AGREEMENT OF
SALE AND PURCHASE
BETWEEN
SI PRINCETON, INC.,
AS SELLER,
AND
XXXX-XXXX REALTY ACQUISITION CORPORATION,
AS PURCHASER,
DATED: APRIL 29, 1998
PROPERTY: 000 XXXXXXX XXXX XXXX
XXXXXXXXX, XXX XXXXXX
TABLE OF CONTENTS
-----------------
SECTION PAGE
1. Definitions.......................................................1
2. Sale of the Property..............................................6
3. Title and Survey..................................................7
4. Matters to Which the Sale is Subject..............................9
5. Purchase Price and Payment; the Deposit..........................10
6. Adjustments......................................................13
7. Closing; Closing Date; Conditions Precedent......................19
8. Documents at Closing.............................................22
9. Obligations Pending Closing......................................26
10. Inspection; Restoration; Indemnity...............................30
11. Risk of Fire and Condemnation Prior to Closing...................36
12. Notices and Other Communications.................................38
13. Default..........................................................39
14 Representations and Warranties of Seller.........................41
15. Representations, Warranties and Agreements of Purchaser..........49
16. Third Party Beneficiaries........................................49
17. Assignment.......................................................49
18. Time of the Essence..............................................50
19. AS IS............................................................50
20. Miscellaneous....................................................51
21. Broker...........................................................52
21. Township's Requirements..........................................53
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EXHIBITS
LETTER TITLE
------ -----
A Legal Description of the Property
B Permitted Exceptions
C Form of Deed
D Form of Title Affidavit
E Form of Xxxx of Sale
F Form of Assignment of Space Leases
G Form of Assignment & Assumption of Service
Contracts
H Form of Space Tenant Notice Letter
I Rent Roll
J Service Contracts
J-1 Elected Service Contracts
K Xxxxxxxxxx
X0, X0, X0, X0 Forms of Assignment of Ground Lease
M Tax Protests
N Financial Statements
O1, 02, 03 Forms of Land Lessor's Consent
P Form of Space Tenant Estoppel Certificates
Q Union and Collective Bargaining Agreements
SCHEDULES
---------
15.B Environmental Matters
15.4 Lease Issues
15.22 Requirements of Insurance Underwriters
15.23 Governmental Actions
15.24 Leasing Commissions
15.28 Audits and Proceedings
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AGREEMENT OF
SALE AND PURCHASE
THIS AGREEMENT is made and entered into as of the 29th day of April, 1998,
by and between SI PRINCETON, INC., a Delaware corporation (hereinafter referred
to as the "Seller"), and XXXX-XXXX REALTY ACQUISITION CORPORATION, a New Jersey
corporation, or its permitted assignee (hereinafter referred to as the
"Purchaser").
W I T N E S S E T H:
For and in consideration of the mutual covenants and agreements herein
contained, Seller agrees to sell and convey to Purchaser, and Purchaser agrees
to purchase from Seller, subject to the terms and conditions hereof, all of
Seller's right, title and interest in and to the Property (as hereinafter
defined).
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions.
The terms defined in this Section 1 shall have the respective
meanings stated in this Section 1 for all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
Additional Title Matters shall have the meaning set forth in Section
3.2.
Affiliate shall mean, with respect to either of the parties, an
entity or person directly or indirectly controlling, controlled by, or under
common control with such party.
Assignments of Ground Lease shall mean the instruments, in the form
of Exhibits L, 1, 2, 3 and 4 attached hereto and made a part hereof, whereby,
subject to the Permitted Exceptions, and with covenants against Seller's acts
only, at and as of the Closing, Seller shall assign and transfer to Purchaser
all of Seller's right, title and interest in, to and under (i) the First Ground
Lease, as amended by its First Amendment, Second Amendment and Third Amendment
and the Second Ground Lease, as amended by its First Amendment and the Sublease
and (ii) the rest of the Property, and Purchaser shall assume all of Seller's
obligations under the First Ground Lease, as amended, the Second Ground Lease,
as amended and the Sublease.
Assignment of Other Seller Interests shall have the meaning set
forth in Section 8.1(s).
Business Day shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday, except for such days on which commercial banks doing business in the
State of New Jersey are required to be closed for the transaction of business.
Closing shall mean the action whereby Seller conveys and assigns to
Purchaser legal title to Seller's right, title and interest in the Property, and
Purchaser purchases and accepts legal title to Seller's right, title and
interest in the Property, and Purchaser, assumes the obligations of the tenant
under the Ground Lease thereafter accruing.
Closing Date shall mean the date of Closing as defined in Section
7.2.
Deed shall mean the instrument, in the form of Exhibit C attached
hereto and made a part hereof, whereby, subject to the Permitted Exceptions, and
with quit claim covenants only, at and as of the Closing, Seller shall remise
and quit-claim to Purchaser all of Seller's right, title and interest in and to
the Improvements.
Deposit shall mean a deposit of $500,000.00 and all interest accrued
(if any) on the Deposit or the Letter of Credit.
Escrow Agent shall mean Commonwealth Land Title Insurance Company.
Ground Lease shall mean collectively (a) that certain Lease
Agreement, dated December 9, 1980, between the Trustees of Princeton University
("Land-Lessor"), as the Landlord, and Live Oak Associates-Princeton, a New
Jersey limited partnership ("Live-Oak"), as the Tenant (the"First Ground
Lease"), a memorandum of which was recorded in the records of the County Clerk
of Middlesex County in Mortgage Book 2151, Page 344, and re-recorded in Deed
Book 3175, Page 564, as amended by that certain First Amendment to Lease
Agreement, dated February 26, 1981, between Land-Lessor, as the Landlord and
Live-Oak, as the Tenant (the "First Amendment to First Ground Lease"), as
further amended by that certain Second Amendment to Lease Agreement, dated
August 26, 1983, between Land-Lessor, as the Landlord, and Live-Oak, as the
Tenant (the "Second Amendment to First Ground Lease"), a memorandum of which was
recorded in the records of the County Clerk of Middlesex County in Deed Book
3306, Page 462, as further amended by that certain Third Amendment to Lease
Agreement dated August 10, 1988, between Land-Lessor and Seller (the "Third
Amendment to First Ground Lease"), the First Ground Lease, its First Amendment,
Second Amendment and Third Amendment being assigned to Seller by Live Oak by an
Assignment and Assumption of Ground Lease dated as of August 10, 1988 and
recorded in the Middlesex County Clerk's Office on August 10, 1988 in Deed Book
3721, Page 707; (b) that certain Lease Agreement, dated June 17, 1981, between
Land-Lessor, as Landlord, and Live Oak Associates-West, a New Jersey limited
partnership ("Live-Oak West"), as Tenant (the "Second Ground Lease"), a
memorandum of which was recorded in the records of the County Clerk of Middlesex
County in Deed Book 3200, Page 840 on July 28, 1981, as amended by a First
Amendment to Lease Agreement between Land-Lessor, as Landlord, and Seller, as
Tenant, dated as of August 10, 1988 (the "First Amendment to Second Ground
Lease"), the Second Ground Lease and its First Amendment being assigned to
Seller by Live-Oak West by an Assignment and Assumption of Ground Lease dated as
of August 10, 1988 and recorded in the Middlesex County Clerk's Office on August
10, 1988 in Deed Book 3721, Page 718; and (c) that certain Sublease Agreement
dated August 9, 1983 ("Sublease") between Live Oak-West (formerly
2
called Viewpoint Ranches) and Live Oak pursuant to which Live Oak West, as
Sublandlord, subleased to Live-Oak certain premises which were leased to Live
Oak-West by Land-Lessor under the Second Ground Lease, as amended by the First
Amendment to Second Ground Lease, a memorandum of which Sublease was recorded in
the records of the County Clerk of Middlesex County in Deed Book 3303, Page 164
on August 10, 1983, and which Sublease was assigned to Seller by Live Oak-West
by Assignment and Assumption of Sublease Agreement dated as of August 10, 1988
and recorded in the County Clerk's Office of Middlesex County on August 10, 1988
in Deed Book 3721, Page 727 and which Sublease and the Improvements on the lease
premises were assigned to Seller by Live Oak by Assignment and Assumption of
Ground Lease Agreement dated as of August 10, 1988 and recorded in the records
of the County Clerk of Middlesex County in Deed Book 3721, Page 736 on August
10, 1988.
Ground Lease Estoppel Certificates shall have the meaning set forth
in Section 7.5(e).
Hazardous Materials shall mean petroleum products, petroleum based
derivatives, polychlorinated biphenyls, asbestos, and any other material,
substance or item that is radioactive or that is either regulated by, or
designated as a hazardous or toxic material, substance or waste or pollutant or
contaminant by, any Legal Requirement now or hereafter enacted, including
Section 101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601(14), as said section may be amended from
time to time, the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6921, et seq., as same may be amended from time to time, the Industrial
Site Recovery Act, NJSA 13:K-6 et seq., as same may be amended from time to
time, and all regulations promulgated in respect of any thereof and any other
similar or analogous federal, state, county or municipal statute, ordinance,
code, rule or regulation.
Improvements shall mean the four (4) story office building situated
on the Land containing approximately 157,135 net rentable square feet (including
certain retail space on the ground level), commonly known as 000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxx Xxxxxx, and all other buildings and structures now or at
the Closing Date (as hereinafter defined) situated upon the Land (as hereinafter
defined), including, without limitation, all improvements, fixtures, equipment,
machinery and personalty (other than Excluded Personal Property), appurtenant to
or used in connection therewith which are located thereat and owned by Seller on
the Closing Date.
Land shall mean those certain tracts or parcels of land lying and
being in Princeton New Jersey and more particularly described in Exhibit A
attached hereto and made a part hereof.
Land Lessor shall have the meaning above set forth.
Land Lessor's Consent shall have the meaning set forth in Section
7.5(f).
Land Lessor Outside Date shall mean March 21, 1998, which is the
date of
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expiration of the First Refusal Period, as defined in Section 18.01(b) of the
First Ground Lease and Section 18.01(b) of the Second Ground Lease.
Leasehold Estate shall mean the right, title and interest of the
tenant in and to the leasehold estate created by the Ground Lease.
Legal Requirements shall have the meaning set forth in Section 4.1.
Letter of Credit shall mean an irrevocable and unconditional,
domestic letter of credit issued by a financial institution reasonably
acceptable to Seller for the account of Purchaser and naming Escrow Agent as
beneficiary, in the sum of Five Hundred Thousand Dollars ($500,000), payable on
May 22, 1998, in form reasonably acceptable to Seller.
Notices shall have the meaning set forth in Section 13.
Other Seller Interests shall mean all of the right, title and
interest, if any, of Seller in and to the following (however any conveyance
thereof shall be made by Seller without representation or warranty by or
recourse to Seller):
(a) any easements, appurtenances, hereditaments, privileges,
licenses, grants of right or other agreements benefitting the Property;
(b) any land lying in the bed of any street, road, alley or
avenue, opened or proposed, abutting the Property, any award to be made in lieu
thereof, and any unpaid award for damages to said Property by reason of change
of grade of any street;
(c) freely transferable Permits, if any;
(d) freely transferable warranties or guaranties (other that
guaranties of obligations under Space Leases) respecting the Property, if any;
(e) all Tangible Personal Property;
(f) all trademarks and tradenames used in connection with the
Real Property, including without limitation, the name "College Centre" and any
other name by which the Real Property is commonly known, and all goodwill, if
any, related to said names, all for which Purchaser shall have the sole and
exclusive rights;
(g) all promotional material, marketing materials, brochures,
photographs, books, records, tenant data, leasing material and forms, past and
current rent rolls, files, statements, tax returns, market studies, keys, plans,
specifications, reports, tests and other materials of any kind owned by or in
the possession of Seller which are or may be used by Seller
4
in the use and operation of the Improvements or Tangible Personal Property; and
(h) all other rights, privileges and appurtenances owned by
Seller, if any, and in any way related to the rights and interests described
above in this definition.
Pass-Through Charges shall have the meaning set forth in Section
6.3.
Permits shall have the meaning set forth in Section 6.5.
Permitted Exceptions shall mean collectively those restrictions,
covenants, agreements, easements, matters and things of fact or of record
affecting title to the Property set forth on Schedule B annexed hereto and made
a part hereof, those matters set forth in Section 4, and the other matters
subject to which title to the Property is to be sold by Seller and purchased by
Purchaser pursuant to this Agreement.
Property shall mean Seller's right, title and interest in and to the
Ground Lease, the Leasehold Estate, the Improvements, the Space Leases, the
Elected Service Contracts, and the Other Seller Interests.
Purchaser's Casualty shall have the definition set forth in Section
12.1.
Purchase Price shall have the meaning set forth in Section 5.1.
Rent Roll shall have the meaning set forth in Section 15.3.
Repair shall have the meaning set forth in Section 9.19(b).
Service Contracts shall mean those contracts relating to or
affecting the use or operation of the Property, such as service, maintenance,
labor, parking operator and similar agreements, which are set forth in Exhibit J
annexed hereto and made a part hereof; and Elected Service Contracts shall mean
those Service Contracts which Purchaser elects to assume pursuant to Section
10.5 and which shall, subsequently, be set forth on Exhibit J-1 and attached
hereto.
Settlement Statement shall have the meaning set forth in Section
8.1(c).
Space Leases shall have the meaning set forth in Section 15.3.
Space Rent shall have the meaning set forth in Section 6.3.
Space Tenant Estoppel Certificates shall have the meaning set forth
in Section 7.5(h).
Survey shall mean the survey described in Section 3.3.
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Substantial shall have the meaning set forth in Section 12.2.
Tangible Personal Property shall mean all property, fixtures,
inventory and equipment owned by Seller and used exclusively in the operation
and maintenance of the Property.
Title Company shall mean Commonwealth Land Title Insurance Company.
Title and Survey Date shall have the meaning set forth in Section
3.1.
Title Policy shall mean an owner's polity of title insurance, issued
by the Title Company, in the amount of the Purchase Price.
Title Report shall have the meaning set forth in Section 3.1.
Title and Survey Objections shall have the meaning set forth in
Section 3.1.
2. Sale of the Property.
Upon and subject to the terms and conditions contained in this
Agreement, Seller agrees to sell, assign and convey to Purchaser, and Purchaser
agrees to purchase and accept from Seller, the Property, subject to the terms
and provisions of this Agreement.
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3. Title and Survey.
3.1 Simultaneously with or prior to the execution of this Agreement,
Seller has delivered to Purchaser a copy of a report of the title to the Land,
the Improvements and the Ground Lease, dated August 8, 1988, as confirmed by a
report dated March 2, 1998, prepared by Lawyers Title Insurance. Purchaser
agrees that such delivery by Seller is without representation or warranty by
Seller, and without recourse to Seller. Purchaser (at Purchaser's expense,
except as otherwise expressly provided herein) shall obtain from the Title
Company, an ALTA 1972 Form B with extended coverage title insurance commitment
issued by the Title Company reporting on the condition of title to the Land,
Improvements and Ground Lease, and committing to ensure Purchaser in the amount
of the Purchase Price, together with legible copies of all items shown as
exceptions to such title (the "Title Report"). Purchaser shall deliver to Seller
a copy of the Title Report, together with notice of all survey objections,
liens, encumbrances, title objections, financing statements, covenants or
easements to which Purchaser objects (the "Title and Survey Objections"), on or
before 5:00 p.m. (New York City time) on the date (the "Title and Survey Date")
which is the earliest to occur of (i) the date ten (10) days after Purchaser
receives both the Title Report and the Survey described in Section 3.3, and (ii)
the date fifteen (15) days after the date of this Agreement. If Purchaser fails
to give written notice of Title and Survey Objections on or before the Title and
Survey Date, such Title and Survey Objections shall be considered waived and
accepted by Purchaser and shall constitute Permitted Exceptions hereunder.
