XXXXXXX MONEY CONTRACT AND AGREEMENT
(ALL CASH)
THIS XXXXXXX MONEY CONTRACT AND AGREEMENT, dated for reference purposes as
of August 20, 1997, is made and entered into by and between NEW YORK LIFE
INSURANCE COMPANY, a New York mutual insurance company ("Seller"), and CALI
REALTY ACQUISITION CORPORATION, a Delaware corporation ("Purchaser").
The mailing, delivery, or negotiation of this Xxxxxxx Money Contract and
Agreement by Seller or its agents or attorneys shall not be deemed an offer by
Seller to enter into any transaction or to enter into any other relationship,
whether on the terms contained herein or on any other terms. This Xxxxxxx Money
Contract and Agreement shall not be binding upon Seller, nor shall Seller have
any obligations or liabilities or Purchaser any rights with respect thereto, or
with respect to the Property (as hereinafter defined), unless and until Seller
has executed and delivered this Xxxxxxx Money Contract and Agreement to the
Escrow Agent (as hereinafter defined). Until such execution and delivery of
this Xxxxxxx Money Contract and Agreement, Seller may terminate all negotiations
and discussions of the subject matter hereof, with or without cause and for any
reason without recourse or liability.
ARTICLE I
DEFINITIONS
The terms hereinafter used shall have the following meanings unless the
context of this Contract requires otherwise:
"Broker" means JGT Company.
"Closing" means the closing of the purchase and sale contemplated herein as
described in Article IV hereof.
"Closing Date" means the date on which the Closing occurs.
"Commission" means the fee that is to be paid to Broker in accordance with
Article IX hereof.
"Contract" means this Xxxxxxx Money Contract and Agreement and all written
amendments, modifications, and supplements thereto executed and delivered by
both Purchaser and Seller.
"Deed" means the customary New Jersey form of bargain and sale deed (with
covenant against grantor's acts), conveying good and indefeasible title in fee
simple to the Property subject to the Permitted Exceptions.
"Xxxxxxx Money" means One Hundred Thirty One Thousand Five Hundred Dollars
($131,500.00), to be paid in accordance with Article V hereof, plus interest
earned thereon while in possession of the Escrow Agent (as hereinafter defined).
"Effective Date" means the effective date of this Contract, which shall be
the first date by which the Escrow Agent (as hereinafter defined) has received a
fully executed copy of this Contract and the Xxxxxxx Money.
"Escrow Agent" means Seller's counsel, Epstein, Epstein, Xxxxx & Xxxxx, a
Professional Corporation, with offices at 000 Xxxxx Xxxxxxx Xxxx, Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.; Phone No.:
(000) 000-0000, Facsimile No.: (000) 000-0000.
"Escrow Agreement" means that certain Escrow Agreement of even date
herewith among Seller, Purchaser and Escrow Agent described in Section 5 and
substantially in the form attached as Exhibit H.
"Outside Closing Date" means August 29, 1997.
"Owner Title Policy" means an ALTA 1992 Form owner's policy of Title
Insurance issued by the Title Company to Purchaser, in a face amount equal to
the Total Purchase Price and subject to no exceptions other than the standard
printed exceptions described in Schedule B of the Title Commitment and all other
Permitted Exceptions.
"Permitted Exceptions" means (i) the title exceptions set forth on Exhibit
E attached hereto, and (ii) liens and encumbrances arising from and after the
Effective Date to which Purchaser has consented in writing.
"Property" means that certain tract of land in the Township of South
Brunswick, Middlesex County, New Jersey being more particularly described in
Exhibit A attached hereto, together with (i) all improvements thereon and all
and singular the rights and appurtenances pertaining thereto, (ii) all rights,
privileges, grants and easements appurtenant to the land and improvements,
including without limitation, all of Seller's right, title and interest in and
to all land lying in the bed of any public street, road or alley, all mineral
and water rights and all easements, licenses, covenants and rights-of-way or
other appurtenances used in connection with the beneficial use and enjoyment of
the land and improvements, (iii) all personal property, fixtures, equipment, and
inventory owned by Seller and located on or at, and used in connection with, the
land and improvements, (iv) all leases and other agreements with respect to the
use and occupancy of the land and improvements, together with all amendments and
modifications thereto and any guaranties provided thereunder, and rents,
additional rents, reimbursements, profits, income, receipts and the amount
deposited under any lease in the nature of security for the performance of the
obligations of the tenant or user under the leases, (v) all intangible property
owned by Seller and used in connection with the land and improvements, including
any trademarks and trade names used in connection with the land and
improvements, (vi) all permits, licenses, guaranties, approvals, certificates
and warranties in the possession and control
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of Seller relating to the land and improvements, (vii) all of Seller's right,
title and interest in and to those service contracts set forth in Exhibit K
hereof, and (viii) all other rights, privileges and appurtenances owned by
Seller, if any, and in any way related to the rights and interests described
herein.
"Survey" means a current ALTA "as built" survey of the Property to be
prepared by a surveyor acceptable to Purchaser.
"Title Commitment" means a written commitment for an ALTA 1992 Form
owner's policy of title insurance describing the Property and committing the
Title Company to issue such title policy at Closing and upon normal closing
conditions, subject only to the standard printed exceptions and to all
easements, rights-of-way, liens, restrictions and other encumbrances which (i)
are of record or known to the Title Company and (ii) affect the Property.
"Title Company" means First American Title Insurance Company with its
office located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Title Documents" means each recorded instrument that is listed on Schedule
B-2 of the Title Commitment.
"Total Purchase Price" means the total purchase price for the Property,
which shall be Thirteen Million One Hundred Fifty Thousand Dollars
($13,150,000.00).
ARTICLE II
PURCHASE AND SALE: PURCHASE PRICE
2.01 Purchase and Sale. Seller hereby agrees to sell and convey and
Purchaser hereby agrees to purchase the Property for the consideration and
upon and subject to the terms, provisions, and conditions set forth in this
Contract. The consideration for such purchase and sale shall be the Total
Purchase Price.
