EXHIBIT NO. 10.132
AGREEMENT OF SALE
AGREEMENT made this day of January, 1998, by and between LANCER
ASSOCIATES, L.L.C., a New Jersey limited liability company, having an office at
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Seller"),
and ▇▇▇▇-▇▇▇▇ REALTY, L.P., a Delaware limited partnership, having an office at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Purchaser").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the mutual covenants hereinafter contained:
59. AGREEMENT TO SELL AND PURCHASE.
(a) Seller hereby agrees to sell and convey, and Purchaser
hereby agrees to purchase, subject to the conditions set forth herein, those
certain plots, pieces or parcels of land ("Land"), together with all buildings
and improvements located thereon or to be constructed thereon, and any
appurtenances or hereditaments appertaining thereto ("Improvements"), located in
the Township of Moorestown, County of Burlington, State of New Jersey
(hereinafter referred to as the "Premises"). The Land and Improvements
constitute a portion of ▇▇▇▇ ▇, ▇, ▇ ▇▇▇ ▇, ▇▇▇▇▇ 300 on the current Township's
Tax Map, and are more particularly described on Schedule "A" attached hereto and
made a part hereof and cross-hatched on Schedule "A-1" attached hereto and made
a
part hereof.
(b) This sale includes, for no additional consideration, all
of the right, title and interest, if any, of Seller in and to the following:
(i) All fixtures, equipment and articles of
personal property necessary or appropriate for the operation or use of the
Premises, and any replacements or substitutions therefor and additions thereto
("Personal Property"), all trade names and fictitious names used by Seller in
connection with the Premises ("Names"), and all documents, records and books of
account relating to the construction, ownership, leasing, operation, management,
maintenance and/or financing of the Premises, which are in the possession or
control of Seller ("Records"). All of said Personal Property, Names and Records
shall be included in the deed of conveyance, ▇▇▇▇ of Sale and/or assignments to
be delivered at Closing (as hereinafter defined), as Purchaser may request;
(ii) Any land lying in the bed of any street, or
road open or proposed in front of, adjacent to, or adjoining the Premises, to
the center lines thereof, and any future award, if any, for damages to said
Premises by reason of change of grade of any street and all rights of way
appurtenant thereto ("Appurtenant Property"); and Seller shall execute and
deliver to Purchaser, at Closing or thereafter, on demand, all proper
instruments for the conveyance of such title and for the assignment and
collection of any such award.
The Premises, together with the Personal Property, Names, Records and
Appurtenant Property are referred to herein collectively as the "Property".
60. PURCHASE PRICE.
The purchase price to be paid by Purchaser to Seller is Three
Million Six Hundred Fifty Thousand ($3,650,000.00) Dollars (herein called the
"Purchase Price"), subject to adjustments and prorations described herein. The
Purchase Price shall be payable by immediately available funds in accordance
with wiring instructions of Seller. The Purchase Price shall be payable in full
at Closing.
61. DEPOSIT.
(a) Upon the execution and delivery of this Agreement,
Purchaser shall deliver to Escrow Agent (as hereinafter defined in Paragraph
3.(b) hereof) an irrevocable letter of credit in substantially the form of the
letter of credit annexed hereto as Schedule "C" in the sum of One Hundred
Thousand ($100,000.00) Dollars (the "Letter of Credit").
(b) The Letter of Credit shall be deposited with ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, Esqs., attorneys for Seller ("Escrow Agent"), and shall be held by
Escrow Agent in accordance with the provisions of Paragraph 23 hereof, subject
to the following terms:
(i) At Closing, the Letter of Credit shall be
delivered to Purchaser;
(ii) If this Agreement is terminated pursuant to
its terms, or if this transaction otherwise does not close for any reason except
for Purchaser's or Seller's default, the Letter of Credit shall be delivered
immediately to Purchaser without application of Paragraph 23(f), (h) and (I)
hereof;
(iii) If this Agreement is terminated due to
Purchaser's default, the Letter of Credit shall be delivered immediately to
Seller as liquidated damages pursuant to Paragraph 18 hereof subject to the
terms of Paragraph 23 hereof; and
(iv) If this Agreement is terminated due to
Seller's default, the Letter of Credit shall be delivered to Purchaser, subject
to the terms of Paragraph 23 hereof.
62. CONSTRUCTION OF IMPROVEMENTS.
(a) Attached hereto and made a part hereof as Schedule "B" is
a list of complete architectural drawings and specifications (the "Plans and
Specifications") for the construction of Improvements on the Property. The Plans
and Specifications shall be final and shall not be changed by Seller without the
prior consent of Purchaser.
(b) Seller has advised Purchaser that it has commenced
construction of the Improvements and covenants and agrees that it shall,
promptly and with due diligence continue to construct the Improvements on the
Property in accordance with the Plans and Specifications, including, without
limitation, utility lines, drainage, lighting facilities, grading and paving,
landscaping, approaches, entrances, exits, ramps, sidewalks, roadways, curb
cuts, loading areas, platforms, service roads and all buildings
required to be constructed pursuant to the Plans and Specifications. The
construction work shall be done in a first class, good and workmanlike manner
and in compliance with all applicable laws, orders and regulations of federal,
state, county and municipal authorities having jurisdiction. Seller, at its sole
cost and expense, shall obtain or cause to be obtained all building permits,
licenses, temporary and permanent certificates of occupancy and other
governmental approvals which may be required to permit the construction of the
Improvements in accordance with the Plans and Specifications and the use or
occupancy thereof.
(c) Purchaser may, on reasonable prior notice to Seller, visit
the job site to inspect the progress and performance of the work and the
materials being incorporated into the Improvements.
(d) At least ten (10) days prior to Closing (as hereinafter
defined) but not later than thirty (30) days after Substantial Completion (as
hereinafter defined) of construction of the Improvements on the Property, Seller
shall, at its sole cost, deliver to Purchaser an accurate "as built" survey of
the Improvements certified to Purchaser and its designees by a duly licensed
surveyor including the information set forth on Schedule "E", together with
three (3) sets of "as built" plans of the Improvements, including, without
limitation, architectural and mechanical plans.
(e) Seller shall, at its own expense, maintain or
cause to be maintained in force a policy or policies of insurance written by one
or more responsible insurance carriers acceptably rated by national rating
organizations insuring against liability for bodily injury, death and property
damage of any person or persons in connection with construction work to be
performed pursuant to this Agreement, with minimum limits as set forth below:
(A) Worker's Compensation: Statutory
Limits.
(B) Employer's Liability: $100,000.00.
(C) Comprehensive General Liability
covering the following:
(1) Bodily injury, death and
property damage having a
combined single limit of
liability of not less than
Two Million ($2,000,000.00)
Dollars;
(2) Owner's Protective Liability:
$1,000,000.00 per occurrence;
(3) Products Completed Operations
Coverage: (to be kept in effect
for two (2) years after
completion);
(4) "XCU" Hazard Endorsement, if
applicable;
(5) "Broad Form" Property Damage
Endorsement;
(6) "Personal Injury" Endorsement;
(7) Contractual Liability
Endorsement. Such policy or policies shall provide, among other things, that the
insurer(s) specifically recognize and insure the obligations undertaken by
Seller pursuant to this Agreement and shall name
Purchaser as an additional insured. Seller shall deliver a certificate of
insurance evidencing the existence in force of such policy or policies of
insurance. Such certificate shall provide that such insurance will not be
canceled or materially amended unless twenty (20) days prior written notice is
given to Purchaser.
(f) Seller covenants and agrees, at its sole cost and expense,
to promptly make, or cause to be made, all repairs and replacements to the
applicable work arising from defective labor and/or materials during the period
commencing on final completion of such Improvements and terminating on the date
which is one (1) year therefrom.
(g) Seller shall give Purchaser at least sixty (60) days prior
notice of the date of Substantial Completion (the "Substantial Completion
Notice").
63. TITLE.
(a) Seller shall convey title to the Property and Purchaser
shall accept Marketable Title (as hereinafter defined), subject only to the
encumbrances set forth on Schedule "D" ("Permitted Encumbrances"). Marketable
Title shall mean that fee title to the Property is vested in Seller and shall be
insured as such by a title company selected by Purchaser (herein referred to as
the "Title Company") at standard rates; and that Purchaser shall not incur any
damage, cost or expense resulting from any encroachment or overlap affecting the
Property. Title Company shall certify that Seller has the right, authority and
power to
enter into and to perform its obligations hereunder. The legal description in
the Binder (as hereinafter defined) and in the Deed (as hereinafter defined)
shall be in accordance with a current survey showing the completed Improvements
satisfactory to Title Company and Purchaser.
(b) Purchaser has received a title insurance binder (herein
referred to as the "Binder"), a copy of which has been delivered to Seller.
Prior to the expiration of the Due Diligence Period (as hereinafter defined),
Purchaser shall deliver to Seller's attorney notice of any objections to title
which are not Permitted Encumbrances. After the execution hereof, no further
liens, encumbrances, easements or restrictions shall be created or filed
("Subsequent Encumbrances") on or with respect to the Property. The Binder, at
the request of Purchaser, shall contain the following endorsements so that at
Closing, Title Company will issue an Owner's Policy of Title Insurance (American
Land Title Association Owner's Policy - 1992, or equivalent, in Purchaser's sole
judgment), in the full amount of the Purchase Price (the "Title Policy"):
(i) a zoning endorsement certifying that the
Property is not subject to any ordinance, regulation or restriction which in any
way would prohibit or restrict the construction, maintenance and/or use of the
insured Property for its present use;
(ii) an endorsement insuring contiguity between or
among all of the tracts or parcels of land comprising the
Property;
(iii) an endorsement deleting any coverage
exclusions with respect to creditor's rights; and
(iv) an endorsement affirmatively insuring access
to public streets, highway and roadways.
