LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT
Exhibit
10.146
LIMITED LIABILITY COMPANY
MEMBERSHIP INTEREST
PURCHASE AND SALE
AGREEMENT
THIS LIMITED LIABILITY COMPANY
MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT (this “Agreement”)
is made and entered into as of the 29th day of
April, 2009, by and among XXXX
SLG NJ LLC, a Delaware limited liability company (“MGG
Seller”), XXXX-XXXX
VENTURES L.L.C., a Delaware limited liability company (“MGG
Buyer”), SLG XXXX 55
CORPORATE LLC, a Delaware limited liability company (“55
Corporate Seller”; together with MGG Seller, the “Seller”)
and 55 CORPORATE PARTNERS
L.L.C., a Delaware limited liability company (“55
Corporate Buyer”; together with MGG Buyer, the “Buyer”;
Buyer and Seller are collectively, the “Parties”;
each of MGG Seller, 55 Corporate Seller, MGG Buyer and 55 Corporate Buyer is a
“Party”).
W I T N E S S E T
H:
WHEREAS, MGG Seller is the
indirect owner of a Class A Property Percentage Interest, a Class B Property
Percentage Interest and a Class C Property Percentage Interest (as each such
term is defined in the MGG Operating Agreement (as hereinafter defined)) by
reason of its ownership of its Interest (as defined in the MGG Operating
Agreement) in Xxxx-Xxxxx-Xxxx LLC, a Delaware limited liability company (“MGG”),
pursuant to the terms of, and as set forth in, that certain Amended and Restated
Limited Liability Company Operating Agreement of Xxxx-Xxxxx-Xxxx LLC, dated May
9, 2006, (the “MGG
Operating Agreement”);
WHEREAS, 55 Corporate Seller
is the owner of a fifty percent (50%) Percentage Interest in SLG 00 Xxxxxxxxx
Xxxxx II LLC, a Delaware limited liability company (“55
Corporate Venture”), pursuant to the terms of, and as set forth in, that
certain Amended and Restated Limited Liability Company Operating Agreement of
SLG 00 Xxxxxxxxx Xxxxx II LLC, dated October 23, 2008, (the “55
Corporate Operating Agreement”);
WHEREAS, MGG Seller desires to
sell to MGG Buyer and MGG Buyer desires to purchase from MGG Seller, all of the
Interest (as such term is defined in the MGG Operating Agreement) of any kind or
nature held by MGG Seller in MGG (collectively, the “Seller
MGG Interest”) pursuant to the terms and conditions of this Agreement;
and
WHEREAS, 55 Corporate Seller
desires to sell to 55 Corporate Buyer and 55 Corporate Buyer desires to purchase
from 55 Corporate Seller, all of the Interest (as such term is defined in the 55
Corporate Operating Agreement) of any kind or nature held by 55 Corporate Seller
in 55 Corporate Venture (collectively, the “Seller 55
Corporate Interest”;
together with the Seller MGG Interest, collectively, the “Purchased
Interests”) pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in
consideration of the sum of $10.00, the premises and the mutual covenants of the
Parties hereinafter expressed, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto,
intending to be legally bound hereby, do hereby covenant and agree as
follows:
ARTICLE
I
DEFINITIONS
1.1. Definitions. As
used in this Agreement, the following capitalized terms shall have the meaning
ascribed to them below:
“Affiliate(s)”
shall mean, with respect to any Person (the “Subject
Person”) (a) a
Person who, directly or indirectly, controls, is under common control with, or
is controlled by, the Subject Person, (b) a Person who directly or indirectly
owns twenty-five percent (25%) or more of the issued and outstanding securities
or other ownership interests (whether voting or non-voting) of the Subject
Person, (c) any officer, director, trustee, manager, managing member, general
partner or beneficiary of the Subject Person or any Person referred to in (a) or
(b) above, (d) any spouse, parent, sibling or descendant of any Person described
in clause (a), (b) or (c) above, and (e) any trust for the benefit of any Person
described in clauses (a), (b), (c) or (d) above or for any spouse, issue or
lineal descendant of any Person described in clauses (a), (b), (c) or (d)
above. For purposes of this definition, “control” (including, with
correlative meaning, the terms “controlled by” and “under common control with”),
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Closing
Date” shall mean the date of the Closing.
“Conveyance
Taxes” shall mean any sales, use, excise, bulk sales, registration,
documentary, value added, recordation, realty transfer, transfer, stamp, stock
transfer, real property transfer, lease or gains and similar fees and taxes,
together with any interest, penalties or additions to tax attributable
thereto.
“Person”
shall mean an individual, partnership, firm, corporation, trust, estate,
unincorporated association, limited liability company, joint stock company or
other entity, association, firm or company.
“Related
Documents” shall mean the MGG Assignment, the 55 Corporate Assignment and
such other documents contemplated by this Agreement.
“Subsidiary(ies)”
shall mean, with respect to any Person, (i) any corporation more than fifty
percent (50%) of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is owned by such Person directly or indirectly
through one or more subsidiaries of such Person and (ii) any partnership,
limited liability company, association, joint venture or other entity in which
such Person directly or indirectly through one or more subsidiaries of such
Person has more than a fifty percent (50%) equity interest.
