SALE-PURCHASE AGREEMENT
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SALE-PURCHASE AGREEMENT (this "AGREEMENT"), made as of December 5, 2000,
between WELLSFORD CAPITAL PROPERTIES, L.L.C., a Delaware limited liability
company having an address c/o Wellsford Real Properties, Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SELLER") and KEYSTONE REAL ESTATE
MANAGEMENT, INC., a Pennsylvania corporation having an office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
Seller and Purchaser, in consideration of the mutual covenants herein
contained, hereby agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS
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For purposes of this Agreement, the following terms shall have the
following meanings:
1.1. "Broker" shall mean Trillium Realty Agency, Inc. and ▇▇▇▇▇ & ▇▇▇▇▇
Company.
1.2. "Business Day" shall mean any day other than a Saturday, Sunday or any
day upon which banks in the States of New York or New Jersey are required or
authorized by law to be closed.
1.3. "Effective Date" shall mean the date upon which Purchaser receives a
fully executed counterpart of this Agreement. Purchaser agrees to execute and
deliver to Seller such instrument as Seller shall submit to it to evidence the
occurrence of the Effective Date.
1.4. "Existing Leases" shall mean the leases, licenses and occupancy
agreements set forth in Exhibit B annexed hereto.
1.5. "Existing Service Contracts" shall mean the service contracts,
brokerage agreements and other agreements which affect the Property and are set
forth on Exhibit C annexed hereto.
1.6. "Invasive Tests" shall mean any physical inspection or testing of the
Premises other than visual examination, and shall include, without limitation,
sampling of soils or other media.
1.7. "Leases" shall mean the Existing Leases and the New Leases in effect
on the Closing Date.
1.8. "Leasing Costs" shall mean, collectively, (i) leasing or brokerage
commissions, (ii) direct payments, tenant improvement allowances, work letters
or free rent and (iii) rent allowances or rent credits, in each case paid or
granted to a tenant under an Existing Lease or a New Lease.
1.9. "New Leases" shall mean any new leases, licenses or occupancy
agreements entered into by Seller in accordance with the terms of this
Agreement.
1.10. "Representation Survival Period" shall mean six (6) months.
1.11. "Service Contracts" shall mean any service contracts, maintenance
agreements, brokerage agreements and other agreements affecting the Property,
other than the Leases.
1.12. "Tenant Brokerage Agreements" means any commission or brokerage
agreement affecting the Premises which is entered into by Seller subsequent to
the date hereof in connection with a New Lease.
1.13. "Title Insurer" shall mean The Abstract Company, as agent for Lawyers
Title Insurance Company.
ARTICLE 2. SALE-PURCHASE OF PROPERTY
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2.1. Agreement to Sell and Purchase. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, at the Purchase Price and upon the terms
and conditions set forth in this Agreement, the following (collectively, the
"PROPERTY"): (a) the parcel of land more particularly described in Exhibit A
attached hereto (the "LAND"); (b) the building, improvements and other
structures situated on the Land, inclusive of all of Seller's right, title and
interest in and to the improvements, fixtures, systems, plant equipment,
apparatus and machinery which form a part of the building or such other
structures (collectively, the "BUILDING") (the Land and the Building are herein
collectively called the "PREMISES"); (c) all right, title and interest of
Seller, if any, in and to (i) the land lying in the bed of any street or highway
in front of or adjoining the Land to the center line thereof and (ii) any
easements, rights or appurtenances in and to the Land; (d) all right, title and
interest of Seller in and to any furniture, furnishings, moveable equipment and
other personal property located at, and used in connection with, the Premises
(herein collectively called the "PERSONAL PROPERTY"); (e) the landlord's
interest in and to the Leases; (f) all of Seller's right, title and interest in
and to the Security Contracts (as defined in Exhibit C annexed hereto) and the
Tenant Brokerage Agreements (if any); (g) to the extent assignable, all of
Seller's right, title and interest in and to any permits and licenses used or
usable in connection
with the Premises (collectively, the "LICENSES AND PERMITS"); and (h) to the
extent assignable, all of Seller's right, title and interest in and to the name
"Two Executive Campus", it being expressly understood that no representation or
warranty is made as to Seller's rights in or to such name or Seller's right to
assign the same. The Premises are located at, and are known as, Two Executive
Campus, Cherry Hill, New Jersey.
2.2. Title to Premises. Seller shall convey, or cause to be conveyed, and
Purchaser shall accept, fee simple title to the Premises, on the Closing Date,
free and clear of all Title Exceptions other than the Permitted Exceptions (each
as hereinafter defined).
2.3. Condition of Property. Purchaser is a sophisticated investor and its
valuation of and decision to purchase the Property is based upon its own
independent expert evaluations of such facts and materials deemed relevant by
Purchaser and its agents. Other than the express representations and warranties
of Seller specifically set forth herein, Purchaser has not relied upon any oral
or written information from Seller or its employees, affiliates, agents,
consultants, advisors or representatives, including, without limitation, any
appraisals, projections or evaluations of credit quality prepared by Seller or
any of its employees, affiliates, agents, consultants, advisors or
representatives. Purchaser further acknowledges that no employee, agent,
consultant, advisor or representative of Seller has been authorized to make, and
that Purchaser has not relied upon, any statements or representations other than
those specifically contained in this Agreement. Without limiting the generality
of the foregoing, Purchaser acknowledges and agrees that, except as expressly
set forth herein, Purchaser is purchasing the Property "as is" and "where is" on
the Closing Date, and, except as expressly set forth herein, Seller is making no
representation or warranty, express or implied, and Purchaser has not relied on
any representation or warranty, express or implied, regarding the Property,
including, without limitation, any representation or warranty with respect to
(a) the business or financial condition of any tenant of the Property, (b) the
physical condition of any Improvement or Personal Property comprising all or a
part of any Property, or its fitness, merchantability or suitability for any use
or purpose, (c) the leases, rents, income or expenses of the Property, (d) the
compliance or non-compliance with any laws, codes, ordinances, rules or
regulations of any governmental authority (including, without limitation, laws
pertaining to hazardous materials) or (e) the current or future use of the
Property, including, but not limited to, any Property's use for commercial,
retail, industrial or other purposes. Seller is not liable or bound in any
manner by any verbal or written statements, representations, real estate
brokers' "set-ups", offering memoranda or information pertaining to the Property
furnished by any real estate broker, advisor, consultant, agent, employee,
representative or other Person.
ARTICLE 3. PURCHASE PRICE
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3.1. Purchase Price. The purchase price (the "PURCHASE PRICE") to be paid
by Purchaser to Seller for the Property is FOUR MILLION FIVE HUNDRED THOUSAND
and 00/100 ($4,500,000.00), net of adjustments made in accordance with Article 8
hereof. The Purchase Price shall be paid by Purchaser as follows:
(1) One Hundred Thousand and 00/100 Dollars ($100,000.00) (the
"INITIAL DEPOSIT"), payable simultaneously with the execution and delivery
hereof either (i) by wire transfer of immediately available funds to the
account of The Abstract Company ("ESCROWEE") or (ii) by Purchaser's check,
subject to collection, drawn to the order of Escrowee;
(2) Unless this Agreement is validly terminated in accordance with the
terms of Section 4.1 hereof, Fifty Thousand and 00/100 Dollars ($50,000.00)
(the "SECOND DEPOSIT") (the Initial Deposit and the Second Deposit,
collectively, the "DEPOSIT"), payable on or before the date which is two
(2) Business Days after the Due Diligence Expiration date (hereinafter
defined) either (i) by wire transfer of immediately available funds to the
account of Escrowee or (ii) by Purchaser's check, subject to collection,
drawn to the order of Escrowee; and
(c) Four Million Three Hundred Fifty Thousand and 00/100 Dollars
($4,350,000.00) (the "CASH BALANCE"), net of adjustments made in
accordance with Article 8 below, payable at the Closing by wire
transfer of immediately available funds to an account or accounts
designated by Seller.
3.2. Escrow of Deposit.
The Deposit shall be held, paid over and/or applied, by Escrowee in
accordance with the following provisions:
(1) Escrowee shall hold the Deposit until the Closing or sooner
termination of this Agreement. Any interest earned on the Deposit shall be
paid to the same party entitled to be paid the Deposit hereunder (as and
when such party is entitled to the Deposit), except that, at the Closing,
such interest shall be credited against the Cash Balance. The party
receiving the interest on the Deposit shall pay any income taxes thereon.
For purposes thereof, the tax identification numbers of the parties are as
follows: ▇▇-▇▇▇▇▇▇▇ (Seller); and 23-28449453 (Purchaser).
(2) If this Agreement is validly terminated by Purchaser in accordance
with the provisions of Section 4.1 hereof, the Deposit shall be refunded to
Purchaser.
(3) At the Closing the Deposit shall be paid by Escrowee to Seller.
(4) If Purchaser does not validly terminate this Agreement in
accordance with the provisions of Section 4.1 hereof and thereafter the
Closing does not occur for any reason, either party hereto may make demand
upon Escrowee for disbursement of the Deposit (a "NOTICE OF DEMAND"). The
party making such demand is herein referred to as the "DEMANDING PARTY",
while the other party is herein referred to as the "OTHER PARTY". Escrowee
shall, within two business days of its receipt of a Notice of Demand,
furnish the Other Party with a copy thereof. Unless the Other Party
furnishes Escrowee, within five (5) days of its receipt from Escrowee of
the Notice of Demand, with notice (a "DISPUTE NOTICE") that it disputes the
Demanding Party's
entitlement to the Deposit (a copy of which shall simultaneously be
delivered to the Demanding Party), Escrowee shall pay the Deposit to the
Demanding Party. If the Other Party timely furnishes Escrowee with a
Dispute Notice, or Escrowee receives a Notice of Demand from both parties
hereto prior to the disbursement of the Deposit in accordance with the
foregoing provisions of this Section 3(d), Escrowee shall continue to hold
the Deposit until otherwise directed by joint written instructions from
both parties hereto or a final judgment of a court of competent
jurisdiction. Escrowee shall give written notice of such deposit to Seller
and Purchaser. Upon such deposit, Escrowee shall be relieved and discharged
of all further obligations and responsibilities hereunder.
(5) The parties acknowledge that Escrowee is acting solely as a
stakeholder at their request and for their convenience, that Escrowee shall
not be deemed to be the agent of either of the parties, and that Escrowee
shall not be liable to either of the parties for any act or omission on its
part unless taken or suffered in bad faith, in willful disregard of this
Agreement or involving gross negligence. Seller and Purchaser shall jointly
and severally indemnify and hold Escrowee harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred
in connection with the performance of Escrowee's duties hereunder, except
with respect to actions or omissions taken or suffered by Escrowee in bad
faith, in willful disregard of this Agreement or involving gross negligence
on the part of Escrowee.
(6) Escrowee shall cause the Deposit to be maintained and invested in
savings account, treasury bills, certificates of deposit and/or other money
market instruments as requested by Purchaser, subject to reasonable
approval by Seller. Escrowee shall not be liable for any losses suffered in
connection with any such investment and shall have no obligation to obtain
the best, or otherwise seek to maximize, the rate of interest earned on any
such investment. Any fees or charges in connection with such investment
shall be paid out of the amounts held in escrow before any other payments
shall be required to be made from such amounts.
(7) Upon any delivery of the amount remaining in escrow as provided in
Sections 3.2(b), (c) or (d) above, Escrowee shall be relieved of all
liability, responsibility or obligation with respect to or arising out of
the escrow or under this Agreement. Escrowee shall not be bound by any
modification to this Section 3.2 unless Escrowee shall have agreed to such
modification in writing.
(8) Escrowee shall be entitled to rely or act upon any notice,
instrument or document believed by Escrowee to be genuine and to be
executed and delivered by the proper person, and shall have no obligation
to verify any statements contained in any notice, instrument or document or
the accuracy or due authorization of the execution of any notice,
instrument or document.