If the Binder discloses any exceptions, liens, encumbrances, defects or
objections other than the Permitted Encumbrances or if, after execution hereof,
a Subsequent Encumbrance shall be placed against the Property or if the Title
Company is unable to issue the endorsements (herein collectively called the
"Title Defect(s)"), then Purchaser shall have the right to: (i) require Seller
to use best efforts to cure any such Title Defects (except that Seller shall be
obligated to cure any Title Defects which can be removed solely by the payment
of a sum of money); (ii) attempt to cure any such Title Defect; (iii) accept
such title as Seller shall be able to convey and proceed to Closing without
reduction in the Purchase Price; (iv) cause a title report and title insurance
policy to be issued by another title company without such Title Defect; (v)
elect not to purchase the Property and declare this Agreement null and void,
whereupon Purchaser shall be entitled to the return of the Letter of Credit;
provided, however, if Seller gives notice to Purchaser within five (5) days
after Purchaser's election under this subparagraph (v), that Seller intends to
cure such Title Defects and thereafter cures such Title Defects in accordance
with the terms of this Agreement within thirty (30) days after receipt of notice
from Purchaser of its election under this subparagraph (v), then Purchaser's
notice of termination shall be deemed negated and the transaction contemplated
by this Agreement shall proceed pursuant to the terms of this Agreement. The
right of Purchaser to terminate this Agreement may be exercised following the
exercise of its other rights hereunder.
(c) If at Closing there are liens or encumbrances against the
Property other than Permitted Encumbrances, Seller may use any portion of the
Purchase Price to satisfy same, provided Seller, at Closing, either shall: (1)
deliver to Purchaser instruments in recordable form sufficient to satisfy such
liens or encumbrances of record, together with the cost of recording or filing
said instruments; or (2) deposit with Title Company sufficient monies acceptable
to Title Company to insure obtaining and recording of such satisfactions and the
issuance of a Title Policy for the Property to Purchaser free and clear of any
such liens or encumbrances, but only to the extent that such liens or
encumbrances are in favor of and held by institutional lenders. The existence of
any such liens or encumbrances shall not be deemed objections or exceptions to
title if Seller shall comply with the foregoing requirements.
(d) If a search of title discloses judgments, bankruptcies or
other returns against other persons or entities having names the same as or
similar to that of Seller or any predecessor in title, Seller, on request, shall
deliver to Title Company, an affidavit showing that such judgments, bankruptcies
or other returns are not against Seller or such predecessors in
interest of Seller.
64. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Seller acknowledges that all representations and
warranties set forth in this Agreement presently are true and accurate and shall
remain true and accurate as of the Closing Date, it being acknowledged that
Purchaser is relying on all of said representations and warranties, and that
each of the representations and warranties set forth in this Agreement is of the
essence hereof, notwithstanding any investigation, review, examination or other
acts or conduct of Purchaser, its agents or representatives relating to or in
connection with, any representation or warranty contained in this Agreement. In
addition to any other representations, warranties and/or covenants contained in
this Agreement, Seller makes the following additional representations,
warranties and/or covenants:
(A) Seller has delivered to Purchaser true,
correct and complete copies of any applicable certificate of incorporation,
certificate of formation, certificate of limited partnership, trade name
certificate, Shareholders' Agreement, Operating Agreement, Limited Partnership
Agreement, Partnership Agreement, Trust Agreement, By-Laws and all other
governing documents of Seller and each participant of Seller (referred to herein
singularly and collectively as "Organizational Document(s)");
(B) Seller is duly organized, validly existing
and in good standing in its state of formation and is in good standing in New
Jersey, has the right and authority to execute this Agreement and to consummate
this transaction in accordance with the provisions hereof and all persons
executing this Agreement and all other applicable documents on behalf of Seller
have the right, power and authority to do so. Seller shall provide Purchaser
true copies of its authority and appropriate resolutions ("Seller Resolutions")
ratifying Seller's entering into this Agreement, and authorizing Seller's sale
of the Property to Purchaser in accordance with the terms of this Agreement;
(C) Seller owns and shall convey to Purchaser the
Premises and the fixtures, Personal Property, Names and Records, free and clear
of all liens and encumbrances, except for the Permitted Encumbrances;
(D) Seller has no knowledge of and has not
received any notice(s) of, any violations of law, code, ordinances, rule,
regulation or requirements noted in or issued by any governmental department
having authority with respect to the Property, except as otherwise provided
herein. Seller shall deliver to Purchaser true copies of any such notice(s)
received after the date hereof, forthwith on receipt thereof, and each such
notice shall be complied with by Seller, at its sole cost and expense, prior to
Closing, or as otherwise agreed upon between the parties;
(E) Schedule "F" annexed hereto and made a part
hereof contains a complete and accurate statement of all tenants who have
entered Leases, whether or not they are occupying space at the Property as of
the date of this Agreement ("Tenant(s)"), each of whom has entered into and/or
will be in occupancy pursuant to a written lease agreement (referred to herein
collectively as "Leases" and individually as a "Lease"). Schedule "F" contains:
(i) the complete and accurate name of each Tenant; (ii) the commencement date of
each Lease or the basis for determining same; (iii) the termination date of each
Lease or the basis for determining same; (iv) the renewal, extension or other
rights or options, if any, for existing, additional and/or other space granted
by each Lease, and whether said rights or options have been exercised; (v) the
initial base rent being paid or to be paid by each Tenant; (vi) the initial
additional rent being paid or to be paid by each Tenant (itemized); (vii) the
date the last base and additional rent were paid by each Tenant, if any, and the
period covered by said payment; (viii) the amount of the security deposit being
held or to be held by Seller, if any, for each Tenant and the amount of interest
accrued thereon, if interest is required to be paid to any Tenant; (ix) any
future concession, rebate, allowance, free rent period or other considerations;
(x) any right of each Tenant to purchase or acquire an ownership interest in all
or any portion of the Property; and (xi) any breach or default by landlord or
Tenant in accordance with the provisions of subparagraph (G) below. There are no
tenants, licensees,
concessionaires or other occupants or persons with the right of occupancy of any
portion of the Property except for Tenants set forth on Schedule "F". At the
Closing, Seller will assign to Purchaser, and Purchaser will assume from Seller,
all of Seller's interest in the Leases and the security deposits, by execution
and delivery of the assignment and assumption of leases ("Assignment and
Assumption of Leases") in the form annexed hereto and made a part hereof as
Schedule "G". At the Closing, the parties agree to execute letters notifying all
Tenants of the sale of the Property to Purchaser ("Tenant Notice") in the form
annexed hereto and made a part hereof as Schedule "H";
(F) True and complete copies of the Leases and
all amendments or modifications thereto have been given to
Purchaser for each Tenant listed on Schedule "F". There are no
amendments or modifications to the Leases which have not been
provided to Purchaser;
(G) The Leases are in full force and effect.
Neither Seller nor, except as set forth on Schedule "F", any Tenant is in breach
or default of its Lease obligations, and to the best of Seller's knowledge,
nothing has occurred which, with the passage of time and/or with the giving of
notice, might result in Seller or any Tenant being in breach or default of its
Lease obligations;
(H) At the time of Closing, all obligations of
Seller pursuant to the Leases with respect to performance of work or
installation of equipment in all respects shall have been
completed, subject to the terms of this Agreement;
(I) No Tenant is entitled to receive or has been
offered or given any free rent, rent concessions, rebates, allowances or other
considerations which would be effective for any period after the date of this
Agreement, except as set forth in the Leases listed on Schedule "F," and no
Tenant has made a claim for any of the foregoing, except as otherwise herein
provided;
(J) To the best of Seller's knowledge, there are
no claims, offsets or charges asserted by any Tenant against rent, security
deposit or any other payment to be made by such Tenant;
(K) No person or entity, other than the aforesaid
Tenants, has or shall have any right to use, utilize or occupy the Property or
any part thereof, either as a tenant or otherwise;
(L) Seller shall obtain and deliver to Purchaser,
on or before the Closing, a duly executed estoppel certificate ("Estoppel
Certificate") in the form annexed hereto as Schedule "I" dated not more than
fifteen (15) days prior to Closing, from each Tenant;
(M) From and after the date of this Agreement,
without Purchaser's prior consent, Seller shall not: (i) accept prepayment of
rent more than one month in advance from any Tenant; (ii) grant any free rent,
rent concession, rebate, allowance or other consideration; (iii) modify or amend
any
Leases; (iv) accept the surrender of any Leases; or (v) enter into any new
leases or other occupancy, license or concession arrangements with Tenants or
any other person or entity for the use of any portion of the Property;
(N) Except as otherwise provided herein in
Schedule "J" annexed hereto, there are no brokerage commissions or other fees
due in connection with the rental of any space at the Property, there will be no
obligation for such commissions or fees due at the Closing, and there will be no
obligations for such commissions or fees due after the Closing, including,
without limitation, any obligation to pay commissions or fees in connection with
the renewal or extension of the term of any Leases. All brokerage commissions in
connection with the leasing of any space in the Property, whether due prior to
Closing or thereafter, on account of the continued occupancy by any Tenant for
the lease term in effect at Closing, shall be paid by Seller at Closing or
allowed as a credit against the Purchase Price by Seller at Closing (in which
event Purchaser shall pay such commissions in accordance with the provisions of
the applicable brokerage agreements). All brokerage commissions in connection
with the leasing of any space in the Property on account of any unexercised
renewal, extension or taking of other space at the time of Closing shall be paid
by Purchaser. Each party shall indemnify, defend and hold the other harmless
from and against any and all costs and liabilities incurred by such party as a
result of the falsity of the aforesaid representation or the
breach of the aforesaid obligation;
(O) At Closing, Seller shall deliver to Purchaser
an assignment (to the extent lawfully assignable) of all of its right, title and
interest in: (i) any existing Certificate of the Board of Fire Underwriters
covering the Property; (ii) any permits or licenses it may have pertaining to
the Property; (iii) all available site and building plans and specifications
relating to the Property; and (iv) all available Certificates of Occupancy;
(P) All existing guarantees and warranties which
Seller has received or will receive from contractors, subcontractors,
manufacturers, materialmen, distributors, sellers or others, regarding all or
any portion of the Property are set forth on Schedule "L" attached hereto and
made a part hereof (together with any additional guarantees and warranties
relating to the Property received after the date hereof, being collectively