2.02 Payment of Total Purchase Price. The Total Purchase Price shall be
payable at Closing, in cash or by wire transfer of immediately available U.S.
federal funds to such account designated by Seller by written notice to
Purchaser given no later than three (3) business days prior to Closing.
ARTICLE III
CONTINGENCY PERIOD AND INSPECTIONS
3.01 Title Commitment. Within ten (10) business days after the Effective
Date hereof, Purchaser, at its expense, shall cause the Title Company to issue
and deliver to Purchaser and Seller
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the Title Commitment and copy of the Title Documents. If the Title
Commitment discloses exceptions other than the Permitted Exceptions
("Unpermitted Exceptions"), Seller agrees to use good faith efforts to have
any such Unpermitted Exceptions removed from the Title Commitment by the
Title Company at or prior to Closing. Seller, in its discretion, may adjourn
the Closing for up to sixty (60) days in order to eliminate the Unpermitted
Exceptions. In the event Seller is unable to eliminate the Unpermitted
Exceptions on or before such adjourned Closing Date, Purchaser shall elect
(i) to terminate this Contract by notice given to the Seller, in which event
the Xxxxxxx Money shall be returned to Purchaser as Purchaser's sole remedy
hereunder and Purchaser and Seller shall have no further obligations to each
other hereunder except as otherwise provided in Sections 3.04 and 3.05 of
this Contract, or (ii) to accept title subject to such Unpermitted Exceptions
and receive no credit against or reduction in the Purchase Price. Seller
shall have no affirmative obligation hereunder to expend any funds or incur
any liabilities in order to cause any title exceptions to be removed from the
Title Commitment, except that Seller shall pay or discharge any and all liens
and encumbrances which can be satisfied by payment of a liquidated amount
and are not created by or resulting from the acts of Purchaser.
3.02 Survey. Purchaser shall be responsible to obtain its own Survey of
the Property, at Purchaser's sole cost and expense.
3.03 Property Information. Purchaser acknowledges receipt of the following
items from Seller:
(a) Rent roll current as of June 30, 1997;
(b) Site and building plans;
(c) Tax statements for the calendar year 1996;
(d) Operating statements which are available for the calendar
year 1996 and the months of January through June, 1997;
(e) Personal property and equipment inventory;
(f) Copies of all service contracts in Seller's possession
affecting the Property (the "Service Contracts");
(g) Copies of all existing leases, amendments and modifications
thereto in Seller's possession ( the "Leases");
(h) Copy of the existing title policy;
(i) Copy of the existing survey;
(j) Certificates of Occupancy in Seller's possession for the Leases;
and
(k) Phase I Environmental Site Assessment prepared for New York
Life Insurance Company by Professional Service Industries,
Inc. dated November 11, 1994.
The information contained in items (a) and (d) above is believed to be
accurate, and Seller is not aware of any reason to believe otherwise, but Seller
does not represent or warrant the accuracy thereof. As to item (k), Seller
makes no representations or warranties as to the accuracy and completeness of
the report.
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3.04 Inspections. Seller agrees that at any reasonable time during the
pendency of this Contract, Purchaser, its agents and contractors, may enter upon
the Property and make, at Purchaser's sole cost, risk, and expense, any
investigations, inspections, tests, survey, and studies of the Property that
Purchaser may, in Purchaser's sole discretion, desire, including, but not
limited to, soil tests and borings, groundwater tests and borings, and
environmental studies; provided, however, if Purchaser terminates this Contract
pursuant to the terms and conditions hereof, Purchaser shall deliver to Seller a
copy of every report of findings that is issued as a result of such activities,
and Purchaser shall cause any portion of the Property altered by Purchaser, its
agents or contractors, to be restored to substantially the same condition as
existed prior to any of Purchaser's or its agents' activities which altered the
condition of the Property. Purchaser shall indemnify and save Seller harmless
from and against any and all damages, costs, injuries, and liabilities to the
Property and/or any persons or property of any person to the extent arising out
of or in connection with any such inspections, tests, surveys, studies, or any
other entry upon or use of the Property by Purchaser or its agents. Purchaser
may enter upon the Property, provided (i) Purchaser notifies Seller or Seller's
representative (which notice may be oral or written) of its intent to inspect,
test, survey or study; (ii) Purchaser is accompanied by a representative of
Seller (unless waived by Seller) (Seller will make a representative available to
Purchaser upon reasonable notice); (iii) any inspection of any tenant's
premises shall be subject to any limitations on landlord's entry contained in
such tenant's lease; and (iv) such entry on and investigating, inspecting,
testing, surveying, and studying of the Property does not unreasonably interfere
with the operation of the Property or the peaceful possession of tenants of
their respective leased premises. Purchaser shall keep confidential the results
of all of its inspections of the Property. The provisions of this Section 3.04
shall survive the Closing or any termination or cancellation of this Contract.
3.05 Confidentiality. Purchaser agrees that it has no present intention of
making any public announcement about the results of any inspection, test,
survey, or study conducted pursuant of Section 3.04 hereof. If this Contract is
terminated for any reason, Purchaser shall promptly return to Seller all of the
documents and information theretofore delivered to Purchaser by Seller,
including without limitation, all documents recited in Section 3.03 hereof, plus
every report of findings obtained pursuant to Section 3.04 hereof. Seller shall
not deliver any of such documents, or otherwise knowingly transmit any of the
information contained in any such documents, to any third party except Seller's
counsel, property manager or other advisors, provided such individuals agree to
be bound to the same burdens of confidentiality and nondisclosure as Seller. At
no time prior to the Closing Date, or after this Contract is terminated, shall
Purchaser deliver any of the documents theretofore delivered to Purchaser by
Seller or obtained by Purchaser pursuant to Section 3.04 hereof, or otherwise
knowingly transmit any of the information contained in any such documents, to
any third party except Purchaser's counsel, other advisors, potential lenders or
mortgage brokers, provided such individuals agree to be bound to the same
burdens of confidentiality and nondisclosure as Purchaser. The covenants set
forth in this Section 3.05 shall survive the termination or closing of this
Contract. Purchaser agrees that any public announcement about the purchase and
sale transaction contemplated hereby, or of any of the terms hereof, shall be
subject to the prior approval of Seller as to the text of the announcement, not
to be unreasonably withheld or delayed.
