EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
100 COLLEGE ROAD, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
AS SELLER
AND
NEW VALLEY CORPORATION,
A DELAWARE CORPORATION
AS PURCHASER
PROPERTY:
000/000 XXXXXXX XXXX XXXXXX XXXXXXXXX
000/000 XXXXXXX XXXX XXXX
XXXXXXXXX, XXX XXXXXX 00000
DATED AS OF NOVEMBER 27, 2002
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") dated as of the
27th day of November, 2002, is made by and between 100 COLLEGE ROAD, LLC, a
Delaware limited liability company ("SELLER") with an office at 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 and NEW VALLEY CORPORATION, a
Delaware corporation ("PURCHASER"), with an office at 000 X.X. Xxxxxx Xxxxxx,
00xx Xxxxx, Xxxxx, Xxxxxxx 00000.
R E C I T A L S :
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Seller desires to sell those two (2) certain tracts of improved real
property commonly known as the 000 Xxxxxxx Xxxx Xxxxxx Building located at 000
Xxxxxxx Xxxx West, Princeton, Plainsboro Township, Middlesex County, New Jersey
08540 (the "100 COLLEGE ROAD BUILDING") and the 000 Xxxxxxx Xxxx Xxxxxx Building
located at 000 Xxxxxxx Xxxx West, Princeton, Plainsboro Township, Middlesex
County, New Jersey 08540 (the "150 COLLEGE ROAD BUILDING"), along with all
related personal and intangible property, and Purchaser desires to purchase such
real, personal and intangible property (the 000 Xxxxxxx Xxxx Building and the
000 Xxxxxxx Xxxx Xxxxxxxx are collectively referred to herein as the
"BUILDINGS").
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. THE PROPERTY.
1.1 DESCRIPTION. Subject to the terms and conditions of this Agreement,
and for the consideration herein set forth, Seller agrees to sell and transfer,
and Purchaser agrees to purchase and acquire, all of Seller's right, title, and
interest in and to the following (collectively, the "PROPERTY"):
(a) That certain land ("000 XXXXXXX XXXX LAND") located in
Princeton, Plainsboro Township, Middlesex County, New Jersey and more
specifically described in EXHIBIT A-1 attached hereto and that certain land
("000 XXXXXXX XXXX LAND") located in Princeton, Plainsboro Township, Middlesex
County, New Jersey and more specifically described in EXHIBIT A-2 attached
hereto (the 000 Xxxxxxx Xxxx Xxxx and the 000 Xxxxxxx Xxxx Xxxx are collectively
referred to herein as the "LAND");
(b) The 000 Xxxxxxx Xxxx Xxxxxxxx, xxxxxxx areas, if any, all
other improvements, and fixtures now and at the Closing (as hereinafter defined)
situated on the 000 Xxxxxxx Xxxx Xxxx (the "100 COLLEGE ROAD IMPROVEMENTS") and
the 000 Xxxxxxx Xxxx Xxxxxxxx, xxxxxxx areas, if any, all other improvements,
and fixtures now and at the Closing situated on the 000 Xxxxxxx Xxxx Xxxx (the
"150 COLLEGE ROAD IMPROVEMENTS") (the 000 Xxxxxxx Xxxx Improvements and the 000
Xxxxxxx Xxxx Improvements are collectively referred to herein as the
"IMPROVEMENTS");
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(c) All furniture, personal property, machinery, systems,
apparatus, and equipment and other personal property owned by Seller and DLM
Leasing, LLC and currently and at the Closing used in the operation, repair and
maintenance of the Land and the Improvements and situated thereon (collectively,
the "PERSONAL PROPERTY"), which Personal Property is listed on EXHIBIT B
attached hereto. The Personal Property shall not include any personal property
owned by Seller's property manager and located within Suite 150 of the 000
Xxxxxxx Xxxx Xxxxxxxx. The Personal Property to be conveyed is subject to
depletions, replacements and additions in the ordinary course of business;
(d) All easements, hereditaments, and appurtenances belonging
to or inuring to the benefit of Seller and pertaining to the Land and the
Improvements, if any;
(e) Any street or road abutting the Land to the center lines
thereof;
(f) Those certain space leases, licenses and occupancy
agreements in effect on the date of this Agreement which are identified on the
Schedule of Leases attached hereto as EXHIBIT C, and any new space leases
entered into pursuant to Section 4.4, which as of the Closing (as hereinafter
defined) affect all or any portion of the Land or the Improvements
(collectively, "LEASES"), and any security deposits (in the form of cash or
letters of credit or otherwise) actually held by Seller (or Seller's mortgagee)
as of the Closing with respect to any such Leases;
(g) All intangible personal property owned by Seller and used
or useful in connection with the Land, the Improvements and/or the Personal
Property including, without limitation, any trademarks, trade names and
copyrights, plans and specifications prepared in connection with the
construction of the Improvements, certificates of occupancy and any other
certificates of operation, floor plans, booklets and manuals relating to the
operation of the Improvements and the Personal Property, advertising materials,
contract rights, licenses and permits now and at the Closing in effect with
respect to the Improvements and the Personal Property (collectively, the
"INTANGIBLE PERSONAL PROPERTY"), to the extent such Intangible Personal Property
may be assignable or otherwise transferable by law;
(h) Subject to Section 3.4, all assignable contracts and
agreements relating to the operation, repair or maintenance of the Land, the
Improvements or the Personal Property the terms of which extend beyond midnight
of the day preceding the Closing Date (as hereinafter defined);
(i) Assignable warranties and guaranties issued in connection
with the Improvements or the Personal Property; and
(j) All transferable consents, applications, authorizations,
variances or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Land or the Improvements
(collectively, "APPROVALS").
1.2 "AS-IS" PURCHASE. Except for the representations and warranties
expressly set forth in this Agreement, the Property is being sold in an "AS IS"
condition and "WITH ALL FAULTS" as of the date of this Agreement and, subject to
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reasonable wear and tear, as of the Closing Date. Except as expressly set forth
in this Agreement, no representations or warranties have been made or are made
and no responsibility has been or is assumed by Seller or by any partner,
officer, person, firm, agent or representative acting or purporting to act on
behalf of Seller as to the condition or repair of the Property or the value,
expense of operation, or income potential thereof or as to any other fact or
condition which has or might affect the Property or the condition, repair,
value, expense of operation or income potential of the Property or any portion
thereof, including, without limitation, (i) matters of title, (ii) environmental
matters relating to the Property or any portion thereof, (iii) geological
conditions, including, without limitation, subsurface conditions, (iv) drainage,
(v) soil conditions, including the existence of instability, past soil repairs,
soil additions or conditions of soil fill, or the sufficiency of any
undershoring, (vi) the availability of any utilities to the Property or any
portion thereof including, without limitation, water, sewage, gas and electric,
(vii) zoning to which the Property or any portion thereof may be subject, (viii)
usages of adjoining property, (ix) access to the Property or any portion
thereof, (x) the value, compliance with the plans and specifications, size,
location, age, use, design, quality, description, suitability, structural
integrity, operation, title to, or physical or financial condition of the
Property or any portion thereof, (xi) the existence or non-existence of
underground storage tanks, (xii) tax consequences or (xiii) the merchantability
of the Property or fitness of the Property for any particular purpose. The
parties agree that all understandings and agreements heretofore made between
them or their respective agents or representatives are merged in this Agreement,
other than the Confidentiality and Inspection Agreement (as hereinafter defined)
referred to in Section 3.1 hereof, and the Exhibits attached hereto, which alone
fully and completely express their agreement, and that this Agreement has been
entered into after full investigation, or with the parties satisfied with the
opportunity heretofore and hereafter afforded for investigation, neither party
relying upon any statement or representation by the other unless such statement
or representation is specifically embodied in this Agreement or the Exhibits
attached hereto. Except for the representations and warranties expressly set
forth in this Agreement, Seller makes no representations or warranties as to
whether the Property contains asbestos or harmful or toxic substances or
pertaining to the extent, location or nature of same. Further, to the extent
that Seller has provided or hereafter may provide to Purchaser information from
any inspection, engineering or environmental reports concerning asbestos,
dieldrin or harmful or toxic substances, Seller makes no representations or
warranties with respect to the accuracy or completeness, methodology of
preparation or otherwise concerning the contents of such reports, except for the
representations and warranties expressly set forth in this Agreement. Purchaser
acknowledges that Seller has requested Purchaser to inspect fully the Property
and investigate all matters relevant thereto and, except for the representations
and warranties expressly set forth in this Agreement, to rely solely upon the
results of Purchaser's own inspections or other information obtained or
otherwise available to Purchaser, rather than any information that may have been
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provided by Seller to Purchaser. The risk that adverse physical and
environmental conditions may not have been revealed or discovered and may not be
discoverable by such investigations shall be upon and with Purchaser. Purchaser
hereby waives and releases Seller from any present or future claims arising from
or relating to the presence or alleged presence of asbestos, dieldrin or harmful
or toxic substances in, on, under or about the Property including, without
limitation, any claims under or on account of (i) any federal, state or local
statute, law, rule, regulation, ordinance, code, guide, written policy,
directive and rule of common law in effect applicable to the Property and in
each case as amended, and any judicial or administrative order, consent decree
or judgment, relating to (x) the environment or natural resources, (y) any
petroleum or petroleum products, radioactive materials, asbestos in any form,
dieldrin, polycholorinated biphenyls, and, to the extent only it exists at
levels considered hazardous to human health, radon gas or (z) any chemicals,
materials or substances defined as or included in the definition of "hazardous
substances", hazardous waste", "hazardous materials", "extremely hazardous
substances", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants" under any applicable environmental laws including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq.; Xxxxx Xxxxx Xxxxxxxx Xxx, 00 U.S.C. ss. 6901 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et seq.; the
Toxic Substances Control Act, 15 U.S.C. ss. 7401 et seq.; the Clean Air Act, 42
U.S.C. ss. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss. 3803 et
seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq.; Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. ss. 136 et seq., and the
regulations promulgated pursuant thereto and any state and local counterparts or
substantial equivalents thereof, (ii) this Agreement or (iii) the common law.
Purchaser acknowledges that the Purchase Price (as hereinafter defined) reflects
the "as-is" nature of this sale and any faults, liabilities, defects or other
adverse matters that may be associated with the Property. Purchaser has fully
reviewed the disclaimers and waivers set forth in this Agreement with its
counsel and understands the significance and effect thereof. The terms and
provisions of this Section 1.2 shall survive the Closing or any termination of
this Agreement.
1.3 AGREEMENT TO CONVEY. Seller agrees to convey, and Purchaser agrees
to accept, title to the Land and Improvements by special or limited warranty
deed and title to the Personal Property, by xxxx of sale, with warranty as to
the title and without warranty as to the condition of such personalty.
2. PRICE AND PAYMENT.
2.1. PURCHASE PRICE. The purchase price for the Property ("PURCHASE
PRICE") is FIFTY-FOUR MILLION AND/NO DOLLARS ($54,000,000.00). The parties
acknowledge and agree that no portion of the Purchase Price is for or allocated
to the Personal Property.