referred to herein as "Guarantees"). At Closing, Seller shall assign to
Purchaser (to the extent the Guarantees are assignable) all of its right, title
and interest in and to all Guarantees;
(Q) All service, maintenance, vending,
concession, license, agency or other agreements affecting the Property or the
operation thereof ("Contract(s)") will be in force at the Closing and a true and
complete list of all Contracts are set forth on Schedule "M" annexed hereto and
made a part hereof. True copies of all Contracts have been delivered to
Purchaser or shall be delivered to Purchaser within ten (10) days of the date
hereof. Any or all such Contracts, upon Purchaser's request, shall be assigned
by Seller to Purchaser at Closing and all Contracts are cancelable on not more
than thirty (30) days' notice. On request of Purchaser, Seller shall cancel any
or all of such Contracts as of the Closing Date. Between the date hereof and the
Closing, Seller shall not renew, extend, modify or terminate any of said
Contracts or enter into any other contract and/or agreement affecting the
Property or the operation thereof without the consent of Purchaser in each
instance first being obtained. No party to any Contract is in breach or default
thereunder, and to Seller's knowledge, nothing has occurred which with the
passage of time and/or with the giving of notice could constitute a breach or
default thereunder;
(R) At the time of Closing there shall not be
any, employment, collective bargaining or union agreements affecting the
Property or the operation thereof or any deferred income or retirement plans in
effect;
(S) There are no actions, suits, labor disputes,
litigation or proceedings ("Action(s)") pending or, to the knowledge of Seller,
threatened against or affecting Seller or the Property, the environmental
condition thereof or the operation thereof at law or in equity or before any
federal, state, municipal or governmental department, commission, board, bureau,
agency or instrumentality, nor does Seller have knowledge of any basis for any
such Action, which, if determined adversely
to Seller, in any way would affect the Property or the operation thereof other
than as set forth on Schedule "N" annexed hereto and made a part hereof. None of
the Actions listed on Schedule "N" nor any subsequent Actions will be settled,
either prior to or after Closing, without Purchaser's consent, nor will Seller
take any material actions in connection therewith without first notifying
Purchaser;
(T) Seller has not, nor prior to Closing shall:
make a general assignment for the benefit of creditors; file a voluntary
petition in bankruptcy; be by any court adjudicated a bankrupt; take the benefit
of any insolvency act; be dissolved or liquidated, voluntarily or involuntarily;
or have a receiver or trustee appointed in any proceedings;
(U) Seller has no knowledge and has received no
notice of any application for any zoning change or pending zoning
ordinance or amendment, which would affect the Property;
(V) The execution, delivery and performance of
this Agreement in accordance with its terms does not violate any contract,
agreement, commitment, order, judgment, decree, law, regulation or ordinance to
which Seller is a party or by which Seller is bound or as to which any of its
assets is subject;
(W) Seller has not entered into any commitment or
any agreement or understanding with any municipality, county, state or federal
government agency or authority which would require the installation of any
improvements or the incurring of any cost or expense affecting the Property or
otherwise;
(X) Seller presently maintains and shall continue
to maintain until Closing policies of insurance in accordance with Schedule "O"
attached hereto and made a part hereof;
(Y) Seller has no knowledge of any Federal, State
or local plans to change the highway or road system in the vicinity of the
Property or to restrict or change access from any such highway or road to the
Property or of any pending or threatened condemnation of the Property or any
part thereof or of any plans for improvements which might result in a special
assessment against the Property;
(Z) At Closing, no services, material or work
have been supplied by Seller's contractors, subcontractors or materialmen with
respect to the Property for which payment has not been made in full. If,
subsequent to the Closing Date, any mechanic's or other lien, charge or order
for the payment of money shall be filed against the Property or against
Purchaser or Purchaser's assigns, based upon any act or omission, or alleged act
or omission before or after the Closing Date, of Seller, its agents, servants or
employees, or any contractor, subcontractor or materialmen connected with the
construction and completion by Seller of improvements at the Property, or
repairs made to the Property by or on behalf of Seller (whether or not such
lien, charge or order shall be valid or enforceable as such), within ten (10)
days after notice to Seller of the filing thereof, Seller shall take such
action, by bonding, deposit, payment or otherwise, as will remove or satisfy
such lien of record against
the Property;
(AA) Seller has provided Purchaser with all
reports and documents set forth on Schedule "P", which are all of the
Environmental Documents (as defined in Paragraph 14.(e)(iv) hereof) in its
possession or under its control related to the physical condition of the
Property. In addition, Seller has provided Purchaser with all books and records
necessary for Purchaser to conduct its due diligence of the Property;
(BB) Seller has no knowledge of any notices,
suits, investigations or judgments relating to any violations of any laws,
ordinances or regulations affecting the Property, (including, without
limitation, Environmental Laws [as defined in Paragraph 14.(e)(v) hereof]), or
any violations or conditions that may give rise thereto, and has no reason to
believe that any "Governmental Authority" (as defined in Paragraph 14.(e)(vi)
hereof) contemplates the issuance thereof, and there are no outstanding orders,
judgments, injunctions, decrees, directives or writ of any Governmental
Authority against or involving Seller or the Property; and
(CC) Except as disclosed on Schedule "Q" attached
hereto and made a part hereof:
(1) to the best of Seller's knowledge, there
are no Contaminants (as defined in Paragraph 14.(e)(i) hereof) on, under, at,
emanating from or affecting the Property, except those in compliance with all
applicable Environmental Laws;
(2) Seller has not, nor to Seller's
knowledge, has any current occupant and any prior owner or occupant, of the
Property received any Notice (as defined in Paragraph 14.(e)(ix) hereof) or
advice from any Governmental Authority or any other third party with respect to
Contaminants on, under, at, emanating from or affecting the Property and, to
Seller's knowledge, no Contaminants have been Discharged (as defined in
Paragraph 14.(e)(ii) hereof) which would allow a Governmental Authority to
demand that a cleanup be undertaken;
(3) no portion of the Property has ever been
used by Seller or, to Seller's knowledge, any former owner or current or former
occupant to generate, manufacture, refine, produce, treat, store, handle,
dispose of, transfer or process Contaminants, whether or not any of those
parties has received Notice or advice from any Governmental Authority or any
other third party with respect thereto in violation of Environmental Laws;
(4) no portion of the Property now is or, to
Seller's knowledge, ever has been used as a Major Facility (as defined in
Paragraph 14.(e)(vii) hereof) and Seller shall not use, nor permit use of any
portion of the Property for that purpose;
(5) Seller has not transported any
Contaminants, nor to Seller's knowledge has any current or former occupant or
former owner transported Contaminants from the Property to another location
which was not done in compliance with all applicable Environmental Laws;
(6) no ss. 104(e) informational request has
been received by Seller issued pursuant to CERCLA (as defined in
Paragraph 14.(e)(i) hereof);
(7) to the best of Seller's knowledge, there
is no asbestos or asbestos containing material in any friable
state or otherwise in violation of Environmental Laws on the
Property;
(8) to the best of Seller's knowledge, all
transformers and capacitators containing polychlorinated
biphenyls ("PCBs"), and all "PCB Items", as defined in 40 C.F.R.
ss. 761.3, located on or affecting the Property are identified in
Schedule "S" and are in compliance with all Environmental Laws;
(9) to the best of Seller's knowledge, there
are no above ground storage tanks or Underground Storage Tanks (as defined in
Paragraph 14.(e)(xi) hereof) at the Property, regardless of whether such tanks
are regulated tanks or not;
(10) to the best of Seller's knowledge, all
pre-existing above ground storage tanks and Underground Storage Tanks at the
Property have been removed and their contents disposed of in accordance with and
pursuant to Environmental Laws;
(11) to the best of Seller's knowledge, the
Property has not been used as a sanitary landfill facility as
defined in the Solid Waste Management Act, N.J.S.A. 13:1E-1 et
seq.;
(12) Seller and, to the best of Seller's
knowledge, each occupant of the Property have all environmental certificates,
licenses and permits ("Permit") required to operate the Property and there is no
violation of any statute, ordinance, rule, regulation, order, code, directive,
or requirement, including, without limitation, Environmental Laws, with respect
to any Permit, nor any pending application for any Permit;
(13) to the best of Seller's knowledge, the
Property is not subject to any wetlands regulations, administered by the United
States of America, Army Corps of Engineers, the Environmental Protection Agency
or NJDEP (as defined in Paragraph 14.(e)(viii) hereof);
(14) there are no federal or state liens as
referred to under CERCLA or the Spill Act (as defined in
Paragraph 14.(e)(i) hereof) that have attached to the Property;
(15) Seller in the past has not and does not
now own, operate or control any Major Facility;
(16) Seller has not nor to the best of
Seller's knowledge has Seller permitted any occupant to engage in
any activity on the Property in violation of Environmental Laws;
(17) the Property is in material compliance
with Environmental Laws; and
(18) to the best of Seller's knowledge,
there are no engineering or institutional controls at the Property, including
without limitation, any deed notice, declaration of environmental restriction,
groundwater classification exception area or well restriction area pursuant to
N.J.S.A. ss. 13:1E-56 or
N.J.S.A. 58:10B-13.
(b) Purchaser hereby represents, warrants and
covenants the following:
(A) Purchaser is a limited partnership of the
State of Delaware, in good standing, has the right and authority to execute this
Agreement and to consummate this transaction in accordance with the provisions
hereof and all persons executing this Agreement and all other applicable
documents on behalf of Purchaser, have the right, power and authority to do so;
(B) The execution, delivery and performance of
this Agreement in accordance with its terms does not violate any contract,
agreement, commitment, order, judgment, decree, law, regulation or ordinance to
which Purchaser is a party or by which it is bound or as to which any of its
assets is subject; and
(C) Purchaser shall provide Seller true copies of
authorization ("Purchaser's Authorization") authorizing or ratifying Purchaser's
entering into this Agreement and authorizing Purchaser's purchase of the
Property from Seller in accordance with the terms of this Agreement.
(c) In the event that either party knows or learns that any of
the representations contained in this Agreement are false or no longer are true
and accurate, such party forthwith shall deliver notice of such fact to the
other party, and the other party shall proceed diligently to cure or remedy such
misrepresentations. In the event that such misrepresentations cannot or shall
not be cured within thirty (30) days following
delivery of notice thereof, then the notifying party shall have the right either
(i) to elect, nevertheless, to close title to the Property in accordance with
the provisions of this Agreement, or (ii) to declare this Agreement null and
void, by notice delivered to the non-curing party. The termination of this
Agreement pursuant to this Paragraph 6 shall not release the misrepresenting
party from any liability it may otherwise have to the other party by reason
thereof.