Except as set forth in the next sentence, Seller may, but shall not be required
to, cure all or any such Title and Survey Objections (which cure may, at the
option of Seller, be by means of affirmative insurance or endorsement from the
Title Company, in form and substance reasonably satisfactory to Purchaser,
insuring over and providing that any covenants, easements or other matters which
are not Permitted Exceptions shall not be collected out of, or enforced against,
Purchaser or the Property). In any event, Seller shall cure, at its expense, (i)
judgments against Seller, and (ii) mortgages or other liens which can be
satisfied by payment of a liquidated amount (collectively the "Monetary
Objections"). Notwithstanding any other provision of this Agreement to the
contrary (other than Section 3.2), in no event shall Seller be obligated to
incur any expense, liability or obligation, or to commence or continue any suit
or other action, to cure or remove any Title and Survey Objections, or any other
encumbrance upon or defect in title to the Property, except the Monetary
Objections and Section 9.2(i)(4) Title Objections, as hereinafter defined, and
failure or omission by Seller to cure any such Title and Survey Objections or
other encumbrance upon or defect in title to the Property other than a Monetary
Objection or a Section 9.2(i)(4) Title Objection, shall not be a default by
Seller hereunder, nor give rise to any rights or remedies on the part of
Purchaser, except that, upon notice by Seller to Purchaser that Seller has
failed to cure such Title and Survey Objections or other encumbrance upon or
defect in title to the Property Purchaser, as its sole remedies (to be exercised
by written notice to Seller within five (5) days after receipt by Purchaser of
Seller's notice), may either (a) terminate this Agreement, receive the return of
the Deposit and all accrued interest and this Agreement shall be null and void,
each party having no further obligation to the other except for Purchaser's
obligations which this Agreement expressly provides shall survive the
termination of this Agreement, or (b) purchase the Property subject to such
Title and Survey Objections or other encumbrance upon or defect in title to the
7
Property (which shall be deemed Permitted Exceptions), in which case this
Agreement shall remain in full force and effect, otherwise subject to
satisfaction of all of the other terms and conditions hereof, and the parties
shall proceed to Closing hereunder without reduction in the Purchase Price or
other obligation on the part of Seller by reason of such Title and Survey
Objections or other encumbrance upon or defect in title to the Property (and if
Purchaser fails to deliver the aforesaid notice within such five (5) day period
Purchaser shall be deemed to have elected the option set forth in clause (b)).
3.2 In the event that prior to the Closing Date Purchaser becomes
aware of and objects to additional title matters (other than the Permitted
Exceptions established pursuant to Section 3.1) not disclosed in the Title
Report (the "Additional Title Matters"), then Purchaser shall give written
notice thereof to Seller not later than five (5) days after becoming aware of
such Additional Title Matters (and in all events prior to the Closing). If
Purchaser fails to give written notice of Additional Title Matters as set forth
in the preceding sentence, such Additional Title Matters shall be considered
waived and accepted by Purchaser and shall constitute Permitted Exceptions
hereunder. Purchaser and Seller shall have the same duties and obligations and
rights with respect to Additional Title Matters that they respectively have with
respect to Title and Survey Objections and Monetary Objections, except that
Seller shall cause to be removed any Additional Title Objections placed of
record after the date hereof in violation of Section 9.2(i)(4) ("Section
9.2(i)(4) Title Objections").
3.3 Purchaser, upon the full execution of this Agreement, shall
order a survey of the Property (the "Survey") prepared in accordance with the
"Minimum Detail Requirements for ALTA/ACSM Land Title Surveys" including,
without limitation, plotting all easements and restrictions of record by book
and page, and shall cause an original of same to be delivered to Seller not
later than the date that is fifteen (15) days after the date of this Agreement.
The Survey shall be certified to Purchaser, its designee, Seller, and the Title
Company.
3.4 Anything in this Agreement to the contrary notwithstanding,
Purchaser shall not have a right to object to any of the matters set forth on
Exhibit B, or referred to in Sections 4.1, 4.2, 4.4, 4.5 and/or 4.6, and such
matters shall not constitute Survey or Title Objections, and Purchaser shall
accept title to the Property subject to all thereof.
3.5 If Seller, in its sole discretion, elects to cure any Title and
Survey Objection or Additional Title Matters shall have the right (but not the
obligation) to adjourn the Closing Date for period or periods not to exceed
ninety (90) days in the aggregate in order to make such attempt or attempts to
cure any Title and Survey Objections or Additional Title Matters other than
Monetary Objections which, if not cured prior to Closing, shall be cured at
Closing by application of the Closing proceeds.
3.6 It shall be a condition to Closing that Seller convey, and that
the Title Company insure, title to the Land, Improvements and Ground Lease in
the amount of the Purchase Price (at a standard rate for such insurance) in the
name of Purchaser or its designee, after delivery
8
of the Deed, by a standard 1992 ALTA Owners Policy, with ALTA endorsements Form
3.1, Form 8.1, Form 9 and any other endorsements as required by Purchaser
attached, free and clear of all liens, encumbrances and other matters, other
than the Permitted Exceptions. The Title Company shall provide affirmative
insurance that any (i) Permitted Encumbrances have not been violated, and that
any future violation thereof will not result in a forfeiture or reversion of
title; (ii) Purchaser's contemplated use of the Property will not violate the
Permitted Exceptions; (iii) the existing use of the Property complies with all
applicable zoning ordinances and regulations as may affect the Property; and
(iv) the exception for taxes shall apply only to the current taxes not yet due
and payable. The words "insurable title" and "insurable" as used in this
Agreement are hereby defined to mean title which is insurable at standard rates
(without special premium) by the Title Company without exception other than the
Permitted Exceptions.
4. Matters to Which the Sale is Subject.
The sale of the Property and any other items (if any) sold hereunder
shall be subject to each and all of the following, which shall constitute
Permitted Exceptions:
4.1 All Federal, State, County, Municipal and other laws,
ordinances, orders and governmental or quasi-governmental rules, requirements
and regulations (including but not limited to building and zoning laws,
ordinances, or regulations and Environmental Laws and regulations) affecting the
Property, its use, occupancy, development, construction or maintenance ("Legal
Requirements").
4.2 The Permitted Exceptions.
4.3 The Space Leases as to the rights of the Space Tenants, as
Tenants only, and Elected Service Contracts.
4.4 Terms, provisions and conditions of this Agreement.
4.5 Terms, provisions and conditions of the Ground Lease; and all
amounts due or payable to the Land Lessor under the Ground Lessor which are not
due as of the Closing, or which are apportioned under this Agreement.
4.6 Taxes, sewer and water charges and assessments (and installments
thereof), and the liens thereof, not due as of the date of Closing, but subject
to apportionment under this Agreement.
The provisions of this Section 4 shall survive Closing and the
Permitted Exceptions shall be set forth in the Assignment of Ground Lease and
Deed as exceptions to title; but whether or not recited as exceptions to or
encumbrances upon title in the Assignment of Ground Lease and/or the Deed, all
of the Permitted Exceptions shall survive the Closing.
9
5. Purchase Price and Payment; the Deposit.
5.1 The purchase price for the Property to be sold to Purchaser
pursuant to this Agreement (the "Purchase Price") shall be an amount equal to
TWENTY ONE MILLION ONE HUNDRED NINETY THOUSAND DOLLARS (United States Currency)
($21,190,000.00). The Purchase Price shall be payable by Purchaser to Seller at
Closing as follows:
(a) The principal amount of the Deposit, if in cash, shall be
released by Escrow Agent to Seller, and wired to and received by Seller on the
date of Closing by wire transfer of same day, federal funds (United States legal
tender), at such account as Seller shall designate in writing to Escrow Agent;
or, if by Letter of Credit, Purchaser shall pay or cause to be paid at Closing
in addition to amounts due under Paragraph 5.1(b) below, Five Hundred Thousand
Dollars ($500,000) in the same manner as provided therein.
(b) Purchaser shall pay or cause to be paid at Closing to
Seller by same day, federal funds (United States legal tender) wired to and
received by Seller, at such account as Seller shall designate in writing to
Purchaser, an additional amount equal to TWENTY MILLION SIX HUNDRED NINETY
THOUSAND DOLLARS ($20,690,000.00), plus or minus the net additions and
subtractions as shown on the Settlement Statement drawn by Seller in accordance
with the provisions of this Agreement and approved by Purchaser.
5.2 (a) The Deposit shall be deposited by Purchaser with Escrow
Agent (by wire transfer of same day, federal funds (United States legal tender)
wired to and received by Escrow Agent, at such account as Escrow Agent shall
designate in writing or by delivery of an executed Letter of Credit) not later
than three (3) days after the execution and delivery of this Agreement by all
parties (with TIME OF THE ESSENCE AS AGAINST PURCHASER IN RESPECT OF MAKING SUCH
DEPOSIT). In the event Purchaser does not make the Deposit as required
hereunder, the Agreement automatically (and without need of notice to Purchaser
or any other party) shall be deemed terminated, and neither party shall have any
further rights one against the other under this Agreement. Escrow Agent will
hold the Deposit in accordance with the provisions of Section 5.3 of this
Agreement. The parties agree to direct Escrow Agent to release the Deposit to
Seller or return the Deposit to Purchaser, as the case may be, as provided in
this Agreement. Escrow Agent at all times shall keep Seller and Purchaser
advised in writing of the bank or other institution (and the location thereof),
and the account name and number, in which Escrow Agent has deposited the Deposit
while holding same.
5.3 The parties agree that the Deposit, when and if delivered, shall
be held by the Escrow Agent in escrow and disposed of only in accordance with
the provisions of this Section 5.3. The parties agree that the Deposit, if in
cash, shall be invested in an assignable interest-bearing certificate of
deposit, money market fund, treasury xxxx or other similar security approved by
Seller and Purchaser, and all interest accruing thereon shall be paid to
Purchaser, except as otherwise provided herein. The party receiving the Deposit
shall be responsible for the payment of any taxes due on the interest earned, if
any, on the Deposit.
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(a) The Escrow Agent will deliver the Deposit to Seller or to
Purchaser, as the case may be, under the following conditions:
(1) If not in the form of the Letter of Credit, to
Seller on the Closing Date for the account of Purchaser provided Closing is
completed;
(2) If in the form of the Letter of Credit, to Purchaser
on the Closing Date provided Closing is completed;
(3) If Purchaser defaults hereunder, to Seller, upon
receipt of written demand therefor, such demand stating that Purchaser has
defaulted in the performance of this Agreement and specifically setting forth
the basis for such default. The Escrow Agent shall not honor such demand until
more than ten (10) days have elapsed after the Escrow Agent has mailed a copy of
such demand to Seller or Purchaser, as the case may be, nor thereafter if the
Escrow Agent shall have received written notice of objection from Purchaser in
accordance with the provisions of clause (b) of this Section 5.3; or
(4) To Purchaser upon receipt of written demand
therefor, such demand stating that this Agreement has been terminated in
accordance with the provisions hereof, or Seller has defaulted in the
performance of this Agreement, and specifically setting forth the basis for the
same. The Escrow Agent shall not honor such demand until more than ten (10) days
have elapsed after the Escrow Agent has mailed a copy of such demand to Seller
or Purchaser, as the case may be, nor thereafter, if the Escrow Agent shall have
received written notice of objection from the other party in accordance with the
provisions of clause (b) of this Section 5.3.
(b) Upon the filing of a written demand for the Deposit by
Purchaser or Seller, pursuant to subclause 3 or 4 of clause (a) of this Section
5.3, the Escrow Agent shall promptly mail a copy thereof to the other party. The
other party shall have the right to object to the delivery of the Deposit by
filing written notice of such objection with the Escrow Agent at any time within
ten (10) days after the mailing of such copy to it, but not thereafter. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of such notice, the Escrow Agent shall promptly mail a copy thereof
to the party who filed the written demand. In the event that Closing is not
completed by May 22, 1998, then Escrow Agent shall thereafter promptly make
demand upon the issuer of the Letter of Credit for payment thereof. Upon receipt
of the proceeds, Escrow Agent shall deposit the same in an account as specified
in the first paragraph of this Section 5.3 and shall hold such proceeds in
accordance with the provisions hereof. In the event that the issuer of the
Letter of Credit refuses to honor payment thereof, Escrow Agent shall promptly
notify Purchaser and Seller, who jointly shall enforce collection thereof.
(c) In the event the Escrow Agent shall have received the
notice of objection provided for in clause (b) above and within the time therein
prescribed, the Escrow Agent shall continue to hold the Deposit until (i) the
Escrow Agent receives written notice from
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Seller and Purchaser directing the disbursement of said Deposit, in which case,
the Escrow Agent shall then disburse said Deposit in accordance with said
direction, or (ii) in the event of litigation between Seller and Purchaser, the
Escrow Agent shall deliver the Deposit to the Clerk of the Court or the office
of Judicial Support, as the case may be, in which said litigation is pending, or
(iii) the Escrow Agent takes such affirmative steps as the Escrow Agent may, in
the Escrow Agent's reasonable opinion, elect in order to terminate the Escrow
Agent's duties including, but not limited to, depositing the Deposit with the
Court and bringing an action for interpleader, the costs thereof to be borne by
whichever of Seller or Purchaser is the losing party.
(d) The Escrow Agent may act upon any instrument or other
writing believed by it in good faith to be genuine and to be signed and
presented by the proper person and it shall not be liable in connection with the
performance of any duties imposed upon the Escrow Agent by the provisions of
this Agreement, except for damage caused by the Escrow Agent's own negligence or
willful default. The Escrow Agent shall have no duties or responsibilities
except those set forth herein. The Escrow Agent shall not be bound by any
modification of this Agreement, unless the same is in writing and signed by
Purchaser and Seller, and, if the Escrow Agent's duties hereunder are affected,
unless the Escrow Agent shall have given prior written consent thereto. In the
event that the Escrow Agent shall be uncertain as to the Escrow Agent's duties
or rights hereunder, or shall receive instructions from Purchaser or Seller
which, in the Escrow Agent's opinion, are in conflict with any of the provisions
hereof, the Escrow Agent shall be entitled to hold and apply the Deposit
pursuant to clause (c) above and may decline to take any other action. The
Escrow Agent shall not charge a fee for its services as escrow agent.
(e) The Escrow Agent shall not be:
(1) Responsible for any loss or delay occasioned by the
closure or insolvency or the financial institution into which it deposited the
Deposit;
(2) Responsible for the dishonor of any check, money
order, draft, negotiable instrument, or other financial document, received as
the Deposit; and
(3) Liable for any error of judgement or for any act
done or omitted in good faith, or for anything which it may in good faith do or
refrain from doing in connection herewith.
(f) Purchaser and Seller hereby indemnify and agree to save
the Escrow Agent harmless from all liability, loss, damage, reasonable
attorney's fees and expenses, arising out of this Paragraph and its duties
hereunder; save and except however any liability, loss, damage, attorney's fees
and/or expenses caused by Escrow Agent's fraud, negligence or willful default.
6. Adjustments.
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The items of income and expense arising from the ownership or operation of
the Property set forth hereinafter shall be prorated and adjusted as of 11:59
p.m. Eastern time on the date preceding the Closing Date, as follows:
6.1 (a) Additional Rent for the current calendar year or fiscal year
as may be applicable with respect to such item, under the Ground Lease (as
defined in the Ground Lease);
(b) all other additional rent, sums and credits, if any, due
under the Ground Lease; provided, in no event shall Purchaser be responsible for
all or any part of, and no adjustment shall be made as to the Single Rent
Payments (as defined in the Ground Lease) or the Annual Rent (as defined in the
Sublease).
6.2 (a) General real estate taxes, assessments and public
improvement liens (if any) upon the Property for the year of Closing. If the
amount of such taxes and/or assessments and/or liens is not known at the time of
Closing, then to the extent not known the proration shall be based upon the
final xxxx for the immediately preceding fiscal year for such charge, provided
that, if the actual charges for such items for the current year are more or less
than the charges for the preceding year, Seller and Purchaser shall adjust the
proration of such items and Seller or Purchaser, as the case may be, shall pay
to the other any amount required as a result of such adjustment and this
covenant shall not merge with the Assignment of Ground Lease and/or Deed but
shall survive the Closing. Taxes, assessments, and liens for public improvements
for prior years due to change in land usage or ownership, which are due or
payable in any tax year after the year in which the Closing occurs even if
assessed prior to the Closing Date, shall be assumed by Purchaser and the
Property shall be sold subject thereto. Anything herein to the contrary
notwithstanding, if on the Closing Date any assessment is a lien on all or part
of the Property, and such assessment is or may be payable in installments, of
which the first installment is then a charge or lien, or has been paid, then for
purposes of this Agreement, Seller shall pay all the unpaid installments of any
such assessment due and payable prior to Closing and Purchaser shall accept the
Property subject to all installments of any such assessment that are to become
due and payable after the Closing Date.
(b) If, subsequent to the Closing Date, any proceeding shall
result in a reduction of any assessment, tax or other charge for the applicable
fiscal year in which the Closing occurs, the amount of the savings or refund for
such fiscal year, less the reasonable expenses (including reasonable fees and
disbursements payable to attorneys or consultants) incurred in connection with
such proceedings (but less any refunds or other amounts which are due to Space
Tenants as a result of such reduction, which amounts shall be paid to such Space
Tenants) shall be apportioned between Seller and Purchaser as of the Closing
Date as if the reduction had been known as of that date. Neither Seller nor
Purchaser will withdraw, settle or compromise any reduction proceeding affecting
the Property without the prior written consent of the other, which consent shall
not be unreasonably withheld or delayed, except that the consent of Seller shall
not be required for the fiscal years after that in which the Closing Date
occurs, and the consent of Purchaser shall not be required for fiscal years in
which the Closing Date occurs and prior thereto.