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ARTICLE
II
PURCHASE AND
SALE
2.1. Purchase and
Sale. Subject
to the terms and conditions of this Agreement, including, without limitation,
Section 2.3, on the date hereof, and in exchange for the Purchase Price to be
paid (or caused to be paid) by Buyer to Seller or its designee: (a)
MGG Seller shall sell, assign, transfer and convey to MGG Buyer, and MGG Buyer
shall purchase from MGG Seller, the MGG Seller Interest, which interest is free
and clear of any and all liens, encumbrances, pledges, claims, charges,
equities, agreements, options or other restrictions of any kind, nature or
description whatsoever, and MGG Seller shall thereupon cease to be a member of,
or other beneficial interest holder in, MGG and shall have no further right to
the Seller MGG Interest, including, without limitation, its rights to the
profits, losses and capital and to any and all distributions and allocations in
respect of the Seller MGG Interest or otherwise in MGG; and (b) 55 Corporate
Seller shall sell, assign, transfer and convey to 55 Corporate Buyer, and 55
Corporate Buyer shall purchase from 55 Corporate Seller, the Seller 55 Corporate
Interest, which interest is free and clear of any and all liens, encumbrances,
pledges, claims, charges, equities, agreements, options or other restrictions of
any kind, nature or description whatsoever, and MGG Seller shall thereupon cease
to be a member of, or other beneficial interest holder in, 55 Corporate Venture
and shall have no further right to the Seller 55 Corporate Interest, including,
without limitation, their rights to the profits, losses and capital and to any
and all distributions and allocations in respect of the Seller 55 Corporate
Interest or otherwise in 55 Corporate Venture.
2.2. Purchase
Price. The
aggregate purchase price (“Purchase
Price”) for the Purchased Interests, shall be equal to the sum of
$5,000,000.00, which shall be payable to Seller or its designee in immediately
available funds by wire transfer in accordance with the wiring instructions
attached hereto as Exhibit
A. None of the Purchase Price payable to either MGG Seller or
55 Corporate Seller shall be subject to withholding so long as each such person
shall have furnished to Buyer the certificate referred to in Section
2.5(a)(v). The Purchase Price shall be allocated as
follows:
(a) $500,000.00
shall be allocated to the Seller MGG Interest; and
(b) $4,500,000.00
shall be allocated to the Seller 55 Corporate Interest.
2.3. Gramercy Loan
Amendment. Notwithstanding
anything herein to the contrary, the closing of the transactions contemplated
herein or in the Related Documents (the “Closing”)
shall be conditioned upon the simultaneous execution and delivery of (a) an
agreement (together with any related documents, the “Gramercy
Loan Amendment”) by and among Gramercy Warehouse Funding I LLC (“Gramercy”)
and certain Affiliates of MGG that own six (6) Class B Properties (as defined in
the MGG Operating Agreement and hereinafter, collectively, the “Gramercy
Borrowers”) to, among other things, extend the term of that certain
mortgage loan in the original principal amount of $90,286,551.00 made by
Gramercy to the Gramercy Borrowers on May 9, 2006 (the “Gramercy
Loan”) by two (2) years to May 9, 2011, at the original loan principal
amount with no additional capital commitment by the Gramercy Borrowers or their
Affiliates and on such other terms and conditions as the Gramercy Borrowers
shall agree in their sole discretion and (b) a Release in the form of Exhibit
B hereto.
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2.4. Delivery of Documents at
Closing. The
Parties hereto shall separately make (or cause to be made) the following
deliveries to the other Parties hereto at the Closing:
(a) Each of
MGG Seller and 55 Corporate Seller shall deliver (or cause to be delivered), as
applicable, to the Buyer the following documents:
(i) A duly
executed counterpart of (x) the Assignment of Limited Liability Company
Interests in the form attached hereto as Exhibit
C in respect of the Seller MGG Interests (the “MGG
Assignment”) and (y) the Assignment of Limited Liability Company
Interests in the form attached hereto as Exhibit
D in respect of the Seller 55 Corporate Interest (the “55
Corporate Assignment”);
(ii) A
certificate of good standing and/or subsistence for each of MGG Seller and 55
Corporate Seller, dated not more than thirty (30) days prior to the Closing
Date, issued by the Secretary of State of the State of Delaware;
(iii) A
certified copy of a consent for each of MGG Seller and 55 Corporate Seller duly
adopted by such Seller entity expressly authorizing the execution, delivery and
performance of this Agreement and the Related Documents;
(iv) A
Certificate from each of MGG Seller and 55 Corporate Seller certifying that (x)
such Seller entity has obtained all consents that are required to be obtained or
made by or with respect to such Seller entity in connection with the execution,
delivery and performance on the Closing Date of this Agreement and the Related
Documents by such Seller entity and the consummation of the transactions
contemplated hereby and thereby by such Seller entity and (y) all required
consents are in full force and effect;
(v) A
certificate from each of MGG Seller and 55 Corporate Seller, duly executed by
such Seller entity, in the form prescribed by Treasury Regulations Section
1.1445-2(b)(2) to the effect that it is not a “foreign person” as that term is
defined in Section 1445(f)(3) of the Code, in order to avoid the imposition of
the withholding tax payment pursuant to Section 1445 of the Code;
(vi) Such
other consents, resolutions, releases, documents and instruments as may be
reasonably required or requested by the Buyer to effectuate the terms of this
Agreement and to comply with the terms hereof.