(d) Whenever in this Paragraph 6, a representation and/or
warranty is made to the knowledge of Seller, knowledge of Seller shall mean the
actual knowledge of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and/or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, without any
independent investigation other than reviewing the applicable representation
and/or warranty.
(e) The representations and warranties made by Seller in
Paragraphs 6(C), (E), (F), (H), (K), (N), (V), (W), (AA), (AB) and (AC) shall
survive the Closing for the applicable statute of limitations. The
representations and warranties made by Seller in Paragraphs 6(A), (B), (D), (G),
(I), (J), (L), (M), (O), (P), (Q), (R), (S), (T), (U), (X), (Y) and (Z) shall
survive the Closing for a period of one (1) year; provided, however, that no
claims for indemnification under Paragraphs 6(A), (B), (D), (G), (I), (J), (L),
(M), (O), (P), (Q), (R), (S), (X), (Y), and (Z), with respect to a breach of any
representation or warranty referred to above in this sentence may be maintained
by Purchaser unless Purchaser shall have delivered notice to Seller specifying
the nature of such claim, which notice shall be delivered on or before the date
which is one (1) year after the Closing Date (the "Survival Date"). Upon the
giving of such notice as aforesaid, Purchaser shall have the right to commence
legal proceedings prior or subsequent to the Survival Date for the enforcement
of its rights under this Agreement. The representations and warranties made by
Purchaser in Paragraph 6 shall not survive the Closing.
65. LEASES AND TENANCIES.
(a) If any claim is made against Purchaser by any Tenant
asserting an offset against rent or otherwise, including any rent over-charges
or failure in construction or to provide services, with respect to any matter
which arose prior to Closing, Seller shall indemnify and hold Purchaser harmless
for all losses, damages and expenses (including, without limitation, reasonable
attorneys' fees and costs) incurred by Purchaser in connection thereof. After
Purchaser shall receive notice of a claim that may give rise to an indemnity
hereunder, Purchaser shall notify Seller; provided, however, the failure to give
any notice shall not relieve Seller from any liability hereunder unless such
failure impairs the right to defend such action. In the event any claim is
brought against Purchaser with respect to which Seller may have liability under
the indemnity agreement contained in this Paragraph 7.(a), the claim may, upon
written agreement of Seller that it is obligated to indemnify against the
particular claim under the indemnity agreement contained herein,
be settled by Seller with the prior written consent of Purchaser, which shall
not be unreasonably withheld.
(b) Purchaser shall assume the Leases following the Closing
and shall indemnify and hold Seller harmless for all losses, damages and
expenses (including, without limitation, reasonable attorneys' fees and costs)
incurred by Seller arising from any claim by a Tenant in respect to any
obligation to Tenant assumed by Purchaser or any advance rental credited to
Purchaser. After Seller shall receive notice of a claim that may give rise to an
indemnity hereunder, Seller shall notify Purchaser; provided, however, the
failure to give any notice shall not relieve Purchaser from any liability
hereunder unless such failure impairs the right to defend such action. In the
event any claim is brought against Seller with respect to which Purchaser may
have liability under the indemnity agreement contained in this Paragraph 7.(b),
the claim may, upon written agreement of Purchaser that it is obligated to
indemnify against the particular claim under the indemnity contained herein, be
settled by Purchaser with the prior written consent of Seller, which shall not
be unreasonably withheld.
(c) Seller agrees not to apply or return any security deposit
in whole or in part. At the Closing, Seller shall turn over to Purchaser all
Tenant security deposits plus any interest earned thereon for the benefit of
Tenant together with an updated Schedule "F". Seller shall indemnify Purchaser
for any claims made, suits commenced or judgments entered in connection with the
security deposits for the period through the Closing Date and Purchaser shall
indemnify Seller for any claims made, suits commenced or judgments entered into
in connection with all security deposits for the period subsequent to the
Closing Date.
66. CLOSING.
(a) Closing shall occur at 10:00 a.m. at the offices of Cole,
Schotz, Meisel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., Court Plaza North, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ the date which is fifteen (15) days after
satisfaction or waiver of all conditions and contingencies set forth herein, or
at such other date, time and/or place as the parties may agree upon; provided,
however, that if such date shall be a Saturday, Sunday or legal holiday, then
Closing shall take place on the first business date thereafter (herein referred
to as the "Closing" and the "Closing Date" respectively).
(b) At Closing, the following shall be executed and/or
delivered:
(i) By Seller:
(A) The Deed [as hereinafter described in
subparagraph (c)];
(B) Seller's certification that the
representations and warranties set forth in this Agreement are
true and accurate as of the Closing;
(C) Seller's affidavit of title, the form
and substance of which shall be subject to the reasonable
approval of Title Company and Purchaser's attorneys;
(D) Seller's Resolutions;
(E) ▇▇▇▇ of Sale and/or assignments if so
requested by Purchaser;
(F) The Assignment and Assumption of Leases
together with schedules of security deposits paid by Tenants and any
applications thereof made by Seller. At Closing, Seller shall pay to Purchaser
by separate certified check or allow as a credit against the Purchase Price, the
aggregate amount of all security deposits held under Leases;
(G) The original Leases and all amendments,
modifications and guarantees thereto, and all brokerage
commission agreements;
(H) The Tenant Notice(s) to Tenants;
(I) The Estoppel Certificates;
(J) Certification of non-foreign status in
accordance with Internal Revenue Code Section 1445, as amended;
(K) Keys to all doors to, and equipment and
utility rooms located in the Property, which keys shall be
properly tagged for identification;
(L) An endorsement to all transferable
insurance policies,if any, approved by Purchaser, naming Purchaser as the party
insured, together with the original of each such policy;
(M) As-built plans and specifications in
accordance with the provisions of Paragraph 4 and permanent
certificates of occupancy for each building and improvement
comprising a part of the Property;
(N) All original licenses and permits
pertaining to the Property and required for the use or occupancy
thereof together with a duly executed assignment thereof to
Purchaser;
(O) True and complete Records;
(P) All Guarantees and Contracts, together
with a duly executed assignment thereof to Purchaser;
(Q) ISRA Approval (as hereinafter defined in
Paragraph 14.(a) hereof);
(R) Mutually satisfactory closing statement;
(S) The Guaranty in the form of Schedule "R"
annexed hereto and made a part hereof;
(T) Such other items to be provided to
Purchaser pursuant to this Agreement; and
(U) Such other instruments as reasonably may
be required by Purchaser's counsel or the Title Company to
effectuate this transaction.
(ii) By Purchaser:
(A) The Purchase Price;
(B) The Assignment and Assumption of Leases;
(C) Tenant Notices to Tenants;
(D) Mutually satisfactory closing statement;
(E) Such other items to be provided to
Seller pursuant to this Agreement; and
(F) Such other instruments as reasonably may
be required by Seller's counsel to effectuate this transaction.
(c) The deed ("Deed") to be delivered at Closing shall
be a Bargain and Sale Deed with covenants against grantors' acts, in proper form
for recording so as to convey to Purchaser good, marketable and insurable fee
simple title to the Property in accordance herewith.
(d) The words "Closing", "title closing", "Closing of title",
"delivery of deed" and words of similar import are used interchangeably in this
Agreement, as the sense of text indicates, to mean the event of consummation of
this sale in accordance with the terms of this Agreement.
67. CLOSING ADJUSTMENTS.
(a) The following are to be apportioned as of the
Closing Date:
(i) real property taxes;
(ii) water rates and charges;
(iii) sewer taxes and rents;
(iv) all base rent payments;
(v) common area and other additional rent
charges, if any;
(vi) fuel oil on hand, determined at Seller's
cost;
(vii) insurance premiums on transferable
policies, if any, approved by Purchaser; and
(viii) annual license, permit and inspection
fees, if any, provided that Seller's rights thereunder (or with
respect thereto) are transferable to Purchaser.
(b) (i) Apportionment of real property taxes, water rates and
charges and sewer taxes and rents shall be made on the basis of the fiscal year
for which assessed solely to the extent actually received by Seller from Tenants
or actually paid or payable by Seller. If the Closing Date shall occur before
any or all of the foregoing are fixed, the apportionment of real property taxes
shall be made on the basis of the tax rate for the preceding year applied to the
latest assessed valuation. After the final real property taxes, water rates and
charges and sewer taxes and rents are fixed, Seller and Purchaser shall make a
recalculation of the apportionment of same, and Seller or Purchaser, as the case
may be, shall make an appropriate payment to the other based on such
recalculation.
(ii) If at the time for the delivery of the Deed,
the Premises shall be or shall have been affected by an assessment or
assessments (including special and/or added) which are or may become payable in
annual installments of which the first installment is then due or has been paid,
then for the purposes of this Agreement all the unpaid installments of any such
assessment, including those which are to become due and payable after the
delivery of the Deed for the Premises, shall be deemed to be due and payable and
to be liens upon such Premises affected thereby and shall be paid and discharged
by Seller upon the delivery of the Deed for the Premises. If any assessment with
respect to the Premises is unconfirmed at the time of
Closing, or if subsequent to Closing any assessment, including special or added,
is determined to be incorrect, then, immediately after the amount of the
assessment has been established, or the confirmed assessment corrected as a
result of a prior error, Seller shall make an appropriate payment to Purchaser
within ten (10) days of the tax assessor's calculation of the assessment.
Notwithstanding the foregoing, if the tenant(s) of the Premises are obligated
under a written lease for the payment of the entire assessment (confirmed and/or
unconfirmed), then with respect to such assessment Purchaser shall seek payment
from the Tenant(s), and any assessment not otherwise the obligation of the
Tenant(s) shall be the obligation of Seller. Seller shall indemnify and hold
Purchaser harmless from and against all costs and expenses, including reasonable
attorneys fees, incurred by Purchaser in connection with Seller's failure to
perform Seller's obligation under this Paragraph 9(b)(ii).
(c) If there shall be any water meters on the Property (other
than meters measuring water consumption costs which are the obligation of
Tenants to pay), Seller shall furnish readings to a date not more than ten (10)
days prior to the Closing Date, and the unfixed water rates and charges and
sewer taxes and rents, if any, based thereon for the intervening time, shall be
apportioned on the basis of such last readings.
