AGREEMENT OF PURCHASE AND SALE
BETWEEN
PLAZA ONE EXCHANGE PLACE LIMITED PARTNERSHIP
HARBORSIDE EXCHANGE PLACE LIMITED PARTNERSHIP
PLAZA II AND III URBAN RENEWAL ASSOCIATES L.P.
collectively, as Seller,
and
CALI REALTY CORPORATION,
as Purchaser
Dated: September 11, 1996
Location Of Property:
THE HARBORSIDE FINANCIAL CENTER
JERSEY CITY, NEW JERSEY
TABLE OF CONTENTS
ARTICLE I. Sale of Property....................................................
1.1. Sale ...............................................................
1.2. Ground Leases.......................................................
ARTICLE II. Purchase Price.....................................................
2.1. Purchase Price. ...................................................
2.2. Additional and Contingent Consideration.............................
ARTICLE III. Deposit...........................................................
3.1. Deposit ............................................................
3.2. Application of Deposit. ............................................
3.3. Escrow Agent........................................................
ARTICLE IV. Closing, Prorations and Closing Costs..............................
4.1. Closing ............................................................
4.2. Prorations..........................................................
4.3. Closing Costs.......................................................
ARTICLE V. Purchaser's Right of Inspection; Feasibility Period.................
5.1. Right to Evaluate...................................................
5.2. Independent Examination.............................................
5.3. Termination Right...................................................
5.4. Copies of Reports...................................................
ARTICLE VI. Title and Survey Matters...........................................
6.1. Title ..............................................................
6.2. Seller's Inability to Convey Title..................................
6.3. Survey .............................................................
ARTICLE VII. Representations and Warranties of Seller..........................
7.1. Seller's Representations............................................
7.2. Change in Representation/Waiver.....................................
7.3. Survival ...........................................................
7.4. Limitation of Liability.............................................
ARTICLE VIII. Representations and Warranties of Purchaser.......................
8.1. Authority...........................................................
8.2. Bankruptcy or Debt of Purchaser.....................................
8.3. No Financing Contingency............................................
8.4. ERISA Compliance....................................................
8.5. Purchaser's Acknowledgment..........................................
8.6. Survival ...........................................................
ARTICLE IX. Seller's Interim Operating Covenants...............................
9.1. Operations.........................................................
9.2. Maintain Insurance.................................................
9.3. Personal Property..................................................
9.4. No Sales...........................................................
9.5. Tenant Leases......................................................
9.6. Intentionally Deleted..............................................
9.7. Intentionally Deleted..............................................
9.8. Tenant Estoppels...................................................
9.9. Contracts..........................................................
9.10. Light Rail Line....................................................
9.11. Litigation.........................................................
9.12. Notices of Violation...............................................
9.13. Reciprocal Operating Agreement.....................................
ARTICLE X. Closing Conditions..................................................
10.1. Conditions to Obligations of Seller................................
10.2. Conditions to Obligations of Purchaser.............................
ARTICLE XI. Closing............................................................
11.1. Seller's Closing Obligations.......................................
11.2. Purchaser's Closing Obligations....................................
ARTICLE XII. Risk of Loss......................................................
12.1. Condemnation and Casualty..........................................
12.2. Condemnation not Material..........................................
12.3. Casualty not Material..............................................
12.4. Materiality........................................................
ARTICLE XIII. Default..........................................................
13.1. Default by Seller..................................................
13.2. Default by Purchaser. ............................................
ARTICLE XIV. Brokers...........................................................
14.1. Brokerage Indemnity.................................................
ARTICLE XV. Confidentiality....................................................
15.1. Confidentiality....................................................
15.2. Publication........................................................
ARTICLE XVI. Miscellaneous.....................................................
16.1. Notices.........................................................
16.2. Governing Law...................................................
16.3. Headings........................................................
16.4. Business Days...................................................
16.5. Counterpart Copies..............................................
16.6. Binding Effect..................................................
16.7. Assignment......................................................
16.8. Interpretation..................................................
16.9. Entire Agreement................................................
16.10. Severability....................................................
16.11. Survival........................................................
16.12. Exhibits........................................................
16.13. Limitation of Liability.........................................
16.14. Prevailing Party................................................
16.15. Escrow Agreement................................................
16.16. No Recording....................................................
16.17. Waiver of Trial by Jury.........................................
16.18. ISRA Obligations................................................
16.19. Letter of Intent................................................
16.20. Management Agreement............................................
16.21. Collective Bargaining Agreements................................
53.22. Single Purpose Entities ........................................
LIST OF EXHIBITS AND SCHEDULES
Exhibits:
Exhibit A - BT Parcel
Exhibit A-1 - HEP Parcel
Exhibit B - Leases
Exhibit B-1 - Ground Leases
Exhibit C - Form of Assignment and Assumption of Ground Lease (Lessee)
Exhibit D - Form of Purchase Money Note
Exhibit E - Form of Purchase Money Mortgage
Exhibit F - Form of Assignment of Rents and Leases
Exhibit G - Form of Guaranty
Exhibit H - Form of Contingent Consideration Agreement
Exhibit I - Permitted Exceptions
Exhibit J - Rent Roll
Exhibit K - Intentionally Deleted
Exhibit L - Form of Deed
Exhibit M - Form of Assignment and Assumption of Leases and
Security Deposits
Exhibit N - Form of Assignment and Assumption of Ground Leases (Lessor)
Exhibit O - Form of Assignment and Assumption of Contracts
Exhibit P - Form of Assignment and Assumption of Option Agreement
Exhibit Q - Form of Assignment and Assumption of the Xxx Xxxxx Agreements
Exhibit R - Form of Seller's Letter to Tenants
Exhibit S - Form of Seller's Bring-Down Certificate
Exhibit T - Form of Xxxx of Sale
Exhibit U - Form of Firpta Affidavit
Exhibit V - Form of Purchaser's Bring-Down Certificate
Exhibit W - Remediation Property
Exhibit X - Underground Storage Tanks
Schedules:
Schedule 1 - Lease Defaults
Schedule 2 - Brokerage Commissions and Tenant Improvement Costs
Schedule 3 - Contracts
Schedule 4 - Tax Appeals
Schedule 5 - Pending Applications
Schedule 6 - Insurance Policies
Schedule 7 - Employees
Schedule 8 - Major Tenants
Schedule 9 - Xxx Xxxxx Agreements
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into as of the 11th day of September, 1996, by and between PLAZA ONE
EXCHANGE PLACE LIMITED PARTNERSHIP (formerly known as BT Exchange Place Limited
Partnership), a New Jersey limited partnership, HARBORSIDE EXCHANGE PLACE
LIMITED PARTNERSHIP ("HEPLP"), a New Jersey limited partnership and PLAZA II AND
III URBAN RENEWAL ASSOCIATES L.P. ("Plaza II and III L.P."), a New Jersey
limited Partnership (hereinafter referred to collectively as "Seller"), and CALI
REALTY CORPORATION, a Maryland corporation (hereinafter referred to as
"Purchaser").
In consideration of the mutual promises, covenants and agreements
hereinafter set forth and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
I. ARTICLE I.
Sale of Property
I.1. Sale. Seller hereby agrees to sell, assign and convey to Purchaser
and Purchaser agrees to purchase from Seller, all of Seller's right, title and
interest in and to, the following:
I.1.1. That certain real property lying and being situated
in the City of Jersey City, County of Xxxxxx, State of New Jersey and being more
particularly described (i) on Exhibit A attached hereto (the "BT Parcel") and
(ii) on Exhibit A-1 attached hereto (the "HEP Parcel") (the BT Parcel and the
HEP Parcel are sometimes hereinafter collectively referred to as the "Land"),
together with any improvements located thereon (the "Improvements"). (The
portions of the HEP Parcel described on Lots 1 - 4 on Exhibit A-1 hereto are
sometimes hereinafter collectively referred to as the "Upland Parcels"; and the
portions of the HEP Parcel described on Lots 7 - 15 on Exhibit A-1 hereto are
sometimes hereinafter collectively referred to as the "Piers");
I.1.2. All of Seller's interest as lessor, or sublessor, as
the case may be, (i) in all leases, subleases, licenses and other occupancy
agreements, together with any and all amendments, modifications or supplements
thereto, as are hereafter referred to collectively as the "Leases" being more
particularly described on Exhibit B attached hereto and (ii) in all ground
leases (the "Ground Leases") being more particularly described on Exhibit B-1
attached hereto, and all prepaid rent attributable to the period following the
Closing (as hereinafter defined), and subject to Section 4.2 below, the security
deposits under such Leases (collectively, the "Leasehold Property");
I.1.3. All of Plaza II and III L.P.'s interest as lessee in
that certain Ground Lease between HEPLP, as ground lessor, and Plaza II and III
L.P., as ground lessee, as more particularly described on Exhibit B-1 hereto;
I.1.4. All rights, privileges, grants and easements
appurtenant to Seller's interest in the Land and the Improvements, if any,
including, without limitation, all of Seller's right, title and interest, if
any, in and to all mineral and water rights and all easements, licenses,
covenants and other rights-of-way or other appurtenances used in connection with
the beneficial use and enjoyment of the Land and the Improvements together with
all right, title, and interest of Seller arising from any riparian grants from
the State of New Jersey with respect to the Land including without limitation
the grant dated September 19, 1986 and recorded September 25, 1986 in Deed Book
3619 page 269 in the Office of the Register of Xxxxxx County and the Xxx Xxxxx
Agreements (as defined on Schedule 9 attached hereto) (the Land, the
Improvements and all such easements, grants and appurtenances are sometimes
collectively referred to herein as the "Real Property");
I.1.5. All personal property (including equipment), if any,
owned by Seller and located on the Real Property as of the date hereof, all
inventory owned by Seller and located on the Real Property on the date of
Closing, and all fixtures (if any) owned by Seller and located on the Real
Property as of the date hereof (the "Personal Property");
I.1.6. All trademarks and tradenames, if any, used or useful
in connection with the Real Property (including, without limitation, all of
Seller's interest, if any, to the use of the name "Harborside Financial
Center"), but only to the extent that the same are not trademarks or tradenames
of Seller or any of Seller's affiliated companies (collectively, the
"Tradenames");
I.1.7. All (i) service contracts, utility, maintenance and
other contracts or agreements, including the Collective Bargaining Agreements
(as defined in Section 16.21 hereof) (collectively, the "Contracts"), currently
in effect with respect to the Property (as hereinafter defined) to which Seller
is a party, (ii) guarantees, licenses, approvals, certificates, permits and
warranties relating to the Property (collectively, the "Permits and Licenses"),
and (iii) telephone numbers in use at the Property allocated to Seller (other
than any telephone numbers, services or plans provided by Seller's long distance
telephone carriers) (the "phone numbers"), all to the extent assignable (the
Contracts, the Permits and Licenses and the phone numbers are sometimes
hereinafter collectively referred to as the "Intangible Property"); and
I.1.8. All other interests, whether tangible or intangible,
held by Seller in connection with the operation of "Harborside Financial
Center", or which benefit any of the interests described in Sections 1.1.1
through 1.1.7 hereof, except as otherwise provided in this Agreement or which
are proprietary to Seller or the Managing Agent (as hereinafter defined).
(The Real Property, the Leasehold Property, the Personal
Property, the Tradenames, the Intangible Property and the foregoing other
property interests held by Seller in connection with the operation of
"Harborside Financial Center" are sometimes collectively hereinafter referred to
as the "Property").
I.2. Ground Leases. North Pier Urban Renewal Associates L.P., South
Pier Urban Renewal Associates L.P., Harborside Urban Renewal Associates L.P.,
Plaza IV Urban Renewal Associates L.P., Plaza V Urban Renewal Associates L.P.,
and Plaza VI Urban Renewal Associates L.P., (each a "Ground Lessee" and,
collectively the "Ground Lessees"), individually, by their execution of this
Agreement, hereby agree and covenant to assign each of their respective
interests in the Ground Leases to such Permitted Assignees (as hereinafter
defined) designated by Purchaser in accordance with the terms of Section 16.7
hereof. As a condition of closing, at the Closing, the Ground Lessees and each
of such Permitted Assignees shall enter into an "Assignment and Assumption of
Ground Lease (Lessee)" in the form of Exhibit C attached hereto with respect to
each of the Ground Leases.
II. ARTICLE II.
Purchase Price
II.1. Purchase Price. The purchase price for the Property shall be Two
Hundred Eighty-Two Million Four Hundred Thousand Dollars ($282,400,000) (the
"Purchase Price"). The Purchase Price, net of all prorations as provided for
herein, shall be paid to Seller by Purchaser at Closing, as follows:
(i) One Hundred and Fifty Million Dollars ($150,000,000) (the
"Financed Portion"), as follows;
(a) An amount equal to the outstanding principal balance
of the Existing Financing (as hereinafter defined),
by Purchaser assuming that certain Mortgage Loan
currently encumbering the Property in the original
principal amount of $130,000,000, made by The
Northwestern Mutual Life Insurance Company
("Northwestern") and Principal Mutual Life Insurance
Company ("Principal"), as lenders (collectively, the
"Existing Lenders"), to Seller (and related parties)
which Mortgage Loan was made on December 5, 1995 (the
"Existing Financing"). Seller covenants and agrees
that, as of the Closing Date, the outstanding
principal amount due under the Existing Financing
shall not exceed $110,000,000; and
(b) The balance of the Financed Portion (the "Purchase
Money Loan"), by Purchaser executing and delivering
to Seller, or its assignee, (i) a fully recourse
purchase money note (the "Purchase Money Note")
substantially in the form of Exhibit D attached
hereto, (ii) a purchase money mortgage, assignment of
rents, security agreement and financing statement to
secure the Purchase Money Note (the "Purchase Money
Mortgage") substantially in the form of Exhibit E
attached hereto, to be recorded against the BT Parcel
at the Closing, (iii) an assignment of rents and
leases (the "Assignment of Rents and Leases") in the
form of Exhibit F attached hereto, to be recorded
against the BT Parcel at the Closing, (iv) if the
Purchase Money Note is executed by any entity other
than the Purchaser named herein, guaranties (the
"Guaranties") to be made by (a) Cali Realty
Corporation and (b) Cali Realty, L.P. guaranteeing
the payment and performance obligations of the maker
under the Purchase Money Loan, in the form of Exhibit
G attached hereto, (v) UCC-1 Financing Statements in
favor of Seller, or its assignee, as creditor (the
"Financing Statements"), and (vi) such other
documents as reasonably required by Seller, or its
assignee, which are consistent with documents
normally required by prudent lenders (the Purchase
Money Note, Purchase Money Mortgage, Assignment of
Rents and Leases, Guaranties, Financing Statements
and documents required pursuant to subsection (vi)
above, collectively, the "Purchase Money Loan
Documents").
