Exhibit 10.18
EXECUTION COPY
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") made this 28th
day of December, 1999 by and between XXXX-XXXX REALTY, L.P., a Delaware limited
partnership having an address at c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("SELLER") and PARSIPPANY OFFICE ASSOCIATES
L.L.C., a New Jersey limited liability company having an address at c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
("PURCHASER").
In consideration of the mutual promises, covenants, and agreements set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement, the
following capitalized terms have the meanings set forth in this Section 1.1:
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. For
purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlling," "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
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise; PROVIDED (but without limiting the foregoing) that no
pledge of voting securities of any Person without the current right to exercise
voting rights with respect thereto shall by itself be deemed to constitute
control over such Person; PROVIDED, FURTHER, that Purchaser and the Companies
shall not be deemed to be an Affiliate of Seller or Seller's Affiliates
immediately following the Closing.
"ASSIGNMENT" has the meaning ascribed to such term in Section 10.3(a),
in the form attached hereto as EXHIBIT A.
"AUTHORITIES" means the various governmental and quasi-governmental
bodies or agencies having jurisdiction over the Properties, or any applicable
portion thereof.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a day on
which national banking associations are authorized or required to close.
"CERTIFICATE AS TO FOREIGN STATUS" has the meaning ascribed to such term
in Section 10.3(g).
"CLOSING" means the consummation of the purchase and sale of the
Membership Interests contemplated by this Agreement, as provided for in Article
X.
"CLOSING DATE" means December 28, 1999.
"CLOSING STATEMENT" has the meaning ascribed to such term in Section
10.4(a).
"CLOSING SURVIVING OBLIGATIONS" means the rights, liabilities and
obligations set forth in Article VIII and 10.4, Articles XII and XVI, and
Sections 18.2, 18.5, 18.7, 18.9, 18.11 and 18.12, and any other provisions which
pursuant to their terms survive the Closing hereunder.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANIES" means Xxxx-Xxxx Campus Realty L.L.C., a New Jersey limited
liability company, and Xxxx-Xxxx Xxxxxx Realty L.L.C., a New Jersey limited
liability company.
"DOCUMENTS" has the meaning ascribed to such term in Section 8.1(z).
"EFFECTIVE DATE" means the date first written above.
"ENVIRONMENTAL LAWS" means each and every federal, state, county and
municipal statute, ordinance, rule, regulation, code, order, requirement,
directive, binding written interpretation and binding written policy
pertaining to Hazardous Substances issued by any Authorities and in effect as
of the date of this Agreement with respect to or which otherwise pertain to
or affect the Properties, or any portion thereof, the use, ownership,
occupancy or operation of the Properties, or any portion thereof, or the
Companies, and as same have been amended, modified or supplemented from time
to time prior to the Effective Date, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. SECTIONS 9601 et seq.), the Hazardous Substances Transportation
Act (49 U.S.C. SECTIONS 1802 et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. SECTIONS 6901 et seq.), as amended by the Hazardous and Solid
Wastes Amendments of 1984, the Water Pollution Control Act (33 U.S.C.
SECTIONS 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. SECTIONS 300f
et seq.), the Clean Water Act (33 U.S.C. SECTIONS 1321 et seq.), the Clean
Air Act (42 U.S.C. SECTIONS 7401 et seq.), the Solid Waste Disposal Act (42
U.S.C. SECTIONS 6901 et seq.), the Toxic Substances Control Act (15 U.S.C.
SECTIONS 2601 et seq.), the Emergency Planning and Community Right-to-Know
Act of 1986 (42 U.S.C. SECTIONS 11001 et seq.), the Radon and Indoor Air
Quality Research Act (42 U.S.C. SECTIONS 7401 note, et seq.), the National
Environmental Policy Act (42 U.S.C. SECTIONS 4321 et seq.), the Superfund
Amendment Reauthorization Act of 1986 (42 U.S.C. SECTIONS 9601 et seq.), the
Occupational Safety and Health Act (29 U.S.C. SECTIONS 651 et seq.), the New
Jersey Environmental Rights Act (N.J.S.A. 2A:35A-1 et seq.),
the New Jersey Spill Compensation and Control Act (N.J.S.A. 58:10-23.11 et
seq.), the New Jersey Air Pollution Control Act (N.J.S.A. 26:2C-1 et seq.), the
Hazardous Substances Discharge: Reports and Notices Act (N.J.S.A. 13:1K-15 et
seq.), the Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.), the New
Jersey Underground Storage of Hazardous Substances Act (N.J.S.A. 58:10A-21 et
seq.) (collectively, the "ENVIRONMENTAL STATUTES"), and any and all rules and
regulations which have become effective prior to the Effective Date under any
and all of the Environmental Statutes.
"FINANCIAL INFORMATION has the meaning ascribed to such term in Section
8.1(z).
"GOVERNMENTAL REGULATIONS" means all statutes, ordinances (including
without limitation, zoning ordinances), rules and regulations of the Authorities
applicable to Seller or the Companies or the use or operation of the Properties
or any portion thereof.
"HAZARDOUS SUBSTANCES" means (a) asbestos, radon gas and urea
formaldehyde foam insulation, (b) any solid, liquid, gaseous or thermal
contaminant, including smoke vapor, soot, fumes, acids, alkalis, chemicals,
petroleum products or byproducts, PCBs, phosphates, lead or other heavy metals
and chlorine, (c) any solid or liquid waste (including, without limitation,
hazardous waste), hazardous air pollutant, hazardous substance, hazardous
chemical substance and mixture, toxic substance, pollutant, pollution, regulated
substance and contaminant, as such terms are defined in any of the Environmental
Statutes as such Environmental Statutes have been amended and/or supplemented
from time to time prior to the date of this Agreement, and any and all rules and
regulations promulgated under any of the above, and (d) any other chemical,
material or substance, the use or presence of which, or exposure to the use or
presence of which, is prohibited, limited or regulated by any Environmental
Statutes.
"IMPROVEMENTS" means all buildings, structures, fixtures, parking areas
and other improvements located on the Real Properties.
"KNOWLEDGE," "TO ITS KNOWLEDGE," "TO THE BEST OF ITS KNOWLEDGE," "KNOWN
TO IT" means the current actual knowledge of any employee or officer of the
party hereto to which the term applies or of the Companies who have actively and
directly participated in the negotiation and closing of the matters described
herein or who have actively and directly participated in the management or
operation of the Real Properties and who devoted substantive attention
"LEASE SCHEDULES" has the meaning ascribed to such term in Section
8.1(z).
"LEASES" means all of the leases and other agreements with Tenants with
respect to the use and occupancy of the Real Properties, together with all
renewals and modifications thereof, if any, and any new leases entered into
after the Effective Date and prior to the Closing.
"LICENSES AND PERMITS" means, collectively, all of the Companies' right,
title and interest, to the extent assignable, in and to licenses, permits,
certificates of occupancy, approvals, dedications, subdivision maps and
entitlements now or hereafter issued, approved or granted by the Authorities in
connection with the Properties, together with all renewals and modifications
thereof.
"MANAGEMENT AGREEMENT" means, collectively, that certain Leasing and
Management Agreement (in form and substance satisfactory to both Seller and
SLAB) dated as of the date hereof between each of the Companies and an Affiliate
of Seller for the management of the Properties.
"MEMBERSHIP INTERESTS" means 100% of the membership interests owned by
Seller with respect to the Companies.
"PERSON" means any individual, corporation, limited liability company,
partnership, association, trust or other entity or organization.
"PERSONAL PROPERTY" means all of the Companies' right, title and
interest in and to all equipment, appliances, tools, supplies, machinery,
artwork, furnishings and other tangible personal property attached to,
appurtenant to, located in and used exclusively in connection with the ownership
or operation of the Improvements and situated at the Properties at the time of
Closing.
"PHASE I UPDATE" means an updated Phase I environmental report for the
benefit of the Companies from the environmental consultants who prepared the
existing Phase I environmental report on the Properties.
"PROPERTIES" means the Real Properties, the Improvements and the
Personal Property.
"PURCHASE PRICE" has the meaning ascribed to such term in Section 3.1.