(d) The amount of unpaid taxes, assessments, water charges and
sewer rents which Seller is obligated to pay and
discharge, with interest and penalties thereon to the fifth (5th) day after the
Closing Date, at the option of Seller, may be allowed to Purchaser out of the
Purchase Price, provided that official bills therefor with interest and
penalties thereon are furnished by Seller at the Closing.
(e) If any refund of real property taxes, water rates and
charges or sewer taxes and rents is made after the Closing Date for a period
prior to the Closing Date, the same shall be applied first to the costs incurred
in obtaining same and second to the refunds due to Tenants by reason of the
provisions of their respective Leases. The balance, if any, of such refund shall
be paid to Seller (for the period prior to the Closing Date) and Purchaser (for
the period commencing with the Closing Date).
(f) To the extent that Seller receives rent payments after the
Closing Date for any period from and after the Closing Date, the same shall be
held in trust and immediately paid to Purchaser.
(g) All rent payments received by Seller or Purchaser after
Closing shall be applied firstly against out-of-pocket costs of collection, then
to rents due and owing by such Tenant for the periods from and after Closing and
thereafter against rents due and owing prior to Closing in inverse order of due
date.
(h) All realty transfer fees and charges (other than recording
fees for the Deed) shall be paid by Seller at Closing.
68. RISK OF LOSS.
(a) Seller assumes the risk of loss or damage to the Property
beyond ordinary wear and tear until delivery of the Deed to Purchaser and shall
notify Purchaser forthwith upon the occurrence of any such casualty ("Casualty
Notice"). In the event of any casualty in which the Casualty Threshold (as
hereinafter defined) is not established, or in the event of a casualty in which
the Casualty Threshold is established and if Purchaser elects to complete the
purchase of the Property hereunder, Seller shall restore and repair the damaged
Property to its condition immediately preceding such casualty and in accordance
with its obligations pursuant to Leases, and without a change in the Purchase
Price.
(b) If, prior to the Closing Date, the Property shall
be damaged by fire or other casualty and the estimated cost of
repair and/or restoration shall exceed twenty-five (25%) percent
of the Purchase Price or reasonably shall be estimated to require
more than one hundred eighty (180) days to repair or restore
(collectively, "Casualty Threshold"), Purchaser may, by notice to
Seller, elect to terminate this Agreement. If this Agreement is
so terminated, the Letter of Credit forthwith shall be returned
to Purchaser. Purchaser shall notify Seller of its decision
within sixty (60) days of receipt of the Casualty Notice, which
shall include the amount of insurance coverage, the amount of
insurance received, if any, the reasonably estimated cost of
repairs and the reasonably estimated time in which to complete
said repairs, and the Closing shall be postponed accordingly.
(c) Notwithstanding the foregoing, any proceeds of
loss of rent insurance for a casualty occurring prior to the Closing Date,
whether received prior to or following the Closing, shall be apportioned as of
the Closing Date.
69. CONDEMNATION. In the event that, prior to Closing, all or any
portion of the Property shall be condemned or taken as the result of the
exercise of the power of eminent domain, or by deed in lieu thereof
(collectively, a "Taking"), or if such proceedings shall have commenced or shall
be threatened, Seller promptly shall notify Purchaser ("Taking Notice").
Purchaser, in its sole judgment, shall notify Seller within sixty (60) days
following receipt of the Taking Notice, that: (1) the remaining portion of the
Property is not suitable or economically viable for its intended use of the
Property, in which event Purchaser may terminate this Agreement; or (2) the
remaining portion of the Property is suitable and economically viable for its
intended use, in which event Closing shall proceed and Purchaser and Seller
shall have the right to participate jointly in the condemnation proceedings and
the proceeds thereof shall belong to Seller, but Purchaser shall be entitled to
a credit against the Purchase Price in an amount equal to said proceeds, unless
such condemnation proceedings shall be pending on the Closing Date, in which
event there shall not be any credit and at Closing, Seller shall assign all its
right, title and interest in and to said proceedings and award to Purchaser.
70. APPROVALS FOR TRANSFER. In the event that any Governmental
Authority shall have an ordinance, law, rule, regulation or other requirement
requiring a new Certificate of Occupancy or other governmental authorization to
be issued in connection with the transfer of title to the Property, or in the
event that on the Closing Date there is any such requirement, then and in any of
such events, Seller shall use its best efforts, at its sole cost and expense, to
obtain and deliver to Purchaser, the Certificate of Occupancy or other
governmental authorization.
71. DUE DILIGENCE PERIOD.
(a) Through the period ending on the date which is forty-five
(45) days from the date of this Agreement (the "Due Diligence Period"),
Purchaser may perform, or cause to be performed, tests, investigations and
studies of or related to the Property, including, but not limited to, soil tests
and borings, ground water tests and investigations, percolation tests, surveys,
architectural, engineering, subdivision, environmental, access, development
studies and such other tests, investigations or studies as Purchaser, in its
sole discretion, determines is necessary or desirable in connection with the
Property and may inspect the physical (including environmental) and financial
condition of the Property, including but not limited to the Leases, Contracts,
engineering and environmental reports, development approval agreements, permits
and approvals. Purchaser shall repair and restore any portion of the surface of
the Property disturbed by Purchaser, its agents, representatives or contractors
during the conduct of any tests and studies to substantially the same condition
as existed prior to such disturbance. Such right of inspection and the exercise
of such right shall not constitute a waiver by Purchaser of the breach of any
representation, warranty, covenant or agreement of Seller which might, or
should, have been disclosed by such inspection.
(b) During the Due Diligence Period, Purchaser, its agents,
representatives and contractors, shall have unlimited access to the Property and
other information pertaining thereto in the possession or within the control of
Seller for the purpose of performing such studies,tests, borings, investigations
and inspections for the purposes described in this Paragraph. Seller shall
cooperate with Purchaser in facilitating its due diligence inquiry and shall
obtain, and use its best reasonable efforts to obtain, any consents that may be
necessary in order for Purchaser to perform same. In addition, Seller will
deliver to Purchaser promptly after request, true and complete copies of all
test borings, Environmental Documents, surveys, title materials and engineering
and architectural data and the like relating to the Property that are in
Seller's possession or under its control. In the event any additional materials
or information comes within Seller's possession or control after the date of
this Agreement, Seller promptly shall submit true and complete copies of the
same to Purchaser. Seller shall notify Purchaser of any dangerous conditions on
the Property, including, without limitation,
conditions which due to the nature of the borings, studies, investigations,
inspections or testing to be performed by or on behalf of Purchaser may pose a
dangerous condition to Purchaser or Purchaser's agents, representatives or
contractors.
(c) Purchaser shall obtain, or cause its contractors, agents
and representatives to obtain, liability insurance in an amount equal to One
Million ($1,000,000.00) Dollars on a per occurrence and aggregate basis on
account of personal injury to one or more persons and property damage with
respect to Purchaser's activities and entry onto the Property. Upon request of
Seller, the policy shall name Seller as an additional insured. In addition,
Purchaser agrees to indemnify and hold Seller harmless from any damage or injury
to persons or property arising out of or in connection with Purchaser or its
contractors, agents or representatives entering upon the Property.
(d) Purchaser may terminate this Agreement for any reason or
for no reason by notice to Seller given within the Due Diligence Period. In the
event Purchaser terminates this Agreement during the Due Diligence Period, this
Agreement shall be null and void, the Letter of Credit forthwith shall be
returned to Purchaser, copies of any reports or studies prepared by third
parties as part of Purchaser's investigations during the Due Diligence Period
(if expressly permitted by such third party), shall be delivered to Seller
(except, if this Agreement is terminated as a result of Seller's breach hereof).
In the event Purchaser does not terminate this Agreement by the end of
the Due Diligence Period, Purchaser shall be deemed to have elected not to
terminate this Agreement.
72. ENVIRONMENTAL PROVISIONS.
(a) Notwithstanding anything to the contrary contained in this
Agreement, the obligation of Purchaser to pay the Purchase Price and otherwise
proceed to Closing shall be subject to the condition, that Seller obtain from
the Element, (as hereinafter defined in Paragraph 14.(e)(iii) hereof) pursuant
to ISRA (as hereinafter defined in Paragraph 14.(e)(i) hereof), and deliver to
Purchaser, at least five (5) days prior to Closing (the "ISRA Compliance Date"),
together with all submissions upon which any one or more of the following is
based, either:
(i) a Letter of Non-Applicability;
(ii) a de minimis quantity exemption;
(iii) an unconditional approval of a Negative
Declaration; or
(iv) an unconditional No Further Action Letter;
(collectively the "ISRA Approval") for which Seller shall apply promptly. In no
event shall an ISRA Approval involve any engineering or institutional controls,
including without limitation, capping, deed notice, declaration of environmental
restriction or other institutional control notice pursuant to P.L. 1993 c. 139,
a groundwater classification exception area or a well restriction area. If the
requirements of this Paragraph 14.(a) are not satisfied on or before the ISRA
Compliance Date, Purchaser thereafter shall have the right, by notice to Seller,
to extend the ISRA Compliance Date or to terminate this Agreement, in which
latter event this Agreement shall be rendered null and void and of no further
force or effect, Seller shall refund to Purchaser all charges made for title
examination, municipal searches and survey fees, the Letter of Credit forthwith
shall be returned to Purchaser and neither party shall have further liability or
obligation to the other under or by virtue of this Agreement.
(b) Contemporaneously with the execution of this Agreement,
and subsequently promptly upon receipt by Seller or its representatives, Seller
shall deliver to Purchaser: (i) all Environmental Documents concerning the
Property generated by or on behalf of predecessors in title or former occupants
of the Property to the extent in Seller's possession or control; (ii) all
Environmental Documents concerning the Property generated by or on behalf of
Seller, whether currently or hereafter existing; (iii) all Environmental
Documents concerning the Property generated by or on behalf of current or future
occupants of the Property to the extent in Seller's possession or control,
whether currently or hereafter existing; and (iv) a description of all known
operations, past and present, undertaken at the Property and existing maps,
diagrams and other documentation to the extent in Seller's possession or control
designating the location of past and present operations at the Property and past
and present storage of Contaminants above or below ground, on, under, at,
emanating from or affecting the Property or its environs.
(c) Seller shall notify Purchaser in advance of all meetings
scheduled between Seller or its representatives and NJDEP, and Purchaser and/or
its representatives shall have the right, without obligation, to attend and
participate in all such meetings.