(b) Each of
MGG Buyer and 55 Corporate Buyer shall deliver (or cause to be delivered), as
applicable, to the Seller the following documents:
(i) A duly
executed counterpart of (x) the MGG Assignment and (y) the 55 Corporate
Assignment;
(ii) A
certificate of good standing and/or subsistence for each of MGG Buyer and 55
Corporate Buyer, dated not more than thirty (30) days prior to the Closing Date,
issued by the Secretary of State of the State of Delaware;
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(iii) A
certified copy of a consent for each of MGG Buyer and 55 Corporate Buyer duly
adopted by such Buyer entity expressly authorizing the execution, delivery and
performance of this Agreement and the Related Documents;
(iv) A
Certificate from each of MGG Buyer and 55 Corporate Buyer certifying that (x)
such Buyer entity has obtained all consents that are required to be obtained or
made by or with respect to such Buyer entity in connection with the execution,
delivery and performance on the Closing Date of this Agreement and the Related
Documents by such Buyer entity and the consummation of the transactions
contemplated hereby and thereby by such Buyer entity and (y) all required
consents are in full force and effect;
(v) Such
other consents, resolutions, releases, documents and instruments as may be
reasonably required or requested by the Seller to effectuate the terms of this
Agreement and to comply with the terms hereof.
2.6. CLI Loan. As
of the Closing, MGG Buyer hereby acknowledges that the certain loan (the “CLI
Loan”) in the amount of $3,725,000.00 made by MGG Buyer to SLG Xxxx XX XX
LLC (“SLG XX
XX”) and evidenced by a certain Promissory Note (the “CLI Loan
Note”), dated May 9, 2006, made by SLG XX XX to MGG Buyer shall be deemed
fully satisfied. As a condition to the Closing, MGG Buyer shall (i)
return the original CLI Loan Note to MGG Seller, as representative of SLG XX XX
and (ii) deliver such UCC-3 termination statements and other documents as may be
reasonably necessary to evidence the termination of all of MGG Buyer’s rights
pursuant to the Pledge and Security Agreement (the “Pledge
Agreement”), dated May 9, 2006, made by SLG XX XX in favor of MGG Buyer
(including, without limitation, the return of any certificates evidencing the
collateral pledged pursuant to the Pledge Agreement, which may be held by MGG
Buyer) and to otherwise evidence the satisfaction in full of the CLI
Loan.
ARTICLE
III
REPRESENTATIONS, WARRANTIES
AND COVENANTS
3.1. Representations and
Warranties of MGG Seller. As
a material inducement to MGG Buyer to enter into this Agreement, MGG Seller
hereby makes the following representations, warranties and covenants to MGG
Buyer, each of which is true, correct and complete as of the date
hereof:
(a) Power and
Authority. MGG Seller is duly organized, existing and in good
standing under the laws of the State of Delaware. MGG Seller has the
full legal right, power and authority to execute and deliver this Agreement and
the Related Documents, to consummate the transactions contemplated by this
Agreement and the Related Documents and to perform its obligations under this
Agreement and the Related Documents. The execution and delivery of
this Agreement and the Related Documents by MGG Seller and the consummation by
MGG Seller of the transactions contemplated by this Agreement and the Related
Documents are within MGG Seller’s capacity and all requisite action has been
taken to make this Agreement and the Related Documents valid and binding on MGG
Seller in accordance with their respective terms.
5
(b) Enforceability of Agreement
and Related Documents. MGG Seller has executed and delivered
this Agreement and the Related Documents, each of which constitutes the legal,
valid and binding obligation of MGG Seller, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws
relating to, or affecting generally, the enforcement of creditors’ rights and
remedies or by other equitable principles of general application.
(c) Non-Contravention. This
Agreement and the Related Documents do not and will not (i) contravene any
judgment, order, decree, writ or injunction issued against MGG Seller or any of
its Subsidiaries or Affiliates, or (ii) violate a material provision of any law
or governmental ordinance, rule, regulation, order or requirement (collectively,
“Laws”)
to which MGG Seller is or will be subject, except such violations as would not
have or would not reasonably be expected to have a material adverse effect on
the ability of MGG Seller to consummate the transactions contemplated hereby and
under the Related Documents. The transactions contemplated hereby and
under the Related Documents will not result in a breach or constitute a default
or event of default by MGG Seller or any of its Subsidiaries or Affiliates under
any agreement to which such MGG Seller entity or any of its assets is subject or
bound (other than the documents evidencing the CLI Loan) and will not result in
a violation of any Laws applicable to MGG Seller or any of its Subsidiaries or
Affiliates, except such violations as would not or would not reasonably be
expected to have a material adverse effect on the ability of MGG Seller to
consummate the transactions contemplated hereby and by the Related Documents if
finally determined adversely to MGG Seller.
(d) Title to the Seller MGG
Interests. MGG Seller: (i) has good and valid title to and is
the lawful owner, of record and beneficially, of the Seller MGG Interest; and
(ii) has title to such Seller MGG Interest, free and clear of any and all liens,
pledges, encumbrances, claims, charges, equities, agreements, rights, options or
restrictions of any kind, nature or description whatsoever.
(e) OFAC
Statement. MGG Seller is not, or shall not become, a Person
with whom MGG Buyer is restricted from doing business under regulations of the
Office of Foreign Asset Control (“OFAC”)
of the Department of the Treasury (including, but not limited to, those named on
OFAC’s Specially Designated and Blocked Persons list) or under any statute,
executive order (including, but not limited to, Executive Order 13224 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action and is not and shall
not engage in any dealings or transactions or be otherwise associated with such
Persons.