2.2. PAYMENT. Payment of the Purchase Price is to be made as follows:
(a) Within two (2) business days after the Effective Date (as
hereinafter defined), Purchaser shall deliver an xxxxxxx money deposit of ONE
MILLION AND/NO DOLLARS ($1,000,000.00) (the "DEPOSIT") by wire transfer of
Federal funds credited to the account of First American Title Insurance Company,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx (the
"LEAD TITLE COMPANY"). Lead Title Company and any other title company which is
co-insuring title to the Property are collectively referred to herein as the
"TITLE COMPANY". The Deposit will be placed and held in escrow by Lead Title
Company in an interest-bearing account at a mutually acceptable banking
institution. All interest earned on the Deposit shall be considered as part of
the Deposit. Except as otherwise provided in this Agreement, the Deposit will be
applied to the Purchase Price at the Closing. As used herein , the term
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"EFFECTIVE DATE" shall mean the date that this Agreement is executed and
exchanged by Seller and Purchaser (or their counsel), as identified on the
signature page of this Agreement. Notwithstanding anything else contained herein
to the contrary, Purchaser shall have the right to substitute another title
company as "Lead Title Company" by providing written notice of such substitution
to Seller prior to December 1, 2002; provided, however, such substitute title
company must be acceptable to Seller, in Seller's reasonable discretion. Upon
Seller's approval of such substitute title company, the substitute title company
shall assume, in writing, all of the obligations and duties of Lead Title
Company under this Agreement and the existing Lead Title Company shall then
transfer the Deposit to such substitute title company, which funds shall be held
by such substitute title company in accordance with the terms and provisions of
this Agreement.
(b) At the Closing, the Purchaser shall pay to Seller the
balance of the Purchase Price (the "BALANCE OF THE PURCHASE PRICE") and Lead
Title Company shall pay to Seller the Deposit, which collectively shall be
subject to adjustments as provided herein, such payments to be made to a bank
account designated in writing at least two (2) business days prior to Closing by
Seller by wire transfer of Federal funds.
2.3. CLOSING. Payment of the Purchase Price and the closing hereunder
(the "CLOSING") will take place pursuant to a "New York style" closing in escrow
at the offices of the Title Company at 10:00 a.m. E.S.T. on or before December
16, 2002; provided, however, Purchaser shall have the right to extend such date
until December 20, 2002 by delivering written notice of such extension to Seller
on or before December 12, 2002 (the aforesaid date, or such other agreed date,
being referred to in this Agreement as the "CLOSING DATE"). Buyer and Seller
shall use reasonable efforts to close this transaction at the earliest possible
date, but in any event prior to December 16, 2002 and Seller and Buyer shall
cooperate in all reasonable respects in order to accomplish an earlier closing.
3. INSPECTIONS AND APPROVALS.
3.1. INSPECTIONS. (a) Pursuant to the Confidentiality and Inspection
Agreement, a copy of which is attached hereto as EXHIBIT D, previously entered
into by Seller and Purchaser (the "CONFIDENTIALITY AND INSPECTION AGREEMENT"),
Seller has allowed and will continue to allow Purchaser and the Representatives
(as defined in the Confidentiality and Inspection Agreement) reasonable access
to the Property (during business hours) for purposes of physical engineering
inspection ("ENGINEERING INSPECTION") or environmental inspection
("ENVIRONMENTAL INSPECTION") of the Property (including an inspection of the
Property for the presence of lead-based paint or lead-based paint hazards) in
accordance with the terms of the Confidentiality and Inspection Agreement.
Purchaser shall continue to have the right to continue its review of the
Evaluation Materials (as defined in the Confidentiality and Inspection
Agreement) as provided in the Confidentiality and Inspection Agreement.
(b) Except for the representations and warranties expressly
set forth in this Agreement, Seller makes no representations or warranties as to
the truth, accuracy or completeness of the Evaluation Materials (E.G., that the
Evaluation Materials are complete, accurate or the final version thereof, or
that all similar Evaluation Materials are in Seller's possession). It is the
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parties' express understanding and agreement that the Evaluation Materials are
provided only for Purchaser's convenience in making its own examination and
determination as to whether it wishes to purchase the Property, and, in doing
so, except for the representations and warranties expressly set forth in this
Agreement, Purchaser has relied exclusively on its own independent investigation
and evaluation of every aspect of the Property and not on any materials supplied
by Seller. Purchaser expressly disclaims any intent to rely on the Evaluation
Materials in connection with its inspection and agrees that, except for the
representations and warranties expressly set forth in this Agreement, it shall
rely solely on its own independently developed or verified information.
3.2. ENVIRONMENTAL REPORTS/STUDIES. Prior to or contemporaneously with
execution of this Agreement, Seller has caused to be delivered to Purchaser the
environmental reports/studies identified on EXHIBIT E attached hereto
(collectively, the "ENVIRONMENTAL REPORTS").
3.3. TITLE AND SURVEY. Prior to the execution of this Agreement, Seller
has caused to be delivered to Purchaser (i) a commitment for title insurance
("TITLE COMMITMENT") for an owner's title insurance policy insuring Seller's
interest in the Land and the Improvements, together with copies of all items
shown as exceptions to title therein, issued by the Lead Title Company and
identified as Commitment No. ST02-34657 a copy of which Title Commitment
(excluding copies of all items shown as exceptions therein) is attached hereto
as EXHIBIT F, (ii) a survey ("000 XXXXXXX XXXX SURVEY") of the 000 Xxxxxxx Xxxx
Xxxx dated September 7, 1999, last updated May 3, 2001, prepared by Xxxxxxxx
Surveying, Inc. and (iii) a survey ("000 XXXXXXX XXXX SURVEY") of the 000
Xxxxxxx Xxxx Xxxx dated January 5, 2002, last updated February 5, 2002, prepared
by Xxxxxx XxXxxxx (the 000 Xxxxxxx Xxxx Survey and the 000 Xxxxxxx Xxxx Survey
are collectively referred to herein as the "SURVEYS"). By its execution of this
Agreement, Purchaser acknowledges and agrees that Purchaser shall take title to
the Property subject to the matters (the "PERMITTED ENCUMBRANCES") shown on
EXHIBIT G attached hereto.
3.4 CONTRACTS. On or before December 6, 2002, Purchaser shall notify
Seller in writing if Purchaser elects not to assume at the Closing any of the
terminable service, maintenance, supply or other contracts relating to the
operation of the Property which are identified on EXHIBIT H attached hereto.
Seller shall give notice of termination of such disapproved contract(s);
PROVIDED, if by the terms of the disapproved contract(s) Seller has no right to
terminate same on or prior to the Closing, or if any fee or other compensation
is due by the terms of the disapproved contract(s) as a result of such
termination, Purchaser shall be required at the Closing to assume all
obligations thereunder until the effective date of the termination and to assume
the obligation to pay or to reimburse Seller for the payment of the termination
related charge. Without limiting the generality of the foregoing, Purchaser
shall, subject to the proration adjustments set forth in Section 6.3 below, be
required to assume the contracts relating to the operation of the Property which
are identified on EXHIBIT I attached hereto and in the event Purchaser after the
Closing terminates any such contract it shall pay any compensation payable under
or in respect of any such contract. The provisions of this Section 3.4 shall
survive the Closing.
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3.5 INTENTIONALLY DELETED.
3.6 CONFIDENTIALITY. Unless Seller otherwise agrees in writing,
Purchaser agrees that all information regarding the Property of whatsoever
nature made available to it by Seller or its agents or representatives
("PROPRIETARY INFORMATION") is confidential and shall be governed by the terms
of the Confidentiality and Inspection Agreement. Purchaser acknowledges and
agrees that the terms of the Confidentiality and Inspection Agreement shall
survive (to the extent specifically and expressly provided in the
Confidentiality and Inspection Agreement) any termination of this Agreement.
4. PRIOR TO CLOSING.
Until the Closing, Seller shall:
4.1. INSURANCE. Keep the Property insured against fire and
other hazards covered by an all risk policy and comprehensive public liability
insurance against claims for bodily injury, death and property damage occurring
in, on or about the Property at the same levels currently in effect.
4.2. OPERATION. Operate and maintain the Property in a good
and businesslike manner and substantially in accordance with Seller's past and
current practices with respect to the Property, and make any and all repairs and
replacements reasonably required to deliver the Property to Purchaser at the
Closing in its condition as of the date of this Agreement, normal wear and tear
excepted, provided that in the event of any loss or damage to the Property,
Seller's obligation to Purchaser to repair the Property shall be as provided in
Section 7 hereof.
4.3. NEW CONTRACTS. Enter into only those third party
contracts which are necessary to carry out its obligations under Section 4.2 and
which shall be cancelable on thirty (30) days' written notice without premium or
penalty. If Seller enters into any such contract, it shall promptly provide
written notice and a copy thereof to Purchaser and unless Purchaser, within
seven (7) days after receipt thereof, notifies Seller in writing of its
intention to assume such contract, it shall be treated as a contract disapproved
by Purchaser under Section 3.4 hereof.
4.4. NEW LEASES. Continue the present rental program and
efforts at the Property to rent vacant space, provided that: (a) except for the
pending lease amendment with Novo Nordisk Pharmaceuticals, Inc. (the "NOVO
AMENDMENT") and the pending lease termination with Broadbeam Corporation (the
"BROADBEAM TERMINATION"), both as identified on EXHIBIT J attached hereto, after
the Effective Date, Seller will not execute any new space leases, occupancy
agreements or licenses or amend, terminate or accept the surrender of any
existing tenancies or approve any space sub-leases without the prior written
consent of Purchaser, which consent may be withheld by Purchaser, in Purchaser's
sole discretion, except that the Seller is authorized to accept the termination
of leases, occupancy agreements and licenses at the end of their existing terms;
and (b) at Closing, Purchaser shall reimburse Seller for $18,716.81 of the
leasing commissions paid by Seller in connection with the Novo Amendment. Seller
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shall retain the right to receive the payment of the termination fee payable by
Broadbeam Corporation in connection with the Broadbeam Termination. Failure of
Purchaser to consent or expressly withhold its consent stating with specificity
the basis of its objection within two (2) business days after its receipt of
written request for such consent shall be deemed to constitute Purchaser's
withholding of consent.
4.5. FIRE SUPPRESSION SYSTEM. Use its diligent efforts to obtain
written confirmation from Novo Nordisk Pharmaceuticals, Inc. ("NOVO") that the
existing violation identified on EXHIBIT N attached hereto with regard to the
non-compliance of the fire suppression system located within Novo's leased
premises is the responsibility of Novo as tenant under its Lease.
5. REPRESENTATIONS AND WARRANTIES; BROKERAGE; CONDITIONS PRECEDENT.
5.1. BY SELLER. Seller represents and warrants to Purchaser that:
(a) ORGANIZATION AND AUTHORIZATION. Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, is duly authorized to do business in the
State of New Jersey has duly authorized the execution and performance of this
Agreement, and such execution and performance will not violate any material term
of its limited liability company agreement, nor contravene any judgment, order,
decree, writ or injunction, or any provision of any existing law or regulation
or other agreement by which Seller is bound.
