Exhibit 10.30
AGREEMENT OF SALE
N.J. GREENBROOK PARTNERS, L.P.,
Seller
and
WELLSFORD COMMERCIAL PROPERTIES, L.L.C.,
Buyer
Dated: December __, 1996
Premises: Greenbrook Corporate Center
90 and 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
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AGREEMENT OF SALE
AGREEMENT made as of the day of December, 1996
(this Agreement of Sale, as the same may be modified or amended
by the parties hereto pursuant to the terms hereof, being herein
called the "Agreement"), between N.J. GREENBROOK PARTNERS, L.P.,
a New Jersey Limited Partnership, having an office at 00 Xxxxx
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Seller"), and
WELLSFORD COMMERCIAL PROPERTIES, L.L.C, a Delaware limited
liability company, having an office at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Buyer").
W I T N E S S E T H:
1. Subject of Sale. Upon and subject to the terms and
conditions herein contained, Seller agrees to sell and convey to
Buyer, and Buyer agrees to purchase from Seller, free and clear
of all liens and encumbrances other than the Permitted
Encumbrances (as hereinafter defined) (a) that certain parcel of
land described in Schedule 0 xxxxxxx xxxxxx (xxx "Xxxx"), (x) the
buildings and other improvements located on the Land (the
"Building"), and (c) all of the other tangible and intangible
property owned by Seller in, on, attached to, appurtenant to, or
used in the operation or maintenance of the Land or the Building,
including, without limitation, the following (all of such
tangible and intangible property, together with the Land and the
Building, being herein collectively called the "Property"):
(i) all leases of space in the Building (the
"Leases") as listed and described in Schedule 2 annexed
hereto, together with all Leases entered into by Seller
after the date hereof in accordance with the provisions of
subparagraph 8.1 hereof;
(ii) all deposits and advance payments made
by tenants (the "Tenants") under the Leases;
(iii) all transferable licenses, permits,
certificates (including, without limitation, certificates of
occupancy), approvals, authorizations, variances and
consents (collectively, the "Permits") issued or granted by
governmental and quasi-governmental bodies, officers and
authorities in respect of the ownership, occupancy, use and
operation of the Property;
(iv) all architectural, mechanical,
engineering and other plans, specifications and surveys
relating to the Property and in Seller's possession, custody
or control (the "Plans");
(v) Seller's right, title and interest in
and to, and all deposits made under, all service, utility,
brokerage, maintenance and other contracts and agreements
(collectively, the "Service Contracts") affecting the
Property;
(vi) all right, title and interest of Seller,
if any, in and to any land lying in the bed of any street,
road or avenue opened or proposed, in front of or adjoining
the Land, to the center line thereof and to any unpaid award
for any taking by condemnation or any damage to the Property
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by reason of a change of grade of any street, road or
avenue; and upon the Closing (as hereinafter defined), or
thereafter on demand, Seller shall execute and deliver to
Buyer all proper instruments for the conveyance of such
title and the assignment and collection of any such award,
and the provisions of this subparagraph l(vi) shall survive
the Closing;
(vii) all right, title and interest of Seller
in and to all warranties, guaranties, contract rights and
miscellaneous rights (all, if any) with respect to the
Property (the "Warranties");
(viii) all supplies, machinery, tools,
equipment, furniture, fixtures and other tangible property
in, on, attached to, appurtenant to, or used in the
operation or maintenance of the Land or the Building and
owned by Seller (the "Personal Property");
(ix) Seller's rights under the contracts
identified on Schedule 3 annexed hereto;
(x) all right, title and interest of Seller,
if any, in and to (A) any strips and gores adjacent to or
abutting the Land or any part thereof, and (B) any rights,
easements and appurtenances pertaining to the Land or the
Building or any part thereof;
(xi) to the extent assignable, all trade
names and general intangibles used in connection with the
ownership and operation of the Property or any part thereof,
including, without limitation, all rights of Seller to use
the name "Greenbrook Corporate Center" and the like (the
"General Intangibles");
(xii) subject to the provisions of Paragraph
10 below, any insurance proceeds that are payable after the
date of this Agreement on account of any damage to the
Property that results from fire or other casualty that
occurs after the date of this Agreement;
(xiii) all development rights, if any, with
respect to the Property; and
(xiv) all rights of Seller under that certain
exclusive access easement for ingress and egress as
described in Deed Book 4929, Page 156, Fairfield County, New
Jersey.
2. Purchase Price. The purchase price (the "Purchase
Price") shall be Twenty-Three Million Five Hundred Thousand
($23,500,000) Dollars, which Purchase Price shall be paid by
Buyer as follows (subject, however, to adjustment pursuant to
provisions of Paragraph 3 hereof):
(a) One Hundred Thousand ($100,000) Dollars (the
"Initial Deposit") by delivery from Buyer to Gold & Xxxxxxx, LLP
(the "Escrow Agent"), simultaneously with the execution and
delivery of this Agreement by Buyer and Seller, of a check in
such amount, subject to collection, which Initial Deposit shall
be held, invested and disbursed by Escrow Agent in accordance
with Paragraph 18 and subject to the rights granted Buyer in
Paragraph 32 hereof.
(b) Six Hundred Fifty Thousand ($650,000) Dollars
(the "Additional Deposit") shall be paid immediately upon the
expiration of the Study Period (as defined in Paragraph 32
hereof), provided this Agreement remains in full force and
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effect, by delivery from Buyer to Escrow Agent of a check in such
amount, subject to collection, which Additional Deposit shall be
held, invested and disbursed by Escrow Agent in accordance with
Paragraph 18 hereof; and
(c) Two Hundred Fifty Thousand ($250,000) Dollars
(the "Final Deposit") shall be paid not later than thirty (30)
days after the expiration of the Study Period, by delivery from
Buyer to Escrow Agent of a check in such amount, subject to
collection, which Final Deposit shall be held, invested and
disbursed by Escrow Agent in accordance with Paragraph 18 hereof;
and
(d) Twenty-Two Million Five Hundred Thousand
($22,500,000) Dollars (the "Cash Balance"), as adjusted pursuant
to Paragraph 3 (and after accounting for any credits or
adjustments pursuant to any other provisions of this Agreement),
shall be paid to Seller at the Closing by wire transfer of
immediately available federal funds transferred to a bank account
designated by Seller; provided, however, that Seller shall have
the right, to be exercised by notice given to Buyer at least five
(5) Business Days prior to the Closing, to require Buyer to pay a
portion of the Cash Balance by one or more separate official bank
checks, each to be drawn on a member bank of the New York
Clearinghouse Association, and each to be payable to the
unendorsed order of Seller or Seller's designee. If Seller
elects to cause Buyer to pay a portion of the Cash Balance by
official bank check(s) as aforesaid, then Seller's exercise
notice shall set forth (i) the portion of the Cash Balance to be
so paid, (ii) the number of official bank checks to be drawn and
(iii) the payee(s) thereof. With respect to the portion of the
Cash Balance to be paid by wire transfer, Seller, at least five
(5) Business Days prior to the Closing, shall notify Buyer of the
designated bank account and the wiring instructions therefor.
For purposes of this Agreement, the term "Business Day" means any
day other than a Saturday, Sunday or day on which the banks in
New York, New York are authorized or obligated by law to be
closed.
(e) In the event the day for payment of the
Additional Deposit or Final Deposit is not a Business Day,
payment shall then be made on the first Business Day immediately
following the day for payment provided in this Agreement.
3. Closing Adjustments. The following are to be adjusted
and prorated between Seller and Buyer as of 11:59 P.M. on the day
preceding the Closing Date (as hereinafter defined), based upon a
365 day year, and except as provided in subparagraph 3.7, the net
amount thereof shall be added to (if such net amount is in
Seller's favor) or deducted from (if such net amount is in
Buyer's favor) the Cash Balance of the Purchase Price:
3.1. Rents. Rents and other sums and charges
(collectively, "Rents") paid or payable by Tenants in connection
with their occupancy of the Building and in payment for services
furnished to them in connection therewith shall be adjusted and
prorated on and if, as and when collected basis. Any amount
collected by Buyer or Seller after the Closing from Tenants who
owe Rents for periods prior to the Closing, shall be applied (i)
first, in payment of Rents for the month in which the payment
occurs; (ii) second, in payment of Rents for the month in which
the Closing Date occurs, (iii) third, in payment of Rents for the
month next preceding the month in which the Closing Date occurs;
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and (iv) fourth, after Rents for all current periods have been
paid in full, then in payment of Rents for the period prior to
the month preceding the month in which the Closing Date occurs.
Each such amount, less any costs of collection (including
reasonable counsel fees) reasonably allocable thereto, shall be
adjusted and prorated as provided above, and the party who
receives such amount shall promptly pay over to the other party
the portion thereof to which it is so entitled. In furtherance
and not in limitation of the preceding sentence, with respect to
any Tenant which has paid all Rents for periods through the
Closing, if, prior to the Closing, Seller shall receive any
prepaid Rents from such Tenant attributable to a period following
the Closing, at the Closing Seller shall pay over to Buyer the
amount of such prepaid Rents. Buyer shall xxxx Tenants, who owe
Rents for periods prior to the Closing, on a monthly basis for a
period of six consecutive months following the Closing Date, at
the same time and in the same manner as Buyer bills tenants for
Rent due after the Closing and otherwise in accordance with
Buyer's standard practice in the management and operation of the
Property; provided, however, that Buyer shall not have any
obligation to commence any actions or proceedings to collect any
such past due Rents. Thereafter, Seller shall have the right to
xxx Tenants to collect such delinquencies, but Seller shall not
be entitled to evict (by summary proceedings or otherwise) any
such Tenants.