"PURCHASER" means Parsippany Office Associates L.L.C., a New Jersey
limited liability company.
"REAL PROPERTIES" means those certain real properties located at 0
Xxxxxx Xxxxx, 7 Campus Drive, 8 Campus Drive, 0 Xxxxxx Xxx, 0 Xxxxxx Xxx and 0
Xxxxxx Xxx, all in Parsippany, New Jersey and certain leasehold interests
related thereto, all as more particularly described on the legal description
attached hereto and made a part hereof as EXHIBIT B, together with all of the
Companies' right, title and interest, if any, in and to the appurtenances
pertaining thereto, including but not limited to the Companies' right, title and
interest in and to the adjacent streets, alleys and right-of-ways, and any
easement rights, air rights, subsurface development rights and water rights.
"RENTALS" has the meaning ascribed to such term in Section 10.4(b).
"SERVICE CONTRACTS" means all of the Companies' right, title and
interest, to the extent assignable, in and to all service agreements,
maintenance contracts, equipment leasing agreements, warranties, guarantees,
bonds, open purchase orders and other contracts for the provision of labor,
services, materials or supplies relating solely to the Properties, as listed and
described on EXHIBIT C attached hereto, together with all renewals, supplements,
amendments and modifications thereof, and any new such agreements entered into
after the Effective Date, all to the extent they survive the Closing.
"SECURITY DEPOSITS" means all security deposits paid to the Companies,
as landlord (together with any interest which has accrued thereon, but only to
the extent such interest has accrued for the account of the Tenant), and not
previously applied to Rental or other charges.
"SELLER" means Xxxx-Xxxx Realty, L.P., a Delaware limited partnership.
"SLAB" means SLAB Investments Holding, Inc., a Delaware corporation, a
member of the Purchaser.
"TENANTS" means the tenants or users who are parties to the Leases.
"TITLE ENDORSEMENTS" means the endorsements to the Title Policies
described in Section 10.3(d).
"TITLE POLICIES" means those certain owner's title policies in respect
of the Real Properties listed on EXHIBIT G attached thereto.
SECTION 1.2 REFERENCES: EXHIBITS AND SCHEDULES. Except as
otherwise specifically indicated, all references in this Agreement to Articles
or Sections refer to Articles or Sections of this Agreement, and all references
to Exhibits or Schedules refer to Exhibits or Schedules attached hereto, all of
which Exhibits and Schedules are incorporated into, and made a part of, this
Agreement by reference. The words "herein," "hereof," "hereinafter" and words
and phrases of similar import refer to this Agreement as a whole and not to any
particular Section or Article.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE
SECTION 2.1 AGREEMENT. Seller hereby agrees to sell, convey,
transfer and assign to Purchaser, and Purchaser hereby agrees to purchase,
acquire, assume and accept from Seller, on the Closing Date and subject to the
terms and conditions of this Agreement, all of the Membership Interests.
SECTION 2.2 INDIVISIBLE ECONOMIC PACKAGE. Purchaser has no right
to purchase, and Seller has no obligation to sell, less than all of the
Membership Interests, it being the express agreement and understanding of
Purchaser and Seller that, as a material inducement to Seller and Purchaser to
enter into this Agreement, Purchaser has agreed to purchase, and Seller has
agreed to sell, all of the Membership Interests, subject to and in accordance
with the terms and conditions hereof.
ARTICLE III
PURCHASE PRICE
SECTION 3.1 PURCHASE PRICE. The purchase price for the Membership
Interests (the "PURCHASE PRICE") shall be One Hundred Fifty Two Million and/100
Dollars ($152,000,000) in lawful currency of the United States of America,
payable as provided in Section 3.2.
SECTION 3.2 METHOD OF PAYMENT OF PURCHASE PRICE. On or before
11:00 a.m. Eastern time on the Closing Date, Purchaser shall pay to Seller the
Purchase Price, as adjusted pursuant to the terms of this Agreement, by Federal
Reserve wire transfer of immediately available funds to the account of Seller.
ARTICLE IV
[INTENTIONALLY OMITTED.]
ARTICLE V
[INTENTIONALLY OMITTED.]
ARTICLE VI
[INTENTIONALLY OMITTED.]
ARTICLE VII
[INTENTIONALLY OMITTED.]
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.1 SELLER'S REPRESENTATIONS AND WARRANTIES. The
following constitute the sole representations and warranties of Seller, which
representations and warranties shall be true as of the Effective Date and as of
the Closing Date. Seller represents and warrants to Purchaser the following:
(a) STATUS. Seller is a limited partnership, duly organized and
validly existing under the laws of the State of Delaware with all requisite
power and authority to carry on the business in which it is engaged and to own
the properties it owns. Xxxx-Xxxx Campus Realty L.L.C. is a limited liability
company, duly organized and validly existing under the laws of the State of New
Jersey with all
requisite power and authority to carry on the business in which it is engaged
and to own the properties it owns. Xxxx-Xxxx Xxxxxx Realty L.L.C. is a limited
liability company, duly organized and validly existing under the laws of the
State of New Jersey with all requisite power and authority to carry on the
business in which it is engaged and to own the properties it owns. Each of the
Companies and Seller is not in violation or breach of its organizational
documents including, without limitation, its Certificate of Formation or LLC
Agreement. Each of Seller and the Companies is duly qualified and licensed to do
business and is in good standing in all jurisdictions where the nature of their
business makes such qualification necessary and has the requisite power and
authority to conduct its business as now being conducted and to own, lease and
sell all of the Properties. Companies possess all franchises, patents,
copyrights, trademarks, trade names, licenses and permits adequate for the
conduct of their businesses substantially as now conducted. Companies do not
have any direct or indirect subsidiaries or any equity interests in any other
entity. Each of Seller and the Companies are not an "investment company," or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended. No election is in effect whereby the
Seller or the Companies are treated as a corporation for tax purposes. Neither
of the Companies owns, nor have they ever owned, any asset or property other
than the Real Properties (and 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx, in the case
of Xxxx-Xxxx Xxxxxx Realty LLC which that Company no longer owns or has any
rights or obligations in respect of) and incidental personal property necessary
for the ownership and operation of the Real Properties. The Companies do not now
engage in, nor have they ever engaged in, any business other than that permitted
by their respective LLC operating agreements. The Companies have no obligations,
liabilities or commitments other than those related to the Real Properties and
disclosed to Purchasers. The Companies have not entered into any contract or
agreement with any member, manager, general partner, principal or affiliate of
Seller or any affiliate thereof, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be available on
an arm's length basis with third parties other than an affiliate. The Companies
have not incurred any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than trade payables or accrued
expenses incurred in the ordinary course of business of operating the Real
Properties. The Companies have not made any loans or advances to any third party
(including any member, manager, general partner, principal or affiliate of
Seller, or any guarantor). The Companies have done or caused to be done all
things necessary to preserve their existence and limited liability company
formalities.
(b) AUTHORITY. This Agreement has been duly executed and
delivered by Seller and the execution and delivery of this Agreement and the
performance of Seller's obligations hereunder have been or will, on or prior to
the Closing, be duly authorized by all necessary action on the part of Seller
and the Companies, and no other procedures on the part of Seller or either of
the Companies are necessary in order to permit them to consummate the
transactions contemplated hereby, and this Agreement constitutes the legal,
valid and binding obligation of Seller. Neither Seller nor the Companies is
required to obtain the consent or any other authorization of a person or entity
in connection with execution and delivery of this Agreement and performance of
its obligations under this Agreement.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Seller and the consummation by Seller or either of the Companies of
the transactions contemplated hereby will not (i) violate any judgment, order,
statute, writ, injunction, decree, regulation or ruling of any court or
Authority or arbitrator or conflict with, result in a breach of,
or constitute a default under the organizational documents of Seller or the
Companies, any note or other evidence of indebtedness, any mortgage, deed of
trust or indenture, or any lease or other agreement or instrument to which
Seller or either of the Companies is a party or by which they are bound; (ii)
result in the creation of any lien, charge, claim or encumbrance upon the
Properties by virtue of any of those items set forth in (i) above; or (iii)
require any order, authorization or consent of any Authority or other person or
entity which has not been obtained.