(b) VALIDITY AND ENFORCEABILITY. Assuming that this Agreement
constitutes a legal, valid and binding obligation of Purchaser, this Agreement
constitutes, and all documents executed by Seller hereunder or in connection
herewith will each constitute, the legal, valid and binding obligations of
Seller, enforceable in accordance with their respective terms, covenants and
conditions, subject to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally, and
except as may be limited by applicable laws, general equitable principles or
judicial decisions which may qualify, limit or preclude certain rights, remedies
or provisions contained in this Agreement and/or any documents executed by
Seller hereunder.
(c) CONSENTS AND APPROVALS. No consent, approval,
authorization, license or order of, registration or filing with, or notice to,
any governmental entity or any other person is necessary to be obtained, made or
given by Seller in connection with the execution and delivery of this Agreement,
the performance by Seller of its obligations hereunder or the consummation by
Seller of the transactions contemplated hereby.
(d) LEGAL PROCEEDINGS. Except as may be specifically disclosed
in the Evaluation Materials and referred to on EXHIBIT K attached hereto, there
is no action, suit, claim, proceeding or other investigation pending, or to the
actual knowledge of Seller, threatened against Seller before any court, other
governmental entity or arbitrator that affects any portion of the Property or
that would otherwise affect the ability of Seller to perform its obligations
under this Agreement.
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(e) BANKRUPTCY. No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition seeking
reorganization or arrangement or other action under federal or state bankruptcy
laws is pending against or contemplated by Seller.
(f) RENT ROLL. To Seller's knowledge, all information set
forth on the rent rolls attached hereto as EXHIBIT L is true and correct in all
material respects as of its date.
(g) LEASES. To Seller's knowledge, there are no leases,
licenses, tenancies, subleases, subtenancies or occupancy agreements of kind of
any space in the Property except as set forth on the list of Leases attached
hereto as EXHIBIT C. Seller has furnished true, correct and complete copies of
all of the Leases and modifications and amendments thereof to Purchaser.
(h) OPERATING STATEMENTS. To Seller's knowledge, the operating
statements for the Property for calendar years 2001 and year-to-date 2002,
copies of which are attached hereto as EXHIBIT M, are true, correct and complete
in all material respects.
(i) ENVIRONMENTAL. The Environmental Reports listed on EXHIBIT
E are all of the environmental reports in Seller's possession or control
relating to the Property. Seller has no knowledge of any condition at the
Property which would constitute a violation of Environmental Laws (as
hereinafter defined) related to the Property or the presence or release of
Hazardous Materials on or from the Property except as disclosed in the
Environmental Reports and the Evaluation Materials.
(j) WITHHOLDING OBLIGATION. Seller's sale of the Property is
not subject to any federal, state or local withholding obligation of Purchaser
under the tax laws applicable to Seller or the Property.
(k) VIOLATIONS. To Seller's knowledge, except as set forth on
EXHIBIT N attached hereto, Seller has not received written notice of any uncured
violation of any federal, state or local law relating to the use or operation of
the Property and Seller has no knowledge of any condition at the Property which
would constitute a violation of any federal, state or local law relating to the
use or operation of the Property.
(l) CONDEMNATION. There are no condemnation proceedings
pending against the Property or any portion thereof, and Seller has not received
written notice of any threatened condemnation of all or any part of the
Property.
(m) NON-FOREIGN PERSON. Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
(n) All of the Leases are in force and effect.
(o) EXHIBIT O attached hereto sets forth the insurance
coverage currently maintained by Seller with respect to the Property.
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(p) There is no property assessment appeal proceeding pending
for a reduction of the real estate taxes assessed against the Property.
(q) To Seller's knowledge, Seller has not received any written
notice that any of the certificates of occupancy issued in connection with the
ownership, use and occupancy of the Property has been suspended or revoked.
(r) The only written agreements for the payment of leasing
brokerage commissions in connection with the Leases are listed on EXHIBIT P
attached hereto (the "BROKERAGE AGREEMENTS"). To Seller's knowledge, Seller has
delivered to Purchaser true and correct copies of the Brokerage Agreements. All
leasing commissions payable by Seller, as the landlord under the Leases, with
respect to the current lease terms under the Leases have been fully paid by
Seller; provided, however, to the extent the Novo Amendment is executed prior to
Closing, the leasing commissions due with respect to the Novo Amendment shall
not be due and payable until the effective date of the Novo Amendment.
(s) The Personal Property is owned by Seller or DLM Leasing,
LLC, as the case may be, free and clear of any conditional bills of sale,
chattel mortgages, security agreements, pledge agreements, financing statements
or other security interests, and any liens or encumbrances of any kind, except
for those financing statements and security interests of Fleet Bank, which are
to be released as of the Closing.
(t) To Seller's knowledge, Seller has not received written
notice of any general or special assessment against the Property for public
improvements constructed prior to the date hereof, except such as have
heretofore been paid.
(u) Seller does not have any employees and Seller is not a
party to any union contracts affecting the Property, other than the janitorial
contract with Xxxxx Industries.
(v) To Seller's knowledge, no person, firm or entity has any
right of first refusal or any other preferential right to acquire the Property
or any part thereof, other than the purchase right of The Trustees of Princeton
University (the "TRUSTEES") as set forth in the Amended and Restated Declaration
of Easements, Covenants, Conditions and Restrictions of the Initial Village
South Parcel (Block 3, Lot 1.61) and the Amended and Restated Declaration of
Easements, Covenants, Conditions and Restrictions of the Village South Parcel II
(Block 3, Lot 1.62), which purchase right has been waived by The Trustees as to
this transaction pursuant to that certain letter from Seller to the Trustees
dated October 3, 2002.
5.2. BY PURCHASER. Purchaser represents and warrants to Seller that:
(a) ORGANIZATION AND AUTHORIZATION. Purchaser is a Delaware
corporation, duly organized, validly existing and in good standing under the
laws of such State, has duly authorized the execution and performance of this
Agreement, and such execution and performance will not violate any material term
of any of its constitutive documents; nor violate any other agreement by which
Purchaser is bound; nor contravene any judgment, decree, writ or injunction, or
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any provision of any exiting law or regulation. Purchaser is acting as principal
in this transaction with authority to close the transaction.
(b) BANKRUPTCY. No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition seeking
reorganization or arrangement or other action under federal or state bankruptcy
laws is pending against or contemplated by Purchaser.
(c) VALIDITY AND ENFORCEABILITY. Assuming that this Agreement
constitutes a legal, valid and binding obligation of Seller, this Agreement
constitutes, and all documents executed by Purchaser hereunder or in connection
herewith will each constitute, the legal, valid and binding obligations of
Purchaser, enforceable in accordance with their respective terms, covenants and
conditions, subject to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally, and
except as may be limited by applicable laws, general equitable principles or
judicial decisions which may qualify, limit or preclude certain rights, remedies
or provisions contained in this Agreement and/or any documents executed by
Purchaser hereunder.
(d) CONSENTS AND APPROVALS. No consent, approval,
authorization, license or order of, registration or filing (other than the press
release or public disclosure contemplated under Section 11.8) with, or notice
to, any governmental entity or any other person is necessary to be obtained,
made or given by Purchaser in connection with the execution and delivery of this
Agreement, the performance by Purchaser of its obligations hereunder or the
consummation by Purchaser of the transactions contemplated hereby.
(e) LEGAL PROCEEDINGS. Except as may be specifically disclosed
herein, there is no action, suit, claim, proceeding or other investigation
pending, or to the actual knowledge of Purchaser, threatened against Purchaser
before any court, other governmental entity or arbitrator that would affect the
ability of Purchaser to perform its obligations under this Agreement.
(f) SOPHISTICATION OF PURCHASER. Purchaser has knowledge and
experience in financial and business matters and is capable of evaluating the
merits and risks of the transactions contemplated by this Agreement.
All of the representations, warranties and agreements of Purchaser set forth in
this Agreement will survive the Closing. The acceptance of the Deed by Purchaser
shall be deemed an acknowledgement by Purchaser that Seller has fully performed,
discharged and complied with all of Seller's obligations, representations,
warranties, covenants and agreements hereunder, that Seller is discharged
therefrom and that Seller shall have no further liability with respect thereof,
except for (i) the post-closing adjustments, if any required by Section 6.3
hereof and (ii) those, if any, which are herein specifically stated in this
Agreement to survive the Closing.
5.3. BROKERAGE. Seller, on the one hand, and Purchaser, on the other
hand, represent to the other that it has had no dealings, negotiations, or
consultations with any broker, finder, representative, agent or other
intermediary except Crimson Financial Services, LLC ("CRIMSON") and Xxxxxxx &
Wakefield ("C&W") in connection with this Agreement or the sale of the Property.
Seller and Purchaser agree that each will indemnify, defend and hold the other
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free and harmless from the claims of any other broker(s), representative(s),
employee(s), agent(s) or other intermediary(ies) claiming to have represented
Seller or Purchaser, respectively, or otherwise to be entitled to compensation
in connection with this Agreement or in connection with the sale of the
Property. Seller agrees to pay any fee, brokerage commission or other
compensation due to Crimson and C&W pursuant to a separate agreement between
Seller, Crimson and C&W. The provisions of this Section 5.3 shall survive the
termination of this Agreement or the Closing.
5.4. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. Seller's obligations
hereunder are subject to the satisfaction of the following conditions precedent
which may be waived in whole or in part by Seller:
(a) Purchaser shall have paid the Balance of the Purchase
Price pursuant to the terms hereof.
(b) Purchaser shall have delivered to or for the benefit of
Seller, on or before the Closing Date, all of the documents and items required
of the Purchaser pursuant to Section 9.2 hereof, and Purchaser shall have
performed in all material respects the material covenants and obligations
required to be performed by Purchaser under this Agreement through the Closing
Date.
(c) All of Purchaser's representations and warranties made in
this Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date as if then made (except where such
representations and warranties were expressly meant to be true as of an earlier
date).
5.5. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Purchaser's
obligations hereunder are subject to the satisfaction of the following
conditions precedent which may be waived in whole or in part by Purchaser:
(a) Seller shall have delivered to or for the benefit of
Purchaser, on or before the Closing Date, all of the documents and items
required of the Seller pursuant to Section 9.1 hereof, and Seller shall have
performed in all material respects the material covenants and obligations
required to be performed by Seller under this Agreement through the Closing
Date.
(b) All of Seller's representations and warranties made in
this Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date as if then made (except where such
representations and warranties were expressly meant to be true as of an earlier
date).
