EXHIBIT 10.75
AGREEMENT FOR PURCHASE AND SALE OF
MOTOROLA PLAINFIELD BUILDING
AGREEMENT OF PURCHASE AND SALE
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0000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX
This Agreement of Purchase and Sale ("Agreement") is made and entered
into by and between Purchaser and Seller.
RECITALS
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A. Defined terms are indicated by initial capital letters. Defined terms
shall have the meaning set forth herein, whether or not such terms are
used before or after the definitions are set forth.
B. Purchaser desires to purchase the Property and Seller desires to sell
the Property, all upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual terms, provisions,
covenants and agreements set forth herein, as well as the sums to be paid by
Purchaser to Seller, and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, Purchaser and Seller agree as
follows:
ARTICLE 1 - Basic Information
-----------------------------
1.1 Certain Basic Terms. The following defined terms shall have the
meanings set forth below:
1.1.1 Seller: WHMAB Real Estate Limited Partnership, a
------ Delaware limited partnership
1.1.2 Purchaser: Xxxxx Capital, Inc., a Georgia corporation
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1.1.3 Purchase Price: $33,735,656.00
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1.1.4 Xxxxxxx Money: $500,000 (the "Initial Xxxxxxx Money"),
------------- ---------------------
including interest thereon, to be
deposited in accordance with Section 3.1
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below, to be increased by $500,000 (the
"Additional Xxxxxxx Money") to
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$1,000,000 , plus interest thereon,
pursuant to Section 3.1.
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1.1.5 Title Company: Fidelity National Title Insurance Company
------------- of New York c/o National Title Services
Division 00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Agreement of Purchase and Sale -- (1111 Durham Ave., S. Plainfield, NJ)
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1.1.6 Escrow Agent: Fidelity National Title Insurance Company
------------ 000 Xxxxxxx Xxxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.1.7 Broker: Granite Partners, LLC
------
1.1.8 Effective Date: The date on which this Agreement is
-------------- executed by the latter to sign of
Purchaser or Seller, as indicated on
the signature page of this Agreement.
1.1.9 Property
--------
Information
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Delivery Date: The date which is ten (10) days after
------------- the Effective Date.
1.1.10 Title Commitment
----------------
Delivery Date: The date which is ten (10) days after
------------- the Effective Date.
1.1.11 Survey Delivery
---------------
Date: The date which is ten (10) days after
---- the Effective Date.
1.1.12 Title and Survey
----------------
Review Period: The period ending fourteen (14) days
------------- after Purchaser's receipt of the
initial Title Commitment, but in any
event not later than the expiration of
the Inspection Period.
1.1.13 Inspection Period: The period beginning on the Effective
----------------- Date and ending thirty (30) days
after the Effective Date.
1.1.14 Closing Date: The earlier to occur of (i) the date
------------ Motorola, Inc. commences paying
rent under the Lease (hereinafter
defined), if it commences paying
rent before November 1, 2000, or
(ii) November 1, 2000.
Agreement of Purchase and Sale -- (1111 Durham Ave., S. Plainfield, NJ) - Page 2
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1.2 Closing Costs. Closing costs shall be allocated and paid as
follows:
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Cost Responsible Party
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Title Commitment required to be delivered pursuant to Section 5.1 Seller
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Premium for standard form Title Policy required to be delivered pursuant to Purchaser
Section 5.4
-----------
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Premium for any upgrade of Title Policy for extended or additional coverage
Purchaser and any endorsements desired by Purchaser, any inspection fee charged
by the Title Company, tax certificates, municipal and utility lien certificates,
and any other Title Company charges
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Costs of Survey and/or any revisions, modifications or recertifications Purchaser
thereto
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Costs for UCC Searches Purchaser
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Recording Fees Seller - releases of
current liens; Purchaser
- deed and Purchaser's
lien documents
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Any deed taxes, documentary stamps, transfer taxes, intangible taxes, Seller
mortgage taxes or other similar taxes, fees or assessments
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Any escrow fee charged by Escrow Agent for holding the Xxxxxxx Money or Purchaser 1/2
conducting the Closing Seller 1/2
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Real Estate Sales Commission to Broker Seller
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All other closing costs, expenses, charges and fees Purchaser or Seller,
whoever incurs the same
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1.3 Notice Addresses:
Purchaser: 0000 Xxx Xxxxxxx Xxxxxxx Copy to: X'Xxxxxxxxx & Xxxxx XXX
Xxxxx 000 000 Xxxxxxxxx Xxxxxx #133D
Norcross, Georgia 30092 Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx Attention: X. X. X'Xxxxxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Seller: c/o Archon Group, L.P. Copy to: Xxxxxx & Xxxxxx L.L.P.
0000 X Xxxxxx, X.X. 1325 Avenue of the Americas
Xxxxx 000 00xx Xxxxx
Xxxxxxxxxx, X.X. 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000 Telephone: (000) 000-0000
Facsimile: 000-000-0000 Facsimile: (000) 000-0000
1.4 Index of Certain Additional Defined Terms:
Additional Property Information....................................... Section 4.2
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Asset Manager......................................................... Section 12.18
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Asset Manager's Employee.............................................. Section 9.3
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Assignment............................................................ Subsection 7.3.2
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Casualty Notice....................................................... Section 6.2
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CERCLA................................................................ Section 11.3
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Agreement of Purchase and Sale -- (1111 Durham Ave., S. Plainfield, NJ) - Page 3
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Closing............................................................... Section 7.1
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Deed.................................................................. Subsection 7.3.1
----
Designated Representative(s).......................................... Section 12.18
----------------------------
Due Diligence Termination Notice...................................... Section 4.5
--------------------------------
ERISA................................................................. Subsection 7.4.2
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Hazardous Materials................................................... Section 11.4
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Improvements.......................................................... Subsection 2.1.1
------------
Independent Consideration............................................. Section 3.2
-------------------------
Intangible Personal Property.......................................... Subsection 2.1.4
----------------------------
Land.................................................................. Subsection 2.1.1
----
Lease Files........................................................... Subsection 4.2.1
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Leases................................................................ Subsection 2.1.2
------
Leasing Commission Agreements......................................... Subsection 4.1.8
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Material Damage....................................................... Subsection 6.2.1
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Operating Statements.................................................. Subsection 4.1.2
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Permitted Exceptions.................................................. Section 5.3
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Permitted Outside Parties............................................. Section 4.8
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Property.............................................................. Section 2.1
--------
Property Documents.................................................... Section 4.5
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Property Information.................................................. Section 4.1
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Real Property......................................................... Subsection 2.1.1
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Rent Roll............................................................. Subsection 4.1.1
---------
Reports............................................................... Section 4.6
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Service Contracts..................................................... Subsection 4.1.6
-----------------
Survey................................................................ Section 5.2
------
Tangible Personal Property............................................ Subsection 2.1.3
--------------------------
Taxes................................................................. Section 8.1
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Tenant Receivables.................................................... Subsection 8.1.3
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Title Commitment...................................................... Section 5.1
----------------
Title Policy.......................................................... Section 5.4
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Unbilled Tenant Receivables........................................... Subsection 8.1.3(a)
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Uncollected Delinquent Tenant Receivables............................. Subsection 8.1.3(a)
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ARTICLE 2 - Property
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2.1 Subject to the terms and conditions of this Agreement, Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the
following property (collectively, the "Property"):
--------
2.1.1 Real Property. The land described in Exhibit A attached
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hereto (the "Land"), together with (i) all improvements located thereon
----
("Improvements"), (ii) all and singular the rights, benefits, privileges,
------------
easements, tenements, hereditaments, and appurtenances thereon or in anywise
appertaining thereto, and (iii) without warranty, all right, title, and interest
of Seller, if any, in and to all strips and gores and any land lying in the bed
of any street, road or alley, open or proposed, adjoining such Land
(collectively, the "Real Property").
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2.1.2 Leases. All of Seller's right, title and interest, without
warranty, in all leases of the Real Property, including leases which may be made
by Seller after the Effective Date and prior to Closing as permitted by this
Agreement (the "Leases"). Seller represents and warrants that the only Lease for
------
the Improvements in effect on the date of this Agreement is the Lease by and
between Seller, as Landlord, and
Agreement of Purchase and Sale -- (0000 Xxxxxx Xxx., X. Xxxxxxxxxx, XX) - Page 4
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Motorola, Inc., as Tenant dated December, 1999 and executed by Motorola, Inc. on
January 10, 2000; hereinafter all references to the "Leases" or to a Lease shall
------
be deemed references to such Lease with Motorola, Inc.
2.1.3 Tangible Personal Property. All of Seller's right, title
and interest, without warranty, in the equipment, machinery, furniture,
furnishings, supplies and other tangible personal property, if any, owned by
Seller and now or hereafter located in and used in connection with the
operation, ownership or management of the Real Property, but specifically
excluding any items of personal property owned by tenants at or on the Real
Property and further excluding any items of personal property owned by third
parties and leased to Seller (collectively, the "Tangible Personal Property").
--------------------------
2.1.4 Intangible Personal Property. All of Seller's right, title
and interest, if any, without warranty, in all intangible personal property
related to the Real Property and the Improvements, including, without
limitation: all trade names and trade marks associated with the Real Property
and the Improvements, including Seller's rights and interests, if any, in the
name of the Real Property; the plans and specifications and other architectural
and engineering drawings for the Improvements, if any (to the extent
assignable); warranties (to the extent assignable); contract rights related to
the construction, operation, ownership or management of the Real Property, if
any (but only to the extent assignable and Seller's obligations thereunder (to
the extent the same relate to periods of time after the Closing) are expressly
assumed by Purchaser pursuant to this Agreement); governmental permits,
approvals and licenses, if any (to the extent assignable without cost to
Seller); and telephone exchange numbers (to the extent assignable) (collectively
the "Intangible Personal Property").
----------------------------
2.1.5 Payment of Allowances under Lease. Seller agrees to remain
responsible for funding of all of the allowances payable to Motorola, Inc. as
tenant under the Lease as reflected in Section 4.C. of the Lease, to the extent
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the same have not been paid in full at or prior to the Closing. The provisions
of this Section 2.1.5 shall survive the Closing.
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2.1.6 Performance of Landlord's Work Under the Lease. Seller
agrees to remain responsible for performance of the Landlord's Work, as such
term is defined in Section 4 of the Lease, and to bear all costs incurred in
---------
connection therewith. The provision of this Section 2.1.6 shall survive the
-------------
Closing.
2.1.7. Potential Adjustment For Reduction In Assumed Lease
Obligations. The Purchase Price has been reduced from $34,150,000 to $33,735,656
predicated upon the Purchaser's assuming and performing the obligations set
forth in Section 58.B. of the Lease, and the parties' agreement that the net
present value of the aggregate amount of such obligation is $414,344 (such
obligation being to reimburse the Tenant under the Lease in respect of certain
rent payments required of it under its prior lease as therein described). The
agreed upon net present value was determined by discounting the five monthly
payments of $84,952 therein described at 10% per annum. If, and to the extent,
the actual payments made by Purchaser in respect of such obligation are less
than $84,952 per month or are for a period less than that specified in Section
58.B. of the Lease (being from November 1, 2000 to March 31, 2001), then
Purchaser shall make a payment to Seller increasing the Purchase Price to the
amount it would have been had the actual amount paid by it had been so
discounted to its present value and deducted from $34,150,000. Not later than
April 15, 2001, Purchaser shall provide to Seller a written statement certifying
the amount it has paid in respect of the obligations assumed under Section 58.B.
of the Lease, and if such amount is less than the aggregate obligation
contemplated under such Section , Purchaser shall also concurrently remit to
Seller the amount described in this Section 2.1.7. The provisions of this
Section 2.1.7. shall survive Closing.
Agreement of Purchase and Sale -- (1111 Durham Ave., S. Plainfield, NJ) - Page 5
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ARTICLE 3 - Xxxxxxx Money
-------------------------
3.1 Deposit and Investment of Xxxxxxx Money. Within three (3)
business days after the Effective Date, Purchaser shall deposit the Initial
Xxxxxxx Money with Escrow Agent. If upon the expiration of the Inspection
Period, this Agreement is still in force and effect, Purchaser shall, no later
than the last day of the Inspection Period, deposit the Additional Xxxxxxx
Money, if any, as specified in Subsection 1.1.4 above, with Escrow Agent. Escrow
----------------
Agent shall invest the Xxxxxxx Money in government insured interest-bearing
accounts satisfactory to Seller and Purchaser, shall not commingle the Xxxxxxx
Money with any funds of Escrow Agent or others, and shall promptly provide
Purchaser and Seller with confirmation of the investments made. Such account
shall have no penalty for early withdrawal, and Purchaser accepts all risks with
regard to such account.
3.2 Independent Consideration. Simultaneously with the delivery of
the Initial Xxxxxxx Money to the Title Company by the Purchaser, Purchaser shall
pay to Seller One Hundred and No/100 Dollars ($100.00) as independent
consideration for Seller's performance under this Agreement ("Independent
-----------
Consideration"), which shall be retained by Seller in all instances, and shall
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not be applied against the Purchase Price.
3.3 Form; Failure to Deposit. The Xxxxxxx Money and Independent
Consideration shall be in the form of a certified or cashier's check or the wire
transfer to Escrow Agent of immediately available U.S. federal funds. If
Purchaser fails to timely deposit any portion of the Xxxxxxx Money or the
Independent Consideration within the time periods required, Seller may terminate
this Agreement by written notice to Purchaser, in which event any Xxxxxxx Money
that has previously been deposited by Purchaser with Escrow Agent shall be
delivered to Seller and thereafter the parties hereto shall have no further
rights or obligations hereunder, except for rights and obligations which, by
their terms, survive the termination hereof.
3.4 Disposition of Xxxxxxx Money. The Xxxxxxx Money shall be applied
as a credit to the Purchase Price at Closing. However, if Purchaser elects to
terminate this Agreement prior to the expiration of the Inspection Period
pursuant to Section 4.5, Escrow Agent shall pay the entire Xxxxxxx Money to
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Purchaser one (1) business day following receipt of the Due Diligence
Termination Notice from Purchaser (as long as the current investment can be
liquidated and disbursed in one business day). No notice to Escrow Agent from
Seller shall be required for the release of the Xxxxxxx Money to Purchaser by
Escrow Agent if Purchaser terminates this Agreement pursuant to Section 4.5. In
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the event of a termination of this Agreement by either Seller or Purchaser for
any reason other than pursuant to Section 4.5, Escrow Agent is authorized to
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deliver the Xxxxxxx Money to the party hereto entitled to same pursuant to the
terms hereof on or before the tenth (10th) business day following receipt by
Escrow Agent and the non-terminating party of written notice of such termination
from the terminating party, unless the other party hereto notifies Escrow Agent
that it disputes the right of the other party to receive the Xxxxxxx Money. In
such event, Escrow Agent may interplead the Xxxxxxx Money into a court of
competent jurisdiction in the county in which the Xxxxxxx Money has been
deposited. All attorneys' fees and costs and Escrow Agent's costs and expenses
incurred in connection with such interpleader shall be assessed against the
party that is not awarded the Xxxxxxx Money, or if the Xxxxxxx Money is
distributed in part to both parties, then in the inverse proportion of such
distribution.