(ii) The balance of the Purchase Price (the "Cash Portion"), by
wire transfer of immediately available funds to or as directed
by, Seller on the Closing Date. (Seller shall provide
Purchaser with wiring instructions for the payment of the Cash
Portion no later than two (2) business days prior to the
Closing.)
II.2. Additional and Contingent Consideration. As additional and
contingent consideration (the "Contingent Consideration"), Purchaser agrees,
warrants and covenants to pay Seller, for each square foot of development
commenced, or land sold or ground leased on the Upland Parcels and/or the Piers
by Purchaser, or any of its affiliates, during the thirty (30) year period
following the Closing, on the terms and conditions more particularly set forth
in that certain agreement annexed hereto as Exhibit H (the "Contingent
Consideration Agreement"). At the Closing, and as a condition thereof, Purchaser
and Seller shall execute an agreement substantially in the form of the
Contingent Consideration Agreement, which Contingent Consideration Agreement
shall, as long as same is consented to by the Existing Lenders, be recorded
against the Upland Parcels and the Piers. The Contingent Consideration shall be
payable with respect to the development of up to a maximum of 2,000,000 square
feet on the Upland Parcels and the Piers. The provisions of this Section 2.2
shall survive the Closing.
At the Closing, and as a condition thereof, Purchaser shall deliver to
Seller guaranties to be made by (a) Cali Realty Corporation and (b) Cali Realty,
L.P. guaranteeing the payment and performance obligations of Purchaser's
obligations under the Contingent Consideration Agreement (the "Contingent
Consideration Guaranties"). The Contingent Consideration Guaranties shall be in
form and substance reasonably acceptable to Seller.
Purchaser has advised Seller that Purchaser and its parent company have
substantial development plans and intentions for the development of the Property
and ready access to the capital necessary to effect such development.
III. ARTICLE III.
Deposit
III.1. Deposit. Concurrently with the execution of this Agreement, and
as a condition precedent to the formation of this Agreement, Purchaser shall
deposit with First American Title Insurance Company of New York (the "Escrow
Agent") a Two Million Dollar ($2,000,000) deposit (the "Deposit") in the form of
a sight-draft letter of credit (the "Letter of Credit") made payable to Seller,
the receipt of which is hereby acknowledged by Escrow Agent's execution hereof.
III.2. Application of Deposit. If the Closing occurs as contemplated
hereunder, the Deposit shall be returned to Purchaser. In the event that the
Closing does not occur as contemplated hereunder because Purchaser terminates
this Agreement pursuant to the terms set forth in this Agreement, the Deposit
shall be refunded to Purchaser in accordance with the provisions of Section
16.15 hereof. In the event that the Closing does not occur as contemplated
hereunder because of a default by Purchaser under this Agreement, the Deposit
shall be paid to and retained by Seller in accordance with the provisions of
Section 16.15 hereof.
Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, anything to the contrary contained in Section
16.15 hereof, Escrow Agent shall, on the date which is thirty (30) days prior to
any expiration date of the Letter of Credit, deliver the Letter of Credit to
Seller, unless prior thereto Purchaser shall have caused the issuing bank to
extend the term of the Letter of Credit. Escrow Agent shall deliver the Letter
of Credit to Seller in accordance with the terms of this Paragraph,
notwithstanding any instructions to the contrary from Purchaser. Upon receipt of
the Letter of Credit, Seller shall be entitled to draw upon the Letter of
Credit, and, thereupon, shall immediately re-deposit the proceeds from the
Letter of Credit with the Escrow Agent to be held (or disbursed) by the Escrow
Agent in accordance with the terms of this Agreement.
III.3. Escrow Agent. Escrow Agent is executing this Agreement to
acknowledge Escrow Agent's responsibilities hereunder, which may be modified
only by a written amendment signed by all of the parties. Any amendment to this
Agreement that is not signed by Escrow Agent shall be effective as to the
parties thereto, but shall not be binding on Escrow Agent. Escrow Agent shall
accept the Deposit with the understanding of the parties that Escrow Agent is
not a party to this Agreement except to the extent of its specific
responsibilities hereunder, and does not assume or have any liability for the
performance or non-performance of Purchaser or Seller hereunder to either of
them. Additional provisions with respect to the Escrow Agent are set forth in
Article XVI.
IV. ARTICLE IV.
Closing, Prorations and Closing Costs
IV.1. Closing. The closing of the purchase and sale of the Property
(the "Closing") shall be held at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx or before 10:00 a.m. local time
on the date which is thirty (30) days after the date on which the Waiver Notice
(as hereinafter defined) is delivered. The date of Closing is referred to in
this Agreement as the "Closing Date". Either or both parties hereto shall have a
one time right to extend the Closing Date for a period of up to ten business
days upon notice to the other party of such election, and thereafter, time shall
be of the essence with respect to the obligations of the parties hereto.
Notwithstanding anything to the contrary contained above, Purchaser shall have
the right to accelerate the Closing Date to a date selected by Purchaser,
provided Seller shall have received not less than ten (10) days prior written
notice. Either party shall have the right to adjourn the Closing for ten (10)
days from the scheduled Closing Date or the accelerated Closing Date, as the
case may be, before time shall be of the essence.
IV.2. Prorations. All matters involving prorations or adjustments to be
made in connection with Closing and not specifically provided for in some other
provision of this Agreement shall be adjusted in accordance with this Section
4.2. Except as otherwise set forth herein, all items to be prorated pursuant to
this Section 4.2 shall be prorated as of midnight of the day immediately
preceding the Closing Date (except that if the Purchase Price is not disbursed
to or for the benefit of Seller on or before 3:00 p.m. eastern time on the
Closing Date, such adjustments shall be made as of the date of such disbursement
of the Purchase Price), with Purchaser to be treated as the owner of the
Property, for purposes of prorations of income and expenses, on and after the
Closing Date.
Except as otherwise set forth herein, all prorations shall be done in
accordance with the customs with respect to title closings recommended by The
Real Estate Board of New York, Inc.
The following items shall be prorated:
IV.2.1. Real Estate and Property Taxes. Real estate and
personal property taxes and special assessments, if any. Seller shall pay all
real estate and personal property taxes and special assessments attributable to
the Property to, but not including, the Closing Date. If the real estate and/or
personal property tax rate and assessments have not been set for the year in
which the Closing occurs, then the proration of such taxes shall be based upon
the rate and assessments for the preceding tax year and such proration shall be
adjusted in cash between Seller and Purchaser upon presentation of written
evidence that the actual taxes paid for the year in which the Closing occurs
differ from the amounts used in the Closing in accordance with the provisions of
Article 4.2.14 hereof.
IV.2.2. Interest. Interest on the Existing Financing.
IV.2.3. Insurance Premiums. There shall be no proration of
Seller's insurance premiums or assignment of Seller's insurance policies with
respect to the Property and Seller shall cancel all of its existing policies as
of the Closing Date. Purchaser shall be obligated to obtain replacement
insurance policies with respect to the Property in accordance with the terms of
the Purchase Money Mortgage.
IV.2.4. Utilities and Services. Purchaser and Seller hereby
acknowledge and agree that the amounts of all telephone, electric, sewer, water
and other utility bills, trash removal bills, janitorial and maintenance service
bills and all other operating and administrative expenses relating to the
Property and allocable to the period prior to the Closing Date shall be
determined and paid by Seller before Closing, if possible, or shall be paid
thereafter by Seller or adjusted between Purchaser and Seller immediately after
the same have been determined. Seller shall attempt to have all base building
meters read as of the Closing Date. Purchaser shall cause all utility services
to be placed in Purchaser's name as of the Closing Date.
IV.2.5. Rental. Base or fixed rents and Additional Rent (as
hereinafter defined), including any prepaid rent. If on the Closing Date any
tenant under the Leases is in arrears in the payment of rent, rents received
from such tenant after the Closing shall be applied in the following order of
priority: (i) first to be apportioned between Purchaser and Seller for the month
in which the Closing occurred, (ii) then to Purchaser for any month or months
following the month in which the Closing occurred, and (iii) then to Seller for
the period prior to the month in which the Closing occurred. If rents or any
portion thereof received by Seller or Purchaser after the Closing are payable to
the other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses of
collection thereof, shall be promptly paid to the other party. Seller shall have
the right, after Closing, to proceed against tenants for delinquent rents
allocable to the period of Seller's ownership of the Property; provided,
however, in no event may Seller seek to evict any tenant or terminate any Lease
or pursue any collateral serving as security for any Lease (including equipment,
fixtures and furniture). Purchaser agrees that it shall use commercially
reasonable efforts to collect any such delinquent rents. Any unapplied security
deposits under the Leases shall be credited against the Cash Portion of the
Purchase Price at Closing. There shall be no proration of rents (including,
without limitation, base, fixed or Additional Rent) between Seller and Purchaser
with respect to the Ground Leases.
IV.2.6. Additional Rent. If any tenants under a Lease are
required to pay percentage rents, escalation charges for real estate taxes,
parking charges, operating expense and maintenance escalation rents or charges,
xxxxxx'x wage increases, cost-of-living increases, "sundry charges" or other
charges of a similar nature ("Additional Rents"), and any Additional Rents are
collected by Purchaser after the Closing Date which are attributable in whole or
in part to any period prior to the Closing, then Purchaser shall promptly pay to
Seller its proportionate share thereof, less a proportionate share of any
reasonable attorneys' fees and costs and expenses of collection thereof. With
respect to any Additional Rents paid or payable by tenants under any Leases for
any period ending prior to the Closing which are to be adjusted between the
landlord and the tenant thereunder after the Closing (i) the Seller agrees, with
respect to such adjustments which are in favor of any such tenant, to reimburse
Purchaser, on demand, for the amount of such adjustments which the landlord
under such Lease is obligated to pay or credit to such tenant and (ii) the
Purchaser agrees, with respect to such adjustments which are in favor of
landlord, to pay to Seller, on demand, the amount of such adjustments which the
tenant under any such Lease pays to Purchaser. No adjustment which results in
the compromising of any claim shall be made without Seller's prior approval. The
calculation of the proration of Additional Rents hereunder shall be computed on
a straight-line basis for the calendar year in which the Closing occurs.
IV.2.7. Security Deposits. Tenants' security deposits held by
Seller (to the extent not applied by Seller pursuant to any Lease and this
Agreement) shall be turned over by Seller to Purchaser at the Closing by, in the
case of cash security deposits, crediting such amount to Purchaser pursuant to
Section 4.2.5 hereof and, in the case of any letters of credit, by the delivery
thereof by Seller to Purchaser in accordance with Section 11.1.9 hereof. At
Closing, Purchaser shall deliver to Seller a receipt for any security deposit so
turned over by Seller to Purchaser and Purchaser shall indemnify Seller with
respect thereto pursuant to, and in accordance with, the Assignment and
Assumption of Leases (as hereinafter defined). In the case of any security
deposits held by Seller in the form of letters of credit, such letters of
credit, to the extent permitted by the terms thereof, shall be assigned to
Purchaser at the Closing and Purchaser shall indemnify Seller with respect
thereto pursuant to, and in accordance with, the Assignment and Assumption of
Leases. At Closing, with respect to such letters of credit which by their terms
are assignable, Seller shall deliver any consents required by the issuing
bank(s) to the assignment of such letters of credit. Any fees imposed by such
issuing banks in connection with such assignments shall be paid 50% by Seller
and 50% by Purchaser at the Closing. In the case of any such letters of credit
which by their terms are not assignable, Seller shall use reasonable efforts to
cause the applicable tenant(s) to replace such letters of credit with ones which
are assignable to Purchaser, however, as to any such letters of credit which are
not replaced, then for the period from and after Closing, Seller shall hold such
nonassignable letters of credit in escrow for the benefit of Purchaser and, upon
written request by Purchaser, shall draw down on any such letter of credit and
simultaneously therewith, shall deliver the proceeds of such draw down to
Purchaser. Purchaser shall indemnify Seller with respect to any judgments,
suits, claims, demands, liabilities and obligations and related costs and
expenses (including reasonable attorneys' fees) arising out of Seller's draw
down and delivery of the proceeds of such letters of credit as directed by
Purchaser. Seller shall indemnify Purchaser (i) with respect to the failure of
Seller to turn over to Purchaser any cash security deposit or assignable letter
of credit security deposit of a tenant of the Real Property, or the failure to
hold any nonassignable letter of credit security deposit in escrow as set forth
above, but only in either case to the extent such security deposit (whether cash
or letter of credit) was not properly applied by Seller pursuant to any Lease,
and (ii) with respect to any judgments, suits, claims, demands, liabilities and
related costs and expenses (including reasonable attorneys' fees) arising out of
any act of Seller, as landlord, in connection with the security deposits and
related to the period prior to the Closing. The indemnities contained in this
Section 4.2.7 and in the Assignment and Assumption of Leases shall survive the
Closing.
IV.2.8. Brokerage Commissions/Tenant Improvements. (i) Seller
shall be responsible for all leasing and brokerage commissions (including the
brokerage commission set forth on Schedule 2 hereto with respect to the Lease
with Lewco Securities, if and when the same becomes due and payable), tenant
improvement costs and expenses and tenant "buy-out" or lease surrender costs
with respect to the Leases, other than (a) any such costs which are attributable
to the exercise of a lease renewal or expansion after May 1, 1996, (b) move-in
allowances in the amount of $290,000 with respect to the Lease with American
Institute of Certified Public Accountants, (c) tenant buy-out costs in the
amount of $16,750 per month through June, 1999 with respect to the Lease with
Crown Sample Card Company and (d) all tenant improvement costs and related
reimbursements in connection with the paving of certain parking lots and the
installation of revenue control equipment pursuant to the terms of Exhibit E of
the Lease between Seller and Xxxxxx Hackensack, Inc. Any such brokerage
commissions or tenant improvement costs and expenses payable by Seller pursuant
to this Section 4.2.8 shall be payable by Seller only when such commissions,
costs and expenses become due and payable pursuant to the terms of the
respective brokerage agreements or Leases.
(ii) Purchaser shall be responsible for (y) all leasing and brokerage
commissions, tenant improvement costs and expenses and tenant "buy-out" or lease
surrender costs with respect to all leases executed in accordance with the terms
of this Agreement after the date hereof, and with respect to any and all
renewals, expansions and/or extensions of Leases exercised after May 1, 1996,
and (z) the items listed in (a), (b) and (c) in subsection (i) above.