6. COSTS AND PRORATIONS.
6.1. PURCHASER'S COSTS. Purchaser will pay the following costs of
closing this transaction:
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(a) the fees and disbursements of its counsel, mortgage
broker, inspecting architect, engineer and environmental consultant, if any, and
any other party retained by Purchaser;
(b) any sales or use taxes relating to the transfer of
personal property to Purchaser;
(c) the cost of an ALTA owner's title insurance policy (and
any commitment relating thereto) and any mortgagee's title insurance policy,
issued in connection with this transaction, whether pursuant to the Title
Commitments or otherwise including, any additional premium charge(s) for
endorsements and/or deletion(s) of exception items and any cancellation
charge(s) imposed by any title company in the event a title insurance policy is
not issued, unless caused by willful default of Seller hereunder;
(d) the costs of any survey work or changes or additions to
the Surveys requested by Purchaser to the extent the survey work or the Surveys
made available by the Seller are not acceptable to the Purchaser, and/or the
costs of any new survey desired by Purchaser;
(e) $18,716.81 of the leasing commissions payable by Seller in
connection with the Novo Amendment pursuant to Section 4.4(b) above;
(f) any other expense(s) incurred by Purchaser or its
representatives in inspecting or evaluating the Property or closing this
transaction; and
(g) all other charges customarily paid by purchasers in the
jurisdiction where the Property is located, except to the extent Seller is
obligated in Section 6.2 hereof to pay such charges.
6.2. SELLER'S COSTS. Seller will pay the following costs of closing
this transaction:
(a) transfer, stamp or documentary tax(es) or similar
conveyance fees;
(b) the fees and disbursements of its counsel;
(c) the fee to Crimson and C&W to the extent any such fee is
payable pursuant to Seller's separate agreements with Crimson and C&W;and
(d) all other charges customarily paid by sellers in the
jurisdiction where the Property is located, except to the extent Purchaser is
obligated in Section 6.1 hereof to pay such charges.
6.3. APPORTIONMENTS. (a) The following are to be apportioned between
Seller and Purchaser as of 11:59 p.m. E.S.T. on the date immediately preceding
the Closing Date (except as otherwise expressly provided below) and the net
amount thereof shall (a) if owed to Seller, be paid by Purchaser to Seller or
(b) if owed to Purchaser, be credited by Seller against the Balance of the
Purchase Price, as the case may be, at the Closing:
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(i) real property taxes; provided that if, on the Closing
Date, the Land and/or the Building or any part
thereof shall be affected by any real property taxes
or other assessments which are payable in
installments, then installments payable prior to the
Closing Date shall be paid by Seller (subject to
apportionment as provided for herein), and
installments payable after the Closing Date shall be
paid by Purchaser (subject to apportionment as
provided herein) and provided further that any
assessment which can be paid by either a single lump
sum payment or in installments shall be deemed
payable in installments;
(iii) water rates and charges;
(iv) sewer taxes and rents;
(v) vault taxes or fees;
(vi) charges and payments under any service, maintenance,
supply or other contracts entered into by Seller
which Purchaser has elected to assume as provided in
Section 3.4;
(vii) annual permit, license and inspection fees, if any,
on the basis of the fiscal year for which levied, if
rights thereunder with respect thereto are
transferable to Purchaser;
(viii) electricity, fuel, steam and all other utilities
(with credit to Seller by Purchaser for the amount of
any assignable deposits, together with any interest
earned thereon and not previously paid to Seller with
respect to the period prior to the Closing, with
utility companies which shall not be refunded to
Seller on or after the Closing and which shall
benefit Purchaser);
(ix) brokerage commission obligations in respect of the
Leases, which obligations shall be apportioned and
assigned in accordance with the terms of this
Agreement; it being acknowledged and agreed by Seller
and Purchaser that Section 4.4 provides that certain
brokerage commission obligations shall be assumed by
Purchaser even though such obligations have been
incurred by Seller prior to the Closing Date;
(x) base rent, additional rent, license fees and other
amounts due to landlord under the Leases
(collectively, the "RENT"), on the basis that the
portion of the Rent actually ---- received consisting
of additional rent, escalation rent or license fees
which are based on a percentage of revenue shall be
apportioned on a calendar year or fiscal year basis
(depending upon which is appropriate under each
Lease) so that the amount thereof under any of the
Leases to which Seller shall be entitled shall be an
amount which bears the same ratio to the base rent,
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additional rent and escalation rents due thereunder
for the current period as the number of days in said
period which shall have elapsed prior to the Closing
Date bears to the total number of days in said period
(E.G., if the current period for which such
additional and escalation rents are ---- to be paid
runs from January 1, 2002 through December 31, 2002,
Seller shall be entitled to the number of days from
and including January 1, 2002 to the Closing Date,
divided by 365 and multiplied by the total additional
and escalation rents due for such period);
(xi) itemized supplies on hand in unopened cartons, at
Seller's cost plus applicable sales taxes, but in no
event in excess of $5,000; and
(xii) all other items customarily apportioned in connection
with sales of similar properties similarly located.
(b) If the Closing Date shall occur before the real property
taxes, water rates and charges and sewer taxes and rents are finally fixed, the
apportionments thereof made at the Closing shall be upon the basis of the tax or
water rates for the preceding year applied to the latest assessed valuation, but
after the real property taxes, water rates and charges and sewer taxes and rents
are finally fixed, Seller and Purchaser shall promptly make a recalculation of
the apportionment of same, and Seller or Purchaser, as the case may be, shall
thereafter promptly make an appropriate payment to (or at the direction of) the
other based on such recalculation.
(c) If water meters are located on the Property, Seller shall
furnish readings to a date not more than fifteen (15) days prior to the Closing
Date, and the unfixed water rates and charges, sewer taxes and rent, if any,
based thereon for the intervening time, shall, subject to post-closing
adjustment, be apportioned on the basis of such last readings.
(d) Seller shall furnish a final reading of all master utility
meters (including steam, gas, oil, electricity and water and any derivative
sewer charges based on meters) to a date not more than fifteen (15) days prior
to the Closing Date. Purchaser shall execute a notice to each of such utility
companies substantially in the form of EXHIBIT Q attached hereto, advising such
utility companies of the termination of Seller's responsibility for such charges
for utilities furnished to the Property from and after the Closing Date. If a
xxxx is obtained from any of such utility companies before the Closing Date,
Seller shall pay such xxxx on or before the Closing and deliver proof of payment
thereof to Purchaser. If such xxxx shall not have been obtained before the
Closing, Seller shall pay all such utility, water and sewer charges which relate
solely to the period prior to the Closing Date and Purchaser shall pay all such
utility, water and sewer charges which relate solely to the period on or after
the Closing Date. Any xxxx which shall be rendered after the Closing and covers
a period both before and after the Closing Date shall be apportioned between
Purchaser and Seller as of the Closing Date as herein provided, but such xxxx
shall be paid by Purchaser. Seller shall be entitled to the return of any
deposit(s) posted with any utility company (unless credited as provided above).
(e) The value of any fuel oil owned by Seller and available to
the Buildings on the date as of which adjustments shall be made, shall be
adjusted at the cost price thereof to Seller, as reflected in Seller's last
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xxxx, plus tax. The amount of fuel oil is to be estimated in writing by the fuel
company presently supplying fuel to the Buildings, as of the Closing Date.
(f) If, after the Closing Date, Seller receives any Rent not
specifically designated as being for any period prior to the Closing Date,
Seller shall forthwith remit to Purchaser the amount of such Rent less any
amounts to which Seller shall be entitled as hereinafter provided. If, after the
Closing Date, Seller receives Rent which is specifically designated as being for
any period prior to the Closing Date, Seller shall be entitled to retain
therefrom such past-due or accrued Rent with respect to the period prior to the
Closing Date for which Seller has not received a credit therefor at the Closing
and Seller shall forthwith remit to Purchaser any remaining portion of such
payments. If, after the Closing Date, Purchaser receives Rent which is not
specifically designated as being for any period subsequent to the Closing Date,
such Rent shall first be applied to such charges as are then due and then
applied in their reverse order of accrual until applied in full and Seller shall
remit to Purchaser within thirty (30) days after receipt any remaining portion
of such Rent that is due to Seller. Nothing herein contained shall preclude
Seller from asserting separate and independent non-possessory claims against any
Tenants including, but not limited to, the institution of such non-possessory
actions or proceedings as Seller shall deem necessary or advisable for the
purpose of collecting such past-due Rent not credited to Seller at the Closing,
the right (but not the obligation) to do any of which is hereby reserved by
Seller.
(g) Subject to the provisions of this Section 6.3, to the
extent that Rent cannot be determined on the Closing Date, or is collected after
the Closing Date for any period prior thereto, the amount of such Rent for the
period ending on the Closing Date, and all accountings showing the calculations
thereof, shall be paid and furnished to Seller by Purchaser, or to Purchaser by
Seller, as the case may be, as and when received after the Closing Date,
PROVIDED, HOWEVER, the amount of such Rent and such accountings shall not be
paid and so furnished more often than monthly and provided further that the
parties agree that a final payment and accounting shall occur no later than on
the one (1) year anniversary of the Closing Date.
(h) At the Closing, Purchaser shall receive a credit against
the Balance of the Purchase Price in the aggregate amount of the cash Security
Deposits and any interest required to be paid thereon, if any.
(i) If there are any liens or encumbrances which Seller is
obligated to pay and discharge pursuant to the terms of this Agreement, Seller
may use any remaining portion of the Balance of the Purchase Price to satisfy
the same, provided that Seller, at the Closing, delivers to Purchaser
instruments in recordable form and sufficient to satisfy of record such liens
and encumbrances, together with a check for the cost of recording or filing such
instruments, and/or directs Purchaser, at least five (5) business days prior to
the Closing, to deposit with the Lead Title Company and any co-insurer at the
Closing such amount of money as may be sufficient to induce the Lead Title
Company to omit same as an exception to title to the Property. Purchaser, if
request is made at least five (5) business days prior to the Closing, agrees to
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provide Seller at the Closing with available funds, in an aggregate amount not
exceeding the sum of (i) the Balance of the Purchase Price (less the aggregate
amount of any credits against the Balance of the Purchase Price provided for
herein) and (ii) any other amounts due by Purchaser to Seller pursuant to this
Agreement, to facilitate the satisfaction of any of the aforesaid taxes,
assessments, water rates and charges, sewer taxes and rents, liens and
encumbrances.
(k) Notwithstanding anything contained herein to the contrary,
if there are any other item(s) to be apportioned in accordance with this Section
6.3 which Seller is obligated to pay pursuant to the terms of this Agreement,
Seller may use any remaining portion of the Balance of the Purchase Price to
satisfy the same, provided that Seller, at the Closing, delivers to Purchaser
official bills therefor, with interest and penalties thereon, if any.
(l) In the event any portion of the tenant improvement
allowance (the "AMERICAN-RE ALLOWANCE") payable to American Re-Insurance Company
("AMERICAN-RE") under the terms of the Lease Agreement by and between Seller and
American-Re, as identified on the schedule of Leases attached hereto as EXHIBIT
C and made a part hereof for all purposes, has not been fully advanced by Seller
to American-Re on or prior to Closing, then Purchaser shall be entitled to a
credit against the Purchase Price in an amount equal to the unadvanced portion
of the American-Re Allowance.
(m) Except as is otherwise specifically provided herein, the
customs and prevailing practice for similar transactions in the jurisdiction
where the Property is located shall apply to the apportionments and other
matters herein mentioned. The parties hereto agree that any errors or omissions
in computing apportionments at the Closing shall be corrected promptly after
their discovery. The provisions of this Section 6.3 shall survive the Closing.