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3.06 PROPERTY CONDITION. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER
OWNS THE PROPERTY AS A RESULT OF A FORECLOSURE OR DEED IN LIEU OF FORECLOSURE,
THAT PURCHASER IS EXPERIENCED IN THE OWNERSHIP AND OPERATION OF PROPERTIES
SIMILAR TO THE PROPERTY AND THAT PURCHASER PRIOR TO THE CLOSING DATE WILL HAVE
INSPECTED THE PROPERTY TO ITS SATISFACTION AND REVIEWED THE LEASES AND IS
QUALIFIED TO MAKE SUCH INSPECTION AND REVIEW. PURCHASER ACKNOWLEDGES THAT IT IS
FULLY RELYING ON PURCHASER'S (OR PURCHASER'S REPRESENTATIVES') INSPECTIONS OF
THE PROPERTY AND REVIEW OF THE LEASES AND NOT UPON ANY STATEMENTS (ORAL OR
WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER
OR ANY OF ITS REPRESENTATIVES. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS (OR
PURCHASER'S REPRESENTATIVES HAVE), OR PRIOR TO THE CLOSING DATE WILL HAVE,
THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY AND REVIEWED THE LEASES TO THE
EXTENT DEEMED NECESSARY BY PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE
THE CONDITION OF THE PROPERTY AND ALL OTHER ASPECTS OF THE PROPERTY (INCLUDING,
BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY), AND PURCHASER
ACKNOWLEDGES THAT PURCHASER IS RELYING SOLELY UPON ITS OWN (OR ITS
REPRESENTATIVES') INSPECTION, EXAMINATION AND EVALUATION OF THE PROPERTY AND THE
LEASES. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS CONTRACT AND THE
PURCHASE, PURCHASER HEREBY AGREES TO ACCEPT THE PROPERTY ON THE CLOSING DATE IN
ITS "AS IS", "WHERE IS" CONDITION AND WITH ALL FAULTS, AND, EXCEPT AS EXPRESSLY
SET FORTH HEREIN, WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, EXCEPT ONLY THE TITLE WARRANTIES
EXPRESSLY SET FORTH IN THE DEED. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, IN CONNECTION WITH THE SALE OF THE PROPERTY TO PURCHASER, EXCEPT AS
EXPRESSLY SET FORTH HEREIN, SELLER AND SELLER'S OFFICERS, AGENTS, DIRECTORS,
EMPLOYEES, ATTORNEY, CONTRACTORS AND AFFILIATES ("SELLER'S RELATED PARTIES")
HAVE MADE NO, AND SPECIFICALLY DISCLAIM, AND PURCHASER ACCEPTS THAT SELLER AND
SELLER'S RELATED PARTIES HAVE DISCLAIMED, ANY AND ALL REPRESENTATIONS,
GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW
(EXCEPT AS TO TITLE AS HEREINABOVE PROVIDED), OF OR RELATING TO THE PROPERTY,
INCLUDING WITHOUT LIMITATION, OF OR RELATING TO (I) THE USE, INCOME POTENTIAL,
EXPENSES, OPERATION, CHARACTERISTICS OR CONDITION OF THE PROPERTY OR ANY PORTION
THEREOF, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY,
MERCHANTABILITY, TENANTABILITY, DESIGN OR FITNESS FOR ANY SPECIFIC OR A
PARTICULAR PURPOSE, OR GOOD AND WORKMANLIKE CONSTRUCTION, (II) THE NATURE,
MANNER, CONSTRUCTION,
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CONDITION, STATE OF REPAIR OR LACK OF REPAIR OF ANY IMPROVEMENTS LOCATED ON
THE PROPERTY, ON THE SURFACE OR SUBSURFACE THEREOF, WHETHER OR NOT OBVIOUS,
VISIBLE OR APPARENT, (III) THE NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL
DESIGN OR ENGINEERING OF THE PROPERTY, (IV) THE ENVIRONMENTAL CONDITION OF
THE PROPERTY AND THE PRESENCE OR ABSENCE OF OR CONTAMINATION BY HAZARDOUS
MATERIALS, OR THE COMPLIANCE OF THE PROPERTY WITH REGULATIONS OR LAWS
PERTAINING TO HEALTH OR THE ENVIRONMENT, AND (V) THE SOIL CONDITIONS,
DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING
IN, ON, OR UNDER THE PROPERTY. THE PURCHASER HEREBY EXPRESSLY ASSUMES ALL
RISKS, LIABILITIES, CLAIMS, DAMAGES, AND COSTS (AND AGREES THAT SELLER SHALL
NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER
DAMAGES) ON AND AFTER THE CLOSING DATE RESULTING OR ARISING FROM OR RELATED
TO THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR OR OPERATION
OF THE PROPERTY AFTER THE CLOSING DATE. EXCEPT AS OTHERWISE MAY BE AGREED IN
WRITING BY THE PARTIES, PURCHASER ACKNOWLEDGES THAT ANY CONDITION OF THE
PROPERTY WHICH PURCHASER DISCOVERS OR DESIRES TO CORRECT OR IMPROVE PRIOR TO
OR AFTER THE CLOSING DATE SHALL BE AT PURCHASER'S SOLE EXPENSE. PURCHASER
EXPRESSLY WAIVES (TO THE EXTENT ALLOWED BY APPLICABLE LAW) ANY CLAIMS UNDER
FEDERAL LAW, STATE OR OTHER LAW THAT PURCHASER MIGHT OTHERWISE HAVE AGAINST
SELLER RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE PROPERTY.