3.2. Taxes and Utilities. Real estate taxes, water
and sewer rents and charges, vault taxes and utility fees and
charges (including gas, steam, electricity and other public
utility charges) payable in connection with the Property shall be
adjusted and prorated on the basis of the fiscal year for which
assessed, or the fiscal period covered by the appropriate
invoice, xxxx or statement, or based on the most recently
available meter reading therefor; provided that no apportionment
shall be made with respect to any of the foregoing that are
payable directly by Tenants pursuant to their Leases. Seller
shall use all reasonable efforts to have the meters for all
metered utility services read to a date not more than five (5)
Business Days prior to the Closing Date. Seller agrees to pay,
at or prior to the Closing, the bills rendered to it as a result
of such readings. Metered utility charges for the period from
the last reading date prior to the Closing through the day before
the Closing Date shall be apportioned on the basis of such last
reading, but shall be reapportioned according to actual charges
promptly after the first reading following the Closing Date.
Unmetered water charges shall be apportioned on the basis of the
charges therefor for the same period in the preceding calendar
year, but applying the current rate thereto. If the Closing
shall occur before the tax rate or assessed valuation is fixed,
the apportionment of real estate taxes shall be upon the basis of
the tax rate for the preceding year applied to the most recently
applicable assessed valuation of the Land and Building, subject
to further and final adjustment when the tax rate and/or assessed
valuation is fixed for the year in which the Closing takes place.
3.3. Fuel. Fuel, if any shall be adjusted and
prorated on the basis of the written estimate of the quantity and
current price therefor (including sales tax, if any) by Seller's
fuel supplier on or about the day preceding the Closing.
3.4. Service Contract Deposits. Charges and
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transferable deposits under transferable Service Contracts, and
transferable utility deposits, if any.
3.5. Permit Fees. Prepaid or current fees and charges
for transferable Permits.
3.6. Security DePosits. Any deposits then held by
Seller under Leases, together with accrued interest thereon
wherever interest is provided for in such Leases or by law, are
to be turned over by Seller to Buyer at the Closing, by good
certified or official bank check or at Seller's option, by
crediting Buyer against the Purchase Price for the full amount
thereof. Any non-cash security deposits made by Tenants shall be
delivered to Buyer at the Closing, together with such instruments
of transfer as may be necessary to enable Buyer to succeed to
Seller's rights thereunder.
3.7. Survival. The provisions of this Paragraph 3
shall survive the Closing. Except as otherwise provided herein,
adjustments shall be made in accordance with the customs in
respect to title closing in Essex County, New Jersey. If any of
the foregoing cannot be apportioned at the Closing because of the
unavailability of the amounts which are to be apportioned, such
items shall be apportioned as soon as practicable after the
Closing. Five (5) Business Days prior to the Closing, Seller
shall furnish to Buyer a tentative statement of proposed
apportionments.
4. Title Executions.
4.1. Seller covenants and agrees that as of the
Closing Date, (a) the Land and the Building shall be free and
clear of all liens and encumbrances, except for those liens,
encumbrances and title exceptions set forth on Schedule 4 annexed
hereto (the "Permitted Encumbrances"), and (b) a title insurance
company selected by, and reasonably satisfactory to, Buyer (the
"Title Company") shall be willing to approve and insure, at
regular premium rates, such state of title under the standard
form ALTA owner's policy of title insurance, subject only to the
Permitted Encumbrances and the standard printed exclusions
contained in such form. Buyer will order a report of title to
the Land the Building from the Title Company and will furnish to
Seller's attorneys a copy thereof within 30 days after the date
hereof, together with a statement identifying the title
exceptions noted therein that do not constitute Permitted
Encumbrances. Seller shall cooperate with the Title Company in
connection with Buyer's obtaining title insurance for the
Property, insuring (at regular rates) that fee simple title to
the Property is vested in Buyer, subject only to the Permitted
Encumbrances. In furtherance and not in limitation of the
foregoing, at or prior to the Closing Seller shall deliver to the
Title Company such affidavits, certificates and other instruments
as are reasonably requested by the Title Company and customarily
furnished in connection with a transaction of a nature
contemplated by this Agreement.
4.2. Seller shall be entitled to reasonable
adjournments of the Closing, not to exceed 30 days in the
aggregate, for the purpose of eliminating any objections to
title, but (subject to the provisions of subparagraph 4.3 below),
nothing herein contained shall require Seller to bring any action
or proceeding, or incur any expense (except to the extent
provided in the next succeeding sentence) in order to render the
title to be in accordance with this Agreement. In the case of
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any exceptions to title which can be removed or insured against
by the Title Company solely by the payment of a liquidated sum of
money, provided such liquidated sum does not, in the aggregate,
exceed $750,000, Seller shall be obligated to pay, or deposit
with the Title Company, such liquidated sum for the removal of
such title exceptions and for the Title Company to omit same as
an exception to the title insurance policy, and Seller shall not
be entitled to an adjournment of the Closing for such purpose.
4.3. Notwithstanding anything contained in this
Paragraph 4 to the contrary, if, from time to time prior to the
Closing, either Seller or Buyer shall become aware of any
Voluntary Title Exceptions (as hereinafter defined), then Seller
or Buyer shall promptly notify the other party thereof, which
notice shall describe in reasonable detail the Voluntary Title
Exceptions(s) at issue. Seller shall discharge of record all
Voluntary Title Exceptions on or prior to Closing. For purposes
hereof, "Voluntary Title Exceptions" shall mean (i) title
exceptions that are knowingly created by any act or failure to
act by Seller, including, without limitation, any mortgage lien,
mechanic's lien, tax lien (except for any lien for real estate
taxes which are subject to adjustment pursuant to the provisions
of this Agreement), judgment lien, security interest,
reservation, easement, right of way and restrictive covenant;
provided, however, that the term "Voluntary Title Exceptions" as
used in this Agreement shall not include any Permitted Encum-
brances and any title exceptions that are expressly approved by
Buyer in writing.
4.4. If, as of the Closing Date, title to the Land and
the Building shall not be as provided in this Agreement, Buyer
shall have the option of either (a) terminating this Agreement,
in which event the Escrow Agent shall pay the Initial Deposit,
the Additional Deposit and the Final Deposit (hereinafter
collectively called the "Deposit") to Buyer and Seller shall
reimburse Buyer for Buyer's net cost of title examination,
whereupon neither party shall have any further rights or
obligations hereunder, or (b) accepting such title as Seller
shall be able to convey, without any reduction of the Purchase
Price or any credit or allowance against the same, except that if
there shall be an encumbrance which is not a Permitted
Encumbrance and which can be removed by the payment of a
liquidated sum of money, Buyer shall (subject to the limit
specified in the fourth sentence of subparagraph 4.1) be entitled
to an offset against the Purchase Price in an amount that does
not exceed such sum. The foregoing shall not, however, be deemed
to limit the unconditional obligation of Seller to discharge and
remove of record all Voluntary Title Exceptions at or prior to
Closing pursuant to the provisions of subparagraph 4.3 above.
The term "net cost of title examination" shall mean the expense
actually incurred by Buyer for (i) the amount, if any, charged by
the Title Company for the examination of title without the
issuance of a policy, (ii) updating the survey referred to on
Schedule 5 and (iii) obtaining violation search reports from
municipal departments of the governmental bodies having
jurisdiction.
4.5. If a search of the title to the Property
discloses judgments, bankruptcies or other returns against other
persons or entities having names the same as or similar to that
of Seller, Seller will at the Closing deliver to Buyer and the
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Title Company an affidavit that such judgments, bankruptcies or
other returns are not against Seller, and/or take such other
actions in respect of any of the foregoing as the Title Company
may reasonably require in order to omit such Title Exceptions
from the Title Policy.
5. Violations.
5.1. If at any time prior to the Closing the Land or
the Building is subject to any notes or notices of violation of
law or municipal ordinances, orders or requirements, that have
been noted in or issued by any federal, state or municipal
department having jurisdiction, and which have not been fully
remedied and discharged of record (the "Violations"), other than
(a) the Violations described in Schedule 5 hereto and (b) any
Violation that a Tenant is required to cure pursuant to its Lease
(any such Violation, other than a Violation of the type described
in the foregoing clause (a) and (b), being hereinafter called an
"Unpermitted Violation"), then, subject to the further provisions
of this Paragraph 5, Seller, at its expense, shall cure and
discharge each Unpermitted Violation prior to the Closing.
5.2. Notwithstanding anything contained in
subparagraph 5.1 above to the contrary, if the cost of curing the
Unpermitted Violations shall exceed $235,000 in the aggregate
(based upon a written estimate prepared by a registered architect
or licensed engineer selected by Seller and approved by Buyer,
which approval shall not be unreasonably withheld), then Seller
shall have the right to terminate this Agreement by written
notice delivered to Buyer not less than five (5) Business Days
prior to the date on which the Closing is scheduled to occur.
Any such notice of termination shall be accompanied by a copy of
the estimate of the aggregate repair costs for the Violations in
question. If Seller shall elect to so terminate this Agreement,
Buyer shall have the right, by written notice delivered to Seller
at or prior to the date on which the Closing is scheduled to
occur, to elect to accept title subject to such Unpermitted
Violations. In such event, (i) Seller's termination of this
Agreement shall be null and void and (ii) at the Closing Buyer
shall be entitled to a credit against the Purchase Price in the
amount of $235,000 (less any reasonable amounts expended by
Seller to cure any Unpermitted Violations). If this Agreement is
terminated pursuant to this subparagraph 5.2, then Escrow Agent
shall pay the Deposit to Buyer and Seller shall reimburse Buyer
for Buyer's net cost of title examination, whereupon neither
party shall have any further rights or obligations hereunder.
Buyer agrees to accept the Property subject to all Violations
other than Unpermitted Violations.
5.3. If either (i) Seller has not elected to terminate
this Agreement pursuant to Section 5.2 above or (ii) the
aggregate cost estimated to cure the Unpermitted Violations and
discharge the same of record does not exceed $235,000, and the
cure and discharge of one or more Unpermitted Violations has not
been completed prior to Closing, then at Closing Buyer shall
receive a credit against the Purchase Price in an amount
reasonably estimated to effect or complete such cure and
discharge. Upon written request of Buyer, Seller shall promptly
furnish to Buyer written authorization as may be necessary for
Buyer to make any necessary searches for purposes of determining
whether any notices of Violations have been issued with respect
to the Property and whether the same have been discharged of
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record.