(d) Seller shall indemnify, defend and hold harmless Purchaser
from and against any and all claims, liabilities, losses, deficiencies, damages,
interest, penalties and costs, foreseen or unforeseen including, without
limitation, reasonable counsel, engineering and other professional or expert
fees, which Purchaser may incur, by reason of or resulting directly or
indirectly, wholly or partly, from any breach, inaccuracy, incompleteness or
nonfulfillment of any representation, warranty, covenant or agreement herein by
Seller, or by reason of Seller's actions or non-action with regard to any of
Seller's obligations pursuant to this Paragraph 14.
(e) The following terms shall have the following meanings when
used in this Agreement:
(i) "Contaminants" shall include, without
limitation, any regulated substance, toxic substance, hazardous
substance, hazardous waste, pollution, pollutant or contaminant,
as defined or referred to in the New Jersey Environmental Rights
Act, N.J.S.A. 2A:35A-1 et seq.; the New Jersey Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11 et seq. (the "Spill Act");
the New Jersey Air Pollution Control Act, N.J.S.A. 26:2C-1 et
seq.; the Hazardous Substances Discharge: Reports and Notices
Act, N.J.S.A. 13:1K-15 et seq.; the Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et seq. ("ISRA"); the "Tanks Laws" as hereinafter defined in Paragraph
14.(e)(x) hereof; the Resource Conservation and Recovery Act, as amended, 42
U.S.C. ss.6901 et seq. ("RCRA"); the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. ss.9601 et seq.
("CERCLA"); the Water Pollution and Control Act, 33 U.S.C. ss.1251 et seq.;
together with any amendments thereto, regulations promulgated thereunder and all
substitutions thereof, as well as words of similar purport or meaning referred
to in any other applicable federal, state, county or municipal environmental
statute, ordinance, code, rule or regulation, including, without limitation,
radon, asbestos, polychlorinated biphenyls, urea formaldehyde and petroleum
products and petroleum based derivatives. Where a statute, ordinance, code, rule
or regulation defines any of these terms more broadly than another, the broader
definition shall apply.
(ii) "Discharge" shall mean the releasing,
spilling, leaking, leaching, disposing, pumping, pouring, emitting, emptying,
treating or dumping of Contaminants at, into, onto or migrating from or onto the
Property, regardless of whether the result of an intentional or unintentional
action or omission.
(iii) "Element" shall mean the Industrial Site
Evaluation Element or its successor of the NJDEP.
(iv) "Environmental Documents" shall mean all
environmental documentation in the possession or under the control of Seller
concerning the Property, or its environs, including without limitation, all
sampling plans, cleanup plans, preliminary assessment plans and reports, site
investigation plans and reports, remedial investigation plans and reports,
remedial action plans and reports, or the equivalent, sampling results, sampling
result reports, data, diagrams, charts, maps, analysis, conclusions, quality
assurance/quality control documentation, correspondence to or from any
Governmental Authority, submissions to any Governmental Authority and
directives, orders, approvals and disapprovals issued by any Governmental
Authority.
(v) "Environmental Laws" shall mean and every
applicable federal, state, county or municipal statute, ordinance, rule,
regulation, order, code, directive or requirement, together with all successor
statutes, ordinances, rules, regulations, orders, codes, directives or
requirements, of any Governmental Authority in any way related to Contaminants.
(vi) "Governmental Authority" shall mean the
federal, state, county or municipal government, or any department, agency,
bureau, board, commission, office or other body obtaining authority therefrom,
or created pursuant to any law.
(vii) "Major Facility" is as defined in the Spill
Act.
(viii) "NJDEP" shall mean the New Jersey
Department of Environmental Protection or its successor.
(ix) "Notice" shall mean, in addition to its
ordinary meaning, any written communication of any nature, whether in the form
of correspondence, memoranda, order, directive or otherwise.
(x) "Tank Laws" shall mean the New Jersey
Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-
21 et seq., and the federal underground storage tank law
(Subtitle I) of RCRA, together with any amendments thereto,
regulations promulgated thereunder, and all substitutions
thereof, and any successor legislation and regulations.
(xi) "Underground Storage Tank" shall mean each
and every "underground storage tank", whether or not subject to the Tank Laws,
as well as the "monitoring system", the "leak detection system", the "discharge
detection system" and the "tank system" associated with the "underground storage
tank", as those terms are defined in the Tank Laws.
(f) Seller covenants and agrees that between the date hereof
and the Closing Date it shall perform or observe the following:
(i) Promptly notify Purchaser of, and promptly
deliver to Purchaser, a certified true and complete copy of any Notice Seller
may receive, on or before the Closing Date, from any Governmental Authority,
concerning a violation of Environmental Laws or Discharge of Contaminants;
(ii) At its own cost and expense, be responsible
for the remediation of all Contaminants existing on, under, at emanating from or
affecting the Property as of the date of Closing, in violation of Environmental
Laws, regardless of the date of discovery, notwithstanding anything to the
contrary set forth herein. In no event shall Seller's remediation involve any
engineering or institutional controls, including, without limitation, capping, a
deed notice, a declaration of environmental restrictions or other institutional
control notice pursuant to P.L. 1993, c. 139, or a groundwater classification
exception area or well restriction area. Any such remediation and associated
activities shall be undertaken pursuant to a right of access agreement
reasonably acceptable to Purchaser;
(iii) Contemporaneously with the signing and
delivery of this Agreement, and subsequently, promptly upon receipt by Seller or
its representatives, deliver to Purchaser a certified true and complete copy of
all Environmental Documents.
73. CONDITIONS TO CLOSING. In addition to other conditions set forth in
this Agreement, Purchaser's obligation to close title to the Property is
expressly conditioned upon and subject to the occurrence of all of the
following:
(a) Seller shall have completed subdivision of the Land in the
configuration set forth on Schedule "A-1", all requisite governmental approvals
shall have been obtained, and all conditions to subdivision shall have been
satisfied including, without limitation, the filing in the public records of the
subdivision plat;
(b) Substantial Completion (as hereinafter defined) of all
work set forth in the Plans and Specifications, including all tenant improvement
work required under the Lease (including change orders);
(c) Tenant has accepted delivery of possession of the Property
pursuant to the terms and conditions of the Lease;
(d) A final, unconditional Certificate of Occupancy permitting
occupancy of the Property for Tenant's use has been issued by all Governmental
Authorities having jurisdiction;
(e) Tenant has delivered the security deposit and has
commenced the payment of rent required to be paid pursuant to the terms and
conditions of the Lease;
(f) Tenant shall have delivered the Estoppel
Certificate;
(g) Written certification of ▇▇▇▇▇▇▇▇ Construction Co., Inc.
that the work has been fully completed in accordance with the Plans and
Specifications (or in accordance with the Plans and Specifications as amended
after the date hereof provided any such amendments have been approved in writing
by Purchaser), the provisions hereof and all legal requirements, and that all
necessary certificates and approvals required to be obtained from any
Governmental Authority having jurisdiction over the Property have been obtained;
(h) Receipt of an absolute unconditional waiver of liens from
all contractors and subcontractors for all work performed at the Property; and
(i) All contractors and subcontractors have been paid in full
for performance of work at the Property.
The term "Substantial Completion" as used herein shall mean that only
so-called "punch list" items of work which shall be limited to such unfinished
minor items which, when considered as a whole, do not materially adversely
affect Tenant's occupancy of the Property, and otherwise are permitted pursuant
to the terms of the Lease. Seller covenants and agrees to fully complete any
punch list items not later than the date which is twenty (20) days after Seller
receives notification thereof or within the time period set forth in the Lease.
74. NOTICES.
(a) Any notice, request, consent, approval or demand
("notice") which, pursuant to the provisions of this Agreement or otherwise,
must or may be given or made by either party hereto to the other, shall be in
writing and shall be given by such party or its attorney and shall be delivered
by personal delivery, by mailing same via certified mail, return receipt
requested, postage prepaid, in a United States Post Office depository, by
delivery to a postal or private expedited form of delivery service, or
telecopied to the intended recipient at the telecopy number set forth therefor
below (with hard copy to follow), addressed to Purchaser at its address set
forth in the heading to this Agreement, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., (fax
908-272- 6755), with a copy given in the aforesaid manner to Cole, Schotz,
Meisel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., Court Plaza North, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq., (fax ▇▇▇-▇▇▇-▇▇▇▇), and to Seller to ▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax
▇▇▇-▇▇▇-▇▇▇▇) at the address set forth in the heading to this Agreement with a
copy given in the aforesaid manner to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., (fax
▇▇▇-▇▇▇-▇▇▇▇).
(b) Notice shall be deemed delivered on the day of personal
delivery, on the day telecopied, on the first business day following deposit
with the overnight carrier or on the second business day following deposit in
the Post Office depository, as the case may be.
(c) Either party may designate a different person or address
by notice to the other party given in accordance herewith.
75. BROKER. Each party represents and warrants to the other party that
it dealt with no broker or other person entitled to claim fees for such services
in connection with the negotiation, execution and delivery of this Agreement,
other than ▇▇▇▇▇▇▇ Cross (hereinafter referred to as the "Broker"). Seller agree
to pay Broker pursuant to a separate agreement with Broker, which agreement
shall provide, inter alia, that Broker shall not have any claim whatsoever for
commissions or other fees against Purchaser whether or not Closing shall occur,
including failure to close due to the default of Purchaser hereunder. Based upon
the aforesaid representations, warranties and covenants, each
party agrees to defend, indemnify and hold the other party harmless from and
against any and all claims for finders' fees or brokerage or other commission
which at any time may be asserted against the indemnified party, including any
claim by Broker against Purchaser, founded upon a claim that the substance of
the aforesaid representations of the indemnifying party is untrue. Such
indemnification shall include, but not be limited to, all commission claims, as
well as all costs, expenditures, legal fees and expert fees reasonably incurred
in defending any claim of any third party. In the event that by settlement or
otherwise, any monies or other consideration is awarded to or turned over to any
third party as a result of a commission claim, it is the intention of the
parties hereto that the indemnifying party shall be solely responsible therefor.