(9) Escrowee has acknowledged agreement to the foregoing provisions of
this Section 3.2 by signing in the place indicated on the signature page of
this Agreement.
ARTICLE 4. INSPECTION
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4.1. Due Diligence Period; Termination Right. During the period (the "DUE
DILIGENCE PERIOD") commencing on the Effective Date and ending on the date (the
"DUE DILIGENCE EXPIRATION DATE") which is thirty (30) days after the Effective
Date (unless such date is not a Business Day, in which event the Due Diligence
Expiration Date shall be the next occurring Business Day), Purchaser shall have
the right to conduct such due diligence as it deems reasonably necessary or
appropriate in connection with its acquisition of the Property, including
inspections, studies, examinations and investigations of, or with respect to,
the Property, or any portion thereof, and/or any facts, circumstances and
matters relating to the Property, or any portion thereof. If Purchaser, in its
sole discretion, determines for any reason whatsoever that it is unsatisfied
with the results of and matters disclosed by its due diligence, Purchaser shall
have the right to terminate this Agreement by written notice given to Seller
prior to 5:00 p.m. New York time on the Due Diligence Expiration Date (TIME
BEING OF THE ESSENCE). Upon any termination of this Agreement pursuant to this
Section 4.1, (i) the Deposit shall be refunded to Purchaser and (ii) neither
party hereto shall have any further obligation to the other, with the exception
of those obligations which expressly survive the termination of this Agreement.
If Purchaser shall fail to terminate this Agreement in the time and manner set
forth in this Section 4.1, Purchaser shall be deemed to have irrevocably waived
its right to terminate this Agreement pursuant to this Section 4.1.
4.2. Inspections. Purchaser and its authorized agents, consultants or
representatives shall have the right, upon reasonable prior notice to Seller
(which notice may be telephonic), to enter upon the Premises from time to time
to conduct such physical and other inspections as Purchaser deems appropriate,
provided that Purchaser shall not perform Invasive Tests or interview tenants of
the Premises without first obtaining Seller's consent, which consent shall not
be unreasonably withheld or delayed. Prior to any entrance upon the Premises for
the performance of Invasive Tests, Purchaser shall deliver to Seller (or cause
the applicable contractor to deliver to Seller) a certificate of insurance
evidencing that Purchaser has procured and maintains in force and effect
commercial general liability insurance covering Purchaser and Seller against
claims for bodily injury or death or property damage occurring in, upon or about
the Premises in an amount of not less than $2,000,000 (combined single limit),
issued by an insurance company with a rating of "A" or better as established by
Best's Rating Guide, which insurance shall include blanket contractual liability
coverage and shall otherwise be in form reasonably acceptable to Seller.
4.3. Restoration and Indemnity. Following the performance of any Invasive
Tests, Purchaser shall restore the Premises to their condition prior to the
performance thereof. Purchaser shall indemnify and hold harmless Seller and its
officers, directors, members, employees, successors and assigns, from and
against any and all damages, losses, costs, expenses, liabilities and claims
that arise out of or in any way relate to the conduct of Purchaser's due
diligence investigations, except to the extent the same arise by reason of
Seller's negligence or wilful misconduct. The foregoing indemnity shall not
extend to liability which arises merely by reason of a fact or condition
disclosed by Purchaser's
due diligence investigations, unless Purchaser's conduct of its due diligence
investigations results in liability to Seller that would not otherwise arise
merely by reason of the disclosure of such fact or condition. The provisions of
this Section 4.3 shall survive the termination of this Agreement for a period of
six (6) months.
4.4. Confidentiality. Prior to the Closing, Purchaser shall not disclose to
any other party either the contents of any materials delivered to Purchaser by
Seller with respect to the Property or the results of any reports summarizing
any aspect of Purchaser's due diligence investigations without first obtaining
the prior written consent of Seller. Notwithstanding the foregoing, Purchaser
may, without first obtaining such prior written consent, make such disclosures
as it deems appropriate to its officers, employees, lenders, investors, counsel,
lenders' counsel, appraisers, accountants, insurance advisors, environmental
consultants and similar third-party consultants, provided that such parties are
apprised of the confidential nature of the material disclosed. In addition,
Purchaser may make such disclosures as are required by law or court order. The
provisions of this Section 4.4 shall survive any termination of this Agreement.
ARTICLE 5. TRANSACTION COSTS
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5.1. Seller's Costs. At the Closing, Seller shall pay all transfer taxes
and/or deed stamps payable as a result of the conveyance of title to the
Property to Purchaser pursuant to this Agreement. Seller, in addition to its
apportionment obligations hereunder, if any, also shall be responsible for the
cost of its legal counsel, advisors and the other professionals employed by it
in connection with the sale of the Property.
5.2. Purchaser's Costs. Purchaser, in addition to its apportionment and
other payment obligations hereunder, shall be responsible for all costs and
expenses associated with (a) Purchaser's due diligence, (b) Purchaser's legal
counsel, advisors, engineers, consultants and the other professionals employed
by it in connection with Purchaser's due diligence and the purchase of the
Property, (c) title reports or abstracts issued by Title Insurer, as well as all
survey and search costs and updates related thereto, (d) the policy premiums in
respect of any fee title insurance obtained by Purchaser and any mortgage title
insurance required by Purchaser's lender (if any), (e) the recording fees for
the deed and (f) all costs and expenses of obtaining any financing Purchaser may
elect to obtain.
ARTICLE 6. CLOSING DATE; CONDITIONS TO CLOSING
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6.1. Closing Date. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place on the date which is thirty (30) days
after the Due Diligence Expiration Date (unless such date is not a Business Day,
in which event the Closing shall take place on the next occurring Business Day.
Such date, as the same may be adjourned by Seller in accordance with the terms
hereof, is hereinafter referred to as the "CLOSING DATE". The Closing
shall take place on the Closing Date at 10:00 a.m. at the offices of Purchaser's
counsel, Klehr, Harrison, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇. TIME SHALL BE OF THE ESSENCE WITH RESPECT TO
THE OBLIGATIONS OF PURCHASER TO BE PERFORMED ON THE CLOSING DATE.
6.2. Purchaser's Conditions. Purchaser's obligation to purchase the
Property is subject to the satisfaction of the following conditions precedent,
any or all of which may be waived by Purchaser:
(1) Seller shall have delivered to Purchaser Tenant Estoppel
Certificates, dated as of a date not more than thirty (30) days prior to
the Closing Date, from the holders of the tenant's interest under Leases
which demise not less than 80% of the rentable square footage demised as of
the date hereof under the Leases. For purposes of this Agreement, the term
"TENANT ESTOPPEL CERTIFICATE" shall mean a certificate in the form of
Exhibit D annexed hereto, provided that if any Lease prescribes the form or
contents of an estoppel certificate to be delivered by the tenant, "TENANT
ESTOPPEL CERTIFICATE" shall mean an estoppel certificate in such form or
containing such contents. To satisfy the condition set forth in this
Section 6.2(a), a Tenant Estoppel Certificate (i) must not materially
contradict any of the representations made by Seller in Sections 9.3(a) or
(b) hereof and (ii) must not allege a material default by the landlord
under the Lease.
(2) Seller shall have delivered to Purchaser a letter by the New
Jersey Department of Environmental Protection to the effect that the New
Jersey Industrial Site Recovery Act does not apply to the Premises (the
"ISRA LETTER").
(3) Seller's representations contained in Sections 9.2 and 9.3 hereof
shall be true, complete and correct in all material respects, as made as of
the dates hereof and as of the Closing Date, provided that Seller shall not
be deemed to be in breach of any representation of Seller made in Section
9.3(a) or (c) hereof, as made as of the Closing Date, to the extent that
any such representation is rendered untrue by any state of facts permitted
or contemplated by this Agreement;
(4) Seller shall have furnished Purchaser with a continuing
certificate of occupancy for the Premises, provided that Seller shall be
under no obligation to cure any Violations (hereinafter defined) noted in
the course of any inspection required to obtain the same; and
(5) (i) this Agreement shall be in full force and effect, (ii) Seller
shall have fully satisfied, or shall therewith fully satisfy, all of its
Closing obligations hereunder, and (iii) there shall not otherwise then
exist any event which would allow Purchaser to terminate this Agreement
pursuant to the express terms hereof.
6.3. Seller's Conditions. Seller's obligation to sell the Property is
subject to the satisfaction of the following conditions precedent, any or all of
which may be waived by Seller:
(a) this Agreement shall be in full force and effect,
(b) Purchaser shall have fully satisfied, or shall therewith fully
satisfy, all of its Closing obligations hereunder,
(c) there shall not otherwise then exist any event which would allow
Seller to terminate this Agreement pursuant to the express terms hereof;
and
(d) Purchaser's representations contained in Section 9.1 hereof shall
be true, complete and correct in all material respects, as made as of the
date hereof and as of the Closing Date.
6.4. Failure of Condition Not a Breach. The parties hereto acknowledge and
agree that the failure to occur of one or more conditions precedent contained in
this Article 6 shall not be deemed to constitute a breach of this Agreement by
either party unless and to the extent that any such party shall have expressly
agreed or covenanted or is otherwise expressly obligated hereunder to take any
action to satisfy or cause the satisfaction of the condition in question.
ARTICLE 7. CLOSING DOCUMENTS AND DELIVERIES
7.1. Conveyancing Documents and Deliveries.
At the Closing:
(1) Purchaser shall deliver to Seller the Cash Balance and any other
amounts payable by Purchaser to Seller at the Closing pursuant to this
Agreement;
(2) Seller shall execute, acknowledge and deliver a deed with
covenants against grantor's acts sufficient to convey the Premises to
Purchaser subject only to the Permitted Exceptions and such other Title
Exceptions and such other Title Exceptions as Purchaser shall have waived
or been deemed to waive pursuant to the terms of this Agreement (the
"DEED").
(3) Seller shall deliver to Purchaser original counterparts of the
Tenant Estoppel Certificates received by Seller.
(4) Seller shall deliver to Purchaser an original counterpart of the
ISRA Letter.
(5) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the Leases. Delivery of the
foregoing may be effectuated by
leaving the same in the custody of Purchaser or its property manager at the
management office at the Premises.
(6) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the Security Contracts.
Delivery of the foregoing may be made by leaving the same in the custody of
Purchaser or Purchaser's property manager at the management office at the
Premises.
(7) Seller shall deliver to Purchaser such plans, specifications,
tenant files, permits and licenses which pertain to the Premises and are in
Seller's possession. Delivery of the foregoing may be made by leaving the
same in the custody of Purchaser or Purchaser's property manager at the
management office at the Premises.
(8) Seller shall execute and deliver a general ▇▇▇▇ of sale in the
form of Exhibit E annexed hereto, conveying to Purchaser all of Seller's
right, title and interest in and to the Personal Property.
(9) Seller, as assignor, and Purchaser, as assignee, shall mutually
execute and deliver to each other an instrument in the form of Exhibit F
annexed hereto providing for the assignment by Seller of the landlord's
interest in the Leases and the assumption by Purchaser of the landlord's
obligations under the Leases which arise or accrue from and after the
Closing Date.
(10) Seller and Purchaser shall mutually execute and deliver to each
other an instrument in the form of Exhibit G annexed hereto providing for
(x) the assignment by Seller to Purchaser of all of Seller's right, title
and interest in and to the Security Contracts, any Tenant Brokerage
Agreements to which Purchaser shall have consented and the assignable
Licenses and Permits, and the assumption by Purchaser of Seller's
obligations thereunder which first arise or accrue from and after the
Closing Date and (y) the assumption by Purchaser of Seller's obligations
with respect to post-termination leasing commissions payable in accordance
with Exhibit B, Section 9 of the Leasing Agency Agreement (as defined in
Exhibit C annexed hereto.)
(11) Subject to the provisions of Section 7.1(j) hereof pertaining to
post-termination leasing commissions payable under the Leasing Agency
Agreement, Seller shall deliver to Purchaser evidence of the termination of
the Service Contracts, other than the Security Contracts and the Tenant
Brokerage Agreements (if any).