(iii) Upon the execution of any leases prior to the fifth (5th)
anniversary of the Closing demising up to 62,520 square feet of space at the
Property which is vacant at the Closing (which vacant space shall be deemed to
include the space demised under the Jefferson Lease and the Additional Space
Lease (as said terms are hereinafter defined)), Seller shall pay (a) the actual
cost of tenant improvements to be made and/or credited on account of any such
lease; provided, however, that in no event shall Seller's obligation hereunder
be in excess of Thirty Dollars ($30.00) a square foot for tenant improvement
costs for any such lease, and (b) a full standard (and override, if applicable)
New Jersey brokerage commission due and payable with respect to such lease;
provided, however, that Seller shall only be responsible for paying any such
brokerage commission for the period from the execution of such lease, and
expiring on the ten (10) year anniversary of the Closing. In the event of
Seller's failure to make any payment required pursuant to the terms of this
subsection within five (5) business days of written notice thereof, Purchaser
shall have the right to off-set the amount of the payment stipulated in
Purchaser's notice on a dollar-for-dollar basis against the next due payment of
interest or principal to be made by Purchaser under the Purchase Money Loan.
(iv) Seller's obligations with respect to this Section 4.2.8 shall be
without regard to the limitation of Seller's liability set forth in Section 7.4
hereof.
IV.2.9. Employees. Salaries, wages, accrued vacation days and
any other fringe benefits (including, social security, unemployment
compensation, employee disability insurance, accrued sick days, "welfare" and
pension fund contributions, payments and deposits, if any) of those persons
employed by Seller or Institutional Realty Management, LLC (the "Managing
Agent") at the Property, who are listed on Schedule 7 attached hereto (as such
Schedule may be revised to reflect the addition or withdrawal of employees in
connection with the normal operation of the Property).
IV.2.10. Fuel. The value of fuel stored on the Property by
Seller, if any, at Seller's most recent cost, including any taxes, on the basis
of a reading made within ten (10) days prior to the Closing by Seller's
supplier.
IV.2.11. Contracts. Charges and payments under transferable
Contracts or permitted renewals or replacements thereof.
IV.2.12. Permit Fees. Annual municipal permit and inspection
fees.
IV.2.13. Taxes. Seller shall pay all real estate, personal
property and "excess profit" taxes, special assessments and payroll related
taxes (including any interest or penalties thereon) due and payable for the
period prior to the Closing with respect to the Property. Seller hereby agrees
and covenants that it shall file all tax returns and reports required to be
filed prior to the Closing with respect to the Property, and shall reasonably
cooperate with Purchaser in the filing of tax reports or returns which are to be
filed by Purchaser with respect to the Property for the fiscal year in which the
Closing occurs. Seller's obligations with respect to this Section 4.2.13 shall
be without regard to the limitation of Seller's liability set forth in Section
7.4 hereof.
IV.2.14. Method of Calculation. For purposes of calculating
prorations, Purchaser shall be deemed to be in title to the Property, and,
therefore, entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs. All such prorations
shall be made on the basis of the actual number of days of the month which shall
have elapsed as of the day of the Closing and based upon the actual number of
days in the month and a three hundred sixty five (365) day year. The amount of
such prorations shall be initially performed at Closing but shall be subject to
adjustment in cash after the Closing as and when complete and accurate
information becomes available, if such information is not available at the
Closing. Seller and Purchaser agree to cooperate and use their best efforts to
make such adjustments sixty (60) days after the Closing. Except as set forth in
this Section 4.2, all items of income and expense which accrue for the period
prior to the Closing will be for the account of Seller and all items of income
and expense which accrue for the period on and after the Closing will be for the
account of Purchaser.
IV.2.15. Survival. The provisions of this Section 4.2 shall
survive the Closing.
IV.3. Closing Costs. All transfer taxes and expenses on the
deed and any state or county documentary stamps or transfer taxes on the deed
shall be paid by Seller. Seller shall pay all customary recordation charges,
clerk's fees, taxes, transfer, and recording charges and one-half (1/2) of any
fees charged by the Escrow Agent. Purchaser shall pay all title insurance
premiums, title examination fees, survey costs and one-half (1/2) of any fees
charged by the Escrow Agent. Each party shall be responsible for its own
attorney's fees.
V. ARTICLE V.
Purchaser's Right of Inspection; Feasibility Period
V.1. Right to Evaluate. For a period ending at 10:00 p.m. local time on
the date which is twenty (20) days following the delivery by Seller to Purchaser
of either the ROEA Waiver Notice (as hereinafter defined) or a copy of the
Existing Lender's Consent (as hereinafter defined) (the "Feasibility Period"),
Purchaser shall have the right, at its sole cost and expense, to review all
property matters, including existing contracts, leases, engineering and
environmental reports, development approval agreements, and any other
information which Purchaser deems reasonably necessary in order to prudently
consummate the transactions contemplated by this Agreement and to meet with the
Seller, the Managing Agent and their representatives regarding the Property (the
"Due Diligence Review"). It is understood that Purchaser shall have unlimited
reasonable access to the Property and all records and other information
pertaining thereto in the possession or within the control of Seller and its
Managing Agent for the purpose of conducting its investigations. The conduct of
Purchaser's Due Diligence Review shall be governed by the terms and provisions
contained in that certain letter agreement dated July 24, 1996, between Xxxxx
Xxxx Xxxxxxx Realty Advisors and Purchaser (the "Access Agreement").
V.2. Independent Examination. Purchaser hereby acknowledges that it has
been, or will have been given, prior to the termination of the Feasibility
Period, a full, complete and adequate opportunity to make such legal, factual
and other determinations, analyses, inquiries and investigations as Purchaser
deems necessary or appropriate in connection with the acquisition of the
Property. Purchaser is relying upon its own independent examination of the
Property and all matters relating thereto and not upon any statements of Seller
(excluding the matters represented by Seller in this Agreement) or of any
officer, director, employee, agent or attorney of Seller with respect to
acquiring the Property. Seller shall not be deemed to have represented or
warranted the completeness or accuracy of any studies, investigations and
reports heretofore or hereafter furnished to Purchaser, except as specifically
set forth in this Agreement. The provisions of this Section 5.2 shall survive
the Closing and/or termination of this Agreement.
V.3. Termination Right. In the event that Purchaser determines that it
does not desire to acquire the Property, Purchaser shall have the right,
exercisable by written notice (the "Termination Notice") to Seller delivered at
any time prior to the expiration of the Feasibility Period to terminate this
Agreement. (For purposes of this Section 5.3, the delivery by Purchaser (or its
counsel) of the Termination Notice solely to Seller's counsel identified in
Section 16.1 hereof shall be deemed to satisfy the notice requirements set forth
in said Section 16.1 with respect to the delivery of such notice to Seller.) In
addition, this Agreement shall terminate, unless on or before the expiration of
the Feasibility Period, Purchaser shall deliver a written notice (the "Waiver
Notice") to Seller waiving Purchaser's right to terminate this Agreement
pursuant to this Section 5.3. Upon the delivery of a Termination Notice, or the
failure of Purchaser to deliver a Waiver Notice prior to the end of the
Feasibility Period, this Agreement shall terminate, the Deposit shall be
returned to Purchaser and neither party hereto shall have any further rights or
obligations pursuant hereto, subject to the Surviving Termination Obligations
(as defined in Section 16.11 hereof. If Purchaser delivers the Waiver Notice,
the termination right described in this Section 5.3 shall be immediately null
and void and of no further force or effect.
V.4. Copies of Reports. As additional consideration for the transaction
contemplated herein, if Purchaser terminates this Agreement, Purchaser agrees
that it will provide to Seller, within five (5) days following a written request
therefore, copies of any and all third-party reports, tests or studies relating
to the Property, including but not limited to those involving environmental
matters; provided, however, Purchaser shall not be required to deliver any such
reports, tests or studies which by their terms are privileged. The provisions of
this Section 5.4 shall survive the termination of this Agreement.
VI. ARTICLE VI.
Title and Survey Matters
VI.1. Title.
VI.1.1. Commitment. Purchaser and Seller have received a title
insurance search and commitment for an owner's title insurance policy (the
"Title Commitment") from First American Title Insurance Company of New York (the
"Title Company"), setting forth the status of title to the Property and any
defects in or objections or exceptions to the title, together with true and
correct copies of all instruments giving rise to such defects, objections or
exceptions. Purchaser shall forward a copy of any updates of such commitment to
the Seller's attorneys promptly upon receipt. Within ten (10) days after the
delivery of any title updates from the Title Company, Purchaser shall notify
Seller's attorney of any defects, objections or exceptions in the title to the
Property appearing in such report which Purchaser is not required to accept
under the terms of this Agreement.
VI.1.2. Elimination of Liens. If any defects, objections or
exceptions in the title to the Property appear in such commitment (other than
the Permitted Exceptions) which Purchaser is not required to accept under the
terms of this Agreement, the Seller may, at its election, undertake to eliminate
such unacceptable defects, objections or exceptions, it being agreed that Seller
shall have no obligation to incur any expense in connection with curing such
defects, objections or exceptions, other than (1) judgments against Seller, or
(2) mortgages or other liens which can be satisfied by payment of a liquidated
amount; provided, however, except as hereinafter set forth, Seller's obligation
to cure such judgments or liens shall be limited to an amount not to exceed
$1,000,000. Seller, in its discretion, may adjourn the Closing for up to sixty
(60) days in order to eliminate unacceptable defects, objections or exceptions.
If Seller is unable to eliminate all unacceptable defects, objections or
exceptions in accordance with the terms of this Agreement on or before such
adjourned date for the Closing, Purchaser shall elect either to (i) terminate
this Agreement by notice given to the Seller, in which event the provisions of
Section 6.2 shall apply, or (ii) accept title subject to such unacceptable
defects, objections or exceptions and receive no credit against or reduction of
the Purchase Price. Except as may be required in connection with the Light Rail
Line (as hereinafter defined), Seller hereby agrees and covenants that it shall
not voluntarily place any defects, objections or exceptions on title to the
Property from and after the date of issuance of the Title Commitment.
VI.1.3. At the Closing, Seller shall satisfy and obtain the
release of (i) the Property from that certain Second Mortgage Loan currently
encumbering the Property in the original principal amount of $75,000,000 made by
Boston Safe and Deposit Company, as Trustee of the U S West Pension Trust ("U S
West"), to Seller (and related parties) which Second Mortgage Loan was made on
December 5, 1995 (the "Second Mortgage Loan") and (ii) the BT Parcel from the
lien of the Existing Financing, which release shall include the satisfaction of
(x) that certain Promissory Note dated as of December 5, 1995, in the amount of
$10,000,000, from the Seller (and related parties) to Northwestern and (y) that
certain Promissory Note dated as of December 5, 1995, in the amount of
$10,000,000, from Seller (and related parties) to Principal, which notes were
delivered in connection with the Existing Financing. At the Closing, Seller
shall (i) cause the holder of the Second Mortgage Loan to deliver a release of
mortgage and related financing documents, in recordable form and on such
holder's standard form of release, releasing the Property from the lien of the
Second Mortgage Loan and (ii) cause the Existing Lenders to deliver a partial
release of mortgage and related financing documents, in recordable form and on
such holder's standard form of release, releasing the BT Parcel from the lien of
the Existing Financing. Any fees, prepayment penalties or mandatory prepayment
amounts (collectively, the "fees") which are set forth in the Existing Loan
Documents or the Second Mortgage and which are imposed by either the Existing
Lenders or U S West in connection with the delivery of the releases described
above shall by payable by Seller. Seller hereby agrees to pay any such fees at
or prior to the Closing. Notwithstanding anything to the contrary contained
herein, Seller shall pay any and all costs, expenses, fees and/or prepayment
amounts imposed by U S West with respect to the release of the Second Mortgage.
VI.1.4. Any unpaid taxes, water charges, sewer rents and
assessments, together with the interest and penalties thereon to a date not less
than ten (10) business days following the Closing Date (in each case subject to
any applicable apportionment), and any mortgages or other liens created by
Seller which can be satisfied by payment of a liquidated amount and judgments
against Seller, which the Seller is obligated to pay and discharge pursuant to
the terms of this Agreement, together with the cost of recording or filing any
instruments necessary to discharge such liens and such judgments, may be paid
out of the proceeds of the Cash Portion of the Purchase Price payable at the
Closing to Seller against which such matter exists. Seller hereby agrees to
deliver to Purchaser, on the Closing Date, instruments in recordable form
sufficient to discharge any such mortgages or other liens which can be satisfied
by payment of a liquidated amount and judgments, which Seller is obligated to
pay and discharge pursuant to the terms of this Agreement. Upon request of
Seller, delivered to Purchaser no later than two (2) business days prior to the
Closing, Purchaser shall provide at the Closing separate certified checks, or
bank checks for the foregoing payable to the order of the holder of any such
lien, charge, or judgment, or a wire transfer of federal funds as Seller shall
direct, in an aggregate amount not to exceed the Cash Portion of the Purchase
Price payable to Seller, as adjusted for apportionments required under this
Agreement, payable at the Closing.
VI.1.5. Affidavits. If the Commitment discloses judgments,
bankruptcies or other returns against other persons having names the same as or
similar to that of Seller, Seller, on request, shall deliver to the Title
Company affidavits showing that such judgments, bankruptcies or other returns
are not against Seller, or any affiliates. Upon request by Purchaser, Seller
shall deliver any affidavits and documentary evidence as are reasonably required
by the Title Company to eliminate the standard or general exceptions on the ALTA
form Owner's Policy.
VI.1.6. Permitted Exceptions. Seller shall convey and
Purchaser shall accept fee simple title to the Real Property subject only to (a)
those matters set forth on Exhibit I attached hereto and (b) all matters shown
on that certain survey (the "Survey") dated as of August 21, 1996, prepared by
Xxxx Xxxxxxxxx Associates, Inc. (collectively, the "Permitted Exceptions").
VI.2. Seller's Inability to Convey Title. If Seller is unable to convey
title in accordance with the terms of this Agreement. Purchaser elects to
terminate this Agreement, the Deposit shall be returned to Purchaser, and this
Agreement shall terminate and neither party to this Agreement shall have any
further rights or obligations hereunder other than the Surviving Termination
Obligations.
VI.3. Survey. Purchaser and Seller have received a copy of the Survey.
Purchaser shall furnish a copy of any updates of the Survey to Seller's
attorneys and the Title Company promptly upon receipt of the same. Within ten
(10) days after the delivery of any updates of the Survey to Purchaser,
Purchaser shall notify Seller's attorney of any defects, objections or
exceptions in the title to the Property appearing in such update to the Survey
which Purchaser is not required to accept under the terms of this Agreement.
Seller may, on or before the Closing Date, have any such unacceptable matters
removed by the surveyor and cause the surveyor to recertify the Survey to
Purchaser, and such other parties designated by Purchaser; provided, however, in
no event will Seller be obligated to incur costs to do so. In the event Seller
elects not to remove such unacceptable matter, Purchaser then shall elect, by
giving written notice to Seller within five (5) days thereafter, (x) to
terminate this Agreement, in which event the provisions of Section 6.2 shall
apply, or (y) to waive its disapproval of such exceptions, in which case such
exceptions shall then be deemed to be Permitted Exceptions.