(f) Absence of
Claims. There are no claims of any kind or any actions, suits,
proceedings, arbitrations or investigations pending or, to MGG Seller’s
knowledge, threatened by any court, board, agency, commission, office or
authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx,
xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) now or hereafter in existence
(collectively, a “Governmental
Authority”) or otherwise against MGG Seller, or which would prevent the
performance by MGG Seller of its obligations under this Agreement, the Related
Documents or any of the transactions contemplated hereby, or which declare the
same unlawful or cause the rescission thereof.
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3.2. Representations and
Warranties of MGG Buyer. As
a material inducement to MGG Seller to enter into this Agreement, MGG Buyer
hereby makes the following representations, warranties and covenants to MGG
Seller, each of which is true, correct and complete as of the date
hereof:
(a) Organization, Standing,
Power and Authority of MGG Buyer. MGG Buyer is duly organized,
existing and in good standing under the laws of the State of
Delaware. MGG Buyer has the full legal right, power and authority to
execute and deliver this Agreement and the Related Documents, to consummate the
transactions contemplated by this Agreement and the Related Documents and to
perform its obligations under this Agreement and the Related
Documents. The execution and delivery of this Agreement and the
Related Documents by MGG Buyer and the consummation by MGG Buyer of the
transactions contemplated by this Agreement and the Related Documents are within
MGG Buyer’s capacity and all requisite action has been taken to make this
Agreement and the Related Documents valid and binding on MGG Buyer in accordance
with their respective terms.
(b) Enforceability of Agreement
and Related Documents. MGG Buyer has executed and delivered
this Agreement and the Related Documents, each of which constitutes the legal,
valid and binding obligation of MGG Buyer, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws
relating to, or affecting generally, the enforcement of creditors’ rights and
remedies or by other equitable principles of general application.
(c) Non-Contravention. This
Agreement and the Related Documents do not and will not (i) contravene any
judgment, order, decree, writ or injunction issued against MGG Buyer or any of
its Subsidiaries or Affiliates, or (ii) violate a material provision of any Laws
to which MGG Buyer is or will be subject, except such violations as would not
have or would not reasonably be expected to have a material adverse effect on
the ability of MGG Buyer to consummate the transactions contemplated hereby and
under the Related Documents. The transactions contemplated hereby and
under the Related Documents will not result in a breach or constitute a default
or event of default by MGG Buyer or any of its Subsidiaries or Affiliates under
any agreement to which such MGG Buyer entity or any of its assets is subject or
bound and will not result in a violation of any Laws applicable to MGG Buyer or
any of its Subsidiaries or Affiliates, except such violations as would not or
would not reasonably be expected to have a material adverse effect on the
ability of MGG Buyer to consummate the transactions contemplated hereby and by
the Related Documents if finally determined adversely to MGG Buyer.
(d) OFAC
Statement. MGG Buyer is not, or shall not become, a Person
with whom MGG Seller is restricted from doing business under OFAC regulations
(including, but not limited to, those named on OFAC’s Specially Designated and
Blocked Persons list) or under any statute, executive order (including, but not
limited to, Executive Order 13224 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action and is not and shall not engage in any dealings or
transactions or be otherwise associated with such Persons.
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(e) Absence of
Claims. There are no claims of any kind or any actions, suits,
proceedings, arbitrations or investigations pending or, to MGG Buyer’s
knowledge, threatened by any Governmental Authority or otherwise against MGG
Buyer, or which would prevent the performance by MGG Buyer of its obligations
under this Agreement, the Related Documents or any of the transactions
contemplated hereby, or which declare the same unlawful or cause the rescission
thereof.
3.3. Representations and
Warranties of 55 Corporate Seller. As
a material inducement to 55 Corporate Buyer to enter into this Agreement, 55
Corporate Seller hereby makes the following representations, warranties and
covenants to 55 Corporate Buyer, each of which is true, correct and complete as
of the date hereof:
(a) Power and
Authority. 55 Corporate Seller is duly organized, existing and
in good standing under the laws of the State of Delaware. 55
Corporate Seller has the full legal right, power and authority to execute and
deliver this Agreement and the Related Documents, to consummate the transactions
contemplated by this Agreement and the Related Documents and to perform its
obligations under this Agreement and the Related Documents. The
execution and delivery of this Agreement and the Related Documents by 55
Corporate Seller and the consummation by 55 Corporate Seller of the transactions
contemplated by this Agreement and the Related Documents are within 55 Corporate
Seller’s capacity and all requisite action has been taken to make this Agreement
and the Related Documents valid and binding on 55 Corporate Seller in accordance
with their respective terms.
(b) Enforceability of Agreement
and Related Documents. 55 Corporate Seller has executed and
delivered this Agreement and the Related Documents, each of which constitutes
the legal, valid and binding obligation of 55 Corporate Seller, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or other laws relating to, or affecting generally, the enforcement
of creditors’ rights and remedies or by other equitable principles of general
application.