3.07 Leasing. Seller shall not enter into new leases or negotiate
modifications or renewals of Leases for the Property or portions thereof or make
any capital expenditures on the Property without Purchaser's consent which shall
be given or withheld in Purchaser's sole discretion. Purchaser shall respond to
Seller's notice for consent to any new lease, Lease renewal or capital
expenditures on the Property within two (2) business days of receiving notice.
Purchaser shall be required to pay brokerage commission and tenant improvements
allowance for any new lease, Lease renewal, or Lease expansion which takes
effect after the Effective Date and prior to Closing, provided that (i)
Purchaser consents to such new lease, Lease renewal, or Lease expansion, (ii)
the commission and allowance is expressly set forth in Seller's notice for
consent, and (iii) Purchaser shall not pay any brokerage commission(s) to
Seller, Broker, or an affiliate of either unless Purchaser expressly agrees in
writing.
ARTICLE IV
CLOSING
4.01 Time of Closing. The Closing shall be held at 10 A.M. local time in
the offices of Seller's counsel, Epstein, Epstein, Xxxxx & Xxxxx, in Chatham
Township, New Jersey, on the
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Outside Closing Date or at such other place as the parties hereto may
mutually agree. Closing may be held at an earlier date mutually satisfactory
to Seller and Purchaser. If the Outside Closing Date is not a business day,
Closing shall be held on the next succeeding business day.
4.02 Seller's Obligations. At Closing, Seller shall deliver or cause to be
delivered to Purchaser the following:
(a) The Deed, duly executed and acknowledged.
(b) Possession of the Property, free and clear of occupancies,
tenancies, or parties in possession other than pursuant to
the Permitted Exceptions or listed on Exhibit J hereto.
(c) An assignment and assumption of leases affecting the
Property (Exhibit I) duly executed and acknowledged and an
assignment and assumption of service contracts, if required,
duly executed and acknowledged.
(d) Certified (as of Closing Date) rent roll (Exhibit J).
(e) A standard form of tenant notice letter (Exhibit C), duly
executed, informing tenants that the Property has been sold.
(f) A certificate (Exhibit B) indicating that Seller is not a
foreign person, foreign corporation, foreign partnership,
foreign trust or foreign estate as those terms are defined
in the Internal Revenue Code and Income Tax Regulations.
(g) The originals or certified true copies of the Leases and
Service Contracts, and any certificate of occupancy in
Seller's possession.
(h) An affidavit of title in form and substance reasonably
acceptable to the Title Company.
(i) An original letter of non-applicability issued by the New
Jersey Department of Environmental Protection pursuant to
the Industrial Site Recovery Act, N.J.S.A. 13:1k-6, et seq.
(j) A duly executed resolution authorizing the sale and
conveyance as herein required.
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(k) Such other and further documents as may be reasonably
requested by the Title Company or Purchaser to effectuate
the Closing in accordance with the terms hereof.
(l) Original Estoppel Certificates.
(m) Closing Statement with prorations.
(n) Originals or certified true copies of any and all permits,
licenses, approvals, certificates and warranties relating to
the Property in Seller's possession.
4.03 Estoppel Certificates. Seller shall make a reasonable commercial
effort to obtain and deliver to Purchaser at or prior to Closing a Tenant
Estoppel Certificate in the form of the attached Exhibit G with respect to each
of the leases listed on the rent roll (attached as Exhibit J) duly executed by
the Tenant thereunder and dated within thirty (30) calendar days of the Closing
Date. As soon as reasonably practicable following receipt, Seller shall provide
a copy of any Tenant Estoppel Certificate(s) obtained to Purchaser for
Purchaser's review. If Seller is unable either (i) to obtain and deliver to
Purchaser at or prior to Closing a Tenant Estoppel Certificate from each tenant
of the Property, or (ii) to deliver to Purchaser on or before Closing a
certificate of Seller addressing the items set forth in each Tenant Estoppel
Certificate which Seller is unable to obtain from such tenants and to agree to
indemnify Purchaser and hold Purchaser harmless from any and all losses,
liabilities, claims, costs and expenses incurred by Purchaser after Closing as a
result of any knowingly false statement of Seller contained in any such
certificate of Seller, then Purchaser shall have the right to terminate this
Contract by delivering written notice of termination to Seller and the Escrow
Agent, whereupon Purchaser shall receive a return of the Xxxxxxx Money and
thereafter neither party hereto shall have any further rights or obligations
hereunder whatsoever, except for such rights or obligations that, by the express
terms hereof, survive any termination of this Contract. In addition, Purchaser
shall have the further right to terminate this Contract, upon the same notice
and release terms and conditions, in the event Seller is unable to obtain and
deliver to Purchaser on or before Closing a Tenant Estoppel Certificate from
each of tenants Xxxxxxx Xxxxx, Xxxx Atlantic, Riviera Financial, and MCI.
4.04 Purchaser's Obligations. At Closing, Purchaser shall deliver to
Seller the Total Purchase Price, Purchaser shall execute and deliver the
assignment and assumption of leases described in Section 4.02(c) and an
assignment and assumption of service contracts indicating Purchaser's obligation
to assume all obligations applicable thereto arising from and after Closing, and
Purchaser shall execute and deliver signed statements acknowledging that it has
received and is responsible for the respective tenants' security deposits under
the Leases and specifying the exact dollar amount of the deposit being held for
each tenant for whom Seller delivers a security deposit to Purchaser, with a
copy for Seller. Purchaser shall execute and deliver an officer's certificate
with corporate resolutions showing Purchaser's authority to enter into the
transaction evidenced by this Contract.