(12) Seller shall request prior to Closing that the leasing agent
under the Leasing Agency Agreement furnish Purchaser on the Closing Date
with a final list of prospective tenants with respect to which it may
become entitled to a commission in accordance with the provisions of
Exhibit B, Section 9 of the Leasing Agency Agreement.
(13) Seller shall deliver to Purchaser an instrument pursuant to which
Seller (i) remakes the representations made by Seller in Section 9.3
(a)-(f) hereof as of the Closing Date and (ii) advises Purchaser of any
facts or circumstances which would render any of such representations, as
made of the Closing Date, untrue.
(14) Seller and Purchaser shall execute and deliver a letter to each
of the tenants under the Leases and the other party to the Security
Contracts, notifying each such tenant or party of the sale of the Premises
and indicating the new address for notices under the Leases and the
Security Contracts.
(15) Seller shall execute and deliver a FIRPTA affidavit required
pursuant to the Treasury Department Regulations promulgated under Section
1445 of the Internal Revenue Code of 1986, as amended, in respect of the
Property. Seller understands that such certification will be retained by
Purchaser and will be made available to the Internal Revenue Service on
request.
(16) Seller, as assignor, and Purchaser, as assignee, shall each
execute and deliver an instrument providing for the assignment, without
recourse, representation or warranty, of Seller's interest in and to any
licenses or permits affecting the Premises, and Purchaser's assumption of
any obligations thereunder which arise or accrue from and after the Closing
Date.
(17) Each of Seller and Purchaser shall execute and deliver a closing
statement setting forth with specificity the adjustments made in accordance
with Article 8 hereof.
(18) Seller shall deliver to Purchaser Seller's check in the amount of
the security deposits held by Seller as landlord under the Leases.
Notwithstanding the foregoing, any tenant security deposits held in a form
other than cash shall be transferred to Purchaser by way of appropriate
instruments of transfer or assignment.
(19) Purchaser shall deliver to Seller evidence reasonably
satisfactory to Seller of the due authorization, execution and delivery of
the documents and instruments to be executed by Purchaser at Closing in
accordance with the terms of this Agreement.
(20) Seller shall deliver to Purchaser evidence reasonably
satisfactory to Purchaser of the due authorization, execution and delivery
of the documents and instruments to be executed by Seller at Closing in
accordance with the terms of this Agreement
(21) Seller and Purchaser shall each execute and deliver such other
documents as shall reasonably be required to effectuate the Closing.
ARTICLE 8. CLOSING ADJUSTMENTS
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The following are to be adjusted and prorated between Seller and Purchaser
as of 11:59 p.m. on the day preceding the Closing Date, based upon a 365 day
year, with Seller deemed to be the owner of the Property on the day preceding
the Closing Date and Purchaser deemed to be the owner of the Property on the
Closing Date.
8.1. Fixed Rents.
(1) Fixed rents (collectively, "FIXED RENTS") paid or payable by
tenants under the Leases in connection with their occupancy of the Premises
shall be adjusted and prorated on an if, as and when collected basis. Any
Fixed Rents collected by Purchaser or Seller after the Closing from any
tenant who owes Fixed Rents for periods prior to the Closing shall be
applied (i) first, in payment of Fixed Rents owed by such tenant for the
month in which the Closing Date occurs, pro rated as of the Closing Date,
(ii) second, in payment of Fixed Rents owed by such tenant for periods
subsequent to the month in which the Closing Date occurs and (iii) third,
after Fixed Rents for all current periods have been paid in full, in
payment of Fixed Rents owed by such tenant for periods prior to the month
in which the Closing Date occurs. Each such amount, less any costs of
collection (including reasonable counsel fees) reasonably allocable
thereto, shall be adjusted and prorated as provided above, and the party
who receives such amount shall promptly pay over to the other party the
portion thereof to which it is so entitled.
(2) Purchaser shall ▇▇▇▇ tenants who owe Fixed Rents for periods prior
to the Closing on a monthly basis for a period of six (6) consecutive
months following the Closing Date and shall use commercially reasonable
efforts to collect such past due Fixed Rents; provided, however, that
Purchaser shall have no obligation to commence any actions or proceedings
to collect any such past due Fixed Rents. Notwithstanding the foregoing, if
Purchaser shall be unable to collect such past due Fixed Rents, Seller
shall have the right, upon prior written notice to Purchaser, to pursue
tenants to collect such delinquencies (including, without limitation, the
prosecution of one or more lawsuits), but Seller shall not be entitled to
evict (by summary proceedings or otherwise) any such tenants. Any payment
by a tenant in an amount less than the full amount of Fixed Rents and
Overage Rents then due and payable by such tenant shall be applied first to
Fixed Rents (in the order of priority as to time periods as is set forth in
Section 8.1(a) above) to the extent of all such Fixed Rents then due and
payable by such tenant, and thereafter to Overage Rents (in the order of
priority as to time periods as is set forth in Section 8.2(d) below).
8.2. Overage Rents.
(1) With respect to any Lease that provides for (i) the payment of
additional rent based upon a percentage of the tenant's business during a
specified annual or other period (sometimes referred to as "percentage
rent"), (ii) so-called common area maintenance or "cam" charges or (iii)
so-called "escalation rent" or additional rent based upon increases in real
estate taxes or operating expenses or labor costs or cost of living or
▇▇▇▇▇▇'▇ wages or otherwise (such
percentage rent, cam charges, escalation rent and additional rent being
collectively called "OVERAGE RENTS"), such Overage Rents shall be adjusted
and prorated on an if, as and when collected basis.
(2) As to any Overage Rents in respect of an accounting period that
shall have expired prior to the Closing but which shall be paid after the
Closing, Purchaser shall, subject to the provisions of Section 8.2(d)
hereof, pay the entire amount over to Seller upon receipt thereof, less any
costs of collection (including reasonable counsel fees) reasonably
allocable thereto. Purchaser agrees that it shall (i) promptly render bills
for any Overage Rents in respect of an accounting period that shall have
expired prior to the Closing but which shall be paid after the Closing,
(ii) ▇▇▇▇ tenants such Overage Rents attributable to an accounting period
that shall have expired prior to the Closing on a monthly basis for a
period of six (6) consecutive months thereafter and (iii) use commercially
reasonable efforts to collect Overage Rents; provided, however, that
Purchaser shall have no obligation to commence any actions or proceedings
to collect any such Overage Rents. Notwithstanding the foregoing, if
Purchaser shall be unable to collect such Overage Rents, Seller shall have
the right, upon prior written notice to Purchaser, to pursue tenants to
collect such delinquencies (including, without limitation, the prosecution
of one or more lawsuits), but Seller shall not be entitled to evict (by
summary proceedings or otherwise) any such tenants. Seller shall furnish to
Purchaser all information relating to the period prior to the Closing that
is reasonably necessary for the billing of Overage Rents; and Purchaser
will deliver to Seller, concurrently with the delivery to tenants, copies
of all statements relating to Overage Rents for a period prior to the
Closing. Purchaser shall ▇▇▇▇ tenants for Overage Rents for accounting
periods prior to the Closing in accordance with and on the basis of such
information furnished by Seller.
(3) Overage Rents in respect of the accounting period in which the
Closing Date occurs shall be apportioned between Seller and Purchaser as of
11:59 P.M. of the day preceding the Closing Date, with Seller receiving the
proportion of such Overage Rents that the portion of such accounting period
prior to the Closing Date bears to the entire such accounting period, and
Purchaser receiving the proportion of such Overage Rents that the portion
of such accounting period from and after the Closing Date bears to the
entire such accounting period. If, prior to the Closing, Seller shall
receive any installments of Overage Rents attributable to Overage Rents for
periods from and after the Closing, such sum shall be apportioned at the
Closing. Subject to the provisions of Section 8.2(d) hereof, if Purchaser
shall receive after the Closing any installments of Overage Rents
attributable to Overage Rents for periods prior to the Closing, such sum
(less any costs and expenses (including reasonable counsel fees) incurred
by Purchaser in the collection of such Overage Rents) shall be paid by
Purchaser to Seller promptly after Purchaser receives payment thereof.
(4) Any payment by a tenant on account of Overage Rents (to the extent
not applied against Fixed Rents due and payable by such tenant in
accordance with Section 8.1(b) above) shall be applied to Overage Rents
then due and payable in the following order of priority:
(i) first, in payment of Overage Rents for the accounting period in which
the Closing Date occurs, until all current Overage Rents are paid in full;
and (ii) second, in payment of Overage Rents for the accounting period
preceding the accounting period in which the Closing Date occurs.
(5) To the extent that any portion of Overage Rents is required to be
paid monthly by tenants on account of estimated amounts for any calendar
year (or, if applicable, any lease year or tax year or any other applicable
accounting period), and at the end of such calendar year (or lease year,
tax year or other applicable accounting period, as the case may be), such
estimated amounts are to be recalculated based upon the actual expenses,
taxes and other relevant factors for that calendar (lease or tax) year or
other applicable accounting period, with the appropriate adjustments being
made with such tenants, then such portion of the Overage Rents shall be
prorated between Seller and Purchaser at the Closing based on such
estimated payments actually paid by tenants (i.e., with Seller entitled to
retain all monthly or other periodic installments of such amounts paid by
tenants with respect to periods prior to the calendar month or other
applicable installment period in which the Closing occurs, Seller to pay to
Purchaser at the Closing all monthly or other periodic installments of such
amounts theretofore received by Seller with respect to periods following
the calendar month or other applicable installment period in which the
Closing occurs and Seller and Purchaser to apportion as of the Closing Date
all monthly or other periodic installments of such amounts paid by tenants
with respect to the calendar month or other applicable installment period
in which the Closing occurs). At the time(s) of final calculation and
collection from (or refund to) each tenant of the amounts in reconciliation
of actual Overage Rents for a period for which estimated amounts paid by
such tenant have been prorated, there shall be a re-proration between
Seller and Purchaser. If, with respect to any tenant, the recalculated
Overage Rents exceeds the estimated amount paid by such tenant, upon
collection from the tenant, (i) the entire excess shall be paid by
Purchaser to Seller, if the accounting period for which such recalculation
was made expired prior to the Closing and (ii) such excess shall be
apportioned between Seller and Purchaser as of the Closing Date (on the
basis described in the first sentence of Section 8.2(c) above), if the
Closing occurred during the accounting period for which such recalculation
was made, with Purchaser paying to Seller the portion of such excess which
Seller is so entitled to receive. If, with respect to any tenant, the
recalculated Overage Rents are less than the estimated amount paid by such
tenant, (1) the entire shortfall shall be paid by Seller to Purchaser (or,
at Seller's option, directly to the tenant in question), if the accounting
period for which such recalculation was made expired prior to the Closing
and (2) such shortfall shall be apportioned between Seller and Purchaser as
of the Closing Date (on the basis described in the first sentence of
Section 8.2(c) above), if the Closing occurred during the accounting period
for which such recalculation was made, with Seller paying to Purchaser (or,
at Seller's option, directly to the tenant in question) the portion of such
shortfall so allocable to Seller.
(6) Until such time as all amounts required to be paid to Seller by
Purchaser pursuant to Sections 8.1 and this Section 8.2 shall have been
paid in full, Purchaser shall furnish
to Seller not less frequently than monthly a reasonably detailed accounting
of such amounts payable by Purchaser, which accounting shall be delivered
to Seller on or prior to the 15th day following the last day of each
calendar month from and after the calendar month in which the Closing
occurs. Seller shall have the right from time to time following the
Closing, on Business Days and upon reasonable prior notice to Seller, to
review Purchaser's rental records with respect to the Property to the
extent required to ascertain the accuracy of such accountings.