(d) OWNERSHIP OF MEMBERSHIP INTERESTS. The Membership Interest in
each of the Companies is duly authorized, validly issued, fully paid and
nonassessable, and has not been issued in violation of any preemptive or similar
rights. Seller is the owner of record and beneficially of the Membership
Interests, free and clear of all mortgages, pledges, encumbrances, security
interests, charges, agreements or claims of any kind (collectively, "Liens").
There are no authorized or outstanding options, warrants, calls, subscriptions
or rights, commitments or other agreements of any kind to purchase any
membership interest or capital stock of the Companies or to cause the Companies
to issue any membership interest or shares of capital stock or securities
convertible into or exchangeable or exercisable for any membership interest or
capital stock of any Company. There are no agreements or understandings to which
either of the Companies is a party or by which it is bound with respect to the
voting, sale or transfer of its Membership Interest, other than the limited
liability company agreements. Upon delivery of the Membership Interests against
payment thereof in accordance with this Agreement, Purchaser will acquire good
and marketable title to the Membership Interests, free and clear of any and all
Liens. No Person, other than Purchaser, has any right to acquire any of the
Membership Interests. The Membership Interests constitute all of the membership
interests in each of the Companies.
(e) FINANCIAL INFORMATION; LIABILITIES AND OBLIGATIONS. There are
no material inaccuracies or omissions in the Financial Information. Except for
those incurred in the ordinary course of business since the date of the
Financial Information, the Financial Information reflects all liabilities of
each of the Companies, accrued, contingent or otherwise, arising out of
transactions effected or events occurring on or prior to the Effective Date of
this Agreement. As of the Closing, each of the Companies will not be liable upon
or with respect to, or obligated in any other way to provide funds in respect of
or to guarantee or assume in any manner, any debt, obligation, dividend or
distribution of any other Person, and there is no basis for the assertion of any
other claims or liabilities of any nature or in any amount against the
Companies.
(f) ORGANIZATIONAL DOCUMENTS AND RECORDS OF COMPANIES. The copies
of the operating agreement, other organizational documents and the minute books
of the Companies which have been or are delivered to Purchaser hereunder are
true, correct and complete copies thereof.
(g) TAXES. Each of the Companies has duly and timely filed all
income, excise, corporate, franchise, property, sales, payroll, withholding and
other tax returns and reports required to be filed by it as of the date hereof
and has paid or established adequate reserves for all taxes (including penalties
and interest) which have or may become due pursuant to such returns and any
assessments which have been received by it or otherwise. Except as disclosed in
the Financial Information, no tax audit of the Companies is pending or
threatened,
and the results of any completed audits are properly reflected in the Financial
Information. Neither of the Companies has granted any extension to any taxing
authority of the limitation period during which any tax liability may be
asserted. No transfer taxes are or shall be due as a result of transfer of the
Membership Interests or the transactions contemplated hereunder or related
hereto.
(h) SUITS AND PROCEEDINGS. Except as listed in EXHIBIT D, there
are no:
(i) legal actions, claims, charges, complaints,
petitions, suits or similar proceedings or unsatisfied orders
pending and served, or threatened against the Companies, the
Seller or the Properties which if adversely determined, might
adversely affect the value of the Companies or the Properties,
the continued ownership, occupancy, or operations thereof, or
Seller's ability to consummate the transactions contemplated
hereby;
(ii) pending or threatened grievances or arbitration
proceedings or unsatisfied arbitration awards, or judicial
proceedings or orders respecting awards, relating to any of the
Properties or their ownership, operation or occupancy;
(iii) pending or threatened unfair labor practice orders
or judicial proceedings or orders with respect thereto relating
to any of the Properties or their ownership, operation or
occupancy; or
(iv) any other action, proceeding or investigation
pending or threatened against or involving Seller or either of
the Companies or any of the Properties that might adversely
affect the ownership, operation or occupancy of any of the
Properties or such person so acquiring ownership, operation or
occupancy.
To the best knowledge of Seller and the Companies, there are no facts which, if
known by a potential claimant or Authority, would give rise to a claim or
proceeding which, if asserted or conducted with results unfavorable to Seller,
would have a material adverse effect on the ownership or operation of the
Properties, the financial condition or prospects of the Properties or the
consummation of the transactions contemplated by this Agreement. For the purpose
of this Section 8.1(a) any of the terms set forth in subsections (i) through
(iv) above which are adequately insured against shall not be considered subject
to disclosure hereunder.
(i) NON-FOREIGN ENTITY. Seller is not a "foreign person" or
"foreign corporation" as those terms are defined in the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.
(j) TENANTS. As of the Closing, the only tenants of the
Properties are the Tenants set forth in the Lease Schedules. The information set
forth on each of the Lease Schedules are accurate and complete as of the date
thereon. The Lease Schedules, attached hereto as EXHIBIT E, accurately and
completely set forth in all material respects for each Lease, the following: the
name of the Tenant, the lease expiration date, extension and renewal provisions,
the base rent payable and the security deposits held thereunder. Seller and the
Companies are in compliance with all legal requirements relating to such
security deposits. The Documents made available to Purchaser pursuant to Section
8.1(z) hereof include true, correct and complete copies of all of the Leases.
The Leases are in full force and effect. Except as shown on the Lease Schedules,
neither the Companies nor the Tenants are in default of any monetary or, to the
best of Sellers' and the Companies' knowledge, non-monetary obligations under
the Leases. No event or omission has occurred which but for the passing of time
or giving of notice or both would be a monetary or non-monetary default, on the
part of either landlord or tenant under any Lease, and there is no outstanding
defense, counterclaim or offset against the payment of any rent or other amount
payable thereunder or against the performance of any obligation thereunder.
Neither Seller nor the Companies have received notice or has knowledge of any
pending or threatened rent strikes, tenant organizations, tenant unions or
tenant interpleader actions. All work and materials, if any, required to be
performed or furnished, as applicable, prior to the date hereof by landlord
under each of the Leases has been performed and furnished in accordance with the
terms of such Leases and fully paid for. All tenant allowances and concessions
(including all rent-free periods) will be paid for and furnished, as applicable,
by Seller by Closing to the extent required by agreement or otherwise so to be
paid for and furnished, as applicable, by Closing. No commission, compensation
or other amount is now or hereafter shall become payable to any broker or other
agent under any written or oral agreement or understanding with any broker or
other agent in connection with any Leases or renewals thereof, or any other
options thereunder. Each such Lease is a bona fide Lease with a Tenant totally
unrelated to and independent of Seller, the Companies or their Affiliates. To
the best knowledge of Seller and the Companies, there are no circumstances or
events affecting the financial condition of any Tenant or otherwise which might
prevent or seriously hinder such Tenant from fulfilling its obligations under
its Lease. Seller and the Companies have no knowledge of any intention or
indication of intention by any Tenant to terminate its Lease or to limit or
alter its Lease in any material respect. No Tenant under a Lease has paid rent
more than thirty (30) days in advance, and the rents under such Leases have not
been waived, released, or otherwise discharged or compromised. Each Lease
constitutes the legal , valid and binding obligation of the Company constituting
the lessor thereof and is enforceable against the tenant thereof. Each tenant
under the Lease has entered into occupancy of the demised premises. Except as
disclosed to Purchaser in writing, there are no management fees payable by any
Company with respect to the management of the Real Properties. Each Tenant has
accepted and is occupying the entire demised premises. No rent has agreed to be
paid more than one month in advance. Rent has been paid in respect of each Lease
through to the date shown on the Lease Schedules attached. No Tenant has
advanced any funds for or on behalf of Landlord for which it has a right to
deduct or offset from rent. All amendments, supplements and modifications to the
Leases are listed on the Lease Schedule. No Tenant has a purchase option or
right of first refusal on the Real Properties or any part thereof or has any
right to additional space.
(k) SERVICE CONTRACTS. The Service Contracts are legal, valid and
in full force and effect. None of the parties thereto are in default under any
Service Contract. The Documents made available to Purchaser pursuant to Section
5.2 hereof include true, correct and complete copies of all Service Contracts
under which the Companies are currently paying for services rendered in
connection with the Properties. Other than the Leases, the Service Contracts and
the
Management Agreement, the Companies, as of the Closing, will not be a party
to any other agreements, contracts or commitments.