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4.05 Prorations. General real property taxes and assessments for the
current year relating to the Property, rents, service contracts, sewer use tax,
utilities, operating expenses, and all other expenses related to the ownership
and operation of the Property shall be prorated as of midnight of the day
immediately preceding the Closing Date and shall be adjusted in cash at the
Closing. No prorations will be made for delinquent rents until actually
collected. If at the time of Closing there are past due rents and Seller is
entitled to all or part of the same, Seller agrees that the first rentals
received by Purchaser subsequent to the Closing from said delinquent tenant or
tenants shall be applied to the payment of rents then due, and, thereafter, to
rents which accrued prior to Closing. Purchaser shall use reasonable commercial
efforts to collect all delinquent rents, if any, and any such rents, if
received, after application by Purchaser to rents then due, shall be received by
Purchaser for the account of Seller and be promptly remitted by Purchaser to
Seller upon receipt, provided that Purchaser shall have no obligation to
institute any legal action or otherwise employ an attorney or collection agent
with respect to any delinquent rents. All rent applicable to periods prior to
the Closing Date collected by Purchaser after Closing will be prorated to the
Closing Date, if and when received. Any delinquent rents not so collected by
Purchaser within a period of ninety (90) days following the Closing shall remain
the property of Seller, who may pursue the remedies for collection thereof (not
including termination of or any action adversely affecting the particular
Lease), for its own account, as it may deem advisable. If within ten (10) days
after the Closing Date the amount of any prorated item shall prove to have been
incorrect, the party in whose favor the error was made shall pay the sum
necessary to correct the error to the other party within ten (10) business days
after receipt of proof of such error from the other party, provided that such
proof is delivered to the party from whom payment is requested within ten (10)
days from Closing Date.
4.06 Closing Costs. All costs of closing the sale and purchase of the
Property shall be borne as follows:
(a) Cost of the Survey and Owner Title Policy to be paid by
Purchaser.
(b) Filing Fees for Deed to be paid by Purchaser.
(c) Attorney's fees of Seller and Purchaser to be paid by each,
respectively.
(d) New Jersey Realty Transfer Fee to be paid by Seller.
(e) Any other closing costs, unless otherwise specified in this
Contract, to be borne by Purchaser.
4.07 Closing Conditions. The obligations of Seller to deliver title to the
Property and to perform the other covenants and obligations to be performed by
Seller on the Closing Date shall be subject to the following conditions (all or
any of which may be waived, in whole or in part, by Seller):
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(a) The representations and warranties made by Purchaser in
Section 10.03 hereof shall be true and correct in all
respects with the same force and effect as though such
representations and warranties had been made on and as of
the Closing Date.
(b) Purchaser shall have delivered to Seller all of the
documents provided herein for said delivery.
The obligations of Purchaser to accept title to the Property and to perform
the other covenants and obligations to be performed by Purchaser on the Closing
Date shall be subject to the following conditions (all or any of which may be
waived, in whole or in part, by Purchaser):
(a) The representations and warranties made by Seller in Section
10.02 hereof shall be true and correct in all respects with
the same force and effect as though such representations and
warranties had been made on and as of the Closing Date.
(b) Seller shall have delivered to Purchaser all of the
documents provided herein for said delivery.
(c) There shall not be any sewer moratorium affecting the Property.
ARTICLE V
XXXXXXX MONEY
For the purpose of securing the performance of Purchaser under the terms
and provisions of this Contract, Purchaser shall deliver to Escrow Agent within
twenty-four hours after Seller gives telephonic notice to Purchaser that Seller
has delivered a fully executed original Contract to the Escrow Agent (i) a
cashier's check drawn on a national bank payable to the order of the Escrow
Agent in the amount of the Xxxxxxx Money, (ii) or the Xxxxxxx Money, by wire
transfer of immediately available Federal Funds, to Epstein, Epstein, Xxxxx &
Xxxxx Trust Account No. 0010399025 (EC 150) at Summit Bank, Sub-Account No.
2933, ABA No. 000000000, File No. 14466-040. The Escrow Agent shall deposit the
Xxxxxxx Money in an interest bearing, readily available, liquid federally
insured account(s). The account(s) to which the funds are deposited shall be an
escrow or trust account(s) of the Escrow Agent and the Xxxxxxx Money shall at
all times be fully covered by the federal insurance so that no portion of the
Xxxxxxx Money shall ever be at risk. Such deposit, together with any interest
earned thereon, shall constitute the Xxxxxxx Money hereunder and shall be held,
invested and disbursed pursuant to the respective terms and provisions hereof
and of the Escrow Agreement. The Xxxxxxx Money shall be delivered by the Escrow
Agent to Seller in the event Purchaser breaches this Contract as provided in
Article VII hereof. At Closing, or in the event this Agreement shall terminate
and Purchaser shall be entitled to a return of Xxxxxxx Money, the Xxxxxxx Money
shall be returned to Purchaser.
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ARTICLE VI
BREACH BY SELLER
If Seller shall fail to fully and timely perform any of its obligations
hereunder for any reason except Purchaser's default, Purchaser shall have the
following remedies, which shall be Purchaser's sole and exclusive remedies:
(i) to terminate this Contract and receive a return of the Xxxxxxx Money, or
(ii) to obtain the specific performance of Seller's obligations under this
Contract. If Seller, however, after complying with the terms of this
Contract, shall be unable to convey the Property in accordance with the terms
of this Contract, then the Purchaser's only remedy shall be the right to
terminate this Contract and receive a return of the Xxxxxxx Money and
reimbursement of all title search costs incurred by Purchaser, following
which this Contract shall be deemed canceled and the parties shall be
released of all obligations and liabilities under this Contract, except those
that are expressly stated to survive the cancellation or termination of this
Contract. Purchaser expressly agrees that it shall have no right to seek
damages or any other action at law or in equity.