76. DEFAULT.
(a) If Purchaser shall default in the payment of the Purchase
Price or otherwise shall default in the performance of any of its other
obligations pursuant to this Agreement, Seller, as its sole and exclusive
remedy, shall be entitled to receive, as liquidated damages and not as a
penalty, the Letter of Credit and the right to convert same to cash, it being
acknowledged that the actual damages which may be suffered by Seller in the
event of any default by Purchaser shall be difficult to ascertain, plus the
costs and expenses set forth in subparagraph (c) below. If the Letter of Credit
is converted to cash, Seller shall be entitled to receive any interest earned on
such cash.
(b) If Seller shall default in any of its obligations
hereunder, Purchaser shall have the right to (i) terminate this Agreement by
notice to Seller, in which event the Letter of Credit shall be returned to
Purchaser, and obtain from Seller damages suffered by Purchaser plus the costs
and expenses set forth in subparagraph (c) below, or (ii) seek specific
performance by Seller of Seller's obligations hereunder, and if Purchaser is
successful, in addition obtain from Seller the costs and expenses set forth in
(c) below together with damages suffered by Purchaser.
(c) In the event of litigation arising out of this Agreement,
the prevailing party shall be entitled to recover from the losing party, costs
and expenses incurred by the prevailing party, including reasonable legal fees
and disbursements.
77. SURVIVAL. It is agreed that all of the terms, agreements,
covenants, promises, provisions, indemnifications, representations and
warranties set forth herein shall, except as otherwise specifically set forth in
this Agreement, survive Closing and delivery of the Deed.
78. INDEMNITY.
(a) Seller agrees to indemnify, defend and save harmless
Purchaser and its respective representatives, employees, agents, constituent
members, successors and assigns from and against all claims, actions, demands,
suits, liabilities and damages (i) subject to the limitations set forth in
Paragraph 6.(e), resulting from the breach or default of any covenant,
provision, representation or warranty of Seller including all reasonable costs
and expenses incurred by Purchaser in the enforcement of this Paragraph, or (ii)
imposed upon or incurred by Purchaser, or allegedly due by Purchaser, arising
out of or relating to the ownership, operation, leasing, repair or improvement
of or otherwise dealing with, the Property, or by reason of any event or
occurrence on, or relating to, the Property which occurred, accrued or related
to an event occurring at any time prior to the Closing Date.
(b) Purchaser agrees to indemnify, defend and save harmless
Seller and its representatives, employees, agents, constituent members,
successors and assigns from and against all claims, actions, demands, suits,
liabilities and damages (i) subject to the limitations set forth in Paragraphs
6.(e) and 18, resulting from the breach or default of any covenant, provision,
representation or warranty of Purchaser or (ii) imposed upon or incurred by
Seller, or allegedly due by Seller, arising out of or relating to the ownership,
operation, leasing, repair or improvement of or otherwise dealing with, the
Property, or by reason of any event or occurrence on, or relating to, the
Property which occurred, accrued or related to an event occurring at any time
after the Closing Date.
79. ASSIGNMENT. This Agreement may not be assigned by Purchaser,
without the consent of Seller (which consent shall not be unreasonably withheld,
delayed or conditioned), except that no such consent shall be required with
respect to an assignment to
any affiliate of Purchaser. Upon such assignment, Purchaser named herein shall
be relieved of any further liability for any of the terms, promises and
conditions of this Agreement on its part to be performed hereunder.
80. CROSS DEFAULT. Simultaneously with the execution and delivery of
this Agreement, Purchaser has entered into a certain Agreement of Sale with
Seller and certain affiliates of Seller (the "Agreement of Sale") relating to
certain property more particularly described on Schedule "T"; and a certain
agreement with an affiliate of Seller (the "Development Agreement") relating to
certain property located in Moorestown, New Jersey as more particularly
described in the Development Agreement. This Agreement and the obligations of
the parties hereunder are subject to performance by the respective parties to
the Development Agreement and/or the Agreement of Sale of their respective
obligations which are required to be performed prior to the Closing Date in
accordance with the terms thereof. If Seller or its related entities default in
their obligations under the Agreement of Sale and/or the Development Agreement,
Purchaser shall have the right to proceed with the purchase of the Property, to
declare a default hereunder, and/or to terminate this Agreement. If Purchaser
shall default in its obligations under the Development Agreement and/or the
Agreement of Sale, Seller shall have the right to declare a default hereunder.
81. ESCROW AGENT.
(a) The Letter of Credit shall be held in escrow by Escrow
Agent and released on the terms hereinafter set forth.
(b) If Escrow Agent receives notice from Purchaser or
Purchaser's attorney that Purchaser has terminated this Agreement pursuant to
Paragraph 5 or 13 hereof, Escrow Agent shall immediately return the Letter of
Credit to Purchaser without application of Paragraph 23(f), (h) and (i);
(c) At the Closing, Escrow Agent shall deliver the Letter of
Credit to Purchaser.
(d) Any notice(s) to and from Escrow Agent shall be given in
accordance with Paragraph 16 hereof.
(e) If Escrow Agent receives a notice signed by Seller or
Seller's attorney stating that Purchaser has defaulted in the performance of its
obligations pursuant to this Agreement, Escrow Agent shall deliver a copy of
such notice to Purchaser. If Escrow Agent shall not have received notice of
objection from Purchaser within ten (10) days after Escrow Agent has delivered
such notice, Escrow Agent shall deliver the Letter of Credit to Seller. If
Escrow Agent shall receive a timely notice of objection from Purchaser as
aforesaid, Escrow Agent promptly shall forward a copy thereof to Seller.
(f) If Escrow Agent receives a notice signed by Purchaser or
Purchaser's attorney stating that this Agreement has been canceled or terminated
and that Purchaser is entitled to the Letter of Credit, or that Seller has
defaulted in the performance
of its obligations pursuant to this Agreement, Escrow Agent shall deliver a copy
of such notice to Seller. If Escrow Agent shall not have received notice of
objection from Seller within ten (10) days after Escrow Agent has delivered such
notice, Escrow Agent shall deliver the Letter of Credit to Purchaser. If Escrow
Agent shall receive a timely notice of objection from Seller as aforesaid,
Escrow Agent promptly shall forward a copy thereof to Purchaser.
(g) If Escrow Agent receives notice from either party
authorizing delivery of the Letter of Credit to the other party, Escrow Agent
shall deliver the Letter of Credit in accordance with such instructions.
(h) If Escrow Agent receives a notice of objection as
aforesaid, Escrow Agent shall convert the Letter of Credit to cash and hold such
proceeds in an interest bearing FDIC insured bank in New Jersey until Escrow
Agent receives either: (i) a notice signed by both Seller and Purchaser stating
who is entitled to the Letter of Credit; or (ii) a final order of a court of
competent jurisdiction directing disbursement in a specific manner, in either of
which events Escrow Agent shall deliver the Letter of Credit in accordance
herewith or in accordance with such notice or order. Escrow Agent shall not be
or become liable in any way or to any person for its refusal to comply with any
requests or demands until and unless it has received a direction of the nature
described in (i) or (ii) above.
(i) Notwithstanding the foregoing provisions of Subparagraph
(g) above, if Escrow Agent shall have received a notice of objection as
aforesaid, or shall have received at any time before actual delivery of the
Letter of Credit, a notice signed by either Seller or Purchaser advising that
litigation between Seller and Purchaser over entitlement to the Letter of Credit
has been commenced, Escrow Agent shall have the right, upon notice to both
Seller and Purchaser to deposit the Letter of Credit with the Clerk of the Court
in which any litigation is pending, whereupon Escrow Agent shall be released of
and from all liability hereunder except for any previous gross negligence or
willful default.
(j) Escrow Agent shall not be liable for any error or judgment
or for any act done or omitted by it in good faith, or for any mistake of fact
or law, and is released and exculpated from all liability hereunder except for
willful misconduct or gross negligence.
(k) Escrow Agent's obligations hereunder shall be as a
depositary only, and Escrow Agent shall not be responsible or liable in any
manner whatever for the sufficiency, correctness, genuineness or validity of any
notice, instructions or other instrument furnished to it or deposited with it,
or for the form of execution of any thereof, or for the identity or authority of
any person depositing or furnishing same.
(l) Escrow Agent shall not have any duties or responsibilities
except those set forth in this Agreement and
shall not incur any liability in acting upon any signature, notice, request,
waiver, consent, receipt or other paper or document believed by it to be
genuine, and Escrow Agent may assume that any person purporting to give any
notice or advice on behalf of any party in accordance with the provisions hereof
has been duly authorized to do so.
(m) Escrow Agent shall be entitled to consult with counsel in
connection with its duties hereunder, including attorneys at its firm. The
parties shall reimburse Escrow Agent, jointly and severally, for all costs and
expenses incurred by Escrow Agent in performing its duties as Escrow Agent
including, but not limited to, reasonable attorneys' fees (either paid to
retained attorneys or amounts representing the fair value of services rendered
to itself).
(n) The terms and provisions of this Paragraph shall create no
right in any person, firm or corporation other than the parties hereto and their
respective successors or assigns, and no third party shall have the right to
enforce or benefit from the terms hereof.
(o) In the event of any dispute, disagreement or suit between
Seller and Purchaser, whether pertaining to the Letter of Credit, this Agreement
or otherwise, Escrow Agent shall have the right to represent or otherwise serve
as attorneys for Seller.
(p) Escrow Agent is designated the "real estate reporting
person" for purposes of Section 6045 of Title 26 of the United States Code and
Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so provide.
Upon the consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to Seller
as required under the aforementioned statute and regulation.
(q) The applicable provisions of this Paragraph shall survive
the Closing or termination of this Agreement.
82. MISCELLANEOUS.
(a) This Agreement shall inure to the benefit of and shall be
binding upon the parties and their respective heirs, successors, legal
representatives and assigns.
(b) This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered by each party to the
other shall be deemed an original, but all of which when taken together shall
constitute but one and the same instrument.
(c) At any time or from time to time, upon written request of
the other party, each party shall execute and deliver all such further documents
and do all such other acts and things as reasonably may be required to confirm
or consummate the within transaction.
(d) The captions preceding the paragraphs of this Agreement
are intended only as a matter of convenience and for reference and in no way
define, limit or describe the scope of this Agreement or the intent of any
provision hereof.
(e) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. No
variations or modifications of or amendments to the terms of this Agreement
shall be binding unless in writing and signed by the parties hereto. The
respective attorneys for each party are authorized to modify any dates or time
periods set forth herein.