Agreement of Purchase and Sale -- (1111 Durham Ave., S. Plainfield, NJ) - Page 6
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ARTICLE 4 - Due Diligence
-------------------------
4.1 Due Diligence Materials To Be Delivered. To the extent such items
are in Seller's possession, Seller shall deliver to Purchaser the following (the
"Property Information") on or before the Property Information Delivery Date:
--------------------
4.1.1 Rent Roll. A current rent roll ("Rent Roll") for the
---------
Property;
4.1.2 Financial Information. Copy of operating statements and a
summary of capital expenditures pertaining to the Property for the twelve (12)
months preceding the Effective Date of this Agreement or such lesser period as
Seller has owned the Property ("Operating Statements");
--------------------
4.1.3 Environmental Reports. Copy of any environmental reports or
site assessments related to the Property prepared for the benefit of Seller;
4.1.4 Tax Statements. Copy of ad valorem tax statements relating
to the Property for the current tax period;
4.1.5 Title and Survey. Copy of Seller's most current title
insurance information and survey of the Property ;
4.1.6 Service Contracts. A list, together with copies, of
service, supply, equipment rental, and other service contracts and license
agreements related to the operation of the Property ("Service Contracts");
-------------------
4.1.7 Personal Property. A list of Tangible Personal Property;
4.1.8 Leasing Commissions. A list of contingent leasing
commissions with respect to the Leases of the Property ("Leasing Commission
------------------
Agreements");
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4.1.9 Zoning. Any information in Seller's possession that
pertains to the zoning status of the Property or any restrictive covenants
affecting the Property; and
4.1.10 Environmental Reports. The environmental reports listed
in Schedule 11.3 hereto.
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4.2 Due Diligence Materials To Be Made Available. To the extent such
items are in Seller's possession, Seller shall make available to Purchaser for
Purchaser's review, at Seller's option at either the offices of Seller's Asset
Manager or property manager or at the Property, the following items and
information (the "Additional Property Information") on or before the Property
-------------------------------
Information Delivery Date, and Purchaser at its expense shall have the right to
make copies of same:
4.2.1 Lease Files. The lease files for all tenants, including
the Leases, amendments, guaranties, any letter agreements and assignments which
are then in effect ("Lease Files");
-----------
4.2.2 Maintenance Records and Warranties. Maintenance work
orders for the twelve (12) months preceding the Effective Date of this Agreement
and warranties, if any, on roofs, air conditioning units, fixtures and
equipment;
4.2.3 Plans and Specifications. Building plans and
specifications relating to the Property; and
Agreement of Purchase and Sale -- (1111 Durham Ave., S. Plainfield, NJ) - Page 7
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4.2.4 Licenses, Permits and Certificates of Occupancy. Licenses,
permits and certificates of occupancy relating to the Property.
4.3 Physical Due Diligence. Commencing on the Effective Date and
continuing until the Closing, Purchaser shall have reasonable access to the
Property at all reasonable times during normal business hours, upon appropriate
notice to tenants as permitted or required under the Leases, for the purpose of
conducting reasonably necessary tests, including surveys and architectural,
engineering, geotechnical and environmental inspections and tests, provided that
(i) Purchaser must give Seller twenty-four (24) hours' prior telephone or
written notice of any such inspection or test, and with respect to any intrusive
inspection or test (e.g., core sampling) must obtain Seller's prior written
consent (which consent may be given, withheld or conditioned in Seller's sole
discretion), (ii) prior to performing any inspection or test, Purchaser must
deliver a certificate of insurance to Seller evidencing that Purchaser and its
contractors, agents and representatives have in place reasonable amounts of
comprehensive general liability insurance and workers compensation insurance for
its activities on the Property in terms and amounts reasonably satisfactory to
Seller covering any accident arising in connection with the presence of
Purchaser, its contractors, agents and representatives on the Property, which
insurance shall name Seller and Asset Manager as additional insureds thereunder,
and (iii) all such tests shall be conducted by Purchaser in compliance with
Purchaser's responsibilities set forth in Section 4.12 below. Purchaser shall
------------
bear the cost of all such inspections or tests and shall be responsible for and
act as the generator with respect to any wastes generated by those tests.
Subject to the provisions of Section 4.8 hereof, Purchaser or Purchaser's
-----------
representatives may meet with any tenant; provided, however, Purchaser must
contact Seller at least forty-eight (48) hours in advance by telephone or fax to
inform Seller of Purchaser's intended meeting and to allow Seller the
opportunity to attend such meeting if Seller desires. Subject to the provisions
of Section 4.8 hereof, Purchaser or Purchaser's representatives may meet with
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any governmental authority for any good faith, reasonable purpose in connection
with the transaction contemplated by this Agreement; provided, however,
Purchaser must contact Seller at least forty-eight (48) hours in advance by
telephone or fax to inform Seller of Purchaser's intended meeting and to allow
Seller the opportunity to attend such meeting if Seller desires.
4.4 Estoppel Certificates. Seller shall deliver to Purchaser, at the
Closing, a tenant estoppel certificate from Motorola, Inc. in the form of
Exhibit E attached hereto dated not sooner than twenty (20) days prior to the
---------
date of Closing. If Seller is unable to deliver such estoppel certificate,
Purchaser's sole remedy therefor shall be to either (i) waive the requirement
therefor and proceed to Closing as otherwise provided herein or (ii) terminate
this Agreement and receive back the Xxxxxxx Money. Seller shall also use
commercially reasonable efforts to have such tenant include in the estoppel
certificate the other statements reflected on Exhibit E-1 hereto, but Seller's
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failure to obtain any or all of such statements shall not constitute a breach or
default under this Agreement or entitle Purchaser to fail to close the
transactions herein contemplated.
4.5 Due Diligence/Termination Right. Purchaser shall have the right to (i)
examine, inspect, and investigate the Property Information and the Additional
Property Information (collectively, the "Property Documents") and the Property
------------------
and, in Purchaser's sole and absolute judgment and discretion, determine whether
the Property is acceptable to Purchaser, (ii) obtain all necessary internal
approvals, and (iii) satisfy all other contingencies of Purchaser.
Notwithstanding anything to the contrary in this Agreement, Purchaser may
terminate this Agreement for any reason or no reason by giving written notice of
termination to Seller and Escrow Agent (the "Due Diligence Termination Notice")
--------------------------------
on or before the last day of the Inspection Period. If Purchaser does not give a
Due Diligence Termination Notice, this Agreement shall continue in full force
and effect, Purchaser shall be deemed to have waived its right to terminate this
Agreement pursuant to this Section 4.5, and Purchaser shall be deemed to have
-----------
acknowledged that it has received or had access to all Property Documents and
conducted all inspections and tests of the Property that it considers important.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 8
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4.6 Return of Documents and Reports. If this Agreement terminates for any
reason other than Seller's default hereunder, Purchaser shall promptly return
and/or deliver to Seller all Property Documents and copies thereof.
Additionally, if this Agreement terminates for any reason other than Seller's
default, then Purchaser must deliver to Seller copies of all third party
reports, investigations and studies, other than economic analyses (collectively,
the "Reports" and, individually, a "Report") prepared for Purchaser in
------- ------
connection with its due diligence review of the Property. The Reports shall be
delivered to Seller without any representation or warranty as to the
completeness or accuracy of the Reports or any other matter relating thereto,
and Seller shall have no right to rely on any Report without the written consent
of the party preparing same. Purchaser's obligation to deliver the Property
Documents and the Reports to Seller shall survive the termination of this
Agreement.
4.7 Service Contracts. On or prior to the last day of the Inspection
Period, Purchaser will advise Seller in writing of which Service Contracts it
will assume and for which Service Contracts Purchaser requests that Seller
deliver written termination at or prior to Closing, provided Seller shall have
no obligation to terminate, and Purchaser shall be obligated to assume, any
Service Contracts which by their terms cannot be terminated without penalty or
payment of a fee. Seller shall deliver at Closing notices of termination of all
Service Contracts that are not so assumed. Purchaser must assume the obligations
arising from and after the Closing Date under those Service Contracts (i) that
Purchaser has agreed to assume, or that Purchaser is obligated to assume
pursuant to this Section 4.7, and (ii) for which a termination notice is
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delivered as of or prior to Closing but for which termination is not effective
until after Closing.
4.8 Proprietary Information; Confidentiality. Purchaser acknowledges that
the Property Documents are proprietary and confidential and will be delivered to
Purchaser solely to assist Purchaser in determining the feasibility of
purchasing the Property. Purchaser shall not use the Property Documents for any
purpose other than as set forth in the preceding sentence. Purchaser shall not
disclose the contents to any person other than to those persons who are
responsible for determining the feasibility of Purchaser's acquisition of the
Property and who have agreed to preserve the confidentiality of such information
as required hereby (collectively, "Permitted Outside Parties"). At any time and
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from time to time, within two (2) business days after Seller's request,
Purchaser shall deliver to Seller a list of all parties to whom Purchaser has
provided any Property Documents or any information taken from the Property
Documents. Purchaser shall not divulge the contents of the Property Documents
and other information except in strict accordance with the confidentiality
standards set forth in this Section 4.8. In permitting Purchaser to review the
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Property Documents or any other information, Seller has not waived any privilege
or claim of confidentiality with respect thereto, and no third party benefits or
relationships of any kind, either express or implied, have been offered,
intended or created.
4.9 No Representation or Warranty by Seller. Purchaser acknowledges that,
except as expressly set forth in this Agreement, neither Seller nor Asset
Manager has made nor makes any warranty or representation regarding the truth,
accuracy or completeness of the Property Documents or the source(s) thereof.
Purchaser further acknowledges that some if not all of the Property Documents
were prepared by third parties other than Seller and Asset Manager. Except as
expressly set forth in this Agreement, Seller and Asset Manager expressly
disclaim any and all liability for representations or warranties, express or
implied, statements of fact and other matters contained in such information, or
for omissions from the Property Documents, or in any other written or oral
communications transmitted or made available to Purchaser. Purchaser shall rely
solely upon its own investigation with respect to the Property, including,
without limitation, the Property's physical, environmental or economic
condition, compliance or lack of compliance with any ordinance, order, permit or
regulation or any other attribute or matter relating thereto. Seller and Asset
Manager have not undertaken any independent investigation as to the truth,
accuracy or completeness
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 9
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of the Property Documents and are providing the Property Documents solely as an
accommodation to Purchaser.
4.10 Purchaser's Responsibilities. In conducting any inspections,
investigations or tests of the Property and/or Property Documents, Purchaser and
its agents and representatives shall: (i) not disturb the tenants or interfere
with their use of the Property pursuant to their respective Leases; (ii) not
interfere with the operation and maintenance of the Property; (iii) not damage
any part of the Property or any personal property owned or held by any tenant or
any third party; (iv) not injure or otherwise cause bodily harm to Seller, Asset
Manager, or their respective agents, guests, invitees, contractors and employees
or any tenants or their guests or invitees; (v) comply with all applicable laws;
(vi) promptly pay when due the costs of all tests, investigations, and
examinations done with regard to the Property; (vii) not permit any liens to
attach to the Real Property by reason of the exercise of its rights hereunder;
(viii) repair any damage to the Real Property resulting directly or indirectly
from any such inspection or tests; and (ix) not reveal or disclose prior to
Closing any information obtained during the Inspection Period concerning the
Property and the Property Documents to anyone other than the Permitted Outside
Parties, in accordance with the confidentiality standards set forth in Section
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4.8 above, or except as may be otherwise required by law.
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4.11 Purchaser's Agreement to Indemnify. Purchaser indemnifies and holds
Seller and Asset Manager harmless from and against any and all liens, claims,
causes of action, damages, liabilities and expenses (including reasonable
attorneys' fees) arising out of Purchaser's inspections or tests permitted under
this Agreement or any violation of the provisions of Sections 4.3, 4.8 and 4.10;
--------------------------
provided, however, the indemnity shall not extend to protect Seller from any
pre-existing liabilities for matters merely discovered by Purchaser (i.e.,
latent environmental contamination) so long as Purchaser's actions do not
aggravate any pre-existing liability of Seller. Purchaser also indemnifies and
holds any tenant harmless from and against any and all claims, causes of action,
damages, liabilities and expenses which such tenant may suffer or incur due to
Purchaser's breach of its obligation under Section 4.8 above to maintain the
-----------
confidential nature of any Property Documents or other information relative to
such tenant. Purchaser's obligations under this Section 4.11 shall survive the
------------
termination of this Agreement and shall survive the Closing.
4.12 Environmental Studies; Seller's Right to Terminate. As additional
consideration for the transaction contemplated in this Agreement, Purchaser must
provide to Seller, immediately following the receipt of same by Purchaser,
copies of any and all reports, tests or studies involving contamination of or
other environmental concerns relating to the Property; provided, however,
Purchaser shall have no obligation to cause any such tests or studies to be
performed on the Property. Seller acknowledges that Purchaser has not made and
does not make any warranty or representation regarding the truth or accuracy of
any such studies or reports. Notwithstanding Section 4.11 above, Purchaser shall
------------
have no liability or culpability of any nature as a result of having provided
such information to Seller or as a result of Seller's reliance thereon or
arising out of the fact that Purchaser merely conducted such tests or studies,
so long as Purchaser's actions do not aggravate any pre-existing liability of
Seller. In the event that such reports, tests or studies indicate the existence
or reasonable potential existence of any contamination of any portion of the
Property that is not disclosed in the Property Documents and that is material
(meaning that the reasonably estimated cost of remediation and/or other
liability associated therewith, as determined by Seller's environmental
consultants, exceeds $50,000.00), then Seller may terminate this Agreement by
giving written notice to Purchaser within ten (10) business days after Purchaser
has provided Seller with copies of such reports, tests or studies, whereupon the
Xxxxxxx Money shall be returned to Purchaser, the parties shall have no further
obligations hereunder except for obligations that expressly survive the
termination hereof, and Seller shall pay to Purchaser an amount equal to the
lesser of (A) Purchaser's actual out-of-pocket expenditures incurred directly in
connection with negotiating this Agreement and/or conducting due diligence
activities contemplated hereunder, or (B) Twenty-Five Thousand and No/100
Dollars ($25,000.00), provided, however, that Purchaser must make written demand
of Seller for such reimbursement and provide Seller reasonable
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 10
----------------------------------------------------------------------
supporting documentation of actual expenditures within thirty (30) days of the
termination of this Agreement, and if Purchaser fails to provide such written
demand and supporting documentation within such thirty (30) day period, then
Purchaser shall be deemed to have forever waived its right to recover any amount
from Seller.