ARTICLE VII
BREACH BY PURCHASER
If Purchaser should fail to consummate the purchase of the Property for
any reason other than Seller's default or inability to perform hereunder, and
other than Purchaser's right to terminate this Contract as provided herein,
Seller shall have the right to terminate this Contract and receive the
Xxxxxxx Money from the Escrow Agent, such funds being agreed upon as
liquidated damages (and not as a penalty, Seller and Purchaser hereby
acknowledging that the amount of damages resulting from a breach of this
Contract by Purchaser would be difficult or impossible to accurately
ascertain) for the failure of Purchaser to perform the duties, liabilities,
and obligations imposed upon it by the terms and provisions of this Contract,
and Seller agrees to accept and take the Xxxxxxx Money as its total damages
and relief and as its sole and exclusive remedy for such failure by the
Purchaser to consummate such purchase, subject to Purchaser's indemnification
and confidentiality obligations under Sections 3.04 and 3.05 of this
Contract. Purchaser hereby authorizes Escrow Agent to release the Xxxxxxx
Money to Seller in accordance with the provisions of this Contract upon the
delivery by Seller to the Escrow Agent of a certification that Purchaser
breached this Contact, failed to cure such breach as may be expressly
permitted hereby, and that the conditions precedent set forth in the Escrow
Agreement with respect to the release of the Xxxxxxx Money to the Seller have
been met.
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ARTICLE VIII
NOTICE
Any notice, communication, request, reply, consent, approval, or advice
("Notice") in this Contract provided or permitted to be given or made by
either party to the other must be in writing and shall, unless otherwise in
this Contract expressly provided, be given or served by depositing the same
in the United States mail, postage prepaid and registered or certified and
addressed to the party to be notified, with return receipt requested, or by
delivering the same in person to the party to be notified, or by depositing
the same with a nationally recognized overnight courier service, charges
prepaid, addressed to the party to be notified. Except as otherwise
expressly provided in this Contract, Notice deposited in the mail in the
manner hereinabove described shall be effective from and after two (2) days
(exclusive of Saturdays, Sundays and postal holidays) after such deposit.
Notice deposited with an overnight courier in the manner hereinabove
described shall be effective from and after one (1) day (exclusive of
Saturdays and Sundays) after such deposit. Notice given in any other manner
shall be effective only if and when received by the party to be notified.
For purpose of Notice, the addresses for the parties shall, until changed as
hereinafter provided, be as follows:
If to Seller, to:
New York Life Insurance Company
Mortgage Finance Department
00 Xxxxxxx Xxxxxx - Room 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
New York Life Insurance Company
Office of the General Counsel
00 Xxxxxxx Xxxxxx - Room 10SB
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
and
Epstein, Epstein, Xxxxx & Xxxxx
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Purchaser, to:
Cali Realty Acquisition Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
and
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
The parties hereto shall have the right from time to time to change their
respective addresses and each shall have the right to specify as it s address
any other address within the continental United States of America by at least
five (5) days Notice to the other party as herein provided.
ARTICLE IX
COMMISSIONS
Seller has agreed to pay the Commission to Broker as real estate broker
for this transaction pursuant to the terms of a separate agreement between
Seller and Broker. The Commission shall not be earned and shall not be
payable until Closing, the consummation of the purchase and sale contemplated
herein, the passing of title to the Property from Seller to Purchaser, and
the payment of the Total Purchase Price to Seller; provided that if Closing
of this transaction in accordance with the terms of this Contract does not
occur, regardless of cause, no commission whatsoever shall be due, earned, or
payable to Broker. The Commission shall be payable in cash at Closing.
Purchaser and Seller each represents and warrant to the other that except for
Broker there are no other brokers involved in this transaction. Purchaser
and Seller each agree to indemnify and hold the other harmless from and
against any claims by any broker or third parties claiming by, through, or
under it for brokerage commissions, finders' fees, or other fees relative to
the sale of the Property. The foregoing indemnity shall survive Closing.
ARTICLE X
MISCELLANEOUS
10.01 Assignment. This Contract may not be assigned by Purchaser
except to a wholly-owned subsidiary of Purchaser, or to a partnership in
which any such wholly-owned subsidiary owns 75% of the profits, losses and
cash flow thereof and controls the management of the affairs of such
partnership (any such entity, a "Permitted Assignee"), and any other
assignment or attempted assignment by Purchaser shall constitute a default by
Purchaser hereunder and shall be deemed null and void and of no force and
effect. No assignment shall relieve Purchaser from Purchaser's obligations
under this Contract. Purchaser shall have right to designate in writing,
prior to Closing, a Permitted Assignee to whom the Deed shall be directed.
10.02 Seller's Representations and Covenants. Seller makes no
express or implied representations or warranties regarding the Property or
any other matter other than the following:
(a) Seller is a duly organized, validly existing mutual
insurance company in the State of New York and authorized to
transact business in the State of New Jersey. Seller has
the right, power and authority to enter into this Contract
and all other documents to be executed in connection
herewith, perform its obligations hereunder, and to cause
its right, title and interest in and to the Property to be
sold and conveyed in accordance with the terms and
conditions hereof, and the person(s) executing this Contract
on behalf of Seller is duly authorized and empowered to act
for and to bind the Seller.
(b) This Contract, when duly executed and delivered, will be the
legal, valid and binding obligation of Seller, enforceable
in accordance with the terms of this
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Contract. The execution and delivery of this Contract, and the
performance of the transactions contemplated hereby, does not
require the consent of any governmental or private party or
body and does not conflict with or constitute a breach by the
Seller of any other agreement, instrument, law, judgment, rule,
order, injunction, writ or decree to which the Seller is a
party or by which the Seller or any of its assets may be bound
or subject, and will not result in a violation of any
applicable law, order, rule or regulation of any Federal, or
State agency, body or corporation, or require the approval of
any such agency, body or corporation.
(c) To the best of Seller's actual knowledge, Seller has not
received notice from any governmental entity having
jurisdiction, including, without limitation, any municipal,
federal, county or state governmental unit, or any
subdivision, agency, board, bureau, department, office or
body thereof, that the Property fails to comply in all
respects with all applicable federal, state and local
environmental, health, safety and zoning statutes and
regulations, nor does Seller have actual knowledge of any
violations or conditions that may give rise thereto.
(d) Seller is not a party to any contract or agreement to sell
or otherwise transfer all or any part of its interest in the
Property other than this Contract.
(e) Seller is not a "Foreign Person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as
amended.