VII. ARTICLE VII.
Representations and Warranties of Seller
VII.1. Seller's Representations. Seller represents and warrants that
the following matters are true and correct as of the date hereof with respect to
the Property:
VII.1.1. Authority. Each entity constituting Seller is a
limited partnership, duly organized, validly existing and in good standing under
the laws of the State of New Jersey. This Agreement has been duly authorized,
executed and delivered by each entity constituting Seller, is the legal, valid
and binding obligation of each Seller, and does not violate any provision of any
agreement or judicial order to which each Seller is a party or to which each
such Seller is subject. All documents to be executed by Seller which are to be
delivered at Closing, at the time of Closing will be duly authorized, executed
and delivered by Seller, at the time of Closing will be legal, valid and binding
obligations of each Seller, and at the time of Closing will not violate any
provision of any agreement or judicial order to which such Seller is a party or
to which such Seller is subject.
VII.1.2. Bankruptcy or Debt of Seller. Seller represents and
warrants to Purchaser that none of the entities constituting Seller has made a
general assignment for the benefit of creditors, filed any voluntary petition in
bankruptcy or suffered the filing of an 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 it creditors generally.
VII.1.3. Environmental Reports and Laws. (i) Seller has
received no written notice from any governmental authority that the Property is
in violation of any federal, state and local laws, ordinances, rules and
regulations applicable to the Property relating to hazardous waste, chemical
substances or mixtures or hazardous, toxic, dangerous or unhealthy substances or
conditions (collectively, "Hazardous Substances"), whether such law is; (x)
criminal or civil, (y) federal, state or local, or (z) statutory or
administrative regulation (collectively, "Environmental Laws"), which violation
has not been corrected.
(ii) Seller has delivered to Purchaser a true and
complete copy of that certain report dated October 12, 1995 prepared by
McLaren/Xxxx, entitled Phase I Environmental Assessment.
VII.1.4. CERCLA. No ss. 104(e) informational request has been
received by Seller with respect to the Property issued pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss. 1251 et seq.
VII.1.5. Environmental Rights Act. Seller has not received a
written notice of intention from any governmental authority concerning the
Property to commence suit pursuant to the New Jersey Environmental Rights Act,
N.J.S.A. 2A:35A-1 et seq.
VII.1.6. No Underground Storage Tanks. To the best of Seller's
knowledge, except as set forth on Exhibit X attached hereto, there are no
underground storage tanks at the Property.
VII.1.7. Sanitary Landfill Facility. The Property has not been
used by Seller as a sanitary landfill facility as defined in the Solid Waste
Management Act, N.J.S.A. 13:1E-1 et seq.
VII.1.8. Wetlands. Seller has no knowledge that any part of
the Real Property has been designated as wetlands under any federal, state or
local law or regulation or by any governmental agency. Except as shown on the
survey of the Real Property prepared by Xxxx Xxxxxxxxx Associates, Inc. and
delivered to Purchaser pursuant to Section 5.2 hereof, the Real Property is not
located in a flood plain.
VII.1.9. Utilities. The Real Property is served by public
water and sewage systems, gas and electricity. Seller has not received any
written notice from any utility of its inability to provide the service
necessary for the current uses of the Improvements or for general office
purposes; all installations currently in place connecting the Improvements to
the utility lines serving the Real Property are fully paid for.
VII.1.10. Foreign Person. Seller is not a foreign person
within the meaning of Section 1445(f) of the Internal Revenue Code, and Seller
agrees to execute any and all documents necessary or required by the Internal
Revenue Service or Purchaser in connection with such declaration(s).
VII.1.11. Leases. (i) Seller has delivered to Purchaser true
and correct copies of the Leases and the Ground Leases. Exhibit B attached
hereto contains a description of all Leases and tenancies and all amendments or
extensions thereto, and Exhibit B-1 attached hereto contains a description of
all Ground Leases and all amendments thereto, affecting the Property as of the
date of this Agreement. Except as set forth on Exhibit B and Exhibit B-1, there
are no leases, ground leases, licenses or other occupancy agreements affecting
the Property to which Seller is a party or bound.
(ii) Seller has not received notice of a default under any of
the Leases. Except as set forth on Schedule 1 attached hereto, Seller has not
sent any notices of default (which remain outstanding) to any tenant under any
Lease.
(iii) Except with respect to the Leases with Thomson
Information Systems and Dow Xxxxx/Telerate, all work, alterations, improvements
or installations required to be made by Seller under the Leases have been
completed and, except as contained in the Leases, there is no agreement with any
tenant for the performance of any work to be done in the future. Seller shall be
responsible for all costs and expenses associated with the completion of the
work required to be performed by Seller pursuant to the terms of the Dow
Xxxxx/Telerate and Thomson Information Systems Leases. All bills and claims for
labor performed and materials furnished to or for the benefit of the
Improvements which are the responsibility of Seller will be paid in full on or
before the Closing Date. Seller's obligations with respect to this Section
7.1.11(iii) shall survive the Closing and shall be without regard to the
limitation of Seller's liability set forth in Section 7.4 hereof.
(iv) Except as set forth on Schedule 2 attached hereto, there
are no brokerage commissions or tenant improvement costs and expenses affecting
the Improvements currently due or payable with respect to the Leases.
VII.1.12. Contracts. Seller has delivered to Purchaser true
and complete copies of the Contracts. There are no Contracts other than those
listed on Schedule 3 to which the Property is subject and which would remain in
effect after the Closing Date. Except as set forth on Schedule 3, all Contracts
may be terminated on thirty (30) days or less notice without penalty.
VII.1.13. Condemnation. Seller has not received any written
notice of any existing, pending or contemplated condemnation, eminent domain,
environmental or similar proceeding with respect to the Real Property, or any
portion thereof.
VII.1.14. Tax Bills/Assessments. Seller has delivered true and
complete copies of all tax bills for the current tax year with respect to the
Property received to date by Seller. Seller does not currently pay any special
assessments with respect to the Property on an installment basis. Seller has
received no written notices of (i) any tax increase (other than shown on the tax
bills) or special assessment with respect to the Property, or (ii) except in
connection with the Light Rail Line, any proposed change(s) in any road or
grades with respect to the roads providing a means of ingress and egress to the
Improvements.
VII.1.15. Tax Appeal Proceedings. Except as set forth on
Schedule 4 attached hereto, Seller has not filed, and has not retained anyone to
file, notices of protest against, or to commence actions to review, real
property tax assessments against the Real Property. Purchaser hereby agrees and
acknowledges that Seller shall have the right, after the Closing, to continue to
prosecute any tax appeals or tax abatement proceedings with respect to the
Property commenced by Seller prior to the Closing Date. If any such tax appeals
of tax abatement proceedings result in tax refunds or rebates from the
applicable taxing authorities then, after deduction for Seller's reasonable
costs and expenses (including reasonable attorneys' fees) incurred in connection
with such tax appeal or abatement proceedings (i) Seller shall be entitled to
receive any such refund or rebate with respect to the period prior to the
Closing and (ii) Purchaser shall be entitled to receive any such refund or
rebate with respect to the period from and after the Closing. The party which
actually receives such tax refunds or rebates from the taxing authorities shall
promptly notify the other party thereof and pay to such party the amounts due to
such party pursuant to the terms hereof. The terms and provisions of this
Section 7.1.15 shall survive the Closing.
VII.1.16. Tax Matters. Seller has or will have paid all real
estate, personal property and "excess profit" taxes, special assessments and
payroll related taxes (including any interest and penalties thereon) due and
payable for the period prior to the Closing and filed or will have filed all tax
returns and reports required to be filed prior to the Closing with respect to
the Property. There are no tax audits or other tax proceedings by any
governmental body pending or, to the actual knowledge of Seller, threatened,
with respect to the Property.
VII.1.17. Permits and Licenses. Seller has delivered to
Purchaser true and complete copies of the Permits and Licenses (to the extent
such are in Seller's possession). Seller has received no written notice (other
than written notices that have been subsequently rescinded) that any of the
Permits and Licenses are not in full force and effect or that there is a
violation of such Permits and Licenses. No formal application by Seller
(excluding those which may relate to tenant work) for any consent,
authorization, variance, waiver, approval, license or permit with respect to the
Real Property has been denied or withdrawn during the twelve (12) month period
preceding the date hereof nor is any application pending except as set forth on
Schedule 5 attached hereto. Seller will pay all fees which are due in connection
with the Permits and Licenses for the period prior to the Closing. No such fees
are being paid on an installment basis.
VII.1.18. Insurance Policies. Schedule 6 annexed hereto and
made a part hereof is a true, correct and complete schedule of all insurance
policies maintained by Seller with respect to the Real Property and the amount
of coverage afforded by each such policy. All premiums due (or in the event that
such premiums are payable in installments, all installments of such premium
payments due) on such insurance policies have been fully paid. To the best of
Seller's knowledge, Seller has not received any written notice that it is in
default under any insurance policy and to the best of Seller's knowledge, Seller
has not received any written request for the performance of any work or
alteration with respect to the Property from any insurance company or Board of
Fire Underwriters.
VII.1.19. Legal Action Against Seller. There are no judgments,
orders, or decrees of any kind against any entity constituting a Seller unpaid
or unsatisfied of record, nor any legal action, suit or other legal or
administrative agency action relating to the Property which would adversely
affect the Property for its present use or affect Seller's ability to perform
its obligations under this Agreement, nor is Seller aware of any threatened
legal action, suit or other legal or administrative proceeding relating to the
Property, or any state of facts which might result in any such action, suit or
other proceeding.
VII.1.20. Compliance with Existing Laws. Seller has not
received notice of any violations of any law, municipal or other governmental
ordinances, orders, rules, regulations or requirements or of any recorded
restriction, covenant, or agreement affecting the Property, which have not been
corrected.
VII.1.21. No Consents or Approval. To the best of Seller's
knowledge, except for (i) the holders of the Existing Financing and (ii) the
City Consent (as hereinafter defined) there are no consents or approvals
required of any third party or governmental entity necessary to consummate the
transaction contemplated by this Agreement.
VII.1.22. Rent Roll. The rent roll attached hereto as Exhibit
J (the "Rent Roll") is a complete and accurate rent roll of the Property,
listing the date of commencement, term, base or fixed rent, additional rent and
security deposit for each Lease.
VII.1.23. Employees. Schedule 7 attached hereto is a true and
complete list of all employees and independent security guards presently
employed at the Real Property and their respective union affiliations (if any),
salaries, wages, accrued vacation days and other fringe benefits (including
social security, unemployment compensation, employee disability insurance,
accrued sick days, "welfare" and pension fund contributions, payments and
deposits, if any). Except as indicated on Schedule 7 hereto there are no union
contracts or collective bargaining agreements in effect with respect to any of
the employees employed at the Real Property.
VII.1.24. Financial Statements. Seller has delivered to
Purchaser true and complete copies of the audited financial statements of the
Property for the years ended December 31, 1994 and 1995. Since December 31,
1995, there has been no material adverse change in the financial condition of
the Property.
VII.1.25. Existing Estoppel Certificates. The estoppel
certificates previously delivered to Purchaser by Seller are true and complete
copies of the estoppel certificates received by Seller and delivered to the
Existing Lenders in connection with the Existing Financing.
VII.1.26. Existing Loan Documents. Seller has delivered to
Purchaser true and complete copies of the loan documents (the "Loan Documents")
executed by Seller and delivered to the Existing Lenders in connection with the
Existing Financing. Seller hereby covenants and agrees that it shall not modify
or amend the Loan Documents.
VII.1.27. Square Harborside Parking Litigation. (i) The Square
Harborside Parking Litigation (as hereinafter defined) does not affect the
continued operation of the Property and (ii) Seller is the defendant under such
litigation and (iii) Purchaser shall not incur any liability with respect
thereto.
VII.1.28. Intentionally Deleted.
VII.1.29. Seller's Knowledge. For purposes of this Agreement
and any document delivered at Closing, whenever the phrases "to the best of
Seller's knowledge", "to the current, actual knowledge of Seller" or the
"knowledge" of Seller or words of similar import are used, they shall be deemed
to refer to the actual knowledge only, and not any implied, imputed or
constructive knowledge, without any independent investigation having been made
or any implied duty to investigate, of Xxxx Xxxxxxx and Xxxxxxxx X. Xxxx.
VII.2. Change in Representation/Waiver. Notwithstanding
anything to the contrary contained herein, Purchaser acknowledges that Purchaser
shall not be entitled to rely on any representation made by Seller in this
Article VII to the extent, prior to Closing, Purchaser shall have or shall
obtain actual knowledge of any information that was contradictory to such
representation or warranty; provided, however, if Purchaser obtains actual
knowledge prior to Closing that there is a breach of any of the representations
and warranties made by Seller above or learns of any pending legal proceedings
or administrative actions or any violations of existing laws, ordinances,
regulations and building codes affecting the Property, then Purchaser may, at
its option, by sending to Seller written notice of its election either to (i)
terminate this Agreement or (ii) waive such breach and/or conditions and proceed
to Closing with no adjustment in the Purchase Price and Seller shall have no
further liability as to such matter thereafter. In the event Purchaser
terminates this Agreement for the reasons set forth above, the Deposit shall be
immediately returned to Purchaser and neither Purchaser nor Seller shall
thereafter have any other rights or remedies hereunder other than the Surviving
Termination Obligations. In furtherance thereof, Purchaser and Seller expressly
agree that Seller shall have no liability with respect to any of the foregoing
representations and warranties to the extent that, prior to the Closing,
Purchaser obtains actual knowledge (from whatever source, including, without
limitation the property manager, the materials furnished to Purchaser and the
tenant estoppel certificates delivered pursuant to Article 10.2.8 below, as a
result of Purchaser's due diligence tests, investigations and inspections of the
Property, or disclosure by Seller or Seller's agents and employees) that
contradicts any of the foregoing representations and warranties, or renders any
of the foregoing representations and warranties untrue or incorrect, and
Purchaser nevertheless consummates the transaction contemplated by this
Agreement.
VII.2.1. Purchaser's Knowledge. For purposes of this Agreement
and any document delivered at Closing, whenever the phrases "to be best of
Purchaser's knowledge", "to the current, actual knowledge of Purchaser" or the
"knowledge" of Purchaser or words of similar import are used, they shall be
deemed to refer to the actual knowledge only, and not any implied, imputed or
constructive knowledge, without any independent investigation having been made
or any implied duty to investigate, of Xxxxxx X. Xxxx, Xxxx X. Xxxx, Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxx or A. Xxxx Xxxxxxxx.
VII.3. Survival. The express representations and warranties made in
this Agreement by Seller shall not merge into any instrument of conveyance
delivered at the Closing and all of the representations and warranties made in
this Agreement by Seller shall survive the Closing for a period of six (6)
months; provided, however, that any action, suit or proceeding with respect to
the truth, accuracy or completeness of such representations and warranties shall
be commenced, if at all, on or before the date which is six (6) months after the
date of the Closing and, if not commenced on or before such date, thereafter
shall be void and of no force or effect. The terms and provisions of this
Section 7.3 shall survive the Closing.