ARTICLE 5 - Title and Survey
----------------------------
5.1 Title Commitment. Seller shall cause to be prepared and delivered to
Purchaser on or before the Title Commitment Delivery Date: (i) a current
commitment for title insurance or preliminary title report (the "Title
-----
Commitment") issued by the Title Company, in the amount of the Purchase Price
----------
and on an ALTA 1992 Standard Form commitment, with Purchaser as the proposed
insured, and (ii) copies of all documents of record referred to in the Title
Commitment as exceptions to title to the Property. To the extent such
endorsements are available in the State of New Jersey, Purchaser may request
endorsements for extended coverage, access, survey and zoning, the cost of which
endorsements shall be borne by Purchaser.
5.2 New or Updated Survey. Purchaser may elect to obtain a new survey or
revise, modify, or re-certify an existing survey ("Survey") as necessary in
------
order for the Title Company to delete the survey exception from the Title Policy
or to otherwise satisfy Purchaser's objectives.
5.3 Title Review. During the Title and Survey Review Period, Purchaser
shall review title to the Property as disclosed by the Title Commitment and the
Survey. Seller shall have no obligation to cure title objections except
financing liens of an ascertainable amount created by, under or through Seller,
which liens Seller shall cause to be released at or prior to Closing (with
Seller having the right to apply the Purchase Price or a portion thereof for
such purpose), and Seller shall deliver the Property free and clear of any such
financing liens. Seller further agrees to remove any exceptions or encumbrances
to title which are voluntarily created by, under or through Seller after the
Effective Date without Purchaser's consent (if requested, such consent shall not
be unreasonably withheld or delayed). The term "Permitted Exceptions" shall
--------------------
mean: the specific exceptions (excluding exceptions that are part of the
promulgated title insurance form) in the Title Commitment that the Title Company
has not agreed to remove from the Title Commitment as of the end of the Title
and Survey Review Period and that Seller is not required to remove as provided
above; matters created by, through or under Purchaser; items shown on the Survey
which have not been removed as of the end of the Inspection Period; real estate
taxes not yet due and payable; tenants under the Leases; and any licensees under
any Service Contracts not terminated as of Closing.
5.4 Delivery of Title Policy at Closing. In the event that the Title
Company does not issue at Closing, or unconditionally commit at Closing to
issue, to Purchaser, an owner's title policy in accordance with the Title
Commitment, insuring Purchaser's title to the Property in the amount of the
Purchase Price, subject only to the standard exceptions (to the extent not
objected to by Purchaser during its title review as provided in Section 5.3) and
-----------
exclusions from coverage contained in such policy and the Permitted Exceptions
(the "Title Policy"), Purchaser shall have the right to terminate this
------------
Agreement, in which case the Xxxxxxx Money shall be immediately returned to
Purchaser and the parties hereto shall have no further rights or obligations,
other than those that by their terms survive the termination of this Agreement.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 11
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ARTICLE 6 - Operations and Risk of Loss
---------------------------------------
6.1 Ongoing Operations. From the Effective Date through Closing:
6.1.1 Leases and Service Contracts. Seller will perform its material
obligations under the Leases and Service Contracts.
6.1.2 New Contracts. Except as provided in Subsection 6.1.4, Seller
----------------
will not enter into any contract that will be an obligation affecting the
Property subsequent to the Closing, except contracts entered into in the
ordinary course of business that are terminable without cause and without the
payment of any termination penalty on not more than thirty (30) days' prior
notice.
6.1.3 Maintenance of Improvements; Removal of Personal Property.
Subject to Sections 6.2 and 6.3, Seller shall maintain all Improvements
--------------------
substantially in their present condition (ordinary wear and tear and casualty
excepted) and in a manner consistent with Seller's maintenance of the
Improvements during Seller's period of ownership. Seller will not remove any
Tangible Personal Property except as may be required for necessary repair or
replacement, and replacement shall be of approximately equal quality and
quantity as the removed item of Tangible Personal Property.
6.1.4 Leasing. Seller will not amend or terminate any existing Lease
or enter into any new Lease without providing Purchaser (i) all relevant
supporting documentation, as reasonably determined by Seller, including, without
limitation, tenant financial information to the extent in Seller's possession,
and (ii) as to any such amendment or termination of a Lease or new Lease which
is to be executed after the expiration of the Inspection Period, Seller's
request for Purchaser's approval. If Purchaser's consent is requested by Seller
as to any amendment or termination of a Lease or new Lease, Purchaser agrees to
give Seller written notice of approval or disapproval of a proposed amendment or
termination of a Lease or new Lease within three (3) business days after
Purchaser's receipt of the items in (i) and (ii) of this Subsection 6.1.4. If
----------------
Purchaser does not respond to Seller's request within such time period, then
Purchaser will be deemed to have approved such amendment, termination or new
Lease. Purchaser's approval rights and obligations will vary depending on
whether the request for approval from Seller is delivered to Purchaser before or
after the expiration of the Inspection Period, as follows:
(a) With respect to a request for approval delivered by Seller
to Purchaser before the expiration of the Inspection Period, Purchaser's
consent shall not be required. Moreover, whether or not Purchaser consents
to an amendment or termination of a Lease or the entering into of a new
Lease, Seller may amend or terminate a Lease or enter into a new Lease at
anytime prior to the expiration of the Inspection Period; however, if
Purchaser does not consent to same or is not deemed to have approved same,
and if Seller elects to amend or terminate a Lease or enter into a new
Lease notwithstanding Purchaser's failure to approve same, then Purchaser
may, at the xxxx Xxxxxx notifies Purchaser of the execution of said
amendment, termination or new Lease, elect to terminate this Agreement and
receive a return of the Xxxxxxx Money; provided that if Purchaser does not
elect to terminate within five (5) days after said notification from
Seller, then Purchaser shall have waived its right to terminate pursuant to
this Subsection 6.1.4.
----------------
(b) With respect to a request for approval delivered by Seller
to Purchaser after the expiration of the Inspection Period, Purchaser may
withhold its consent at its sole discretion, and Seller may not amend or
terminate a Lease or enter into a new Lease without Purchaser's written
consent.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 12
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6.2 Damage. If prior to Closing the Property is damaged by fire or other
casualty, Seller shall estimate the cost to repair and the time required to
complete repairs and will provide Purchaser written notice of Seller's
estimation (the "Casualty Notice") as soon as reasonably possible after the
---------------
occurrence of the casualty.
6.2.1 Material. In the event of any Material Damage to or destruction
of the Property or any portion thereof prior to Closing, either Seller or
Purchaser may, at its option, terminate this Agreement by delivering written
notice to the other on or before the expiration of thirty (30) days after the
date Seller delivers the Casualty Notice to Purchaser (and if necessary, the
Closing Date shall be extended to give the parties the full thirty-day period to
make such election and to obtain insurance settlement agreements with Seller's
insurers). Upon any such termination, the Xxxxxxx Money shall be returned to
Purchaser and the parties hereto shall have no further rights or obligations
hereunder, other than those that by their terms survive the termination of this
Agreement. If neither Seller nor Purchaser so terminates this Agreement within
said thirty (30) day period, then the parties shall proceed under this Agreement
and close on schedule (subject to extension of Closing as provided above), and
as of Closing Seller shall assign to Purchaser, without representation or
warranty by or recourse against Seller, all of Seller's rights in and to any
resulting insurance proceeds (including any rent loss insurance applicable to
any period on and after the Closing Date) due Seller as a result of such damage
or destruction and Purchaser shall assume full responsibility for all needed
repairs, and Purchaser shall receive a credit at Closing for any deductible
amount under such insurance policies (but the amount of the deductible plus
insurance proceeds shall not exceed the lesser of (A) the cost of repair or (B)
the Purchase Price and a pro rata share of the rental or business loss proceeds,
if any). For the purposes of this Agreement, "Material Damage" and "Materially
--------------- ----------
Damaged" means damage which, in Seller's reasonable estimation, exceeds
-------
$100,000.00 to repair or which, in Seller's reasonable estimation, will take
longer than ninety (90) days to repair.
6.2.2 Not Material. If the Property is not Materially Damaged, then
neither Purchaser nor Seller shall have the right to terminate this Agreement,
and Seller shall, at its option, either (i) repair the damage before the Closing
in a manner reasonably satisfactory to Purchaser, or (ii) credit Purchaser at
Closing for the reasonable cost to complete the repair (in which case Seller
shall retain all insurance proceeds and Purchaser shall assume full
responsibility for all needed repairs).
6.3 Condemnation. If proceedings in eminent domain are instituted with
respect to the Property or any portion thereof, Purchaser may, at its option, by
written notice to Seller given within ten (10) days after Seller notifies
Purchaser of such proceedings (and if necessary the Closing Date shall be
automatically extended to give Purchaser the full ten-day period to make such
election), either: (i) terminate this Agreement, in which case the Xxxxxxx Money
shall be immediately returned to Purchaser and the parties hereto shall have no
further rights or obligations, other than those that by their terms survive the
termination of this Agreement, or (ii) proceed under this Agreement, in which
event Seller shall, at the Closing, assign to Purchaser its entire right, title
and interest in and to any condemnation award, and Purchaser shall have the sole
right after the Closing to negotiate and otherwise deal with the condemning
authority in respect of such matter. If Purchaser does not give Seller written
notice of its election within the time required above, then Purchaser shall be
deemed to have elected option (ii) above.
ARTICLE 7 - Closing
-------------------
7.1 Closing. The consummation of the transaction contemplated herein
("Closing") shall occur on the Closing Date at the offices of Escrow Agent (or
such other location as may be mutually agreed upon by Seller and Purchaser).
Funds shall be deposited into and held by Escrow Agent in a closing escrow
account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or
completion of all closing
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 13
----------------------------------------------------------------------
conditions and deliveries, the parties shall direct Escrow Agent to immediately
record and deliver the closing documents to the appropriate parties and make
disbursements according to the closing statements executed by Seller and
Purchaser.
7.2 Conditions to Parties' Obligation to Close. In addition to all other
conditions set forth herein, the obligation of Seller, on the one hand, and
Purchaser, on the other hand, to consummate the transactions contemplated
hereunder are conditioned upon the following:
7.2.1 Representations and Warranties. The other party's
representations and warranties contained herein shall be true and correct in all
material respects as of the date of this Agreement and the Closing Date;
7.2.2 Deliveries. As of the Closing Date, the other party shall have
tendered all deliveries to be made at Closing; and
7.2.3 Actions, Suits, etc. There shall exist no pending or threatened
actions, suits, arbitrations, claims, attachments, proceedings, assignments for
the benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings, against the other party that would materially and adversely affect
the operation or value of the Property or the other party's ability to perform
its obligations under this Agreement.
So long as a party is not in default hereunder, if any condition to such
party's obligation to proceed with the Closing hereunder has not been satisfied
as of the Closing Date (or such earlier date as is provided herein), such party
may, in its sole discretion, terminate this Agreement by delivering written
notice to the other party on or before the Closing Date (or such earlier date as
is provided herein), or elect to close (or to permit any such earlier
termination deadline to pass) notwithstanding the non-satisfaction of such
condition, in which event such party shall be deemed to have waived any such
condition. In the event such party elects to close (or to permit any such
earlier termination deadline to pass), notwithstanding the non-satisfaction of
such condition, said party shall be deemed to have waived said condition, and
there shall be no liability on the part of any other party hereto for breaches
of representations and warranties of which the party electing to close had
knowledge at the Closing.
7.3 Seller's Deliveries in Escrow. As of or prior to the Closing Date,
Seller shall deliver in escrow to Escrow Agent the following:
7.3.1 Deed. A special warranty or other limited warranty deed (as
Seller's local counsel or Title Company shall advise, warranting title only
against any party claiming by, through or under Seller) in form acceptable for
recordation under the law of the state where the Property is located and
including a list of Permitted Exceptions to which the conveyance shall be
subject, executed and acknowledged by Seller, conveying to Purchaser Seller's
interest in the Real Property (the "Deed");
----
7.3.2 Xxxx of Sale, Assignment and Assumption. A Xxxx of Sale,
Assignment and Assumption of Leases and Contracts in the form of Exhibit B
---------
attached hereto (the "Assignment"), executed and acknowledged by Seller, vesting
----------
in Purchaser, without warranty, Seller's right, title and interest in and to the
property described therein free of any claims, except for the Permitted
Exceptions to the extent applicable;
7.3.3 Conveyancing or Transfer Tax Forms or Returns. Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Seller by applicable state and local law in connection
with the conveyance of the Real Property;
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 14
----------------------------------------------------------------------
7.3.4 FIRPTA. A Foreign Investment in Real Property Tax Act affidavit
executed by Seller;
7.3.5 Authority. Evidence of the existence, organization and
authority of Seller and of the authority of the persons executing documents on
behalf of Seller reasonably satisfactory to the underwriter for the Title
Policy; and
7.3.6 Additional Documents. Any additional documents that Escrow
Agent or the Title Company may reasonably require for the proper consummation of
the transaction contemplated by this Agreement (provided, however, no such
additional document shall expand any obligation, covenant, representation or
warranty of Seller or result in any new or additional obligation, covenant,
representation or warranty of Seller under this Agreement beyond those expressly
set forth in this Agreement).
7.4 Purchaser's Deliveries in Escrow. As of or prior to the Closing Date,
Purchaser shall deliver in escrow to Escrow Agent the following:
7.4.1 Xxxx of Sale, Assignment and Assumption. The Assignment,
executed and acknowledged by Purchaser;
7.4.2 ERISA Letter. A letter to Seller in the form of Exhibit C
---------
attached hereto duly executed by Purchaser, confirming that Purchaser is not
acquiring the Property with the assets of an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")
----------- -----
and, in the event Purchaser is unable or unwilling to make such a
representation, Purchaser shall be deemed to be in default hereunder, and Seller
shall have the right to terminate this Agreement and to receive and retain the
Xxxxxxx Money;
7.4.3 Conveyancing or Transfer Tax Forms or Returns. Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Purchaser by applicable state and local law in connection
with the conveyance of Real Property; and
7.4.4 Additional Documents. Any additional documents that Seller,
Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Purchaser or result in any new or additional
obligation, covenant, representation or warranty of Purchaser under this
Agreement beyond those expressly set forth in this Agreement).