(f) To the best of Seller's actual knowledge, Seller has not
received any notices from appropriate governmental
authorities of any condemnation or special assessment
applicable to the Property not reflected in the Permitted
Exceptions.
(g) Seller will continue to operate the Property in the ordinary
course of business during the pendency of this Contract.
(h) To the best of Seller's actual knowledge, Seller has not
received any notice that any default or breach presently
exists under any covenant, condition, restriction,
right-of-way or easement affecting the Property or any
portion thereof which is to be performed or complied with by
Seller and which would have a material and adverse effect on
the Property, and Seller has no knowledge of any fact or
condition which would constitute such a default or breach
(or event which with notice or lapse of time, or both, could
constitute such a default) under any such covenant,
condition, restriction, right-of-way or easement.
(i) To the best of Seller's actual knowledge, there are no legal
actions, suits, labor disputes, litigation or proceedings
pending or threatened against the Property, or with respect
to the environmental condition thereof, or any violations of
any building codes or other statutes affecting the use,
occupancy and enjoyment of the Property, except for pending
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"slip and fall" claim made by Xxxxxx Xxxxx in or about
March, 1996 (the "Xxxxx Claim") with regard to which Seller
agrees to indemnify, defend, and hold Purchaser harmless
from and against any claims, losses, liabilities, or
expenses.
(j) As of the Effective Date, Seller has no knowledge of the
discharge or existence on, at, under, or emanating from the
Property of any hazardous or toxic substances in violation
of New Jersey or federal environmental law, regulation,
rule, ordinance or order.
(k) Attached hereto as Exhibit L is a true, complete and correct
schedule of all Leases, true copies of which have been
delivered to Purchaser upon execution of this Contract.
(l) Except as set forth in this Contract or in the Leases
themselves, (i) the Leases have not been amended, modified,
supplemented, terminated or extended, (ii) to the actual
knowledge of Seller, no defaults exist thereunder and no
condition exists which, with the passage of time or the
giving of notice or both, will become a default, and (iii)
Seller has no knowledge that any tenant under the Leases has
asserted any claim for any reduction, abatement, concession,
offset, or allowance against the rent described in the
Leases.
(m) Attached hereto as Exhibit J is a true, correct, and
complete listing of the Property rent roll, setting forth
(i) the name of each tenant, (ii) the square footage, (iii)
the commencement and expiration dates, (iv) the minimum rent
per square foot, (v) the annual minimum rent, and (vi) the
security deposit.
(n) Attached hereto as Exhibit K is a true, correct and complete
list of service contracts affecting the Property, true
copies of which have been delivered to Purchaser upon
execution of this Contract.
(o) To the actual knowledge of Seller, there are no actions,
suits, labor disputes, litigation or proceedings currently
pending or threatened against Seller and related to the
Property, the environmental condition or operation thereof.
(p) To the actual knowledge of Seller, there are no union
agreements affecting the Property, nor shall Seller cause
any such agreements to affect the Property as of the Closing
Date.
(q) Seller will not accept the surrender of any Service Contract
or Lease, or grant any concession, rebate, allowance or free
rent, without the consent of Purchaser.
(r) Seller will not apply any Lease security deposit with
respect to any tenant in occupancy of the Property on the
Closing Date.
(s) Seller will not renew, extend or modify any of the Service
Contracts without the prior written consent of Purchaser.
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(t) Seller has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy or, to
the best of its actual knowledge, suffered the filing of any
involuntary petition by Seller's creditors, suffered the
appointment of a receiver to take possession of all, or
substantially all, of such Seller's assets, suffered the
attachment or other judicial seizure of all, or
substantially all, of such Seller's assets, admitted in
writing its inability to pay its debts as they come due or
made an offer of settlement, extension or composition to its
creditors generally.
The representations and warranties made by Seller in subparagraphs (d),
(i), (k), (n), and (o) shall survive the Closing Date for a period of
forty-five (45) days and shall not be merged in the delivery of the Deed
during said forty-five (45) day period, but shall be merged in the delivery
of the Deed upon expiration of said forty-five (45) day period, except that
Seller's indemnity with regard to the Xxxxx Claim shall survive the Closing
Date for the applicable period of the statute of limitations. All other
representations and warranties made by Seller in this Section 10.02 shall not
survive the Closing Date and shall be merged in the delivery of the Deed.
10.03 Purchaser's Representations. In order to induce Seller to enter
into this Contract, Purchaser represents and warrants as follows:
(a) Purchaser has the funds necessary to consummate this transaction.
(b) Purchaser is knowledgeable and experienced in the purchase,
operation, ownership, refurbishing and sale of commercial
real estate, and is fully able to evaluate the merits and
risks of this transaction. Purchaser has inspected,
examined and investigated the Property and reviewed the
Leases prior to signing this Contract.
(c) Purchaser has not relied, and is not relying, upon any
information, document, sales brochures or other literature,
maps or sketches, projection, proforma, statement,
representation, guarantee or warranty (whether express or
implied, oral or written, material or immaterial) that may
have been given or made by, or on behalf of Seller, except
as may be expressly set forth in this Contract.
(d) Purchaser is not relying and has not relied on Seller or its
agents as to (i) the quality, nature, adequacy or physical
condition of the Property including, but not limited to, the
structural elements, foundation, roof, appurtenances,
access, landscaping, parking facilities or the electrical,
mechanical, HVAC, plumbing, sewage or utility systems,
facilities or appliances at the Property, if any; (ii) the
quality, nature, adequacy or physical condition of any
utilities serving the Property; (iii) the real estate taxes
now or hereafter payable on the Property or the valuation of
the Property for ad valorem tax purposes; (iv) the
Property's habitability, merchantability or fitness,
suitability or adequacy for any particular purpose; (v)
except as expressly set forth herein, the zoning or other
legal status of the Property; (vi) except as expressly set
forth herein, the Property's or its operations' compliance
with any applicable codes, laws, regulations, statutes,
ordinances, covenants, conditions or restrictions of any
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governmental or quasi-governmental entity or of any other
person or entity; (vii) the quality of any labor or
materials relating in any way to the Property; or (viii) the
condition of title to the Property or the nature, status and
extent of any right of way, lease, right of redemption,
possession, lien, encumbrance, license, reservation,
covenant, condition, restriction or any other matter
affecting title to the Property.
(e) Purchaser has the full right, power and authority to
execute, deliver and perform this Contract and all requisite
action on the part of Purchaser in connection with making
and entering into this Contract has been taken to authorize
the execution and delivery of this Contract.
10.04 Governing Law. This Contract shall be construed under and in
accordance with the laws of the State of New Jersey and all obligations of
the parties created hereunder are to be performed, and exclusive venue shall
lie, in New Jersey.
10.05 Binding on Assigns. Subject to Section 10.01, this Contract
shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, legal representatives,
successors, and assigns.
10.06 Severability. In case any one or more of the provisions
contained in this Contract for any reason be held to be invalid, illegal, or
unenforceable in any respect, that provision or provisions shall not affect
any other provision hereunder.
10.07 Sole Agreement. This Contract constitutes the sole and only
agreement of the parties hereto and supersedes any prior understanding or
written or oral agreements between the parties respecting the subject matter
of this Contract.
10.08 Gender and Number. Words of any gender used in this Contract
shall be held and construed to include any other gender and words in the
singular number shall be held to include the plural and vice versa unless the
context requires otherwise.
10.09 Headings. The headings of the articles and sections contained
in this Contract are for convenience only and shall not be taken into account
in determining the meaning of any provision of this Contract.
10.10 No Recording. Neither this Contract nor any memorandum hereof
shall be recorded in any public records.
10.11 Notice to Purchaser. Purchaser is hereby notified that it
should have a title abstract covering the Property examined by an attorney of
its selection, or it should be furnished with or obtain a title insurance
policy.
10.12 Business Days. Business days shall not include Saturdays,
Sundays, or any national banking holidays.
10.13 Casualty. Seller shall maintain fire and extended coverage
insurance policies in effect with respect to the Property until Closing,
which shall be equivalent in all material respects to those maintained by
Seller with respect to the Property as of the Effective Date. If, before
Closing, the Property is damaged or destroyed by casualty, then Seller shall
elect, within five (5) business days after such damage, either to repair such
damage or not repair such damage. Seller shall notify Purchaser of its
election when made; if Seller fails to notify Purchaser of its election
within eight (8) business days after such damage, Seller shall be deemed to
have elected not to repair such damage. If Seller elects to repair such
damage, then the Outside
18
Closing Date shall be extended thirty (30) days to allow Seller to repair
such damage, and Closing shall occur as provided herein with no adjustment to
the Total Purchase Price. If Seller elects not to repair such damage, or,
regardless of Seller's election above, if the cost to repair such damage
should, in Seller's estimation, exceed $100,000, then Purchaser, as its sole
and exclusive remedies, may either (i) terminate this Contract, in which
event Seller shall refund the Xxxxxxx Money to Purchaser or (ii) proceed with
Closing with no adjustment to the Total Purchase Price, but Seller will (x)
assign to Purchaser all insurance proceeds recoverable by Seller with respect
to such casualty, (y) assign its rights to all unpaid claims and rights with
respect thereto, and (z) execute such instruments of assignment as Purchaser
shall reasonably require.
10.14 Condemnation. In the event the Property or any part thereof is
condemned prior to the Closing, Purchaser shall have the right to terminate
this Contract upon written Notice to Seller given within ten (10) days of
receipt of written notice from Seller or the condemning authority of such
condemnation. Upon such termination, the Xxxxxxx Money shall be returned to
Purchaser, and neither party shall have any further obligations under this
Contract. If this Contract is not so terminated, there shall be no reduction
in the Total Purchase Price, and at the Closing, Seller will (i) assign the
entire condemnation award to Purchaser, (ii) assign its rights to all unpaid
claims and rights with respect thereto, and (iii) execute such instruments of
assignment as Purchaser shall reasonably require.
10.15 Drafting. This Contract shall not be construed more strictly
against one party than the other because it may have been drafted by one of
the parties or its counsel, each having contributed substantially and
materially to the negotiation and drafting thereof.
ARTICLE XI
SERVICE CONTRACTS
Subject to the terms of this Article XI, on the Closing Date, Seller
shall assign and Purchaser shall assume all service contracts affecting the
Property, a listing of all of which service contracts is attached hereto and
made a part hereof as Exhibit K (the "Service Contracts"). On or before the
Closing Date, Seller shall terminate all contracts related to the management
and leasing of the Property (other than the Service Contracts).
THIS CONTRACT IS EXECUTED in multiple copies, each of which shall be
deemed to be an original for all purposes.
SELLER:
NEW YORK LIFE INSURANCE COMPANY,
a New York mutual insurance company
By:
Name:
Title:
PURCHASER:
CALI REALTY ACQUISITION CORPORATION,
a Delaware corporation
By:
Name:
Title:
ESCROW AGENT:
Receipt of $131,500.00 Xxxxxxx Money is
acknowledged in the form of:
EPSTEIN, EPSTEIN, XXXXX & XXXXX
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By:
Name: Xxxxxxx X. Xxxxxxx
------------------
Title: Director
--------
Date Xxxxxxx Money Received: August
, 1997
20
ATTACHMENTS
Exhibit A - Property Description
Exhibit B - Grantor's IRC Section 1445 Certificate
Exhibit C - Tenant Letter
Exhibit D - Intentionally Omitted
Exhibit E - Permitted Exceptions
Exhibit F - Intentionally Omitted
Exhibit G - Tenant Estoppel Certificate
Exhibit H - Escrow Agreement
Exhibit I - Assignment and Assumption of Leases
Exhibit J - Rent Roll
Exhibit K - Service Contracts
Exhibit L - Schedule of Leases
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