VII.4. Limitation of Liability. Notwithstanding anything to the
contrary or inconsistent in this Agreement, except as otherwise specifically
provided in this Agreement, (i) the aggregate liability of Seller arising
pursuant to or in connection with the representations and warranties of Seller
and/or the agreements or certificates or affidavits of Seller set forth in or
delivered pursuant to this Agreement shall not exceed One Million Dollars
($1,000,000) and (ii) Seller shall have no liability to Purchaser under this
Agreement, or otherwise, with respect to the representations and warranties made
by Seller herein unless Seller had actual knowledge that any such representation
or warranty is not true and correct as of the date of the Closing. Purchaser
hereby expressly agrees and acknowledges that the liability of Seller set forth
in the preceding sentence shall be Purchaser's sole and exclusive remedy after
the Closing, and Purchaser expressly waives, relinquishes and releases any right
of rescission it may have against Seller. The terms and provisions of this
Section 7.4 shall survive Closing and/or termination of this Agreement.
VIII. ARTICLE VIII.
Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller that the following
matters are true and correct as of the date hereof.
VIII.1. Authority. Purchaser is a corporation duly organized and
validly existing under the laws of the State of Maryland. This Agreement has
been duly authorized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not violate any provision of any
agreement or judicial order to which Purchaser is a party or to which Purchaser
is subject. All documents to be executed by Purchaser which are to be delivered
at Closing, at the time of Closing will be duly authorized, executed and
delivered by Purchaser, at the time of Closing will be legal, valid and binding
obligations of Purchaser, and at the time of Closing will not violate any
provision of any agreement or judicial order to which Purchaser is a party or to
which Purchaser is subject.
VIII.2. Bankruptcy or Debt of Purchaser. Purchaser represents and
warrants to Seller that Purchaser has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by Purchaser's creditors, suffered the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser's assets, suffered the attachment or other judicial seizure of all, or
substantially all, of Purchaser'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.
VIII.3. No Financing Contingency. It is expressly acknowledged by
Purchaser that this transaction is not subject to any financing contingency, and
no financing for this transaction shall be provided by Seller, except for the
Purchase Money Loan.
VIII.4. ERISA Compliance. None of the assets used by Purchaser to
acquire the Property constitutes assets of any (i) "employee benefit plan" (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended), (ii) "plan" (as defined in Section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended) or (iii) entity whose assets are deemed to
include or constitute assets of any such "employee benefit plan" or "plan."
VIII.5. Purchaser's Acknowledgment. Purchaser acknowledges and agrees
that, except as expressly provided in this Agreement, Seller has not made, does
not make and specifically disclaims any representations, warranties, promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to (a) the nature, quality or condition of the
Property, including, without limitation, the water, soil and geology, (b) the
income to be derived from the Property, (c) the suitability of the Property for
any and all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules
and regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchant ability or fitness for a particular purpose of the
Property, or (f) any other matter with respect to the Property, and specifically
that Seller has not made, does not make and specifically disclaims any
representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of any hazardous substance, as defined by the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, and applicable state laws, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that, except as expressly provided in
this Agreement, having been given the opportunity to inspect the Property,
Purchaser is relying solely on its own investigation of the Property and not on
any information provided or to be provided by Seller. Purchaser further
acknowledges and agrees that any information provided or to be provided with
respect to the Property was obtained from a variety of sources and that Seller
has not made any independent investigation or verification of such information.
Purchaser further acknowledges and agrees that, except as expressly provide in
this Agreement, and as a material inducement to the execution and delivery of
this Agreement, the sale of the Property as provided for herein is and on an "as
is, where is" condition and basis. Purchaser acknowledges, represents and
warrants that Purchaser is not in a significantly disparate bargaining position
with respect to Seller in connection with the transaction contemplated by this
Agreement; that Purchaser freely and fairly agreed to this acknowledgment as
part of the negotiations for the transaction contemplated by this Agreement; and
that Purchaser is represented by legal counsel in connection with this
transaction and Purchaser has conferred with such legal counsel concerning this
waiver. The terms and provisions of this Section 8.5 shall survive the Closing
and/or termination of this Agreement.
VIII.6. Survival. The express representations and warranties made in
this Agreement by Purchaser shall not merge into any instrument or conveyance
delivered at the Closing and all of the representations and warranties made in
this Agreement by Purchaser shall survive the Closing for a period of six (6)
months; provided, however, that any action, suit or proceeding with respect to
the truth, accuracy or completeness of all such representations and warranties
(except for the representation and warranty set forth in Section 8.4 hereof)
shall be commenced, if at all, on or before the date which is six (6) months
after the date of the Closing and, if not commenced on or before such date,
thereafter shall be void and of no force or effect. The terms and provisions of
this Section 8.6 shall survive the Closing.
IX. ARTICLE IX.
Seller's Interim Operating Covenants
IX.1. Operations. Seller agrees to continue to operate, manage and
maintain the Improvements through the Closing Date in the ordinary course of
Seller's business and substantially in accordance with Seller's present
practice, subject to ordinary wear and tear and further subject to Article XII
of this Agreement.
IX.2. Maintain Insurance. Seller agrees to maintain until the Closing
Date fire and extended coverage insurance on the Property which is at least
equivalent in all material respects to the insurance policies covering the Real
Property and the Improvements as of the date hereof.
IX.3. Personal Property. Seller agrees not to transfer or remove any
Personal Property from the Improvements after the date hereof except for repair
or replacement thereof. Any items of Personal Property replaced after the date
hereof shall be promptly installed prior to Closing and shall be of
substantially similar quality to the item of Personal Property being replaced.
IX.4. No Sales. Except for the execution of tenant leases pursuant to
the terms of this Agreement, Seller agrees that it shall not convey any interest
in the Property to any third party.
IX.5. Tenant Leases.
IX.5.1. Seller shall not, from and after the date hereof
through the end of the Feasibility Period, (i) enter into a new tenant lease,
(ii) modify, renew, grant any consent or rent abatement or waive any material
rights under the Leases (except pursuant to the exercise by a tenant of a
renewal or extension option contained in such tenant's existing Lease), (iii)
terminate any Lease, or (iv) accept a surrender or consent to the termination or
cancellation of any Lease, unless Seller first notifies Purchaser in writing, at
least three (3) business days in advance of the action intended to be taken by
Seller. Seller shall be authorized to undertake any such action unless Purchaser
delivers the Waiver Notice to Seller prior to the expiration of such three (3)
business day period. In the event that Seller shall enter into, modify, renew,
grant concessions or terminate a tenant lease, it shall promptly provide
Purchaser with a copy of any such lease, amendment or agreement. Seller
covenants and agrees that it shall timely provide Purchaser with drafts of any
pertinent documentation in connection with the above leasing matters and shall
keep Purchaser informed of all substantive negotiations and discussions with
respect to such leasing matters on an on-going basis.
IX.5.2. Seller shall not, from and after the expiration of the
Feasibility Period, and the delivery of the Waiver Notice, (i) modify, renew,
grant any consent or waive any material rights under the Leases (except pursuant
to the exercise by a tenant of a renewal or extension option contained in such
tenant's existing Lease), (ii) terminate any tenant lease, (iii) enter into a
new tenant lease, or (iv) accept a surrender or consent to the termination or
cancellation of any Lease, in each case without the prior written approval of
Purchaser which in each case shall not be unreasonably withheld or conditioned,
and which shall be deemed granted if Purchaser fails to respond to a request for
approval within three (3) business days after receipt of the request therefor
together with a summary of lease forms and credit information of the proposed
tenant, if the intended action is the execution of a new tenant lease.
IX.5.3. Seller covenants and agrees that any action taken by
Seller with respect to the matters set forth in this Section 9.5 shall be made
in good faith and in the ordinary course of business.
IX.6. Intentionally Deleted.
IX.7. Intentionally Deleted.
IX.8. Tenant Estoppels. Seller shall, promptly following its receipt of
the Waiver Notice, deliver to each tenant under a lease, for such tenant's
execution, an estoppel certificate certified to Purchaser and the applicable
Permitted Assignee(s) (whose names have been provided to Seller prior to the
date hereof) (each, an "Estoppel Certificate") substantially in the form of the
estoppel certificate attached to each such tenant's Lease, or, with respect to
any Lease that does not include a form of estoppel certificate, an estoppel
certificate which substantially incorporates the estoppel provisions expressly
contained in any such Lease. Seller shall use reasonable efforts to cause the
Tenants to execute and return the Estoppel Certificates not later than five (5)
business days prior to Closing.
IX.9. Contracts. Seller may, between the date hereof and the Closing,
extend, renew, replace or modify any Contract or enter into any new Contract if
the terms thereof are on commercially reasonable and competitive terms and the
term thereof is cancellable upon no more than thirty (30) days prior written
notice, without premium or penalty.
IX.10. Light Rail Line.
IX.10.1. Seller shall not, from and after the date hereof
through the end of the Feasibility Period, (i) enter into a binding agreement
with the City of Jersey City, the New Jersey Department of Transportation, or
any other pertinent party, with respect to the proposed light rail line to be
constructed on the Property (the "Light Rail Line") or (ii) grant any easement,
right of way or similar encumbrance of title in connection with the Light Rail
Line, or (iii) enter into any exchange of property or similar arrangement in
connection with the Light Rail Line, unless Seller first notifies Purchaser in
writing, at least five (5) business days in advance of the action intended to be
taken by Seller. Seller shall be authorized to undertake any such action unless
Purchaser delivers the Waiver Notice to Seller prior to the expiration of such
five (5) business day period. In the event that Seller shall enter into any such
agreement or grant any such easement, it shall promptly provide Purchaser with a
copy of any such agreement or easement. Seller covenants and agrees that it
shall timely provide Purchaser with drafts of any pertinent documentation in
connection with the Light Rail Line and shall keep Purchaser informed of all
substantive negotiations and discussions with respect to the Light Rail Line on
an on-going basis.
IX.10.2. Seller shall not, from and after the expiration of
the Feasibility Period, and the delivery of the Waiver Notice, enter into any
binding agreement or grant any easement in connection with the Light Rail Line,
in each case without the prior written approval of Purchaser which in each case
shall not be unreasonably withheld or conditioned, and which shall be deemed
granted if Purchaser fails to respond to a request for approval within three (3)
business days after receipt of the request therefor together with a summary of
the proposed action and copies of the underlying documentation.
IX.11. Litigation. Purchaser agrees and acknowledges that Seller shall
have the right to continue to prosecute the existing litigation between HEPLP,
as defendant, and Square Harborside Corp., as plaintiff (the "Square Harborside
Parking Litigation") and that Seller shall be solely entitled to receive any and
all recoveries obtained from the outcome of such litigation.
IX.12. Notices of Violation. Seller shall promptly notify Purchaser of,
and shall promptly deliver to the Purchaser a copy of any notice Seller may
receive, on or before the Closing, from any governmental authority, concerning a
violation of Environmental Laws or a discharge of Hazardous Substances.
IX.13. Reciprocal Operating Agreement. Prior to the delivery of the
Waiver Notice, Purchaser acknowledges and agrees that Seller shall have the
right to amend the Reciprocal Operation and Easement Agreement (the "ROEA") for
Harborside Financial Center to provide that for the duration of the term of the
ROEA, the owner or owners of the BT Parcel, or any Person leasing the BT Parcel
pursuant to a ground lease, shall be entitled to lease that number of parking
spaces within the Special Common Area parking facilities (or parking garages or
structures constructed on or around the Property, in the event that such garages
or structures are not designated as Special Common Area parking facilities)
which, when combined with the number of parking spaces within the Exclusive
Parking Facilities allocated to the BT Parcel, shall equal or exceed three
hundred eighty-five (385) parking spaces. (All capitalized terms used in this
subsection and not otherwise defined shall have the meanings ascribed thereto in
the ROEA.) From and after the expiration of the Feasibility Period and the
delivery of the Waiver Notice, any such amendment shall be subject to the
approval of Purchaser, which approval shall not be unreasonably conditioned or
delayed, and which shall be deemed granted if Purchaser fails to respond to a
request for approval within five (5) business days after receipt of the request
therefor together with a draft of such amendment.
X. ARTICLE X.
Closing Conditions
X.1. Conditions to Obligations of Seller. The obligations of Seller
under this Agreement to sell the Property and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Closing Date except to the extent that any of such
conditions may be waived by Seller in writing at Closing.
X.1.1. Representations, Warranties and Covenants of Purchaser.
All representations and warranties of Purchaser in this Agreement shall be true
and correct in all material respects as of the Closing Date, with the same force
and effect as if such representations and warranties were made anew as of the
Closing Date, and Purchaser shall have performed and complied with all covenants
and agreements required by this Agreement to be performed or complied with by
Purchaser prior to the Closing Date.
X.1.2. No Orders. No order, writ, injunction or decree shall
have been entered and be in effect by any court of competent jurisdiction or any
authority, and no statute, rule, regulation or other requirement shall have been
promulgated or enacted and be in effect, that restrains, enjoins or invalidates
the transactions contemplated hereby.
X.1.3. No Suits. No suit or other proceeding shall be pending
or threatened by any third party before any court or authority seeking to
restrain or prohibit or declare illegal, or seeking substantial damages against
Seller or any of its affiliates in connection with the transactions contemplated
by this Agreement.
X.1.4. Consent of Existing Lenders. The Existing Lenders shall
have consented (the "Existing Lenders' Consent") in writing to (i) the
assumption of the Existing Financing by Purchaser and/or its Permitted
Assignee(s) and (ii) the amendment of the ROEA pursuant to Section 9.13 hereof.
It shall be a condition to the delivery of the Existing Lenders' Consent that
the Existing Lenders shall not have imposed any obligations on Seller or
Purchaser in connection with the assumption of the Existing Financing other than
the obligations specifically provided for in that certain Mortgage dated as of
December 5, 1995 (the "Mortgage"), from Seller (and related parties), to the
Existing Lenders under the paragraph entitled "Due on Sale". Notwithstanding
anything contained herein to the contrary, Purchaser shall have the right, at
its own cost and expense, and subject to the consent of the Existing Lenders, to
satisfy any additional or contingent obligations imposed by the Existing Lenders
with respect to the granting by the Existing Lenders of the Existing Lenders'
Consent. In connection with the Existing Lenders' Consent, Seller covenants and
agrees that it shall use best efforts to obtain such consent; provided, however,
Seller shall not be required (x) to satisfy any obligations or conditions
imposed by the Existing Lenders with respect to such consent other than the
obligations specifically set forth in the Mortgage under the paragraph entitled
"Due on Sale," or (y) to incur any expense in connection with obtaining the
Existing Lenders' Consent to the matter set forth in subsection (ii) above. At
the request of the Existing Lenders, Seller shall enter into a subordination
agreement, in form and substance reasonably acceptable to Seller and the
Existing Lenders, to subordinate the Contingent Consideration Agreement to the
Existing Financing.