7.5 Closing Statements. As of or prior to the Closing Date, Seller and
Purchaser shall deposit with Escrow Agent executed closing statements consistent
with this Agreement in the form required by Escrow Agent.
7.6 Purchase Price. At or before 1:00 p.m. local time on the Closing Date,
Purchaser shall deliver to Escrow Agent the Purchase Price, less the Xxxxxxx
Money that is applied to the Purchase Price, plus or minus applicable
prorations, in immediate, same-day U.S. federal funds wired for credit into
Escrow Agent's escrow account, which funds must be delivered in a manner to
permit Escrow Agent to deliver good funds to Seller or its designee on the
Closing Date (and, if requested by Seller, by wire transfer); in the event that
Escrow Agent is unable to deliver good funds to Seller or its designee on the
Closing Date, then the closing statements and related prorations will be revised
as necessary.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 15
----------------------------------------------------------------------
7.7 Possession. Seller shall deliver possession of the Property to
Purchaser at the Closing subject only to the Permitted Exceptions.
7.8 Delivery of Books and Records. After the Closing, Seller shall deliver
to the offices of Purchaser's property manager or to the Real Property to the
extent in Seller's or its property manager's possession or control: Lease Files;
maintenance records and warranties; plans and specifications; licenses, permits
and certificates of occupancy; copies or originals of all books and records of
account, contracts, and copies of correspondence with tenants and suppliers;
receipts for deposits, unpaid bills and other papers or documents which pertain
to the Property; all advertising materials; booklets; keys; and other items, if
any, used in the operation of the Property.
7.9 Notice to Tenants. Seller and Purchaser shall each execute, and
Purchaser shall deliver to each tenant immediately after the Closing, a notice
regarding the sale in substantially the form of Exhibit D attached hereto, or
---------
such other form as may be required by applicable state law. This obligation on
the part of Purchaser shall survive the Closing.
ARTICLE 8 - Prorations, Deposits, Commissions
---------------------------------------------
8.1 Prorations. At Closing, the following items shall be prorated as of
the date of Closing with all items of income and expense for the Property being
borne by Purchaser from and after (but including) the date of Closing: Tenant
Receivables (defined below) and other income and rents that have been collected
by Seller as of Closing; fees and assessments; prepaid expenses and obligations
under Service Contracts; accrued operating expenses; real and personal ad
valorem taxes ("Taxes"); and any assessments by private covenant for the then-
-----
current calendar year of Closing. Specifically, the following shall apply to
such prorations and to post-Closing collections of Tenant Receivables:
8.1.1 Taxes. If Taxes for the year of Closing are not known or cannot
be reasonably estimated, Taxes shall be prorated based on Taxes for the year
prior to Closing. Any additional Taxes relating to the year of Closing shall be
prorated between the parties as of the date of the Closing within thirty (30)
days following receipt of an invoice for the same. The provisions of this
Section 8.1.1 shall survive Closing.
-------------
8.1.2 Utilities. Purchaser shall take all steps necessary to
effectuate the transfer of all utilities to its name as of the Closing Date, and
where necessary, post deposits with the utility companies. Seller shall ensure
that all utility meters are read as of the Closing Date. Seller shall be
entitled to recover any and all deposits held by any utility company as of the
Closing Date.
8.1.3 Tenant Receivables. Rents due from tenants under Leases and
operating expenses and/or taxes payable by tenants under Leases (collectively,
"Tenant Receivables") and not collected by Seller as of Closing shall not be
------------------
prorated between Seller and Purchaser at Closing but shall be apportioned on the
basis of the period for which the same is payable and if, as and when collected,
as follows:
(a) Purchaser shall apply rent and other income received from
tenants under Leases after Closing in the following order of priority: (i)
first, to payment of the current Tenant Receivables then due for the month
-----
in which the Closing Date occurs, which amount shall be apportioned between
Purchaser and Seller as of the Closing Date as set forth in Section 8.1
-----------
hereof (with Seller's portion thereof to be delivered to Seller); (ii)
second, to Tenant Receivables first coming due after Closing and applicable
------
to the period of time after Closing, which amount shall be retained by
-----
Purchaser; (iii) third, to payment of Tenant Receivables first coming due
-----
after Closing
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 16
----------------------------------------------------------------------
but applicable to the period of time before Closing, including, without
------
limitation, the Tenant Receivables described in Subsection 8.1.3(b) below
-------------------
(collectively, "Unbilled Tenant Receivables"), which amount shall be
---------------------------
delivered to Seller; and (iv) thereafter, to delinquent Tenant Receivables
which were due and payable as of Closing but not collected by Seller as of
Closing (collectively, "Uncollected Delinquent Tenant Receivables"), which
-----------------------------------------
amount shall be delivered to Seller. Notwithstanding the foregoing, Seller
shall have the right to pursue the collection of Uncollected Delinquent
Tenant Receivables for a period of one (1) year after Closing without
prejudice to Seller's rights or Purchaser's obligations hereunder,
provided, however, Seller shall have no right to cause any such tenant to
be evicted or to exercise any other "landlord" remedy (as set forth in such
tenant's Lease) against such tenant other than to xxx for collection. Any
sums received by Purchaser to which Seller is entitled shall be held in
trust for Seller on account of such past due rents payable to Seller, and
Purchaser shall remit to Seller any such sums received by Purchaser to
which Seller is entitled within ten (10) business days after receipt
thereof less reasonable, actual costs and expenses of collection, including
reasonable attorneys' fees, court costs and disbursements, if any. Seller
expressly agrees that if Seller receives any amounts after the Closing Date
which are attributable, in whole or in part, to any period after the
Closing Date, Seller shall remit to Purchaser that portion of the monies so
received by Seller to which Purchaser is entitled within ten (10) business
days after receipt thereof. With respect to Unbilled Tenant Receivables,
Purchaser covenants and agrees to (A) xxxx the same when billable and (B)
cooperate with Seller to determine the correct amount of operating expenses
and/or taxes due. The provisions of this Subsection 8.1.3(a) shall survive
-------------------
the Closing.
(b) Without limiting the generality of the requirements of
Subsection 8.1.3(a)(ii) above, if the final reconciliation or determination
-----------------------
of operating expenses and/or taxes due under the Leases shows that a net
amount is owed by Seller to Purchaser, said amount shall be paid by Seller
to Purchaser within ten (10) business days of such final determination
under the Leases. If the final determination of operating expenses and/or
taxes due under the Leases shows that a net amount is owed by Purchaser to
Seller, Purchaser shall, within ten (10) business days of such final
determination, remit said amount to Seller. Purchaser agrees to receive and
hold any monies received on account of such past due expenses and/or taxes
in trust for Seller and to pay same promptly to Seller as aforesaid. The
provisions of this Subsection 8.1.3(b) shall survive the Closing.
-------------------
8.2 Leasing Costs. Seller agrees to pay or discharge at or prior to
Closing all leasing commissions under the Leasing Commission Agreements, costs
for tenant improvements, legal fees and other costs and expenses (collectively,
"Leasing Costs") that are due prior to Closing with respect to Leases in force
-------------
as of or prior to the Effective Date; provided, however, that Seller shall have
no obligation to pay, and Purchaser shall assume the obligation to pay, all
leasing commissions payable with respect to any option to renew or option to
expand that has not been exercised prior to the Effective Date, which obligation
shall survive the Closing. As of Closing, Purchaser shall assume Seller's
obligations for Leasing Costs incurred with respect to Leases and Lease renewals
and extensions executed subsequent to the Effective Date.
8.3 Closing Costs. Closing costs shall be allocated between Seller and
Purchaser in accordance with Section 1.2.
-----------
8.4 Final Adjustment After Closing. If final bills are not available or
cannot be issued prior to Closing for any item being prorated under Section 8.1,
-----------
then Purchaser and Seller agree to allocate such items on a fair and equitable
basis as soon as such bills are available, final adjustment to be made as soon
as reasonably possible after the Closing. Payments in connection with the final
adjustment shall be due within thirty (30) days of written notice. All such
rights and obligations shall survive the Closing.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 17
----------------------------------------------------------------------
8.5 Tenant Deposits. All tenant security deposits collected and not
applied by Seller (and interest thereon if required by law or contract) shall be
transferred or credited to Purchaser at Closing. As of the Closing, Purchaser
shall assume Seller's obligations related to tenant security deposits, but only
to the extent they are credited or transferred to Purchaser.
8.6 Commissions. Seller shall be responsible to Broker for a real estate
sales commission at Closing (but only in the event of a Closing in strict
accordance with this Agreement) in accordance with a separate agreement between
Seller and Broker. Broker may share its commission with any other licensed
broker involved in this transaction, but the payment of the commission by Seller
to Broker shall fully satisfy any obligations of Seller to pay a commission
hereunder. Under no circumstances shall Seller owe a commission or other
compensation directly to any other broker, agent or person. Any cooperating
broker shall not be an affiliate, subsidiary or related in any way to Purchaser.
Other than as stated above in this Section 8.6, Seller and Purchaser each
-----------
represent and warrant to the other that no real estate brokerage commission is
payable to any person or entity in connection with the transaction contemplated
hereby, and each agrees to and does hereby indemnify and hold the other harmless
against the payment of any commission to any other person or entity claiming by,
through or under Seller or Purchaser, as applicable. This indemnification shall
extend to any and all claims, liabilities, costs and expenses (including
reasonable attorneys' fees and litigation costs) arising as a result of such
claims and shall survive the Closing.
ARTICLE 9 - Representations and Warranties
------------------------------------------
9.1 Seller's Representations and Warranties. Seller represents and
warrants to Purchaser that:
9.1.1 Organization and Authority. Seller has been duly organized, is
validly existing, and is in good standing in the state in which it was formed.
Seller has the full right and authority and has obtained any and all consents
required to enter into this Agreement and to consummate or cause to be
consummated the transactions contemplated hereby. This Agreement has been, and
all of the documents to be delivered by Seller at the Closing will be,
authorized and executed and constitute, or will constitute, as appropriate, the
valid and binding obligation of Seller, enforceable in accordance with their
terms.
9.1.2 Conflicts and Pending Actions. There is no agreement to which
Seller is a party or, to Seller's knowledge, that is binding on Seller which is
in conflict with this Agreement. To Seller's knowledge, there is no action or
proceeding pending or threatened against Seller or relating to the Property,
which challenges or impairs Seller's ability to execute or perform its
obligations under this Agreement.
9.1.3 Tenant/Leases. As of the Effective Date, Exhibit F lists all
---------
tenants of the Property and the Lease Files include leases and amendments.
9.1.4 Service Contracts. To Seller's knowledge, the list of Service
Contracts to be delivered to Purchaser pursuant to this Agreement will be
correct and complete as of the date of its delivery.
9.1.5 Notices from Governmental Authorities. To Seller's knowledge,
Seller has not received from any governmental authority written notice of any
material violation of any laws applicable (or alleged to be applicable) to the
Real Property, or any part thereof, that has not been corrected, except as may
be reflected by the Property Documents or otherwise disclosed in writing to
Purchaser.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 18
----------------------------------------------------------------------
9.1.6 Environmental Matters. Seller has no knowledge of any
Hazardous Materials on the Property, except as disclosed in the environmental
reports made available for Purchaser's review pursuant to Section 4.1.3, and
listed in Schedule 11.3 hereto.
9.2 Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller that:
9.2.1 Organization and Authority. Purchaser has been duly
organized and is validly existing as a corporation in good standing in the State
of Georgia and is qualified to do business in the state in which the Real
Property is located. Purchaser has the full right and authority and has obtained
any and all consents required to enter into this Agreement and to consummate or
cause to be consummated the transactions contemplated hereby. This Agreement has
been, and all of the documents to be delivered by Purchaser at the Closing will
be, authorized and properly executed and constitute, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
9.2.2 Conflicts and Pending Action. There is no agreement to
which Purchaser is a party or to Purchaser's knowledge binding on Purchaser
which is in conflict with this Agreement. There is no action or proceeding
pending or, to Purchaser's knowledge, threatened against Purchaser which
challenges or impairs Purchaser's ability to execute or perform its obligations
under this Agreement.
9.3 Survival of Representations and Warranties. The representations
and warranties set forth in this Article 9 are made as of the date of this
---------
Agreement and are remade as of the Closing Date and shall not be deemed to be
merged into or waived by the instruments of Closing, but shall survive the
Closing for a period of twelve (12) months (the "Survival Period"). Terms such
---------------
as "to Seller's knowledge," "to the best of Seller's knowledge" or like phrases
mean the actual present and conscious awareness or knowledge of Xxxxxxx Xxxxxxx,
asset manager of the Property and Xxxxx Xxxx, Senior Project Manager ("Asset
-----
Manager's Employees"), without any duty of inquiry or investigation; provided
-------------------
that so qualifying Seller's knowledge shall in no event give rise to any
personal liability on the part of Asset Manager's Employees or any other officer
or employee of Seller or its Asset Manager, on account of any breach of any
representation or warranty made by Seller herein. Said terms do not include
constructive knowledge, imputed knowledge, or knowledge Seller or such persons
do not have but could have obtained through further investigation or inquiry. No
broker, agent, or party other than Seller is authorized to make any
representation or warranty for or on behalf of Seller. Each party shall have the
right to bring an action against the other on the breach of a representation or
warranty hereunder, but only on the following conditions: (i) the party bringing
the action for breach first learns of the breach after Closing and files such
action within the Survival Period, and (ii) neither party shall have the right
to bring a cause of action for a breach of a representation or warranty unless
the damage to such party on account of such breach (individually or when
combined with damages from other breaches) equals or exceeds $10,000. Neither
party shall have any liability after Closing for the breach of a representation
or warranty hereunder of which the other party hereto had knowledge as of
Closing. Furthermore, Purchaser agrees that the maximum liability of Seller for
the alleged breach of any or all representations or warranties set forth in this
Agreement is limited to $500,000. The provisions of this Section 9.3 shall
-----------
survive the Closing. Any breach of a representation or warranty that occurs
prior to Closing shall be governed by Article 10.