6. Representations and Warranties of Seller. Seller
represents and warrants to Buyer as follows, and, unless
otherwise expressly provided herein, such representations and
warranties shall be true and correct in all material respects as
of the date hereof and shall be true and correct in all material
respects as of the Closing Date (except for changes in facts
expressly permitted hereunder):
6.1. Leases.
(a) Schedule 2 hereto is a correct and complete list
of all Leases affecting any portion of the Building, setting
forth with respect to each (i) the name of the Tenant, (ii) the
date of the Lease and any modifications or supplements thereto
(and any separate written guaranties of the Lease, if any), (iii)
the basic annual rent currently payable by the Tenant, (iv) the
escalations payable by the Tenant, (v) the space demised, (vi)
the expiration date, (vii) all renewal options, (viii) all
termination and/or contraction options exercisable by a Tenant,
(ix) the amount of the deposit held by Seller thereunder, if any,
and the form thereof (i.e. cash, letter of credit, or other form
of security), (x) any work allowances payable under the Lease
which have not been totally disbursed, (xi) any free rent period
which has not yet expired, and (xii) any other concessions or
monetary obligations of the landlord to a Tenant which have not
yet expired or been paid in full, as the case may be.
(b) There are no leases, tenancies, licenses or other
occupancy agreements to which Seller is a party or by which
Seller may be bound for any portion of the Land or Building other
than the Leases identified on Schedule 2; and Seller has
delivered or made available to Buyer (or will, during the Study
Period pursuant to Paragraph 32 hereof, deliver and make
available to Buyer) true and complete copies of all of the Leases
and related agreements listed on Schedule 2.
(c) Except as otherwise specifically set forth in
Schedule 2:
(i) All of the Leases are in full force and
effect in accordance with their respective terms, and none
of the Leases has been modified, amended, renewed or
extended;
(ii) All tenant improvement and build out work
required to be performed by the landlord under the Leases
has been done or will be performed prior to the Closing;
(iii) All construction allowances or other sums
to be paid to any of the Tenants have been or will be paid
in full prior to the Closing or funds sufficient to satisfy
any allowance delivered to Buyer;
(iv) The term of each of the Leases has
commenced and each Tenant thereunder is occupying the space
demised to it and has commenced the payment of rent, except
that X.X. Xxxxxx, Inc. is paying its rent but is not
occupying its space;
(v) There is no outstanding and uncured claim
of default made under any of the Leases on the part of any
party thereto;
(vi) None of the Tenants has asserted, prior to
the date hereof, any defense, setoff or counterclaim with
regard to its tenancy or its Lease; and no action,
proceeding or arbitration is pending on the date hereof with
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any Tenant in respect of its tenancy or its Lease;
(vii) There are no written or oral promises,
understandings or commitments between Seller and any Tenant
other than those contained in the Leases and the other
instruments listed on Schedule 2;
(viii) All rents are current except as may
otherwise be set forth in Schedule 2;
(ix) No Tenant has prepaid its rent beyond the
current rent period;
(x) there are no "take-over" agreements or
similar agreements whereby Seller has agreed to assume or
pay the obligations of any Tenant under a lease in another
building;
(xi) Seller has not applied any security held
under any Lease to the obligations of the Tenant thereunder
which security has not heretofore been restored;
(xii) Seller has not received a notice from any
Tenant objecting to Seller's computation of additional rents
or escalation charges which remains outstanding;
(xiii) all leasing commissions payable in respect
of any Lease (except those which may be payable by Buyer in
connection with any Lease entered into after the date hereof
pursuant to subparagraph 8.2 below) have been fully paid or
will be paid prior to the Closing Date. Except as set forth
in Schedule 2 annexed hereto (and except with respect to any
new Lease entered into after the date hereof pursuant to
subparagraph 8.2 below), no brokerage commission or
compensation of any kind is due or will be due in connection
with the initial term of any Leases; and
(xiv) no Tenant has any right of first refusal,
option or other preferential right to purchase the Property
or any portion thereof or any ownership interest therein.
(d) Schedule 2-A annexed hereto sets forth (i) all of
the Leases which contain renewal options and/or expansion options
which have not yet been exercised (or which have been exercised
but with respect to which all of the brokerage commissions and
fees relating thereto have not been paid in full) and (ii) the
brokerage commissions now or hereafter payable by the landlord in
connection with each such expansion option and/or renewal option.
6.2. Service Contracts. Schedule 3 hereto is a
correct and complete list of all Service Contracts affecting the
Property. The Service Contracts have not been modified or
amended except as set forth on Schedule 3; and Seller has
delivered to Buyer (or will, during the Study Period pursuant to
Paragraph 32 hereof, deliver and make available to Buyer) true
and complete copies of all Service Contracts and all modifica-
tions thereof. Except as set forth on Schedule 3 hereto, each of
the Service Contracts is cancelable upon not more than 30 days
notice. Each of the Service Contracts is in full force and
effect in accordance with its terms. No written notice of
material default on the part of the other party to any of the
Service Contracts has been sent by Seller, other than a default
notice setting forth a material default which, as of the date
hereof, has been cured, and no written notice of material default
or breach on the part of Seller under any of the Service
Contracts has been received by Seller, other than a default
notice setting forth a default which, as of the date hereof, has
been cured. Seller shall perform all of Seller's obligations to
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be performed under the Service Contracts to the Closing Date.
6.3. No Employees. With the exception of Xxxxx Xxxxxx
who will not remain with the Building after Closing, there are no
persons employed by Seller in connection with the operation and
maintenance of the Property, and Seller is not a party to any
union contract or collective bargaining agreement with respect to
the Property or the operation thereof.
6.4. Violations. Schedule 5 is a correct and complete
list of all Violations of record existing as of the date hereof.
6.5. Litigation. Except as set forth in Schedule 6
annexed hereto, there are no actions, suits or proceedings
pending or, to the best knowledge of Seller, threatened against
Seller or the Property, at law or in equity, before any
governmental authority, court or arbitration panel.
6.6. Condemnation and Zoning. Seller has not received
any 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
Property or any part thereof, (ii) any proposed or pending
proceeding to change or redefine the zoning classification of all
or any part of the Property, (iii) any proposed or pending
special assessments which affect the Property or any portion
thereof, or (iv) any proposed change(s) in any road patters or
grades with respect to the roads providing a means of ingress and
egress to the Property. Seller agrees to furnish Buyer with a
copy of any such notice received within five (5) days after
receipt.
6.7. No Public Assessments. Seller has not received
any notice indicating that the Property is currently being or
will hereafter be assessed for public improvements which are to
be undertaken in the future, are now in progress or are already
completed.
6.8. Insurance Coverages. Schedule 7 annexed hereto
accurately sets forth all insurance policies covering the
Property, the limits of coverage, the deductible amounts, and the
expiration dates of such policies. Seller shall keep such
insurance in full force and effect through the Closing Date.
Seller has not received any written notice from any insurance
company or agent thereof which has issued a policy with respect
to the Property, or any portion thereof, or by any board of fire
underwriters (or other body exercising similar functions) which
notice has claimed any defect or deficiency or requested
performance of any repairs, alterations or other work to the
Property as a condition of maintaining any policy of insurance in
effect.
6.9. Permits. Schedule 8 annexed hereto sets forth
(i) all of the Permits for the Property and (ii) all of the
Warranties which are still in effect and which have been given by
any contractor or manufacturer in favor of Seller in connection
with the construction, repair or renovation of the Building or
any part thereof. The Permits and Warranties are in full force
and effect, shall not be modified, amended or rescinded prior to
the Closing Date, and are fully assignable to Buyer. All
applicable charges and fees for the Permits have been paid in
full.
6.10. No Assessment Reduction Proceedings. There are
no proceedings pending for the reduction of the assessed
valuation of the Property or any portion thereof.
11
6.11. No Hazardous Substances. To the best knowledge
of Seller, (i) no Hazardous Substances and Waste (as hereinafter
defined) are present, or were installed, exposed, released or
discharged in, on or under the Property, and (ii) the Property
has been used and operated in compliance with all Environmental
Laws (as hereinafter defined). Seller has not received any
written notice from any governmental authority claiming any
violation of any federal, state or local statute, ordinance,
regulation, administrative order or court order or decree
pertaining to any Hazardous Substance on, under or over the
Property or demanding clean-up or any other remedial action, or
payment or contribution for any environmental contamination or
any damages attributable thereto. The existing underground
storage tank at the Property (which tank supplies fuel oil to the
emergency generator) (i) has been duly registered with all
applicable governmental authorities (including the New Jersey
Department of Environmental Protection and Energy), (ii) complies
with all applicable Environmental Laws and (iii) has, since
February, 1993, been upgraded to contain appropriate leak
detection and spill and overfill control systems as required by
applicable Environmental Laws. Until the Closing Seller shall
(x) maintain and operate the Property in compliance with all
Environmental Laws, (y) make all disclosures required by Seller
under all applicable Environmental Laws, and (z) comply (or cause
compliance) with all orders issued thereunder.
6.12. Representations Regarding Seller.
(a) Seller is a limited partnership duly organized
and validly existing under the laws of the State of New Jersey,
and has the full power and authority to execute and deliver this
Agreement and all documents now or hereafter to be executed and
delivered by it pursuant to this Agreement (the "Seller's
Documents") and to perform all obligations arising under the
Seller's Documents. This Agreement constitutes, and the Seller's
Documents will each constitute, the legal, valid, and binding
obligation of Seller, enforceable in accordance with their
respective terms, covenants, and conditions.