8.3. Real Estate Taxes. Real estate taxes shall be adjusted and prorated on
the basis of the fiscal year for which assessed. If the Closing shall occur
before the tax rate or assessed valuation is fixed for the Premises, the
apportionment of real estate taxes for such Premises shall be upon the basis of
the tax rate for the preceding year applied to the most recently applicable
assessed valuation of such Premises, subject to further and final adjustment
when the tax rate and/or assessed valuation for such Premises is fixed for the
year in which the Closing occurs. In the event that the Premises or any part
thereof shall be or shall have been affected by an assessment or assessments,
whether or not the same become payable in annual installments, Seller shall, at
the Closing, be responsible for any installments due prior to the Closing and
Purchaser shall be responsible for any installments due on or after the Closing.
8.4. Utility Charges. Seller shall use reasonable efforts to obtain
readings of meters measuring utility consumption at the Property (other than
utilities which are the responsibility of tenants under Leases) for all periods
through (and including) the date preceding the Closing Date. Seller shall pay,
and be responsible, for all bills rendered on the basis of such readings. If
such readings are not obtained for any metered utility, then, at the Closing,
apportionment shall be made on the basis of the most recent period for which
such readings are available. Upon the taking of subsequent actual readings,
there shall be a recalculation of the applicable utility charges, and Seller or
Purchaser, as the case may be, shall promptly remit to the other party hereto
any amounts to which such party shall be entitled by reason of such
recalculation. Unmetered water charges or sewer rents shall be apportioned on
the basis of the charges therefor for the same period during the previous
calendar year, but applying the current rate thereto. As to any utility charges
or sewer rents payable by tenants, Purchaser shall close title and accept the
delivery of the Deed subject to such unpaid charges and rents and any lien
resulting therefrom, without credit against the Purchase Price or any claim or
right of action against Seller.
8.5. Fuel. Fuel on hand, if any, based on an estimate provided by Seller's
fuel supplier, at Seller's cost valued at the price therefor charged by such
supplier including any applicable taxes.
8.6. Other Adjustments. The following items shall also be adjusted as of
11:59 P.M. on the date preceding the Closing Date: (i) charges and payments
under the Security Contracts, (ii) license and permit fees on assignable permits
and licenses, (iii) revenues, if any, arising out of telephone booths, vending
machines, or other income-producing agreements and (iv)
maintenance supplies in unopened containers based on Seller's actual cost
therefor, including sales and/or use tax.
Any errors or omissions in computing adjustments at the Closing shall be
promptly corrected, provided that the party seeking to correct such error or
omission shall have notified the other party of such error or omission on or
prior to the date that is one (1) year following the Closing Date. The
provisions of this Article 8 shall survive Closing for a period of one year.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
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9.1. Basic Representations of Purchaser.
Purchaser, as of the date hereof, represents and warrants to Seller as
follows:
(1) Purchaser is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of Pennsylvania.
(2) Purchaser has full power and authority to enter into and perform
this Agreement, the documents to be executed and delivered pursuant hereto,
and each and all of the transactions contemplated hereby and thereby in
accordance with the terms hereof and thereof.
(3) The individuals executing this Agreement, and each of the
documents to be executed and delivered in connection herewith on behalf of
Purchaser have full power and authority to do so. This Agreement and each
of the Purchaser Closing Documents are, or will be when executed and
delivered, the legal valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with the terms hereof and
thereof.
(4) Purchaser has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Purchaser.
Purchaser is not insolvent and the consummation of the transactions
contemplated by this Agreement shall not render Purchaser insolvent. No
general assignment of Purchaser's property has been made for the benefit of
creditors, and no receiver, master, liquidator or trustee has been
appointed for Purchaser or any of its property.
(5) There are no actions or proceedings pending or, to Purchaser's
actual knowledge, threatened, against Purchaser which could have a material
adverse affect on Purchaser's ability to perform its obligations hereunder.
9.2. Basic Representations of Seller.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(1) Seller is a limited liability company, duly organized and validly
existing and in good standing under the laws of the State of Delaware.
(2) Seller has full power and authority to enter into and perform this
Agreement and to enter into the documents to be executed and delivered
pursuant hereto, and each and all of the transactions contemplated hereby
and thereby in accordance with the terms hereof and thereof.
(3) The individuals executing this Agreement on behalf of Seller, and
the individuals executing each of the documents to be executed and
delivered in connection herewith, on behalf of Seller, have full power and
authority to do so. This Agreement and each of the Seller Closing Documents
are, or will be when executed and delivered, the legal valid and binding
obligations of Seller, enforceable against Seller in accordance with the
terms hereof and thereof.
(4) Seller has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Seller. Seller is
not insolvent and the consummation of the transactions contemplated by this
Agreement shall not render Seller insolvent. No general assignment of
Seller's property has been made for the benefit of creditors, and no
receiver, master, liquidator or trustee has been appointed for Seller or
any of its property.
(5) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, against Seller which could have a material adverse
affect on Seller's ability to perform its obligations hereunder.
9.3. Representations of Seller Regarding the Property.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(1) There are no leases, licenses or occupancy agreements affecting
the Premises, other than the Existing Leases. The Existing Leases have not
been modified or amended, except as set forth in Exhibit B annexed hereto.
Seller has delivered to Purchaser true, complete and correct copies of the
Existing Leases. The information contained in the rent roll annexed hereto
as Exhibit H is true, complete and correct in all material respects;
provided, however, because Purchaser will have an opportunity to review
each of the Existing Leases and the New
Leases during the Due Diligence Period, in the event that there is any
discrepancy between the information contained in Exhibit H and the terms
and provisions of any of the Existing Leases or New Leases, the terms and
provisions of the Existing Leases and the New Leases shall be effective as
against Seller and Purchaser, and Seller shall not be deemed to have
breached the representation contained in this Section 9.3(a) clause (a) by
reason of such discrepancy. Except as otherwise noted in Exhibit I annexed
hereto, (i) each of the Existing Leases is in full force and effect, (ii)
no written notice of a default on the part of a tenant under any of the
Existing Leases has been sent by Seller, other than a notice setting forth
a default which, as of the date hereof, has been cured and (iii) no written
notice of a default on the part of the landlord under the Existing Leases
has been received by Seller, other than a notice setting forth a default
which, as of the date hereof, has been cured.
(2) Subject to the provisions of Section 15.6 hereof, Seller has paid
(or will on or before Closing pay) all Leasing Costs which pertain to the
current terms of the Leases, other than Leasing Costs payable in connection
with (A) the renewal or extension of an Existing Lease or a New Lease, the
effective date of which shall not yet have occurred on the date hereof, (B)
the leasing of space pursuant to the exercise of a right of first refusal
or first offer or similar right contained in an Existing Lease or a New
Lease, the effective date of which shall not yet have occurred on the date
hereof and (C) the failure timely to exercise any termination right set
forth in an Existing Lease or a New Lease at any time after the date
hereof.
(3) There are no service contracts, brokerage agreements (including
tenant brokerage agreements), maintenance agreements or other agreements
affecting the Premises, other than (i) the Existing Leases, (ii) the
Existing Service Contracts and (iii) any service contracts which are
terminable upon not more than 30 days notice without penalty or premium.
(4) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, with respect to the Property, which are not covered
by insurance.
(5) There are no pending or, to Seller's knowledge, threatened,
eminent domain or condemnation proceedings with respect to the Property.
(6) There are no special assessments pending or threatened with
respect to the Premises.
(7) The insurance coverages with respect to the Premises described in
Exhibit J annexed hereto are in full force and effect.
The representations of Seller contained in Section 9.3 (a) - (f) hereof
shall survive Closing for the Representation Survival Period.
ARTICLE 10. TITLE
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10.1. Acceptable Title. Seller shall convey, or cause to be conveyed, and
Purchaser shall accept, fee simple title to the Premises, as of the Closing
Date, subject only to the Permitted Exceptions. The term "PERMITTED EXCEPTIONS"
shall mean, collectively, (i) the matters set forth in Exhibit K annexed hereto,
(ii) Title Exceptions that Title Insurer shall be willing to omit as exceptions
to coverage in any owner's policy of title insurance obtained by Purchaser,
(iii) the standard exceptions and provisions contained in the form of insuring
agreement employed by Title Insurer and (iv) any exceptions and matters that are
approved, waived or deemed to have been approved or waived by Purchaser.
10.2. Inability to Convey Acceptable Title. Purchaser agrees to obtain, at
its expense, a title report with respect to the Premises from Title Insurer (the
"TITLE REPORT") and an update of the existing survey of the Subject Premises by
a licensed New Jersey surveyor. Purchaser shall furnish a copy of the Title
Report and survey to Seller promptly after Purchaser receives the same, but in
no event later than twenty (20) days after the Effective Date. On or before the
date which is twenty (20) days after the Effective Date (TIME BEING OF THE
ESSENCE), Purchaser may furnish Seller with a written notice (the "TITLE
OBJECTION NOTICE") of those Title Exceptions noted in the Title Report or the
survey update which are not Permitted Exceptions and as to which Purchaser
objects. In addition, within five (5) days of Purchaser's receipt of any
continuation of the Title Report, Purchaser may furnish Seller with written
notice of Title Exceptions noted therein which are not Permitted Exceptions and
as to which Purchaser objects, provided such Title Exceptions were not noted in
the Title Report (or any prior continuation thereof) or the survey update (any
such notice shall also constitute a "TITLE OBJECTION NOTICE"). Purchaser shall
be deemed to have waived any objection to Title Exceptions set forth in the
Title Report (or any continuation thereof) or the survey update to which timely
objection is not made in a Title Objection Notice. For purposes of this
Agreement, the term "TITLE EXCEPTIONS" shall mean any lien, encumbrance,
security interest, charge, reservation, lease, tenancy, easement, right-of-way,
encroachment, restrictive covenant, condition or limitation affecting the
Property.
10.3. Seller's Rights. Seller shall have the right, in its sole discretion,
upon notice to Purchaser (the "TITLE RESPONSE NOTICE") given within ten (10)
days after Seller's receipt of any Title Objection Notice (TIME BEING OF THE
ESSENCE), to elect to either (i) take such action as Seller deems advisable to
discharge those Title Exceptions which are not Permitted Exceptions and are set
forth in the Title Objection Notice (the "TITLE DEFECTS") or (ii) subject to the
provisions of Section 10.4 hereof, terminate this Agreement, whereupon Deposit
shall be refunded to Purchaser and thereafter neither party hereto shall have
any further obligation to the other party hereto, with the exception of those
obligations which expressly survive the termination of this Agreement. If Seller
fails timely to deliver the Title Response Notice, then, subject to the
provisions of Section 10.4 hereof, Seller shall be deemed to have elected to
terminate this Agreement pursuant to clause (ii) above. If Seller, in its Title
Response Notice, elects to take action to remove, remedy or comply with the
Title Defects, Seller shall be entitled to one or more adjournment(s) of the
Closing for up to 30 days in the aggregate, to discharge the Title Defects. If
Seller is unable to remove, remedy or comply with such Title
Defects at the expiration of such adjournment(s), then, subject to the
provisions of Section 10.4 hereof, this Agreement shall be deemed to be
terminated as of the last adjourned date of Closing. Upon such termination, the
Deposit shall be refunded to Purchaser and neither party hereto shall have any
further obligation to the other party, with the exception of those obligations
which expressly survive the termination of this Agreement. Except as set forth
in Section 10.5 hereof, nothing in this Agreement shall be deemed to require
Seller to take or bring any action or proceeding or any other steps to remove
any defect in or objection to title or to expend any moneys therefor, nor shall
Purchaser have any right of action against Seller, at law or in equity,
therefor.
10.4. Purchaser's Right to Accept Title. Notwithstanding the provisions of
Section 10.3 hereof, Purchaser may, upon written notice to Seller at any time on
or before the Closing Date (as the same may have been adjourned by Seller in
accordance with the provisions of Section 10.3 hereof), elect to accept such
title as Seller can convey, notwithstanding the existence of any Title Defects.