Seller shall have the right at any time to deliver a notice to
Purchaser (the "ROEA Waiver Notice"), waiving the delivery by the Existing
Lenders of their consent to the amendment of the ROEA as a condition of Closing
hereunder, and upon the delivery of the ROEA Waiver Notice, the provision of
subsection 10.1.4(ii) above shall be deemed deleted from this Agreement.
In the event the Existing Lenders' Consent is not obtained by
December 10, 1996, Seller shall have the right, exercisable by notice (the
"Seller's Termination Notice") to Purchaser to terminate this Agreement, but
subject to the further rights set forth in this paragraph. On the date (the
"Termination Date") which is fourteen (14) days following the delivery of the
Seller's Termination Notice to Purchaser, the Deposit shall be returned to
Purchaser and neither party hereto shall have any further rights or obligations
pursuant hereto, subject to the Surviving Termination obligations, unless prior
to the Termination Date, the Existing Lenders' Consent shall have been
delivered. Purchaser shall have the right, following the delivery of the
Seller's Termination Notice, to contact the Existing Lenders to seek to obtain
the Existing Lenders' Consent. If the Existing Lenders' Consent is so delivered,
this Agreement shall remain in full force and effect.
X.1.5. Seller's ALTA Loan Policy. Seller shall have obtained
an ALTA Loan Policy for the Purchase Money Mortgage insuring the lien thereof
subject only to the Permitted Exceptions.
X.1.6. Intentionally Deleted.
X.1.7. Contingent Consideration Agreement. Purchaser shall
have executed the Contingent Consideration Agreement.
X.1.8. Purchase Money Loan. Purchaser shall have executed the
Purchase Money Loan Documents and the same (as appropriate) shall have been
delivered to the Title Company for recording.
X.1.9. Intentionally Deleted.
X.1.10. Termination. In the event Seller shall elect not to
close due to the failure of any one or more of the conditions precedent to
Seller's obligation to sell set forth in this Section 10.1, Seller shall so
notify Purchaser on the day of Closing in writing specifying the unfulfilled
conditions, Seller shall direct the Escrow Agent to return the Deposit to
Purchaser and this Agreement shall terminate, and neither party shall have any
further obligation under this Agreement (except the Surviving Termination
Obligations). Notwithstanding anything to the contrary contained herein, in the
event that Seller delivers a termination notice to Purchaser pursuant to this
Section 10.1.9, Purchaser shall have the right (provided that it delivers a
notice to Seller within two days of its receipt of Seller's termination notice),
to extend the scheduled Closing Date for a period of up to ten (10) business
days in order to allow the satisfaction of the unfulfilled conditions to the
obligations of Seller specified in Seller's termination notice.
X.2. Conditions to Obligations of Purchaser. The obligations of
Purchaser under this Agreement to purchase the Property and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.
X.2.1. Representations, Warranties and Covenants of Seller.
All representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date, any changes to such representations disclosed by Seller pursuant
to Article 11.1.15 shall be acceptable to Purchaser, and Seller shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by Seller
prior to the Closing Date. The provisions of this Section 10.2.1 shall be
effective whether or not Seller had actual knowledge that any of the
representations or warranties made by Seller in this Agreement were not true and
correct in all material respects as of the Closing Date.
X.2.2. No Orders. No order, writ, injunction or decree shall
have been entered and be in effect by any court of competent jurisdiction or any
authority, and no statute, rule, regulation or other requirement shall have been
promulgated or enacted and be in effect, that restrains, enjoins or invalidates
the transactions contemplated hereby.
X.2.3. No Suits. No suit or other proceeding shall be pending
or threatened by any third party not affiliated with or acting at the request of
Purchaser before any court or authority seeking to restrain or prohibit or
declare illegal, or seeking substantial damages against Purchaser in connection
with the transactions contemplated by this Agreement.
X.2.4. Intentionally Deleted.
X.2.5. Title. At the time of Closing, title to the Property
shall be as provided in this Agreement.
X.2.6. ISRA. The conditions set forth in Section 16.18 hereof
shall have been met.
X.2.7. Status of Existing Financing. Purchaser shall have
received an estoppel certificate in form and substance reasonably acceptable to
Purchaser, duly executed by each of the Existing Lenders.
X.2.8. Estoppel Certificates. Purchaser shall have received
Estoppel Certificates from (i) the six (6) major tenants (the "Major Tenants")
listed on Schedule 8 attached hereto, and (ii) Estoppel Certificates from
tenants occupying 50% of the rentable square feet of the Improvements (exclusive
of the rentable square feet of the Improvements leased to the Major Tenants).
X.2.9. Xxx Xxxxx Agreements - Consents. The City of Jersey
City shall have consented (the "City Consent") to the assignment of the
Xxx-Xxxxx Agreements (described on Schedule 9 attached hereto) to Purchaser. In
connection with the consents required pursuant to this Section 10.2.9, Seller
covenants and agrees that it shall use diligent efforts to obtain the consents
required under this subsection; provided, however, Seller shall have no
obligation to incur any costs or expenses in connection therewith.
X.2.10. Termination. In the event Purchaser shall elect not to
close due to the failure of any one or more of the conditions precedent to
Purchaser's obligation to consummate this transaction set forth in this Section
10.2, Purchaser shall so notify Seller on the day of Closing in writing
specifying the unfulfilled conditions, Seller shall direct the Escrow Agent to
return the Deposit to Purchaser and this Agreement shall terminate, and neither
party shall have any further obligation under this Agreement (except the
Surviving Termination Obligations). Notwithstanding anything to the contrary
contained herein, in the event that Purchaser delivers a termination notice to
Seller pursuant to this Section 10.2.10, Seller shall have the right (provided
that it delivers a notice to Purchaser within two days of its receipt of
Purchaser's termination notice), to extend the scheduled Closing Date for a
period of up to ten (10) business days in order to allow the satisfaction of the
unfulfilled conditions to the obligations of Purchaser specified in Purchaser's
termination notice.
XI. ARTICLE XI.
Closing
XI.1. Seller's Closing Obligations. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Purchaser at Closing the
following:
XI.1.1. A bargain and sale deed with covenants against
grantor's acts (the "Deed") substantially in the form attached hereto as Exhibit
L, properly executed by Seller conveying to Purchaser the Land and Improvements
described on Exhibit A and Exhibit A-1 in fee simple, subject only to the
Permitted Exceptions.
XI.1.2. An Assignment and Assumption of Ground Lease with
respect to each of the Ground Leases, duly executed by each of the respective
Ground Lessees.
XI.1.3. An "Assignment and Assumption of Leases" in the form
of Exhibit M attached hereto, with respect to the Leases, duty executed by
Seller.
XI.1.4. An "Assignment and Assumption of Ground Leases
(Lessor)" in the form of Exhibit N attached hereto, with respect to the Ground
Leases, duly executed by Seller.
XI.1.5. An "Assignment and Assumption of Contracts" in the
form of Exhibit O attached hereto, duly executed by Seller.
XI.1.6. An "Assignment and Assumption of Option Agreement" in
the form of Exhibit P attached hereto duly executed by Seller with respect to
that certain Option Agreement dated as of June 26, 1984 between Consolidated
Rail Corporation, as optionor, and Seller (as successor in interest), as
optionee, as more particularly described in Exhibit J.
XI.1.7. An Assignment and Assumption Agreement with respect to
the Existing Loan (the "Assignment and Assumption of the Existing Loan"), in
form and substance acceptable to Seller, Purchaser and the Existing Lenders,
duly executed by Seller.
XI.1.8. An "Assignment and Assumption of the Xxx Xxxxx
Agreements" in the form of Exhibit Q attached hereto, duly executed by Seller.
XI.1.9. A list of cash security deposits and all non-cash
security deposits (including letters of credit) delivered by tenants to Seller
under the Leases, together with, subject to the provisions of Section 4.2.7
hereof, other instruments of assignment, transfer, signature guaranty or consent
as may be necessary to permit Purchaser to realize upon the same, each duly
executed and delivered by Seller.
XI.1.10. Copies of the Contracts, the Licenses and Permits and
the warranties and guarantees (originals will be provided if available).
XI.1.11. Signed copies of all Leases in effect on such date
and all other documents in the possession of Seller or the Managing Agent
relating to the tenants under such Leases;
XI.1.12. Copies of the current plans and specifications for
the Improvements and copies of the as-built plans and specifications for the
Improvements (including tenant spaces), that are in the possession of Seller;
XI.1.13. Written notices executed by Seller, addressed to each
tenant, or subtenant, under a Lease or Ground Lease (i) acknowledging the sale
of the Property to Purchaser and (ii) indicating that rent should thereafter be
paid to Purchaser and giving instructions therefore, substantially in the form
of Exhibit R attached hereto.
XI.1.14. Written notices executed by Seller, addressed to each
party performing services pursuant to a Contract indicating that the Property
has been sold to Purchaser and that all rights of Seller thereunder have been
assigned to Purchaser.
XI.1.15. A certificate in the form of Exhibit S attached
hereto, indicating that the representations and warranties set forth in Article
VII are true and correct on the Closing Date, or, if there have been changes,
describing such changes.
XI.1.16. A "Xxxx of Sale" in the form attached hereto as
Exhibit T, conveying, transferring and selling to Purchaser (with no value
separate from the Real Property) all right, title and interest of Seller in and
to the Personal Property.
XI.1.17. A certificate substantially in the form attached
hereto as Exhibit U ("Firpta Affidavit") certifying that Seller is not a
"foreign person" as defined in Section 1445 of the Internal Revenue Code of
1986, as amended.
XI.1.18. The following items to the extent in Seller's
possession, or under Seller's control: (i) keys for all entrance doors in the
Improvements, (ii) all original books, records, tenant files, operating reports,
files, plans and specifications and other materials related to the operation of
the Property; (iii) the originals (or copies where originals are not available)
of the Contracts and the Licenses and Permits, and (iv) a revised Rent Roll,
updated to within ten (10) business days of the Closing.
XI.1.19. Evidence reasonably satisfactory to Purchaser and the
Title Company that the person executing the Closing documents on behalf of
Seller has full right, power and authority to do so.
XI.1.20. Affidavits and other matters as are reasonably
requested by the Title Company pursuant to Section 6.1.5 of this Agreement.
XI.1.21. Provided that Purchaser closes the transaction
hereunder in accordance with the terms and provisions of this Agreement, a
letter from Seller to the Escrow Agent authorizing the return of the Deposit to
Purchaser.
XI.1.22. The Estoppel Certificates required to be delivered by
Seller to Purchaser pursuant to Section 10.2.8 hereof.
XI.1.23. (i) A lease agreement (in form and substance
reasonably acceptable to Purchaser and Seller), between Seller, as landlord, and
a tenant reasonably acceptable to Purchaser, as tenant, pursuant to which such
tenant shall lease approximately 38,045 square feet of vacant space at the
Property previously leased to Jefferson Insurance Company (the "Jefferson
Lease") for a twelve month period commencing January 1, 1997 and agrees to pay
fixed rent under such lease in an aggregate amount of $875,000 per annum.
(ii) The Jefferson Lease will be on the standard form of lease
currently in use at the Property, and will provide that (x) until such time as
the tenant occupies the space demised under such lease, such tenant shall have
no obligations under the Jefferson Lease other than the payment of fixed rent in
the amount stipulated in subsection (i) above, (y) Purchaser shall be free to
recapture or sublease the premises demised under the Jefferson Lease in whole or
in part if it locates a suitable tenant for such space and (z) upon any such
recapture or sublet (a) the Jefferson Lease will remain in place as to the
tenant's obligation to make the monthly rental payments thereunder during the
balance of the term of such lease, and (b) fifty percent (50%) of the base rent
payable under such sublet will be applied to reduce such tenant's aggregate
payment obligations under the Jefferson Lease.
XI.1.24. A lease agreement (in form and substance reasonably
acceptable to Purchaser and Seller) between Seller, as landlord, and a tenant
reasonably acceptable to Purchaser, as tenant, pursuant to which such tenant
shall lease vacant space at the Property in the size and location to be mutually
agreed upon by Seller and Purchaser prior to the Closing, for a period of five
(5) years commencing as of the Closing, and pursuant to which the tenant agrees
to pay rent under such lease, in the monthly amount of thirty-three thousand
three hundred thirty-three ($33,333) dollars. The foregoing lease will be on the
standard form of lease currently in use at the Property and will provide that
until such time as the tenant occupies the space demised under such lease, the
tenant shall have no obligations under the lease other than the payment of fixed
rent in the amount stipulated above.
XI.1.25. A lease agreement (in form and substance reasonably
acceptable to Purchaser and Seller) between Seller, as landlord, and a tenant
reasonably acceptable to Purchaser, as tenant, with respect to approximately
62,520 square feet of space at the Property consisting of (i) the space formerly
leased to Aegis Insurance Company located on the Seventh Floor of Plaza II and
(ii) the space presently leased to American Presidential Lines located on the
Seventh Floor of Plaza III (the "Additional Space Lease"). The Additional Space
Lease shall (i) be on the standard form of lease currently in use at the
property, (ii) be for a term of five (5) years, (iii) provide for the payment of
fixed rent in the annual amount of $1,250,000, (iv) provide that until such time
as the tenant occupies the space demised thereunder, the tenant shall have no
obligations under the Additional Space Lease other than the payment of fixed
rent as provided above, and (v) be on such other terms as the Seller and
Purchaser shall reasonably agree upon.
XI.1.26. The Management Agreement and the Leasing Agreement
pursuant to Section 16.20 hereof.
XI.1.27. A Subordination and Non-Disturbance Agreement, with
respect to the Lease between Seller and BT Harborside, Inc., duly executed by
the lender under the Purchase Money Loan, or its designee, in form and substance
reasonably acceptable to such lender, or as otherwise in accordance with such
Lease.
XI.1.28. At Closing, Seller shall have delivered possession of
the Property to Purchaser, subject to the Permitted Exceptions and the rights of
tenants under the Leases.
XI.1.29. As of the Closing Date, the outstanding principal
amount due under the Existing Financing does not exceed $110,000,000.
XI.1.30. Such other documents as may be reasonably necessary
or appropriate to effect the consummation of the transactions which are the
subject of this Agreement.
XI.2. Purchaser's Closing Obligations. Purchaser, at its sole cost and
expense, shall deliver or cause to be delivered to Seller at Closing the
following:
XI.2.1. The Cash Portion of the Purchase Price, after all
adjustments are made at the Closing as herein provided, by Federal Reserve wire
transfer of immediately available funds.