(b) This Agreement and the Seller's Documents (and
the transactions contemplated hereby and thereby) do not and will
not contravene any provision of the partnership agreement of
Seller, any judgment, order, decree, writ or injunction, any
provision of any existing law or regulation or any other docu-
ments affecting Seller. No authorization, consent or approval of
any partner, creditor or governmental authority for the
consummation of the transactions contemplated by this Agreement
by Seller is necessary (or all such authorizations, approvals and
consents have already been obtained).
(c) (A) The general partner of Seller executing this
Agreement is a corporation duly organized, authorized and
qualified to do business in its state of incorporation and has
the power to enter into and consummate the transactions
contemplated by this Agreement as the general partner of Seller,
and to execute any and all documents to effectuate same on behalf
of Seller, (B) the transactions contemplated by this Agreement do
not violate any applicable provisions of the charter, by-laws, or
other documents affecting said corporation, (C) shareholder
approval of the transactions contemplated by this Agreement has
either been obtained by such corporate general partner or is not
required, and (D) no authorization, consent or approval of any
12
shareholder, officer, director, creditor or governmental
authority for the execution of this Agreement by said corpo-
ration, in its capacity as the general partner of Seller, is
necessary (or all such authorizations, approvals and consents
have already been obtained).
(d) Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
(e) No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy,
or other proceedings are pending or, to the best of Seller's
knowledge, threatened against Seller, nor is Seller contemplating
commencing any such proceedings. Seller has not been a debtor
under any case commenced under the United States Bankruptcy Code.
6.13. Survival. The representations and warranties set
forth in this Paragraph 6 shall survive the Closing.
7. Representations and Warranties of Buyer. Buyer
represents and warrants to Seller as follows, and such
representations and warranties shall be true and correct in all
material respects on the date hereof and shall be true and
correct in all material respects as of the Closing Date:
7.1. Organization and Authority. Buyer is a limited
liability company duly organized and validly existing under the
laws of the State of Delaware, and has full power and authority
to execute and deliver this Agreement and all other documents now
or hereafter to be executed and delivered by it pursuant to this
Agreement (the "Buyer's Documents") and to perform all obliga-
tions of Buyer arising under Buyer's Documents. This Agreement
constitutes, and the Buyer's Documents will each constitute, the
legal, valid and binding obligations of Buyer, enforceable in
accordance with their respective terms, covenants and conditions.
7.2. No Violation; No Consents Necessary. This
Agreement and the Buyer's Documents (and the transactions
contemplated hereby and thereby) do not and will not contravene
any provision of the operating agreement or articles of formation
of Buyer, any judgment, order, decree, writ or injunction, or any
provision of any existing law or regulation or any other docu-
ments affecting Buyer. No authorization, consent or approval of
any member, creditor or governmental authority for the
consummation of the transactions contemplated by this Agreement
by Buyer is necessary (or all such authorizations, approvals and
consents have already been obtained).
7.3. Survival. The representations and warranties set
forth in this Paragraph 7 shall survive the Closing.
8. Covenants of Seller.
8.1. Operation of the Property. Seller shall, between
the date hereof and the Closing, continue to operate and maintain
the Property in the ordinary course in accordance with its normal
practices and procedures customarily followed by Seller in the
operation, maintenance and repair of the Property prior to the
date hereof. In furtherance (and not in limitation) of the
foregoing, Seller shall cause to be made all repairs and
replacements to the Property so as to keep the same in
substantially its present condition, except for (i) reasonable
wear and tear, natural deterioration and damage from the elements
and (ii) damage or destruction resulting from fire or other
casualty (which shall be governed by the provisions of Paragraph
10 below). Seller agrees that it shall not remove any Personal
13
Property from the Building unless the items so removed are
immediately replaced with other items of Personal Property of
equal or greater value and utility.
8.2. Leases. Except as hereinafter provided, Seller
shall not cancel, modify or extend (except pursuant to existing
renewal options in favor of Tenants) any Lease or enter into any
new Lease, without Buyer's prior written consent in each
instance. During the Study Period, Buyer agrees that it shall
not unreasonably withhold its consent to a new Lease, provided
that the proposed new Lease satisfies the leasing criteria set
forth on Schedule 9 annexed hereto and made a part hereof. After
the Study Period has expired, Seller shall not enter into any new
Lease without the prior written consent of Buyer, which consent
may be withheld in Buyer's sole and absolute discretion.
Notwithstanding the foregoing, Seller may, without Buyer's
consent, terminate any Lease under which the Tenant has defaulted
beyond the applicable notice and grace period. If Buyer's
consent to a new Lease or other transaction is required under
this subparagraph 8.2, but Buyer does not object thereto in
writing within ten (10) days after Buyer has received Seller's
request for such consent, then Buyer will be deemed to have given
such consent and will confirm such consent in writing upon
demand. Any leasing commissions payable in connection with any
Lease or extension entered into by Seller in accordance with this
subparagraph 8.2, and the cost of any improvements required to be
made by the landlord in the space to which such Lease or
extension relates, shall be apportioned at Closing between Seller
and Buyer according to the relative portions of the initial term
of such Lease or extension that fall before and after the
Closing. If, in any instance described in the preceding
sentence, Seller, as of the Closing Date, shall not have
theretofore paid the portion of the leasing commissions or cost
of improvements for which Seller is responsible, then Buyer shall
be entitled to a credit against the Cash Portion of the Purchase
Price in an amount equal to such unpaid portion for which Seller
is responsible, and to the extent that the same is so credited,
Buyer shall make payment of such portion of such leasing
commissions and costs of improvements. Within five (5) Business
Days after receipt of a request from Buyer given from time to
time, Seller shall deliver to Buyer an updated rent roll for the
Building and a then current list of rent arrearages with respect
to all of the Tenants.
8.3. Insurance. Between the date hereof and the
Closing Date, Seller shall keep in full force and effect with
respect to the Property the existing policies of insurance
providing coverage, as described on Schedule 7 annexed hereto.
8.4. Service Contracts. Seller shall not, without
Buyer's consent, which shall not be unreasonably withheld, (i)
enter into any new Service Contract with respect to the Property
which is not terminable at or prior to the Closing or (ii) allow
any Permit to expire or otherwise be terminated.
8.5. No Mortgages or Transfers. Seller shall not
mortgage, pledge or create any contractual lien, charge or any
other encumbrance (or agree to do so) in respect of the Property
or any part thereof. Seller shall not sell or transfer any
portion of the Property.
8.6. Access to the Property. Subject to Paragraph 32,
Seller will allow Buyer and its agents and representatives to
14
inspect and examine the Property, and all books, records and
accounts relating to the operation thereof, at all reasonable
times upon reasonable notice.
8.7. Estoppel Certificates. Seller shall use all
reasonable efforts to obtain an estoppel certificate from each
Tenant substantially in the form of Exhibit A annexed hereto (the
"Estoppel Certificates"), which Estoppel Certificates shall be
dated not earlier than 30 days prior to the Closing Date.
9. Assessments. Seller represents and warrants to Buyer
that it has received no notice, and has no knowledge, of any
unconfirmed or pending assessments against the Property. If on
the Closing Date the Property or any part thereof shall be or
shall have been affected by an assessment or assessments which
are or may become payable in annual installments, of which the
first installment is then a charge or lien, or has been paid or
is due and payable, 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, shall be
deemed to be due and payable and to be liens upon the Property
and shall be paid and discharged by Seller upon the Closing.
10. Casualty and Condemnation.
10.1. Procedure Upon Casualty. (a) For purposes of
this Paragraph 10, the following terms shall have the following
meanings:
"Casualty" means a fire, vandalism, act of God, or
other casualty or cause which causes damage or injury to the
Property.
"Major Casualty" means a Casualty which (x) results in
Restoration Costs in excess of $235,000 and (y) will require (as
reasonably determined by an architect or engineer selected by
Seller and reasonably approved by Buyer (the "Estimator")) more
than 120 days from the occurrence of the Casualty to fully repair
and restore the Property.
"Restoration Costs" means, as of any date with respect
to any Casualty, the cost to be incurred, from and after such
date, to repair or restore (as reasonably determined by the
Estimator) the damage to the Property.
(b) If a Casualty shall occur prior to the Closing,
then within ten (10) Business Days after such occurrence, Seller
shall deliver to Buyer a written notice (the "Casualty Notice")
describing the Casualty in question. The Casualty Notice shall
be accompanied by a statement from the Estimator setting forth
the estimated Restoration Costs and the estimated time necessary
to repair the Property to its condition immediately prior to such
Casualty.
(c) If the Casualty is not a Major Casualty, then
Buyer shall have the right, exercisable by written notice given
to Seller within ten (10) Business Days after Buyer has received
the Casualty Notice, to either (i) require that Seller complete
the necessary repairs and restoration of the Property at Seller's
cost or (ii) accept the Property subject to such Casualty. If
Buyer does not elect to accept title to the Property subject to
such Casualty as aforesaid, then Seller promptly shall undertake
to complete the necessary repairs and restoration.
(d) If the Casualty is a Major Casualty, then Buyer
shall have the right to terminate this Agreement by giving
written notice to Seller within ten (10) Business Days after
Buyer's receipt of the Casualty Notice. If Buyer so elects to
15
terminate this Agreement, then the Deposit shall be refunded to
Buyer and thereafter this Agreement shall be of no further force
or effect.
(e) If either (x) there is a Major Casualty and Buyer
does not elect to terminate this Agreement within ten (10)
Business Days after receipt of the Casualty Notice as set forth
in subparagraph 10.1(d) above, or (y) there is a Casualty which
is not a Major Casualty and Buyer elects to accept the Property
subject to such Casualty as set forth in subparagraph 10.1(c)
above, then the following shall apply:
(i) the Closing shall take place without any
abatement of the Purchase Price;
(ii) at the Closing Seller shall (x) deliver to
Buyer all insurance proceeds which Seller has collected, (y)
pay to Buyer any applicable deductible under the "all risk"
insurance coverage maintained by Seller with respect to such
Casualty and (z) assign to Buyer all of Seller's rights to
such insurance proceeds; and
(iii) Seller shall cooperate with Buyer in any
loss adjustment negotiations, legal actions and agreements
with the applicable insurance company, and Seller will not
settle any insurance claims or legal actions relating
thereto without Buyer's prior written consent.