In such event, (i) this Agreement shall remain in force and effect, (ii) the
parties shall proceed to Closing and (iii) Purchaser shall not be entitled to
any abatement of the Purchase Price, any credit or allowance of any kind or any
claim or right of action against Seller for damages or otherwise by reason of
the Title Defects.
10.5. Seller's Obligation. Notwithstanding anything contained in this
Article 10 the contrary, Seller shall at or prior to Closing discharge any
mortgage affecting the Property (together with any other documents evidencing or
securing any such mortgage or otherwise executed in connection therewith) and
any other Title Defects (i) which are knowingly and intentionally created by
Seller subsequent to the date hereof or (ii) which may be discharged solely by
the payment of a sum of money, not to exceed $150,000 in the aggregate.
10.6. Title Affidavits, Etc.
(a) If requested by Title Insurer, Seller shall deliver (i) one or
more reasonable and customary title affidavits executed by Seller (or an
officer thereof), certifying to factual matters concerning Seller or the
Premises which are within the knowledge of Seller, (including, without
limitation, any reasonable and customary affidavit which may be required in
order to omit from title insurance coverage any exceptions for judgments,
bankruptcies or other returns against persons or entities, other than
Seller, whose names are the same as or similar to Seller's name), and (ii)
documents evidencing Seller's payment of franchise or unincorporated
business taxes, as applicable.
(b) If requested by Title Insurer, Purchaser shall deliver (i) one or
more reasonable and customary title affidavits executed by Purchaser (or an
officer thereof), certifying to factual matters concerning Purchaser or the
Premises which are within the knowledge of Purchaser (or an officer
thereof) (including, without limitation, any reasonable and customary
affidavit which may be required in order to omit from title insurance
coverage any exceptions for
judgments, bankruptcies or other returns against persons or entities, other
than Purchaser, whose names are the same as or similar to Purchaser's
name), and (ii) documents evidencing Purchaser's payment of franchise or
unincorporated business taxes, as applicable, or dissolution taxes.
10.7. Violations. Seller shall have no responsibility to cure, or cause to
be cured, any Violations, whether the same have been noted or issued as of the
date hereof or are first noted or issued after the date hereof, and Purchaser,
in all events, agrees to close title to the Premises subject thereto. As used
herein, the term "Violation(s)" shall mean any violation of any law or municipal
ordinance, order or requirement noted or issued against the Property by any
federal, state or municipal department having jurisdiction over the Property.
ARTICLE 11. CASUALTY AND CONDEMNATION
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11.1. Casualty.
(1) For purposes of this Article 11, the following terms shall have
the meanings indicated:
"MAJOR CASUALTY" means a fire in or other casualty to the
Building which causes damage or injury to the Premises and results in
Restoration Costs in excess of an amount equal to five percent (5%) of
the Purchase Price.
"RESTORATION COSTS" means the cost to repair or restore (as
reasonably determined by an architect or engineer selected by Seller
and approved by Purchaser, which approval shall not be unreasonably
withheld, conditioned or delayed) the damage to the Building caused by
a fire or other casualty, exclusive of the cost of any such repair or
restoration for which Seller, as the landlord under any Lease, is not
responsible.
(2) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Building which is not a Major
Casualty, then Purchaser shall have no right to terminate this Agreement
and shall purchase the Premises in its damaged condition without reduction
of or offset against the Purchase Price or any other claim against Seller
(other than a credit against the Cash Balance in the amount of the
deductible, if any, under Seller's policy of casualty insurance.) Seller
shall assign to Purchaser the right to receive any insurance proceeds
payable to Seller as a result of such fire or other casualty; provided,
however, that Seller shall be entitled to retain (to the extent theretofore
paid to Seller), and shall not be obligated to assign the right to receive
(to the extent not theretofore paid to Seller), an amount of such insurance
proceeds equal to Seller's expenses, if any, incurred in collecting such
proceeds and repairing the damage caused by fire or other casualty.
(3) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Building which is a Major Casualty,
then Purchaser shall have the option, to be exercised by notice given to
Seller within fifteen (15) days after the date of such casualty,
to terminate this Agreement. If Purchaser shall so elect to terminate this
Agreement, the Deposit shall be refunded to Purchaser, whereupon neither
party hereto shall have any further obligation to the other hereunder),
except for those obligations which expressly survive the termination of
this Agreement. If Purchaser shall not elect to terminate this Agreement as
provided in this subclause (c), then this Agreement shall remain in full
force and effect with respect and the provisions of Section 11.1(b) above
shall apply to such damage and any insurance proceeds payable in connection
therewith.
(4) If Purchaser elects or is otherwise obligated pursuant to this
Section 11.1 to proceed to Closing following the occurrence of a fire or
other casualty, Seller shall not adjust the claim which arises under its
insurance policy without first obtaining Purchaser's consent, which consent
shall not be unreasonably withheld.
(5) In no event shall Seller have any obligation to repair any damage
or destruction to the Building, but Seller shall have the right to do so
and utilize insurance proceeds for such purpose.
(6) Seller and Purchaser expressly intend that the provisions of this
Section 11.1 shall govern in the event of a fire or other casualty.
11.2. Condemnation.
(1) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would result in the taking
of all or any material portion of the Premises, then Purchaser may elect to
terminate this Agreement by giving written notice of its election to Seller
within fifteen (15) days after receiving notice of such prospective taking.
If Purchaser shall so elect to terminate this Agreement, the Deposit shall
be refunded to Purchaser, whereupon neither party hereto shall have any
further obligation to the other hereunder, except for those obligations
which expressly survive the termination of this Agreement. If Purchaser
does not so elect to terminate this Agreement, then the parties hereto
shall proceed to the Closing without reduction of or offset against the
Purchase Price and Purchaser shall have no other claim against Seller. In
such event, all of Seller's right, title and interest in and to any
condemnation proceeds paid or payable in connection therewith shall be
assigned to Purchaser. In no event shall Seller have any obligation to
repair or restore the Premises or any portion thereof by reason of any
condemnation..
(2) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would result in the taking
of less than a material portion of the Premises, such as a taking of an
immaterial portion of the Premises to effectuate a road widening, then
neither Seller nor Purchaser may terminate this Agreement and the parties
shall proceed to the Closing without reduction of or offset against the
Purchase Price and Purchaser shall have no other claim against Seller. In
such event, all of Seller's right, title and interest in and to any
condemnation proceeds paid or payable in connection therewith shall be
assigned to Purchaser. In no event shall Seller have any obligation to
repair or restore the Premises or any portion thereof by reason of any
condemnation.
ARTICLE 12. DEFAULT AND REMEDIES
--------------------------------
12.1. Default By Purchaser. If Purchaser (i) defaults in its Closing
obligations (i.e., defaults in the payment of the Purchase Price or otherwise in
the performance of any of its obligations hereunder which are to be performed
on, or as of, the Closing Date), or (ii) otherwise materially defaults hereunder
and such other material default is not cured within ten (10) days after notice
thereof from Seller to Purchaser, then, and in any of such events, Seller, as
its sole remedy therefor, may terminate this Agreement by written notice to
Purchaser, whereupon the Deposit shall be paid to Seller as liquidated damages
on account of such default, and, thereafter, neither party shall have any
further rights or obligations hereunder other than those which expressly survive
the termination of this Agreement. Seller and Purchaser agree that the aforesaid
liquidated damages are a fair and reasonable amount to be retained by Seller as
agreed and liquidated damages in light of Seller's removal of the Premises from
the market and the costs incurred by Seller and shall not constitute a penalty
or a forfeiture.
12.2. Default By Seller. If Seller (i) defaults in its Closing obligations
(i.e., defaults in the performance of any of its obligations hereunder which are
to be performed on, or as of, the Closing Date), or (ii) otherwise materially
defaults hereunder and such material Default is not cured within ten (10) days
after notice thereof from Purchaser to Seller, then, and in either such event,
Purchaser may, as its sole remedy therefor, either (x) pursue an action for
specific performance of this Agreement by Seller hereunder, without abatement,
credit against or reduction of the Purchase Price or (y) terminate this
Agreement by written notice to Seller and Escrowee, whereupon the Deposit shall
be refunded to Purchaser; it being understood and agreed that in no event shall
Purchaser be entitled to money damages. Notwithstanding the foregoing, (A) if
Seller wilfully defaults in the performance of its obligations hereunder beyond
any applicable notice and cure period and Purchaser terminates this Agreement by
reason thereof, Purchaser shall have a claim for damages on account thereof, not
to exceed $150,000 in the aggregate and (B) if Seller wilfully defaults in the
performance of its Closing obligations hereunder and Purchaser prevails in an
action for specific performance, Purchaser shall be entitled to reimbursement
from Seller in an amount equal to reasonable attorneys' fees and disbursements
incurred by Purchaser in connection with prosecuting the action for specific
performance, not to exceed $50,000 in the aggregate. Except as expressly
provided in this Section 12.2, Purchaser waives any other right or remedy, at
law or in equity, which Purchaser may have or be entitled to as a result of any
default by Seller.
12.3. Post-Closing Breach of Representation. If Purchaser proceeds to
Closing with constructive or actual knowledge of any inaccuracy in an express
representation of Seller which may be confirmed through review of materials
actually delivered by Seller to Purchaser, or with actual knowledge of an
inaccuracy in any other express representation of Seller, Purchaser shall be
deemed to have waived objection to such inaccuracy and shall have no right of
action or claim against Seller for damages or otherwise by reason thereof. If,
after the Closing, Purchaser shall first learn of an inaccuracy in any express
representation of Seller (made as of the Closing Date), which representation
expressly survives Closing, then Purchaser shall have a claim for damages on
account thereof, provided that (i) any claim not brought within the
Representation Survival Period shall be deemed waived, (ii) Purchaser hereby
waives the right to collect or seek to collect consequential or punitive damages
and (iii) Purchaser reasonably can demonstrate that the damages sustained by
Purchaser as a result of such inaccuracy exceed $25,000.
ARTICLE 13. BROKER
------------------
13.1. Broker. Purchaser and Seller each represents and warrants to the
other that such party has not had any conversations or dealings with any broker,
finder or other similar party in connection with the transactions contemplated
hereby other than Broker. Purchaser and Seller (each, an "INDEMNIFYING PARTY")
shall indemnify, defend and hold the other harmless from and against any and all
claims, liabilities, losses, damages, costs or expenses (including, without
limitation, reasonable attorneys' fees and expenses), arising out of a claim of
a breach of the representation made by the Indemnifying Party pursuant to the
immediately preceding sentence. Seller shall pay any brokerage commission or
similar compensation due to Broker pursuant to a separate written agreement. The
provisions of this Section 13.1 shall survive the Closing or termination of this
Agreement.
ARTICLE 14. ASSIGNMENT
----------------------
14.1. No Assignment by Purchaser. Neither this Agreement nor any of the
rights of Purchaser hereunder (nor the benefits of such rights) may be assigned,
transferred or encumbered without Seller's prior written consent (which consent
may be withheld in Seller's sole and absolute discretion) and any purported
assignment, transfer or encumbrance without Seller's prior written consent shall
be void. Notwithstanding the foregoing, Purchaser may assign this Agreement
without Seller's consent to any entity in which Purchaser owns a direct or
indirect beneficial interest or in which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is a principle, provided
that (i) on or prior to the effective date of such assignment, Purchaser
delivers to Seller evidence of the ownership of Purchaser (if applicable) and
the proposed assignee so as to permit Seller to verify that such proposed
assignee is a permitted assignee, (ii) on or prior to the effective date of such
assignment, Purchaser shall deliver to Seller a written assumption, in form
reasonably satisfactory to Seller and duly executed and acknowledged by the
assignee, in which the assignee agrees to assume all of Purchaser's covenants,
agreements and obligations under this Agreement and (iii) promptly following any
such assignment, Purchaser shall pay to Seller any amounts paid or payable to
Purchaser expressly by reason of such assignment, it being understood that the
foregoing shall not constitute an entitlement to any amounts payable to
Purchaser in the nature of capital contributions, distributions, promote fees,
carried interest or otherwise under the organizational documents of the
assignee. As of the date of any assignment of this Agreement in accordance with
the provisions of this Section 14.1, the representations of Purchaser named
herein set forth in Section 9.1 hereof shall be remade as to the assignee, as
Purchaser, except that the representations and warranties set forth in Section
9.1(a) hereof shall be modified accordingly. Purchaser named herein shall remain
fully liable for all of Purchaser's covenants, agreements and obligations under
this Agreement notwithstanding any such permitted assignment pursuant to this
Section 14.1.