XI.2.2. Purchaser shall duly execute, acknowledge (as
appropriate) and deliver:
(i) an Assignment and Assumption of Ground Lease for each
Ground Lease;
(ii) the Assignment and Assumption of Leases;
(iii) the Assignment and Assumption of Contracts;
(iv) the Assignment and Assumption of Option Agreement;
(v) the Assignment and Assumption of the Existing Loan;
(vi) the Purchase Money Loan Documents;
(vii) An opinion from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, in
form and substance reasonably acceptable to Seller,
or its assignee, regarding the due execution,
delivery and enforceability of the Purchase Money
Loan Documents;
(viii) receipt for delivery and acceptance of the Security
Deposits;
(ix) the Contingent Consideration Agreement;
(x) the Contingent Consideration Guaranties; and
(xi) the Management Agreement and the Leasing Agreement.
XI.2.3. Evidence reasonably satisfactory to Seller and the
Title Company that the person executing the Closing documents on behalf of
Purchaser has full right, power and authority to do so.
XI.2.4. A certificate in the form of Exhibit V attached
hereto, indicating that the representations and warranties set forth in Article
VIII are true and correct on the Closing Date, or, if there have been changes,
describing such changes.
XI.2.5. Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transactions which are the subject
of this Agreement.
XII. ARTICLE XII.
Risk of Loss
XII.1. Condemnation and Casualty. If, prior to the Closing Date, all or
any portion of the Property is taken by eminent domain, or is the subject of a
pending taking which has not been consummated, or is destroyed or damaged by
fire or other casualty, Seller shall notify Purchaser of such fact promptly
after Seller obtains knowledge thereof. If such condemnation or casualty is
"Material" (as hereinafter defined), Purchaser shall have the option to
terminate this Agreement upon notice to Seller given not later than fifteen (15)
days after receipt of Seller's notice, or the Closing Date, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except with respect to the
Surviving Termination Obligations. If this Agreement is not terminated, Seller
shall not be obligated to repair any damage or destruction but (x) Seller shall
assign and turn over to Purchaser all of the insurance proceeds or condemnation
proceeds, as applicable, net of all costs of repairs and net of reasonable
collection costs (or, if such have not been awarded, all of its right, title and
interest therein) payable with respect to such fire or other casualty or
condemnation, including any rent abatement insurance accruing after the Closing
for such casualty or condemnation, and (y) the parties shall proceed to Closing
pursuant to the terms hereof without abatement of the Purchase Price except for
a credit in the amount of the applicable insurance deductible.
XII.2. Condemnation not Material. If the condemnation is not Material,
then the Closing shall occur without abatement of the Purchase Price and, after
deducting all of Seller's reasonable costs and expenses incurred in collecting
any award, Seller shall assign all remaining awards or any rights to collect
awards to Purchaser on the Closing Date, unless the condemnation affects the
Upland Parcels or the Piers, in which event the condemnation award shall be
split between Purchaser and Seller.
3. Casualty not Material. If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign and turn over to
Purchaser all of the insurance proceeds net of any costs of repairs and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or such
casualty, including any rent abatement insurance accruing after the Closing for
such casualty.
XII.4. Materiality. For purposes of this Article 12, (i) with respect
to a taking by eminent domain, the term "Material" shall mean a taking of any
portion of (x) the office building located on the BT Parcel, or (y) the office
buildings located on the property demised under the Plaza II/III Ground Lease
(as defined in Exhibit B-1 hereto) excluding, however, any taking solely of
subsurface rights or takings for utility easements or right of way easements, if
the surface of such property, after such taking, may be used in substantially
the same manner as though such rights had not been taken and (ii) with respect
to a casualty, the term "Material" shall mean any casualty such that the cost of
repair, as reasonably estimated by an independent engineer licensed to do
business in the State of New Jersey acceptable to Seller and Purchaser, is in
excess of $5,000,000.
XIII. ARTICLE XIII.
Default
XIII.1. Default by Seller.
XIII.1.1. Except as set forth below, in the event the Closing
and the transactions contemplated hereby do not occur as provided herein by
reason of the default of Seller, Purchaser may elect, as the sole and exclusive
remedy of Purchaser, to (i) terminate this Agreement and receive the Deposit
from the Escrow Agent in accordance with the terms and provisions of Section
16.15 hereof, and in such event Seller shall not have any liability whatsoever
to Purchaser hereunder other than with respect to the Surviving Termination
Obligations or (ii) enforce specific performance of this Agreement. Purchaser
shall be deemed to have elected to terminate this Agreement (as provided in
subsection (i) above) if Purchaser fails to deliver to Seller written notice of
its intent to file a cause of action for specific performance against Seller on
or before six (6) months after written notice of termination from Seller or six
(6) months after the originally scheduled Closing Date, whichever shall occur
first, or having given Seller notice, fails to file a lawsuit asserting such
cause of action within six (6) months after the originally scheduled Closing
Date. Notwithstanding the foregoing, nothing contained herein shall limit
Purchaser's remedies at law or in equity as to the Surviving Termination
Obligations.
XIII.1.2. Notwithstanding anything to the contrary contained
herein, in the event that Seller takes an affirmative action to wilfully violate
any covenant of Seller contained herein, and Purchaser elects to terminate this
Agreement as provided herein (i) Seller shall reimburse Purchaser for all of its
actual and verified, non-affiliated third party expenses (including reasonable
attorneys' fees) incurred by Purchaser solely in connection with the transaction
contemplated under this Agreement, and (ii) in the event that Seller sells the
Property to any third party prior to December 31, 1996, Purchaser shall have the
right to xxx for damages and/or pursue any remedy available to Purchaser, at law
or in equity. The mere failure to occur of any condition to Closing shall not be
deemed to be an affirmative action to wilfully violate any covenant contained
herein. The provisions of this Section 13.1.2 shall survive the Closing and/or
termination of this Agreement.
XIII.2. Default by Purchaser. In the event the Closing and the
transactions contemplated hereby do not occur as provided herein by reason of
any default of Purchaser, Purchaser and Seller agree it would be impractical and
extremely difficult to fix the damages which Seller may suffer. Therefore,
Purchaser and Seller hereby agree a reasonable estimate of the total net
detriment Seller would suffer in the event Purchaser defaults and fails to
complete the purchase of the Property is and shall be, as Seller's sole and
exclusive remedy (whether at law or in equity), a sum equal to the Deposit. Upon
such default by Purchaser, Seller shall have the right to receive the Deposit
from the Escrow Agent, in accordance with the terms and provisions of Section
16.15 hereof, as its sole and exclusive remedy and thereupon this Agreement
shall be terminated and neither Seller nor Purchaser shall have any further
rights or obligations hereunder except with respect to the Surviving Termination
Obligations. The amount of the Deposit shall be the full, agreed and liquidated
damages for Purchaser's default and failure to complete the purchase of the
Property, all other claims to damages or other remedies being hereby expressly
waived by Seller. Notwithstanding the foregoing, nothing contained herein shall
limit Seller's remedies at law or in equity as to the Surviving Termination
Obligations.
XIV. ARTICLE XIV.
Brokers
XIV.1. Brokerage Indemnity. Purchaser shall indemnify Seller, its
affiliates, and its and their partners, trustees, advisors, officers, and
directors, against all losses, damages, costs, expenses (including reasonable
fees and expenses of attorneys), causes of action, suits or judgments of any
nature arising out of any claim, demand or liability to or asserted by any
broker, agent or finder, licensed or otherwise, claiming to have dealt with
Purchaser in connection with this transaction other than Xxxxxx Xxxxxxx Realty
Incorporated (the "Broker"). Seller shall indemnify Purchaser and its
affiliates, and its and their partners, trustees, advisors, officers and
directors, against all losses, damages, costs, expenses (including reasonable
fees and expenses of attorneys), causes of action, suits or judgments of any
nature arising out of any claim, demand or liability to or asserted by the
Broker in connection with this transaction or by any broker, agent or finder,
licensed or otherwise, claiming to have dealt with Seller in connection with
this transaction. Seller shall pay the Broker in connection with the
consummation of the transactions contemplated by this Agreement pursuant to a
separate agreement between Seller and Broker. The provisions of this Article 14
shall survive the Closing and/or termination of this Agreement.
XV. ARTICLE XV.
Confidentiality
XV.1. Confidentiality. Seller and Purchaser each expressly acknowledges
and agrees that the terms and provisions of that certain Confidentiality
Agreement dated as of April 1, 1996, between Seller and Purchaser (the
"Confidentiality Agreement"), shall remain in full force and effect and shall
not merge into this Agreement. Notwithstanding the foregoing, the
Confidentiality Agreement shall terminate and be of no further force and effect
from and after the Closing. Notwithstanding anything to the contrary contained
in the Confidentiality Agreement, Purchaser shall have the right to discuss and
commence negotiations with the City of Jersey City with respect to obtaining the
City Consent, provided that such negotiations are undertaken in coordination
with Seller's attorneys, and provided further that in no event shall Purchaser
cause any ordinances or resolutions to be passed in connection therewith,
without the prior written consent of Seller.
XV.2. Publication. Notwithstanding the foregoing, (i) from and after
the date hereof, Purchaser shall have the right to make such public
announcements or filings with respect to the transaction as Purchaser may deem
reasonably necessary in accordance with applicable law, or required on advice of
counsel, and (ii) following Closing, either party shall have the right to
announce the transfer of the Property in newspapers and real estate trade
publications (including "tombstones" publicizing the purchase). Seller shall not
make any public announcements or filings with respect to the transaction (except
as otherwise may be required by law) until the earlier of (i) the delivery of
the Waiver Notice, or (ii) until such time that Purchaser has made any such
announcement or filing. In no event may the name of any affiliates of the Seller
be disclosed in any public announcement or filings, without the express written
consent of Seller.
XVI. ARTICLE XVI.
Miscellaneous
XVI.1. Notices. Any and all notices, requests, demands or other
communications hereunder shall be deemed to have been duly given if in writing
and if transmitted by hand delivery with receipt therefor, by facsimile delivery
(with confirmation by hard copy), by overnight courier, or by registered or
certified mail, return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a communication may
have notified the sender thereof) (the date of such notice shall be the date of
actual delivery to the recipient thereof):
To Purchaser: Cali Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
To Seller: Xxxxx Xxxx Xxxxxxx Realty Advisors
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
and:
Xxxxxxx, Xxxxx & Xxxxxx, LLC
000 00xx Xxxxxx
Xxxxx 0000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Fax No.: (000) 000-0000
To Escrow Agent: First American Title Insurance
Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx Xxxxxxxx
Fax No.: (000) 000-0000
Purchaser's counsel may give any notices or other communications
hereunder on behalf of Purchaser and Seller's counsel may give any notices or
other communications hereunder on behalf of Seller.
XVI.2. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
XVI.3. Headings. The captions and headings herein are for convenience
and reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
XVI.4. Business Days. If any date herein set forth for the performance
of any obligations of Seller or Purchaser or for the delivery of any instrument
or notice as herein provided should be on a Saturday, Sunday or legal holiday,
the compliance with such obligations or delivery shall be deemed acceptable on
the next business day following such Saturday, Sunday or legal holiday. As used
herein, the term "legal holiday" means any state or Federal holiday for which
financial institutions or post offices are generally closed in the state where
the Property is located.
XVI.5. Counterpart Copies. This Agreement may be executed in two or
more counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
XVI.6. Binding Effect. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
permitted assigns.
XVI.7. Assignment. This Agreement may not be assigned by Purchaser
except to a directly or indirectly wholly-owned subsidiary or subsidiaries of
Purchaser, or to a partnership in which any such wholly-owned subsidiary or
subsidiaries owns, either directly or indirectly, at least 75% of the profits,
losses and cash flow thereof and controls the management of the affairs of such
partnership (any such entity, a "Permitted Assignee") and any other assignment
or attempted assignment by Purchaser shall constitute a default by Purchaser
hereunder and shall be deemed null and void and of no force or effect.
Notwithstanding anything to the contrary contained herein, Purchaser may assign
(i) the right to purchase the Real Property and (ii) the right to purchase the
Ground Lessees' interests in the Ground Leases to different entities, provided,
however, that each of such entities is a Permitted Assignee. A copy of any
assignment permitted hereunder, together with an agreement of the assignee
assuming all of the terms and conditions of this Agreement to be performed by
Purchaser, in form reasonably satisfactory to counsel for Seller, shall be
delivered to the attorneys for Seller prior to the Closing, and in any event no
such assignment shall relieve Purchaser from Purchaser's obligations under this
Agreement nor result in a delay in the Closing.
XVI.8. Interpretation. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement.
XVI.9. Entire Agreement. Except with respect to (i) the Confidentiality
Agreement and (ii) the Access Agreement, which agreements shall remain in full
force and effect, this Agreement and the Exhibits attached hereto contain the
final and entire agreement between the parties hereto with respect to the sale
and purchase of the Property and are intended to be an integration of all prior
negotiations and understandings. Purchaser, Seller and their agents shall not be
bound by any terms, conditions, statements, warranties or representations, oral
or written, not contained herein. No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties hereto.
Each party reserves the right to waive any of the terms or conditions of this
Agreement which are for their respective benefit and to consummate the
transactions contemplated by this Agreement in accordance with the terms and
conditions of this Agreement which have not been so waived. Any such waiver must
be in writing signed by the party for whose benefit the provision is being
waived.
XVI.10. Severability. If any one or more of the provisions hereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
XVI.11. Survival. Except as otherwise specifically provided for in this
Agreement (collectively, the "Surviving Termination Obligations"), the
provisions of this Agreement and the representations and warranties herein shall
not survive after the conveyance of title and payment of the Purchase Price but
be merged therein.
XVI.12. Exhibits. Exhibits A through X and Schedules 1 through 9
attached hereto are incorporated herein by reference.
XVI.13. Limitation of Liability. The obligations of Seller are intended
to be binding only on Seller and Seller's assets, and shall not be personally
binding upon, nor shall any resort be had to, the private properties of any of
the partners, officers, directors, shareholders, advisors, trustees, agents, or
employees of Seller, or its affiliates.
XVI.14. Prevailing Party. Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
nonprevailing party in any final judgment agrees to pay the other party's
reasonable attorneys' fees and expenses in or out of litigation and, if in
litigation, trial, appellate, bankruptcy or other proceedings, expended or
incurred in connection therewith, as determined by a court of competent
jurisdiction. The provisions of this Section 16.14 shall survive Closing and/or
any termination of this Agreement.
XVI.15. Escrow Agreement.
XVI.15.1. Instructions. This Agreement, together with such
further instructions, if any, as the parties shall provide to Escrow Agent by
written agreement, shall constitute the escrow instructions. If any requirements
relating to the duties or obligations of Escrow Agent hereunder are not
acceptable to Escrow Agent, or if Escrow Agent requires additional instructions,
the parties hereto agree to make such deletions, substitutions and additions
hereto as counsel for Purchaser and Seller shall mutually approve, which
additional instructions shall not substantially alter the terms of this
Agreement unless otherwise expressly agreed to by Seller and Purchaser.