6.4. PURPOSE AND INTENT. Except as expressly provided herein, the
purpose and intent as to the provisions of this Agreement relating to
prorations, adjustments and apportionments is that Seller shall bear all
expenses of ownership and operation of the Property and shall receive all income
therefrom accruing through midnight at the end of the day preceding the Closing
and Purchaser shall bear all such expenses and receive all such income accruing
thereafter.
7. DAMAGE, DESTRUCTION OR CONDEMNATION.
7.1. CASUALTY. The risk of any loss or damage to the Property prior to
the Closing Date shall remain upon Seller. If, prior to the Closing, all or any
portion of the Property is destroyed or damaged as a result of fire or any other
cause whatsoever, Seller shall give written notice thereof promptly to
Purchaser. If, as a result of such damage or destruction, either (i) fifteen
percent (15%) or more of the net rentable area of the Buildings is rendered
untenantable or (ii) any portion of the Property having a material and
beneficial affect on the use of the Property (including ingress, egress and
parking spaces) is substantially damaged or destroyed, Purchaser shall have the
right to terminate this Agreement by giving written notice of its election to
Seller within fourteen (14) days after receiving notice of such destruction. If
Purchaser fails to give such written termination notice within such fourteen
(14) day period, or if prior to the Closing, less than fifteen percent (15%) of
the net rentable area of the Buildings is rendered untenantable and no portion
of the Property having a material and beneficial affect on the use of the
Property (including ingress, egress and parking spaces) is substantially damaged
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or destroyed, this transaction shall be consummated on the date and at the
Purchase Price provided for in Section 2, and Seller will assign to Purchaser at
the Closing the physical damage proceeds of any insurance policies payable to
Seller, up to the amount of the Purchase Price, and Purchaser shall receive as a
credit against the Purchase Price the amount of any deductibles under the
policies of insurance covering such loss or damage, and except for such credit,
there shall be no reduction in the Purchase Price.
7.2. CONDEMNATION. If between the date of this Agreement and the
Closing Date, either (i) fifteen percent (15%) or more of the net rentable area
of the Buildings or (ii) any portion of the Property having a material and
beneficial affect on the use of Property (including ingress, egress and parking
spaces) is taken by any governmental entity as a result of the exercise of the
power of eminent domain, Seller shall give written notice thereof promptly to
Purchaser, and Purchaser, at its election, may terminate this Agreement by
giving written notice of its election to Seller within fourteen (14) days after
receiving notice of such taking. If Purchaser fails to give such written
termination notice within such fourteen (14) day period, or if prior to the
Closing, less than fifteen percent (15%) of the net rentable area of the
Buildings and no portion of the Property having a material and beneficial affect
on the use of the Property (including ingress, egress and parking spaces) is
taken as aforesaid, this transaction shall be consummated on the date and at the
Purchase Price provided for in Section 2, and Seller will assign to Purchaser
Seller's portion of any condemnation award up to the amount of the Purchase
Price, less any reasonable attorney's fees, if any, and out of pocket expenses
incurred by Seller in connection with the recovery of such condemnation award.
7.3. RESTORATION. After the Effective Date, Seller shall not settle any
insurance or condemnation claim or commence or perform any work to restore the
Property in connection with any casualty or condemnation without obtaining the
prior written consent of Purchaser as to such settlement and/or restoration.
7.4. TERMINATION AND RETURN OF DEPOSIT. If Purchaser elects to
terminate this Agreement pursuant to this Section 7, Seller shall promptly
direct the Title Company to return the Deposit to Purchaser, and all rights and
obligations of Seller and Purchaser hereunder (except those set forth in this
Agreement which expressly survive a termination of this Agreement) shall
terminate immediately.
8. NOTICES. Any notice required or permitted to be given hereunder shall
be deemed to be given when hand delivered or one (1) business day after pickup
by Federal Express, or similar overnight express service, or when delivered by
facsimile transmission with written acknowledgment of receipt, in any case
addressed to the parties at their respective addresses referenced below:
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If to Seller: c/o Patrinely Group, LLC
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: C. Xxxx Xxxxxxxxx
Fax: (000) 000-0000
With a copy to: Patrinely Group, LLC
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
If to Purchaser: New Valley Corporation
000 X.X. Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to: New Valley Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
With a copy to: Fischbeino Badilloo Wagnero Xxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, P.C.,
of counsel
Fax: (000) 000-0000
If to Lead Title Company: First American Title Insurance Company
000 Xxxxx Xxxxxx
Xxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
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or, in each case, to such other address as either party may from time to time
designate by giving notice in writing to the other party. Telephone and
facsimile numbers are for informational purposes only. Effective notice will be
deemed given only as provided above.
9. CLOSING MATTERS.
9.1. SELLER'S DELIVERIES. Seller shall deliver either at the Closing or
by making available at the Property, as appropriate, the following original
documents, each duly executed and, as applicable, acknowledged:
(a) a special or limited warranty deed to the Property in the
form attached hereto as EXHIBIT R.
(b) a xxxx of sale in the form attached hereto as EXHIBIT S
conveying the Personal Property.
(c) the Leases described in Section 1.1(f) which are still in
effect as of the Closing and any new leases entered into pursuant to Section
4.4; all cash security deposits delivered by Tenants pursuant to the terms of
Leases (to be transferred as provided in Section 6.3(h)) together with any
interest payable thereon and which have not been applied in accordance with the
terms of the Leases; the letter of credit in the initial amount of $1,298,572.60
(the "PHYSIOME LC"), issued by Citibank North America, Inc. in connection with
the Lease with Physiome Sciences, Inc. (the "PHYSIOME LEASE"), which has not
been applied in accordance with the terms of the Leases; PROVIDED, HOWEVER, that
Seller shall be responsible for any fees or other costs associated with the
transfer of the Physiome LC; any advance rentals previously delivered by any
Tenants; and an assignment of the Leases, deposits, and prepaid rents by way of
an assignment and assumption in the form attached hereto as EXHIBIT T. Seller
shall take all necessary action to transfer the Physiome LC to Purchaser as of
the Closing Date; provided, however, if the transfer of the Physiome LC to
Purchaser has not been completed by the Closing Date, then Seller shall escrow
funds with the Title Company pursuant to an escrow agreement reasonably
acceptable to Seller, Purchaser and the Title Company (the "PHYSIOME LC
ESCROW"), which funds shall be in an amount equal to the then outstanding
balance that may be drawn under the Physiome LC. Upon completion of the transfer
of the Physiome LC to Purchaser, all funds held in the Physiome LC Escrow shall
be immediately released to Seller. Seller shall, until the transfer
documentation is duly issued (which issuance Purchaser and Seller agree to
pursue diligently after the Closing) and delivered in favor of Purchaser or
Purchaser's lender, as identified to Seller by December 6, 2002, take all
reasonable action and use its reasonable and diligent efforts to cause Fleet
Bank to take all reasonable action, as and if directed by Purchaser and without
obligation to incur any expense which is not reimbursed or advanced by
Purchaser, in connection with the presentment of such letters of credit for
payment as permitted under the terms of the Physiome Lease, and in consideration
of Seller's agreement as aforesaid, Purchaser shall indemnify and hold Seller
harmless from any loss, claim, damage, liability or expense, including without
limitation reasonable attorneys' fees, court costs and disbursements, arising
out of or resulting from Seller's actions relating to such letter of credit
after the Closing Date. The obligations set forth in this provision shall
survive the Closing.
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(d) estoppel certificates ("ESTOPPEL CERTIFICATES") dated not
earlier than thirty (30) days prior to the Closing and substantially in the form
attached hereto as EXHIBIT U, without material alterations thereto, executed by
the following tenants (the "REQUIRED TENANTS"): (A) Novo Nordisk
Pharmaceuticals, Inc., ZS Associates, Inc., Physiome Sciences, Inc., American
Re-Insurance Company and Patrinely Group, LLC (each an "ANCHOR TENANT", and
collectively, the "ANCHOR TENANTS") and (B) either Duane, Morris & Heckscher, LP
or Broadbeam Corporation. It shall be a condition precedent to Purchaser's
obligation to close that Seller provide the Estoppel Certificates as required
under this section not later than the Closing Date; PROVIDED, HOWEVER,
notwithstanding anything to the contrary contained in this Agreement (y) in the
event Seller shall be unable to obtain an Estoppel Certificate from any Tenant,
Purchaser may, at its option and in lieu of the Estoppel Certificate from any
Tenant, require Seller to deliver to Purchaser at the Closing a certificate (a
"SELLER'S CERTIFICATE") executed by Seller, certifying that the information set
forth in the Estoppel Certificate prepared for such Tenant is true and correct
in all material respects and (z) Seller's failure to provide any such Estoppel
Certificate from the Required Tenants shall not be deemed a default hereunder
and Purchaser's sole remedy shall be to terminate this Agreement upon written
notice to Seller, in which event the Deposit shall be refunded to Purchaser and
this Agreement shall be of no further force and effect (except for any
provisions contained herein which survive expressly by their terms). Seller
shall be released from any liability to Purchaser with respect to any Seller's
Certificate delivered by Seller, upon the delivery to Purchaser of a properly
completed Estoppel Certificate from the applicable Tenant for whom Seller has
delivered such Seller's Certificate. Notwithstanding anything in this Agreement
to the contrary, in the event that any Estoppel Certificate required to be
delivered under this Agreement contains a material and adverse change from the
form provided to the Tenant or discloses a material default by Seller under such
Lease or a previously undisclosed material obligation of Seller (and Seller is
unable, prior to the Closing Date, to get such estoppel certificate reissued
without such change or disclosure), Purchaser, as its sole remedy, may terminate
this Agreement by written notice to Seller, in which event the Deposit shall be
refunded to Purchaser and this Agreement shall be of no further force and effect
(except for any provisions of this Agreement that are expressly stated to
survive any termination of this Agreement).
(e) copies of all contracts relating to the Property which
Purchaser has elected to assume or which are not terminable by Seller on or
before the Closing Date; an assignment of such contracts to Purchaser, in the
form attached hereto as EXHIBIT V; and notices to the contractors under such
contracts, with respect to the assumption by Purchaser of all obligations
thereunder, which notices Purchaser shall be obligated to deliver to the
contractors.
(f) an assignment of all transferable warranties and
guarantees then in effect, if any, with respect to the improvements located on
the Property or any repairs or renovations to such improvements and Personal
Property being conveyed hereunder, which assignment shall be in the form
attached hereto as EXHIBIT W.
(g) an assignment and assumption of certain brokerage and
listing agreements relating to the Leases and/or the Buildings which assignment
and assumption agreement shall be in the form attached hereto as EXHIBIT X.
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(h) current unpaid real estate tax, water and sewer bills.
(i) the books and records for the two (2) calendar years prior
to the year in which the Closing occurs, and all books and records for the
calendar year in which the Closing occurs, maintained at the Property or held by
or for the account of Seller, together with all plans and specifications
relating to the Property and lease applications, as available.
(j) an affidavit pursuant to the Foreign Investment and Real
Property Tax Act in the form attached hereto as EXHIBIT Y.