(c) Non-Contravention. This
Agreement and the Related Documents do not and will not (i) contravene any
judgment, order, decree, writ or injunction issued against MGG Seller or any of
its Subsidiaries or Affiliates, or (ii) violate a material provision of any Laws
to which 55 Corporate Seller is or will be subject, except such violations as
would not have or would not reasonably be expected to have a material adverse
effect on the ability of 55 Corporate Seller to consummate the transactions
contemplated hereby and under the Related Documents. The transactions
contemplated hereby and under the Related Documents will not result in a breach
or constitute a default or event of default by 55 Corporate Seller or any of its
Subsidiaries or Affiliates under any agreement to which such 55 Corporate Seller
entity or any of its assets is subject or bound and will not result in a
violation of any Laws applicable to 55 Corporate Seller or any of its
Subsidiaries or Affiliates, except such violations as would not or would not
reasonably be expected to have a material adverse effect on the ability of 55
Corporate Seller to consummate the transactions contemplated hereby and by the
Related Documents if finally determined adversely to 55 Corporate
Seller.
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(d) Title to the Purchased
Interests. 55 Corporate Seller: (i) has good and valid title
to and is the lawful owner, of record and beneficially, of the Seller 55
Corporate Interest; and (ii) has title to such Seller 55 Corporate Interest,
free and clear of any and all liens, pledges, encumbrances, claims, charges,
equities, agreements, rights, options or restrictions of any kind, nature or
description whatsoever.
(e) OFAC
Statement. 55 Corporate Seller is not, or shall not become, a
Person with whom 55 Corporate Buyer is restricted from doing business under OFAC
regulations (including, but not limited to, those named on OFAC’s Specially
Designated and Blocked Persons list) or under any statute, executive order
(including, but not limited to, Executive Order 13224 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action and is not and shall not engage in any
dealings or transactions or be otherwise associated with such
Persons.
(f) Absence of
Claims. There are no claims of any kind or any actions, suits,
proceedings, arbitrations or investigations pending or, to 55 Corporate Seller’s
knowledge, threatened by any Governmental or Authority or otherwise against 55
Corporate Seller, or which would prevent the performance by 55 Corporate Seller
of its obligations under this Agreement, the Related Documents or any of the
transactions contemplated hereby, or which declare the same unlawful or cause
the rescission thereof.
3.4. Representations and
Warranties of 55 Corporate Buyer. As
a material inducement to 55 Corporate Seller to enter into this Agreement, 55
Corporate Buyer hereby makes the following representations, warranties and
covenants to 55 Corporate Seller, each of which is true, correct and
complete as of the date hereof:
(a) Organization, Standing,
Power and Authority of 55 Corporate Buyer. 55 Corporate Buyer
is duly organized, existing and in good standing under the laws of the State of
Delaware. 55 Corporate Buyer has full legal right, power and
authority to execute and deliver this Agreement and the Related Documents, to
consummate the transactions contemplated by this Agreement and the Related
Documents and to perform its obligations under this Agreement and the Related
Documents. The execution and delivery of this Agreement and the
Related Documents by 55 Corporate Buyer and the consummation by 55 Corporate
Buyer of the transactions contemplated by this Agreement and the Related
Documents are within 55 Corporate Buyer’s capacity and all requisite action has
been taken to make this Agreement and the Related Documents valid and binding on
55 Corporate Buyer in accordance with their respective terms.
(b) Enforceability of Agreement
and Related Documents. 55 Corporate Buyer has executed and
delivered this Agreement and the Related Documents, each of which constitutes
the legal, valid and binding obligation of 55 Corporate Buyer, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or other laws relating to, or affecting generally, the enforcement
of creditors’ rights and remedies or by other equitable principles of general
application.
9
(c) Non-Contravention. This
Agreement and the Related Documents do not and will not (I) contravene any
judgment, order, decree, writ or injunction issued against 55 Corporate Buyer or
any of its Subsidiaries or Affiliates, or (II) violate a material provision of
any Laws to which 55 Corporate Buyer is or will be subject, except such
violations as would not have or would not reasonably be expected to have a
material adverse effect on the ability of 55 Corporate Buyer to consummate the
transactions contemplated hereby and under the Related Documents. The
transactions contemplated hereby and under the Related Documents will not result
in a breach or constitute a default or event of default by 55 Corporate Buyer or
any of its Subsidiaries or Affiliates under any agreement to which such 55
Corporate Buyer entity or any of its assets is subject or bound and will not
result in a violation of any Laws applicable to 55 Corporate Buyer or any of its
Subsidiaries or Affiliates, except such violations as would not or would not
reasonably be expected to have a material adverse effect on the ability of 55
Corporate Buyer to consummate the transactions contemplated hereby and by the
Related Documents if finally determined adversely to 55 Corporate
Buyer.
(d) OFAC
Statement. 55 Corporate Buyer is not, or shall not become, a
Person with whom 55 Corporate Seller is restricted from doing business under
OFAC regulations (including, but not limited to, those named on OFAC’s Specially
Designated and Blocked Persons list) or under any statute, executive order
(including, but not limited to, Executive Order 13224 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action and is not and shall not engage in any
dealings or transactions or be otherwise associated with such
Persons.
(e) Absence of
Claims. There are no claims of any kind or any actions, suits,
proceedings, arbitrations or investigations pending or, to 55 Corporate Buyer’s
knowledge, threatened by any Governmental or Authority or otherwise against 55
Corporate Buyer, or which would prevent the performance by 55 Corporate Buyer of
its obligations under this Agreement, the Related Documents or any of the
transactions contemplated hereby, or which declare the same unlawful or cause
the rescission thereof.