10.2. Eminent Domain. If, prior to the Closing, the
entire Property is taken by eminent domain, this Agreement shall
be deemed terminated. If only part of the Property is so taken,
Buyer shall have the option of (a) proceeding with the Closing
and accepting the Property as affected by such taking, together
with all compensation and damages awarded and the right to
receive the same, or (b) terminating this Agreement, except that
in the event of a partial taking of part of the parking area that
does not materially and adversely affect the number of spaces
and/or the ingress and egress from the streets upon which the
Property fronts, Buyer shall not have the right to terminate. If
Buyer elects option (a) above, Seller agrees to assign to Buyer
at Closing its rights to such compensation and damages (and pay
over to Buyer any such compensation and damages already
received), and will not settle any proceedings relating to such
taking without Buyer's prior written consent. If Buyer elects
option (b) above, then Escrow Agent shall pay the Deposit to
Buyer, this Agreement shall terminate and be of no further force
or effect, and the parties shall have no further rights or
obligations hereunder.
10.3. Express Agreement. The provisions of this
Paragraph 10 shall be considered an express agreement governing
any case of damage, destruction or taking of the Property or any
part thereof by fire or other casualty, or by eminent domain, and
(to the extent permitted by applicable law) any law now or
hereafter in effect which is inconsistent with the provisions of
this Paragraph 10 shall have no application to this Agreement.
11. Brokers.
11.1. Seller represents that Xxxxxxxxxxx-Xxxxxxx
Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Broker"), is the only broker, finder, agent or similar entity
with whom Seller negotiated or dealt in connection with this
Agreement and the conveyance of the Property to Buyer pursuant
hereto. Seller agrees to pay Broker its fee, commission and/or
compensation for the value of services rendered (collectively
16
"Compensation") pursuant to separate agreement with Broker. From
the Compensation it receives, Broker shall pay cooperating broker
(below named) its fee, commission and/or compensation for the
value of services rendered in accordance with agreement between
Broker and Cooperating Broker, neither Seller nor Buyer being a
party thereto.
11.2. Buyer represents that Xxxxxxx Xxxxx (the
"Cooperating Broker") and Xxxxxxx & Xxxxxxxxx of New Jersey, Inc.
("C&W") are the only brokers, finders, agents or similar entities
with whom Buyer negotiated or dealt in connection with this
Agreement and the conveyance of the Property by Seller pursuant
hereto. Buyer further represents to Seller that (i) Buyer has
engaged C&W as a consultant only in connection with this
transaction (and not as a broker) and (ii) Buyer shall pay all
sums due to C&W in connection with this transaction pursuant to a
separate agreement between Buyer and C&W.
11.3. Seller agrees to defend, indemnify and hold
harmless Buyer from and against any loss, cost, damage,
liability, and expense (including, without limitation, reasonable
counsel fees) suffered, paid or incurred by Buyer arising out of
or in connection with (i) any breach of the representations of
Seller set forth in subparagraph 11.1 above and (ii) any claim
for a fee, commission and/or compensation for the value of
services rendered made against Buyer by Broker or by any broker,
finder, agent or similar entity alleging to have acted for or
dealt with Seller in the transaction contemplated hereby.
11.4. Buyer agrees to defend, indemnify and hold
harmless Seller from and against any loss, cost, damage,
liability and expense (including, without limitation, reasonable
counsel fees) suffered, paid or incurred by Seller arising out of
or in connection with (i) any breach of the representations of
Buyer set forth in subparagraph 11.2 above and (ii) any claim for
fee, commission and/or compensation for the value of services
rendered made against Seller by any broker, finder, agent or
similar entity (other than Broker or Cooperating Broker) alleging
to have acted for or dealt with Buyer in connection with the
transaction contemplated hereby (including, without limitation,
C&W).
11.5. The provisions of this Paragraph 11 shall
survive the Closing or the termination of this Agreement.
12. The Closing. The Closing (the "Closing") of the
transactions contemplated hereby shall take place at 10:00 a.m.
on the date which is forty five (45) days after the expiration of
the Study Period; provided, however, that if such date is not a
Business Day, then the Closing shall take place on the first
Business Day that is a Tuesday, Wednesday or Thursday immediately
succeeding such date (said date, or any date to which the Closing
shall be accelerated or adjourned, is herein called the "Closing
Date"). The Closing shall occur at the offices of Gold &
Xxxxxxx, LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or,
at the option of Buyer, at the offices of the attorneys for
Buyer's lender (if any).
13. Deliveries at Closing. The following deliveries shall
be made at the Closing:
13.1. Seller shall execute, acknowledge and deliver a
bargain and sale deed with covenants against Grantor's Acts (or
the New Jersey equivalent thereof) in proper form for recording,
pursuant to which Seller shall convey the Land and the Building
17
to Buyer.
13.2. Seller and Buyer shall execute, acknowledge and
deliver counterparts of an assignment of the landlord's interest
in the Leases and the security deposits thereunder, which
assignment shall be in the form attached hereto as Exhibit C.
13.3. Seller shall execute, acknowledge and deliver a
xxxx of sale, in the form attached hereto as Exhibit D,
transferring all of the Personal Property to Buyer.
13.4. Seller shall execute, acknowledge and deliver an
assignment, in the form attached hereto as Exhibit E, assigning
to Buyer (i) all of the Assigned Service Contracts that Buyer has
elected to accept pursuant to the provisions of subparagraph 32.3
below and (ii) the Warranties.
13.5. To the extent applicable, Seller shall execute,
acknowledge and deliver the form attached hereto as Exhibit E,
transferring to Buyer all of Seller's right, title and interest
in and to the Permits.
13.6. Seller and Buyer shall execute and deliver joint
notices to all Tenants advising them of the sale of the Building,
the assignment of the Leases, the transfer to Buyer of all
deposits thereunder (less any valid deductions therefrom),
Buyer's address and where future rent payments are to be made,
and such other matters as are required by applicable laws or
pursuant to the terms of the Leases or which either party may
reasonably request, as set forth on Exhibit G hereof.
13.7. Seller shall deliver to the Title Company such
evidence as may be reasonably required by the Title Company, of
the due authorization, execution and delivery of this Agreement
and the Seller's Documents.
13.8. Seller shall deliver to Buyer original Tenant
files, employee records, unexpired Warranties, the Permits, the
Service Contracts, the Leases, the Plans, and such other
instruments and documents affecting the Property as may be in
Seller's possession. Seller may retain copies of such
instruments and documents as Seller may reasonably require for
its own use following the Closing. To the extent executed
originals of such instruments and documents are not in Seller's
possession and are not otherwise readily obtainable by Seller,
Seller shall deliver copies of all such instruments and
documents; any such copies required to be delivered to Buyer
hereunder shall have attached thereto a certificate duly executed
by Seller certifying that said copy is, to Seller's best
knowledge, a true and complete copy of the same and that the
original thereof cannot be located after a diligent search.
13.9. Seller and Buyer shall execute and deliver
notices to the contractors under the Assigned Service Contracts,
advising them of the sale of the Property and the assignment to
Buyer of the Assigned Service Contracts and any deposits
thereunder. With respect to those Service Contracts that are not
Assigned Service Contracts, Seller shall deliver true copies of
its letters terminating such Service Contracts.
13.10. Seller shall deliver to the Title Company
certified or official bank checks to the order of the appropriate
governmental officials in payment of all applicable real property
transfer taxes and documentary stamps, and Seller and Buyer shall
execute, acknowledge and deliver to the Title Company the tax
return(s) required in connection therewith. By notice to Buyer
given at least five (5) Business Days before the Closing, Seller
18
may require Buyer to deliver any or all of such checks, in which
case Buyer will receive a credit against the Purchase Price in
the amount of the check(s) so delivered.
13.11. Seller shall execute (or cause one or more of
its officers or partners to execute), acknowledge and deliver an
affidavit of title in form customarily used by Title Companies
for similar properties in Essex County, New Jersey, and such
other affidavits as the Title Company shall reasonably require,
in order to omit from its title insurance policy all exceptions
for judgments, bankruptcies or other returns against other
persons or entities whose names are the same as or similar to
Seller's name.
13.12. Seller shall deliver to Buyer the real estate
tax bills for the tax year in which the Closing occurs.
13.13. Seller shall deliver to Buyer an updated
schedule of Leases, similar in form to Schedule 2, and certified
by Seller as correct and complete as of the Closing Date.
13.14. Seller shall deliver to Buyer (a) Estoppel
Certificates received by Seller prior to the Closing from Tenants
in response to Seller's requests for such certificates pursuant
to subparagraph 8.7, and (b) with respect to the Tenants who do
not deliver Estoppel Certificates prior to the Closing, a
certificate of Seller with respect to the matters such Tenants
were requested to certify (to the extent not already covered in
the certification delivered pursuant to subparagraph 13.13).
13.15. Seller shall deliver to Buyer (a) a certifi-
cation in the form of Exhibit B attached hereto (the "FIRPTA
Certification"), verified as true and signed and sworn to under
penalties of perjury by a general partner of Seller. Seller
understands that the FIRPTA Certification will be retained by
Buyer, and will be made available by Buyer to the Internal
Revenue Service on request.
13.16. Seller and Buyer shall execute a notice to the
Escrow Agent that the Closing has been consummated.
13.17. Seller shall deliver to Buyer all keys to all
doors and locks in the Building and all combinations to all safes
in the Building which are owned by Seller.
13.18. Seller shall deliver to Buyer an assignment of
all tenant proceedings, if any, in form reasonably satisfactory
to Buyer, assigning to Buyer all of Seller's right, title and
interest in and to all pending actions brought by Seller against
any of the then existing Tenants, including, without limitation,
all summary proceedings for the eviction of then existing Tenants
under any of the Leases.