----------
ARTICLE 10 - Default and Remedies
---------------------------------
10.1 Seller's Remedies. If Purchaser fails to perform its obligations
pursuant to this Agreement at or prior to Closing for any reason except failure
by Seller to perform hereunder, or if prior to Closing any one or more of
Purchaser's representations or warranties are breached in any material respect
and remain
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 19
----------------------------------------------------------------------
uncured, Seller shall be entitled, as its sole remedy (except as provided in
Sections 4.11, 8.6, 10.3 and 10.4 hereof), to terminate this Agreement and
---------------------------------
recover the Xxxxxxx Money as liquidated damages and not as penalty, in full
satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree
that Seller's damages resulting from Purchaser's default are difficult, if not
impossible, to determine and the Xxxxxxx Money is a fair estimate of those
damages which has been agreed to in an effort to cause the amount of such
damages to be certain. Notwithstanding anything in this Section 10.1 or in
------------
Exhibit G to the contrary, in the event of Purchaser's default or a termination
---------
of this Agreement, Seller shall have all remedies available at law or in equity
in the event Purchaser or any party related to or affiliated with Purchaser is
asserting any claims or right to the Property that would otherwise delay or
prevent Seller from having clear, indefeasible and marketable title to the
Property, and in said event Seller shall not be required to submit such matter
to arbitration as contemplated by Exhibit G. In all other events Seller's
---------
remedies shall be limited to those described in this Section 10.1 and Sections
------------ --------
4.11, 8.6, 10.3 and 10.4 hereof. If Closing is consummated, Seller shall have
------------------------
all remedies available at law or in equity in the event Purchaser fails to
perform any obligation of Purchaser under this Agreement.
10.2 Purchaser's Remedies. If Seller fails to perform its obligations
pursuant to this Agreement for any reason except failure by Purchaser to perform
hereunder, or if prior to Closing any one or more of Seller's representations or
warranties are breached in any material respect, Purchaser shall elect, as its
sole remedy, either to (i) terminate this Agreement by giving Seller timely
written notice of such election prior to or at Closing and recover the Xxxxxxx
Money, (ii) enforce specific performance, or (iii) waive said failure or breach
and proceed to Closing. Notwithstanding anything herein to the contrary,
Purchaser shall be deemed to have elected to terminate this Agreement if
Purchaser fails to deliver to Seller written notice of its intent to file a
claim or assert a cause of action for specific performance against Seller on or
before ten (10) business days following the scheduled Closing Date or, having
given such notice, fails to file a lawsuit asserting such claim or cause of
action in the county in which the Property is located within two (2) months
following the scheduled Closing Date. Purchaser's remedies shall be limited to
those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If,
------------ ----------------------
however, the equitable remedy of specific performance is not available,
Purchaser may seek any other right or remedy available at law or in equity;
provided, however, that in no event shall Seller's liability exceed the lesser
of (i) $50,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred
by Purchaser and paid (A) to Purchaser's attorneys in connection with the
negotiation of this Agreement and (B) to unrelated and unaffiliated third party
consultants in connection with the performance of examinations, inspections
and/or investigations pursuant to Article 4. For purposes of this provision,
---------
specific performance shall be considered not available to Purchaser only if a
court of competent jurisdiction (or an arbitrator, as per Exhibit G) determines
---------
conclusively that Purchaser is entitled to specific performance on the merits of
its claim but said court or arbitrator is unable to enforce specific performance
due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL
SELLER'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY
OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR
CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR
OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY,
WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
10.3 Attorneys' Fees. In the event either party hereto employs an
attorney in connection with claims by one party against the other arising from
the operation of this Agreement, the non-prevailing party shall pay the
prevailing party all reasonable fees and expenses, including attorneys' fees,
incurred in connection with such transaction.
10.4 Other Expenses. If this Agreement is terminated due to the
default of a party, then the defaulting party shall pay any fees or charges due
to Escrow Agent for holding the Xxxxxxx Money as well
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 20
----------------------------------------------------------------------
as any escrow cancellation fees or charges and any fees or charges due to the
Title Company for preparation and/or cancellation of the Title Commitment.
ARTICLE 11 - Disclaimers, Release and Indemnity
-----------------------------------------------
11.1 Disclaimers By Seller. Except as expressly set forth in this
Agreement, it is understood and agreed that Seller and Asset Manager have not at
any time made and are not now making, and they specifically disclaim, any
warranties or representations of any kind or character, express or implied, with
respect to the Property, including, but not limited to, warranties or
representations as to (i) matters of title, (ii) environmental matters relating
to the Property or any portion thereof, including, without limitation, the
presence of Hazardous Materials in, on, under or in the vicinity of the
Property, (iii) geological conditions, including, without limitation,
subsidence, subsurface conditions, water table, underground water reservoirs,
limitations regarding the withdrawal of water, and geologic faults and the
resulting damage of past and/or future faulting, (iv) whether, and to the extent
to which the Property or any portion thereof is affected by any stream (surface
or underground), body of water, wetlands, flood prone area, flood plain,
floodway or special flood hazard, (v) drainage, (vi) soil conditions, including
the existence of instability, past soil repairs, soil additions or conditions of
soil fill, or susceptibility to landslides, or the sufficiency of any
undershoring, (vii) the presence of endangered species or any environmentally
sensitive or protected areas, (viii) zoning or building entitlements to which
the Property or any portion thereof may be subject, (ix) the availability of any
utilities to the Property or any portion thereof including, without limitation,
water, sewage, gas and electric, (x) usages of adjoining property, (xi) access
to the Property or any portion thereof, (xii) the value, compliance with the
plans and specifications, size, location, age, use, design, quality,
description, suitability, structural integrity, operation, title to, or physical
or financial condition of the Property or any portion thereof, or any income,
expenses, charges, liens, encumbrances, rights or claims on or affecting or
pertaining to the Property or any part thereof, (xiii) the condition or use of
the Property or compliance of the Property with any or all past, present or
future federal, state or local ordinances, rules, regulations or laws, building,
fire or zoning ordinances, codes or other similar laws, (xiv) the existence or
non-existence of underground storage tanks, surface impoundments, or landfills,
(xv) the merchantability of the Property or fitness of the Property for any
particular purpose, (xvi) the truth, accuracy or completeness of the Property
Documents, (xvii) tax consequences, or (xviii) any other matter or thing with
respect to the Property.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 21
----------------------------------------------------------------------
11.2 Sale "As Is, Where Is." Purchaser acknowledges and agrees that
upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall
accept the Property "AS IS, WHERE IS, WITH ALL FAULTS," except to the extent
expressly provided otherwise in this Agreement and any document executed by
Seller and delivered to Purchaser at Closing. Except as expressly set forth in
this Agreement, Purchaser has not relied and will not rely on, and Seller has
not made and is not liable for or bound by, any express or implied warranties,
guarantees, statements, representations or information pertaining to the
Property or relating thereto (including specifically, without limitation,
Property information packages distributed with respect to the Property) made or
furnished by Seller, the Asset Manager of the Property, or any real estate
broker, agent or third party representing or purporting to represent Seller, to
whomever made or given, directly or indirectly, orally or in writing. Purchaser
represents that it is a knowledgeable, experienced and sophisticated purchaser
of real estate and that, except as expressly set forth in this Agreement, it is
relying solely on its own expertise and that of Purchaser's consultants in
purchasing the Property and shall make an independent verification of the
accuracy of any documents and information provided by Seller. Purchaser will
conduct such inspections and investigations of the Property as Purchaser deems
necessary, including, but not limited to, the physical and environmental
conditions thereof, and shall rely upon same. By failing to terminate this
Agreement prior to the expiration of the Inspection Period, Purchaser
acknowledges that Seller has afforded Purchaser a full opportunity to conduct
such investigations of the Property as Purchaser deemed necessary to satisfy
itself as to the condition of the Property and the existence or non-existence or
curative action to be taken with respect to any Hazardous Materials on or
discharged from the Property, and will rely solely upon same and not upon any
information provided by or on behalf of Seller or its agents or employees with
respect thereto, other than such representations, warranties and covenants of
Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser
shall assume the risk that adverse matters, including, but not limited to,
adverse physical or construction defects or adverse environmental, health or
safety conditions, may not have been revealed by Purchaser's inspections and
investigations.
Purchaser's Initials /s/ DPW
-------
11.3 Seller Released from Liability. As part of the Property
Information to be made available to Purchaser pursuant to Section 4.1, Seller
-----------
has made available for Purchaser's review the environmental reports listed in
Schedule 11.3 hereto. Purchaser acknowledges that it will have the opportunity
-------------
to inspect the Property during the Inspection Period, and during such period,
observe its physical characteristics and existing conditions and the opportunity
to conduct such investigation and study on and of the Property and adjacent
areas as Purchaser deems necessary, and Purchaser hereby FOREVER RELEASES AND
DISCHARGES Seller and Asset Manager from all responsibility and liability,
including without limitation, liabilities under the Comprehensive Environmental
Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et
--
seq.), as amended ("CERCLA"), regarding the condition, valuation, salability or
--- ------
utility of the Property, or its suitability for any purpose whatsoever
(including, but not limited to, with respect to the presence in the soil, air,
structures and surface and subsurface waters, of Hazardous Materials or other
materials or substances that have been or may in the future be determined to be
toxic, hazardous, undesirable or subject to regulation and that may need to be
specially treated, handled and/or removed from the Property under current or
future federal, state and local laws, regulations or guidelines, and any
structural and geologic conditions, subsurface soil and water conditions and
solid and hazardous waste and Hazardous Materials on, under, adjacent to or
otherwise affecting the Property). Purchaser further hereby WAIVES (and by
Closing this transaction will be deemed to have WAIVED) any and all objections
and complaints (including, but not limited to, federal, state and local
statutory and common law based actions, and any private right of action under
any federal, state or local laws, regulations or guidelines to which the
Property is or may be subject, including, but not limited to, CERCLA) concerning
the physical characteristics and any existing conditions of the Property.
Purchaser further hereby assumes the risk of changes in applicable laws and
regulations relating to past, present and future environmental conditions on the
Property and the risk that adverse physical characteristics and conditions,
including, without limitation, the presence of Hazardous
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 22
----------------------------------------------------------------------
Materials or other contaminants, may not have been revealed by its
investigation. Notwithstanding the foregoing provisions of the Section 11.3,
Purchaser's release, discharge and waiver shall (i) not extend to liability
directly arising out of (and only to the extent it so arises) Seller's placement
or introduction of Hazardous Materials on or to the Property, but for the
purposes of this sentence, the placement or introduction by any other party,
including any tenant of improvements on the Property, of hazardous materials on
or to the property shall not be attributed to Seller, nor shall Seller have any
responsibility or liability therefor. (ii) not extend to any liability arising
out of the breach by Seller of any of its representations or warranties made in
this Agreement or in any instruments executed by Seller and delivered to
Purchaser at or in connection with Closing, or (iii) not in any way limit
Purchaser's right to implead or otherwise bring Seller into any suit or
litigation filed against Purchaser that alleges that the claims therein made, in
whole or in part, arise out of actions occurring or alleged to occur with
respect to the Property prior to the Closing.
11.4. "Hazardous Materials" Defined. For purposes hereof, "Hazardous
---------
Materials" means "Hazardous Material," "Hazardous Substance," "Pollutant or
---------
Contaminant," and "Petroleum" and "Natural Gas Liquids," as those terms are
defined or used in Section 101 of CERCLA, and any other substances regulated
because of their effect or potential effect on public health and the
environment, including, without limitation, PCBs, lead paint, asbestos, urea
formaldehyde, radioactive materials, putrescible materials, and infectious
materials.
11.5 Indemnity. Purchaser agrees to indemnify and hold Seller harmless
of and from any and all liabilities, claims, demands, and expenses of any kind
or nature which arise or accrue after Closing and which arise out of Purchaser's
ownership, maintenance, or operation of the Property, including, without
limitation, in connection with Hazardous Materials, but not including matters
which remain the express obligation of Seller under this Agreement or
instruments executed by Seller and delivered to Purchaser at or in connection
with Closing.
11.6 Survival. The terms and conditions of this Article 11 shall
----------
expressly survive the Closing, not merge with the provisions of any closing
documents and shall be incorporated into the Deed.
Purchaser acknowledges and agrees that the disclaimers and other
agreements set forth herein are an integral part of this Agreement and that
Seller would not have agreed to sell the Property to Purchaser for the Purchase
Price without the disclaimers and other agreements set forth above.
ARTICLE 12 - Miscellaneous
--------------------------
12.1 Parties Bound; Assignment. This Agreement, and the terms,
covenants, and conditions herein contained, shall inure to the benefit of and be
binding upon the heirs, personal representatives, successors, and assigns of
each of the parties hereto. Purchaser may assign its rights under this Agreement
upon the following conditions: (i) the assignee of Purchaser must be an
affiliate of Purchaser or an entity controlling, controlled by, or under common
control with Purchaser, (ii) all of the Xxxxxxx Money must have been delivered
in accordance herewith, (iii) the assignee of Purchaser shall assume all
obligations of Purchaser hereunder, but Purchaser shall remain primarily liable
for the performance of Purchaser's obligations, and (v) a copy of the fully
executed written assignment and assumption agreement shall be delivered to
Seller at least five (5) business days prior to Closing.
12.2 Headings. The article, section, subsection, paragraph and/or
other headings of this Agreement are for convenience only and in no way limit or
enlarge the scope or meaning of the language hereof.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 23
----------------------------------------------------------------------
12.3 Invalidity and Waiver. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed to
be a waiver of such party's right to enforce against the other party the same or
any other such term or provision in the future.
12.4 Governing Law. This Agreement shall, in all respects, be
governed, construed, applied, and enforced in accordance with the law of the
state in which the Real Property is located.
12.5 Survival. The provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing and shall not be deemed to be
merged into or waived by the instruments of Closing.
12.6 Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
12.7 Time. Time is of the essence in the performance of this
Agreement.
12.8 Confidentiality. Purchaser shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties, before the Closing, without the prior written specific consent of
Seller; provided, however, that Purchaser may, subject to the provisions of
Section 4.8, make disclosure of this Agreement to its Permitted Outside Parties
-----------
as necessary to perform its obligations hereunder and as may be required under
laws or regulations applicable to Purchaser.
12.9 Notices. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in Section
-------
1.3. Any such notices shall, unless otherwise provided herein, be given or
---
served (i) by depositing the same in the United States mail, postage paid,
certified and addressed to the party to be notified, with return receipt
requested, (ii) by overnight delivery using a nationally recognized overnight
courier, (iii) by personal delivery, or (iv) by facsimile, evidenced by
confirmed receipt. Notice deposited in the mail in the manner hereinabove
described shall be effective on the third (3rd) business day after such deposit.
Notice given in any other manner shall be effective only if and when received by
the party to be notified between the hours of 8:00 a.m. and 5:00 p.m. of any
business day with delivery made after such hours to be deemed received the
following business day. A party's address may be changed by written notice to
the other party; provided, however, that no notice of a change of address shall
be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice. Notices given by counsel to
the Purchaser shall be deemed given by Purchaser and notices given by counsel to
the Seller shall be deemed given by Seller.
12.10 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and agree that the normal rule
of construction - to the effect that any ambiguities are to be resolved against
the drafting party - shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
12.11 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday,
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 24
----------------------------------------------------------------------
Sunday or legal holiday for national banks in the location where the Property is
located, in which event the period shall run until the end of the next day which
is neither a Saturday, Sunday, or legal holiday. The last day of any period of
time described herein shall be deemed to end at 5:00 p.m. local time in the
state in which the Real Property is located.
12.12 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages, provided that executed originals thereof
are forwarded to the other party on the same day by any of the delivery methods
set forth in Section 12.9 other than facsimile.
------------
12.13 No Recordation. Without the prior written consent of Seller,
there shall be no recordation of either this Agreement or any memorandum hereof,
or any affidavit pertaining hereto, and any such recordation of this Agreement
or memorandum or affidavit by Purchaser without the prior written consent of
Seller shall constitute a default hereunder by Purchaser, whereupon Seller shall
have the remedies set forth in Section 10.1 hereof.
------------
12.14 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, but without
any obligation to incur any additional liability or expense, on or after the
Closing any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser.
12.15 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
12.16 ERISA. Under no circumstances shall Purchaser have the right to
assign this Agreement to any person or entity owned or controlled by an employee
benefit plan if Seller's sale of the Property to such person or entity would, in
the reasonable opinion of Seller's ERISA advisors or consultants, create or
otherwise cause a "prohibited transaction" under ERISA. In the event Purchaser
assigns this Agreement or transfers any ownership interest in Purchaser, and
such assignment or transfer would make the consummation of the transaction
hereunder a "prohibited transaction" under ERISA and necessitate the termination
of this Agreement then, notwithstanding any contrary provision which may be
contained herein, Seller shall have the right to terminate this Agreement.
12.17 No Third Party Beneficiary. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller, Asset Manager and Purchaser only and are not for the benefit
of any third party (other than Asset Manager), and accordingly, no third party
(other than Asset Manager) shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered at Closing,
except that a tenant of the Property may enforce Purchaser's indemnity
obligation under Section 4.11 hereof.
------------
12.18 Asset Manager: Designated Representative. Seller has engaged
Archon Group, L.P. or affiliated companies ("Asset Manager") to provide certain
-------------
asset management services with respect to the Property, including acting as a
liaison between Seller and Purchaser in connection with the Property and this
Agreement. The Asset Manager will appoint one or more representatives
("Designated Representative(s)")
---------------------------
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 25
----------------------------------------------------------------------
to deal with Purchaser. Whenever any approval, acceptance, consent, direction or
action of Seller is required pursuant to this Agreement, Purchaser shall send to
the Designated Representative a written notice requesting same, which notice
shall: (i) describe in detail the matter for which such approval, acceptance,
consent, direction or other action of Seller is requested; (ii) be accompanied
by a copy of any contract, agreement or other document to be executed by Seller
evidencing such approval, consent, acceptance, direction or action of Seller;
and (iii) be accompanied by such other documents, written explanations and
information as may be reasonably necessary to explain the request fully and
completely. The Asset Manager will communicate Seller's response to any such
requests to Purchaser.
12.19 Mandatory Arbitration. The parties have agreed to submit certain
disputes to mandatory arbitration in accordance with the provisions of Exhibit G
---------
attached hereto and made a part hereof for all purposes.
[SIGNATURE PAGES AND EXHIBITS TO FOLLOW]
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 26
----------------------------------------------------------------------
SIGNATURE PAGE TO AGREEMENT OF
PURCHASE AND SALE
BY AND BETWEEN
WHMAB REAL ESTATE LIMITED PARTNERSHIP
AND
XXXXX CAPITAL, INC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year written below.
SELLER:
WHMAB REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WHMAB Gen-Par, Inc.,
a Delaware corporation,
its general partner
Date executed by Seller: 8/7/00 By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Assistant Vice President
-----------------------------------
PURCHASER:
---------
XXXXX CAPITAL, INC.,
a Georgia corporation
Date executed by Purchaser: By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 27
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JOINDER BY ESCROW AGENT
-----------------------
Escrow Agent has executed this Agreement in order to confirm that Escrow Agent
has received and shall hold the Initial Xxxxxxx Money required to be deposited
under this Agreement and the interest earned thereto, in escrow, and shall
disburse the Xxxxxxx Money, and the interest earned thereon, pursuant to the
provisions of this Agreement.
FIDELITY NATIONAL TITLE INSURANCE
COMPANY OF NEW YORK,
a
----------------------------------
Date executed by Escrow Agent: By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 28
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LIST OF EXHIBITS AND SCHEDULES
------------------------------
EXHIBITS:
--------
A - Legal Description of Real Property
B - Xxxx of Sale, Assignment and Assumption of Leases and Contracts
C - ERISA Letter
D - Notice to Tenants
E - Tenant Estoppel Certificate
E-1 - Additional Request Items
F - List of Tenants
G - Mandatory Arbitration
SCHEDULES
---------
11.3 - List of Environmental Reports
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 29
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EXHIBIT A
---------
LEGAL DESCRIPTION OF REAL PROPERTY
----------------------------------
PARCEL I
ALL THAT CERTAIN TRACT, PARCEL AND LOT OF LAND LYING AND BEING SITUATED IN THE
BOROUGH OF SOUTH PLAINFIELD, AND THE TOWNSHIP OF EDISON COUNTY OF MIDDLESEX,
STATE OF NEW JERSEY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING IN THE NORTHERLY LINE OF RUNYONS LANE WHERE THE SAME IS INTERSECTED BY
THE SOUTHWESTERLY LINE OF NEW JERSEY STATE HIGHWAY ROUTE 287 AND FROM SAID
BEGINNING POINT RUNNING; THENCE
1. SOUTH 72 DEGREES 51 MINUTES 16 SECONDS WEST AND ALONG THE AFOREMENTIONED
NORTHERLY LINE OF RUNYONS LANE A DISTANCE OF 237.39 FEET TO A CORNER OF LAND NOW
OR FORMERLY OF L.A. & X.X. XXXXXXX; THENCE
2. NORTH 12 DEGREES 21 MINUTES 44 SECONDS WEST AND ALONG THE LINE OF LANDS OF
"XXXXXXX" AS AFOREMENTIONED A DISTANCE OF 196.02 FEET TO A POINT; THENCE
3. NORTH 21 DEGREES 20 MINUTES 09 SECONDS WEST AND STILL ALONG A LINE OF LAND
OF "XXXXXXX" AS AFORESAID A DISTANCE OF 18.27 FEET TO A POINT; THENCE
4. SOUTH 77 DEGREES 17 MINUTES 56 SECONDS WEST AND STILL ALONG A LINE OF
"XXXXXXX" AS AFORESAID A DISTANCE OF 223.01 FEET TO A POINT; THENCE
5. SOUTH 12 DEGREES 45 MINUTES 44 SECONDS EAST AND STILL ALONG ANOTHER LINE OF
"XXXXXXX" AS AFORESAID A DISTANCE OF 231.51 FEET TO A POINT IN THE
AFOREMENTIONED NORTHERLY LINE OF RUNYONS LANE; THENCE
6. SOUTH 72 DEGREES 51 MINUTES 16 SECONDS WEST AND ALONG THE NORTHERLY LINE OF
RUNYONS LANE A DISTANCE OF 869.34 FEET TO THE EASTERLY SIDE LINE OF NEW BROOKLYN
ROAD; THENCE
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 30
----------------------------------------------------------------------
7. NORTH 17 DEGREES 37 MINUTES 14 SECONDS WEST AND ALONG SAID EASTERLY SIDE
LINE OF NEW BROOKLYN ROAD A DISTANCE OF 700.12 FEET TO A POINT BEING AS CORNER
OF THE PROPERTY DELINEATED ON A MAP ENTITLED "MAP MOUNTAIN VIEW HEIGHTS, THE
PROPERTY OF XXXXXX XXXXXXXXXX, ESQ." FILED IN THE CLERK'S OFFICE OF MIDDLESEX
COUNTY SEPTEMBER 18, 1917 AS MAP NUMBERED 863 FILE NUMBERED 350 (HEREINAFTER
REFERRED TO AS THE MAP); THENCE
8. STILL ALONG THE EASTERLY SIDE LINE OF NEW BROOKLYN ROAD AND THE PROPERTY
DELINEATED ON SAID MAP NORTH 21 DEGREES 08 MINUTES 30 SECONDS WEST A DISTANCE OF
16.62 FEET TO A POINT; THENCE
9. SOUTH 75 DEGREES 45 MINUTES 30 SECONDS WEST AND ALONG THE NORTHERLY LINE OF
NEW BROOKLYN ROAD AS DELINEATED ON SAID MAP A DISTANCE OF 247.46 FEET TO THE
POINT OF INTERSECTION OF THE EASTERLY SIDE LINE OF LOT NUMBERED 157 AS
DELINEATED ON SAID MAP; THENCE
10. NORTH 13 DEGREES 43 MINUTES 00 SECONDS WEST ALONG THE EASTERLY SIDE LINES
OF LOTS 157 THROUGH 150 AS DELINEATED ON SAID MAP A DISTANCE OF 220.59 FEET TO A
POINT; THENCE
11. SOUTH 68 DEGREES 51 MINUTES 30 SECONDS WEST ALONG THE DIVIDING BETWEEN LOT
150 AND 149 AS DELINEATED ON SAID MAP A DISTANCE OF 201.68 FEET TO THE EASTERLY
LINE OF DURHAM AVENUE; THENCE
12. NORTH 13 DEGREES 43 MINUTES 00 SECONDS WEST ALONG THE EASTERLY SIDE LINE OF
DURHAM ROAD A DISTANCE OF 421.69 FEET; THENCE
13. NORTH 64 DEGREES 37 MINUTES 00 SECONDS EAST AND ALONG THE NORTHERLY
BOUNDARY LINE OF SAID MAP A DISTANCE OF 863.17 FEET TO A POINT IN THE
AFOREMENTIONED XXXXXXXXXXXXX XXXX XX XXX XXXXXX XXXXX XXXXXXX XXXXX 000; THENCE
14. SOUTH 48 DEGREES 06 MINUTES 14 SECONDS EAST AND ALONG THE AFOREMENTIONED
XXXXXXXXXXXXX XXXX XX X.X. XXXXX XXXXXXX XXXXX 000 A DISTANCE OF 1737.467 FEET
TO THE AFOREMENTIONED NORTHERLY LINE OF RUNYONS ROAD AND THE PLACE OF BEGINNING.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 31
----------------------------------------------------------------------
PARCEL II
BEGINNING IN THE EASTERLY LINE OF DURHAM AVENUE AS SAID DURHAM AVENUE HAS BEEN
WIDENED BY CONDEMNATION DESCRIBED IN AWARDS DATED JULY 15, 1965, GRANTED BY
APPOINTED COMMISSIONERS, AT THE INTERSECTION OF SAID EASTERLY LINE WITH THE
DIVIDING LINE OF LOTS NUMBER 154 AND 155 AS SHOWN ON A MAP ENTITLED "MAP
MOUNTAIN VIEW HEIGHTS THE PROPERTY OF XXXXXX XXXXXXXXXX, ESQ. SITUATED IN
PISCATAWAY TOWNSHIP, MIDDLESEX COUNTY, NEW JERSEY" FILED IN THE OFFICE OF THE
CLERK OF MIDDLESEX COUNTY, SEPTEMBER 18, 1917 AS MAP XX. 000, XXXX 000 (XXX XXX)
XXXX XXXXX BEING DISTANT 9.44 FEET FROM THE EASTERLY SIDE LINE OF DURHAM AVENUE,
FORMERLY NEW BROOKLYN ROAD, AS SHOWN ON SAID MAP AND FROM SAID BEGINNING POINT
RUNNING; THENCE
1. NORTH 13 DEGREES 43 MINUTES 00 SECONDS WEST ALONG THE AFORESAID LINE OF
DURHAM AVENUE AS WIDENED BY CONDEMNATION, A DISTANCE OF 126.05 FEET TO A POINT;
THENCE
2. NORTH 68 DEGREES, 51 MINUTES 30 SECONDS EAST, ALONG THE DIVIDING LINE
BETWEEN LOTS NUMBER 149 AND 150 AS SHOWN ON THE MAP, A DISTANCE OF 192.24 FEET
TO A POINT; THENCE
3. SOUTH 13 DEGREES 43 MINUTES 00 SECONDS EAST, ALONG THE WESTERLY LINE OF
LOTS NUMBERED 147 AND 158 AS SAID LOTS ARE SHOWN ON THE MAP, A DISTANCE OF
126.05 FEET TO A POINT; THENCE
4. SOUTH 68 DEGREES 51 MINUTES 30 SECONDS WEST, ALONG THE DIVIDING LINE
BETWEEN LOTS NUMBERED 154 AND 155 AS SAID LOTS ARE SHOWN ON THE MAP, A DISTANCE
OF 192.24 FEET TO A POINT IN THE AFOREMENTIONED SAID LINE OF DURHAM AVENUE, AS
WIDENED BY CONDEMNATION AND THE POINT AND PLACE OF BEGINNING.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 32
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PARCEL III
BEGINNING IN THE NORTHWESTERLY LINE OF NEW BROOKLYN ROAD AT THE INTERSECTION OF
SAID NORTHWESTERLY LINE WITH THE DIVIDING LINE OF LOTS NUMBER 157 AND 158 AS
SHOWN ON A MAP ENTITLED "MAP MOUNTAIN VIEW HEIGHTS THE PROPERTY OF XXXXXX
XXXXXXXXXX, ESQ. SITUATED IN PISCATAWAY TOWNSHIP, MIDDLESEX COUNTY, NEW JERSEY"
FILED IN THE OFFICE OF THE CLERK OF MIDDLESEX COUNTY, SEPTEMBER 18, 1917 AS MAP
NO. 863, FILE 350 (THE MAP) AND FROM SAID BEGINNING POINT RUNNING; THENCE
1. SOUTH 75 DEGREES 45 MINUTES 30 SECONDS WEST, ALONG THE AFORESAID
NORTHWESTERLY LINE OF NEW BROOKLYN ROAD, A DISTANCE OF 185.0 FEET TO A POINT;
THENCE
2. NORTH 58 DEGREES 58 MINUTES 46 SECONDS WEST, A DISTANCE OF 7.94 FEET TO A
POINT; THENCE
3. NORTH 13 DEGREES 43 MINUTES 00 SECONDS WEST, ALONG THE EASTERLY LINE OF
DURHAM AVENUE, AS SAID DURHAM AVENUE HAS BEEN WIDENED BY CONDEMNATION DESCRIBED
IN AWARDS DATED JULY 15, 1965, GRANTED BY APPOINTED COMMISSIONERS, A DISTANCE OF
76.10 FEET TO A POINT; THENCE
4. NORTH 68 DEGREES 51 MINUTES 30 SECONDS EAST, ALONG THE DIVIDING LINE
BETWEEN NUMBER 154 AND 155, AS SHOWN ON THE MAP, A DISTANCE OF 192.24 FEET TO A
POINT; THENCE
5. SOUTH 13 DEGREES 43 MINUTES 00 SECONDS EAST, ALONG THE WESTERLY LINE OF LOT
NUMBER 158 AS SHOWN ON THE MAP, A DISTANCE OF 104.54 FEET TO A POINT IN THE
AFOREMENTIONED NORTHWESTERLY LINE OF NEW BROOKLYN ROAD AND THE PLACE OF
BEGINNING.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 33
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THE ABOVE THREE TRACTS BEING JOINTLY DESCRIBED AS FOLLOWS:
BEGINNING IN THE NORTHERLY LINE OF RUNYONS LANE WHERE THE SAME IS INTERSECTED BY
THE SOUTHWESTERLY LINE OF NEW JERSEY STATE HIGHWAY ROUTE 287 AND FROM SAID
BEGINNING POINT RUNNING; THENCE
1. SOUTH 72 DEGREES 51 MINUTES 16 SECONDS WEST AND ALONG THE AFOREMENTIONED
NORTHERLY LINE OF RUNYONS LANE A DISTANCE OF 237.40 FEET TO A CORNER OF LAND NOW
OR FORMERLY OF L.A. & X.X. XXXXXXX; THENCE
2. NORTH 12 DEGREES 21 MINUTES 44 SECONDS WEST AND ALONG THE LINE OF LANDS OF
"XXXXXXX" AS AFOREMENTIONED A DISTANCE OF 196.02 FEET TO A POINT; THENCE
3. NORTH 21 DEGREES 20 MINUTES 09 SECONDS WEST AND STILL ALONG A LINE OF LAND
OF "XXXXXXX" AS AFORESAID A DISTANCE OF 18.27 FEET TO A POINT; THENCE
4. SOUTH 77 DEGREES 17 MINUTES 56 SECONDS WEST AND STILL ALONG A LINE OF
"XXXXXXX" AS AFORESAID A DISTANCE OF 223.01 FEET TO A POINT; THENCE
5. SOUTH 12 DEGREES 45 MINUTES 44 SECONDS EAST AND STILL ALONG ANOTHER LINE OF
"XXXXXXX" AS AFORESAID A DISTANCE OF 231.51 FEET TO A POINT IN THE
AFOREMENTIONED NORTHERLY LINE OF RUNYONS LANE; THENCE
6. SOUTH 72 DEGREES 51 MINUTES 16 SECONDS WEST AND ALONG THE NORTHERLY LINE OF
RUNYONS LANE A DISTANCE OF 869.34 FEET TO THE EASTERLY SIDELINE OF NEW BROOKLYN
ROAD; THENCE
7. NORTH 17 DEGREES 37 MINUTES 14 SECONDS WEST AND ALONG SAID EASTERLY LINE OF
NEW BROOKLYN ROAD A DISTANCE OF 700.12 FEET TO A POINT; THENCE
8. STILL ALONG THE EASTERLY SIDE LINE OF NEW BROOKLYN ROAD NORTH 21 DEGREES 08
MINUTES 30 SECONDS WEST A DISTANCE OF 16.62 FEET TO A POINT; THENCE
9. SOUTH 75 DEGREES 45 MINUTES 30 SECONDS WEST AND ALONG THE NORTHERLY LINE OF
NEW BROOKLYN ROAD A DISTANCE OF 432.46 FEET TO A POINT; THENCE
10. NORTH 58 DEGREES 58 MINUTES 46 SECONDS WEST, 7.93 FEET TO A POINT IN THE
EASTERLY SIDELINE OF DURHAM AVENUE; THENCE
11. NORTH 13 DEGREES 43 MINUTES 00 SECONDS WEST, 201.85 FEET TO A POINT
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 34
----------------------------------------------------------------------
IN SAID SIDELINE; THENCE
12. SOUTH 68 DEGREES 51 MINUTES 30 SECONDS WEST, 9.44 FEET TO A POINT; THENCE
13. NORTH 13 DEGREES 43 MINUTES 00 SECONDS WEST ALONG THE EASTERLY SIDE LINE OF
DURHAM AVENUE A DISTANCE OF 421.69 FEET; THENCE
14. NORTH 64 DEGREES 37 MINUTES 00 SECONDS EAST AND ALONG THE NORTHERLY
BOUNDARY LINE OF SAID MAP A DISTANCE OF 863.17 FEET TO A POINT IN THE
AFOREMENTIONED XXXXXXXXXXXXX XXXX XX XXX XXXXXX XXXXX XXXXXXX XXXXX 000; THENCE
15. SOUTH 48 DEGREES 06 MINUTES 14 SECONDS EAST AND ALONG THE AFOREMENTIONED
XXXXXXXXXXXXX XXXX XX X.X. XXXXX XXXXXXX XXXXX 000 A DISTANCE OF 1737.47 FEET TO
THE AFOREMENTIONED NORTHERLY LINE OF RUNYONS ROAD AND THE PLACE OF BEGINNING.
THE ABOVE DESCRIPTION IS IN ACCORDANCE WITH A SURVEY PREPARED BY XXXXXX
ENGINEERS, DATED DECEMBER 30, 1997.
BEING ALSO KNOWN AS (REPORTED FOR INFORMATIONAL PURPOSES ONLY):
XXX 0.X0 XXX 0.X0, XXXXX 00.X, XX THE OFFICIAL TAX MAP OF EDISON TOWNSHIP LOT 3,
BLOCK 550, ON THE OFFICIAL TAX MAP OF SOUTH PLAINFIELD BOROUGH.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 35
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EXHIBIT B
---------
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION
---------------------------------------
(0000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX)
THIS XXXX OF SALE, ASSIGNMENT AND ASSUMPTION is made as of the _____ day
of __________________, ______, by and between WHMAB REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignor"), and
--------
_________________________, a _________________________ ("Assignee").
--------
W I T N E S S E T H:
For good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged Assignor and Assignee hereby agree as follows:
1. Assignor hereby sells, transfers, assigns and conveys to Assignee
the following:
a. All right, title and interest of Assignor in and to all
tangible personal property ("Personalty") set forth in the inventory on Exhibit
---------- -------
A attached hereto and made a part hereof, and located on, and used in connection
-
with the management, maintenance or operation of that certain land and
improvements located in the County of Middlesex, State of New Jersey, as more
particularly described in Exhibit B attached hereto and made a part hereof
---------
("Real Property"), but excluding tangible personal property owned or leased by
-------------
Assignor's property manager or the tenants of the Real Property under the Tenant
Leases (as defined below).
b. All right, title and interest of Assignor in and to those
certain leases described on Exhibit C attached hereto and made a part hereof
---------
(the "Tenant Leases"), relating to the leasing of space in the Real Property and
-------------
all of the rights, interests, benefits and privileges of the lessor thereunder,
and to the extent Assignee has not received a credit therefor under the Purchase
Agreement (as defined below), all prepaid rents and security and other deposits
held by Assignor under the Tenant Leases and not credited or returned to
tenants, but subject to all terms, conditions, reservations and limitations set
forth in the Tenant Leases.
c. To the extent assignable, all right, title and interest of
Assignor in and to those certain contracts set forth on Exhibit D attached
---------
hereto and made a part hereof, and all warranties, guaranties, indemnities and
claims (including, without limitation, for workmanship, materials and
performance) and which exist or may hereafter exist against any contractor,
subcontractor, manufacturer or supplier or laborer or other services relating
thereto (collectively, the "Contracts").
---------
2. This Xxxx of Sale, Assignment and Assumption is given pursuant to
that certain Agreement of Purchase and Sale (as amended, the "Purchase
--------
Agreement") dated as of ____________________, between Assignor and Assignee,
---------
providing for, among other things, the conveyance of the Personalty, the Tenant
Leases and the Contracts.
3. As set forth in Article 11 of the Purchase Agreement, which is
----------
hereby incorporated by reference as if herein set out in full and except as set
forth herein, the property conveyed hereunder is conveyed by Assignor and
accepted by Assignee AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER
NATURE, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 36
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SET FORTH IN THE PURCHASE AGREEMENT, IT BEING THE INTENTION OF ASSIGNOR AND
ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR
BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL
THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE NEW
JERSEY UNIFORM COMMERCIAL CODE.
4. Assignee hereby accepts the assignment of the Personalty, the
Tenant Leases and the Contracts and agrees to assume and discharge, in
accordance with the terms thereof, all of the obligations thereunder from and
after the date hereof. Additionally, but without limiting the generality of the
foregoing, Assignee agrees to assume and discharge all leasing commissions,
costs for tenant improvements, legal fees and other costs and expenses incurred
with respect to Leases and Lease renewals and extensions executed subsequent to
the Effective Date of the Agreement and those set forth on Exhibit E attached
---------
hereto.
5. Assignee agrees to indemnify and hold harmless Assignor from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the foregoing obligations
arising from and accruing on or after the date hereof.
6. Assignor agrees to indemnify and hold harmless Assignee from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignor's failure to perform any of the obligations of Assignor
under the Tenant Leases or Contracts, to the extent accruing prior to the date
hereof.
7. This Xxxx of Sale, Assignment and Assumption may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 37
----------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Xxxx of
Sale, Assignment and Assumption as of the date first above written.
ASSIGNOR:
--------
WHMAB REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WHMAB Gen-Par, Inc.,
a Delaware corporation,
its general partner
By:_________________________________
Name:_______________________________
Title:______________________________
ASSIGNEE:
--------
___________________________________________,
a __________________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
[INSERT APPROPRIATE ACKNOWLEDGMENTS FOR THE STATE]
Exhibit A Personalty
Exhibit B Real Property
Exhibit C Tenant Leases
Exhibit D Contracts
Exhibit E Lease Costs and Expenses
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 38
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EXHIBIT C
---------
ERISA LETTER
------------
, ________
WHMAB Real Estate Limited Partnership
Re: Acquisition of 0000 Xxxxxx Xxxxxx in South Plainfield, NJ
Ladies and Gentlemen:
The undersigned represents to you that [Purchaser], or any affiliates
thereof, or any firm, person or entity providing financing for the purchase of
the entire interest of WHMAB Real Estate Limited Partnership in the
above-described property (the "Property") are not using the assets of an
--------
employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and covered under Title I,
-----
Part 4 of the ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended, in the performance or discharge of its obligations under that certain
Agreement of Purchase and Sale dated __________________, ________, with respect
to the Property by and between WHMAB Real Estate Limited Partnership, as Seller,
and the undersigned, as Purchaser, including the acquisition of the Property.
Very truly yours,
___________________________________,
a __________________________________
By:_________________________________
Name:_______________________________
Title:______________________________
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 39
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EXHIBIT D
---------
NOTICE TO TENANTS
-----------------
, ________
Dear Tenant:
You are hereby notified that WHMAB Real Estate Limited Partnership ("Seller"),
------
the current owner of the property located at 0000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, XX (the "Property") and the current owner of the landlord's interest
--------
in your lease in the Property, has sold the Property to [Purchaser] ("New
---
Owner"), as of the above date. In connection with such sale, Seller has assigned
-----
and transferred its interest in your lease and any and all security deposits
thereunder or relating thereto to New Owner, and New Owner has assumed and
agreed to perform all of the landlord's obligations under your lease (including
any obligations set forth in your lease to repay or account for any security
deposits thereunder) from and after such date.
Accordingly, (a) all your obligations under the lease from and after the date
hereof, including your obligation to pay rent, shall be performable to and for
the benefit of New Owner, its successors and assigns, and (b) all the
obligations of the landlord under the lease, including any obligations to repay
or account for any security deposits hereunder, shall be the binding obligation
of New Owner and its successors and assigns. Unless and until you are otherwise
notified in writing by New Owner, the address of New Owner for all purposes
under your lease is:
Very truly yours,
SELLER:
------
WHMAB REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WHMAB Gen-Par, Inc.,
a Delaware corporation,
its general partner
By:_________________________________
Name:_______________________________
Title:______________________________
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 40
----------------------------------------------------------------------
NEW OWNER:
---------
___________________________________________,
a __________________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 41
----------------------------------------------------------------------
EXHIBIT E
---------
TENANT ESTOPPEL CERTIFICATE
---------------------------
TO: ____________________________________
MOTOROLA, INC. ("Tenant") hereby states, upon Tenant's knowledge and
------
belief, to _____________________________ ("Purchaser") and to
---------
_______________________________ ("Lender") as follows, with the understanding
------
that Purchaser and Lender are relying on such statements as an inducement to
purchase the property which is described in the Lease:
1. Tenant is the tenant under that certain lease (as amended to
date, the "Lease") dated December 1999 between WHMAB Real Estate Leasing
-----
Partnership as landlord ("Landlord") and Tenant, covering 220,115 rentable
--------
square feet of office space and 16,545 square feet of storage space (the "Leased
------
Premises") in the building (the "Building") located on the property (the
-------- --------
"Property").
--------
2. Attached hereto as Exhibit A is a true, correct and complete
---------
copy of the Lease, including all amendments or modifications thereto, if any.
3. The Lease has not been amended or modified, except as reflected
in Exhibit A, and is in full force and effect as originally executed, and
---------
Landlord is not in default in any respect under any terms of the Lease.
4. Monthly rental and other charges have been paid by Tenant to
Landlord through the following dates: ________________.
EXECUTED this ________ day of __________________, ________.
TENANT:
------
MOTOROLA, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 42
----------------------------------------------------------------------
EXHIBIT E-1
-----------
ADDITIONAL REQUEST ITEMS
------------------------
Additional items Landlord will request be included in the Tenant Estoppel
Certificate, but which Landlord is not obligated to obtain:
1. The Commencement Date under the Lease is ___________, 2000 and the Lease
will terminate on the 10th anniversary of such date;
2. Tenant is in possession of the Lease Premises and the Landlord's Work, as
defined in the Lease, has been performed;
3. Landlord has paid to Tenant $_________ in respect of the Base Building
Allowance, the Tenant Improvement Allowance and the Architectural Allowance
(all as defined in Section 4.C. of the Lease) and Landlord has [no further
-----------
obligations in respect thereof / the following obligations in respect
thereof: _____________;]
4. Upon receipt of written notice from the Landlord that it has transferred
the property demised by the Lease to Purchaser, Tenant shall attorn to and
recognize Purchaser as the Landlord under the Lease. Notices to the
Landlord under the Lease following such transfer shall be given to
Purchaser c/x Xxxxx Capital, Inc., 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000;
Xxxxxxxx, Xxxxxxx 00000; Attention: Property Management;
5. There is no security deposit under the Lease;
6. Except as set forth in the Lease, Tenant has no rights of offset against
Landlord. The person signing this letter on behalf of Tenant is a duly
authorized representative of Tenant;
7. The Premises demised by the Lease contain 220,115 rentable square feet of
office space and 16,595 rentable square feet of storage space;
8. Tenant represents that it has not dealt with any agents or brokers so as to
cause any brokerage commissions to be due and payable with respect to the
Lease; and
9. To Tenant's knowledge, there are no structural or other defects in the
Building (as defined in the Lease), and the heating, ventilating, air
conditioning, electrical, plumbing, water, elevators, roofing, storm
drainage and sanitary sewage stations at or servicing the Building are in
good condition and in working order.
10. Tenant has elected not to exercise its Right of First Offer under Section
58.D of the Lease in connection with the sale of the Building to Purchaser.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 43
----------------------------------------------------------------------
Exhibit A to Tenant Estoppel Certificate
----------------------------------------
[Lease Agreement and Amendments Thereto, If Any]
EXHIBIT F
---------
LIST OF TENANTS
---------------
Motorola, Inc.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 44
----------------------------------------------------------------------
EXHIBIT G
---------
MANDATORY ARBITRATION
---------------------
The parties have agreed to submit certain disputes to mandatory arbitration in
accordance with the following provisions:
Scope of Arbitration. The parties to this Agreement have agreed to
--------------------
submit all disputes to final and binding arbitration as the sole and exclusive
remedy for all claims for damages arising out of, involving, or relating to (a)
this Agreement or (b) the events giving rise to this Agreement, including all
non-contractual claims for damages related to this Agreement or the events
giving rise to it (including claims for fraudulent inducement of contract).
Notwithstanding the foregoing, the dispute resolution procedure set forth below
shall not apply to (i) claims for injunctive or other equitable relief, or (ii)
any claims for specific performance. The parties agree that two (2) sets of
rules will apply, depending on the amount in controversy. If the amount in
controversy is equal to or less than $50,000.00, then SET A (as set forth below)
will apply. If the amount in controversy is greater than $50,000.00, then SET B
will apply. The amount in controversy is calculated using the amount of actual
damages alleged by the Claiming Party (defined below), exclusive of interest and
attorneys' fees. The dispute resolution procedure set forth below does not
independently give rise to any right or remedy. The procedure is intended to be
applied to rights or remedies expressly granted in other sections of this
Agreement.
Notice of Dispute. Any party shall give the other parties written notice
-----------------
of the existence and nature of any dispute proposed to be arbitrated (the
"Written Notice"). The Written Notice must be served on the other parties as
--------------
required below. The party serving Written Notice shall be referred to as the
"Claiming Party." The party to whom the claims are directed shall be referred to
--------------
as the "Responding Party."
----------------
Appointment of Arbitrators.
--------------------------
SET A: The parties agree that these disputes will be arbitrated
by a single arbitrator who is a board certified or licensed real estate attorney
in the state in which the Property is located. The parties shall attempt to
agree upon an arbitrator within ten (10) days of the service of the Written
Notice. If the parties are unable to agree, then the arbitrator shall be
appointed from, and pursuant to the rules for commercial arbitration of, the
American Arbitration Association. Prior to appointment, the arbitrator shall
agree to conduct such arbitration in strict accordance with the terms of this
Agreement.
SET B: The parties agree that these disputes will be arbitrated
by a panel of three (3) arbitrators. Each party shall appoint one person to
serve as an arbitrator within fifteen (15) days of receipt of the Written
Notice. The two (2) arbitrators thus appointed shall within seven (7) days of
their appointment together select a third arbitrator with such knowledge and
expertise as necessary to serve as chairman of the panel of arbitrators
(preferably a board certified or licensed real estate attorney in the state in
which the Property is located), and this person shall serve as chairman. The
three arbitrators shall determine all matters, including the panel's final
decision with respect to the claims presented in the arbitration, by majority
vote. If the two arbitrators selected by the parties are unable to agree upon
the appointment of the third arbitrator within seven (7) days of their
appointment, both shall give written notice of such failure to agree to the
parties, and if the parties fail to agree upon the selection of such third
arbitrator within five (5) days thereafter, such third arbitrator shall be
appointed from, and pursuant to the rules for commercial arbitration of, the
American Arbitration Association. Prior to appointment, each arbitrator shall
agree to conduct such arbitration in strict accordance with the terms of this
Agreement.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 45
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Initial Meeting of the Arbitrators. Within seven (7) days after the
----------------------------------
selection of the last arbitrator (SET A: the arbitrator; SET B: the third
arbitrator), the arbitrator(s) shall conduct an initial meeting with the parties
(the "Initial Meeting"). All meetings between the arbitrators, or between the
---------------
arbitrator(s) and the parties, including the Initial Meeting, may be conducted
by telephone, with the exception of the arbitration hearing at which evidence is
presented. At the Initial Meeting, the parties and the arbitrator(s) shall agree
upon a schedule for the arbitration proceedings, with dates no later than the
deadlines provided below. The statement of claim, the response to the statement
of claim and counterclaims (if any), and the response to the counterclaims (if
any) (collectively, the "Pleadings") shall be submitted to each arbitrator on
---------
the date they are served, unless service occurs prior to appointment of all
arbitrators. If service of any of the Pleadings occurs prior to the appointment
of any of the arbitrators, copies of any such Pleadings shall be submitted to
such arbitrator promptly after such arbitrator's appointment.
Conduct of the Arbitration.
--------------------------
SET A: With respect to each dispute to be arbitrated, no more
than six (6) months shall pass between the selection of the arbitrator and the
release of a decision by the arbitrator; no more than two (2) depositions
(lasting in total for both depositions no more than 15 hours) may be taken by
each of the Claiming Party or the Responding Party, and no more than ten (10)
interrogatories may be asked for by each of the Claiming Party or the Responding
Party. The arbitration hearing shall last no more than two (2) days with the
time divided equally between the parties. All proceedings, including discovery,
depositions, and the arbitration hearings shall be governed by the Federal Rules
of Civil Procedure and the Local Rules of Civil Procedure of the United States
District Court for the district in which the Property is located, unless such
rules conflict with the provisions of this Agreement, in which case the
provisions of this Agreement control; provided, however, that the parties agree
that the provisions of Federal Rule of Civil Procedure 26(a) shall not apply.
SET B: With respect to each dispute to be arbitrated, no more
than eleven (11) months shall pass between the selection of the third arbitrator
and the release of a decision by the arbitration panel; no more than eight (8)
depositions (lasting in total for all eight depositions no more than 50 hours)
may be taken by each of the Claiming Party or the Responding Party, and no more
than thirty (30) interrogatories may be asked for by each of the Claiming Party
or the Responding Party. The arbitration hearing shall last no more than five
(5) days with the time divided equally between the parties. All proceedings,
including discovery, depositions, and the arbitration hearings shall be governed
by the Federal Rules of Civil Procedure and the Local Rules of Civil Procedure
of the United States District Court for the district in which the Property is
located, unless such rules conflict with the provisions of this Agreement, in
which case the provisions of this Agreement control; provided, however, that the
parties agree that the provisions of Federal Rule of Civil Procedure 26(a) shall
not apply.
Motions. The parties may make applications to the panel of arbitrator(s)
-------
regarding issues of discovery, procedure and privilege. Any such motions shall
be made to and resolved by the arbitrator(s) as soon as practicable. No party
shall be permitted to file any motions for dismissal of claims (including
dismissal based upon failure to join an indispensable party), or for summary
judgment, concerning the claims or counterclaims asserted in any arbitration.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 46
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Schedule of Arbitration Proceedings.
-----------------------------------
SET A: At the Initial Meeting, the parties and the arbitrator
shall agree to a schedule that conforms with the following deadlines:
----------------------------------------- --------------------------------------------
Event Deadline Not Later Than
----- -----------------------
----------------------------------------- --------------------------------------------
Service of statement of claim by 15 days after service of Written Notice
Claiming Party
----------------------------------------- --------------------------------------------
Service of response to statement of 21 days after service of statement of claim
claim and counterclaims, if any, by
Responding Party
----------------------------------------- --------------------------------------------
Service of response to counterclaims, 7 days after service of counterclaims, if
if any, by the Claiming Party any
----------------------------------------- --------------------------------------------
Commencement of document discovery 1 day after service of response to
statement of claim
----------------------------------------- --------------------------------------------
Commencement of deposition discovery 45 days after service of statement of claim
----------------------------------------- --------------------------------------------
Completion of all discovery 100 days after service of statement of
claim
----------------------------------------- --------------------------------------------
Commencement of the arbitration hearing 21 days after the completion of discovery
----------------------------------------- --------------------------------------------
Issuance of decision by the 14 days after receipt of the last hearing
arbitrator(s) transcript by the arbitrator(s). [All
sessions of the arbitration hearings shall
be promptly transcribed and transcripts
shall be promptly provided to the parties
and the arbitrator(s).]
----------------------------------------- --------------------------------------------
SET B: At the Initial Meeting, the parties and the arbitrators
shall agree to a schedule that conforms with the following deadlines:
----------------------------------------- --------------------------------------------
Event Deadline Not Later Than
----- -----------------------
----------------------------------------- --------------------------------------------
Service of statement of claim by 15 days after service of Written Notice
Claiming Party
----------------------------------------- --------------------------------------------
Service of response to statement of 21 days after service of statement of claim
claim and counterclaims, if any, by
Responding Party
----------------------------------------- --------------------------------------------
Service of response to counterclaims, 7 days after service of counterclaims, if
if any, by the Claiming Party any
----------------------------------------- --------------------------------------------
----------------------------------------- --------------------------------------------
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 47
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----------------------------------------- --------------------------------------------
Event Deadline Not Later Than
----- -----------------------
----------------------------------------- --------------------------------------------
Commencement of document discovery 1 day after service of response to
statement of claim
----------------------------------------- --------------------------------------------
Commencement of deposition discovery 75 days after service of statement of claim
----------------------------------------- --------------------------------------------
Completion of all discovery 200 days after service of statement of
claim
----------------------------------------- --------------------------------------------
Commencement of the arbitration hearing 30 days after the completion of discovery
----------------------------------------- --------------------------------------------
Issuance of decision by the 14 days after receipt of the last hearing
arbitrator(s) transcript by the arbitrator(s). [All
sessions of the arbitration hearings shall
be promptly transcribed and transcripts shall
be promptly provided to the parties and the
arbitrator(s).]
----------------------------------------- --------------------------------------------
Extensions of Time. The parties may jointly agree, in writing, to
------------------
extend any of the foregoing deadlines.
Decision Binding on the Parties. Unless the parties agree otherwise in
-------------------------------
writing, the arbitrator(s)' decision shall become binding on the parties at such
time as the decision is confirmed by order of a court in the jurisdiction where
the Property is located. The parties irrevocably and unconditionally submit to
the jurisdiction of such court for any and all proceedings relating to such
confirmation. Any award ordered shall be paid within ten (10) days of
confirmation of the arbitrator(s)' decision.
Cost of Arbitration Proceeding. Except as specifically provided, the
------------------------------
costs incurred by the parties in conjunction with an arbitration proceeding
pursuant to this Agreement, including reasonable attorney's fees, fees paid to
experts, and fees for obtaining transcripts shall be paid or reimbursed in
accordance with the provisions of Section 10.3 of the Agreement. In the event
------------
that the arbitrators determine that no party is entitled to indemnification by
any other party, then (a) each party shall pay its own expenses, including
attorney's fees, fees paid to experts, fees for obtaining transcripts, expenses
of witnesses called solely by that party, and all fees charged by the arbitrator
appointed by such party and (b) the parties shall each pay fifty percent of all
remaining expenses of the arbitration proceeding.
Service of Documents. Any process, notice, memorandum, motion, demand,
--------------------
or other paper or communication, or application to the panel of arbitrators
shall be deemed to have been sufficiently served or submitted if done in
accordance with Section 12.9 of this Agreement, except that service by facsimile
------------
shall not suffice for purposes of this Exhibit G.
---------
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 48
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SCHEDULE 11.3
LIST OF ENVIRONMENTAL REPORTS
-----------------------------
1. Asbestos Exposure Assessment, prepared by Kaselaan & D'Angelo Associates,
Inc., dated 10/17/1988.
2. Phase I Prelim Hazardous Material Site Assessment, prepared by Xxxxxxx
Xxxxxx Associates, dated 05/13/1993.
3. UST Closure Summary, prepared by Xxxxxxx Xxxxxx Associates, dated
03/02/1994.
4. Phase I ESA, prepared by Xxxxxxxx Environmental Company, dated 03/21/1997.
5. Phase I ESA, prepared by ENSR, dated 08/01/1997.
6. Wetland Assessment, prepared by ENSR, dated 08/18/1997.
7. Industrial Site Recovery Act Applicability Affidavit, New Jersey Department
of Env. Protection, dated 12/01/1997.
8. ISRA response, prepared by NJDEP, dated 12/22/1997.
9. Environmental Document Review and Recommendations, prepared by EMG, dated
12/31/1997.
10. Phase I ESA, prepared by ATC Associates, dated 05/18/1998.
11. Asbestos Management Plan, prepared by Archon Group, L.P., dated 06/09/1998.
12. Asbestos Sampling, prepared by EPC Technologies, dated 08/19/1999.
13. Preliminary Assessment Report, prepared by Environmental Science &
Engineering, Inc., dated 10/06/1999.
14. Asbestos Abatement, prepared by MARCOR Remediation, Inc., dated 05/23/2000.
15. Tenant Material Safety Data Sheet (MSDS) dated 12/10/1999.
16. Asbestos Abatement Final Report, prepared by ATC Associates, Inc., dated
05/17/2000.
17. Asbestos Abatement and Generator Upgrade Activities Acknowledgment Letter,
prepared by Archon Group, L.P., dated 07/20/2000.
Agreement of Purchase and Sale - (1111 Durham Ave., S. Plainfield, NJ) - Page 49
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