(l) COMPLIANCE WITH LAWS. Neither Seller nor any of the Companies
has received any written notice of any violations of Governmental Regulations
with respect to the Companies or the Properties. Neither the Companies nor the
Properties are in material violation of any Governmental Regulations and, to the
knowledge of Seller and the Companies, neither the Companies nor the Properties
are in any other violation of Governmental Regulations. The Real Properties and
Improvements do not require any rights over, or restrictions against, other
property in order to comply with any Governmental Regulations.
(m) ZONING. The Improvements and the continuation of the present
location, use, occupancy, operation, maintenance, repair and replacement of the
Real Properties or any part thereof, including the present location, use,
occupancy, operation, maintenance, repair and replacement by the Tenants, comply
in full with all zoning requirements and do not depend on or require to any
extent any further ordinance, variance, special exception or other special
governmental approval for their continuing legality. Without limiting the
foregoing, such Improvements and such location, use, occupancy, operation,
maintenance, repair and replacement are not nonconforming uses in respect of
zoning and other governmental requirements. There is no violation of any
recorded restriction, condition or agreement affecting any of the Real
Properties or, to the best knowledge of Seller and the Companies, of any other
restriction, condition or agreement affecting any of the Real Properties; and
neither Seller nor either Company has received notice of, and to the best
knowledge of Seller and the Companies, there does not exist any violation of,
and continuation of the present locations, uses, occupancies and operations will
not result in a violation of, any building, health, safety, disability,
environmental, pollution control, fire or similar law, ordinance, order,
directive or regulation respecting the Real Properties or any part thereof. To
the best knowledge of Seller and the Companies, all Improvements (including all
roads, parking areas, curbs, curb cuts, sidewalks and sewers and other
utilities) in, on or about the Real Properties have been completed and installed
in accordance with the drawings, plans and specifications approved by the
governmental authorities having jurisdiction or as otherwise required by such
governmental authorities. To the best knowledge of Seller and the Companies, all
impact and other similar fees and charges have been paid and no additional
and/or new impact and other similar fees and charges are pending or
contemplated.
(n) ENVIRONMENTAL LAWS. To the best knowledge of Seller and the
Companies:
1. the Real Properties are and at all times have been in compliance with
all Environmental Laws:
2. no notice, demand, claim or other communication has been given to or
served on Seller or either of the Companies or on previous owners or tenants of
the Real Properties from any entity, governmental body or individual claiming
any violation of any of the Environmental Laws or demanding payment,
contribution, indemnification, remedial action, removal action or
any other action or inaction with respect to any actual or alleged environmental
damage or injury to persons, property or natural resources, and no basis for any
of the foregoing exists;
3. no above-ground or underground storage tanks, vessels and related
equipment and containers are or ever were located on the Real Properties;
4. the soil, surface water and ground water of, under, on or around the
Real Properties are free from any Hazardous Substance;
5. the Real Properties have never been used for or in connection with
the manufacture, refinement, treatment, storage, generation, transport or
hauling of any Hazardous Substance in excess of levels permitted by applicable
Environmental Laws or the disposal of any such material;
6. no asbestos, asbestos-containing materials or presumed
asbestos-containing materials have been installed, used, incorporated into or
disposed of on the Real Properties;
7. no PCBs are or ever have been located on, in, or used in connection
with the Real Properties; and
8. no investigation, administrative order, administrative order by
consent, consent order, agreement, litigation or settlement is proposed or in
existence or threatened or anticipated, with respect to or arising from the
presence of any Hazardous Substance or the transport of Hazardous Substances
with respect to the Real Properties.
(o) CC&RS. The current use and occupancy of the Real Property and
the Improvements are not in violation of any recorded or unrecorded covenants,
conditions, restrictions, reservations, easements or agreements affecting the
Real Property and the Improvements.
(p) LICENSES AND PERMITS. The Companies possess all licenses,
permits, certificates of occupancy, entitlements, approvals and other
governmental authorizations to own, operate, occupy, use and lease the
Properties. All certificates, permits, licenses, franchises, authorizations and
approvals which are necessary to permit the lawful access, use, occupancy and
operation of the Properties for their present and intended accesses, uses,
occupancies and operations have been duly and validly obtained, are in full
force and effect, and Seller and the Companies have no knowledge of any pending
threat or contemplation of modification, cancellation or non-renewal of any such
certificate, permit, license, franchise, authorization or approval.
(q) TITLE. Each of the Companies is the sole owner of good
insurable and marketable title to such Company's respective Real Properties and
Improvements and Personal Property, free and clear of all liens, mortgages,
deeds of trust and other encumbrances and title defects and claims, charges,
obligations, liabilities or rights in favor of third parties except as otherwise
provided in the Title Policies and the Title Endorsements and Purchaser shall
receive
such title at Closing. To the best knowledge of Seller and the Companies, all
Personal Property is in good working order and condition. The Real Properties
are free and clear of any mechanics; or materialsmen's liens or liens in the
nature thereof, and no rights are outstanding that under law would give rise to
any such liens, except those which are insured against by the Title Policies and
the Title Endorsements. There are no outstanding options or rights of first
offer or refusal to purchase all or any portion of the Real Properties,
Companies' interests therein or ownership thereof.
(r) HVAC ETC. All water, sewer, electric, heating, ventilating,
air conditioning, drainage facilities, telephone and other utilities required
for ownership, operation or occupancy of the Real Properties or required by
applicable law or currently on, under or at the Real Property or the
Improvements have been installed in accordance with applicable Governmental
Regulations and are in good working order. To the best knowledge of Seller and
the Companies. Said utilities either enter the Real Properties through adjoining
public streets or if they pass through adjoining private land, do so in
accordance with legal, valid and enforceable permanent public or private
easements which will inure to the benefit of Purchaser, its successors and
assigns.
(s) BANKRUPTCY. Neither Seller nor any of the Companies has
received any notice of attachments, executions, assignments for the benefit of
creditors, or voluntary or involuntary proceedings in bankruptcy, or under any
other debtor relief laws involving Seller and/or the Companies, or pending
against Seller and/or the Companies, or threatened against Seller, the Companies
or the Properties, or contemplated by Seller or the Companies.
(t) CONDEMNATION. Neither Seller nor any of the Companies has
received any notice of any pending condemnation action with respect to the
Properties, or any part thereof (including any proceeding for widening, change
of grade or limitation on use of streets abutting the Real Properties) and, to
the best knowledge of Seller and the Companies, no such proceeding has been
threatened or is contemplated by any Authority.
(u) INSURANCE. Neither Seller nor any of the Companies has
received, and neither Seller nor any of the Companies has any other knowledge or
information of, any notice from any insurance company or board of fire
underwriters requesting the performance of any work or alteration with respect
to the Properties, or requiring an increase in the insurance rates applicable to
the Properties. Every policy of insurance relating to any of the Real Properties
has been disclosed to Purchaser in writing and is in full force and effect at
Closing, indicating name of insurer, premium, and coverage.
(v) CONDITION OF REAL PROPERTIES. To the best knowledge of Seller
and the Companies, there has been no damage or loss to any of the Real
Properties by any fire or other casualty, any act of God or any hazard prior to
the date hereof; and there has been no material change (adverse or otherwise) in
the physical condition of the Improvements since the date of Purchaser's
inspection. No improvements on adjoining properties encroach on the Real
Properties.
(w) LATENT DEFECTS. To the best knowledge of Seller and the
Companies, there are no latent defects in any of the Improvements, and the
structural components, exteriors, electrical, gas, plumbing, water, sewer, air
conditioning, heating, ventilating, exhaust, mechanical, security, disability,
life/safety, communication, telephone, cable and other building systems,
equipment and improvements are in good working order, condition and repair, the
roofs, foundations, structures, doors and windows thereof are free from leaks
and the Improvements are free from termite or other infestation. To the best
knowledge of Seller and the Companies, there are no defects or inadequacies in
the Real Properties or any part thereof which might adversely affect the
insurability of the same or which might cause the imposition of extraordinary
insurance premiums therefor or which might create a hazard or a material
operating deficiency.