ARTICLE 15. COVENANTS
---------------------
15.1. Operation of Premises. Between the date hereof and the Closing Date,
Seller shall continue to maintain the Premises in the ordinary course and
substantially in accordance with the practices and procedures customarily
followed by Seller in the maintenance of the Premises prior to the date hereof;
provided, however, that Seller shall have no obligation to make any repairs or
expenditures that are capital in nature.
15.2. Insurance. Between the date hereof and the Closing Date, Seller shall
either (a) maintain in full force and effect the fire and other casualty
insurance coverages described in Exhibit J attached hereto or (b) replace such
insurance policies with other policies providing coverage equivalent thereto.
15.3. Modification of Leases. Between the date hereof and the Closing Date,
Seller shall not modify or amend any of the Existing Leases or any of the New
Leases without Purchaser's prior written consent in each instance, which consent
shall not be unreasonably withheld; provided, however, Seller shall have the
right, without Purchaser's consent, to enter into any modification or amendment
of an Existing Lease or a New Lease if the same is required pursuant to the
terms of the Existing Lease or the New Lease, as the case may be, or if the same
is entered into to effectuate or memorialize the exercise of any right or option
contained in the Existing Lease or the New Lease, as the case may be. If
required, Purchaser's consent shall be deemed granted if not denied by notice
(stating the grounds for denial with reasonable specificity) given to Seller
within five (5) Business Days after request for such consent by Seller.
15.4. Termination of Leases. Between the date hereof and the Closing Date,
Seller shall not cancel, accept the surrender of, or terminate any of the
Existing Leases or New Leases without Purchaser's prior written consent in each
instance, which consent shall not be unreasonably withheld; provided, however,
Seller shall have the right, without Purchaser's consent, to cancel, accept the
surrender of, or terminate an Existing Lease or a New Lease (i) if such
cancellation, surrender or termination is predicated upon a default of the
tenant thereunder or (ii) if such cancellation, surrender or termination is made
by the tenant pursuant to the terms of the Existing Lease or the New Lease, as
the case may be. Seller shall furnish Purchaser promptly after the occurrence
thereof with notice of any such cancellation, surrender or termination. If
required, Purchaser's consent shall be deemed granted if not denied by notice
(stating the grounds for denial with reasonable specificity) given to Seller
within five (5) Business Days after request for such consent by Seller.
15.5. New Leases. Between the date hereof and the Closing Date, Seller
shall not enter into any New Leases without Purchaser's prior written consent in
each instance, which consent shall not be unreasonably withheld.
15.6. Leasing Costs.
(1) If the commencement date or effective date of any Lease Cost
Transaction (hereinafter defined) shall occur on or after the Closing Date,
Purchaser shall pay and be solely responsible for all Leasing Costs
incurred in connection therewith. If the commencement date or effective
date of any Lease Cost Transaction shall occur subsequent to the date
hereof but prior to the Closing Date, Seller shall pay and be responsible
for Seller's Proportionate Share (hereinafter defined) of Leasing Costs
incurred in connection therewith and Purchaser shall pay and be responsible
for the balance of such Leasing Costs.
(2) For purposes of this Section 15.6:
(1) The term "LEASE COST TRANSACTION" shall mean (A) any New
Lease or any modification or amendment of a New Lease to which
Purchaser has consented or to which Purchaser's consent is not
required in accordance with the terms hereof and (B) any modification
or amendment of an Existing Lease to which Purchaser has consented or
to which Purchaser's consent is not required in accordance with the
terms hereof, (C) any renewal option, extension option or expansion
option which is exercised between the date hereof and the Closing Date
pursuant to the terms of an Existing Lease or a New Lease, (D) any
space leased pursuant to a right of first refusal or first offer or
similar right which is exercised between the date hereof and the
Closing Date and (E) the failure timely to exercise any termination
right set forth in an Existing Lease or a New Lease at any time after
the date hereof; and
(2) The term "SELLER'S PROPORTIONATE SHARE " shall mean a
fraction, the numerator of which shall be the number of days from the
effective date or commencement date of a Lease Cost Transaction to
(but not including) the Closing Date and the denominator of which
shall be the number of days from the commencement date or effective
date of such Lease Cost Transaction to the stated expiration date of
the Lease.
15.7. Service Contracts. Subject to the provisions of Section 7.1(j)
hereof, Seller shall at or prior to Closing terminate each of the Existing
Service Contracts and any other service contracts or agreements which pertain to
the Property, other than (x) the Security Contracts and (y) the Tenant Brokerage
Agreements (if any.)
15.8. Accounts Payable. On or before the date which is thirty days after
the Closing Date, Seller shall pay accrued, unpaid amounts due under the Service
Contracts terminated by Seller in accordance with the provisions of Section 15.7
hereof. The provisions of this Section 15.8 shall survive Closing.
15.9. Tenant Estoppel Certificates. Subsequent to the Due Diligence
Expiration Date, Seller shall request that each Tenant under an Existing Lease
execute and deliver to Purchaser a Tenant Estoppel Certificate, and thereafter
use commercially reasonable efforts to obtain the same, provided that Seller
shall not be required to pay any sum of money or commence any action or
proceeding to obtain a Tenant Estoppel Certificate.
15.10. Notices. Promptly following its receipt thereof, Seller shall
furnish Purchaser with a copy of any written notice received by Seller which
contradicts any representation expressly made by Seller herein.
ARTICLE 16. MISCELLANEOUS
-------------------------
16.1. Notices. (1) All notices, demands, requests and other communications
required hereunder shall be in writing and shall be deemed to have been given:
(i) upon delivery, if personally delivered; (ii) one (1) Business Day after
deposit with a nationally recognized overnight delivery service marked for
delivery on the next Business Day; or (iii) upon receipt when transmitted by
telecopy, provided that notice is also sent by one of the foregoing three
methods, in each case addressed to the party for whom it is intended at its
address hereinafter set forth:
If to Seller:
Wellsford Capital Properties, L.L.C.
c/o Wellsford Real Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Keystone Real Estate Management, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Klehr, Harrison, ▇▇▇▇▇▇, Branzburg & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Escrowee:
The Abstract Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
(2) Any party may designate a change of address by written notice to
the others given in accordance with the provisions of this Section 16.1.
(3) The attorney for any party may send notices on that party's
behalf.
16.2. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey.
16.3. Successors. All of the provisions of this Agreement and of any of the
documents and instruments executed in connection herewith shall apply to and be
binding upon, and inure to the benefit of Seller and Purchaser, their successors
and their permitted assigns.
16.4. No Third Party Beneficiary. This Agreement and each of the provisions
hereof are solely for the benefit of Purchaser and Seller and their permitted
assigns. No provisions of this Agreement or of any of the documents and
instruments executed in connection herewith shall be construed as creating in
any person or entity other than Purchaser and Seller and their permitted assigns
any rights of any nature whatsoever.
16.5. No Personal Liability. Purchaser shall look only to Seller's estate
and interest in the Property for the collection of a judgement (or other
judicial process) requiring the payment of money by Seller in the event that
Purchaser is expressly entitled to a damage claim against Seller pursuant to the
terms of this Agreement, and no other property or assets of Seller or its
partners, members, officers, managers, shareholders or principals, disclosed or
undisclosed, shall be subject to levy, execution, attachment or other
enforcement procedure for the satisfaction of any such damage claim against
Seller under or with respect to this Agreement. The foregoing provisions of this
section are not intended to, and shall not, limit any express right that
Purchaser might otherwise have to obtain equitable relief (including the remedy
of specific performance where applicable and appropriate) against Seller. The
terms and provisions of this subsection shall survive the Closing or the earlier
termination of this Agreement.
16.6. Entire Agreement. This Agreement, together with the exhibits annexed
hereto and the documents and instruments executed and delivered in connection
herewith, set forth the entire agreement between Purchaser and Seller relating
to the transactions contemplated hereby and all other prior or contemporaneous
agreements, understandings, representations or statements, oral or written,
relating directly to the Property are superseded hereby.
16.7. Severability. If any provision in this Agreement is found by a court
of competent jurisdiction to be in violation of any applicable law, and if such
court should declare such provision of this Agreement to be unlawful, void,
illegal or unenforceable in any respect, the remainder of this Agreement shall
be construed as if such unlawful, void, illegal or unenforceable provision were
not contained therein, and the rights, obligations and interests of the parties
hereto under the remainder of this Agreement shall continue in full force and
effect undisturbed and unmodified in any way.
16.8. Modification. This Agreement and the terms hereof may not be changed,
waived, modified, supplemented, canceled, discharged or terminated orally, but
only by an instrument or instruments in writing executed and delivered by Seller
and Purchaser.
16.9. Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND
UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS OR CERTIFICATES
EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS
OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.
16.10. Venue. Purchaser and Seller each hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of this Agreement or the transactions
contemplated hereby brought in any federal or state court sitting in the State
of New Jersey and hereby further irrevocably waives and claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Seller and Purchaser further hereby expressly submits to the
jurisdiction of all federal and state courts sitting in the State of New Jersey.
16.11. No Recording. Neither this Agreement nor any memorandum hereof shall
be recorded. Each party hereby agrees to indemnify and hold harmless the others
for all liabilities, losses, damages, liens, suits, claims, costs and expenses
(including reasonable attorneys' fees) incurred by the others by reason of a
breach of the foregoing covenant.
16.12. Captions. The captions and table of contents in this Agreement are
inserted for convenience of reference only and in no way define, describe or
limit the scope or intent of this Agreement or any of the provisions hereof.
16.13. Counterparts; Effectiveness of Agreement. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which together will constitute one instrument. This
Agreement shall not be effective unless and until the same has been executed and
delivered by all parties hereto whether in one or more counterparts.
16.14. Merger. The delivery of the Deed to Purchaser and the closing of
title to the Property shall be deemed to constitute full performance and
discharge by Seller of every agreement and obligation on the part of Seller to
be performed hereunder, and no agreement, promise, representation or warranty,
express or implied, on the part of Seller shall survive Closing unless expressly
set forth to the contrary herein.