(k) a certificate of the member of Seller certifying the due
authorization of the transaction contemplated by this Agreement, as well as any
other evidence of authority and good standing as the Lead Title Company or any
co-insurer shall reasonably require in order to issue the Title Policy
hereunder.
(l) to the extent in possession, custody or control of Seller,
all Intangible Personal Property, together with an assignment and assumption
thereof substantially in the form of EXHIBIT Z attached hereto.
(m) notices to Tenants, including new notice addresses for the
landlord and payment instructions, which notices Purchaser shall prepare and
cause to be delivered to the Tenants, at Purchaser's sole cost and expense, as
required by their respective Leases.
(n) notices to the utility companies, as provided in Section
6.3(d).
(o) a designation agreement (the "DESIGNATION AGREEMENT") in
the form attached hereto as EXHIBIT AA.
(p) a property management agreement (the "PROPERTY MANAGEMENT
AGREEMENT"), whereby Purchaser engages Crimson Corporate Services, LLC to manage
the Property. The Property Management Agreement shall be in a form reasonably
acceptable to both Seller and Purchaser. The Property Management Agreement shall
provide for (i) a three percent (3%) management fee, and (ii) an obligation for
Property Manager to carry a fidelity bond and O&E insurance in the amount of
$1,000,000.
(q) transfer, stamp or documentary tax returns, as may be
customary in the jurisdictions having authority over this transaction or
otherwise required hereunder.
(r) all keys and/or access cards in Seller's possession to all
entrance doors to, and any equipment and utility rooms located in, the
Buildings.
(s) deliver to Purchaser a certificate executed by Seller
updating the representations and warranties of Seller in Section 5.1; provided
that, in the event that any representation or warranty of Seller set forth in
Section 5.1 hereof needs to be modified due to changes since the Effective Date,
such certificate shall state that such representation or warranty is not, or no
longer is, true and correct and shall explain the state of facts giving rise to
the change. In no event shall Seller be liable to Purchaser for, or be deemed to
be in default hereunder by reason of, any breach of representation or warranty
set forth in Section 5.1 which results from any change that both (i) occurs
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between the Effective Date and the Closing Date and (ii) is expressly permitted
under the terms of this Agreement or is beyond the reasonable control of Seller
to prevent; provided, however, that the occurrence of a change which is
permitted hereunder or is beyond the reasonable control of Seller to prevent
shall, if materially adverse to Purchaser, constitute the non-fulfillment of the
condition set forth in Section 5.5(b) hereof; if, despite such 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.
(t) a closing statement setting forth all credits, adjustments
and prorations made in accordance with the terms of this Agreement in form and
content reasonably satisfactory to Purchaser and Seller (the "CLOSING
STATEMENT").
(u) a letter addressed to and agreed to in writing by the Lead
Title Company (the "ESCROW DISBURSEMENT LETTER") directing the Lead Title
Company to hold in escrow and, upon satisfaction of the conditions set forth
therein, to date and otherwise complete (where applicable) and deliver out of
escrow, the Deed and other closing documents and to disburse the Deposits, the
Balance of the Purchase Price (after credits, adjustments and prorations in
accordance with Closing Statement), as well as any other payments as provided
for in this Agreement.
(v) a letter in standard form from the New Jersey Department
of Environmental Protection stating that the provisions of the Industrial Site
Recovery Act ("ISRA") are not applicable to the Property, or evidence reasonably
satisfactory to Purchaser of compliance with the provisions of ISRA.
(w) a rent roll for the Property (certified to Seller's
knowledge) dated not earlier than seven (7) days before the Closing Date (in the
same form as the Rent Roll attached as EXHIBIT L).
(x) evidence of the termination of the Equipment Lease dated
June 28, 2002, by and between Seller, as lessee, and DLM Leasing, LLC, as
lessee, together with evidence of the due exercise and consummation of the
"Purchase Option (as defined therein).
(y) other documents and affidavits (including a "gap indemnity
and hold harmless agreement" to the Title Company) as may reasonably be
requested by Purchaser or Title Company for a transaction of this type.
(aa) a guaranty by Apollo Real Estate Investment Fund III,
L.P. ("Apollo") and Crimson Capital, Ltd. ("Crimson"), in the form attached
hereto as EXHIBIT BB, whereby such parties guaranty (i) payment of any
post-closing reconciliations of income and operating expenses of the Property
pursuant to Section 6.3 hereof and (ii) any post-closing obligations of Seller
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with respect to the representations and warranties of Seller contained in
Section 5.1 and Section 5.3; provided, however, that the aggregate liability of
Apollo and Crimson under such guaranty for all post-Closing obligations shall be
limited to Two Million Two Hundred Fifty Thousand and No/100 Dollars
($2,250,000.00).
(bb) a guaranty by Apollo, in the form attached hereto as
EXHIBIT CC, whereby Apollo guarantees Seller's representations and warranties
contained in Section 5.1(f) and Section 5.1(g).
9.2. PURCHASER'S DELIVERIES. At the Closing, Purchaser shall deliver
the following original documents, each duly executed and, as applicable,
acknowledged:
(a) the Designation Agreement, the Property Management
Agreement, all assignments and assumptions of any Leases, contracts, Personal
Property, Intangible Personal Property, security deposits, brokerage and listing
obligations and other assets and intangibles assigned to Purchaser hereunder.
(b) copies of any notices to Tenants, utility companies and
contractors required pursuant to this Agreement.
(c) transfer, stamp or documentary tax returns as may be
customary in the jurisdictions having authority over this transaction or
otherwise required hereunder.
(d) The Closing Statement.
(e) The Escrow Disbursement Letter.
(f) such other documents as may reasonably be requested by
Seller or Title Company for a transaction of this type.
9.3. POSSESSION. Purchaser shall be entitled to possession of the
Property upon conclusion of the Closing.
9.4. INSURANCE. Seller shall terminate its policies of insurance as of
noon on the Closing Date and Purchaser shall be responsible for obtaining its
own insurance thereafter.
9.5. NOTICE LETTERS. Subsequent to and/or at the Closing, to the extent
requested by Purchaser, Seller shall execute and deliver to Purchaser copies of
form letters (prepared by Purchaser and reasonably approved by Seller) to
contractors, any taxing authorities and any other parties serving the Property
and not separately notified, advising them of the sale of the Property to
Purchaser and directing to Purchaser all bills for the services provided to the
Property on and after the Closing Date.
9.6. LETTERS OF CREDIT. Seller has posted two (2) separate letters of
credit with Plainsboro Township, New Jersey. The first letter of credit is
Standby Letter of Credit No. RS 1339554 dated July 15, 2002 in the amount of
$32,710.05 (the "MAINTENANCE LC"), which was posted in connection with a
requisite two (2) year maintenance guaranty with regard to certain off-site
improvements related to the Property and the roadways adjacent to the Property.
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The second letter of credit is Standby Letter of Credit Xx. 0000000 dated July
15, 2002 in the amount of $712,735.28 (the "SITE LC"), which was posted in
connection with the obligations associated with, inter alia, certain unfinished
landscaping on the Property. The parties anticipate that, prior to Closing, the
Township of Plainsboro will authorize a two-year maintenance guarantee in the
form of a bond or letter of credit in the amount of $395,964.05 (the
"REPLACEMENT LC") in lieu of the Site LC. At Closing, Purchaser shall substitute
its own letter of credit or bond for the Maintenance LC; PROVIDED, HOWEVER, if
Purchaser has not then substituted its own bond or letter of credit for the
Maintenance LC, then Purchaser shall escrow $32,710.05 with the Title Company
pursuant to an escrow agreement reasonably acceptable to Seller, Purchaser and
the Title Company (the "MAINTENANCE LC ESCROW"). Upon Purchaser's substitution
of its own bond or letter of credit for the Maintenance LC, and the return to
Seller of the Maintenance LC, all funds held in the Maintenance LC Escrow shall
be immediately released to Purchaser. If, prior to Closing, the Township of
Plainsboro has not authorized the replacement of the Site LC solely upon tender
of the Replacement LC, then Seller shall maintain the Site LC in place until
such time as the Township of Plainsboro so authorizes such replacement. If,
prior to Closing, the Township of Plainsboro has authorized the replacement of
the Site LC solely upon the tender of the Replacement LC, then, at Closing,
Purchaser shall provide its own letter of credit or bond for the Replacement LC.
If, at Closing, Purchaser has not substituted its own Replacement LC for the
Site LC, then Purchaser shall escrow $395,964.05 with the Title Company pursuant
to an escrow agreement reasonably acceptable to Seller, Purchaser and the Title
Company (the "REPLACEMENT LC ESCROW"). Upon Purchaser's substitution of its own
Replacement LC for the Site LC, and the return to Seller of the Site LC, all
funds held in the Replacement LC Escrow shall be immediately released to
Purchaser. Purchaser and Seller shall cooperate and assist each other, in all
reasonable respects, in promptly obtaining a release of the Maintenance LC and
the Site LC or Replacement LC, as applicable, that have previously been posted
with Plainsboro Township, New Jersey by Seller. Seller shall be solely
responsible for completion of all conditions required by Plainsboro Township
(other than Purchaser's tender of the Replacement LC) in order to allow the Site
LC to be returned to Seller. After Closing, Purchaser shall be solely
responsible for all obligations associated with the requirements imposed by
Plainsboro Township, New Jersey related to the site improvement and landscaping
maintenance obligations guaranteed by the Maintenance LC and the Replacement LC.
The provisions of this Section 9.6 shall survive the Closing.
10. DEFAULT; DEFECTS.
10.1. PURCHASER DEFAULT. If Purchaser shall refuse or fail to purchase
the Property as herein provided for any reason other than (i) a default by
Seller, or (ii) any other provision of this Agreement which permits Purchaser to
terminate this Agreement or otherwise relieves Purchaser of the obligation to
acquire the Property, the Deposit shall be retained by Seller as liquidated
damages as and for its sole and exclusive remedy, and both parties shall be
relieved of and released from any further liability hereunder except for any
obligation which is expressly provided in this Agreement to survive any
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termination of this Agreement. Seller and Purchaser agree that the Deposit is a
fair and reasonable amount to be retained by Sellers as agreed upon liquidated
damages in light of Seller's removal of the Property from the market and the
costs incurred by Seller and shall not constitute a penalty or a forfeiture.
10.2. SELLER DEFAULT. If Seller shall refuse or fail to convey the
Property as herein provided for any reason other than (i) a material default by
Purchaser, or (ii) any other provision of this Agreement which permits Seller to
terminate this Agreement or otherwise relieves Seller of the obligation to
convey the Property, Purchaser shall elect as its sole and exclusive remedy
hereunder either to terminate the Agreement and recover the Deposit or to seek
specific performance of Seller's obligations to convey the Property, provided
that no such action in specific performance shall seek to require the Seller to:
(a) change the condition of the Property or restore the same after any fire or
other casualty; (b) subject to Section 10.3 below, expend money or post a bond
to remove a title encumbrance or defect or correct any matter shown on the
Surveys; or (c) secure any permit, approval, or consent with respect to the
Property or Seller's conveyance of the Property. Failure to file suit for
specific performance within ninety (90) days after the scheduled Closing Date
shall be deemed Purchaser's election to waive any right to xxx for specific
performance.