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The party benefited by the reduction shall promptly pay the other party said
party's share of such reduction. Purchaser is hereby authorized by Seller, in
Purchaser's sole discretion, following Closing, to file any applicable
proceeding for any tax years following the last tax year 1997. The net refund of
taxes, if any, for any tax year for which Seller or Purchaser shall be entitled
to share in the refund shall be divided between Seller and Purchaser in
accordance with the apportionment of taxes pursuant to the provisions hereof.
All expenses in connection therewith, including counsel fees, shall be paid for
by the party entitled to the benefits thereof, with a pro-rata sharing between
Seller and Purchaser for any tax year in which both parties are entitled to a
portion of the refund. This provision shall survive the Closing.
6.3 All fixed rents, additional rent, operating escalations, tax
escalations, CPI and other Pass-Through Charges (hereinafter defined), and
escalations, if any (collectively, "Space Rent"), on the Space Leases. To the
extent that Seller receives, after the Closing Date, Space Rent payments
attributable to any period from or after the Closing, the same shall be held in
trust and immediately paid to Purchaser. Promptly on receiving any Space Rent
after the Closing Date attributable to the period after the Closing, Seller
shall provide to Purchaser notice thereof. The foregoing notwithstanding, in the
event that any tenant under a Space Lease (a "Space Tenant") prior to the
Closing has failed to pay Space Rent as and when due under its Space Lease, then
payments on account of Space Rent received from such Space Tenant after the
Closing shall be applied in the following order of priority: (i) first, to the
then current installment of Space Rent of such Space Tenant and to other
installments of Space Rent due from such Space Tenant for months subsequent to
the month in which Closing occurs; (ii) second, to the month in which the
Closing occurred; and (iii) third (to the extent of available funds), to the
period prior to the month in which the Closing occurred, if Space Rent from such
Space Tenant was not paid for any of such months provided; however, that to the
extent PassThrough Charges are collected in arrears, then notwithstanding the
provisions of the first clause of this sentence Pass-Through Charges shall be
adjusted and apportioned as hereinafter provided in this paragraph. To the
extent that Space Rent payments on account of Pass-Through Charges are received
by Purchaser after the Closing Date which are attributable to a period prior to
the Closing Date, or cannot be determined on the Closing Date, then, provided
Space Tenant is current with respect to Pass-Through Charges owed to Purchaser,
the amount of such Space Rents for the period ending on the date preceding the
Closing Date, and a calculation showing the determination thereof, shall be paid
(and furnished) to Seller by Purchaser as, if and when received after the
Closing Date within fifteen (15) days after receipt by Purchaser; and provided,
however, that if it shall subsequently be determined that any refund on account
of such amount shall be due any Space Tenants, or that a Space Tenant is
entitled to a refund of a portion of the Pass-Through Charges previously paid by
Space Tenant to Seller, then Seller, immediately upon demand of Purchaser, shall
pay its allocable share of such refund to Purchaser. At Closing, Seller shall
furnish to Purchaser a statement certified by an officer of Seller, with a cost
category breakdown (and which shall be subject to amendment to correct errors or
omissions), of all expenses commonly referred to as pass-through expenses or
charges, operating expenses or charges, operating escalations, tax expenses or
charges or tax escalations, which are the obligation of Space Tenants under the
Space Leases ("Pass-Through Charges"), owed and unpaid by Space Tenants up to
the Closing Date as reasonably estimated by
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Seller, together with supporting evidence of same reasonably acceptable to
Purchaser. If Purchaser receives after the Closing any Space Rents in payment or
reimbursement of any Pass-Through Charges attributable to any period prior to
the Closing, Purchaser shall upon receipt of such Space Rents immediately pay to
Seller the amount of the Pass-Through Charges attributable to the period prior
to the Closing subject to refund as provided above. The portion of Space Rents
consisting of Pass-Through Charges for the fiscal year of the Property in which
the Closing occurs shall be apportioned on a calendar basis so that the amount
thereof under any Space Lease to which Seller shall be entitled shall be an
amount which bears the same ratio to the total Pass-Through Charges due under
that Space Lease for the fiscal year in which the Closing occurs, as the number
of days in said year which have elapsed prior to the Closing Date bears to the
total numbers of days in said year. For example, if the fiscal year in which the
Closing occurs and for which such Pass-Through Charges are to be paid runs from
January 1, 1998 through December 31, 1998, Seller shall be entitled to the
number of days from and including January 1, 1998 to the date preceding the
Closing Date divided by 365 and multiplied by the total Pass-Through Charges for
such year. Seller shall have the right to commence litigation against any Space
Tenants or their successors under any Space Lease as to which any Space Rent
payments were in arrears on the Closing Date. Seller shall not be obligated to
Purchaser for any Space Rent which is in default, unpaid or otherwise has not
been actually collected by Seller. Seller acknowledges its obligation to each
Space Tenant with respect to any claims of overpayment of Pass-Through Charges
for any period up to the date of Closing, and that such obligation shall survive
Closing. In the event that a Space Tenant subsequently disputes the amount of
such expenditures by Seller, Seller shall provide Purchaser with copies of the
invoices and evidence of payment of the invoices for the purposes of resolving
such dispute. In the event Purchaser is unable to resolve such dispute amicably,
Purchaser may request Seller to provide counsel for any litigation which may
ensue. This provision shall survive the Closing.
6.4 At the Closing Seller shall transfer to Purchaser, by bank,
cashier's or certified check, an amount equal to, or allow a credit to Purchaser
against the Purchase Price of an amount equal to, the sum of all security and
other deposits and any prepaid rents from Space Tenants under the Space Leases,
other than those Seller has applied prior to the Closing against defaulted
obligations of Space Tenants under the Space Leases together with accrued
interest, if any, due Space Tenants on the security deposits, and Purchaser
shall assume all obligations and responsibilities concerning such security
deposits and indemnify Seller from and against all claims and liabilities
arising in connection with such security deposits and interest actually received
by Purchaser.
6.5 Current payments (that is, attributable to the year or other
applicable period in which the Closing occurs) of fees and charges (other than
those directly payable by Space Tenants) under any licenses, permits,
certificates, warranties and guarantees, or approvals relating to the Property,
or the use or occupancy thereof (the "Permits"), if any, which are assigned to
Purchaser at the Closing.
6.6 Fees and charges under Elected Service Contracts assigned to
Purchaser.
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6.7 Except as otherwise provided in this Agreement, the adjustments
shall be made in accordance with the customs in respect to closings in the State
of New Jersey. Any errors in calculations or adjustments shall be corrected or
adjusted as soon as practicable after the Closing.
6.8 Water, sewer, electric and other utility charges for the
Property (other than such charges as are the obligation of Space Tenants to
pay). If consumption of any of the foregoing is measured by meters, no more than
five (5) days prior to the Closing Date Seller shall obtain a reading of each
such meter and a final xxxx as of the Closing Date. If there is no such meter or
if the xxxx for any of the foregoing will not have been issued as of the Closing
Date, the charges therefor shall be adjusted as of Closing Date on the basis of
the charges of the prior period for which such bills were issued and shall be
further adjusted between the parties when the bills for the correct period are
issued (and this obligation shall survive the Closing). Any utility security
deposits or bonds to be refunded or returned to Seller shall be obtained by
Seller from the utility company and Purchaser shall make its own deposit with
such companies. All water, sewer, electric and other utility charges for the
Property, if any, which are the obligation of Space Tenants to pay shall not be
apportioned, but Purchaser shall accept the Property subject to such charges,
and shall look solely to the respective Space Tenants for payment thereof.
6.9 All Leasing commissions and Space Tenant Inducements other than
the Xxxxxxx Xxxxx Allowance, as hereinafter defined, due on account of the
original term or any extension of such term currently effective shall be paid
and satisfied in full by Seller on or before the Closing Date and Seller shall
indemnify, defend and hold Purchaser harmless in respect thereof, including
without limitation, the Xxxxxxx Xxxxx Allowance, and the provisions hereof shall
survive the Closing. Brokerage commissions under the Space Leases shall be paid
by Seller (not including commissions due in connection with any renewal,
extension or expansion of any such Space Lease which has not been exercised on
the date hereof, whether or not such renewal, extension or expansion is pursuant
to a right or option set forth in the Space Lease, and not including brokerage
commissions with respect to new Space Leases entered into after the date of this
Agreement). Seller acknowledges that under the terms of the Xxxxxxx Xxxxx Space
Lease, upon submission to Seller by Xxxxxxx Xxxxx of documentation supporting
certain tenant improvements made by Xxxxxxx Xxxxx prior to the date hereof, and
other costs incurred by Xxxxxxx Xxxxx in connection therewith, Seller is
obligated to pay to Xxxxxxx Xxxxx approximately One Hundred Twenty-Five Thousand
Fifty-Eight Dollars ($125,058) (the "Xxxxxxx Xxxxx Allowance"). Seller agrees
that upon submission by Xxxxxxx Xxxxx of the documentation required under the
Xxxxxxx Xxxxx Space Lease by Xxxxxxx Xxxxx to either Seller or Purchaser for
payment of the (the "Xxxxxxx Xxxxx Allowance"), Seller shall promptly, but in
any event within twenty-five (25) days after receipt of such request, pay the
amount of the Xxxxxxx Xxxxx Allowance due to Xxxxxxx Xxxxx under the Xxxxxxx
Xxxxx Space Lease. Notwithstanding the foregoing, in the event any request for
payment of the Xxxxxxx Xxxxx Allowance is made by Xxxxxxx Xxxxx prior to
Closing, Seller shall make the payment due prior to Closing. Any amount of
Xxxxxxx Xxxxx Allowance due which is not paid within such twenty-five (25) day
period shall incur interest at the rate of twelve percent (12%) per annum until
paid. In the event Seller fails to timely make any such payment due,
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Purchaser may, but shall not be obligated to, make such payment to Xxxxxxx
Xxxxx. In the event Purchaser pays any part of the Xxxxxxx Xxxxx Allowance due
to Xxxxxxx Xxxxx, Seller shall pay such amount to Purchaser, within ten (10)
days after written demand therefor, together with interest thereon at an annual
rate of twelve percent (12%). In the event Purchaser incurs any cost or expense
in enforcing the obligations of Seller under this Section 6.09, in addition to
the foregoing, Seller agrees to reimburse to Purchaser all such costs and
expenses, including without limitation, the cost of suit and reasonable
attorneys fees. If the Closing shall occur, brokerage commissions due in
connection with any renewal, expansion or extension of any Space Lease exercised
after the date hereof, and/or with respect to new Space Leases entered into
after the date of this Agreement in accordance with Section 9.2(b), shall be
paid by Purchaser (and if, at the option of Seller, any of same are paid by
Seller prior to the Closing, then at the Closing Purchaser shall reimburse such
amounts to Seller upon delivery by Seller to Purchaser of reasonable
substantiation of the amounts thereof) and Purchaser shall indemnify, defend and
hold harmless Seller in respect thereof, and the provisions hereof shall survive
the Closing. If the Closing shall occur, costs of Space Tenant improvements,
Space Tenant finishing, Space Tenant fit-up and/or Space Tenant fixturing, and
other "Space Tenant Inducements" in connection with any renewal, expansion or
extension of any Space Lease exercised after the date hereof, and/or with
respect to new Space Leases entered into after the date of this Agreement, shall
be paid by Purchaser (and if, at the option of Seller, any of same are paid by
Seller prior to the Closing, then at the Closing Purchaser shall reimburse such
amounts to Seller upon delivery by Seller to Purchaser of reasonable
substantiation of the amounts thereof), and Purchaser shall indemnify, defend
and hold harmless Seller in respect thereof. The provisions of this Section 6.09
shall survive the Closing.
6.10 Revenues, deposits and expenses generated from any parking at
the Property.
6.11 Purchaser shall pay all costs of recording the Assignment of
Ground Lease and Deed.
6.12 At Closing Seller shall pay the State of New Jersey and/or
other real estate transfer taxes, if any, which are required in connection with
the Assignment of Ground Lease and/or Deed.
6.13 Seller and Purchaser at the Closing each shall pay one-half
(1/2) the costs of Escrow Agent, if any, for providing services as escrow agent.
6.14 Purchaser and Seller shall each pay their respective attorney's
fees.
6.15 Except as otherwise herein provided, any fee, cost, charge or
expense incurred by either party hereto or for which either party hereto may be
liable in connection with the negotiation, examination and consummation of this
Agreement, shall be paid by the party hereto incurring, or liable for, such fee,
cost, charge or expense.
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6.16 The cost of preparation of the Title Report, the Survey and the
premiums and charges for the Title Policy (other than the premium for
affirmative insurance or endorsements insuring against a Title and Survey
Objection or Additional Title Matter which Seller, in its sole discretion,
elects to obtain) shall be borne by Purchaser. Purchaser shall also bear all
other costs and expenses relating to any and all searches, investigations and/or
inspections by or for Purchaser.
6.17 Premiums on insurance policies will not be adjusted. Seller
shall terminate its insurance coverage as of Closing and Purchaser will effect
its own insurance coverage.
The provisions of this Section 6 shall survive the Closing Date.
7. Closing; Closing Date; Conditions Precedent/Other Matters.
7.1 The Closing shall take place at the offices of Seller's counsel,
St. Xxxx & Xxxxx, LLC, Two Penn Plaza, Newark, New Jersey, or at such other
place as the parties shall agree in writing, at 10:00 a.m. (New York City time)
on the Closing Date.
7.2 The "Closing Date" shall be May 22, 1998, or (b) such earlier
date to which the parties may agree in writing. TIME SHALL BE OF THE ESSENCE AS
AGAINST THE PARTIES AS TO THE CLOSING DATE, SUBJECT TO SELLER'S RIGHT TO ADJOURN
CLOSING AS PROVIDED HEREIN.
7.3 It is a condition of Closing that Seller and Purchaser shall
have each complied in all material respects with each of their respective
obligations specified in this Agreement to be complied with as of the Closing
Date, except as those obligations may have been waived in writing by the party
for whose benefit such obligations are undertaken.
7.4 It is agreed by Purchaser and Seller that the day of Closing
shall be a day of income and expense to Purchaser.
7.5 Purchaser's obligations to close hereunder shall be conditioned
upon the occurrence of each of the following conditions. If any of the following
conditions are not satisfied, then Purchaser, as its sole remedies, may elect to
(1) terminate this Agreement and receive a refund of the Deposit and accrued
interest, (2) waive noncompliance with any such condition, or (3) with respect
to a default by Seller under the terms of Sections 7.5(a), (b), and (c) only
(but not Sections 7.5 (d), (e), (f), (g) or (h)) , exercise the remedies
available to Purchaser for a breach by Seller as set forth in Section 14.1
hereof:
(a) The representations and warranties of Seller as set forth
herein shall be true in all material respects on and as of the Closing Date with
the same force and effect as if such representations and warranties had been
made on and as of the Closing Date; provided, however, that if the
representation and warranties of Seller as set forth herein are not true in all
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material respects on and as of the Closing Date due to acts of third parties
beyond Seller's reasonable control, then Purchaser shall only be entitled to (i)
terminate this Agreement and receive back the Deposit and accrued interest; or
(ii) close hereunder without an abatement of the Purchase Price.
(b) Seller shall have performed, observed and complied in all
material respects with all the covenants, agreements and conditions required by
this Agreement to be performed, observed and complied with, prior to or as of
the Closing Date.
(c) Seller shall not have made a general assignment for the
benefit of creditors, nor have admitted in writing its inability to pay its
debts as they become due, nor have filed, or have had filed against it, a
petition in bankruptcy or been adjudicated a bankrupt or insolvent or have filed
a petition seeking any reorganization, arrangement, composition, readjustment
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, nor have filed any answer admitting or failing to reasonably
contest the material allegations of a petition filed against it in any such
proceeding or seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Seller for any material part of Seller's property.
(d) Title Company unconditionally shall be prepared to issue
to Purchaser a Title Policy meeting the requirements set forth in Section 3(6).
(e) Seller shall have delivered to Purchaser all of the
documents provided herein for said delivery.