3.5. Survival. The
representations, warranties and covenants made herein shall survive the Closing
for a period of twelve (12) months following the Closing Date; provided, however, that the
representations and warranties contained in Sections 3.1(a), (b), (c) and
(d), Sections 3.2(a), (b) and (c), Sections 3.3(a), (b), (c) and (d),
and Sections 3.4(a), (b) and (c) hereof shall survive indefinitely.
ARTICLE
IV
MISCELLANEOUS
4.1. 55 Corporate
Parking. (a) Except
as otherwise provided in Section 4.1(c), 55 Corporate Buyer hereby
unconditionally, absolutely and irrevocably agrees not to bring (or cause any
Affiliate or agent of 55 Corporate Buyer to bring) any claims each such party
may now or hereafter have against each of Sanofi and Unit I/II/III Owner that
the Parking Space Reduction is violative of the Master Deed solely as respects
the same constituting potential non-compliance with the Condominium Parking
Requirement, it being agreed and understood that such waiver of claims (i)
relates solely and exclusively to the non-compliance, if any, with the
Condominium Parking Requirement due to the Unit I/II/III Parking Alterations,
(ii) shall not constitute a waiver of any obligation of Sanofi Tenant and
the Unit I/II/III Owner to comply with the Legal Parking Requirement (to the
extent that the Legal Parking Requirement is applicable, rather than the
Condominium Parking Requirement, pursuant to Section 12.5 of the Master Deed),
and (iii) shall not constitute a modification of the Master Deed.
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(b) Except as
otherwise provided in Section 4.1(c), notwithstanding the foregoing provisions
of clause (ii) of the preceding subsection (a), 55 Corporate Buyer hereby agrees
that the parking space configuration effected by the Unit I/II/III Parking
Alterations shall not, in and of itself, be made the basis of a claim by 55
Corporate Buyer against the Unit I/II/III Owner that the Parking Space Reduction
has caused a breach of the Legal Parking Requirement.
(c) Notwithstanding
the provisions of Sections 4.1(a) and (b), if (i) 55 Corporate Buyer shall be
notified by (x) any governmental entity, authority, agency and/or department or
(y) Sanofi, as tenant pursuant to that certain Lease Agreement, dated November
20, 2007, with 55 Corporate Unit IV LLC (the “Building
IV Lease”), that the Unit I/II/III Parking Alterations have caused the
Unit I/II/III Parking Areas to fail to comply with the Legal Parking Requirement
(and the Legal Parking Requirement then applies, rather than the Condominium
Parking Requirement, pursuant to Section 12.5 of the Master Deed) and (ii) the
Unit I/II/III Parking Areas are not restored to substantially the configuration
that existed prior to Sanofi making the Unit I/II/III Parking Alterations (or an
alternate configuration that complies with the Legal Parking Requirement) within
thirty (30) days after Sanofi and the Unit I/II/III Owner are notified by 55
Corporate Buyer of such failure (which notice shall include a copy of the notice
from the governmental entity, authority, agency and/or department or Sanofi, as
tenant pursuant to the Building IV Lease), then it shall not be a violation of
the provisions of this Section 4.1 for 55 Corporate Buyer to pursue all legal
and equitable remedies available to it (including, but not limited to, an action
to compel specific performance, the pursuit of the remedy of self-help and/or an
action to recover damages) against Sanofi and the Unit I/II/III Owner on account
of the failure of the timely restoration of the Unit I/II/III Parking Areas to
substantially the configuration that existed prior to Sanofi making the Unit
I/II/III Parking Alterations.
(d) For
purposes of this Section 4.1, (i) certain capitalized terms shall have the
meanings ascribed to them below and (ii) capitalized terms used but not defined
herein shall have the meanings given them in the Master Deed creating the 00
Xxxxxxxxx Xxxxx Condominium, dated November 4, 2005, recorded on November 7,
2005 in the Office of the County Clerk of Somerset County, New Jersey (the
“Clerk’s
Office”) in Book 5824, Page 1836, which Original Master Deed was
amended by that certain First Amendment to Master Deed, dated November 20, 2007,
recorded on December 13, 2007, in the Clerk’s Office in Book 6092, Page
3206.
Condominium
Parking Requirement: The requirement contained in Section 12.5
of the Master Deed that Unit I/II/III to maintain a Parking Ratio during the
term of the Unit I/II/III Lease of the greater of (i) 3.8 legally conforming
parking spaces for each one thousand (1,000) square feet of Floor Area within
the Buildings located on Unit I/II/III and (ii) the Legal Parking
Requirement.
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Legal
Parking Requirement: the number of parking spaces required by
Laws to be maintained by Unit I/II/III.
Parking
Space Reduction: a reduction in the number of available
parking spaces at 00 Xxxxxxxxx Xxxxx Condominium as a result of the Unit
I/II/III Parking Alterations.
Sanofi: sanofi-aventis
U.S. Inc., its successors and assigns as tenant under the Unit I/II/III
Lease
Unit
I/II/III Lease: that certain Lease Agreement between sanofi-aventis U.S.
Inc., as tenant, and Unit I/II/III Owner as landlord, dated November 4, 2005, as
amended.
Unit
I/II/III Owner: Inland America Bridgewater TIC I, L.L.C.,
Inland America Bridgewater TIC II, L.L.C., Inland America Bridgewater TIC III,
L.L.C. and Inland America Bridgewater TIC I, L.L.C., and their respective
successors and assigns.