10.3. DEFECTS. If, prior to the Closing, Seller discloses to Purchaser
or Purchaser discovers that any representation or warranty of Seller contained
in this Agreement is or, as of the Closing Date, will be untrue, then Purchaser
shall promptly give Seller written notice of its objection thereto. The parties
acknowledge and agree that Seller shall have no obligation to cure any such
objections of Purchaser. If Purchaser fails to waive the objection within two
(2) business days after notice from Seller that Seller is unable or unwilling to
cure such objections by Purchaser, then this Agreement will terminate
automatically and Seller shall promptly direct the Lead Title Company to return
the Deposit to Purchaser, provided that Purchaser shall not be in material
default hereunder, and neither party shall have any liability to the other
except for Purchaser's indemnity obligations set forth in this Agreement and the
Confidentiality and Inspection Agreement.
10.4 Notwithstanding anything in this Agreement to the contrary,
Purchaser acknowledges that any inconsistency between (i) any representation or
warranty by Seller in this Agreement or any certificate delivered at the Closing
in connection therewith and (ii) the Evaluation Materials available for review
by Purchaser or its representatives prior to the Closing, shall be controlled by
the terms of such Evaluation Materials and that any inconsistency shall not
constitute an objection to title or a breach by Seller of any representation or
warranty made by Seller in this Agreement.
10.5 Notwithstanding anything in this Agreement to the contrary,
Purchaser may provide written notice (each a "TITLE NOTICE") to Seller on or
before the Closing Date of any matters shown by updates (whether by current
title searches, visual inspections or otherwise) of the Title Commitment and/or
the Surveys (collectively, the "REVIEW MATERIALS") which materially deviate from
the matters disclosed by the Review Materials and which are not otherwise a
Permitted Encumbrance under this Agreement (each an "OBJECTION", and
collectively, "OBJECTIONS") and which specify the reason such Objections are not
satisfactory and the curative steps necessary to remove the Objections by the
Closing Date; provided, however, the Title Notice must be delivered by Purchaser
to Seller within five (5) Business Days after Purchaser becomes aware of such
Objections. Prior to Closing, Seller shall use its good faith, diligent efforts
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to cure any Objections that (i) would prevent the current use and operation of
the Property, (ii) would represent a claim of fee ownership of the Property, or
(iii) is a monetary lien (other than the Seller Mortgages) against the Property
created by Seller; provided, however, Seller shall not be obligated to expend
more than Fifty Thousand and No/100 Dollars ($50,000.00) in the aggregate to
cure all of such Objections that meet the requirements set forth in items (i),
(ii) or (iii) above. Seller agrees, without the need for notice from Purchaser,
that the Seller Mortgages will be satisfied by Seller on or prior to the Closing
Date or, if not so satisfied, shall be satisfied at Closing out of the Balance
of the Purchase Price otherwise payable to Seller. As used herein, the "SELLER
MORTGAGES" shall mean the financing documents described in the Title Commitment
and any other liens voluntarily created by Seller. Except as otherwise set forth
in this Section 10.5, the parties acknowledge and agree that Seller shall have
no other obligation to cure any Objections. In the event that Seller does not
cure the Objections, Purchaser shall have the option, by written notice to
Seller, to either (a) terminate this Agreement and recover the Deposit or (b)
waive its disapproval of such Objections without any reduction to the Purchase
Price; provided, however, if such Objections meet the requirements set forth in
items (i), (ii) or (iii) above, then Purchaser shall be entitled to a reduction
in the Purchase Price equal to Fifty Thousand and No/100 Dollars ($50,000.00)
less any amounts actually expended by Seller in attempting to cure the
Objections. For the purposes of this Agreement, any Objection shall be deemed
cured if Lead Title Company and any co-insurer or another title company
reasonably acceptable to Purchaser and authorized to do business in the
jurisdiction where the Property is located will agree to issue an ALTA owner's
title insurance policy to Purchaser for the Purchase Price, which policy takes
no exception for such Objection and is issued for no additional premium or for
an additional premium if Seller agrees to pay such additional premium.
11. MISCELLANEOUS.
11.1. ENTIRE AGREEMENT. This Agreement, together with (i) the Exhibits
attached hereto, all of which are incorporated by reference and (ii) the
Confidentiality and Inspection Agreement are the entire agreement between the
parties with respect to the subject matter thereof, and no alteration,
modification or interpretation hereof shall be binding unless in writing and
signed by the parties thereto.
11.2. SEVERABILITY. If any provision of this Agreement or application
to any party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
11.3. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New Jersey.
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11.4. ASSIGNABILITY. Purchaser may not assign this Agreement without
first obtaining Seller's written consent, which Seller shall grant or withhold
in its sole discretion. Any assignment in contravention of this provision shall
be void. No assignment, whether or not permitted, shall release the Purchaser
herein named from any obligation or liability under this Agreement. The
Purchaser herein named and any permitted assignee shall be jointly and severally
liable for all such obligations and liabilities. Any permitted assignee shall be
deemed to have made any and all representations and warranties made by Purchaser
hereunder, as if the assignee were the original signatory hereto. If Purchaser
requests Seller's written consent to any assignment, Purchaser shall (i) notify
Seller in writing of the proposed assignment; (ii) provide Seller with the name
and address of the proposed assignee; (iii) provide Seller with financial
information including financial statements of the proposed assignee; and (iv)
provide Seller with a copy of the proposed assignment instrument.
Notwithstanding the foregoing, Purchaser may assign this Agreement without the
consent of Seller to a partnership of which Purchaser is the managing or sole
general partner, or to any entity directly or indirectly controlled by, under
common control with, or controlling Purchaser, provided (x) Purchaser gives
Seller written notice of such assignment, (y) such assignment does not delay the
Closing, and (z) such assignment shall not release the Purchaser named herein
from its liabilities and obligations hereunder. For the purposes of the
preceding sentence, the term "CONTROL" shall mean and refer to the power to
direct the management and policies of such entity, directly or indirectly,
whether through the ownership of voting securities or other beneficial interest,
by contract or otherwise, provided that the ownership of fifty percent (50%) or
more of the equity interest of such entity shall be deemed to constitute
"control" hereunder; and the terms "CONTROLLING" and "CONTROLLED" shall have the
meanings correlative to the foregoing.
11.5. SUCCESSORS BOUND. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective successors and (and,
in the case of Purchaser, permitted) assigns.
11.6. INTENTIONALLY DELETED.
11.7. WAIVER. The failure of either party to insist in any one or more
instance upon the strict performance of any one or more of the obligations under
this Agreement, or to exercise any election herein contained, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Agreement or of the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach or omission.
11.8. NO PUBLIC DISCLOSURE. Purchaser shall make no public disclosure
of the terms of this transaction without the prior written consent of Seller,
and shall remain bound by the terms of the Confidentiality and Inspection
Agreement. Notwithstanding anything else contained in this Agreement and/or the
Confidentiality and Inspection Agreement, Purchaser may issue a press release or
public disclosure; provided, however, the information contained in such press
release and/or public disclosure relating to this transaction shall be limited
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to the following: (a) an identification of Seller and Purchaser, (b) a
description of the identity, address, location and square footage contained
within the Buildings, (c) the Purchase Price, and (d) a description of
Purchaser's proposed acquisition financing, including, the right to file this
Agreement as a part of any such press release or public disclosure. This
provision shall not survive the Closing of the transaction contemplated
hereunder.
11.9. CAPTIONS. The captions in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the scope or content of any of its provisions.
11.10. ATTORNEYS' FEES. In the event of any litigation arising out of
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, disbursements and court costs from the other party.
11.11. NO PARTNERSHIP. Nothing contained in this Agreement shall be
construed to create a partnership or joint venture between the parties or their
successors in interest.
11.12. TIME OF ESSENCE. Time is of the essence for all purposes of this
Agreement.
11.13. COUNTERPARTS. This Agreement may be executed and delivered in
any number of counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which shall constitute one and the same
instrument.
11.14. RECORDATION. Except for any lis pendens filed by Purchaser in
order to enforce the specific performance of Seller's obligations under this
Contract, Purchaser and Seller agree not to record this Agreement or any
memorandum hereof. To the extent that such filing is made in violation of this
Agreement, Purchaser shall indemnify Seller against any damages incurred by
Seller in connection therewith. The provisions of this Section 11.14 shall
survive the termination of this Agreement.
11.15. PROPER EXECUTION. The submission by Seller to Purchaser of this
Agreement in unsigned form shall be deemed to be a submission solely for
Purchaser's consideration and not for acceptance and execution. Such submission
shall have no binding force and effect, shall not constitute an offer, and shall
not confer any rights upon Purchaser or impose any obligations upon Seller
irrespective of any reliance thereon, change of position or partial performance.
The submission by Purchaser to Seller of this Agreement in unsigned form shall
be deemed to be a submission solely for Seller's consideration and not for
acceptance and execution. Such submission shall have no binding force and
effect, shall not constitute an offer, and shall not confer any rights upon
Seller or impose any obligations upon Purchaser irrespective of any reliance
thereon, change of position or partial performance. The submission by Seller of
this Agreement for execution by Purchaser and the actual execution and delivery
thereof by Purchaser to Seller shall similarly have no binding force and effect
on Seller unless and until Seller shall have executed this Agreement and the
Deposit shall have been received by the Title Company and a counterpart thereof
shall have been delivered to Purchaser. The submission by Purchaser of this
Agreement for execution by Seller and the actual execution and delivery thereof
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by Seller to Purchaser shall similarly have no binding force and effect on
Purchaser unless and until Purchaser shall have executed this Agreement and the
Deposit shall have been received by the Title Company and a counterpart thereof
shall have been delivered to Seller. The use of telecopied signatures in place
of original signatures on this Agreement is expressly allowed. Seller and
Purchaser intend to be bound by the signatures on the telecopied document, are
aware that the other parties will rely on the telecopied signatures, and hereby
waive any defenses to the enforcement of the terms of this Agreement based on
the form of signature.
11.16. ACTUAL KNOWLEDGE; RECEIVED WRITTEN NOTICE. (a) Whenever a
representation, warranty or other statement is made in this Agreement or in any
document or instrument to be delivered at the Closing pursuant to this
Agreement, on the basis of the knowledge of Seller, or is qualified by Seller
having received written notice, such representation, warranty or other statement
is made with the exclusion of any facts disclosed in writing to or otherwise
actually known by Purchaser, and is made solely on the basis of the actual, as
distinguished from implied, imputed and constructive, knowledge on the date that
such representation or warranty is made, without inquiry or investigation or
duty thereof, of C. Xxxx Xxxxxxxxx, Xxxxxxx X. X'Xxxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx Xxxxxxxx, without attribution to such specific officers of facts and
matters otherwise within the personal knowledge of any other officers or
employees of Seller or third parties, including but not limited to tenants and
property managers of the Property, and excluding, whether or not actually known
by such specific officers, any matter actually known to Purchaser or its agents
at the time of the Closing.