(f) Land Lessor shall not have exercised its right of first
refusal under Section 18.01 (b) of the First Ground Lease, as amended or Section
18.01 (b) of the Second Ground Lease, as amended, within the time periods
provided therefore, and Seller shall have obtained and delivered to Purchaser,
not later than the Closing Date, agreements in substantially the form attached
hereto as Exhibits "01, "02", and "03", between Land Lessor and Purchaser
evidencing the consent of Land Lessor to the assignment of the Ground Lease
(including the First Ground Lease, as amended, Second Ground Lease, as amended,
and the Sublease) to Purchaser or its Permitted Assignee, as hereinafter
defined, as contemplated in this Agreement and providing estoppels dated as of
the Closing Date, in favor of Purchaser, and its Permitted Assignee, in
accordance with the provisions of Section 24.02 of the First Ground Lease and
Section 24.02 of the Second Ground Lease (collectively the "Land Lessor's
Consent").
(g) Seller shall have obtained and delivered to Purchaser on
or before the Closing Date estoppel certificates addressed to Purchaser (herein
called "Space Tenant Estoppel Certificates") dated not more than thirty (30)
days prior to the Closing Date from all Space Tenants in substantially the form
attached hereto as Exhibit "P", completed to reflect each Space Tenant's
particular Space Lease status, and not materially inconsistent with Space
Tenant's Space Lease, except in the case of Xxxxxxxx Ingersoll with respect to a
claim with respect to
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electricity charges as noted on Schedule 15.4. Seller agrees to use its best
efforts to obtain from all Space Tenants a Space Tenant Estoppel Certificate in
such form; provided, however, that if any Space Tenant shall refuse to execute
an estoppel certificate in such form, Seller shall nevertheless be obligated to
obtain a Space Tenant Estoppel Certificate in the form in which such Space
Tenant is obligated to deliver same as provided in its Space Lease. Seller shall
have the right to adjourn Closing for up to fifteen (15) days in the event
Seller cannot deliver any Space Tenant Estoppel Certificates by the Closing Date
so that Seller may continue its efforts to obtain such items.
7.6 Seller's obligations to close hereunder shall be conditioned
upon the occurrence of each of the following conditions. If any of the following
conditions are not satisfied, then Seller may elect to (1) terminate this
Agreement, (2) waive noncompliance with any such condition, or (3) with respect
to a default by Purchaser under the terms of Sections 7.6(a), (b) or (c),
exercise the remedies available to Seller for a breach by Purchaser as set forth
in Section 14.2 hereof:
(a) The representations and warranties of Purchaser as set
forth herein shall be true in all material respects on and as of the Closing
Date with the same force and effect as if such representations and warranties
had been made on and as of the Closing Date; provided, however, that if the
representation and warranties of Purchaser as set forth herein are not true in
all material respects on and as of the Closing Date due to acts of third parties
beyond Purchaser's reasonable control, then Seller shall only be entitled to (i)
terminate this Agreement (ii) close hereunder without an adjustment to the
Purchase Price.
(b) Purchaser shall have performed, observed and complied in
all material respects with all the covenants, agreements and conditions required
by this Agreement to be performed, observed and complied with, prior to or as of
the Closing Date.
(c) Purchaser shall not have made a general assignment for the
benefit of creditors, nor have admitted in writing its inability to pay its
debts as they become due, nor have filed, or have had filed against it, a
petition in bankruptcy or been adjudicated a bankrupt or insolvent or have filed
a petition seeking any reorganization, arrangement, composition, readjustment
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, nor have filed any answer admitting or failing to reasonably
contest the material allegations of a petition filed against it in any such
proceeding or seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator for any material part of Purchaser's property.
(d) Seller shall have obtained the Land Lessor's Consent.
(e) Seller shall have obtained the Ground Lease Estoppel
Certificate.
7.7 At Closing, Seller shall deliver to Purchaser possession of the
Property, subject to the Permitted Exceptions.
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7.8 Promptly after the full execution of this Agreement, Seller
shall request from Land Lessor the Land Lessor's Consent. Seller shall use its
best efforts in attempting to obtain same from Land Lessor, but in no event
shall Seller be obligated to incur any expense, liability or obligation, or to
commence or continue any suit or other action, in order to obtain issuance by
Land Lessor of the Land Lessor's Consent, nor shall Seller be required to accept
any Land Lessor's Consent which shall be conditioned on the payment by Seller of
any consideration therefor. The failure, omission or inability of Seller,
despite its best efforts, to obtain issuance by Land Lessor of the Land Lessor's
Consent and deliver same to Purchaser shall not be a default by Seller under
this Agreement, nor shall same give rise to any rights or remedies on the part
of Purchaser (except that Purchaser shall have the right to terminate this
Agreement in accordance with the provisions of Section 7.5). Notwithstanding
anything to the contrary set forth above, in the event Seller delivers an
executed Land Lessor's Consent that is in substantially the form of Exhibits 01,
02 and 03, but does not include any provision with respect to the purported
encroachment of the Improvements into a certain twenty foot wide drainage
easement or any other provision not required to be given by Land Lessor under
the Ground Lease, then for purposes of this Agreement the Land Lessor's Consent
shall be deemed delivered.
7.9 Promptly after the full execution of this Agreement, Seller
shall request from Space Tenants the Space Tenant Estoppel Certificates. Seller
shall use good faith in attempting to obtain same from the required Space
Tenants under this Agreement, but in no event shall Seller be obligated to incur
any expense, liability or obligation, or to commence or continue any suit or
other action, in order to obtain same, nor shall Seller be required to accept
any Space Tenant Estoppel Certificates which shall be conditioned on the payment
by Seller of any consideration therefor. The failure, omission or inability of
Seller, despite Seller's best efforts, to obtain issuance of the Space Tenant
Estoppel Certificates and to deliver same to Purchaser shall not be a default by
Seller under this Agreement, nor shall same give rise to any rights or remedies
on the part of Purchaser (except that Purchaser shall have the right to
terminate this Agreement in accordance with the provisions of Section 7.5).
8. Documents at Closing/Merger.
8.1 Subject to compliance by Purchaser with all Purchaser's
obligations to be kept, observed or performed by Purchaser under this Agreement,
Seller shall execute and/or deliver to Purchaser at Closing, the following
instruments (and other items), all of which, unless the form thereof shall be
attached as an Exhibit or Schedule to this Agreement, shall be in form and
substance as may be reasonably acceptable to the parties:
(a) The Assignment of Ground Lease (including assignment and
assumption of the First Ground Lease, the Second Ground Lease and the Sublease).
(b) An affidavit of Seller setting forth the tax
identification number of Seller and certifying that, (i) it is not a foreign
person as that term is used and defined in Section
21
1455 and 7701 of the U.S. Internal Revenue Code of 1986, as amended; (ii) it is
a United States tax resident; (iii) it intends to file a United States Tax
return with respect to the transactions contemplated by this Agreement, and (iv)
it understands that such certification is being made under penalty of perjury.
(c) A settlement statement (the "Settlement Statement")
documenting the Closing and reflecting the Purchase Price, charges, credits,
adjustments and prorations.
(d) Certified copies or originals of certificates of good
standing, incumbency certificates, and corporate or partnership consents and
resolutions and other required or appropriate organic documents and consents and
approvals to the within transaction and articles of incorporation and bylaws.
(e) A certificate of Seller stating (to the extent so) that
all representations and warranties of Seller contained in Section 15 of this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same force and effect as if such representations and warranties
had been made on and as of the Closing Date or if different, in what respect. To
the extent, if any, that such representations or warranties shall be made to the
"knowledge" or "best knowledge" of Seller in this Agreement, then such
certificate shall also be made to the "knowledge" or "best knowledge" of Seller.
(f) An affidavit as to title to the Property in the form of
Exhibit D annexed hereto and made a part hereof.
(g) An unitemized xxxx of sale conveying all Tangible Personal
Property to be conveyed pursuant to this Agreement, without representation,
warranty or recourse, in the form attached hereto as Exhibit E.
(h) Originals, to the extent available to Seller using its
best efforts, of all Space Leases (including, without limitation, all guarantees
thereof, if any), or true and correct copies of originals if originals are not
available, and an assignment and assumption of Space Leases (the "Space Lease
Assignment") in the form of Exhibit F attached hereto and made a part hereof.
(i) Originals, to the extent available, of all Elected Service
Contracts, or true and correct copies of originals if originals are not
available, and an assignment and assumption of Elected Service Contracts (the
"Service Contract Assignment") in the form of Exhibit G attached hereto and made
a part hereof.
(j) Notices to the Space Tenants ("Space Tenant Notices")
executed by Seller, in the form of Exhibit H attached hereto and made a part
hereof, indicating the sale of the Property to Purchaser and Purchaser's
liability for all Space Tenant security deposits to the extent delivered to
Purchaser, and directing rent to be paid to Purchaser or its designee.
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(k) Originals of the Space Tenant Estoppel Certificates.
(l) An updated Rent Roll, certified by an officer of Seller to
be true and correct in all respects.
(m) An original of the Land Lessor's Consent.
(n) An original of the Ground Lease Estoppel Certificate..
(o) An original, if available, of the Ground Lease, or a true
and correct copy of the Ground Lease, if the original is not available,
certified by Seller to be so.
(p) The Deed.
(q) To the extent in the possession of Seller, originals or
copies of all maintenance records, operating manuals, as-built and other and
plans pertaining to the Property, tax bills, historical operating statements and
property records, and the books and records of Seller in respect of the
Leasehold Estate and the Property insofar as the same may be reasonably required
by Purchaser in its operation of the Leasehold Estate and the Property following
the Closing Date, including, without being limited to, Seller's books and
records in respect of payments or performance under the Land Lease, Space Leases
and the Service Contracts, any proceedings for the reduction of real estate
taxes and assessments, and any outstanding claims by or against utility
companies servicing the Property; all of the foregoing to be deemed delivered to
Purchaser without representation or warranty by Seller, and without recourse to
Seller, except as may otherwise be expressly provided in this Agreement.
(r) All keys to the Property appropriately tagged for
identification.
(s) An assignment by Seller to Purchaser, without
representation or warranty by Seller, and without recourse to Seller, and only
to the extent freely assignable, of the Other Seller Interests, and assumption
by thereof by Purchaser (the "Assignment of Other Seller Interests").
(t) Written confirmation by Seller to Purchaser that Land
Lessor has not exercised its Right of First Refusal pursuant to Section 18.01(b)
of the First Ground Lease and Section 18.01(b) of the Second Ground Lease.
(u) A Letter of Non-Applicability pursuant to ISRA from the
Element (as defined in Section 15.B(e)(ii)) below.
(v) All such transfer and other tax declarations and returns,
duly
23
executed and sworn to by Seller as may be required by law in connection
with the conveyance of the Property to Purchaser.
(w) Such additional documents as Seller and Purchaser shall
mutually agree are necessary to carry out the provisions of this Agreement,
provided that such additional documents do not expand Seller's liability beyond
the liability of Seller described in or under this Agreement, and do not
diminish any rights or remedies of Seller.
8.2 In addition to payment of the Purchase Price as provided in
Section 5 hereof, Purchaser shall execute and deliver to Seller at Closing,
subject to compliance by Seller with all Seller's obligations to be kept,
observed and performed by Seller under this Agreement:
(a) The Assignment of Ground Lease.
(b) The Settlement Statement.
(c) A certificate of Purchaser stating that all
representations and warranties of Purchaser contained in Section 16 of this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same force and effect as if such representations and warranties
had been made on and as of the Closing Date or if different, in what respect.
(d) Certified copies or originals of certificates of good
standing, incumbency certificates, partnership consents and resolutions,,
partnership agreements, and resolutions, and other required or appropriate
organic documents and consents and approvals to the within transaction.
(e) The Space Lease Assignment.
(f) The Service Contract Assignment.
(g) The Space Tenant Notices.
(h) The Assignment of Other Seller Interests.
(i) Such additional documents, as Seller and Purchaser shall
mutually agree are necessary to carry out the provisions of this Agreement,
provided that such additional documents do not expand Purchaser's liability
beyond the liability of Purchaser described in or under this Agreement, and do
not diminish Purchaser's rights and remedies.
8.3 The parties shall make reasonable efforts so that and all
documents which are not attached hereto as Exhibits may be prepared and
submitted at least five (5) days prior to Closing for review and approval.
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8.4 Except as otherwise expressly provided in this Agreement, (i)
all warranties, representations, covenants and agreements of Seller set forth in
this Agreement or made pursuant to this Agreement shall merge in the Assignment
of Ground Lease and the Deed delivered by Seller at Closing, and none shall
survive Closing, and (ii) the acceptance by Purchase of the Assignment of Ground
Lease and the Deed shall be deemed full performance by Seller of all of Seller's
covenants, agreements, representations and warranties under this Agreement.
9. Obligations Pending Closing
9.1 (a) Between the date hereof and the date of Closing, Seller
shall be obligated to maintain the Property, and improvements thereon, in their
present condition (reasonable wear and tear excluded), and cure all violations
of which Seller has been notified of Legal Requirements affecting the Property,
or any improvements thereon, whether or not such violations are now noted in the
records of, or have been issued by any governmental authorities, until the
Closing Date, provided, however, anything in this Agreement to the contrary
notwithstanding, including, without limitation, the representations and
warranties of Seller concerning violations of law or any other matter, in no
event shall Seller have any obligation to incur any expenses, costs, liabilities
or obligations to alter, repair, change or improve the Property or any part
thereof, (a) in excess of One Hundred Forty Thousand Dollars ($140,000.00), in
the aggregate. In the event Seller undertakes any repair, improvement,
compliance with law or other matters which are the obligation of a Space Tenant
under a Space Lease, after the date hereof, Seller, may after Closing, bring
suit against such space Tenant to recover Seller's expense and cost incurred in
connection therewith. Purchaser shall cooperate with Seller, as may reasonably
be requested by Seller, but in no event shall Purchaser be required to
participate in any litigation as a party or suffer any costs or expenses. Seller
shall maintain in force until Closing the current insurance covering the
Property (or comparable coverage).
(b) Notwithstanding anything to the contrary, the provisions
of subparagraph (a), if during the period commencing after the End of the
Feasibility Period but prior to the Closing Date, any Repair (hereinafter
defined) shall be required, Seller, at its option, may cause the repair to be
made at its expense prior to Closing (and Seller shall be entitled to adjourn
the Closing Date for up to sixty (60) days in order to perform the Repair);
provided, however, if Seller shall elect not to make the Repair prior to
Closing, Purchaser, as its sole remedies, may either (i) terminate this
Agreement, receive the return of its Deposit (and all interest accrued thereon),
and thereafter this Agreement shall be null and void and neither party shall
have any obligations hereunder, except for such obligations specified herein to
survive the termination of this Agreement, or (ii) purchase the Property and
receive from Seller a One Hundred Forty Thousand Dollar ($140,000.00) credit
against the Purchase Price, and assume the obligation for making all repairs at
its sole expense (and Seller shall have no liability or responsibility for such
Repairs). "Repairs" shall mean all repairs to the Property in excess in the
aggregate of $140,000.00 cost for all repairs that would be required (1) to
cause the Property to be in its condition existing as of the End of the
Feasibility Period, and (2) to correct any violation of Legal
25
Requirements set forth in a written notice from a public authority and received
by Seller after the End of the Feasibility Period, (i) reasonable wear and tear
and (ii) any damage caused by Purchaser or any of Purchaser's agents, employees
or contractors excluded. Purchaser shall have no rights under this paragraph
relating to any condition existing as of the End of the Feasibility Period,
except as set forth in clause (ii) of the second preceding sentence.
Furthermore, the provisions of this Section 9.1(b) shall not apply to any damage
or destruction by fire or other casualty.
9.2 Subject to the provisions of this Section 9, Seller hereby
covenants and agrees with Purchaser that:
(a) After the date of this Agreement, Seller shall duly comply
with all terms, conditions and covenants, and duly perform all of its
obligations and duties, under the Ground Lease and shall not amend, modify,
supplement, extend, terminate or alter the Ground Lease, nor intentionally waive
any of the rights of the tenant under the Ground Lease.
(b) After the date of this Agreement, Seller shall not enter
into any material service contracts or personal property leases which would
continue for a period subsequent to the Closing Date, or which would not be
terminable on the Closing Date without penalty or premium, without the prior
written approval of Purchaser, which consent shall not be unreasonably withheld
or delayed and shall cancel any Service Contract that is not an Elected Service
Contract. Seller hereby agrees to indemnify Purchaser from and against any
claims made under any such non-Elected Service Contract.