(x) TENANT PROPERTY. To the best knowledge of seller and the
Companies, no equipment, fixture or article of personal property owned by
Tenants and removable by them is material to the ownership, operation or
occupancy of any of the Real Properties.
(y) REAL ESTATE TAXES. Complete and accurate copies of the most
recent real estate and personal property tax bills covering the Properties have
been provided by Seller to Purchaser. Neither Seller nor either of the Companies
has received any notice, or has any knowledge of any increase in any of the
factors comprising such tax bills or any other matters which might increase such
taxes above such amount for any subsequent year. Neither Seller nor either of
the Companies has received any assessment or other notice with respect to any
governmental improvements prior to the date hereof for which the Real Properties
can be assessed; and no such governmental improvements are threatened,
contemplated, proposed or planned or in progress. To the best knowledge of
Seller and the Companies, neither of the Companies has received any notice of
any pending, threatened or contemplated assessments. The Real Properties and
Improvements constitute separate tax parcels for purposes of ad valorem
taxation.
(z) DOCUMENT REVIEW. Seller heretofore has provided to Purchaser
for inspection true, accurate and complete copies of all of the following
(collectively, the "DOCUMENTS") with respect to the Properties or the Companies:
all existing environmental, engineering or consulting reports and studies of the
Real Properties (including without limitation, the Phase I Update), real estate
tax bills, together with assessments (special or otherwise), ad valorem and
personal property tax bills, covering the period of the Companies' ownership of
the Properties; the most current lease schedules (the "LEASE SCHEDULES");
current operating statements; the Leases, lease files, Service Contracts, and
Licenses and Permits; the Title Policies and the existing surveys; the
organizational documents, such as the operating agreement and amendments
thereto, the minutes and other similar documents of the Companies; and the most
current financial statements and balance sheets of the Companies (the "FINANCIAL
INFORMATION").
(aa) COPIES AND SCHEDULES. Copies of all the documents listed on
Schedules and Exhibits attached hereto have been delivered to Purchaser. The
copies of all documents delivered by Seller to Purchaser pursuant to the terms
of this Agreement are complete and accurate. The information contained in
attached Schedules is complete and accurate. The representations and warranties
of Seller contained in this Agreement do not omit to state any
material fact necessary in order to make such representations and warranties not
misleading.
(bb) ISRA COMPLIANCE. The transactions contemplated by this
Agreement and the Real Properties are not subject to the requirements of the
Industrial Site Recovery Act of New Jersey.
(cc) SINGLE-MEMBER LLC. Each of the Companies has been properly
treated as a disregarded entity for income tax purposes.
(dd) 0 XXXXXX XXX. With respect to 0 Xxxxxx Xxx, no tenants has
rights to lease or acquire the Real Property known as 0 Xxxxxx Xxx.
(ee) COOPERS & XXXXXXX. With respect to 0 Xxxxxx Xxx, the former
tenant, Coopers & Xxxxxxx and its successors in title and assigns have no rights
of lease, renewal, extension or any others rights relating to the Real Property
known as 0 Xxxxxx Xxx.
(ff) ERISA. (i) the Companies are not "employee benefit plans" as
defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a
"governmental plan" within the meaning of Secton 3(3) of ERISA; (ii) the
Companies are not subject to state statutes regulating investments and fiduciary
obligations with respect to governmental plans; and (iii) one or more of the
following circumstances is true with respect to each of the Companies:
(i) Equity interests in the Company are publicly offered
securities, within the meaning of 29 C.F.R. SECTIONS
2510.3-101(b)(2);
(ii) Less than twenty-five percent (25%) of each
outstanding class of equity interests in the Company are held by
"benefit plan investors" within the meaning of 29 C.F.R. SECTIONS
2510.3-101(f)(2); or
(iii) The Company qualifies as an "operating company" or
a "real estate operating company" within the meaning of 29
C.F.R. SECTIONS 2510.3-101(c) or (e) or an investment company
registered under The Investment Company Act of 1940.
SECTION 8.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser
represents and warrants to Seller the following as of the Effective Date and as
of the Closing Date:
(a) STATUS. Purchaser is a limited liability company duly
organized and validly existing under the laws of the State of New Jersey.
(b) AUTHORITY. The execution and delivery of this Agreement and
the performance of Purchaser's obligations hereunder have been duly authorized
by all necessary action on the part of Purchaser and this Agreement constitutes
the legal, valid and binding obligation of Purchaser.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Purchaser and the consummation by Purchaser of the transactions
contemplated hereby will not violate any judgment, order, injunction, decree,
regulation or ruling of any court or Authority or conflict with, result in a
breach of or constitute a default under the organizational documents of
Purchaser, any note or other evidence of indebtedness, any mortgage, deed of
trust or indenture, or any lease or other material agreement or instrument to
which Purchaser is a party or by which it is bound.
(d) CONSENTS. No consent, waiver, approval or authorization is
required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Purchaser or the
performance by Purchaser of the transactions contemplated hereby.
SECTION 8.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. The representations and warranties of Seller set forth in Section 8.1
will survive the Closing. The Closing Surviving Obligations will survive Closing
without limitation unless a specified period is otherwise provided in this
Agreement. All other representations, warranties, covenants and agreements made
or undertaken by Seller under this Agreement, unless otherwise specifically
provided herein, will not survive the Closing Date but will be merged into the
Assignment and other Closing documents delivered at the Closing.
SECTION 8.4 INDEMNITY.
(a) Seller shall indemnify and hold harmless Purchaser and each
member of Purchaser individually, and its directors, officers, shareholders,
employees, successors, affiliates, trustees, partners, or principals from and
against, any actual damages, loss, cost, liability, damage, expense (including
reasonable attorneys' and other professionals' fees and disbursements), penalty
or fine incurred, but shall exclude any consequential, speculative, punitive or
special damages of Purchaser itself or its affiliates, in connection with or
arising from any breach of representation or warranty made in Section 8.1 above.
For the purposes of determining whether a breach of any representation or
warranty made in Section 8.1 above has occurred and of measuring damages arising
out of breaches of representations and warranties in this Agreement, any
qualifications relating to the 'knowledge' of the Seller and/or the Companies
contained in such representations and warranties shall be ignored.
(b) Seller shall indemnify and hold harmless Purchaser and each
member of Purchaser individually, and its directors, officers, shareholders,
employees, successors, affiliates, trustees, partners, or principals from and
against, any actual loss, cost, liability, damage, expense (including reasonable
attorneys' and other professionals' fees and disbursements), penalty or fine
incurred, but shall exclude any consequential, speculative, punitive or special
damages of Purchaser itself or its affiliates, in connection with or arising
from any claim relating to the Companies and the Real Properties attributable to
the period prior to the Closing.
(c) In the event that during the ownership of the Real Properties
by the Companies and of the Membership Interests by Purchaser, neither Standard
& Poor nor Xxxxx'x
is rating Seller as investment grade and the book value, determined in
accordance with Generally Accepted Accounting Principles of Seller (excluding
goodwill and adding back all accumulated depreciation and amortization) falls
below $1,500,000,000, within thirty (30) days thereof, Seller shall, at Seller's
sole expense, provide to Purchaser:
(i) updated Phase I environmental reports for all of the
Real Properties reasonably satisfactory to Purchaser prepared by
the environmental consultant who prepared the most recent such
reports submitted by Seller to Purchaser prior to Closing; and
(ii) title policies in favor of Purchaser reasonably
satisfactory to Purchaser in the amount of at least $86,000,000
(but in no event less than an amount which would prevent
Purchaser from being a co-insurer) in the aggregate for all of
the Real Properties issued by the title company which issued the
most recent title policies in favor of Seller or other title
companies reasonably acceptable to Purchaser.