(b) Whenever a representation, warranty or other statement is
made in this Agreement or in any document or instrument to be delivered at the
Closing pursuant to this Agreement, on the basis of the actual of knowledge of
Purchaser, or is qualified by Purchaser having received written notice, such
representation, warranty or other statement is made with the exclusion of any
facts disclosed in writing to or otherwise actually known by Seller, and is made
solely on the basis of the actual, as distinguished from implied, imputed and
constructive, knowledge on the date that such representation or warranty is
made, without inquiry or investigation or duty thereof, of Xxxxxxx X. Xxxxx,
without attribution to such specific officers of facts and matters otherwise
within the personal knowledge of any other officers or employees of Purchaser or
third parties, and excluding, whether or not actually known by such specific
officers, any matter actually known to Seller or its agents at the time of the
Closing.
11.17. INTENTIONALLY DELETED.
11.18. SURVIVAL AND LIMITATION. Except and to the extent specifically
set forth in this Agreement, no representation, warranty, covenant or other
obligation under this Agreement shall survive the Closing or sooner termination
of this Agreement. Notwithstanding the above, the representations and warranties
of Seller set forth in Sections 5.1 and 5.3 shall survive the Closing, but
written notification of any claim arising therefrom must be received by Seller
within six (6) months after the Closing Date and an action shall have been
commenced by Purchaser against Seller within one (1) year following Closing or
such claim shall be forever barred and Seller shall have no liability with
respect thereto. No claim for a breach of any representation or warranty of
Seller set forth in this Agreement shall be actionable or payable if the breach
in question results from or is based on a condition or state of facts actually
known to Purchaser prior to Closing. The aggregate liability of Seller with
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respect to all claims relating to Sections 5.1 and 5.3 hereof (other than
Seller's obligation to pay Crimson and C&W as required under Section 5.3) shall
not exceed Two Million Two Hundred Fifty Thousand and No/100 DOLLARS
($2,250,000.00).
11.19. LIMITED LIABILITY OF SELLER. The liability of Seller for damages
or otherwise shall be limited to Seller's equity interest in the Property and
the net proceeds from the sale thereof (net of all expenses of Seller in
connection with such sale). Seller shall have no personal liability beyond
Seller's equity interest in the Property and the net proceeds from the sale
thereof (net of all expenses of Seller in connection with such sale), and no
other property or assets of Seller shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Purchaser's claims or any
judgments or others against Seller. Notwithstanding anything to the contrary
contained in this Agreement, Seller's shareholders, partners, directors,
members, agents, attorneys and employees shall not have any liability whatsoever
under this Agreement.
11.20. INTENTIONALLY DELETED.
11.21. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.22. FURTHER ASSURANCES. Each party agrees that it will execute and
deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party or by
Purchaser's lender to consummate the transaction contemplated by this Agreement,
so long as the execution of such other documents or any such other action does
not increase or decrease the liability of either party under the terms of this
Agreement. The provisions of this Section 11.22 shall survive Closing.
11.23. CALCULATION OF TIME PERIODS. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday or legal holiday. The last day of
any period of time described herein and the time during any day by which an
event must occur shall be deemed to end at 5:00 p.m., according to the time at
the location of the Property.
11.24. INCONSISTENCIES WITH CONFIDENTIALITY AND INSPECTION AGREEMENT.
The terms of this Agreement shall control over any conflicts or inconsistencies
between the terms of this Agreement and the terms of the Confidentiality and
Inspection Agreement.
12. ESCROW PROVISIONS. The Deposit shall be held in escrow by Lead Title
Company upon the following terms:
(a) The Deposit shall be deposited in a special
interest-bearing commercial bank reasonably acceptable to both Purchaser and
Seller or, at the request of Purchaser, may be invested by Lead Title Company in
such interest-bearing notes, bonds, bills or other obligations as may from time
to time be requested in writing by Purchaser, provided only that such notes,
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bonds, bills or other obligations are regularly traded on a recognized public
securities market. All interest earned on the Deposit shall be the property of
the party ultimately receiving payment of the Deposit and shall be paid to such
party at the earlier to occur of (i) the Closing or (ii) the date upon which the
Deposit is paid to Seller or Purchaser, as the case may be, in accordance with
the terms of this Agreement.
(b) Lead Title Company shall deliver the Deposit (including
interest earned thereon) to Seller or Purchaser, as the case may be, on the
following conditions:
(i) to Seller, upon receipt of a notice signed by the
parties hereto stating that the Closing has been
consummated;
(ii) to Seller, upon receipt of demand therefor signed by
Seller stating that Purchaser has defaulted in the
performance of its obligations under this Agreement;
PROVIDED, however, that Lead Title Company shall not
honor such demand until at least fifteen (15) days
after the date on which Lead Title Company shall have
sent to Purchaser a copy of such demand, nor
thereafter following such 15-day period if Lead Title
Company shall have received a notice of objection,
within such 15-day period, from Purchaser given in
accordance with the provisions of Sections 12(c) and
(d) hereof;
(iii) to Purchaser, upon receipt of demand therefor signed
by Purchaser stating that either Seller has defaulted
in the performance of its obligations under this
Agreement or that Purchaser is otherwise entitled to
the refund of the Deposit pursuant to the terms of
this Agreement; PROVIDED, HOWEVER, that Lead Title
Company shall not honor such demand until at least
fifteen (15) days after the date on which Lead Title
Company shall have sent to Seller a copy of such
demand, nor thereafter following such 15-day period
if Lead Title Company shall have received a notice of
objection, within such 15-day period, from Seller
given in accordance with the provisions of Sections
12(c) and (d) hereof.
(c) Any notice to or demand upon Lead Title Company shall be
in writing and shall be sufficient only if received by Lead Title Company within
the applicable time periods set forth herein, if any. Notices to or demands upon
Lead Title Company shall be (1) sent by overnight courier (with receipt
requested), to Lead Title Company at the address set forth in Section 8 hereof
or at such other address as Lead Title Company shall have last designated by
notice to Seller and Purchaser, or (2) served personally upon Lead Title Company
with receipt acknowledged in writing by Lead Title Company. Notices from Lead
Title Company to Seller or Purchaser shall be (1) sent by overnight courier
(with receipt requested) to their respective addresses set forth in Section 8
hereof or at such other address as the party in question shall have last
designated by notice to Lead Title Company, or (2) served personally with
receipt acknowledged in writing by the addressee.
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(d) Upon receipt of a demand for the Deposit made by Seller or
Purchaser pursuant to Section 12(b)(ii) or (iii), Lead Title Company shall
promptly send a copy thereof to the other party hereto. Such other party shall
have the right to object to the delivery of the Deposit by sending to Lead Title
Company notice of objection within fifteen (15) days after the date on which
Lead Title Company shall have sent such copy to such party, but not thereafter.
Upon receipt of such notice of objection, Lead Title Company shall promptly send
a copy thereof to the party who made the written demand.
(e) If (i) Lead Title Company shall have received a notice of
objection as provided for in Section 12(d) hereof within the time therefor
prescribed or (ii) any other disagreement or dispute shall arise between the
parties hereto or any other persons resulting in adverse claims and demands
being made for the Deposit, whether or not litigation has been instituted, then
and in any such event Lead Title Company shall refuse to comply with any claims
or demands on it, and shall continue to hold the Deposit until Lead Title
Company receives either (x) a written notice signed by both parties hereto
directing the disbursement of the Deposit or (y) a final order of a court of
competent jurisdiction, entered in an action, suit or proceeding to which Seller
and Purchaser are parties, directing the disbursement of the Deposit, in either
of which events Lead Title Company shall then disburse the Deposit in accordance
with such direction. Lead Title Company shall not be or become liable in any way
or to any person for its refusal to comply with any such claims and demands
unless and until it has received such direction. Upon compliance with such
direction, Lead Title Company is hereby absolved of and released from any and
all liability hereunder.
(f) Notwithstanding the foregoing, Lead Title Company may at
any time, on notice to the parties, deposit the Deposit (together with any
interest earned or accrued thereon) with a court of competent jurisdiction and,
if desired by Lead Title Company, commence an impleader action against any party
hereto not theretofore before such court or an interpleader action against both
parties hereto. Upon the taking by Lead Title Company of any action described in
this Section 12(f), Lead Title Company is hereby absolved of and released from
any and all liability hereunder.
(g) Except as otherwise provided herein, the parties shall
reimburse Lead Title Company in equal shares for all reasonable costs and
expenses incurred in performing its duties as escrow holder including, but not
limited to, reasonable attorneys' fees, disbursements and court costs, either
paid to retained attorneys or in an amount representing the fair value of legal
services rendered to itself, disbursements and court costs. Lead Title Company
is acting hereunder as a depository only and is not responsible or liable in any
manner whatsoever for the sufficiency, correctness, genuineness or validity of
any instrument deposited with it or any notice or demand given to it or for the
form or execution of any such instrument, notice or demand, or for the
identification, authority or rights of any person executing, depositing or
giving the same or for the terms and conditions of any instrument pursuant to
which the parties may act.
(h) Lead Title Company is acting solely as a stakeholder with
respect to the Deposit. Lead Title Company shall not have any duties or
responsibilities, except those set forth in this Section 12, and shall not incur
any liability (i) in acting upon any signature, notice, demand, request, waiver,
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consent, receipt or other paper or document believed by Lead Title Company to be
genuine and Lead Title Company may assume that any person purporting to give it
any notice on behalf of any party in accordance with the provisions hereof has
been duly authorized to do so or (ii) in otherwise acting or failing to act
under this Section 12 except in the case of Lead Title Company's bad faith.
Seller and Purchaser each hereby release Lead Title Company from any act done or
omitted to be done by Lead Title Company in good faith in the performance of its
duties hereunder.
(i) Lead Title Company has executed this Agreement for the
sole purpose of confirming its agreements contained in this Section 12.
(j) Seller's Federal tax identification number is 00-0000000.
Purchaser's Federal tax identification number is 00-0000000.
(k) The provisions of this Section 12 shall survive the
Closing or the termination of this Agreement.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement
as of the date set forth above.
SELLER: 100 COLLEGE ROAD, LLC,
a Delaware limited liability company
By: /s/ C. XXXX XXXXXXXXX
--------------------------------------
C. Xxxx Xxxxxxxxx, President
PURCHASER: NEW VALLEY CORPORATION,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Xxxxxxx X. Xxxxx,
Assistant Secretary
An original, fully executed copy of this Agreement, together with the
Deposit, has been received by the Lead Title Company this 2nd day of December,
2002, and by execution hereof the Lead Title Company hereby covenants and agrees
to be bound by the terms of Section 12 of this Agreement and hereby covenants
and agrees to enter into a designation agreement in the form attached hereto as
EXHIBIT AA.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: /s/ XXXXXXXXXXX X. XXXXXXX
-------------------------------------
Name: XXXXXXXXXXX X. XXXXXXX
-------------------------------------
Its: ASSISTANT VICE PRESIDENT
--------------------------------------
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