE INSURANCE COMPANY
c/o PROFESSIONAL ABSTRACT & TITLE
AGENCY, INC.
BY: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Officer
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