(d) If the Seller for any reason fails to comply with
subparagraphs (c)(i) and (ii) above within the above-mentioned thirty (30) day
period, within ten (10) business days from the date of expiration of such
period, Seller shall at the cost of Seller deliver at Seller's sole expense to
Purchaser an irrevocable standby letter of credit in the amount of $86,000,000
to secure Seller's obligations under this Section 8.4. in a form reasonably
acceptable to Purchaser, renewable annually for a period of no less than three
(3) years, and issued by a bank selected by Seller which is rated AA by all
agencies which have jurisdiction to rate the bank, or otherwise reasonably
acceptable to Purchaser. If the selected bank is downgraded below AA after
issuance of the letter of credit, a replacement letter of credit on all of the
same terms set forth herein must be obtained from a AA rated bank as soon as
reasonably possible. If the above-mentioned letter of credit is for any reason
not renewed during the term thereof within 30 days prior to any annual
expiration, the Purchaser shall be able to draw against the letter of credit
prior to its expiration in accordance with its terms.
(e) In the event that all of the Real Properties are sold by the
Companies or that all of the Membership Interests are sold by Purchaser, on or
prior to the closing of the sale of the Real Properties or the Membership
Interests, Seller shall deliver to Purchaser at Seller's sole expense an updated
Phase I environmental report for all of the Real Properties prepared by the
environmental consultant who prepared the most recent such report submitted by
Seller to Purchaser or such other environmental consultants reasonably
acceptable to Purchaser which are dated on or about the xxxx Xxxxxx purchased
such Real Properties.
(i) If the above-mentioned updated Phase I environmental
reports for all of the Real Properties show no adverse change
from the most recent such reports submitted to and approved by
Seller prior to Closing, Seller shall have no further obligations
under this Section 8.4(c).
(ii) If the above-mentioned updated Phase I environmental
reports for
any of the Real Properties show any adverse change from the most
recent such reports submitted to and approved by Seller prior to
Closing and Seller's investment rating falls or Seller is not
rated as set forth in subsection (c) above, within ten (10)
business days from the date of delivery of such reports by
Seller to Purchaser, Seller shall arrange at Seller's sole
expense an indemnity, in form and substance reasonably approved
by Purchaser by a person or entity with a book value determined
in accordance with GAAP (excluding goodwill and adding back
accumulated depreciation and amortization) of $100,000,000, as
verified by Purchaser to its reasonable satisfaction.
This Section 8.4 shall survive the Closing.
ARTICLE IX
CONDITIONS PRECEDENT TO CLOSING
SECTION 9.1 CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment at or prior to the Closing of all of the following
conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the items
required to be delivered to Purchaser pursuant to the terms of this Agreement,
including but not limited to, those provided for in Section 10.3.
(b) All of the representations and warranties of Seller contained
in this Agreement shall be true and correct in all material respects as of the
date of Closing.
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Seller as of the Closing Date.
SECTION 9.2 CONDITIONS PRECEDENT TO OBLIGATION TO SELLER. The
obligation of Seller to consummate the transaction hereunder shall be subject to
the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Seller in it sole discretion:
(a) Seller shall have received the Purchase Price as adjusted
pursuant to, and payable in the manner provided for, in this Agreement.
(b) Purchaser shall have delivered to Seller all of the items
required to be delivered to Seller pursuant to the terms of this Agreement,
including but not limited to, those provided for in Section 10.2.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with
appropriate modifications permitted under this Agreement or not materially
adverse to Seller).
(d) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Purchaser as of the Closing Date.
(e) The Companies and an Affiliate of Seller shall have entered
into the Management Agreement to become effective as of the Closing.
ARTICLE X
CLOSING
SECTION 10.1 CLOSING. The consummation of the transaction
contemplated by this Agreement by delivery of documents and payments of money
shall take place on the Closing Date at the office of Weil, Gotshal & Xxxxxx,
767 Fifth Avenue (GM Building), New York, New York, or such other place as the
parties agree. At Closing, the events set forth in this Article X will occur, it
being understood that the performance or tender of performance of all matters
set forth in this Article X are mutually concurrent conditions which may be
waived by the party for whose benefit they are intended. The acceptance of the
Assignment by Purchaser shall be deemed to be full performance and discharge of
each and every agreement and obligation on the part of the Seller to be
performed hereunder unless otherwise specifically provided herein.
SECTION 10.2 PURCHASER'S CLOSING OBLIGATIONS. At the Closing,
Purchaser will deliver the following items to Seller as provided herein:
(a) The Purchase Price, after all adjustments are made as herein
provided, by Federal Reserve wire transfer of immediately available funds, in
accordance with the timing and other requirements of Section 3.2;
(b) A counterpart original of the Assignment, duly executed by
Purchaser;
(c) An original ratification of the Companies' execution and
delivery of the Management Agreement, duly executed by the Purchaser as the new
sole member of the Companies; and
(d) Evidence reasonably satisfactory to Seller that the person
executing the Assignment and the other Closing documents on behalf of Purchaser
has full right, power and authority to do so.
SECTION 10.3 SELLER'S CLOSING OBLIGATIONS. At the Closing, Seller
will deliver to Purchaser the following documents:
(a) A counterpart original of the Assignment, duly executed by
Seller, assigning and transferring to the Purchaser the Membership Interests;
(b) The original Management Agreements, duly executed by the
Companies and an Affiliate of Seller which will be the manager thereunder;
(c) The Phase I Update;
(d) Title endorsements commonly referred to as the Fairway
Endorsement and the Non-imputation Endorsement (the "TITLE ENDORSEMENTS") to the
Title Policy in a form satisfactory to Purchaser;
(e) Evidence reasonably satisfactory to Purchaser that the person
executing the documents delivered by Seller or its Affiliates pursuant to this
Section 10.3 has full right, power, and authority to do so;
(f) A certificate in the form attached hereto as EXHIBIT F
("CERTIFICATE AS TO FOREIGN STATUS") certifying that Seller is not a "foreign
person" as defined in Section 1445 of the Internal Revenue Code of 1986, as
amended, as well as any form or other document required under applicable laws to
be executed by Seller in connection with any transfer tax applicable to the
transaction contemplated by this Agreement;
(g) All original Leases, to the extent in Seller's or the
Companies' possession, and all original Licenses and Permits and Service
Contracts in Seller's or the Companies' control bearing on the Properties (to be
delivered to the property manager under the Management Agreement);
(h) A certificate, dated as of the date of Closing, stating that
the representations and warranties of Seller contained in Section 8.1 are true
and correct in all material respects as of the Closing Date or identifying any
representation or warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the change. If, despite changes or
other matters described in such certificate, the Closing occurs, Seller's
representations and warranties set forth in this Agreement shall be deemed to
have been modified by all statements made in such certificate;
(i) The Lease Schedules, updated to show any changes and dated as
of no more than five (5) Business Days prior to the Closing Date; and
(j) UCC Search in respect of Seller regarding assignment of
membership interests at Secretary of State's office
(k) UCC Searches for fixtures and Personal Property in respect of
the Companies at state, in county of property location and executive office, if
different, or county of residence if applicable
(l) Litigation searches for the Companies
(m) Tax Lien searches for the Companies
(n) Amendments of the operating agreements for the Companies to
reflect changes in membership and, in the case of Xxxx-Xxxx Xxxxxx Realty
L.L.C., removal of reference to 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx.
(o) FIRPTA requirements (Federal)
(p) Original executed Asset Management Agreement
(q) Approved Budgets for the Companies in form satisfactory to
Purchaser
(r) Certified Service Contracts List in form satisfactory to
Purchaser
(s) Certified Rent Roll in respect of the Real Properties in form
satisfactory to Purchaser
(t) Environmental reliance letter enabling Purchaser to rely on
the Phase I Update in form satisfactory to Purchaser
(u) Real estate tax bills and assessments and evidence of payment
for last three years in form satisfactory to Purchaser
(v) Legal opinion of Seller's counsel in form satisfactory to
Purchaser relating to (i) due authority of the Seller; and enforceability of
this Agreement and the Assignments for transfer of the Membership Interests
contemplated hereby and related hereto;
(w) Tax opinion in form satisfactory to Purchaser
(x) Surveys of the Real Properties
(y) The organizational documents in respect of Seller and the
Companies listed on EXHIBIT H annexed hereto
(z) Documents evidencing transfer of 1 Sylvan way, to a party
other than Purchaser.