13.19. Seller shall execute and deliver to Buyer an
assignment, in the form attached hereto as Exhibit H, of all
General Intangibles.
13.20. Seller shall deliver to Buyer the original of
the ISRA letter from the New Jersey Department of Environmental
Protection, as more particularly set forth in Section 31.2 below.
13.21. Seller and Buyer shall execute and deliver to
each other such other instruments and documents, and shall pay or
cause to be paid such sums of money, to which the other party may
be entitled pursuant to any of the other provisions of this
Agreement. Each instrument and document to be delivered at the
Closing, the form of which is not attached to this Agreement,
shall otherwise be reasonably satisfactory in form and substance
to Seller and Buyer.
19
14. Expenses. Seller shall pay all New Jersey real estate
transfer taxes and fees payable with respect to the sale of the
Property to Buyer. Buyer shall pay all fees, charges, and
expenses incurred or payable for the issuance of the title report
and Buyer's title insurance policy pursuant thereto, the cost of
obtaining searches for violations, the cost of obtaining and/or
redating any survey of the Property, and the cost of recording
any document contemplated hereby; except that Seller shall pay
the cost of recording any instrument required pursuant to
Paragraph 4 to cure title defects, and Seller shall pay for the
net cost of title examination if this Agreement is terminated by
Buyer pursuant to any of the provisions hereof entitling Buyer to
so terminate. Each party shall pay its own attorneys' and
accountants' fees. The provisions of this Paragraph 14 shall
survive the Closing or the termination of this Agreement.
15. Indemnities.
15.1. Seller shall defend, indemnify, and hold
harmless Buyer from all loss, expense (including reasonable
counsel fees), damage, and liability resulting from (a) claims of
mechanics and materialmen based on work performed on or at the
Property, and materials supplied to Seller or the Property, prior
to the Closing, (b) claims of whatever nature (including, without
limitation, for bodily injury, wrongful death, or property
damage) against Buyer or the Property based on causes of action
which arose or accrued prior to the Closing, and (c) claims by
Tenants, employees, contractors under Service Contracts, or
utility companies, with respect to matters that occurred or
obligations which accrued prior to the Closing.
15.2. Buyer shall defend, indemnify and hold Seller
harmless from all loss, expense (including reasonable counsel
fees), damage and liability resulting from (a) claims of
mechanics and materialmen based on work performed on or at the
Property, and materials supplied to Buyer or the Property, after
the Closing, (b) claims of whatever nature (including, without
limitation, for bodily injury, wrongful death or property damage)
against Seller based on causes of action that arise or accrue
after the Closing, and (c) claims by Tenants, employees,
contractors under Service Contracts or utility companies with
respect to matters that occur or obligations that accrue after
the Closing.
15.3. Each party hereto (each, an "indemnified party")
agrees that if and to the extent that a claim covered by the
indemnities provided in this Paragraph 15 is also covered by
insurance maintained by the indemnified party, then the
indemnified party shall first seek recovery from its insurer
before seeking indemnification recovery against the indemnifying
party under the indemnities provided in this Paragraph 15.
15.4. The provisions of this Paragraph 15 shall
survive the Closing or any termination of this Agreement.
16. Conditions to Closing.
16.1. Buyer's Conditions to Closing. Buyer's
obligation to purchase the Property is subject to the
satisfaction of the following conditions precedent, any or all of
which may be waived by Buyer (all of which waivers shall be
expressly and specifically made in writing to be enforceable
against Buyer):
(a) This Agreement shall be in full force and effect
and there shall not then exist any event which would allow Buyer
20
to terminate this Agreement pursuant to the express terms hereof;
(b) Seller shall have executed and/or delivered each
of the documents and items to be executed and/or delivered by
Seller pursuant to this Agreement, including, without limitation,
the documents enumerated in Paragraph 13 above;
(c) title to the Property shall be as required by
Paragraph 4 above, and the Title Company shall have issued a
title policy to Buyer (the "Title Policy") following the payment
by Buyer of the insurance premium, insuring that title to the
Property has vested in Buyer, subject only to the Permitted
Encumbrances and/or such matters which Buyer has waived or agreed
to take title subject to without any abatement to or credit
against the Purchase Price;
(d) Seller shall have delivered to Buyer Estoppel
Certificates from Tenants leasing, in the aggregate, not less
than eighty percent (80%) of the rented square feet in the
Building, which Estoppel Certificates shall confirm the
information set forth on Schedule 2 and shall be dated not
earlier than 30 days prior to the Closing Date;
(e) The representations and warranties of Seller
contained in this Agreement (including, without limitation, the
representations and warranties of Seller set forth in Paragraph 6
above) shall be true and correct in all material respects as of
the Closing Date, and shall be reiterated by Seller to the effect
that the same are true and correct in all material respects as of
the Closing Date;
(f) Seller shall have paid all sums that are to be
paid at or prior to Closing by Seller under this Agreement; and
(g) Seller shall have performed and complied with all
of the other material covenants and material obligations of
Seller set forth in this Agreement.
16.2. Seller's Conditions to Closing. Seller's
obligation to sell the Property is subject to the satisfaction of
the following conditions precedent, any or all of which may be
waived by Seller (all of which waivers shall be expressly and
specifically made in writing to be enforceable against Seller):
(a) This Agreement shall be in full force and effect
and there shall not then exist any event which would allow Seller
to terminate this Agreement pursuant to the express terms hereof;
(b) Buyer shall have paid to Seller (or as Seller
shall direct in writing, as the case may be), the Cash Balance of
the Purchase Price due to Seller as herein provided, and shall
have paid all other sums that are to be paid at or prior to
Closing by Buyer under this Agreement;
(c) Buyer shall have executed, acknowledged (where
appropriate) and delivered to Seller counterpart originals of the
instruments referred to in Paragraph 13 above which are to be
executed by Buyer;
(d) The representations and warranties of Buyer
contained in Paragraph 6 above shall be true and correct in all
material respects as of the Closing Date;
(e) Buyer shall have performed and complied with all
of the other material covenants and material obligations of Buyer
set forth in this Agreement.
17. As Is. Buyer has examined and inspected the physical
nature and condition of the Property and it is purchasing the
same "as is" on the date hereof, subject to reasonable wear and
tear and the provisions of Paragraphs 5, 10 and 32 hereof.
21
Neither Seller nor any agent, partner, employee, or
representative of Seller has made any representation whatsoever
regarding the Property or any part thereof, or anything relating
to the subject matter of this Agreement, except as expressly set
forth in this Agreement. Buyer, in executing, delivering and
performing this Agreement, has not and does not rely upon any
statement, information, or representation to whomsoever made or
given, whether to Buyer or others, and whether directly or
indirectly, verbally or in writing, made by any person, firm or
corporation, except as expressly set forth in this Agreement or
the Seller's Documents. Nothing contained in this Paragraph 17
shall (i) be deemed to limit the rights of Buyer, and the
obligations of Seller, under the provisions of Paragraphs 5, 7
and 32 of this Agreement or (ii) affect Seller's liability, if
any, arising from any breach of, or inaccuracy of, its specific
representations and warranties contained in this Agreement.
18. Escrow Provisions. The Deposit shall be held in escrow
by Escrow Agent on the following terms and conditions:
18.1. The Deposit shall be invested in either the
certificates of deposit of a commercial bank which is a member of
the New York Clearing House Association or in United States
Treasury bills or notes. In either case, the maturity of the
investment shall not exceed thirty (30) days or the Closing Date,
whichever is earlier. If such maturity shall occur prior to the
Closing, the Deposit (which, for the purposes of this Agreement,
shall include any interest collected thereon so that whichever
party is entitled to the Deposit will also receive the interest
collected thereon) shall be reinvested under the same terms and
conditions.
18.2. Escrow Agent shall deliver the Deposit to Seller
or Buyer, as the case may be, on the following conditions:
(a) To Seller upon receipt of a notice signed by both
Seller and Buyer stating that the Closing has been consummated;
(b) To Seller, upon receipt of demand therefor signed
by Seller stating that Buyer has defaulted (after the receipt of
any applicable notice and the expiration of any applicable grace
period) in the performance of its obligations under this
Agreement; provided, however, that Escrow Agent shall not honor
such demand until at least ten (10) days after the date on which
Buyer shall have received a copy of such demand from Escrow
Agent, nor thereafter following such ten (10) day period if
Escrow Agent shall have received a notice of objection from Buyer
given in accordance with the provisions of subparagraphs 18.3 or
18.4; or
(c) To Buyer, upon receipt of demand therefor signed
by Buyer stating that either Seller has defaulted (after the
receipt of any applicable notice and the expiration of any
applicable grace period) in the performance of its obligations
under this Agreement or that Buyer is otherwise entitled to the
refund of the Deposit pursuant to the terms of this Agreement;
provided, however, that Escrow Agent shall not honor such demand
until at least ten (10) days after the date on which Seller shall
have received a copy of such demand from Escrow Agent, nor
thereafter following such ten (10) day period if Escrow Agent
shall have received a notice of objection from Seller given in
accordance with the provisions of subparagraphs 18.3 or 18.4.
18.3. Any notice to, or demand upon, Escrow Agent
shall be in writing and shall be sufficient only if received by
22
Escrow Agent within the applicable time periods set forth herein,
if any. Notices to or demands upon Escrow Agent shall be mailed
to it at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx, Esq., or served personally upon Escrow
Agent, with receipt acknowledged in writing by a partner of
Escrow Agent. Notices from Escrow Agent to Seller or Buyer shall
be delivered to their respective addresses set forth in Paragraph
19, or at such other address as the party in question shall have
last designated by notice to Escrow Agent. All such deliveries
shall be by (i) registered or certified mail, return receipt
requested, (ii) overnight special handling, such as Federal
Express or (iii) personal delivery by messenger.