(c) After the date of this Agreement Seller shall not have the
right to (A) enter into new Space Leases at the Property, (B) extend, amend,
modify and/or supplement Space Leases at the Property, and/or (C) to terminate
Space Leases at the Property unless Seller shall have first obtained the written
consent of Purchaser in Purchaser's reasonable discretion, which consent
Purchaser agrees not to unreasonably withhold or delay and which consent shall
be deemed given if Purchaser fails to respond to Seller's request for consent
within five (5) Business Days after Purchaser receives Seller's request for
consent; and any new Space Leases; any amendments, modifications or supplements
to Space Leases, which Seller shall enter into pursuant to the provisions
hereof, shall be included in the term "Space Leases." Except as herein provided,
Seller shall not extend, amend, modify and/or supplement Space Leases at the
Property, and/or to terminate Space Leases at the Property, except that Seller
shall have the right to enter into renewals, extensions or other documents
evidencing or reflecting the exercise by Space Tenants of any rights or options,
the terms of which are fixed or determinable as of the date hereof, under Space
Leases identified in this Agreement.
(d) After the date of this Agreement, Seller shall neither
transfer nor remove any material personal property or fixtures owned by Seller
from the Property, except for any of such personal property as is replaced by
Seller by an article of equal suitability and value, free and clear of any lien
or security interest. Seller shall not make any material alterations to any
26
portion of the Property or any material alterations to the electrical, plumbing,
mechanical or other systems servicing the Building, except that Seller, at its
option, may make any such alterations (provided such is free and clear of any
liens and encumbrances and undertaken in conformity with all Legal
Requirements), (i) to the extent, if any, that a Space Tenant may have under its
Space Lease an existing right to make or have made any such alteration, or (ii)
if required by law or by any of its insurers providing coverage in connection
with the Property, or (iii) if required to prevent possible damage to property
or injury to person.
(e) After the date of this Agreement, Seller will not initiate
or seek or agree to any zoning reclassification of the Property or seek any
variance under existing zoning ordinances applicable to the Property to use or
permit the use of the Property in such a manner which would result in such use
becoming a nonconforming use under applicable zoning ordinances or other Legal
Requirements. Seller will not impose any restrictive covenants or encumbrances
on the Property or execute or file any subdivision plat affecting the Property
without the prior written consent of Purchaser, which consent Purchaser agrees
not to unreasonably withhold or delay, unless same shall be released, terminated
or discharged prior to the Closing.
(f) Seller hereby agrees that from the date hereof until the
Closing, it will maintain in full force and effect fire and extended coverage
insurance upon the Property and public liability insurance with respect to
damage or injury to persons or property occurring on the Property in such
amounts as is maintained by Seller on the date of this Agreement.
(g) Seller will perform all material obligations of Seller
which under the Service Contracts are to be performed prior to the Closing Date
and will not renew, change or modify any Elected Service Contract in any manner
(if such modification or change shall apply to any period subsequent to the
Closing) without the prior written consent of Purchaser, which consent Purchaser
agrees not to unreasonably withhold or delay (and which consent shall be deemed
given if Purchaser fails to respond to Seller's request for consent within three
(3) Business Days after Purchaser receives Seller's request for consent).
(h) Seller will perform all material obligations of Seller as
landlord under the Space Leases which under the Space Leases are to be performed
prior to the Closing Date.
(i) Seller shall not:
(1) Enter into any agreement requiring the landlord to
do work for any Space Tenant after the Closing Date without first obtaining the
prior written consent of Purchaser, which such consent shall not be unreasonably
withheld, conditioned or delayed. Purchaser shall inform Seller of its consent
or objection to any request for consent with respect to such work within five
(5) days after its receipt of such request or be deemed to have consented
thereto;
27
(2) Accept the surrender of any Space Lease, or grant
any concession, rebate, allowance or free rent, except as to any new Space
Lease;
(3) Apply any Security Deposits with respect to any
Space Tenant in occupancy on the Closing Date; and
(4) Cause or permit the Property, or any interest
therein, to be alienated, mortgaged, licensed, encumbered or otherwise be
transferred.
(j) Upon request of Purchaser at any time after the date
hereof, Seller shall assist Purchaser, without any cost to Seller, in its
preparation of audited financial statements, statements of income and expense,
and such other documentation as Purchaser may reasonably request, covering the
period of Seller's ownership of the Property.
(k) Seller shall permit Purchaser and its authorized
representatives to inspect the books and records of the operations of the
Property operations at all reasonable times. All books and records not conveyed
to Purchaser hereunder shall be maintained for the three year period following
Closing for Purchaser's inspection at Seller's address as set forth above. Such
items are normally maintained in New York City or Washington, D.C. ("Seller's
Offices").
(l) Seller shall operate and maintain the Property in the
ordinary course of business and use reasonable efforts to reasonably preserve
for Purchaser the relationships of Seller and Seller's tenants, suppliers,
manager, employees having ongoing relationships with the Property. Seller will
not otherwise manage the Property differently due to this proposed sale of the
Property.
(m) Seller shall promptly notify Purchaser of, and promptly
deliver to Purchaser, a certified true and complete copy of any notice Seller
may receive, on or before the Closing date, from any Governmental Authority,
concerning a violation of Environmental Laws or Discharge of Hazardous
Materials.
(n) Seller shall, within three (3) days after the signing and
delivery of this Agreement, and subsequently, promptly upon receipt by Seller or
its representatives, deliver to Purchaser a certified true and complete copy of
all Environmental Documents.
10. Inspection; Restoration; Indemnity.
10.1 (a) For a period from the date hereof until the Closing Date,
Purchaser, at Purchaser's expense, shall (subject to the provisions of this
Agreement) have the right to inspect the Property, personally or through agents,
employees or contractors, and in pursuance thereof Purchaser may go upon the
Property at reasonable times with reasonable prior notice to Seller to make
boundary line or topographical surveys and to conduct such inspections, tests,
investigations,
28
and analyses of the Property as Purchaser deems desirable, provided Purchaser
shall give Seller notice before going on the Property, and provided that
Purchaser shall not materially or unreasonably interfere with the use,
operation, or occupancy of the Property, or any part thereof, or unreasonably
disturb or interfere with any of the Space Tenants. Seller (at no cost to
Seller) shall provide reasonable cooperation to Purchaser to facilitate
Purchaser's inspections of the Property. Seller, at Seller's option, shall be
permitted to accompany Purchaser and its agents and observe all or any
inspections, tests, and investigations performed by or for Purchaser at or upon
the Property. It this Agreement is terminated for any reason other than a
default by Seller, Purchaser shall make available to Seller for copying (at
Seller's expense), at Purchaser's offices in Cranford, New Jersey during normal
business hours, all surveys and investigative reports, all applications,
inquiries, written communications, and submissions made by Purchaser to any
public authority with respect to conditions of the Property and all responses
thereto, to the extent Purchaser has the authority to disclose such information
to Seller. Seller shall make available for Purchaser's inspection and copying
(at Purchaser's expense) at the Property or at Seller's Offices all books,
records, documents and lease files concerning the Property (other than matters
relating to privileged or confidential matters relative to the Seller's other
sale negotiations and internal, confidential or proprietary matters which would
not be relevant and material to a purchaser). Purchaser shall pay all costs
incurred in making such surveys, tests, analyses, and investigations, and in
making such applications and submissions to public authorities (except for the
cost of the Survey); and Purchaser shall indemnify, defend, and hold Seller
harmless from any claims, demands, losses, costs, and expenses (including
reasonable attorney's fees and court cost) incurred by Seller in connection with
any negligent acts or omissions of Purchaser its agents, employees, contractors,
and invitees with respect to any inspections and tests performed on the Property
by or on behalf of Purchaser, except for those caused in whole or in part by
Seller or its agents, or employees. Prior to coming or entering upon the
Property Purchaser shall provide to Seller evidence of liability insurance
coverage in form, with carriers and in amounts reasonably acceptable to Seller.
Further, Purchaser shall restore the portions of the Property affected by
Purchaser's surveys, analysis, and other investigations to substantially the
same condition as existed prior to such disturbance. Notwithstanding any
contrary provision contained in this Agreement, Purchaser shall have no
obligation to defend, indemnify or hold Seller harmless with respect to any
existing environmental matters which are discovered by Purchaser during its
performance of any inspections or tests unless, and only to the extent, such
matters are exacerbated by the actions of Purchaser, its employees, agents,
contractors or invitees. Seller shall notify Purchaser of any dangerous
conditions on the Property of which Seller has knowledge.
10.2 Purchaser shall not, prior to the Closing, disclose, directly
or indirectly, any information of a proprietary nature obtained in connection
with this Agreement and the transaction contemplated hereby (including, without
limitation, any tests, inspections, analysis or investigations conducted by
Purchaser), and in addition to and not in limitation of the foregoing, Purchaser
will keep confidential until the Closing any information or data received or
discovered in its analyses, tests and inspections regarding the Property or at
any other time prior to the Closing. Notwithstanding the foregoing, Purchaser
may disclose such information or data:
29
(a) to its lenders, attorneys, consultants, directors,
shareholders or Affiliates, to extent reasonably necessary in connection with
Purchaser's evaluation and effectuation of the transaction contemplated in this
Agreement, provided that all such lenders, attorneys, consultants and Affiliates
shall be required to hold and keep such information and data confidential, and
Purchaser shall be responsible for such attorneys, consultants, directors,
shareholders and Affiliates holding and keeping such information and data
confidential; and
(b) if (and then only to the extent that) any such disclosure
is required by law or court order (and promptly upon receiving such an order, or
any notice that disclosure is required by law, Purchaser shall provide a copy
thereof to Seller), then prior to making any such required disclosure, Purchaser
shall provide to Seller not less than five (5) days written notice (or, if
shorter, such advance notice as may be possible concerning a court-ordered
disclosure on less than five (5) days prior notice to Purchaser), and in any
such events Seller, at its sole discretion, shall have the right to challenge
and contest (by legal action or otherwise) such required disclosure, and
Purchaser, at no expense to it, fully and freely shall cooperate with
Seller in making such contest and attempting to keep such information and data
confidential. Failure of omission by Seller to contest or challenge shall not be
a waiver by Seller of the provisions of this Paragraph.
10.3 Pursuant to a certain Letter of Intent, dated February 13,
1998, between Seller and Purchaser, Seller has made, or will make, available to
Purchaser, certain information, items and materials respecting the Property, as
set forth on Exhibit A to such Letter of Intent. Except as otherwise expressly
provided in this Agreement, all such information, materials and items furnished
by Seller to Purchaser conclusively shall be deemed furnished without
representation or warranty by Seller, and without recourse to Seller.
10.4 The provisions of this Section 10 shall survive Closing or
termination of this Agreement for any reason; except that Purchaser's rights to
enter upon the Property and/or to perform interviews, tests, reviews,
inspections and/or other studies shall terminate immediately upon termination or
cancellation of this Agreement.
10.5 Purchaser has elected to assume only the service contract for
the elevator service with Security Elevator Co.
11. Ground Lease Assumption/Indemnities.
11.1 At the Closing, Purchaser shall accept the Leasehold Estate
from Seller and shall assume all obligations of Seller as the tenant under the
Ground Lease accruing on or after the Closing Date.
11.2 Subject to the provisions of Section 15. C hereof, Seller
shall, and hereby does, jointly and severally, indemnify, defend and hold
harmless Purchaser from and against:
30
(a) Any and all claims or demands made by third parties and
arising out of any and all acts or omissions of Seller relating to the Property,
or any other rights, properties or interests sold by Seller hereunder and any
and all liabilities and obligations of Seller to third parties including,
without limitation, any and all liabilities or obligations of the Seller in
respect of which claims are asserted against Purchaser or the Property (or any
part thereof) by third parties by reason of Seller's (or Seller's agents',
employees' or contractors') acts or omissions with respect to the Property (or
any part thereof), or any other rights, properties or interests sold by Seller
hereunder, the Ground Lease, the Space Leases, the Elected Service Contracts, or
other agreements relating to the Property, by reason of events which occurred or
causes of action which accrued prior to the Closing Date, specifically excluding
all claims and causes of action caused by Purchaser, its agents, employees or
contractors;
(b) Any misrepresentation, breach of warranty, or
nonfulfillment of any express representation or warranty on the part of Seller
under this Agreement (except those waived or deemed waived by Purchaser), or in
any certificate other instrument furnished or to be furnished by or for Seller
to Purchaser under this Agreement (expressly excluding all materials,
information and items furnished or to be furnished without representation or
warranty by Seller, or without recourse to Seller); and
(d) All claims, actions, suits, proceedings, demands,
assessments, judgments, costs and expenses (including reasonable attorneys'
fees) incident to any of the foregoing.
Seller's obligations under this Section 11.2 shall be subject to and
conditioned upon the performance and satisfaction of all of the following
provisions and conditions:
(a) Within fifteen (15) days (and within ten (10) days in the
event of service of judicial process or other court pleadings or documents)
after Purchaser has received written notice of a claim for which Seller may be
responsible under this Section 11.2, Purchaser shall deliver a complete copy of
such notice to Seller, but the failure to notify Seller of a particular claim
within that period of time shall not defeat or terminate the rights of the
Purchaser under this Section 11.2 with respect to that claim, unless (and then
only to the extent that) such failure or delay of notice prejudiced or adversely
affected Seller in some material respect.
(b) If, by the first to occur of (1) the thirtieth day after
Seller has received written notice of a claim for indemnification and defense
under this Section 11.2, and (2) the date prior to the date on which will occur
the entry of a judgment against Purchaser with respect to that claim, Seller
notifies Purchaser that Seller will defend such claims, then Seller shall defend
such claim at Seller's sole expense and Seller and Purchaser shall jointly
select and retain counsel to defend such claim. Seller and Purchaser shall
jointly make all decisions relating to the defense, contest, conduct and
settlement of such claim. In connection with the defense, contest, conduct
and/or settlement of any such claim Seller in a timely manner shall keep
Purchaser informed concerning the status of all such matters (which shall
include, without limitation, providing to
31
Purchaser copies of all claims, pleadings and other material documents and
instruments, and notification of the content of all material conversations,
discussions, meetings and hearings (which Purchaser, at its option, may attend
and participate in). In connection with any such defense, contest, conduct
and/or settlement, provided that Seller shall keep Purchaser informed
sufficiently in advance so that Purchaser may discuss with Seller any proposed
action or decision of the Seller, then (i) provided that Seller shall exercise
its discretion in a reasonable manner and in a manner which shall not unduly
prejudice the interests or rights of Purchaser or the Property, Seller shall
have the right, in its reasonable discretion, to make all decisions and
determinations which shall be of a routine, non-strategic, and minor nature, and
(ii) provided that Seller shall exercise its discretion in a reasonable manner
and in a manner which shall not unduly prejudice the interests or rights of
Purchaser or the Property, Seller shall have the right, subject to the prior
written consent of Purchaser (which Purchaser agrees not to unreasonably
withhold or delay), to make all other decisions and determinations. If within
such xxxx Xxxxxx fails to notify Purchaser that it will defend such claim, then
Purchaser may, upon notice to Seller, retain a single joint counsel reasonably
satisfactory to Seller to defend, contest and settle such claim, the reasonable
fees, costs and expenses of which will be paid by Seller, and, in addition, even
if Seller does timely notify the Purchaser and engage counsel and defend such
claim, Purchaser may, at its sole cost and expense, also retain separate legal
counsel to advise Purchaser with respect to any such claim. Seller shall, at
reasonable intervals, advise the Purchaser of the status of such claim and
Seller's actions pertaining thereto.
(c) Upon Seller's written request, Purchaser shall cooperate
with Seller in the contest of such claim, provided that Seller shall reimburse
Purchaser for any out-of-pocket costs and expenses (not including fees or
expenses of the Purchaser's separate legal counsel or any other outside
consultants or advisers) reasonably incurred by Purchaser in connection
therewith.
11.3 Purchaser shall, and hereby does, indemnify, defend and hold
harmless Seller from and against:
(a) Any and all claims or demands made by third parties and
arising out of any and all acts or omissions of Purchaser relating to the
Property, or any other rights, properties or interests sold by Seller hereunder
and any and all liabilities and obligations of Purchaser to third parties
including, without limitation, any and all liabilities or obligations of the
Purchaser in respect of which claims are asserted against Seller by third
parties by reason of Purchaser's (or Purchaser's agents', employees' or
contractors') acts or omissions with respect to the Property (or any part
thereof), or any other rights, properties or interests sold by Seller hereunder,
the Ground Lease, the Space Leases, the Elected Service Contracts, or other
agreements relating to the Property, by reason of events which occurred or
causes of action which accrue or accrued on or after the Closing Date,
specifically excluding all claims and causes of action caused by Seller, its
agents, employees or contractors;
(b) Any misrepresentation, breach of warranty, or
nonfulfillment of any express representation or warranty on the part of
Purchaser under this Agreement (except those
32
waived or deemed waived by Seller), or in any certificate other instrument
furnished or to be furnished to Seller by or for Purchaser under this Agreement.