(aa) Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transaction which is the subject
of this Agreement.
(bb) All certificates of occupancy in the possession of the
Companies with respect to the Real Properties.
SECTION 10.4 CLOSING STATEMENT; POST-CLOSING OBLIGATIONS.
(a) CLOSING STATEMENT. Seller agrees that the Closing Statement
will reflect the following fair and accurate adjustments (as of 11:59 p.m. on
the day preceding the Closing Date):
(i) Seller will receive a credit in the amount of any
cash on hand or in any bank, savings or other deposit accounts
held in the name of or for the benefit of the Companies.
(ii) Seller will receive a credit for any prepaid amounts
for periods after the Closing Date under any agreement or
contracts (including insurance policies) to which the Companies
are a party and which will survive the Closing.
(iii) Seller will receive a credit equal to the value of
fuel stored at the Real Properties, at the Companies' most recent
cost, including taxes, on the basis of a reading made within ten
(10) days prior to the Closing by the Companies' supplier.
(iv) Purchaser will receive a credit in the amount of the
Security Deposits and any prepaid Rents, together with interest
required to be paid thereon.
(v) Purchaser will receive a credit in the amount of the
utility charges payable by the Companies for periods prior to the
Closing Date, including, without limitation, electricity, water
charges and sewer charges, based on the most current information.
(vi) Purchaser will receive a credit equal to the amounts
payable under the Service Contracts for services rendered prior
to the Closing Date.
(vii) Purchaser will receive a credit for any other
amounts payable under any other agreement or contracts (including
insurance policies) relating to the Companies or the Property for
periods prior to the Closing Date and for any other liability
whatsoever of the Companies incurred or arising prior to the
Closing Date.
(viii) Purchaser will receive a credit in the amount of
the real estate taxes due and payable for periods prior to the
Closing Date, based on the most current information.
Within fifteen (15) days following the Closing, Seller will deliver to Purchaser
the Closing Statement. Any amounts shown by the Closing Statement to be due by
any party to the other pursuant to this Section 10.4(a) will be paid within
fifteen (15) days following execution of the Closing Statement by Purchaser and
Seller. Section 10.4 (a) shall survive the Closing.
(b) POST-CLOSING RECEIPT OF RENTAL. All Rentals received by the
Companies
or the Purchaser on or after the Closing Date shall first be applied by
Purchaser for payment of Rentals owing in respect of periods commencing on or
after the Closing Date then, to the extent any Rentals so received are
remaining, the remainder shall be paid or turned over to Seller to the extent
attributable to any period prior to the Closing Date. "RENTALS" as used herein
includes fixed monthly rentals, additional rentals, percentage rentals,
escalation rentals (which include each Tenant's proportionate share of building
operation and maintenance costs and expenses as provided for under the Lease, to
the extent the same exceeds any expense specified in such Lease), retroactive
rentals, all administrative charges, utility charges, other common area
maintenance charges, real and personal property taxes and assessments, tenant or
real property association dues, storage rentals, special event proceeds,
temporary rents, telephone receipts, locker rentals, vending machine receipts
and other sums, charges, fees or pass-through items payable by Tenants under the
Leases or from other occupants or users of the Properties. The provisions of
this Section 10.4(b) shall survive the Closing indefinitely.
(c) COST OF DUE DILIGENCE ITEMS IN EVENT OF SALE. In the event
that Purchaser sells or refinances the Membership Interests or the Companies
sell or refinance any of the Real Properties to or with any party other than an
affiliate of Seller, Seller shall bear at its sole expense, the cost of the
following due diligence items if required to be provided by Purchaser or any of
the Companies in connection with any such transaction: (i) engineering reports;
(ii) Phase I environmental reports; (iii) appraisal; (iv) title reports,
searches and endorsements; (v) surveys; (vi) certificates of occupancy.
ARTICLE XI
TERMINATION AND REMEDIES
(a) PURCHASER'S TERMINATION. Provided that Purchaser is not then
in material breach of this Agreement, this Agreement shall terminate, upon
receipt by Seller of Purchaser's written notice of termination without further
notice or action by Purchaser, if any condition to Closing contained in Section
10.2 has not been satisfied or waived by Seller in writing by the Closing Date;
(b) SELLER'S TERMINATION. Provided that Seller is not then in
material breach of this Agreement, this Agreement shall terminate, upon receipt
by Purchaser of Seller's written notice of termination without further notice or
action by Seller, if any condition to Closing contained in Section 10.3 has not
been satisfied or waived by Purchaser in writing by the Closing Date;
(c) PURCHASER'S REMEDIES. If Seller materially breaches this
Agreement, Purchaser shall be entitled to pursue the remedy of specific
performance and the return of any deposit (and any interest accrued thereon)
from Seller and Seller shall be liable to Purchaser for such actual costs and
expenses (which shall include, without limitation, reasonable attorneys' fees
and costs) of enforcing the rights of Purchaser under this Agreement. This
Article XI(c) shall survive the Closing.
(d) SELLER'S REMEDIES. If Purchaser breaches this Agreement,
Seller shall be entitled to pursue all remedies permitted herein and by law,
including, without any limitation, the remedy of specific performance and the
retention of any deposit (and any interest accrued thereon) from Purchaser.
(e) INDEMNIFICATION PROCEDURES.
(i) If Purchaser (the"Indemnitee") becomes aware of any
matter for which it believes it is entitled to indemnification
under Section 8.4, hereof that involves (i) any claim made
against the Indemnitee or (ii) the commencement of any action,
suit, investigation, arbitration, or similar proceeding against
the Indemnitee, the Indemnitee will give Seller (the
"Indemnifying Party") prompt written notice of such claim or
commencement of such action, suit, investigation, arbitration, or
similar proceeding. Such notice will (A) provide (with reasonable
specificity) the basis on which indemnification is being
asserted, (B) set forth the actual or estimated amount of damages
for which indemnification is being asserted, if known, and (C) be
accompanied by copies of all relevant pleadings, demands and
other papers served on the Indemnitee.
(ii) The Indemnifying Party will have a period of 30-days
after the delivery of each notice required by Section 11.2(a)
hereof during which to respond to such notice. If the
Indemnifying Party elects to defend the claim described in such
notice or does not respond within such 30-day period, the
Indemnifying Party will be obligated to compromise or defend (and
will control the defense of) such claim, at is own expense and by
counsel chosen by the Indemnifying Party and reasonably
satisfactory to the Indemnitee. The Indemnitee will cooperate
fully with the Indemnifying Party and counsel for the
Indemnifying Party in the defense against any such claim and the
Indemnitee will have the right to participate at its own expense
in the defense of any such claim. If the Indemnifying party
responds within such 30-day period and elects not to defend such
claim, the Indemnitee will be free to compromise or defend (and
control the defense of) such claim and to pursue such remedies as
may be available to the Indemnitee under applicable law.
(iii) Any compromise or settlement of any claim (whether
defended by the Indemnitee or by Indemnifying Party) will require
the prior written consent of the Indemnitee and the Indemnifying
Party.
(iv) Any reasonable costs or expenses incurred and paid
by the Indemnitee in connection with the exercise of any of its
rights under this Section 10.4 or with respect to a matter for
which it is indemnified under Section 8.4 of this Agreement shall
be paid by the Indemnifying Party on demand and if the
Indemnifying Party fails to pay such amounts demanded within five
(5) days of demand, the amounts demanded will bear interest at
the lower fifteen (15%) per annum or the maximum applicable
lawful rate; PROVIDED, HOWEVER, that the Indemnifying Party's
obligation to pay such costs, expenses and interest shall not
apply for any period claimed in the event that Indemnifying Party
obtains a final judgement or order that the Indemnitee is not
entitled to indemnification or to payment of costs or expenses
under the provisions of Section 8.4 or 10.4 of this Agreement.
ARTICLE XII
CONFIDENTIALITY
SECTION 12.1 PRESS RELEASES. Before either of Seller or Purchaser
discloses in writing to any third party any of the terms and conditions of this
Agreement (or the transaction contemplated hereby), such party shall provide a
copy of such writing to the other party for its review and comment (but not its
approval). Either Seller or Purchaser may request a meeting to discuss any such
writing. The provisions of this Section 12.1 will survive the Closing.