18.4. Upon receipt of a demand for the Deposit, made
by Seller or Buyer pursuant to subparagraph 18.2, Escrow Agent
shall promptly deliver a copy thereof to the other party. The
other party shall have the right to object to the delivery of the
Deposit by delivering to Escrow Agent notice of objection within
ten (10) days after the date Escrow Agent delivers such copy to
the other party, but not thereafter. Upon receipt of such notice
of objection, Escrow Agent shall promptly deliver a copy thereof
to the party who made the written demand.
18.5. If (a) Escrow Agent shall have received a notice
of objection as provided for in subparagraph 18.4 within the time
therein prescribed or (b) any other disagreement or dispute shall
arise between the parties or any other persons resulting in
adverse claims and demands being made for the Deposit, whether or
not litigation has been instituted, then and in any such event,
Escrow Agent shall refuse to comply with any claims or demands on
it, and shall continue to hold the Deposit until Escrow Agent
receives either (x) a written notice signed by both parties
directing the disbursement of the Deposit, or (y) a final order
of a court of competent jurisdiction, entered in an action, suit
or preceding in which Seller and Buyer are parties, directing the
disbursement of the Deposit, in either of which events Escrow
Agent shall then disburse the Deposit in accordance with such
direction. Escrow Agent shall not be or became liable in any way
or to any person for its refusal to comply with any such claims
and demands unless and until it has received such direction.
Upon compliance with such direction, Escrow Agent shall be
released of and from all liability hereunder.
18.6. Notwithstanding the foregoing, Escrow Agent
shall have the following rights in the circumstances described in
clause (a) or (b) of subparagraph 18.5.
(a) If Escrow Agent shall have received a notice
signed by either party advising that a litigation between the
parties over entitlement to the Deposit has been commenced,
Escrow Agent may, on notice to the parties, deposit the Deposit
with the clerk of the court in which such litigation is pending;
or
(b) Escrow Agent may, on notice to the parties, take
such affirmative steps as it may, at its option, elect in order
to terminate its duties as Escrow Agent, including, but not
limited to, the deposit of the Deposit with a court of competent
jurisdiction and the commencement of an action for interpleader,
the reasonable costs of which shall be borne by whichever of the
parties is the losing party. Upon the taking by Escrow Agent of
the action described in clause (a) or (b) of this subparagraph
18.6, Escrow Agent shall be released of and from all liability
23
hereunder.
18.7. Except as otherwise provided herein, in the
event of any dispute between the parties hereto with respect to
this Agreement which causes the Escrow Agent to incur costs and
expenses in performing its duties hereunder as escrow agent, then
the parties shall equally reimburse Escrow Agent for all such
reasonable costs and expenses, including, but not limited to,
reasonable attorney's fees, either paid to retain attorneys or in
an amount representing the fair value of legal services rendered
to itself. The foregoing shall not be deemed to require the
Buyer to reimburse the Escrow Agent for any costs and expenses
incurred by the Escrow Agent either (i) in its capacity as the
attorney for Seller hereunder or (ii) in connection with simply
acting as the depository with respect to holding the Deposit in
escrow pursuant to the terms hereof. Notwithstanding the
foregoing, the party to whom the Deposit is delivered shall be
responsible for and indemnify and save harmless Escrow Agent from
any income taxes arising from any interest earned on the Deposit
which is paid over to that party. Escrow Agent is acting
hereunder as a depository only and is not responsible or liable
in any manner whatsoever for the sufficiency, correctness,
genuineness or validity of any instrument deposited with or any
notice or demand given to it or for the form of execution of such
instrument, notice or demand, or for the identification,
authority or rights of any person executing, depositing or giving
the same or for the terms and conditions of any instrument,
pursuant to which the parties may act.
18.8. Escrow Agent shall not have any duties or
responsibilities, except those set forth in this Paragraph 18 and
shall not incur any liability (a) in acting upon any signature,
notice, demand, request, waiver, consent, receipt or other paper
or document believed by Escrow Agent to be genuine, and Escrow
Agent may assume that any person purporting to give it any notice
on behalf of any party in accordance with the provisions hereof
has been duly authorized to do so, or (b) in otherwise acting or
failing to act under this Paragraph 18, except in the case of
Escrow Agent's gross negligence or willful misconduct.
18.9. Escrow Agent has executed this Agreement for the
sole purpose of agreeing to act as such in accordance with the
terms of this Paragraph 18. The provision of this Paragraph 18
shall survive the termination of this Agreement.
18.10. Buyer acknowledges that it is aware that Escrow
Agent is the attorney for Seller and represents Seller in
connection with this transaction, as well as others. Buyer
agrees that Escrow Agent, acting as escrow agent herein, shall in
no way disqualify, restrict or preclude Escrow Agent in and from
its duties as attorney for Seller in this transaction, or in any
other, and that in the absence of this agreement and
understanding, Escrow Agent would not have agreed to act in that
capacity.
19. Notice. All notices, demands, requests, consents,
approvals or other communications (collectively called "Notices")
required or permitted to be given hereunder to Seller or Buyer or
which are given to Seller or Buyer with respect to this Agreement
shall be in writing and shall be deemed to have been given: (a)
upon delivery, if personally delivered; (b) three (3) days after
deposit in the United States Mail when delivered, postage
24
prepaid, by certified or registered mail; or (c) one (1) business
day after deposit with a nationally recognized overnight delivery
service marked for delivery on the next Business Day, addressed
to the party for whom it is intended at its address hereinafter
set forth, or to such other address as such party shall have
specified most recently by like Notice:
If to Seller, to:
N.J. Greenbrook Partners, L.P.
00 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
With a copy thereof to:
Gold & Xxxxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
- and -
If to Buyer, to:
Wellsford Commercial Properties L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
With a copy thereof to each of:
Xxxxxxx X. Xxxxxxx
00 Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
- and -
Xxxxxxxx Xxxxxxxxx Xxxxxx
Aronsohn & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
The attorney for any party may send notices on that party's
behalf.
20. Assignment. Until the Study Period has expired, Buyer
shall not assign this Agreement or any of its rights hereunder to
any person or entity which is not an Affiliate, without Seller's
prior consent. For purposes hereof, an "Affiliate" shall mean
any other person or entity that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is
under common control with, Buyer. For purposes of this
definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether through ownership
25
of voting stock, by contract, agency or nominee agreement or
relationship, or otherwise. After having made the Additional
Deposit, Buyer may assign this Agreement or any of its rights
hereunder to any person or entity who shall assume all of Buyer's
obligations hereunder.
21. Default.
21.1. If Buyer shall default in the payment or
performance of its obligations hereunder, and such default is not
cured by the earlier of (x) the Closing Date or (y) the date
which is ten (10) days after a notice of such default (specifying
the default in question) is given from Seller to Buyer, then
Seller's sole remedy shall be to receive the Deposit from Escrow
Agent as liquidated damages and to terminate this Agreement.
Upon any such termination and the receipt of the Deposit by
Seller, then thereafter neither party shall have any further
rights or obligations hereunder other than those which expressly
survive the termination of this Agreement. Seller waives any
other right or remedy, at law or in equity, which Seller may have
or entitled to in such event, including, without limitation, the
right to xxx for damages or for specific performance.
21.2. If, prior to Closing, Seller (i) breaches any
covenant contained herein or otherwise defaults in its
obligations hereunder, and such breach or default is not cured by
the earlier of (x) the Closing Date or (y) the date which is ten
(10) Business Days after a notice of such default (specifying the
default in question) is given from Buyer to Seller, or (ii) Buyer
shall become aware of any material and adverse inaccuracy in any
representation or warranty made by Seller hereunder, then,
(except as set forth in the next succeeding sentence), Buyer may,
as its sole remedy for such breach or misrepresentation, either
(1) seek specific performance of Seller's obligations hereunder
or (2) terminate this Agreement. Notwithstanding the foregoing,
if (i) Seller willfully or intentionally breaches any of its
obligations or covenants hereunder or (ii) Seller knew, or
reasonably should have known, that a representation or warranty
made by Seller hereunder was materially and adversely inaccurate
when made, then in addition to the remedies of specific
performance and termination set forth above, Buyer shall have the
right to seek any and all remedies available at law or in equity,
including, without limitation, an action for damages. Upon
receipt of any notice of termination as aforesaid, Seller shall
promptly (i) instruct Escrow Agent to refund the Deposit to Buyer
and (ii) reimburse Buyer for its net cost of title examination
and reasonable attorneys' fees.
(a) If Buyer, with actual knowledge of a default in
any of the covenants, agreements or obligations to be performed
by Seller under this Agreement or an inaccuracy in any
representation or warranty of Seller, elects to proceed to
Closing, then, upon the consummation of the Closing, Buyer shall
be deemed to have waived any such default or inaccuracy and shall
have no claim against Seller on account thereof.
(b) If, after the Closing, Buyer shall first learn of
(i) an inaccuracy in any representation or warranty of Seller
made hereunder which has a material adverse effect on Buyer or
(ii) a default in any of the covenants, agreements or obligations
to be performed by Seller under this Agreement which has a
material adverse effect on Buyer, then Buyer shall have a claim
for damages or other remedies at law or in equity on account
26
thereof.
22. Merger Clause. All understandings and agreements
heretofore had among the parties hereto are merged in this
Agreement, which alone fully and completely expresses their
agreement.
23. Successors and Assigns. This Agreement shall apply to
and bind the successors and permitted assigns of the respective
parties.
24. Modification. This Agreement may not be changed or
terminated orally.
25. Construction. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State
of New Jersey and without the aid of any canon, custom or rule of
law requiring construction against the draftsman.
26. Schedules. All of the schedules and exhibits annexed
hereto shall be deemed to be and the same are hereby made a part
hereof.
27. Survival of Provisions. The acceptance by Buyer of the
deed from Seller shall be deemed to be an acknowledgment, for all
purposes, of the full performance and discharge of every
representation, agreement and obligation on the part of Seller to
be performed by it pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive the
Closing.