Unit
I/II/III Parking Alterations: changes to the striping of the
parking areas located within the Limited Common Elements (as defined in the
Master Deed) allocated to Unit I/II/III (as defined in the Master Deed) in order
to, among other things, accommodate handicapped employees and address safety
issues, which changes are shown on that certain survey prepared by Xxxxxx
Associates, P.A., dated April 8, 2005, last revised November 20,
2008.
Unit
I/II/III Parking Areas: The parking areas located within the
Limited Common Elements allocated to Unit I/II/III.
(e) Notice
Address for Sanofi and the Unit I/II/III Owner:
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Sanofi:
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sanofi-aventis
U.S. Inc.
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00
Xxxxxxxxx Xxxxx
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Mail
Stop 55C-315B
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Xxxxxxxxxxx,
XX 00000
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Unit
I/II/III Owner:
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c/o
Inland American Real Estate Trust,
Inc.
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0000
Xxxxxxxxxxx Xxxx
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Xxx
Xxxxx, Xxxxxxxx 00000
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4.2. Remedies. If
any Party hereto shall be in default of or breach any provision or its
respective obligations hereunder or any Related Documents, then the other
Parties hereto shall have such rights or remedies available at law and/or in
equity, including, without limitation, the right of specific
performance.
4.3. Notices. Any
notice, consent, approval, or other communication which is provided for or
required by this Agreement must be in writing and may be delivered in person to
any Party hereto or may be sent by a facsimile transmission, telegram, expedited
courier or registered or certified U.S. mail, with postage prepaid, return
receipt requested. Any such notice or other written communication shall be
deemed received by the Party hereto to whom it is sent (i) in the case of
personal delivery, on the date of delivery to the Party hereto to whom such
notice is addressed as evidenced by a written receipt signed on behalf of such
Party, (ii) in the case of facsimile transmission or telegram, the next Business
Day after the date of transmission, (iii) in the case of courier delivery, the
date receipt is acknowledged or rejected by the Party hereto to whom such notice
is addressed as evidenced by a written receipt signed on behalf of such Party,
and (iv) in the case of registered or certified mail, the date receipt is
acknowledged or rejected on the return receipt for such notice. For
purposes of notices, the addresses of the Parties hereto shall be as follows,
which addresses may be changed at any time by written notice given in accordance
with this provision:
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If to the
Seller, to:
XX Xxxxx
Realty Corp.
The
Graybar Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
X. Xxxxxx, Esq.
With copy
to (which shall not constitute a notice):
Xxxxxxxxx
Xxxxxxx, LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Ivanhoe, Esq.
Facsimile
No.: (000) 000-0000
If to any
of the Buyer, as follows:
c/o
Xxxx-Xxxx Realty Corporation
000
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000-0000
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Attention:
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Xxxxxxxx
X. Xxxxx, President and Chief Executive
Officer
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Facsimile:
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(000)
000-0000
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and
c/o
Xxxx-Xxxx Realty Corporation
000
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000-0000
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Attention:
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Xxxxx
X. Xxxxxx, Executive Vice President
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and
General Counsel
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Facsimile:
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(000)
000-0000
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With copy
to (which shall not constitute a notice):
Seyfarth
Xxxx LLP
000
Xxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxx, Esq.
Facsimile: (000)
000-0000
4.4. Transfer/Conveyance
Taxes. Any
Conveyance Taxes attributable to the transactions contemplated by this Agreement
and/or the Related Documents shall be paid by MGG Seller and 55 Corporate
Seller, as the case may be, and each of MGG Seller and 55 Corporate Seller, as
applicable, agree to timely pay any such Conveyance Taxes. Each of
MGG Seller’s and 55 Corporate Seller’s obligations hereunder shall survive the
Closing until the expiration of the applicable statute of
limitations. The Parties hereto shall cooperate in the execution and
delivery (and to cause the execution and delivery) of any and all instruments,
returns and certificates necessary to enable MGG, the Seller or the Buyer to
comply with any and all filing requirements.
4.5. Entire Agreement; Binding
Effect; Assignment. This
Agreement, including the exhibits attached hereto and the documents delivered
pursuant hereto, including, without limitation, any Related Documents, sets
forth all the promises, covenants, agreements, conditions and understandings
between the Parties hereto, and supersedes all prior and contemporaneous
agreements, understandings, inducements or conditions, expressed or implied,
oral or written, except as herein contained. No changes of or
modifications or additions to this Agreement shall be valid unless the same
shall be in writing and signed by the Parties hereto. This Agreement
shall be binding upon the Parties hereto, their beneficiaries, heirs,
administrators, successors and permitted assigns and may not assigned by either
Party without the prior written consent of the other Party.