(c) All claims, actions, suits, proceedings, demands,
assessments, judgments, costs and expenses (including reasonable attorneys'
fees) incident to any of the foregoing.
Purchaser's obligations under this Section 11.3 shall be subject to
and conditioned upon the performance and satisfaction of all of the following
provisions and conditions:
(a) Within fifteen (15) days (and within ten (10) days in the
event of service of judicial process or other court pleadings or documents)
after Seller has received written notice of a claim for which Purchaser may be
responsible under this Section 11.3, Seller shall deliver a complete copy of
such notice to Purchaser, but the failure to notify Purchaser of a particular
claim within that period of time shall not defeat or terminate the rights of the
Seller under this Section 11.3 with respect to that claim, unless (and then only
to the extent that) such failure or delay of notice prejudiced or adversely
affected Purchaser in some material respect.
(b) If, by the first to occur of (1) the thirtieth day after
Purchaser has received written notice of a claim for indemnification and defense
under this Section 11.3, and (2) the date prior to the date on which will occur
the entry of a judgment against Seller with respect to that claim, Purchaser
notifies the Seller that Purchaser will defend such claims, then Purchaser shall
defend such claim at Purchaser's sole cost and expense, and Seller and Purchaser
shall jointly select and retain counsel to defend such claim. Seller and
Purchaser shall jointly make all decisions relating to the defense, contest,
conduct and settlement of such claim. In connection with the defense, contest,
conduct and/or settlement of any such claim Purchaser in a timely manner shall
keep Seller informed concerning the status of all such matters (which shall
include, without limitation, providing to Seller copies of all claims, pleadings
and other material documents and instruments, and notification of the content of
all material conversations, discussions, meetings and hearings (which Seller, at
its option, may attend and participate in). In connection with any such defense,
contest, conduct and/or settlement, provided that Purchaser in a timely manner
shall keep Seller fully informed sufficiently in advance so that Seller may
discuss with Purchaser any proposed action or decision of the Purchaser, then
(i) provided that Purchaser shall exercise its discretion in a reasonable manner
and in a manner which shall not unduly prejudice the interests or rights of
Seller or the Property, Purchaser shall have the right, in its reasonable
discretion, to make all decisions and determinations which shall be of a
routine, non-strategic, and minor nature, and (ii) provided that Purchaser shall
exercise its discretion in a reasonable manner and in a manner which shall not
unduly prejudice the interests or rights of Seller or the Property, Purchaser
shall have the right, subject to the prior written consent of Seller (which
Seller agrees not to unreasonably withhold or delay), to make all other
decisions and determinations. If within such time Purchaser fails to notify
Seller that it will defend such claim, then Seller may, upon notice to
Purchaser, retain a single joint counsel reasonably satisfactory to Purchaser to
defend, contest and settle such claim, the reasonable fees, costs and expenses
of which will be paid by
33
Purchaser, and, in addition, even if Purchaser does timely notify the Seller and
engage counsel and defend such claim, Seller may, at its sole cost and expense,
also retain separate legal counsel to advise Seller with respect to any such
claim. Purchaser shall, at reasonable intervals, advise the Seller of the status
of such claim and Purchaser's actions pertaining thereto.
(c) Upon Purchaser's written request, Seller shall cooperate
with Purchaser in the contest of such claim, provided that Purchaser shall
reimburse the Seller for any out-of-pocket costs and expenses (not including
fees or expenses of the Seller's separate legal counsel or any other outside
consultants or advisers) reasonably incurred by the Seller in connection
therewith.
11.4 The provisions of this Section 11 shall survive the Closing for
a period of two (2) years.
12. Risk of Fire and Condemnation Prior to Closing.
12.1 In the event (a) the entire Property or any substantial part
thereof (as defined in Section 12.2) is substantially damaged or destroyed by
fire or other casualty, except if such casualty shall arise from the act or
negligence of Purchaser, any Affiliate of Purchaser, or any agent, employee,
servant, or director of either, or shall otherwise arise from the use or
occupancy of the Property or entry upon the Property by Purchaser or an
Affiliate or representative of Purchaser (a "Purchaser's Casualty") or (b)
condemnation or eminent domain proceedings (or private purchase in lieu thereof)
shall be pending or shall be commenced by any public or quasi-public authority
having jurisdiction against all or any part of the Property and/or the Leasehold
Estate, then Seller shall upon receipt of knowledge of such casualty or
proceedings promptly notify Purchaser. Purchaser may, as its sole options, by
giving written notice to Seller within fourteen (14) Business Days after receipt
of notice from Seller of such casualty or condemnation proceedings, either (i)
terminate this Agreement or (ii) proceed to close without an abatement of the
Purchase Price and without any obligation or liability of Seller, and without
any credit to Purchaser as a result thereof, except as hereinafter set forth in
Section 12.2 and Section 12.3. The failure of Purchaser to give notice to Seller
electing an option within such fourteen (14) Business Day period conclusively
shall be deemed an election by Purchaser to close title as described in the
preceding clause (ii). In the event Purchaser elects to terminate this
Agreement, Purchaser shall be entitled to the return of the Deposit and all
accrued interest and thereafter neither Purchaser nor Seller shall have any
liability to the other hereunder except for the obligations specifically set
forth to survive termination of this Agreement.
12.2 In the event Purchaser does not thus elect to terminate this
Agreement notwithstanding any such substantial casualty damage (or in the event
of any damage which is not "substantial" as herein provided or in the event the
damage results from a Purchaser's Casualty), then all insurance proceeds, if
any, as well as all unpaid claims and rights to insurance proceeds in connection
with such casualty plus the amount of any deductible, will be assigned to
Purchaser (without representation or warranty by or recourse to Seller, except
that Seller has not settled,
34
compromised, assigned or otherwise transferred such award or damages) at the
Closing or, if paid to Seller prior thereto, shall be retained by Seller and
together with the amount of the deductible credited dollar for dollar against
the unpaid balance of the Purchase Price due at Closing. Seller shall give
Purchaser evidence of such amount reasonably satisfactory to Purchaser. For
purposes of this Section 11, a "substantial" damage shall mean such damage to
the Property that shall require in excess of $500,000.00 to repair, as
determined by Seller's insurance carrier(s).
12.3 In the event Purchaser does not thus elect to terminate this
Agreement, notwithstanding that such condemnation proceedings are pending or
have commenced, then the condemnation award, or damages of any kind arising from
such condemnation, shall at Closing be the property solely of Purchaser and
Seller shall execute and deliver at Closing such instruments reasonably required
to effect such assignment to Purchaser (without representation or warranty by or
recourse to Seller, except that Seller has not settled, compromised, assigned or
otherwise transferred such award or damages), and the parties shall otherwise
proceed to Closing as if such proceedings were not pending or commenced. If
Seller receives any condemnation award for any portion of the Property prior to
the Closing Seller shall retain the same and the Purchase Price hereunder shall
be reduced by the same amount. Seller shall give Purchaser evidence of such
amount reasonably satisfactory to Purchaser. In the event Purchaser elects to
contest the condemnation and/or the amount of the condemnation award (in which
event Purchaser irrevocably shall be deemed to have elected to proceed to
close), Purchaser shall so notify Seller by giving written notice to Seller
within fourteen (14) Business Days after receipt from Seller of notice of the
condemnation proceedings, and thereafter, Purchaser, at its expense, will join
Seller to contest the condemnation and/or the condemnation award. Nothing herein
shall require Seller to contest any condemnation and/or the amount of the award
unless (a) Purchaser elects to proceed to close and (b) Purchaser bears all
expenses of such contest.
12.4 In consideration of the provisions of this Section 12, Seller
agrees to continue to maintain its present insurance with risks generally known
as extended coverage, at Seller's cost and expense until Closing.
12.5 In the event that any casualty damage occurs that is not
substantial and does not result from a Purchaser's Casualty, this Agreement
shall remain in full force and effect. In the event Seller expends any money in
repairing any such casualty damage prior to Closing, then Seller shall be
entitled to a portion of insurance proceeds equal to Seller's actual
expenditures incurred in connection with such repairs. Prior to Closing, Seller
shall provide Purchaser evidence of such expenditures. All remaining insurance
proceeds shall be assigned to Purchaser and all remaining sums received by
Seller in connection therewith shall be paid over to Purchaser, and all rights
to claims shall be assigned to Purchaser.
12.6 Seller shall not settle or compromise any claims, or undertake
any repairs following any casualty, except if necessary to secure and safeguard
the Property, without obtaining Purchaser's prior written consent, which such
consent shall not be unreasonably withheld, conditioned or delayed.
35
13. Notices and Other Communications.
All notices, demands, requests, consents, approvals and other
communications (collectively, "Notices") required or permitted to be given
hereunder or which are to be given with respect to this Agreement shall be in
writing and shall be given by (a) hand delivery, (b) Express Mail, Federal
Express or any other similar form of airborne/overnight delivery service which
provides for delivery receipt, or (c) certified or registered mail, return
receipt requested, postage prepaid, addressed to the party to be so notified at
the following address (or at such other address as may be specified by such
party by appropriate Notice) (receipt to be evidenced by Federal Express or
other overnight delivery service receipt, or certified or registered mail
receipt as the case may be [no return receipt required for hand delivery]):
If to Seller: c/o Sibag Holding Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
with simultaneous copies sent to:
Sibag Investments, Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxx, Vice President
and
St. Xxxx & Xxxxx, L.L.C.
Xxx Xxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Purchaser:
Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxx, Esquire,
Vice President and General Counsel
with a simultaneous copy sent to:
Xxxxxxx X. Xxxxxxx, Esquire
00
XxXxxxxxxx, Xxxx & Xxxxxxx
Xxxxxx Xxxxx - Xxxxx 000
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
If to Escrow Agent: Commonwealth Land Title Ins. Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Notices shall be deemed given (a) on the date of hand delivery, (b) on the first
regular business delivery day after the date of mailing by Federal Express or
other overnight delivery service, and (c) three (3) days after mailing by
certified or registered mail. Notices given by an attorney for a party hereto
shall be deemed to be a Notice given by such party.
14. Default.
14.1 Seller's Default. (a) Subject to Section 7.5 and Section
14.1(b) hereof, if Seller shall default (other than an insignificant or
immaterial default) in the performance of its obligation hereunder (including
without limitation, a default in Seller's obligations set forth in Sections 3.1,
3.2, 8.1 (a), (b), (c), (d), (e), (g), (h), (i), (j), (l), (p) and (s) and 9.2
or to make settlement on the Closing Date in accordance with the terms hereof)
and Purchaser shall not have defaulted hereunder (other than an insignificant or
immaterial default), Purchaser, following receipt by Seller of ten (10) Business
Days prior written notice from Purchaser stating that Seller is in default
hereunder, unless Seller shall have cured such default during such ten (10)
Business-Day period, may, as its sole remedies, avail itself of (i) the right to
terminate this Agreement and to bring suit for all of Purchaser's costs and
expenses incurred in connection with this Agreement and the transaction
contemplated hereby, including without limitation, reasonable attorneys' fees
(both in-house and outside counsel) and fees of engineers and consultants, up to
One Hundred Fifty Thousand Dollars ($150,000) and to a prompt return of the
Deposit and all interest earned thereon; or (ii) the remedy of specific
performance (which shall be limited to the right to compel Seller to convey to
Purchaser such title as Seller is able to convey without incurring any material
expense to cure any Title and Survey Objections, (except for Seller's
obligations pursuant to Section 3.1 and Section 3.2)), with an abatement of the
Purchase Price in an amount equal to Purchaser's costs and expenses incurred in
enforcing its remedy of specific performance, including without limitation,
reasonable attorneys' fee, plus an amount equal to four percent (4%) of
$21,190,000 per annum from the date initially scheduled for Closing hereunder to
the date on which Closing subsequently occurs. Except as provided for above,
Purchaser shall not be entitled to avail itself of any remedy at law or equity
to recover monetary damages from Seller arising from a default by Seller. This
Section 14.1(a) sets forth remedies for failure to close and is not intended to
apply to remedies Purchaser may have with respect to Seller's obligations (i)
which survive Closing or termination of this Agreement, or (ii) which are set
forth in or result from any instruments or documents executed and delivered by
Seller at Closing.
37
(b) Anything in this Agreement to the contrary notwithstanding
(including without limitation the foregoing provisions of Section 14.1(a)), the
parties expressly agreed that (i) failure or omission by Seller to discharge,
clear or remedy any Title and Survey Objection or Additional Title Matter,
except as specifically set forth in Section 3.1 and 3.2, shall not be a default
or breach by Seller under this Agreement, nor give rise to any rights or
remedies of Purchaser, except for the right of Purchaser to terminate this
Agreement and receive a return of the Deposit (and the interest thereon)
pursuant to Sections 3.1, 3.2, and 3.6, and (ii) failure of omission by Seller,
despite its best efforts, to deliver the Land Lessor Consent, the Ground Lease
Estoppel Certificate, and/or any or all of the Space Tenant Estoppel
Certificates shall not be a default or breach by Seller under this Agreement,
nor give rise to any rights or remedies of Purchaser, except for the right of
Purchaser to terminate this Agreement and receive a return of the Deposit (and
the interest thereon) pursuant to Section 7.5.
14.2 Purchaser's Default. Purchaser and Seller acknowledge that it
would be extremely impracticable and difficult to ascertain the actual damages
which would be suffered by Seller if Purchaser defaults under this Agreement.
Accordingly, if Purchaser has defaulted (other than an insignificant or
immaterial default) in the performance of its obligations hereunder (including
without limitation, a default in Purchaser's obligation to deliver to Seller
those documents and other items required under Section 8.2 hereof or to make
settlement on the Closing Date) and Seller shall have not defaulted hereunder
(other than an insignificant or immaterial default), then at the end of the ten
(10) Business Day period following the receipt by Purchaser of a written
statement from Seller stating that Purchaser is in default hereunder, unless
Purchaser shall have cured such default during such ten (10) Business Day
period, as Seller's sole and exclusive remedy, the Deposit (together with all
interest thereon) shall be by Escrow Agent paid over, transferred and assigned
to Seller as full, complete, agreed and liquidated damages, and thereupon this
Agreement shall terminate and neither party shall have any further obligations
hereunder, except for those specifically set forth in this Agreement to survive
termination. Seller's retention of the Deposit (and interest) is intended not as
a penalty, but as full liquidated damages, and is Seller's sole and exclusive
remedy in the event of default by Purchaser in its obligation to close title
hereunder, and (respecting a default by Purchaser in its obligations to close
title as provided in this Agreement) Seller hereby waives and releases any right
to (and hereby covenants that it shall not) xxx Purchaser (i) for specific
performance of this Agreement or (ii) to recover actual damages for default by
Purchaser in its obligation to close title as provided in this Agreement. This
Section 14.2 sets forth remedies for failure to close and it not intended to
apply to remedies Seller may have with respect to Purchaser's obligations (i)
which survive Closing or termination of this Agreement, or (ii) which are set
forth in or result from any instruments or documents executed and delivered by
Purchaser at Closing.
15. Representations and Warranties of Seller. To induce Purchaser to enter
into this Agreement, Seller makes only the following representations and
warranties to Purchaser, all of which are made as of the date of this Agreement:
38
15.1 Seller is a duly organized and validly existing corporation
under the laws of the State of Delaware and is duly authorized to transact
business in the State of New Jersey. All requisite corporate action has been or
will be taken by Seller in connection with Seller entering into this Agreement
and the instruments and documents referenced herein, and the consummation by
Seller of the transaction contemplated hereby, and Seller has the legal power,
right and authority to enter into this Agreement and the instruments and
documents referenced herein, and to consummate the transaction contemplated
hereby; the representations and warranties set forth in this Section 15.1 shall
survive the Closing for a period of three (3) years.
15.2 Neither the execution of this Agreement nor the consummation of
the transaction contemplated hereby shall result in a breach of, or constitute a
default under, any agreement, document, instrument, order, rule, writ or other
obligation to which Seller is a party or by which Seller or the Property may be
bound. Other than this Agreement or as provided in the Ground Lease, the
Property is not subject to any option to purchase or contract of sale.