XVI.15.2. Real Estate Reporting Person. Escrow Agent is hereby
designated the "real estate reporting person" for purposes of Section 6045 of
Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so provide.
Upon the consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to Seller
as required under the aforementioned statute and regulation. Seller and
Purchaser shall promptly furnish their federal tax identification numbers to
Escrow Agent and shall otherwise reasonably cooperate with Escrow Agent in
connection with Escrow Agent's duties as real estate reporting person. This
provision is operative only if applicable.
XVI.15.3. Liability of Escrow Agent. The parties acknowledge
that the Escrow Agent shall be conclusively entitled to rely, except as
hereinafter set forth, upon a certificate from Purchaser or Seller as to how the
Deposit (which, for purposes of this Section shall be deemed to also include any
other escrowed funds held by the Escrow Agent pursuant to this Agreement) should
be disbursed. Any notice sent by Seller or Purchaser (the "Notifying Party") to
the Escrow Agent shall be sent simultaneously to the other noticed parties
pursuant to Section 16.1 herein (the "Notice Parties"). If the Notice Parties do
not object to the Notifying Party's notice to the Escrow Agent within ten (10)
days after the Notice Party's receipt of the Notifying Party's certificate to
the Escrow Agent, the Escrow Agent shall be able to rely on the same. If the
Notice Parties send, within such ten (10) days, written notice to the Escrow
Agent disputing the Notifying Parties certificate, a dispute shall exist and the
Escrow Agent shall hold the Deposit as hereinafter provided. The parties hereto
hereby acknowledge that Escrow Agent shall have no liability to any party on
account of Escrow Agent's failure to disburse the Deposit if a dispute shall
have arisen with respect to the propriety of such disbursement and, in the event
of any dispute as to who is entitled to receive the Deposit, disburse them in
accordance with the final order of a court of competent jurisdiction, or to
deposit or interplead such funds into a court of competent jurisdiction pending
a final decision of such controversy. The parties hereto further agree that
Escrow Agent shall not be liable for failure of any depository and shall not be
otherwise liable except in the event of Escrow Agent's gross negligence or
willful misconduct. The Escrow Agent shall be reimbursed on an equal basis by
Purchaser and Seller for any reasonable expenses (including attorneys' fees and
disbursements) incurred by the Escrow Agent arising from a dispute with respect
to the Deposit. Notwithstanding anything to the contrary contained in this
Section 16.15.3, prior to the expiration of the Feasibility Period, or the
delivery of the Waiver Notice, the Escrow Agent shall be conclusively entitled
to rely on a certificate from the Purchaser requesting the return of the Deposit
and the Escrow Agent, upon receipt of such certificate, shall promptly return
the Deposit to Purchaser and immediately thereafter notify Seller of such
action.
XVI.16. No Recording. Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
XVI.17. Waiver of Trial by Jury. The respective parties hereto shall
and hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Agreement, or for
the enforcement of any remedy under any statute, emergency or otherwise.
XVI.18. ISRA Obligations.
XVI.18.1. Prior to the Closing, Seller shall apply for a
letter (the "Non-Applicability Letter") from the New Jersey Department of
Environmental Protection ("NJDEP") confirming that the New Jersey Industrial
Site Recovery Act, N.J.S.A. 13:1K-6 et. seq. ("ISRA") does not apply to the sale
of the Real Property contemplated by this Agreement. If the NJDEP determines
that ISRA applies to any leasehold or other portion of the Real Property, Seller
shall undertake to obtain from the NJDEP either an approved Negative Declaration
or a No Further Action Letter (the Non-Applicability Letter, Negative
Declaration or No Further Action Letter, as the case may be, are hereinafter
referred to collectively as the "ISRA Clearance") with respect to those portions
of the Real Property which are subject to ISRA. If Seller is unable to obtain
ISRA Clearance by the date set for Closing, then either party may extend the
Closing Date for a period not to exceed sixty (60) days to obtain ISRA
Clearance.
XVI.18.2. Purchaser acknowledges that certain areas of the
Real Property, as identified by Seller on Exhibit W attached hereto (the
"Remediation Property"), were previously the subject of investigation and
cleanup either under ISRA or other environmental regulations (the "Prior
Remediation Activities"). Seller represents that there are no open requirements
pending with respect to the Prior Remediation Activities. Seller agrees to
promptly make available to Purchaser all reports, correspondence and documents
in its possession, or subject to its control, relating to the Prior Remediation
Activities.
XVI.18.3. (i) If the NJDEP determines that ISRA applies to any
leasehold or other portion of the Real Property, then Seller's and Purchaser's
environmental consultants shall determine prior to the Closing the cost of any
remediation required to obtain a Negative Declaration or a No Further Action
Letter (the "Remediation Cost").
(ii) Upon determination of the Remediation Cost, Purchaser
shall have the right to elect, in its sole discretion, to perform the work
required by NJDEP, in which event Purchaser shall receive a credit in the amount
of the Remediation Cost (provided, in all events, that such amount is equal to
or less than $250,000) against the Cash Portion of the Purchase Price at
Closing. Purchaser shall provide Seller with notice of its election (the
"Purchaser's IRSA Notice") under this subsection (ii) within ten days of the
determination of the Remediation Cost.
(iii) In the event that the Remediation Cost is equal to or
less than $250,000 and Purchaser does not so elect to perform any such
remediation work, Seller and Purchaser shall proceed to Closing, provided that
Seller shall be obligated to perform any required remediation work pursuant to:
(a) obtaining NJDEP approval of a Remedial Action Work Plan (including
establishing a remediation funding source satisfactory to NJDEP), or (b)
entering into a Remediation Agreement with NJDEP and establishing a remediation
funding source satisfactory to the NJDEP allowing the transaction to close prior
to Seller's obtaining ISRA Clearance. If the Closing occurs pursuant to
alternatives (a) or (b) above, then Purchaser shall cooperate with Seller and
allow Seller access to the Property after Closing and, subject expressly to the
limitation of Seller's liability set forth in this Section 16.18.3, Seller shall
promptly undertake all investigation and/or remediation necessary to obtain an
approved Negative Declaration or a No Further Action Letter, which Negative
Declaration or No Further Action Letter shall be delivered to Purchaser upon
receipt. In no event shall Seller's remediation involve a ground water
Classification Exception Area or engineering or institutional controls without
the consent of Purchaser, which consent shall not be unreasonably withheld,
conditioned or delayed. Such access to the Property shall be pursuant to the
terms and provisions of an access agreement, in form and substance reasonably
acceptable to the parties hereto, to be entered into between Seller and
Purchaser prior to any such investigation or remediation. In the event that
Seller undertakes such remediation work, Purchaser acknowledges and agrees that
Purchaser shall be responsible for all costs and expenses in excess of $250,000
with respect to such remediation. The provisions of this Section 16.18.1(iii)
shall survive the Closing.
(iv) In the event that the Remediation Cost is greater than
$250,000 and Purchaser does not elect to perform the remediation obligations,
then this Agreement shall automatically terminate as of the date which is ten
(10) days after Purchaser's delivery of Purchaser's ISRA Notice stipulating that
Purchaser does not elect to perform such remediation work in excess of $250,000,
unless within such ten (10) day period Seller shall notify Purchaser of its
election to assume all responsibility for all required remediation. If Seller
shall so notify ("Seller's ISRA Notice") Purchaser of its election to perform
the remediation work, Purchaser, in its sole discretion, shall notify Seller
within five (5) days of its receipt of Seller's ISRA Notice of its election to
close under this Agreement. In the event that Purchaser does not so elect to
close, then this Agreement shall automatically terminate as of the date which is
five (5) days after Seller's delivery of Seller's ISRA Notice in which event
Seller's sole obligation shall be to direct the Escrow Agent to refund the
Deposit to Purchaser and neither party hereto shall have any rights or
obligations hereto, subject to the Surviving Termination Obligations and Escrow
Agent's obligation to return the Deposit.
(v) In the event that Purchaser elects to perform such
remediation obligations pursuant to sub-section (ii) or (iii) above, Purchaser
shall enter into any requisite agreement required by the NJDEP to obtain ISRA
Clearance and shall be responsible for the posting of any remediation funding
source required in connection therewith. In the event that Purchaser so elects
to perform the remediation costs and obligations pursuant to this Section,
Purchaser acknowledges and agrees that as between Seller and Purchaser, Seller
shall have no obligation with respect to such remediation costs (other than as
specifically set forth above) or NJDEP requirements, it being the intent of the
parties hereto that Purchaser shall perform all such remediation obligations and
costs (other than as specifically set forth above).
XVI.19. Letter of Intent. Upon execution of this Agreement by all
parties hereto, it is the express intention of the parties hereto that the
Letter of Intent dated July 23, 1996, between Xxxxxx Xxxxxxx Realty,
Incorporated and the Purchaser, and acknowledged by Seller, shall be null and
void and of no further force or effect.
XVI.20. Management Agreement. As a condition of Closing, Purchaser, or
an affiliate, shall retain the Managing Agent as the managing agent and the
exclusive leasing agent for the Property. At Closing, Purchaser and the Managing
Agent shall enter into (i) a management agreement (the "Management Agreement")
on terms and provisions reasonably acceptable to such parties; provided,
however, that (y) the management fee payable to the Managing Agent by Purchaser
shall equal three (3%) percent of the base rents collected from tenants of the
Property, inclusive of parking revenue, and (z) the term of the Management
Agreement shall be for an initial term of eighteen (18) months; provided,
however, that the Purchaser shall have the right (the "Renewal Option") to renew
the Management Agreement for a renewal term consisting of twelve (12) months on
the same terms and conditions, and (ii) a leasing agreement for the entire
Property (the "Leasing Agreement") on terms and provisions reasonably acceptable
to such parties; provided, however, that (x) the leasing commission to be
payable to the Managing Agent under the Leasing Agreement shall be the standard
leasing commissions and overrides payable in New Jersey, (y) the term of the
Leasing Agreement shall be for the lesser of (I) thirty (30) months, or (II)
until such time as Purchaser shall have executed leases for 62,520 square feet
of space at the Property which was vacant as of September 15, 1996, and (z)
shall provide that in the event the Renewal Option in the Management Agreement
is not exercised, an additional $37,500 a month for the balance of the term of
the Leasing Agreement shall be paid under the Leasing Agreement to the Managing
Agent to provide consulting and management of the leasing process for Purchaser.
The Leasing Agreement shall require the Managing Agent to retain Xxxxx Lang
Wootton USA ("JLW USA") pursuant to a separate sub-leasing agreement to provide
leasing services for the Property. The Leasing Agreement shall provide that the
Managing Agent shall receive the applicable leasing commissions with respect to
any lease which is being negotiated (or with respect to which discussions have
been commenced with a potential tenant) at the end of the term of the Leasing
Agreement and which is executed within six (6) months following the end of such
term. The Management Agreement and the Leasing Agreement shall specifically
provide that neither the Managing Agent nor JLW USA shall be involved in, or
advise the Purchaser in connection with, the sale or development of the Upland
Parcels or the Piers. Purchaser acknowledges and agrees that all services to be
provided by the Managing Agent (or its affiliates) and all actions to be taken
in connection with the Management Agreement and the Leasing Agreement shall be
in accordance with the provisions of the Employee Retirement Income Security Act
of 1974, as amended.
Purchaser acknowledges and agrees that all management fees
with respect to the Property shall be the responsibility of Purchaser from and
after the Closing and Seller acknowledges and agrees that all management fees
with respect to the Property due for the period prior to the Closing are the
responsibility of Seller.
XVI.20.1. The provisions of this Section 16.20 shall survive the
Closing.
XVI.21. Collective Bargaining Agreements. Effective as of Closing,
Purchaser agrees to assume and continue in full force and effect Seller's
collective bargaining agreements with International Union of Operating
Engineers, Local 68-68A-68B, effective June 1, 1996 to May 31, 1999, and with
Local 617, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, effective January 1, 1996 to December 31, 1998 (the
"Collective Bargaining Agreements"), and Purchaser shall have sole
responsibility for all obligations and liabilities arising under the Collective
Bargaining Agreements on and after Closing. Seller agrees to continue in full
force and effect the Collective Bargaining Agreements prior to Closing and to
retain all obligations and liabilities arising under the Collective Bargaining
Agreements prior to Closing.
XVI.22. Single Purpose Entities. Purchaser hereby covenants and agrees
that the entity which acquires the Property, or which holds any ground lessor or
ground lessee interest under the Ground Leases shall be a single purpose entity
formed solely to own or hold such respective assets.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
SELLER:
PLAZA ONE EXCHANGE PLACE LIMITED
PARTNERSHIP, a New Jersey limited partnership
By: One Harborside Corp., a Delaware
corporation, general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
HARBORSIDE EXCHANGE PLACE LIMITED
PARTNERSHIP, a New Jersey limited partnership
By: Two Harborside Corp., a Delaware
corporation, general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
PLAZA II AND III URBAN RENEWAL
ASSOCIATES L.P., a New Jersey limited
partnership
By: One Exchange Place Corporation, a New Jersey
corporation, general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
PURCHASER:
CALI REALTY CORPORATION,
a Maryland corporation
By:
Name:
Title:
The following parties hereby execute this Agreement for the sole
purpose of agreeing to be bound by the provisions of Section 1.2 hereof.
HARBORSIDE URBAN RENEWAL
ASSOCIATES L.P., a New Jersey limited partnership
By: One Exchange Place Corporation, a New Jersey corporation,
general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
PLAZA IV URBAN RENEWAL ASSOCIATES L.P.,
a New Jersey limited partnership
By: One Exchange Place Corporation, a New Jersey corporation,
general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
PLAZA V URBAN RENEWAL ASSOCIATES L.P.,
a New Jersey limited partnership
By: One Exchange Place Corporation, a New Jersey
corporation, general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
PLAZA VI URBAN RENEWAL ASSOCIATES L.P.,
a New Jersey limited partnership
By: One Exchange Place Corporation, a New Jersey corporation,
general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
NORTH PIER URBAN RENEWAL
ASSOCIATES L.P., a New Jersey limited partnership
By: One Exchange Place Corporation, a New Jersey corporation,
general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
SOUTH PIER URBAN RENEWAL
ASSOCIATES L.P., a New Jersey limited
partnership
By: One Exchange Place Corporation, a New Jersey corporation,
general partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
The Escrow Agent hereby executes this Agreement for the sole purpose of
acknowledging receipt of the Deposit and its responsibilities hereunder and to
evidence its consent to serve as Escrow Agent in accordance with the terms of
this Agreement.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE
COMPANY OF NEW YORK
By:
Name:
Title:
