AGREEMENT OF PURCHASE AND SALE
000 Xxxxx 00, Xxx 00.00, Xxxxx 0000 Xxxxxxx Xxxxxxxx (Xxxxxxxx),
Xxxxxx Xxxxxx, New Jersey
This Agreement of Purchase and Sale ("Agreement") is made and entered into
by and between Purchaser and Seller.
RECITALS
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: WXV/Whippany, LLC, a Delaware
limited liability company
1.1.2 Purchaser: Caplease, LP, a Delaware limited partnership
1.1.3 Purchase Price: $48,000,000.00
1.1.4 Xxxxxxx Money: $500,000.00 (the "Initial Xxxxxxx Money"),
including interest thereon, to be deposited
in accordance with Section 3.1 below, to be
increased by $1,500,000.00 (the "Additional
Xxxxxxx Money") to $2,000,000.00, plus
interest thereon, pursuant to Section 3.1.
1.1.5 Title Company: Commonwealth Land Title Insurance Company
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 New York Office
Attention: Xxxxx X. Xxxxx Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.1.6 Escrow Agent: Commonwealth
Same contact information as above.
1.1.7 Broker: Granite Partners
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 and fully executed
counterparts have been delivered to Seller
and Purchaser.
1.1.9 Property
Information
Delivery Date: The date which is five (5) days after the
Effective Date.
1.1.10 Title Commitment
Delivery Date: Not Applicable. Seller has delivered
to Purchaser a report on title prepared by
Commonwealth dated September 12, 2004.
Purchaser, at its own cost and expense shall
order an update of said report and obtain
the Title Commitment.
1.1.11 Survey Delivery
Date: On or prior to the Effective Date.
1.1.12 Title and Survey
Review Period: This period shall be the same as the
Inspection Period.
1.1.13 Inspection
Period: The period beginning on the Effective Date
and ending December 22, 2004.
1.1.14 Closing Date: January 6, 2005
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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 obtained pursuant to Section 5.1 Purchaser
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Premium for standard form Title Policy required to be delivered pursuant to Section 5.4 Purchaser
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Premium for any upgrade of Title Policy for extended or additional coverage and Purchaser
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 thereto Purchaser
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Costs for UCC Searches Purchaser
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Recording Fees Purchaser
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Any deed taxes, documentary stamps, transfer taxes, intangible taxes, mortgage Seller
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 conducting the Closing Purchaser 1/2
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
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1.3 NOTICE ADDRESSES:
Purchaser: Caplease, LP Copy to: Dechert LLP
000 Xxxxxx, Xxxx, 00xx Xxxxx 0000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq. Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Seller: WXV Whippany LLC Copy to: Archon's General Counsel
c/o Archon Group, L.P. 000 X. Xxx Xxxxxxx Xxxx.
00 Xxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxx XxXxxxxx Attention: Xxx Xxxxxxx, Esq.
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Copy to: Xxxxxxxxx Xxxx Xxxxx & Xxxxx, LLP
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
1.4 INDEX OF CERTAIN ADDITIONAL DEFINED TERMS:
Additional Property Information...........................Section 4.2
Asset Manager...........................................Section 12.18
Asset Manager's Employee..................................Section 9.3
Assignment...........................................Subsection 7.3.2
CERCLA...................................................Section 11.3
Closing...................................................Section 7.1
Deed.................................................Subsection 7.3.1
Designated Representative(s)............................Section 12.18
Due Diligence Termination Notice..........................Section 4.5
ERISA................................................Subsection 7.4.2
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
Lease................................................Subsection 2.1.2
Leasing Costs.............................................Section 8.2
Operating Statements.................................Subsection 4.1.2
Permitted Exceptions......................................Section 5.3
Permitted Outside Parties.................................Section 4.8
Property..................................................Section 2.1
Property Documents........................................Section 4.5
Property Information......................................Section 4.1
Real Property........................................Subsection 2.1.1
Rent Roll............................................Subsection 4.1.1
Reports...................................................Section 4.6
Service Contracts....................................Subsection 2.1.4
Survey....................................................Section 5.2
Survival Period...........................................Section 9.3
Tangible Personal Property...........................Subsection 2.1.3
Taxes.....................................................Section 8.1
Tenant Receivables...................................Subsection 8.1.3
Title Commitment..........................................Section 5.1
Title Policy..............................................Section 5.4
ARTICLE 2 - PROPERTY
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 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").
2.1.2 LEASE. All of Seller's right, title and interest, without
warranty, in and to that certain Lease dated as of May 4, 2004 between Seller as
landlord and Cadbury Schweppes, Holdings (U.S.), a Nevada general partnership,
as tenant (the "Lease"), which Lease was assigned to Cadbury Xxxxx USA LLC (the
"Tenant"), effective as of June 1, 2004.
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"). Notwithstanding the
foregoing, no Tangible Personal Property is included in the sale.
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
without cost to Seller); contract rights related to the operation, ownership or
management of the Real Property, including maintenance, service, construction,
supply and equipment rental contracts, if any, but not including leases or
license agreements (collectively, the "Service Contracts") (but only to the
extent assignable without cost to Seller and Seller's obligations thereunder are
expressly assumed by Purchaser pursuant to this Agreement); warranties (to the
extent assignable without cost to Seller); governmental permits, approvals and
licenses, if any (to the extent assignable without cost to Seller); and
telephone exchange numbers (to the extent assignable without cost to Seller (all
of the items described in this Subsection 2.1.4 collectively referred to as the
"Intangible Personal Property").
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2.1.5 LICENSE AGREEMENTS. All of Seller's right, title and interest,
without warranty, in and to all agreements (other than Leases), if any, for the
leasing or licensing of rooftop space or equipment, telecommunications
equipment, cable access and other space, equipment and facilities that are
located on or within the Real Property and generate income to Seller as the
owner of the Real Property, including agreements which may be made by Seller
after the Effective Date and prior to Closing as permitted by this Agreement
(the "License Agreements"). Anything in this Agreement to the contrary
notwithstanding, Purchaser shall assume the obligations of the "lessor" or
"licensor" under all License Agreements, some or all of which may be
non-cancelable. Notwithstanding the foregoing, no License Agreements are
included in the sale.
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 two (2)
business days following the expiration 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 (sometimes hereinafter
referred to as the "Deposit") 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.
3.1.1. In the event that the Escrow Agent receives conflicting
instructions from the parties or determines in good faith that a bonafide
dispute exists as to whether the Escrow Agent is obligated to deliver the
Deposit, or as to whom said Deposit is to be delivered, the Escrow Agent, at its
option, (a) may refuse to comply with any claims or demands on it and continue
to hold the Deposit until (I) the Escrow Agent receives written notice signed by
the Seller and the Purchaser directing the release and delivery of the Deposit,
in which event the Escrow Agent shall then release and deliver the Deposit in
accordance with said direction, or (ii) the Escrow Agent receives a certified
copy of a final non-appealable judgment of a court of competent jurisdiction
directing the release and delivery of the Deposit, in which event the Escrow
Agent shall then release and deliver the Deposit in accordance with said
direction, or (b) may deliver the Deposit to the Clerk of the Superior Court of
the State of New Jersey, for the County of Xxxxxx, or (c) may take such
affirmative steps as the Escrow Agent may elect in order to substitute another
impartial party reasonably satisfactory to the Seller and the Purchaser (whose
consents to such substitution shall not be unreasonably withheld), to hold the
Deposit, including, without limitation, the deposit thereof in a court of
competent jurisdiction and the commencement of an action for interpleader, the
costs thereof to be the joint and several obligation of the Seller and the
Purchaser (but, as between the Seller and the Purchaser, such costs shall be
borne by whichever of the Seller or the Purchaser is the losing party, or in
accordance with any mutual agreement of the Seller and the Purchaser if neither
party is the losing party).
The Escrow Agent is acting as a stakeholder only with respect to the
Deposit. It is agreed that the duties of the Escrow Agent are only
as herein specifically provided, and are purely ministerial in
nature, and that the Escrow Agent shall incur no liability
whatsoever except for willful misconduct or gross negligence. The
Seller and the Purchaser each release the Escrow Agent from any act
done or omitted to be done by the Escrow Agent in good faith in the
performance of its duties hereunder.
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The Seller and the Purchaser shall jointly and severally indemnify,
defend (with counsel acceptable to the Escrow Agent) and save
harmless the Escrow Agent from and against all loss, cost, claim,
liability, damage and expense, including reasonable attorneys' fees
and disbursements incurred in connection with the performance of the
Escrow Agent's duties hereunder, except with respect to actions or
omissions taken or suffered by the Escrow Agent in bad faith, in
willful disregard of this Escrow Agreement, or involving gross
negligence on the part of the Escrow Agent (the "Indemnified
Matters") (but, as between the Seller and the Purchaser, the cost of
such Indemnified Matters shall be shared equally, except to the
extent that such Indemnified Matters are attributable to the breach
by the Seller or the Purchaser of the Agreement or this Escrow
Agreement, in which event the cost shall be borne by whichever of
the Seller or the Purchaser is the breaching party.
The parties agree and acknowledge that the Escrow Agent has no
liability in connection with Deposit in the event of failure or
insolvency of the financial institution in which the Deposit is
deposited.
All notices, demands, offers, elections or other communications
required or permitted by this Escrow Agreement shall be in writing
and shall be personally delivered, either by express mail or by
reputable overnight courier which delivers only upon receipt of
addresses, and addressed to the party at its address set forth below
by either of the aforesaid methods, or by registered or certified
mail, postage prepaid, with a return receipt requested, with copies
as follows:
To the Seller and Purchaser, and with copies and in the manner as
hereinafter set forth in Section 12.9, and to the Escrow Agent:
LAWYERS TITLE INSURANCE CORPORATION
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: FAX: 212
Notwithstanding anything herein to the contrary, and solely with
respect to the Escrow Agent, notice shall be deemed to have been
given or delivered to the Escrow Agent on the date of the Escrow
Agent's actual receipt or refusal of such notice. Each party shall
be entitled to rely on all communications which purport to be on
behalf of the party and purport to be signed by an authorized party
or the above-indicated attorneys or such other attorney as may be
designated from time to time by any of the parties hereto.
Escrow Agent hereunder may resign at any time giving ten (10)
business days prior written notice to that effect to each of the
Seller and Purchaser. In such event, the successor Escrow Agent
shall be selected by the Purchaser and approved by Seller, such
approval not to be unreasonably withheld or delayed. Escrow Agent
shall then deliver to successor Escrow Agent the Deposit, to be held
by successor Escrow Agent pursuant to the terms of this Escrow
Agreement and the Agreement.
In its capacity as Escrow Agent, Escrow Agent shall not be
responsible for the genuineness or validity of any security,
instrument, document or item deposited with it, and shall have no
responsibility other than to faithfully follow the instructions
contained herein, and it is fully protected in acting in accordance
with any written instrument given to it hereunder by any of the
parties hereto and believed by Escrow Agent to have been signed by
the proper person. Escrow Agent may assume that any person
purporting to give any notice hereunder and representing that they
have authority to do so has been duly authorized to do so.
Escrow Agent shall have no duties or responsibilities other than
those expressly set forth herein. Escrow Agent shall have no duty to
enforce any obligation of any person to make any payment or delivery
or to enforce any obligation of any person to perform any other act.
Escrow Agent shall be under no liability to the other parties hereto
or to anyone else by reason of any failure on the part of any party
hereto or any maker, guarantor, endorser or other signatory of any
document or any other person to perform such person's obligations
under any such document.
Escrow Agent shall be entitled to approve (not to be unreasonably
withheld or delayed) any and all counsel who may be retained to
defend or prosecute any action on behalf of Escrow Agent under or
arising out of this Escrow Agreement.
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This Escrow Agreement and the obligations of the parties hereunder
shall be interpreted, construed and enforced in accordance with the
laws of the State of New Jersey.
3.2 INDEPENDENT CONSIDERATION. Intentionally omitted.
3.3 FORM; FAILURE TO DEPOSIT. The Xxxxxxx Money 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 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
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
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
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.
ARTICLE 4 - DUE DILIGENCE
4.1 DUE DILIGENCE MATERIALS TO BE DELIVERED. To the extent such items are
in Seller's possession and not previously delivered to Purchaser or Purchaser's
agents, Seller shall deliver to Purchaser the following (the "Property
Information") on or before the Property Information Delivery Date:
4.1.1 RENT ROLL. Intentionally omitted.
4.1.2 FINANCIAL INFORMATION. Intentionally omitted.
4.1.3 ENVIRONMENTAL REPORTS. Copy of any environmental reports or
site assessments related to the Property prepared for the benefit of Seller, or
the Tenant or its predecessor in interest, to the extent that the same are in
the possession 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. Intentionally omitted;
4.1.7 PERSONAL PROPERTY. Intentionally omitted;
4.1.8 LICENSE AGREEMENTS. Intentionally omitted.
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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 offices or the offices of Seller's Asset
Manager, 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 file for the Tenant, including the
Lease, amendments, guaranties, any letter agreements and assignments which are
then in effect ("Lease Files");
4.2.2 MAINTENANCE RECORDS AND WARRANTIES. Intentionally omitted.
4.2.3 PLANS AND SPECIFICATIONS. Building plans and specifications
relating to the Property; and
4.2.4 PERMITS AND APPROVALS FOR THE PROPERTY. Permits and approvals
for the Property, including, land use resolutions, developer's agreements,
environmental permits and approvals 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 (i.e., core sampling) must obtain Seller's prior written
consent (which consent may be given, withheld or conditioned in Seller's
reasonable discretion) and (ii) all such tests shall be conducted by Purchaser
in compliance with Purchaser's responsibilities set forth in Section 4.10 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 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 CERTIFICATE. Seller shall obtain and deliver to Purchaser, at
Closing a tenant estoppel certificate in substantially the form of Exhibit E
attached hereto (the "Estoppel Certificate") to be dated no earlier than thirty
(30) days prior to Closing.
4.5 DUE DILIGENCE/TERMINATION RIGHT. Purchaser shall have through the last
day of the Inspection Period in which 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.
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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 upon Seller's request and at
Seller's cost sole cost and expense 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. Intentionally omitted.
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 (collectively, "Permitted Outside Parties"); provided, however,
Purchaser shall disclose only such information to a particular Permitted Outside
Party as is reasonably necessary for that Permitted Outside Party to perform its
role in assisting Purchaser determine the feasibility of its acquisition of the
Property, and nothing more. At any time and 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 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. 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 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
4.8 above, or except as may be otherwise required by law. Purchaser hereby
agrees to indemnify, defend, and hold Seller free and harmless from and against
any and all liabilities (including reasonable attorneys' fees, expenses and
disbursements) arising out of or resulting from (a) the breach of the terms of
this Section 4.10 or (b) the entry on the Property and/or the conduct of any due
diligence by Purchaser or any of Purchaser's representatives at any time prior
to the Closing; provided, however, that Purchaser's obligations hereunder shall
not apply to the mere discovery of a pre-existing environmental or physical
condition at the Property. The foregoing indemnity shall survive the Closing
(and not be merged therein) or any earlier termination of this Agreement.
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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). 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. Intentionally
omitted.
ARTICLE 5 - TITLE AND SURVEY
5.1 TITLE COMMITMENT. Purchaser, at its own cost and expense shall obtain
from Commonwealth (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 a 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.
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 or monetary liens 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 or monetary 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). After the Inspection Period,
Seller shall not consent to any additional encumbrances or any other matters
that would become an exception to title as of the date of Closing, except for
any easements that Seller is required to grant pursuant to the terms of the
Lease (notice of which shall be given to Purchaser). 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; rights of tenants under the
Leases; rights of tenants or licensees under License Agreements; and any
licensees under any Service Contracts not terminated as of Closing. The
Permitted Exceptions shall include those exceptions to title set forth in items
13 through 16, inclusive of Schedule B, Section II of the Commitment for Title
Insurance issued by Commonwealth Land Title Insurance Company (Commitment No.
S040660) dated September 12, 2004, a schedule of which are attached hereto as
Exhibit A-1, and the state of facts shown on the survey of the Property which
are scheduled on Exhibit A-2, attached hereto and made a part hereof.
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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 Real Property in the amount of the
Purchase Price, subject only to the standard exceptions 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.
ARTICLE 6 - OPERATIONS AND RISK OF LOSS
6.1 ONGOING OPERATIONS. From the Effective Date through Closing:
6.1.1 LEASE. Seller will perform its material obligations under the
Lease.
6.1.2 NEW CONTRACTS. 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. After the Inspection Period. Seller shall
not enter into any such contracts without Purchaser's consent, exercisable in
Purchaser's sole discretion.
6.1.3 MAINTENANCE OF IMPROVEMENTS; REMOVAL OF PERSONAL PROPERTY.
Intentionally omitted.
6.1.4 LEASING. Seller will not amend or terminate the Lease or enter
into any new lease or license agreement without the prior written approval of
Purchaser, in Purchaser's sole discretion, except that Seller shall have the
right to enter into an amendment of the Lease for the sole purpose of excluding
Article 43 therefrom and embodying the right therein accorded to the Tenant in a
separate instrument, which separate instrument Purchaser agrees to execute for
the purpose of affording the information to Seller about the Lease and Tenant
which is contemplated by said Article 43. Purchaser agrees to give Seller
written notice of approval or disapproval of a proposed amendment or termination
of the Lease within three (3) business days after Purchaser's receipt of the
proposed amendment to the Lease.
6.2 DAMAGE. If prior to Closing the Property is damaged by fire or other
casualty, such occurrence shall not affect this Agreement and the parties shall
proceed to Closing. Any casualty with respect to the Improvements shall be
governed by the terms of the Lease.
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.
6.4. LIMITATIONS. Notwithstanding anything herein contained to the
contrary in this Article 6, Purchaser shall only have the right to terminate
this Agreement pursuant to Section 6.2.1 or Section 6.3 if the Tenant terminates
the Lease because of such casualty or condemnation.
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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 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.
7.2.4 STATUS OF TITLE. The absence of any lien, encumbrance or other
defect in title which is not a Permitted Exception.
7.2.5 ESTOPPEL CERTIFICATE. Seller shall use good faith efforts to
obtain an estoppel certificate from Cadbury Schweppes, Holdings (U.S.) and
Tenant in the form attached hereto as Exhibit H on or before the Closing Date.
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. If such party elects not to close, the Xxxxxxx Money
shall be returned to Purchaser and neither party shall have any further
obligation hereunder.
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 bargain and sale deed with covenant against grantor's
acts in form acceptable for recordation under the law of the state where the
Property is located and restating (in summary form) the provisions of Article 11
hereof 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;
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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;
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;
7.3.6. ESTOPPEL CERTIFICATE. The Estoppel Certificate duly executed
by the Tenant.
7.3.7 ADDITIONAL DOCUMENTS. Any additional documents that Escrow
Agent or the Title Company may reasonably require, including without limitation,
a gap indemnity, 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");
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.
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. Within two (2) days following 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.
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7.9 NOTICE TO TENANTS. Seller and Purchaser shall each execute, and
Purchaser shall deliver to 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, to the extent applicable, 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, if any; accrued operating
expenses; real and personal ad valorem taxes and assessments ("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 or
prior years arising out of a change in the use of the Real Property or a change
in ownership shall be assumed by Purchaser effective as of Closing and paid by
Purchaser when due and payable, and Purchaser shall indemnify Seller from and
against any and all such Taxes, which indemnification obligation shall survive
the Closing.
8.1.2 UTILITIES. Utilities shall not be adjusted between Seller and
Purchaser because the payment thereof is the responsibility of the Tenant under
the Lease.
8.1.3 TENANT RECEIVABLES. Rent under the Lease does not commence
until April 1, 2005 - subsequent to Closing. Accordingly, no provision is made
herein for adjustment of rents.
8.2 LEASING COSTS. Any leasing commission or fees of a similar nature due
and owing in connection with the Lease for the initial Term thereof shall be
paid by Seller. The obligation of Seller under this Section 8.2 shall survive
the Closing (and not be merged therein) or any earlier termination of this
Agreement.
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.
8.5 TENANT DEPOSITS. Intentionally omitted.
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. 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.
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8.7 LANDLORD CONTRIBUTION AND TENANT IMPROVEMENT ALLOWANCE. An amount
equal to the undisbursed portion of the Landlord Contribution and Tenant
Improvement Allowance shall be adjusted at Closing, and deposited in escrow
pursuant to the provisions of Section 6.9 of Exhibit F of the Lease.
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, as of the Effective Date
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 AND LICENSE AGREEMENTS. Intentionally
omitted.
9.1.5 NOTICES FROM GOVERNMENTAL AUTHORITIES. To Seller's knowledge,
as of the Effective Date 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.
If and to the extent any estoppel certificates received by Purchaser from
the Tenant under the Lease contain express statements that are inconsistent with
the information contained in any of the foregoing representations and warranties
by Seller, Purchaser shall have the right to terminate this Agreement and the
Xxxxxxx Money shall be returned to Purchaser. If Purchaser does not elect to
terminate this Agreement, then said representation(s) and warranty(ies) of
Seller shall be automatically revised to be consistent with the applicable
estoppel certificate without liability on the part of Seller.
Additionally, if Purchaser makes a claim against Seller for breach of a
representation and warranty under this Agreement and Seller indemnifies or
otherwise compensates Purchaser in connection therewith, and if the claim by
Purchaser against Seller relates to matters for which there is or may be a claim
against a third party under any warranties, guaranties, indemnities or other
claims (including, without limitation, for workmanship, materials and
performance) assigned by Seller to Purchaser pursuant to this Agreement, then
Purchaser agrees that Seller shall be subrogated to Purchaser's position with
respect to all claims against such third parties, and Purchaser shall reasonably
cooperate with Seller in attempting to recover against such third party(ies).
The foregoing shall survive Closing.
9.1.6 NO MODIFICATION OF LEASE. The Lease has not been amended or
modified as of the date hereof.
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9.1.7 LITIGATION. There is no action or proceeding pending against
the Property or Seller for which Seller has been served with process, or, to
Seller's knowledge, no such action or proceeding is threatened.
If and to the extent any estoppel certificates received by Purchaser from
tenants under Leases or licensees under License Agreements contain express
statements that are inconsistent with the information contained in any of the
foregoing representations and warranties by Seller, then said representation(s)
and warranty(ies) of Seller shall be automatically revised to be consistent with
the applicable estoppel certificate without liability on the part of Seller.
Additionally, if Purchaser makes a claim against Seller for breach of a
representation and warranty under this Agreement and Seller indemnifies or
otherwise compensates Purchaser in connection therewith, and if the claim by
Purchaser against Seller relates to matters for which there is or may be a claim
against a third party under any warranties, guaranties, indemnities or other
claims (including, without limitation, for workmanship, materials and
performance) assigned by Seller to Purchaser pursuant to this Agreement, then
Purchaser agrees that Seller shall be subrogated to Purchaser's position with
respect to all claims against such third parties, and Purchaser shall reasonably
cooperate with Seller in attempting to recover against such third party(ies).
The foregoing shall survive Closing.
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 limited partnership in good standing in the State
of Delaware 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.
The foregoing representations shall be automatically remade by any
assignee of this Agreement pursuant to Section 12.1.
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, except where expressly limited to the Effective Date, 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 nine (9)
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 Xxxx XxXxxxxx of Archon Group, L.P., asset
manager of the Property ("Asset Manager's Employee"), 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
Employee 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 $200,000.00. 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 $1,200,000.00. 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.
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9.4 ADDITIONAL SELLER REPRESENTATIONS, COVENANTS AND WARRANTIES. Seller
hereby represents, covenants and warrants to Purchaser that (terms used but not
defined in this Section 9.4 and Section 9.5 shall have the meaning set forth in
the Lease):
9.4.1 LEASE AMENDMENT. On or before the date that is sixty (60) days
following the Closing Date, Seller shall deliver a fully executed amendment to
the Lease removing Article 43 therefrom (the "Lease Amendment").
9.4.2 EXPERT EXPENSES. All Expert expenses incurred by or on behalf
of Seller prior to the date of the Lease have been paid in full; Seller has
reimbursed Tenant in full for its pro rata share of any Expert expenses incurred
by Tenant in accordance with the Lease and no such Expert expenses incurred by
either Tenant or Landlord exceeded the Expert Fee Cap.
9.4.3 OFF-SITE IMPROVEMENTS. The cost of the Off-Site Improvements
required in connection with the Final Site Plan Approval will not exceed
$500,000.
9.4.4. DEMOLITION COST. The Demolition Completion Date has occurred.
9.4.5 REMEDIATION. Remediation Compliance has occurred as required
by Exhibit F of the Lease.
9.4.6 OFFER PRICE. The Purchase Price is not more than $450,000 less
than the Reduced Offer Price disclosed in the Reduced Offer Notice dated
December 6, 2004, delivered to Tenant in accordance with Article 42 of the
Lease, and declined by Tenant by notice to Seller dated December 13, 2004.
9.4.7 NO FURTHER ACTION LETTER. Seller diligently shall pursue the
issuance of a No Further Action letter ("NFA") by the NJDEP with regard to the
petroleum hydrocarbon contamination cleanup case heretofore filed by the Seller
with the NJDEP together with a memorandum of agreement. Seller shall use its
best efforts to obtain the NFA within six (6) months of Closing; however, the
parties acknowledge that the case will not be treated as a high priority time by
the NJDEP and that additional time may be necessary. Upon issuance of the NFA,
Seller shall promptly forward a true copy thereof to Purchaser.
9.4.8 ISRA COMPLIANCE. If the application of ISRA is triggered by
the sale contemplated herein, Seller shall file the GIN, pay any related filing
fee and post any financial assurance required and shall reimburse Tenant for
Tenant's actual out-of-pocket costs incurred in connection therewith to the
extent and in the amount required under the Lease.
9.5 SURVIVAL OF ADDITIONAL REPRESENTATIONS, COVENANTS AND WARRANTIES.
9.5.1 The representations, covenants and warranties set forth in
this Section 9.4 are made as of the date of this Agreement and shall be deemed
to be remade as of the Closing Date (unless at or prior to Closing Seller
indicates otherwise) and shall not be deemed to be merged into or waived by the
instruments of Closing. Seller and Whitehall Street Global Real Estate Limited
Partnership 2001, an affiliate of Seller ("Whitehall") hereby agree to indemnify
and save harmless Purchaser, its partners, officers, successors and assigns (a
"Purchaser Indemnified Party"), from and against any claims, damages, costs and
expenses incurred by a Purchaser Indemnified Party as a result of a breach by
Landlord or Landlord's Affiliate under Section 43 of the Lease prior to the
execution of the Lease Amendment. Such indemnification obligation shall expire
on the earlier to occur of (a) delivery of the Lease Amendment as provided in
Section 9.4.1, above, or (b) December 31, 2006.
9.5.2 Seller hereby agrees to indemnify and save harmless a
Purchaser Indemnified Party from and against any claims, damages, costs and
expenses as a result of a breach or default by Seller of any of the
representations, covenants, and/or warranties set forth in Section 9.4 hereof,
including without limitation (a) any additional Expert expenses, (b) any
additional Demolition costs, (c) any additional costs necessary to achieve
Environmental Compliance which are actually incurred by a Purchaser Indemnified
Party following the Closing Date, and (d) the cost of any Off-Site Improvements
in excess of $500,000 which results in expenses incurred by a Purchaser
Indemnified Party following the Closing Date.
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9.5.3 Whitehall hereby agrees to be jointly and severally
responsible with Seller for the payment of any damages sustained by Purchaser or
a Purchaser Indemnified Party as a result of any inaccuracy in the
representations by Seller set forth in Section 9.4. Upon receipt of a
certificate from Tenant confirming that any of the representations set forth in
Section 9.4 are accurate and correct, all liability of Seller and Whitehall
hereunder with respect to such representation shall cease and expire.
9.5.4 The provisions of this Section 9.5 shall survive Closing and
except with respect to Section 9.5.1 and 9.5.2(d) hereof, shall be limited by
the provisions set forth in Section 9.3 hereof. Whitehall is signing this
Agreement for the sole purpose of acknowledging and consenting to the provisions
of this Section 9.5. To the extent Seller fails to perform any covenant set
forth in Section 9.4 hereof, in addition to all other remedies provided by law,
Purchaser shall be entitled to seek specific performance.
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,
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.
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.
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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 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.
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.
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PURCHASER'S INITIALS _______________
11.3 SELLER RELEASED FROM LIABILITY. 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
Materials or other contaminants, may not have been revealed by its
investigation, provided, however, nothing contained in this Section 11.3 herein,
shall be deemed to release Seller from any tort claims or statutory liability
asserted by any third party which arise from any acts or negligent omissions of
Seller which occurred during the time that Seller owned fee title to the
Property.
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. Intentionally omitted.
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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 Inspection Period shall be deemed to have ended, (iv) 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) 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.
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 expressly contemplate
performance after 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.
-21-
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, 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.
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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)") 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.
12.20 TAX STRUCTURE. Notwithstanding anything herein to the contrary, each
of the parties to the proposed transactions described herein (and each employee,
representative or other agent thereof) may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the
transactions described herein and all materials of any kind (including opinions
or other tax analyses) that are provided to such party relating to such tax
treatment and tax structure. However, any information relating to the tax
treatment or tax structure shall remain subject to the confidentiality
provisions hereof (and the foregoing sentence shall not apply) to the extent
reasonably necessary to enable the parties, their respective affiliates, and
their respective affiliates' directors and employees to comply with applicable
securities laws. For this purpose, "tax structure" means any facts relevant to
the US federal income tax treatment of the proposed transaction but does not
include the identity of the parties or their respective affiliates.
[SIGNATURE PAGES AND EXHIBITS TO FOLLOW]
-23-
SIGNATURE PAGE TO AGREEMENT OF
PURCHASE AND SALE
BY AND BETWEEN
WXV/WHIPPANY, LLC
AND
CAPLEASE, LP
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year written below.
SELLER:
WXV/WHIPPANY, LLC
BY: WXV/COMMERCIAL PROPERTIES, L.L.C,
ITS MANAGING MEMBER
By: /s/ Xxxx XxXxxxxx
-------------------------------------
Name: Xxxx XxXxxxxx
Title: Assistant Vice President
Date executed by Seller:
December 23, 2004
PURCHASER:
CAPLEASE LP
a Delaware Limited Partnership
Date executed by Purchaser: By: CLF OP General Partner, LLC, a
Delaware limited liability company,
December 23, 2004 its general partner
By: Capital Lease Funding, Inc., a
Maryland corporation, its sole member
By: /s/ Xxxx XxXxxxxx
-------------------------------------
Name: Xxxx XxXxxxxx
Title: CEO
---------------------------------
As to Section 9.5 only:
WHITEHALL STREET GLOBAL REAL
ESTATE LIMITED PARTNERSHIP 2001, a
Delaware limited partnership
By: WH Advisors, L.L.C. 2001, general partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
-24-
LIST OF EXHIBITS
A - Legal Description of Real Property
A-1 - Permitted Exceptions
A-2 Survey
B - Xxxx of Sale, Assignment and Assumption of Leases and Contracts
C - ERISA Letter
D - Notice to Tenant
E - Tenant Estoppel Certificate
F - List of Tenants
G - Mandatory Arbitration
H - Estoppel Certificate by Cadbury Schweppes, Holding (U.S.)
-25-