15.3 Annexed hereto as Exhibit I is a rent roll (the "Rent Roll")
containing a complete and correct (as of the date of this Agreement) list of all
Space Leases and amendments and modifications thereof, in effect on the date of
this Agreement in respect of the Property (the "Space Leases") and setting forth
with respect to each of such Space Leases (as of the date of this Agreement):
(i) the name of the Space Tenant and the general identification and rentable
square footage of the space purported to be covered thereby: (ii) the date
thereof: (iii) the commencement date thereof: (iv) renewal and expansion options
and whether any have been exercised by the Space Tenant: (v) the brokerage or
leasing commissions or other compensations, if any, which are due with respect
to or on account of any of the Space Leases: (vi) whether or not, to the
knowledge of Seller, any Space Tenant is in material default under the terms of
its Space Lease: (vii) whether or not any currently effective notice from any
Space Tenant under a Space Lease has been received by Seller claiming that the
landlord is in material default under a Space Lease (not including notices, if
any, which have been withdrawn, mooted, discharged or resolved): (viii) whether
any rent concessions, free rent or other allowances have been given the Space
Tenant, and the amount thereof, and the amount thereof, if any, and the periods
to which same apply; (ix) the current monthly Space Rent (including fixed or
basic rent and PassThrough Charges), and the dates through which such rent is
paid, (x) any existing defaults by any Space Tenant in payment of Space Rent
(including Pass-Through Charges), including any arrearages in payment of Space
Rent; (xi) any prepaid Space Rent or other charges, and the amounts thereof;
(xii) any outstanding tenant improvement or build-out allowances or obligations
of Landlord, the amounts thereof, and the periods to which same apply; (xiii)
utilities, the costs of which are included in the Space Rent; and (xiv) whether
or not any Space Tenant has given currently effective notice to Seller of such
Space Tenant's intention of instituting litigation with respect to its Space
Lease.
15.4 Except as disclosed in the Rent Roll or in the Space Leases, or
as set forth on Schedule 15.4 with respect to Xxxxxxxx Xxxxxxxxx: no Space Lease
has been modified or amended in any respect; the Space Lease is the sole
agreement between the Space Tenant under the Space Lease and the Seller in
respect of the Property; no brokerage or leasing commissions or
39
other compensations are due with respect to or on account of any of the Space
Leases or any extensions or renewals thereof; to the knowledge of Seller, the
Space Leases are valid and enforceable in accordance with their terms; no Space
Tenant is in material default under the terms of its Space Lease; and no notice
from any Space Tenant under a Space Lease has been received by Seller claiming
that the landlord is in material default under a Space Lease (not including
notices, if any, which have been withdrawn, mooted, discharged or resolved); no
Space Tenant has given any currently effective notice to Seller of such Space
Tenant's intention of instituting litigation with respect to its Space Lease,
except as may be set forth in the Rent Roll; and all alterations, construction
and improvements required to be made by the Landlord under the existing Space
Leases have been fully completed, and paid for.
15.5 True and complete copies of all Space Leases (including,
without limitation, all riders, modifications, guarantees, and work letters
relating thereto) and commission agreements in effect or extant have been
delivered by Seller to Purchaser.
15.6 A true and complete copy of the Ground Lease has been delivered
by Seller to Purchaser. The Ground Lease represents the complete agreement
between Seller and the Land Lessor as to all rights and obligations of Seller
and Land Lessor in and to the Property.
15.7 The Ground Lease is a valid and subsisting lease and is in full
force and effect in accordance with the terms thereof and has not been further
modified, amended, supplemented, extended, renewed or terminated; all of the
rent, additional rent and other amounts and charges due and payable by the
tenant under the Ground Lease prior to the execution hereof have been paid
directly to the Land Lessor; no defaults exist under the Ground Lease. Seller
has not received any notice of default pursuant to the Ground Lease. There are
no actions or proceedings pending or threatened by Seller against Land Lessor;
and there are no actions or proceedings pending or (to the knowledge of Seller)
threatened against Seller or against the Leasehold Estate by Land Lessor.
15.8 Except for the Sublease Seller has not assigned or transferred
the Leasehold Estate, and Seller has not subleased any of the Leasehold Estate
except for the Sublease and the Space Leases.
15.9 The rent and additional rent payable pursuant to the Ground
Lease has been paid through March 31, 1998, and Seller has not prepaid any rent
or additional rent.
15.10. There is no security deposit under the Ground Lease.
15.11 True and complete copies of all Permits extant or effective as
of the date of this Agreement (not including any Permits issued to or obtained
by Space Tenants, or relating to the particular business of any Tenant, or for
the obtainment or issuance of which Space Tenants otherwise are responsible )
have been delivered by Seller to Purchaser.
40
15.12 True and complete copies of all Service Contracts in effect or
extant as of the date of this Agreement have been delivered by Seller to
Purchaser. To Seller's knowledge neither Seller nor any vendor under a Service
Contract is in material default thereunder.
15.13 Seller has not received any written notice from a governmental
body or governmental agency that the Property is in material default with
respect to building codes or fire department regulations which has not been
withdrawn, mooted, discharged or resolved.
15.14 Except as set forth on the Rent Roll or on Exhibit K attached
hereto and made a part hereof, Seller is not involved in any litigation or other
proceedings involving or respecting the Property, and to the best of Seller's
knowledge no actions, suits, litigation or proceedings are threatened against
the Property.
15.15 Other than this Agreement or as provided in the Ground Lease,
the Property is not subject to any option to purchase or contract of sale.
15.16 There are no union or collective bargaining contracts or
employment agreements binding upon Seller with respect to the Property except as
set forth on Exhibit Q attached hereto and made a part hereof.
15.17. Except as provided in Exhibit M, attached hereto and made a
part hereof, Seller has not retained any person to file notices of protest
against, or to commence actions to review, real property tax assessments against
the Property; and to Seller's knowledge, no such action has been taken by or on
behalf of any of the Space Tenants.
15.18 The financial statements of the operation of the Property
covering the fiscal year from October 1, 1996 to September 30, 1997, including
the statements of income, expenses, and escalatable operating costs, attached
hereto and made a part hereof as Exhibit N are complete, true and accurate in
all material respects as of the respective dates thereof, are in accordance with
the books and records of the Property and fairly present the financial position,
cash flow, equity and results of operations of the Property with respect to such
period. To Seller's knowledge, there have not been any material adverse changes
in the income or expenses or other items set forth on the financial statements
between the date thereof and the date of this Agreement.
15.19 Seller has provided Purchaser with or given Purchaser the
opportunity to inspect in Seller's Offices with all reports, including, without
limitation, the Environmental Documents (as defined in Section 15.B(e)(iii)) in
Seller's possession, which to the knowledge of Seller are all of the reports and
Environmental Documents related to the physical condition of the Property.
15.20 Except as set forth in Schedule 15.20, attached hereto Seller
has no knowledge of any notices, suits, investigations or judgments relating to
any violations of Legal Requirements, including without limitation,
Environmental Laws (as defined in Section
41
15.B(e)(iv)) affecting the Property and, to Seller's knowledge, it has not
received notice of any violations from any agency, board, bureau, commission,
department, office or body of any municipal, county, state or federal
governmental unit, or any subdivision thereof, having, asserting or acquiring
jurisdiction over all or any part of the Property or the management, operation,
use or improvement thereof (collectively, the "Governmental Authorities") or
that any Governmental Authorities contemplate the issuance thereof, and there
are no outstanding orders, judgments, injunctions, decrees, directives or writ
of any Governmental Authorities against or involving Seller or the Property.
15.21 [Intentionally Deleted]
15.22 Seller has not received any notice of, and has no knowledge
of, outstanding requirements or recommendations by (i) the insurance company(s)
currently insuring the Property; (ii) any board of fire underwriters or other
body exercising similar functions, or (iii) the holder of any mortgage
encumbering any of the Property, which require or recommend any repairs or work
to be done on the Property, except as set forth in Schedule 15.22, attached
hereto.
15.23 Seller has not received any notice of, and has no knowledge of
(i) any pending or contemplated annexation or condemnation proceedings, or
private purchase in lieu thereof, affecting or which may affect the Property, or
any part thereof, (ii) any proposed or pending proceeding to change or redefine
the zoning classification of all or any part of the Property, (iii) any proposed
or pending special assessments affecting the Property or any portion thereof,
(iv) any penalties or interest due with respect to real estate taxes assessed
against the Property and (v) any proposed change(s) in any road or grades with
respect to the roads providing a means of ingress and egress to the Property,
except as set forth in Section 15.23, attached hereto. Seller agrees to furnish
Purchaser with a copy of any such notice received within two (2) days after
receipt.
15.24 Annexed hereto as Schedule 15.24 is a schedule of all leasing
commission obligations affecting the Property. The respective obligations of
Seller and Purchaser with respect to said commissions are set forth in Section
6.9.
15.26 Seller has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy or suffered the filing of
any involuntary petition by Seller's creditors, suffered the appointment of a
receiver to take possession of all, or substantially all, of such Seller's
assets, suffered the attachment or other judicial seizure of all, or
substantially all, of such Seller's assets, admitted in writing its inability to
pay its debts as they come due or made an offer of settlement, extension or
composition to its creditors generally.
15.27 The Improvements and Other Seller Interests are now owned and
will on the Closing Date be owned by Seller free and clear of any conditional
bills of sale, chattel mortgages, security agreements or financing statements or
other security interests of any kind.
42
15.28 Seller has paid all Taxes (as defined in this Section 15.28)
due and payable prior to the Closing and filed all returns and reports required
to be filed prior to the Closing with respect to the ownership and operation of
the Property (by it or any predecessor entity) for which Purchaser could be held
liable or a claim made against the acquired property. Except as set forth in
Schedule 15.28, there are no audits or other proceedings by any Governmental
Authorities pending or, to the knowledge of Seller, threatened with respect to
the Taxes resulting from the ownership and operation of the Property (by it or
any predecessor entities) for which Purchaser could be held liable or a claim
made against the acquired property. No assessment of Taxes is proposed against
Seller (including any predecessor entities), the Property. Seller is not party
to, and has no liability under (including liability with respect to a
predecessor entity), any indemnification, allocation or sharing agreement with
respect to Taxes. "Taxes" mean all federal, state, county, local, foreign and
other taxes of any kind whatsoever (including, without limitation, income,
profits, premium, estimated, excise, sales, use, occupancy, gross receipts,
franchise, ad valorem, severance, capital levy, production, transfer, license,
stamp, environmental, withholding, employment, unemployment compensation,
payroll related and property taxes, import duties and other governmental charges
or assessments), whether or not measured in whole or in part by net income, and
including deficiencies, interest, additions to tax or interest, and penalties
with respect thereto, and including expenses associated with contesting any
proposed adjustment related to any of the foregoing.
15.B In addition to the provisions of Section 15.A, Seller hereby
warrants and represents the following with respect to environmental matters:
(a) Except as disclosed on Schedule 15.B or in the Environmental Documents
delivered to Purchaser by Seller:
(i) to the knowledge of the Seller, there are no Hazardous Materials
on, under, at, emanating from or affecting the Property, other than reasonably
small quantities of household cleaning and office supplies and the typical waste
products resulting from the use thereof, used and disposed of in accordance with
Environmental Laws; and except those in compliance with all applicable
Environmental Laws;
(ii) to the knowledge of the Seller, no portion of the Property has
ever been used by Seller or, to the knowledge of the Seller, any former owner or
current or former occupant to generate, manufacture, refine, produce, treat,
store, handle, dispose of, transfer or process Hazardous Materials;
(iii) to the knowledge of the Seller, no ss.104(e) informational
request has been received by Seller or any current or former owner or occupant
of the Property issued pursuant to CERCLA (as defined in Section 15.B(e)) with
respect to the Property or any property in the vicinity of the Property;
(iv) to the knowledge of the Seller, there are no aboveground
storage tanks or
43
Underground Storage Tanks at the Property and to the knowledge of Seller there
were no above ground storage tanks or Underground Storage Tanks at the Property;
(v) to the knowledge of the Seller, the Property has not been used
as a sanitary landfill facility as defined in the Solid Waste Management Act,
N.J.S.A. 13:1E-1 et seq.;
(vi) To Seller's knowledge, Seller has all environmental
certificates, licenses and permits ("Permit") required to operate the Property
and except as set forth in Schedule 15.B(a)(vi), Seller has no notice of any
violation of any statute, ordinance, rule, regulation, order, code, directive or
requirement, including, without limitation, Environmental Laws, with respect to
any Permit, nor any pending application for any Permit; and
(vii) To Seller's knowledge, there are no engineering or
institutional controls at the Property, including without limitation, any deed
notice, declaration of environmental restriction, groundwater classification
exception area or well restriction area pursuant to N.J.S.A. ss.13:1E-56 or
N.J.S.A. 58:10B-13.
(b) Notwithstanding anything to the contrary contained in this Agreement,
the obligation of Purchaser to pay the Purchase Price and otherwise proceed to
Closing shall be subject to the condition that Seller obtain a Letter of
Non-Applicability pursuant to ISRA from the Element (as defined in Section
15.B(e)(ii)), on or before the date (hereinafter called the "ISRA Compliance
Date") that is twenty (20) days after this Agreement is executed by Seller. Upon
Purchaser's request, Seller shall provide Purchaser with all information,
reports, studies and analysis which Seller delivered to the NJDEP with the
application for, or otherwise in connection with, the issuance of the Letter of
Non-Applicability. If the requirements of this Section are not satisfied on or
before the ISRA Compliance Date, Purchaser shall have the right to extend the
ISRA Compliance Date or to terminate this Agreement, in which latter event this
Agreement shall be rendered null and void and of no further force or effect, the
Deposit shall promptly be paid to Purchaser, and neither party shall have any
further liability or obligation to the other under or by virtue of this
Agreement.
(c) Within three (3) days of the date of the execution of this Agreement,
and subsequently promptly upon receipt by Seller or Seller's representatives,
Seller shall deliver to Purchaser copies of: (i) all Environmental Documents
concerning the Property generated by or on behalf of predecessors in title or
former occupants of the Property to the extent in Seller's possession; (ii) all
Environmental Documents concerning the Property generated by or on behalf of
Seller, whether currently or hereafter existing; (iii) all Environmental
Documents concerning the Property generated by or on behalf of current or future
occupants of the Property to the extent in Seller's possession, whether
currently or hereafter existing; and (iv) existing maps, diagrams and other
documentation to the extent in Seller's possession or control designating the
location of past and present operations at the Property and past and present
storage of Hazardous Materials above or below ground, on, under, at, emanating
from or affecting the Property or its environs.
44
(d) Seller shall notify Purchaser in advance of all meetings scheduled
between Seller or Seller's representatives and NJDEP, and Purchaser, and
Purchaser's representatives shall have the right, without obligation, to attend
and participate in all such meetings.
(e) The following terms shall have the following meanings when used in
this Agreement:
(i) "Discharge" shall mean the releasing, spilling, leaking,
leaching, disposing, pumping, pouring, emitting, emptying, treating or dumping
of Hazardous Materials at, into, onto or migrating from or onto the Property,
regardless of whether the result of an intentional or unintentional action or
omission.
(ii) "Element" shall mean the Industrial Site Evaluation Element or
its successor of the NJDEP.
(iii) "Environmental Documents" shall mean all environmental
documentation in the possession of Seller which to the knowledge of Seller is
all environmental documentation concerning the Property, or its environs,
including without limitation, all sampling plans, cleanup plans, preliminary
assessment plans and reports, site investigation plans and reports, remedial
investigation plans and reports, remedial action plans and reports, or the
equivalent, sampling results, sampling result reports, data, diagrams, charts,
maps, analysis, conclusions, quality assurance/quality control documentation,
correspondence to or from any Governmental Authority, submissions to any
Governmental Authority and directives, orders, approvals and disapprovals issued
by any Governmental Authority.
(iv) "Environmental Laws" shall mean each and every applicable
federal, state, county or municipal statute, ordinance, rule, regulation, order,
code, directive or requirement, together with all successor statutes,
ordinances, rules, regulations, orders, codes, directives or requirements, of
any Governmental Authority in any way related to Hazardous Materials.
(v) "NJDEP" shall mean the New Jersey Department of Environmental
Protection or its successor.
(vi) "Tank Laws" shall mean the New Jersey Underground Storage of
Hazardous Substances Act, N.J.S.A. 58:10A-21 et seq., and the federal
underground storage tank law (Subtitle I) of the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. ss.6901 et seq., together with any
amendments thereto, regulations promulgated thereunder, and all substitutions
thereof, and any successor legislation and regulations.
(vii) "Underground Storage Tank" shall mean each and every
"underground storage tank", whether or not subject to the Tank Laws, as well as
the "monitoring system", the "leak detection system", the "discharge detection
system" and the "tank system" associated with the "underground storage tank", as
those terms are defined by the Tank Laws.
45
15.C For the purposes of this Agreement, the term "knowledge of Seller"
shall mean only and solely the actual knowledge or knowledge of any written
information, notice or demand of Xxxxxx X. Xxxxxx, Xxxx Xxxxxx or Xxxxxxx
Xxxxxxx at the xxxx Xxxxxx shall make the representation, after reasonable due
diligence, with respect to such referenced fact, condition or circumstance, but
without duty to independently investigate beyond Seller's books, records, plans
and files.