4.6. Confidentiality. (a) The terms, conditions and
existence of this Agreement and the Related Documents and the transactions
contemplated hereby and thereby (collectively, the “Confidential
Information”) are confidential and their disclosure would cause
irreparable harm to the Parties. Accordingly, each Party represents
that it has not and agrees that it will not and will direct its members,
shareholders, partners, directors, officers, agents, advisors and Affiliates and
each Affiliate’s respective members, shareholders, partners, directors,
officers, agents and advisors (collectively, such Party’s “Related
Persons”) not to, disclose to any Person other than its attorneys,
accountants, consultants, advisors and other agents who have a need to know such
information any Confidential Information or confirm any statement made by third
Parties regarding Confidential Information unless such disclosure is consented
to in writing by all Parties; provided, however, that any
Party (or its Related Persons) may disclose such Confidential
Information: (i) if required by law or rule of any stock exchange (it
being specifically understood and agreed that anything set forth in a
registration statement, periodic report or any other document filed pursuant to
law will be deemed required by law, and provided that before making any
disclosure of Confidential Information required by law or rule of any stock
exchange, the disclosing Party will notify the other Parties in writing and
provide it with a copy of the proposed disclosure and an opportunity to comment
thereon before the disclosure is made); (ii) in any report or other statement to
any Person having any direct or indirect ownership or other beneficial interest
in any Person in which MGG or 55 Corporate Venture hold any direct or indirect
ownership or other beneficial interest; and (iii) to lender providing financing
to such Party or its direct or indirect Subsidiaries, which financing is
secured, directly or indirectly, by the assets of MGG or any of its direct or
indirect Subsidiaries or the assets of 55 Corporate Venture or any of its direct
or indirect Subsidiaries.
14
(b) In
furtherance and not in limitation of the provisions of Section 4.5(a), the
Parties agree that no Party or any of its advisors shall issue any press release
or otherwise publicize or disclose the terms of this Agreement without the prior
written consent of the Parties, which consent shall not be unreasonably
withheld, conditioned or delayed.
(c) The
covenants contained in this Section 4.6 shall survive the Closing or other
termination of this Agreement.
4.7. No
Waiver. No failure or delay of either Party in the exercise of
any right or remedy given to such Party hereunder or the waiver by any Party of
any condition hereunder for its benefit (unless the time specified herein for
exercise of such right or remedy has expired) shall constitute a waiver of any
other or further right or remedy nor shall any single or partial exercise of any
right or remedy preclude other or further exercise thereof or any other right or
remedy. No waiver by any Party hereto of any breach hereunder or
failure or refusal by any other Party hereto to comply with its obligations
shall be deemed a waiver of any other or subsequent breach, failure or refusal
to so comply.
4.8. Amendment. The
Parties hereby irrevocably agree that no attempted amendment, modification,
termination, discharge or change (collectively, “Amendment”)
of this Agreement shall be valid and effective, unless the Parties shall
mutually agree in writing to such Amendment.
4.9. Brokers. No
agent, broker, person, entity, firm, finder or investment banker acting on
behalf of the Seller or Buyer or any of their respective Affiliates is entitled
to any brokerage, finder’s or other fee or commission in connection with the
transactions contemplated by this Agreement and the Related Documents based upon
arrangements made by or on behalf of the Seller or Buyer or any of their
respective Affiliates.
4.10. Captions;
Headings. The captions and headings in this Agreement are for
convenience only and shall not be construed to modify, explain or alter any of
the terms, covenants or conditions herein contained. Any and all
schedules and exhibits referenced herein are by this reference hereby made a
part hereof and incorporated herein.
4.11. Counterparts. This
Agreement and any amendments may be executed by facsimile transmission and in
one or more counterparts, each of which shall be deemed an original and all of
which together will constitute one and the same instrument.
4.12. Further
Assurances. The
Parties hereto will execute and deliver such further instruments and do such
further acts and things as may be reasonably required to carry out the intent
and purposes of this Agreement.
4.13. Governing
Law. This
Agreement shall be construed in accordance with the laws of the State of New
York and any proceeding arising between the Parties in any manner pertaining or
related to this Agreement shall, to the extent permitted by law, be held in New
York County, New York.
15
4.14. Severability. Each
provision of this Agreement is intended to be severable, and if any term or
provision of this Agreement is determined to be illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement.
4.15. No Third Party
Beneficiary. This Agreement is made solely and specifically
among and for the benefit of the Parties hereto, and their respective successors
and assigns subject to the express provisions hereof relating to successors and
assigns, and, except as otherwise expressly provided herein, no other Person
whatsoever shall have any rights, interest, or claims hereunder or be entitled
to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed as of the date and year
set forth above.
MGG SELLER:
XXXX SLG NJ LLC,
a
Delaware limited liability company
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
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Executive
Vice President and
Chief Legal
Officer
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MGG
BUYER:
XXXX-XXXX VENTURES
L.L.C.,
a
Delaware limited liability company
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By:
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Xxxx-Xxxx
Realty, L.P., its sole member
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By:
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Xxxx-Xxxx
Realty Corporation,
its
general partner
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By:/s/ Xxxxxxxx X.
Xxxxx
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Name:
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Xxxxxxxx
X. Xxxxx
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Title:
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President
and Chief Executive Officer
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55
CORPORATE SELLER:
SLG XXXX 55 CORPORATE
LLC,
a
Delaware limited liability company
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
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Executive
Vice President and
Chief Legal
Officer
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55
CORPORATE BUYER:
55 CORPORATE PARTNERS
L.L.C.,
a
Delaware limited liability company
By: Xxxx-Xxxx
Realty, L.P., its sole member
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By:
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Xxxx-Xxxx
Realty Corporation,
its
general partner
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By:/s/ Xxxxxxxx X.
Xxxxx
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Name:
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Xxxxxxxx
X. Xxxxx
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Title:
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President
and Chief Executive Officer
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