[Rest of Page Left Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Seller:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
Title: Vice President
Purchaser:
KEYSTONE REAL ESTATE MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Agreed as to Section 3.2 only:
THE ABSTRACT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
Exhibit A
(the Land)
All that certain plot, piece or parcel of land, with buildings and improvements
thereon erected, situate, lying and being in the Township of Cherry Hill, County
of Camden and State of New Jersey being described as follows:
BEGINNING at a point in the easterly line of Cuthbert Boulevard (also known as
Lexington Avenue), at a corner to lands now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, et
ux, said point bearing South 7 degrees 51 minutes 7 seconds East 199.77 feet
from a found monument in Cuthbert Boulevard at Station 47+02.67 and extending;
thence
(a) South 3 degrees 48 minutes 35 seconds West, a distance of 299.93 feet to a
point; thence
(b) Along a curve to the left with a radius of 296.24 feet, an arc distance of
71.51 feet to a point; thence
(c) Continuing on a curve, curving to the left having a radius of 160.00 feet,
an arc distance of 56.13 feet to a point; thence
(d) South 57 degrees 14 minutes 19 seconds East, a distance of 39.90 feet to a
point; thence
(e) Along a curve, curving to the right having a radius of 158.00 feet, an arc
distance of 83.42 feet to a point; thence
(f) Continuing along a curve, curving to the right having a radius of 308.00
feet, an arc distance of 114.18 feet to the point and place of BEGINNING,
and from said BEGINNING point running thence:
(1) North 26 degrees 23 minutes 5 seconds East, a distance of 825.19 feet to a
point; thence
(2) South 39 degrees 36 minutes 55 seconds East, a distance of 688.48 feet to a
point; thence
(3) South 50 degrees 23 minutes 5 seconds West, a distance of 625.00 feet to a
point; thence
(4) South 52 degrees 51 minutes 55 seconds East, a distance of 128.48 feet to a
point; thence
(5) South 36 degrees 46 minutes 00 seconds West, a distance of 40.00 feet to a
point, the intersection of the East property line; thence
(6) North 79 degrees 14 minutes 00 seconds West, a distance of 16.38 feet to a
point; thence
(7) South 36 degrees 46 minutes 00 seconds West, a distance of 252.72 feet to a
point on the northeasterly right-of-way line of New Jersey State ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇; thence
(8) North 52 degrees 51 minutes 20 seconds West, a distance of 109.97 feet
along the northeasterly right-of-way line of New Jersey State Highway Route
70; thence
(9) Along a cure, curving to the right having a radius of 239.67 feet, an arc
distance of 76.97 feet along the northeasterly right-of-way of Ramp "D"
connecting with New Jersey State ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ with Cuthbert Boulevard
to a point; thence
(10) Along a curve, curving to the right having a radius of 239.67 feet, an arc
distance of 58.06 feet along same right-of-way line to a point; thence
(11) Along a curve, curving to the right having a radius of 239.67 feet, an arc
distance of 19.31 feet along the same right-of-way line to a point of
reverse curvature; thence
(12) Along a curve, curving to the left having a radius of 400.00 feet, an arc
distance of 117.54 feet along the same right-of-way line to a point; thence
(13) Along a curve, curving to the left having a radius of 400.00 feet, an arc
distance of 53.66 feet along the same right-of-way line to a point; thence
(14) Along a curve, curving to the left having a radius of 400.00 feet, an arc
distance of 142.09 feet along the same right-of-way to the point and place
of BEGINNING.
Exhibit B
(Existing Leases)
1. Lease Agreement, dated as of August 14, 2000, by and between Wellsford
Capital Properties, L.L.C., as Landlord, and Professional, Industrial &
Technical Workers Union (PITWU), as Tenant.
2. Lease Agreement, dated as of January (undated), 1999, by and between
Wellsford Capital Properties, L.L.C., as Landlord, and ▇▇▇▇▇▇▇▇ Associates
d/b/a Invention Submission Corporation, as Tenant, as amended pursuant to
that certain Amendment to Lease Agreement, undated, by and between Landlord
and Tenant.
3. Lease, dated as of September 7, 1990, by and between Happy Balcony
Properties Limited Partnership ("Happy Properties"), as landlord, and ▇▇▇▇
▇. ▇▇▇▇▇▇▇ Associates ("▇▇▇▇"), as tenant, which Lease was modified
pursuant to that certain Supplemental Agreement, dated as of October 19,
1990, by and between Happy Properties and ▇▇▇▇, which Lease was assigned,
pursuant to that certain Assignment of Lease, dated as of December 3, 1990,
by and between ▇▇▇▇, as assignor, and Harperson Engineering, P.C., as
assignee, which Lease was further amended pursuant to that certain Second
Amendment to Lease, dated as of November 9, 1993, by and between Mortgage
and Realty Trust, as successor in interest to Happy Properties and ▇▇▇▇▇▇▇
Engineering, as Tenant, which was further modified pursuant to that certain
Additional Space and Extension Agreement, dated as of August 30, 1996, by
and between VPT Real Estate Corporation V, as Landlord, and Tenant.
4. Lease Agreement, dated as of May 21, 1999, by and between Wellsford Capital
Properties, L.L.C., as Landlord, and Ste-Lar Textiles, Inc., as Tenant,
which was amended pursuant to that certain Amendment to Lease Agreement,
dated as of May 22, 2000, by and between Landlord and Tenant.
5. Office Lease, dated as of January 1, 1997, by and between VPT Real Estate
Corporation V ("VPT"), as landlord and ▇▇▇▇▇▇▇ and Partners, Inc., as
Tenant, which was amended pursuant to that certain Amendment to Agreement
of Lease, undated, by and between Landlord and tenant, which was further
amended pursuant to that certain Second Amendment to Agreement of Lease,
dated as of May 1, 1999, by and between Wellsford Capital Properties,
L.L.C. ("Wellsford"), as successor in interest to VPT, and Tenant, which
was further amended pursuant to that certain Third Amendment to Agreement
of Lease, dated as of May 1, 2000, by and between Wellsford, as landlord,
and Tenant.
6. Lease Agreement, dated as of August 22, 2000, by and between Wellsford
Capital Properties, L.L.C., as Landlord, and Accredited Alarms Ltd., as
Tenant.
7. Lease, dated as of July 30, 1992, by and between Happy Balcony Properties
Limited Partnership ("Happy Properties"), as landlord, and ▇▇▇▇▇▇▇▇ Soup
Company, as Tenant, which was amended pursuant to that certain Amendment to
Lease, dated as of August 14, 1994, by and between Mortgage and Realty
Trust, as successor in interest to Happy Properties, and Tenant, and which
was extended pursuant to a letter, dated as of May 9, 2000, by Tenant, and
further extended pursuant to a letter, dated as of November 13, 2000, by
Tenant.
8. Lease, dated as of November 8, 1989, by and between Happy Balcony
Properties, Limited Partnership ("Happy Properties"), as landlord, and
▇▇▇▇▇▇▇ Engineering, Inc., as Tenant, which was amended pursuant to that
certain Amendment to Lease, dated as of March 1, 1995, by and between
Mortgage and Realty Trust, as successor in interest to Happy Properties,
and Tenant, which was further amended pursuant to that certain Second Lease
Amendment, dated as of November 3, 1995, by and between Mortgage and Realty
Trust, as landlord, and Tenant, which was further amended pursuant to that
certain Third Amendment to Lease, dated as of October 28, 1996, by and
between VPT Real Estate Corporation V, as successor in interest to Mortgage
and Realty Trust, and Tenant, which was further amended pursuant to that
certain Fourth Amendment to Office Lease, dated as of May 1, 1999, by and
between Wellsford capital Properties, L.L.C., as successor in interest to
VPT Real Estate Corporation V, and Tenant.
9. Lease Agreement, dated as of March 17, 1997, by and between VPT Real Estate
Corporation V, as Landlord, and Computer Learning Centers, Inc., as Tenant,
which was amended pursuant to that certain Amendment to Agreement of Lease,
dated as of April 1, 1998, by and between Landlord and Tenant.
10. Lease Agreement, dated as of December 10, 1999, by and between Wellsford
Capital Properties, L.L.C., as Landlord, and Environmental Services and
Technologies, Inc., as Tenant.
11. Lease Agreement, dated as of May 9, 1997, by and between VPT Real Estate
Corporation V, as landlord, and Innovative Software Solutions, Inc., as
Tenant, which was amended pursuant to that certain Amendment to Lease
Agreement, dated as of January 19, 2000, By and between Wellsford Capital
Properties, L.L.C., as Landlord, and Tenant.
12. Lease Agreement, dated as of June 30, 1999, by and between Wellsford
Capital Properties, L.L.C., as Landlord, and Innovative Financial
Strategies, Inc., as Tenant.
13. Lease Agreement, dated as of 1999 (undated), by and between Wellsford
Capital Properties, L.L.C., as Landlord, and MRS East, L.L.C., as Tenant.
14. Lease Agreement, dated as of December 24, 1998, by and between Wellsford
Capital Properties, L.L.C., as Landlord, and Networking Plus, Inc., as
Tenant.
Exhibit C
(Existing Service Contracts)
1. Agreement, dated as of June 1, 2000, by and between Two Executive Campus
and Electronic Security Corp. of America (Account #6039).
2. Agreement, dated as of June 1, 2000, by and between Two Executive Campus
and Electronic Security Corp. of America (Account # 510320).
3. Agreement, dated as of June 1, 2000, by and between Two Executive Campus
and Electronic Security Corp. of America (Account # E8024) (items 1 through
3 above, collectively, the "Security Contracts").
4. Service Contract, dated as of September 21, 1999, by and between ▇▇▇▇▇ &
▇▇▇▇▇ Management Services, Inc., as agent for Wellsford Real Properties,
and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company.
5. Service Contract, dated as of May 18, 2000, by and between ▇▇▇▇▇ & ▇▇▇▇▇
Management Services, Inc., as agent for Wellsford Real Properties, and
▇▇▇▇▇▇▇ Energy Services, Inc.
6. Service Contract, dated as of October 1, 1999, by and between ▇▇▇▇▇ & ▇▇▇▇▇
Management Services, Inc., as agent for Wellsford Real Properties, and
▇▇▇▇▇▇▇▇'▇ Landscaping and Irrigation.
7. Service Contract, dated as of February 11, 2000, by and between ▇▇▇▇▇ &
▇▇▇▇▇ Management Services, Inc., as agent for Wellsford Real Properties,
and GenServe, Inc.
8. Service Contract, dated as of April 4, 2000, by and between ▇▇▇▇▇ & ▇▇▇▇▇
Management Services, Inc., as agent for Wellsford Real Properties, and Penn
City Elevator Company
9. Agreement, dated as of May 1, 1998, by and between ▇▇▇▇▇ & ▇▇▇▇▇ Management
Services, Inc., as manager for VPT Real Estate Corp V/Two Executive Campus,
and BFI Waste Systems of New Jersey, Inc.
10. Agreement, dated as of November 20, 1998, by and between ▇▇▇▇▇ & ▇▇▇▇▇
Management Services, Inc., as manager for VPT Real Estate Corp V/Two
Executive Campus, and Zap Pest Control.
11. Agreement, dated as of May 1, 1998, by and between ▇▇▇▇▇ & ▇▇▇▇▇ Management
Services, Inc., as manager for VPT Real Estate Corp V/Two Executive Campus,
and Living Interior Plant Service.
12. Agreement, dated as of August 13, 1998, by and between ▇▇▇▇▇ & ▇▇▇▇▇
Management Services, Inc., as manager for VPT Real Estate Corp V/Two
Executive Campus, and Tri-County Pavement Maintenance, Inc.
13. Leasing Agency Agreement dated May 1, 2000 between Seller and ▇▇▇▇▇ & ▇▇▇▇▇
Company (the "Leasing Agency Agreement").
14. Property Management Agreement, dated as of May 1, 2000, by and between
Wellsford Capital Properties, LLC and ▇▇▇▇▇ & ▇▇▇▇▇ Management Services,
Inc. (the "Property Management Agreement").
Exhibit D
(Form of Tenant Estoppel Certificate)
TENANT ESTOPPEL CERTIFICATE
Landlord: Wellsford Capital Properties, L.L.C.
Tenant: _____________________________
Original Lease Date: ________________.
The undersigned Tenant under the above-referenced Lease (the "LEASE") hereby
ratifies and certifies to Keystone Real Estate Management, Inc. or its affiliate
("PURCHASER"), as the prospective purchaser of the real property commonly known
as Two Executive Campus, Cherry Hill, New Jersey (the "PROPERTY") of which the
premises demised under the Lease is a part (the "PREMISES"), and to any lender
providing financing to Purchaser in connection with its acquisition of such real
property ("LENDER"), as follows:
1. The CURRENT term of the Lease commenced on ____________ and expires on
__________. Tenant has accepted and is in possession of the Premises.
2. The Lease presently calls for monthly installments of fixed or base rent of
$___________.
4. _______ Rent has been paid to and including ____________, 2000, and no
advance rental or other payment has been made in connection with the Lease,
except rental for the current month. Tenant has no defenses or set-offs to
the payment of rent.