28. Miscellaneous.
28.1. Further Assurances. In addition to the
obligations required to be performed hereunder by Seller and
Buyer at or prior to the Closing, each party, from and after the
Closing, shall execute, acknowledge and/or deliver such other
instruments as may reasonably be requested in order to effectuate
the purposes of this Agreement; provided, however, that the
foregoing provisions of this subparagraph 28.1 shall not obligate
either party to execute, acknowledge or deliver any instrument
which would or might impose upon such party any additional
liability or obligation (beyond that imposed upon on it under the
documents delivered by such party at the Closing and the other
provisions of this Agreement which survive the Closing).
28.2. No Third Party Beneficiary. This Agreement and
each of the provisions hereof are solely for the benefit of Buyer
and Seller and their permitted assigns. No provisions of this
Agreement, or of any of the documents and instruments executed in
connection herewith, shall be construed as creating in any person
or entity other than Buyer and Seller and their permitted assigns
any rights of any nature whatsoever.
28.3. Severability. If any provision in this
Agreement is found by a court of competent jurisdiction to be in
violation of any applicable law, and if such court should declare
such provision of this Agreement to be unlawful, void, illegal or
unenforceable in any respect, the remainder of this Agreement
shall be construed as if such unlawful, void, illegal or
unenforceable provision were not contained herein, and the
rights, obligations and interests of the parties hereto under the
remainder of this Agreement shall continue in full force and
effect undisturbed and unmodified in any way.
28.4. Waiver of Trial by Jury. EACH PARTY HEREBY
WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY
ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY
TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION
27
HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS OF
SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE
FOREGOING.
28.5. Captions; Interpretation. The captions,
headings, table of contents and index in this Agreement are
inserted for convenience of reference only and in no way define,
describe or limit the scope or intent of this Agreement or any of
the provisions hereof. As used in this Agreement, the masculine
shall include the feminine and neuter, the singular shall include
the plural and the plural shall include the singular, as the con-
text may require.
28.6. Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same original, and the execution of
separate counterparts by Buyer and Seller shall bind Buyer and
Seller as if they had each executed the same counterpart.
28.7. No Waiver. Neither the failure of either party
to exercise any power given such party hereunder or to insist
upon strict compliance by the other party with its obligations
hereunder, nor any custom or practice of the parties at variance
with the terms hereof shall constitute a waiver of either party's
right to demand exact compliance with the terms hereof.
29. Intentionally Deleted.
30. Like-Kind Exchange. Seller shall have the right to
sell the Property as part of a tax-free like-kind exchange
through a qualified intermediary or otherwise under section 1031
of the Internal Revenue Code of 1986, as amended. If Seller so
elects, Buyer will cooperate with Seller in effecting such
like-kind exchange, including allowing Seller to assign this
contract to a title company or other qualified intermediary and
such other action as may be reasonably required in connection
therewith, provided however, any such action does not delay
Closing, increase any of Buyer's obligations or decrease any of
Buyer's rights under this Agreement. Seller shall reimburse
Buyer for all additional out-of-pocket costs (including, without
limitation, reasonably attorneys' fees) incurred by Buyer in
connection with such cooperation.
31. Hazardous Substances and Waste.
31.1. As used in this Agreement, "Hazardous"
Substances and Waste" are those materials defined by
Environmental Laws as such. "Environmental Laws" shall include,
but not be limited to, each and every federal, state and local
law, statute, code, ordinance. regulation, rule, or other
requirement of governmental authorities ("Governmental
Authorities") having jurisdiction over the Property (including
but not limited to, consent decrees, and judicial or
administrative orders) relating to the environment, including but
not limited to, those applicable for the storage, treatment,
disposal, handling and release of any Hazardous Substances and
Waste, all as amended or modified from time to time. Hazardous
Substances and Waste shall not include hazardous substances of
the kind ordinarily used in connection with office equipment and
furnishings or in connection with the ordinary cleaning or
maintenance of office buildings similar to the uses for which the
Property is used, including, but not limited to, office supplies
and cleaning fluids, provided that such substances are stored,
used and disposed of in accordance with all applicable
Environmental Laws.
28
31.2. Seller agrees to comply with the requirements of
the Industrial Site Recovery Act (N.J.S.A. 13: lk-6, et seq. -
"ISRA"). As a condition precedent to Buyer's obligation to
purchase the Property, within ten (10) Business Days after the
expiration of the Study Period, Seller shall obtain and deliver
to Buyer, from the New Jersey Department of Environmental
Protection, in compliance with ISRA and the regulations
promulgated thereunder, either: (i) a nonapplicability letter;
(ii) a de minimus quantity exception; or (iii) approval of
Seller's negative declaration. If this condition precedent to
Closing shall not have been satisfied on or before the tenth
(1Oth) Business Day after the expiration of the Study Period,
then Buyer shall have the right for ten (10) Business Days
thereafter, to (x) terminate this Agreement by written notice to
Seller, and receive back the Deposit plus the net cost of title
examination and its reasonable attorneys' fees, unless Seller
shall have complied with the foregoing ISRA requirement prior to
Buyer's notice of termination, in which event, Buyer shall no
longer have a termination right, or (y) accept the Property
without such condition precedent being satisfied, and without
reduction of the Purchase Price or credit or allowance against
same. If Buyer fails to so terminate this Agreement within such
ten (10) day period, then Buyer shall be deemed to have waived
such termination right.
31.3. Seller agrees to indemnify and hold harmless
Buyer from and against any and all liabilities, damages, claims,
losses, judgments, causes of action, costs and expenses
(including reasonable attorney's fees and reasonable
environmental clean-up costs) which may be incurred by Buyer,
relating to or arising out of the breach by Seller of its
obligations under this Paragraph 31. However, this
indemnification and hold harmless shall survive the Closing Date
for a period of only one (1) year, and shall not be applicable to
the extent of any and all liabilities, damages, claims, losses,
judgments, causes of action, costs and expenses (including
reasonable attorney's fees) in any way arising out of the acts or
omissions of Buyer or any of Buyer's tenants, occupants,
employees, agents or permittees arising after the Closing Date.
32. Study Period.
32.1. Buyer shall have a period of thirty-seven (37)
consecutive calendar days following the date of the execution and
delivery of this Agreement by the parties to each other, to
inspect and review the Property and all of the books and records
relating thereto (the "Study Period"). Prior to 5:00 P.M.,
Eastern Standard Time, on the last day of the Study Period,
Buyer, in its sole discretion for any reason whatsoever, or for
no reason, shall have the right to terminate this Agreement by
giving Seller written notice of that election, as provided in
Paragraph 19 hereof. Failure by Buyer to give such notice in a
timely manner shall be deemed an irrevocable waiver by Buyer of
this right to terminate. If Buyer shall timely notify Seller of
Buyer's election to terminate this Agreement, then the Escrow
Agent promptly shall deliver the Initial Deposit (together with
all interest accrued thereon) to Buyer. Upon Buyer's receipt of
the Initial Deposit, this Agreement shall terminate and neither
party shall have any further obligations hereunder. Upon the
request of either party after the commencement of the Study
Period, Seller and Buyer shall execute an agreement confirming
29
the commencement date and the expiration date of the Study
Period, but the failure of either party hereto to execute such an
agreement shall not defer the commencement of the Study Period,
extend the expiration date thereof or otherwise invalidate all or
any part of this Agreement.
32.2. During the Study Period and upon request
therefor, Seller shall promptly deliver to Buyer true and correct
copies of all Leases, Service Contracts, management records,
surveys, Plans, title contracts, management records, surveys,
title documents, environmental studies, material and reports,
brokerage agreements, rent rolls, real estate tax statements,
insurance statements, accounting records and other similar or
related studies and documents that are in Seller's possession,
custody or control or that are reasonable obtainable by Seller
(the "Property Document"). Seller represents and covenants to
Buyer that all of the Property Documents delivered or to be
delivered to Buyer pursuant to this Paragraph 32 are true,
correct and complete and constitute all of the material documents
and agreements with respect to the ownership and operation of the
Property.
32.3. If Buyer does not elect to terminate this
Agreement pursuant to subparagraph 32.1 above, then within ten
(10) Business Days after the expiration of the Study Period,
Buyer shall deliver to Seller a written list of the Service
Contracts that Buyer desires to be assigned and transferred to it
at Closing (the "Assigned Service Contracts"). Seller shall
cause all Service Contracts which are not Assigned Service
Contracts to be terminated as of (or prior to) the Closing.
32.4. Subject to the rights of the Tenants, and upon
reasonable prior notice to Seller so that Seller can arrange to
accompany Buyer, Seller hereby grants Buyer and its duly
authorized agents and representatives the right to enter upon the
Property for the purpose of undertaking testing and inspections
(which may include inspections and testing as to, among other
things, the availability of access, utility services, zoning,
environmental conditions and engineering). Buyer hereby agrees
to promptly repair any damage to the Property caused by such
testing and inspections, and to indemnify and defend Seller and
hold Seller harmless against any injury, loss or damage suffered
upon the Property and to the Property as a result of such testing
and inspections. If requested, Buyer shall provide comprehensive
general liability insurance to Seller in reasonable amounts to
insure the foregoing.
32.5. Seller hereby agrees to remove the Property from
the real estate sales market during the Study Period. Buyer
agrees to keep confidential all information gained in connection
with its testing and inspections during the Study Period.
Notwithstanding the foregoing, Buyer may disclose such
information to its officers, directors, members, managers,
employees and consultants, as well as its attorneys, accountants,
financial advisors, investors, and financial institutions who
need to know such information in order to assist Buyer in
connection with its acquisition of the Property. Buyer promptly
shall return all Property Documents to Seller if Buyer elects to
terminate this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
30
SELLER: N.J. GREENBROOK PARTNERS, L.P.
By: Greenbrook Land Inc., a
General Partner
By:/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, President
BUYER: WELLSFORD COMMERCIAL PROPERTIES, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
The undersigned has executed this Agreement for the sole
purpose of agreeing to act as Escrow Agent in accordance with
Paragraph 18.
GOLD & XXXXXXX, LLP
By: /s/ Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
31