ARTICLE XIII
[INTENTIONALLY OMITTED.]
ARTICLE XIV
[INTENTIONALLY OMITTED.]
ARTICLE XV
ASSIGNMENT
SECTION 15.1 ASSIGNMENT. No party shall have any right to assign
this Agreement or any portion thereof.
ARTICLE XVI
BROKERAGE
SECTION 16.1 BROKERS. Purchaser and Seller represent that they
have not dealt with any brokers, finders or salesmen, in connection with this
transaction, and agree to indemnify, defend and hold each other harmless from
and against any and all loss, cost, damage, liability or expense, including
reasonable attorneys' fees, which either party may sustain, incur or be exposed
to by reason of any claim for fees or commissions made through the other party.
The provisions of this Article XVI will survive any Closing.
ARTICLE XVII
[INTENTIONALLY OMITTED.]
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.1 WAIVERS. No waiver of any breach of any covenant or
provisions contained herein will be deemed a waiver of any preceding or
succeeding breach thereof, or of any other covenant or provision contained
herein. No extension of time for performance of any obligation or act will be
deemed an extension of the time for performance of any other obligation or act.
SECTION 18.2 RECOVERY OF CERTAIN FEES. In the event a party
hereto files any action or suit against another party hereto by reason of any
breach of any of the covenants, agreements or provisions contained in this
Agreement, then in that event the prevailing party will be entitled to have and
recover certain fees from the other party including all reasonable attorneys'
fees and costs resulting therefrom. For purposes of this Agreement, the term
"attorneys' fees" or "attorneys' fees and costs" shall mean the fees and
expenses of counsel to the parties hereto, which may include printing,
photostatting, duplicating and other expenses, air freight charges, and fees
billed for law clerks, paralegals and other persons not admitted to the bar but
performing services under the supervision of an attorney, and the costs and fees
incurred in connection with the enforcement or collection of any judgment
obtained in any such proceeding. The provisions of this Section 18.2 shall
survive the entry of any judgment, and shall not merge, or be deemed to have
merged, into any judgment.
SECTION 18.3 CONSTRUCTION. Headings at the beginning of each
article and section are solely for the convenience of the parties and are not a
part of this Agreement. Whenever required by the context of this Agreement, the
singular will include the plural and the masculine will include the feminine and
vice versa. This Agreement will not be construed as if it had been prepared by
one of the parties, but rather as if both parties had prepared the same. All
exhibits and schedules referred to in this Agreement are attached and
incorporated by this reference, and any capitalized term used in any exhibit or
schedule which is not defined in such exhibit or schedule will have the meaning
attributable to such term in the body of this Agreement. In the event the date
on which Purchaser or Seller is required to take any action under the terms of
this Agreement is not a Business Day, the action will be taken on the next
succeeding Business Day.
SECTION 18.4 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which, when assembled to include an original
signature for each party contemplated to sign this Agreement, will constitute a
complete and fully executed original. All such fully executed original
counterparts will collectively constitute a single agreement.
SECTION 18.5 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of law
or public policy, all of the other conditions and provisions of this Agreement
will nevertheless remain in full force and effect, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
adverse manner to either party. Upon such determination that any term or other
provision is
invalid, illegal, or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to reflect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
SECTION 18.6 ENTIRE AGREEMENT. This Agreement is the final
expression of, and contains the entire agreement between, the parties with
respect to the subject matter hereof, and supersedes all prior understandings
with respect thereto. This Agreement may not be modified, changed, supplemented
or terminated, nor may any obligations hereunder be waived, except by written
instrument, signed by the party to be charged or by its agent duly authorized in
writing, or as otherwise expressly permitted herein.
SECTION 18.7 GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED,
PERFORMED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
EXCEPT TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF THE STATE OF NEW JERSEY
IS MANDATORY. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF ANY STATE OR FEDERAL COURT SITTING IN THE CITY OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY
AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN A STATE OR FEDERAL COURT SITTING IN THE CITY OF NEW YORK.
SECTION 18.8 NO RECORDING. The parties hereto agree that neither
this Agreement nor any affidavit or memorandum concerning it will be recorded
and any recording of this Agreement or any such affidavit or memorandum by
Purchaser will be deemed a default by Purchaser hereunder.
SECTION 18.9 FURTHER ACTIONS. The parties agree to execute such
documents and instruments and to do such further acts as may be reasonably
necessary to carry out the provisions of this Agreement.
SECTION 18.10 EXHIBITS. The following sets forth a list of
Exhibits to the Agreement:
Exhibit A - Assignment
Exhibit B - Legal Description of Real Properties
Exhibit C - List of Service Contracts
Exhibit D - Suits and Proceedings
Exhibit E - Lease Schedules
Exhibit F - Certificate of Foreign Status
Exhibit G - List of Title Policies
Exhibit H - List of Organizational Documents
SECTION 18.11 NO PARTNERSHIP. Notwithstanding anything to the
contrary
contained herein, this Agreement shall not be deemed or construed to make the
parties hereto partners or joint venturers, it being the intention of the
parties to merely create the relationship of Seller and Purchaser with respect
to the Membership Interests to be conveyed as contemplated hereby.
SECTION 18.12 LIMITATIONS ON BENEFITS, ETC. It is the explicit
intention of Purchaser and Seller that no person or entity other than Purchaser,
the members of Purchaser individually, Seller and, to the extent applicable, the
Companies and the manager under the Management Agreement, and their respective
permitted successors and assigns is or shall be entitled to bring any action to
enforce any provision of this Agreement against any of the parties hereto, and
the covenants, undertakings and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, Purchaser, the
members of Purchaser individually, Seller and, to the extent applicable, the
Companies and said manager, or their respective successors and assigns as
permitted hereunder. Nothing contained in this Agreement shall under any
circumstances whatsoever be deemed or construed, or be interpreted, as making
any third party (other than the members of Purchaser individually) a beneficiary
of any term or provision of this Agreement or any instrument or document
delivered pursuant hereto, and Purchaser and Seller expressly reject any such
intent, construction or interpretation of this Agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Seller and Purchaser have respectively
executed this Agreement as of the Effective Date.
SELLER: XXXX-XXXX REALTY, L.P.,
a Delaware limited partnership
By: Xxxx-Xxxx Realty Corporation,
a Delaware corporation,
its general partner
By:
-----------------------------------
Xxxxx X. Xxxxxx,
Executive Vice President
PURCHASER: PARSIPPANY OFFICE ASSOCIATES L.L.C.
a New Jersey limited liability company
By: Xxxx-Xxxx Realty, L.P.,
a Delaware limited partnership,
its member
By: Xxxx-Xxxx Realty Corporation,
a Delaware corporation,
its general partner
By:
----------------------------
Xxxxx X. Xxxxxx,
Executive Vice President
By: Slab Investments Holding, Inc.,
a Delaware corporation
its member
By:
-----------------------------------
Xxxx Xxxxxxx
Assistant Secretary
[END OF SIGNATURES]
00
EXHIBIT H
ORGANIZATIONAL DOCUMENTS FOR DELIVERY BY SELLER
KEY
XX Xxxx-Xxxx Realty L.P.
LLC1 Xxxx-Xxxx Campus Realty LLC
LLC2 Xxxx-Xxxx Xxxxxx Realty LLC
1 For MC:
a. Partnership Agreement
b. Partnership Certificate
c. Certificate of Good Standing
d. Certificates of Good Standing for General Partner
e. Articles of Incorporation of General Partner (or other organizational documents, as applicable)
f. By-Laws of General Partner (or other organizational documents, as applicable)
g. Corporate Resolution and Incumbency Certificate of General Partner
h. Termination of Agreements
2 For LLC 1:
a. Articles of Organization
b. LLC Agreement
c. Certificates of Good Standing
d. Resignation from all offices of Company, including the board of managers, of MC dated the Closing Date
3 For LLC 2:
a. Articles of Organization
b. LLC Agreement
c. Certificates of Good Standing
d. Resignation from all offices of Company, including the board of managers, of MC dated the Closing Date