5. A security deposit in the amount of $ _________ is being held by Landlord.
6. There is no existing event of default on the part of the Landlord or the
Tenant in any of the terms and conditions of the Lease.*
7. The Lease is valid and in full force and effect and represents the entire
agreement between the parties, and the Lease has (check one):
( ) not been amended, modified, supplemented, extended,
renewed or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
-------------------------------------------------------
----------
* Will accept modified to Tenant's knowledge as to Landlord default.
8. As of the date hereof, Landlord has fully performed all of its obligations
under the Lease and satisfied all commitments made to induce Tenant to
enter into the Lease and Tenant is not entitled to any rental inducements,
"free rent", rent allowance, rent credits or other concession or economic
inducements in connection with the Lease throughout the remainder of the
term except as follows:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
-----------------------------.
9. All construction, build-out, improvements, or alterations to the Premises
required under the Lease have been fully completed in accordance with the
plans and specifications described in the Lease and all contributions
required to be made by Landlord throughout the term of the Lease on account
thereof have been made except as _____ follows:
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--------------------------------------.
10. There are no actions, voluntary or involuntary, pending against the Tenant
under the bankruptcy laws of the United States or any state thereof.
11. Tenant has no renewal, extension, cancellation or expansion rights under
the Lease, except to the extent expressly set forth in the Lease.
12. Tenant has no right of first offer or refusal with respect to, or other
option to purchase, all or any portion of the Premises.
13. Tenant has not assigned, transferred or pledged the Lease or any interest
therein or sublet any portion thereof except as follows:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
--------------------------------------.
This certificate has been given to Purchaser and Lender with the
understanding that Purchaser is acquiring the Property in reliance on this
Tenant Estoppel Certificate and Lender will rely hereon in connection with loans
which will be secured by the Property. The undersigned hereby certifies that he
or she is duly authorized to sign and deliver this Tenant Estoppel Certificate.
Tenant:
Date: _________, ______. By:
--------------------------------------
Name:
Title:
Exhibit E
(Form of ▇▇▇▇ of Sale)
▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS,
That WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("GRANTOR"), for and in
consideration of the sum of Ten Dollars ($10.00), lawful money of the United
States, to it in hand paid, at or before delivery of these presents by KEYSTONE
REAL ESTATE MANAGEMENT, INC., having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("GRANTEE"), the receipt of which is hereby
acknowledged, by these presents does hereby convey, without any recourse,
representation or warranty of any kind, unto Grantee, its successors and
assigns, all right, title and interest of Grantor, if any, in and to all
personal property affixed to, located upon or used in connection with the real
property described in Schedule 1 annexed hereto and made a part hereof.
TO HAVE AND TO HOLD the same unto Grantee, its successors and assigns
forever.
This ▇▇▇▇ of Sale shall be governed by and construed in accordance with the
laws of the State of New Jersey.
IN WITNESS WHEREOF, Grantor has caused this instrument to be duly executed
as of this ___ day of ------, ----.
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By: _______________________________
Name:
Title:
Schedule 1
----------
All that certain plot, piece or parcel of land, with buildings and improvements
thereon erected, situate, lying and being in the Township of Cherry Hill, County
of Camden and State of New Jersey being described as follows:
BEGINNING at a point in the easterly line of Cuthbert Boulevard (also known as
Lexington Avenue), at a corner to lands now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, et
ux, said point bearing South 7 degrees 51 minutes 7 seconds East 199.77 feet
from a found monument in Cuthbert Boulevard at Station 47+02.67 and extending;
thence
(a) South 3 degrees 48 minutes 35 seconds West, a distance of 299.93 feet to a
point; thence
(b) Along a curve to the left with a radius of 296.24 feet, an arc distance of
71.51 feet to a point; thence
(c) Continuing on a curve, curving to the left having a radius of 160.00 feet,
an arc distance of 56.13 feet to a point; thence
(d) South 57 degrees 14 minutes 19 seconds East, a distance of 39.90 feet to a
point; thence
(e) Along a curve, curving to the right having a radius of 158.00 feet, an arc
distance of 83.42 feet to a point; thence
(f) Continuing along a curve, curving to the right having a radius of 308.00
feet, an arc distance of 114.18 feet to the point and place of BEGINNING,
and from said BEGINNING point running thence:
(1) North 26 degrees 23 minutes 5 seconds East, a distance of 825.19 feet to a
point; thence
(2) South 39 degrees 36 minutes 55 seconds East, a distance of 688.48 feet to a
point; thence
(3) South 50 degrees 23 minutes 5 seconds West, a distance of 625.00 feet to a
point; thence
(4) South 52 degrees 51 minutes 55 seconds East, a distance of 128.48 feet to a
point; thence
(5) South 36 degrees 46 minutes 00 seconds West, a distance of 40.00 feet to a
point, the intersection of the East property line; thence
(6) North 79 degrees 14 minutes 00 seconds West, a distance of 16.38 feet to a
point; thence
(7) South 36 degrees 46 minutes 00 seconds West, a distance of 252.72 feet to a
point on the northeasterly right-of-way line of New Jersey State ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇; thence
(8) North 52 degrees 51 minutes 20 seconds West, a distance of 109.97 feet
along the northeasterly right-of-way line of New Jersey State Highway Route
70; thence
(9) Along a cure, curving to the right having a radius of 239.67 feet, an arc
distance of 76.97 feet along the northeasterly right-of-way of Ramp "D"
connecting with New Jersey State ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ with Cuthbert Boulevard
to a point; thence
(10) Along a curve, curving to the right having a radius of 239.67 feet, an arc
distance of 58.06 feet along same right-of-way line to a point; thence
(11) Along a curve, curving to the right having a radius of 239.67 feet, an arc
distance of 19.31 feet along the same right-of-way line to a point of
reverse curvature; thence
(12) Along a curve, curving to the left having a radius of 400.00 feet, an arc
distance of 117.54 feet along the same right-of-way line to a point; thence
(13) Along a curve, curving to the left having a radius of 400.00 feet, an arc
distance of 53.66 feet along the same right-of-way line to a point; thence
(14) Along a curve, curving to the left having a radius of 400.00 feet, an arc
distance of 142.09 feet along the same right-of-way to the point and place
of BEGINNING.
Exhibit F
(Form of Assignment and Assumption of Leases)
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT"), made as of
the ___ day of _______, ____, by and between WELLSFORD CAPITAL PROPERTIES,
L.L.C., having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("ASSIGNOR"),and KEYSTONE REAL ESTATE MANAGEMENT, INC., having an office
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("ASSIGNEE"), for and in consideration of the sum of Ten Dollars ($10.00),
lawful money of the United States, to it in hand paid, at or before delivery of
these presents by Assignee with reference to the following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November __, 2000 (the
"PURCHASE AGREEMENT"), Assignor is conveying to Assignee certain real property
more particularly described therein and known as Two Executive Campus, Cherry
Hill, New Jersey.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
promises, covenants and undertakings contained in the Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
Assignor hereby transfers, and otherwise conveys unto Assignee, without
recourse, representation or warranty of any kind (except as may be expressly set
forth in the Purchase Agreement, and subject to the limitations on survival of
representations set forth in the Purchase Agreement), all of Assignor's right,
title and interest as landlord under the leases set forth in Schedule 1 annexed
hereto (collectively, the "LEASES"), including without limitation, all rents,
issues and profits arising therefrom, TO HAVE AND TO HOLD all and singular
subject as aforesaid, unto Assignee.
From and after the date hereof, Assignee assumes and agrees to discharge
and perform all duties, obligations and liabilities arising on or after the date
hereof to be performed by Assignor as landlord under the Leases, for the
duration of the respective terms thereof. Without limiting the generality of the
foregoing, the obligations and liabilities assumed by Assignee hereunder shall
include, but shall not be limited to, the obligation to properly apply any
advance rental, security deposit or other deposit under any of the Leases, to
the extent such advance rental, security deposit or other deposit has been
delivered, assigned or credited by Assignor to Assignee concurrently herewith.
This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the successors and assigns of the parties.
This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
This Assignment shall be governed by and construed in accordance with the
laws of the State of New Jersey.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By: _______________________________
Name:
Title:
ASSIGNEE:
KEYSTONE REAL ESTATE MANAGEMENT, INC.
By: ___________________________
Name:
Title:
Schedule 1
[List of Leases]
Exhibit G
(Form of Assignment and Assumption of Service Contracts, Licenses and Permits)
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS
(this "ASSIGNMENT"), made as of the ___ day of _______, ____, by and between
WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ASSIGNOR"),and KEYSTONE REAL ESTATE
MANAGEMENT, INC., having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ASSIGNEE"), for and in consideration of the sum of
Ten Dollars ($10.00),lawful money of the United States, to it in hand paid, at
or before delivery of these presents by Assignee with reference to the
following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November ___, 2000,
Assignor is conveying certain real property known as Two Executive Campus,
Cherry Hill, New Jersey (the "PROPERTY") to Assignee. Capitalized terms used
herein and not otherwise defined shall have the meaning ascribed thereto in the
Purchase Agreement.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
foregoing promises, covenants and undertakings contained in this Assignment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
1. (a Assignor hereby assigns to Assignee, without recourse representation
or warranty of any kind, all of its right, title and interest in and to the
Security Contracts, the Tenant Brokerage Agreements (if any) and the assignable
Licenses and Permits.
(b Assignee hereby accepts the foregoing assignment and agrees to assume,
keep, perform and fulfill all of the terms, conditions and obligations which are
required to be kept, performed and fulfilled by Assignor in connection with or
arising out of the assignable Service Contracts and the assignable Licenses and
Permits from and after the date hereof.
(c Assignee further hereby assumes the obligations of Assignor with respect
to post-termination leasing commissions payable in accordance with Exhibit B,
Section 9 of the Leasing Agency Agreement.
2. This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
3. This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
4. This Assignment shall be governed by and construed in accordance with
the laws of the State of New Jersey.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By: _______________________________
Name:
Title:
ASSIGNEE:
KEYSTONE REAL ESTATE MANAGEMENT, INC.
By: ___________________________
Name:
Title:
Exhibit H
(Rent Roll)
Exhibit I
(Lease Disclosure Statement)
1. Landlord received a letter, dated November 14, 2000, from the tenant under
the MRS Lease asserting a right to terminate the lease by reason of a
claimed failure on the landlord's part to observe the tenant's "second
right of first refusal" set forth in the lease.
Exhibit J
(Insurance Coverages)
Exhibit K
(Permitted Exceptions)
1. The Leases and the rights of tenants thereunder, as tenants only,
including, without limitation, memoranda of the Leases and non-disturbance
agreements recorded with respect thereto.
2. Zoning and building regulations, ordinances, and requirements adopted by
any governmental or municipal authority having jurisdiction thereof, and
amendments and additions thereto now in force and effect, which relate to
the Premises.
3. Any agreements, financing statements, chattel mortgages, liens or
encumbrances entered into by, or arising from, the acts of any tenant.
4. Conditional bills of sale or Uniform Commercial Code financing statements
which were filed on a day more than five years prior to the Closing.
5. Subject to adjustment as herein provided, real estate taxes, tax liens,
water and sewer charges, assessments and vault charges, and the liens of
any of the foregoing.
6. State of facts disclosed by survey prepared by Ensureplan, Inc., dated
April 22, 1996, and any state of facts that an accurate update of said
survey or visual inspection would show.
7. Easements as set forth in Deed Book 3371 Page 39, Deed Book 3414 Page 569,
Deed Book 3604 Page 579, Deed Book 3815 Page 402, Deed Book 3604 Page 586,
Deed Book 3640 Page 493, Deed Book 3611 Page 907 and Deed Book 3705 Page
389, Camden County Records.
8. Rights and/or interests of others in and to all watercourses bounding,
crossing or affecting the subject premises.
9. Rights of others in and to all roads, highways, wood roads, street and ways
crossing, abutting or affecting the subject premises.
10. Right of the State of New Jersey to regulate and/or limit access to New
Jersey State Highway Route 70.