15.D Limitation of Survival Liability. Except as otherwise expressly set
forth herein, the representations and warranties of Seller set forth in the
Agreement shall survive only for a period of two (2) years from the date of
Closing and, upon the expiration of such two (2) year period, all such
representations and warranties shall terminate and may not be asserted (and any
and all claims and causes of action resulting from or on account of a breach
thereto, for which Purchaser has not served Seller theretofore with written
notice of claim, shall terminate and may not be asserted).
16. Representations, Warranties and Agreements of Purchaser. Purchaser
makes the following representations and warranties to Seller, and the following
agreements with Seller.
16.1 Purchaser has the legal power, right and authority to enter
into this Agreement and the instruments and documents referenced herein, and to
consummate the transaction contemplated hereby. The representations and
warranties set forth in this Section 16.1 shall survive the Closing for a period
of three (3) years.
16.2 All requisite corporate and/or partnership and/or other action
has been taken by Purchaser and all requisite consents have been obtained in
connection with Purchaser entering into this Agreement and the instruments and
documents referenced herein, and the consummation by Purchaser of the
transaction contemplated hereby. The representations and warranties set forth in
this Section 16.1 shall survive the Closing for a period of three (3) years.
16.3 Neither the execution of this Agreement nor the consummation of
the transaction contemplated hereby shall result in a material breach of, or
constitute a material default under, any agreement, document, instrument, order,
rule, writ or other obligation to which Purchaser is a party or by which
Purchaser may be bound.
17. Third Party Beneficiaries.
Nothing in this Agreement is intended or shall be construed to
confer upon or to give to any person, firm or corporation other than the parties
hereto any right, remedy, or claim under or by reason of this Agreement. All
terms and conditions in this Agreement shall be for the sole and exclusive
benefit of the parties herein.
18. Assignment.
46
This Agreement may be assigned by Purchaser only if and provided
that (a) Purchaser shall give Seller written notice of the assignment prior to
on the effective date of the assignment, (b) the assignee shall agree in writing
(by instrument in form and substance reasonably acceptable to Seller) to assume
all obligations of Purchaser hereunder, and an executed original of said
instrument shall be delivered to Seller prior to on the effective date of the
assignment, (c) the original signatory to this Agreement as "Purchaser" shall
remain jointly and severally liable with such assignee for all obligations of
"Purchaser" under this Agreement, (d) the assignment includes an assignment to
the assignee of Purchaser's interest in the Deposit, (e) the Land Lessor Consent
shall not be affected, invalidated, or rendered ineffective or inapplicable by
reason of such assignment, and (f) the assignee shall be (i) an entity
controlled by or controlling or under common control with Purchaser ("control"
meaning the ownership of more than fifty (50%) percent of the equity interests
in such entity), or (ii) a limited partnership, the general partner of which
shall be Purchaser (a "Permitted Assignee").
19. Time of the Essence.
TIME IS OF THE ESSENCE AS AGAINST BOTH PARTIES UNDER THIS AGREEMENT.
20. AS IS. EXCEPT AS SPECIFICALLY SET FORTH TO THE CONTRARY IN THIS
AGREEMENT OR IN THE INSTRUMENTS DELIVERED BY SELLER AT CLOSING, SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO (I) THE PRESENT
OR FUTURE PHYSICAL (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL) CONDITION OF
THE PROPERTY, (II) ITS PRESENT OR PERMISSIBLE USES, (III) THE INCOME OR EXPENSES
OF THE PROPERTY, (IV) THE GROUND LEASE, (V) THE SPACE LEASES, (VI) THE
COMPLIANCE OF THE PROPERTY, ITS OPERATION OR OCCUPANCY, WITH ANY LEGAL
REQUIREMENTS, OR (VII) ANY OTHER MATTERS CONCERNING THE CONDITION (INCLUDING,
WITHOUT LIMITATION, ENVIRONMENTAL CONDITION), STATE OF REPAIR, TITLE, OR ANY
OTHER MATTER CONCERNING THE GROUND LEASE, THE LEASEHOLD ESTATE, THE PROPERTY,
ITS OWNERSHIP, OPERATION, DEVELOPMENT, FINANCES, CONSTRUCTION, OR OCCUPANCY, AND
PURCHASER ACKNOWLEDGES THAT BEFORE CLOSING IT WILL HAVE THOROUGHLY INSPECTED THE
GROUND LEASE, THE LEASEHOLD ESTATE AND THE PROPERTY AND IS AND WILL BE FAMILIAR
WITH THE PHYSICAL CONDITION OF THE PROPERTY AND ALL SUCH OTHER MATTERS,
INCLUDING BUT NOT LIMITED TO ENVIRONMENTAL CONDITIONS RESPECTING THE PROPERTY,
AND ITS PRESENT AND PERMISSIBLE USES. PURCHASER FURTHER ACKNOWLEDGES THAT
PURCHASER WILL HAVE A FULL OPPORTUNITY TO INSPECT AND REVIEW THE GROUND LEASE,
THE LEASEHOLD ESTATE AND PROPERTY, AND ALL MATTERS RELATING THERETO, AND THAT
EXCEPT AS
47
EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT, PURCHASER WILL ACCEPT THE GROUND
LEASE, THE LEASEHOLD ESTATE AND THE PROPERTY AND ITS USES "AS-IS", "WHERE-IS",
AND "WITH ALL FAULTS" AS OF THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, THE
EXISTENCE OF ANY HAZARDOUS MATERIAL ON OR ABOUT THE PROPERTY. EXCEPT AS
EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT AND THE INSTRUMENTS DELIVERED BY
SELLER AT CLOSING, AND TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, PURCHASER
IRREVOCABLY WAIVES ANY REPRESENTATIONS OR WARRANTIES IMPLIED BY LAW, INCLUDING,
WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY,
FITNESS, QUANTITY, QUALITY OR SUITABILITY. PURCHASER HEREBY ACKNOWLEDGES AND
AGREES THAT EXCEPT AS MAY OTHERWISE BE PROVIDED BY THE EXPRESS TERMS OF THIS
AGREEMENT, SELLER HAS NO OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIRS,
ALTERATIONS OR OTHER WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF THE
PROPERTY. PURCHASER WAIVES ANY RIGHT IT NOW OR IN THE FUTURE MAY HAVE TO AVOID
THE CONVEYANCE OR ASSIGNMENT OF THE PROPERTY BY SELLER TO PURCHASER EXCEPT AS
EXPRESSLY PROVIDED BY THIS AGREEMENT.. THE AGREEMENTS AND PROVISIONS CONTAINED
IN THIS SECTION 20 SHALL SURVIVE THE CLOSING.
21. Miscellaneous.
21.1 The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
21.2 This Agreement shall not be binding or effective until properly
executed and delivered by Seller and Purchaser. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
and all of which shall constitute one and the same Agreement, and it shall not
be necessary in making proof of this Agreement to produce or account for more
than one such fully executed counterpart.
21.3 This Agreement may not be changed or terminated orally. This
Agreement shall be deemed to merge with the conveyance of title and all
covenants, agreement, indemnities, representations and warranties shall not
survive the Closing except as may be otherwise specifically provided herein.
21.4 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors, personal
representatives, heirs and assigns (subject to the provisions of Section 18).
21.5 This Agreement shall be governed by and construed in accordance
with
48
the laws of the State of New Jersey.
21.6 This Agreement contains the entire agreement between the
parties and any and all understandings and dealings heretofore had are merged
herein and any agreement hereafter made shall be ineffective to change, modify,
or discharge this Agreement in whole or in part unless such agreement hereafter
made is in writing and signed by the parties hereto.
21.7 Except as provided to the contrary in this Agreement, the
failure by Purchaser or Seller to insist upon or enforce any rights herein shall
not constitute a waiver thereof. Seller and Purchaser each shall have the right
to waive any one or more of the terms and conditions of this Agreement which are
for its benefit, by express written notice of such waiver to the other party.
21.8 The Schedules and Exhibits (if any) attached hereto are hereby
made a part of this Agreement as fully as if set forth in the text of this
Agreement.
21.9 Neither this Agreement, nor any memorandum or notice thereof,
may be recorded by Purchaser. The recordation of this Agreement, or any
memorandum or notice thereof by Purchaser shall be a default by Purchaser under
this Agreement, and, at the option of Seller, shall render this Agreement null
and void.
21.10 All captions, headings, Section numbers and other references
are solely for the purpose of facilitating reference to this Agreement and shall
not supplement, limit or otherwise vary in any respect the text of this
Agreement.
21.11 Except as expressly provided by the terms of this Agreement,
all rights, powers and privileges conferred hereunder shall be cumulative and
not restrictive of those given by law.
21.12 All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or persons or entity or entities in question may require.
21.13 In connection with any litigation arising under this
Agreement, the prevailing party shall be entitled to attorneys fees and other
legal costs, including but not limited to attorneys fees and costs incurred in a
bankruptcy proceeding.
21.14 Purchaser shall not, prior to the Closing, make or give any
press release or any other public announcement respecting the transaction
contemplated in this Agreement, nor otherwise publicly disclose or disseminate
any information respecting such transaction, including, without limitation, the
Purchase Price and/or the other terms and provisions of this Agreement, without
the prior written consent of Seller in each case, except as otherwise may be
required by law or court order. The provisions of this paragraph shall survive
the termination or cancellation
49
of this Agreement
50
22. Broker.
Purchaser hereby represents to Seller that Purchaser has not dealt
with any real estate broker, finder agent or salesman in connection with the
negotiation of this Agreement other than Broker, as hereinafter defined. Seller
hereby represents to Purchaser that Seller has not dealt with any real estate
broker, finder agent or salesman in connection with the negotiation of this
Agreement other than Eastdil Properties ("Broker"). Seller shall pay a
commission to Broker pursuant to a separate agreement between Seller and Broker
and shall indemnify Purchaser against, and hold Purchaser harmless from, any and
all claims (and all expenses incurred in defending any such claims or in
enforcing this indemnity, including attorneys' fees and court costs) by Broker
and by any broker or finder for a real estate commission or similar fee arising
out of or in any way connected with any claimed relationship between such broker
or finder and Seller, including without limitation Xxxxxxx Xxxxx Locations
Services or any Xxxxxxx Xxxxx related entity. Purchaser shall indemnify Seller
against, and hold Seller harmless from, any and all claims (and all expenses
incurred in defending any such claims or in enforcing this indemnity, including
attorneys' fees and court costs) by any broker or finder for a real estate
commission or similar fee arising out of or in any way connected with any
claimed relationship between such broker or finder and Purchaser. The provisions
of this Section 22 shall survive the Closing or the termination of this
Agreement.
23. Township's Requirements.
23.1 Seller and the Township of Plainsboro (the "Township") are
parties to a certain Bus Shelter Escrow Agreement dated November 30, 1995, (the
"Bus Shelter Agreement"), pursuant to which Seller has deposited into escrow
with the Township Seven Thousand Five Hundred Dollars ($7,500). Seller has
provided to Purchaser a true and complete copy of said agreement. The parties
agree that following Closing the Bus Shelter Agreement, and the funds deposited
into escrow pursuant thereto, shall remain in place, in accordance with the
terms thereof. Seller shall not seek to withdraw from such agreement because of
the Closing of the transactions contemplated hereby. Seller shall be entitled to
the return by the Township of the escrow funds not expended and interest earned
thereon, in accordance with the terms of the Bus Shelter Agreement and Purchaser
shall have no right to or make any claim for such funds.
23.2 In connection with certain construction to the parking areas of
the Property (the "Prior Work"), Seller has pre-paid to the Township Two
Thousand Six Hundred NinetyThree Dollars ($2,693) for inspection fees (the
"Pre-Paid Amount"). The Pre-Paid Amount shall remain with the Township after
Closing to pay for any inspection fees charged by the Township in connection
with the Prior Work. After Closing Seller shall be entitled to make application
for return to it of the Pre-Paid Amount and to receive from the Township any
balance remaining after application by the Township of any remaining inspection
fees for the Prior Work.
23.3 In connection with and as required by certain approvals granted
by Plainsboro Township with respect to the extension of the parking area of the
Improvements, Seller
51
has posted with Plainsboro Township a maintenance bond (the "Bond") in the
amount of Sixteen Thousand Two Hundred Twenty-One Dollars and Fifty-One Cents
($16,221.51) (the "Bond Amount"). To the extent permitted by law and acceptable
to Plainsboro Township, Purchaser agrees to post with Plainsboro Township a
substitute bond in the Bond Amount. Purchaser shall have no obligation and not
be in default hereof on account of any refusal or delay by Plainsboro Township
in accepting such a substitute bond. In addition, Purchaser shall have no
obligation to provide a substitute bond on any terms or conditions different
from those applicable to the Bond. Seller, at its sole cost, shall be
responsible for obtaining any necessary approvals of Plainsboro Township with
respect to the release of the Bond in connection with the substitution of a new
bond. Purchaser shall reasonably cooperate with Seller in connection with
obtaining such approvals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER:
SI PRINCETON, INC.
Attest: By: Name:
--------- ------------------------------ ------
XXXXXX X. XXXXXX, PRESIDENT
Title: By:
-------- -----------------------------
Seller's Tax Identification No.:
---------
PURCHASER:
XXXX-XXXX REALTY ACQUISITION
CORPORATION
Attest: By: Name:
--------- ------------------------------ ------
XXXXX XXXXXX, ESQUIRE
VICE PRESIDENT
Purchaser's Tax Identification No.:
--------
ESCROW AGENT (as to Section 5 only):
COMMONWEALTH LAND TITLE INS. CO.
Attest: By:
------------------ ------------------------------
Name: XXXXXXX XXXXXX
--------------------
52
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT J
SERVICE CONTRACTS
================================================
SERVICE VENDOR
------------------------------------------------
CLEANING Unicco
------------------------------------------------
ELEVATOR Security Elevator
MAINTENANCE Co.
------------------------------------------------
FIRE SPRINKLERS AFA Protective
Systems, Inc.
------------------------------------------------
FIRE SYSTEM Standard Electric
------------------------------------------------
SECURITY (see access
control)
------------------------------------------------
HVAC Xxxx-Xxxxx Svc.
Corp.
------------------------------------------------
INTERIOR & Xxxxxxx Arrimour
EXTERIOR
LANDSCAPING
------------------------------------------------
TRASH REMOVAL Waste Management
of Central New
Jersey
------------------------------------------------
RECYCLING Waste Mgmt.
------------------------------------------------
WINDOW CLEANING LWC Services,
Inc.
------------------------------------------------
MARBLE MAINTENANCE Not provided
------------------------------------------------
METAL MAINTENANCE Not provided
------------------------------------------------
ACCESS CONTROL STI
------------------------------------------------
EXTERMINATING Xxxxxx Pest
Control
------------------------------------------------
SNOW REMOVAL Penninck
Arrimour, Inc.
------------------------------------------------
SWEEPING Xxxxxx Sweeping,
Inc.
================================================
EXHIBIT J-1
ELECTED SERVICE CONTRACTS
ELEVATOR MAINTENANCE - SECURITY ELEVATOR CO.
EXHIBIT K
LITIGATION
NONE
EXHIBIT M
TAX PROTESTS
NONE
EXHIBIT Q
UNION AND COLLECTIVE BARGAINING AGREEMENTS
NONE
SCHEDULE 15.B
ENVIRONMENTAL MATTERS
Phase I Environmental Site Assessment Report of Dames and Xxxxx
dated June 18, 1996.
SCHEDULE 15.4
LEASE ISSUES
Matters raised with respect to charges for electrical usage in that
certain letter dated April 8, 1998 from Xxxx X. Xxxxxxxx, of Xxxxxxxx Xxxxxxxxx.
SCHEDULE 15.22
REQUIREMENTS OF INSURANCE UNDERWRITERS
July 17, 1997 letter from Industrial Risk Insurers to Xxxxxxx
Xxxxxxx and attached Loss Prevention Survey.
SCHEDULE 15.23
GOVERNMENTAL ACTIONS
See New Jersey Authority Application attached regarding proposed
Route 92.
SCHEDULE 15.24
LEASING COMMISSIONS
Commission Agreement with Xxxxx & Xxxxx Company and Xxxxxxx Xxxxx
Location Services with respect to the Xxxxxxx Xxxxx Asset Management, L.P. lease
(copy attached).
Also attached hereto is a copy of the leasing commission provisions
of the Management Agreement with Xxxx Real Estate Services which Management
Agreement shall be terminated by Seller effective as of the date of Closing.
There are no leasing commissions due to Xxxx Real Estate Services as of the date
hereof or hereafter.
SCHEDULE 15.28
AUDITS AND PROCEEDINGS
NONE