(f) The terms, conditions, covenants and provisions of this
Agreement shall be deemed to be severable except with respect to any provision
relating to the Purchase Price. If any clause or provision herein contained
shall be adjudged to be invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law, the same shall be deemed to
be severable and shall not affect the validity of any other clause or provision
herein, but such other clauses or provisions shall remain in full force and
effect.
(g) The obligations of each party to complete the transaction
contemplated hereby is subject to the satisfaction, as of Closing, of all of the
terms, conditions and obligations to be met and/or performed by the other party
or which otherwise are for the benefit of such party, any of which conditions
and/or obligations may be waived in whole or in part by the party which is the
beneficiary of such condition or obligation.
(h) Each party, at its sole cost and expense, shall have the
right to record a short form memorandum of this Agreement, which memorandum
shall not set forth the Purchase Price or terms of payment, and each party
agrees to execute any
such short form memorandum upon the request of the other party.
(i) As used in this Agreement, the masculine gender
shall include the feminine or neuter genders and the neuter gender shall include
the masculine or feminine genders, the singular shall include the plural and the
plural shall include the singular, wherever appropriate to the context.
(j) This Agreement shall be governed by and enforced in
accordance with the substantive laws of the State of New Jersey.
83. GUARANTY.
(a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (collectively,
"Guarantors") hereby, jointly and severally, guarantee to Purchaser, its
successors and assigns, the full, due and timely completion of construction of
all Improvements in the manner required by the Plans and Specifications and in
accordance with the provisions of this Agreement, including any modifications or
amendments hereto, without any further writing, and the costs for enforcing this
Guaranty (collectively, the "Obligations").
(b) This is a guaranty of payment and performance and not of
collection. The obligations of Guarantors hereunder are independent of the
obligations of Seller, and a separate action or actions may be brought and
prosecuted against Guarantors, regardless whether action is brought against
Seller or whether Seller is joined in any such action or actions.
(c) Guarantors agree that the obligations of
Guarantors under this Paragraph 25 are primary, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Agreement or any instrument referred to herein, or any
substitution, release or exchange of any other guaranty of or security for the
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever (including, without
limitation, personal defenses of Seller) which might otherwise constitute a
legal or equitable discharge or defense of a surety, guarantor or co-obligor, it
being the intent of this Paragraph 25 that the obligations of Guarantors
hereunder shall be primary, absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more the following shall not alter or impair
the liability of Guarantors hereunder:
(i) at any time or from time to time, without
notice to or consent of Guarantors, the time for any performance of or
compliance with the Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any modification of or amendment to the
Agreement;
(iii) the existence of any claim, set-off or
other right which Guarantors may have at any time against Purchaser, Seller or
any other person or entity, whether in connection herewith or with any unrelated
transaction;
(iv) any of the acts required or contemplated in
any of the provisions of the Agreement or other instruments
referred herein shall be done or omitted;
(v) the maturity of any of the Obligations shall
be accelerated or extended, or any of the Obligations shall be modified,
supplemented or amended in any respect or any right under the Agreement or other
instruments referred to herein shall be waived or extended or any other guaranty
of the Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(vi) Purchaser releases or substitutes any one or
more of any Seller, endorses or guarantors of the Obligations;
(vii) any of the Obligations shall be
determined to be void or voidable or shall be subordinated to the
claims of any person; or
(viii) there shall be occur any insolvency,
bankruptcy, reorganization or dissolution of Seller or other
guarantor.
With respect to their obligations hereunder, Guarantors hereby
expressly waive diligence, presentment, demand of payment, protest and all
notices whatsoever and any requirement that Purchaser exhaust any right, power
or remedy or proceed against any person under the Agreement or other instruments
referred to herein, or against any collateral or other person under any other
guaranty of, or security for, or obligation relating to, any of the Obligations.
(d) The obligations of Guarantors under this Paragraph 25
shall be automatically reinstated if and to the extent that for any reason any
payment or performance by or on behalf of any persons in respect of the
Obligations is rescinded or must be otherwise restored by Purchaser or any other
holder or recipient of payment or performance of the Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, and
Guarantors agree that they will pay to Purchaser on demand all reasonable
out-of-pocket costs and expenses (including, without limitation, fees of
counsel) incurred by Purchaser in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
(e) Without limiting the generality of the provisions of this
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ hereby specifically waive: (a) promptness, diligence,
notice of acceptance and any other notice with respect to the Obligations; (b)
any requirement that Purchaser protect, secure or insure any lien or any
property subject thereto or exhaust any right or take any action against Seller
or any collateral or undertake any marshalling of assets; (c) the right to
direct the order of enforcement or remedies, (d) any defense arising by reason
of any claim or defense based upon an election of remedies by Purchaser which in
any manner impairs, reduces, releases or otherwise adversely affects its
subrogating,
contribution or reimbursement rights or other rights to proceed against Sellers
or any collateral; (e) any duty on the part of Purchaser to disclose to
Guarantors any matter, fact or thing relating to the business, operation or
condition of the Property or Seller and its assets now known or hereafter known
by Purchaser; and (f) all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance of the guaranty provided for in this Paragraph 25 and the
existence, creation or incurrence of new or additional indebtedness.
84. ROLLBACK TAXES. Any "rollback taxes" assessed or to be assessed
against the Premises pursuant to the Farmland Assessment Act of 1964, N.J.S.A.
54:4-23.1, et seq., shall be paid by Seller. If rollback taxes will be due with
respect to the Premises but are not assessed at the Closing Date, a good-faith
estimate of the amount of same shall be obtained by the parties from the tax
assessor of the Township of Moorestown, at least twenty-four (24) hours prior to
Closing, and Seller shall pay one hundred twenty-five (125%) percent of the
amount of said estimate from the proceeds at Closing into escrow to be held by
the Title Company until such time as the rollback tax assessment against the
Premises is made. Upon Title Company's receipt of notice from Purchaser that
said rollback taxes have been assessed against the Premises, Title Company
shall, within three (3) business days thereof, pay said taxes to the Township of
Moorestown. In the event the amount of the monies being held in
escrow by Title Company are not sufficient to cover payment of said rollback
taxes, then Seller shall promptly pay to Purchaser any additional monies that
are due and payable by Seller in accordance with the terms and provisions of
this Paragraph; and in the event the amount of the escrow monies are in excess
of the amount of said rollback taxes, then Title Company shall disburse the
remaining balance of the escrow funds to Seller after the amount of the escrow
monies due to Purchaser have been disbursed to the Township of Moorestown, in
accordance with the terms and provisions of the immediately proceeding sentence.
Seller shall indemnify and hold Purchaser harmless from and against all costs
and expenses, including reasonable attorneys fees, incurred by Purchaser in
connection with Seller's failure to perform Seller's obligations under this
Paragraph 26.
85. SELLER'S RIGHT TO EXCHANGE PROPERTY.
(a) (i) Seller shall have the right, exercisable at least five
(5) days prior to Closing, to elect to exchange the Property for other property
of like kind ("Exchange Property") pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended.
(ii) If Seller elects to effect any exchange, it
shall notify Purchaser as to all details thereof, and Purchaser shall execute a
contract to purchase the Exchange Property in a form satisfactory to Seller
(hereinafter called the "Exchange Contract"), and immediately thereafter shall
assign all of its right, title and interest in and to the Exchange Contract to
the
Exchange Escrow Agent, as hereinafter defined. The funds required to pay the
deposit under the Exchange Contract shall be provided to Purchaser by Seller or
Exchange Escrow Agent. The Exchange Contract shall provide for the right of
assignment by Purchaser to Exchange Escrow Agent and/or Seller without recourse,
and that the seller of the Exchange Property shall look only to the deposit
monies thereunder as liquidated damages, there being no liability on the part of
Purchaser to said seller. Purchaser shall not be obligated to execute an
Exchange Contract which would require Purchaser to be personally liable on any
indebtedness or to incur any cost or expense which would increase Purchaser's
liability beyond that liability incurred by Purchaser hereunder.
(iii) In no event, however, shall the closing of
title to the Property be delayed due to the inability of Seller to select an
Exchange Property or close title thereto.
(b) (i) If Seller shall elect to exchange the Property
pursuant to this Paragraph, whether or not an Exchange Property has been
designated, as herein set forth, the Purchase Price, exclusive of the
satisfaction of liens, payment of closing costs and other permitted expenses,
shall be deposited with the Exchange Escrow Agent ("Escrow Account"), subject to
the Exchange Escrow Agent executing an agreement reasonably satisfactory to
Purchaser whereby Exchange Escrow Agent agrees to be bound by the terms and
conditions of this Paragraph 27, and shall not be paid to Seller at Closing. The
Escrow Account shall be held by
Exchange Escrow Agent in an interest bearing account, pursuant to the terms
hereof. The interest earned upon the Escrow Account while being held by Exchange
Escrow Agent shall be added to the Escrow Account and shall be paid to Seller at
the closing of the Exchange Property.
(ii) Purchaser appoints its title insurance
company or such other title insurance company or other entity as Purchaser
reasonably may designate, its agent, in order to effectuate the Exchange (the
"Exchange Escrow Agent"). Purchaser and Seller shall cooperate with each other
and Exchange Escrow Agent and promptly shall sign and deliver to Exchange Escrow
Agent all documents reasonably deemed necessary by Seller in order to qualify
this transaction pursuant to Internal Revenue Code Section 1031.
(iii) Seller shall pay all fees relating to the
Escrow Account, and all reasonable attorneys' fees and expenses of Purchaser, if
any, relating to the exchange transaction and in no event shall Purchaser be
required to assume any liability thereunder.
(iv) During the period that the Escrow Account is
in existence, Seller shall not have any control, directly or indirectly, over
the funds placed in the Escrow Account, except as may be expressly provided
herein.
(v) If, at the time of Closing, Seller shall not
have designated the Exchange Property, then if within forty-five (45) days
following Closing, Seller shall deliver to Purchaser
and to Exchange Escrow Agent a designation of an Exchange Property which Seller
desires to acquire by way of exchange for the Property transferred to Purchaser
at Closing ("Designation"), the parties shall proceed as provided for herein. If
there is no timely Designation, then Exchange Escrow Agent, on the forty-sixth
(46th) day after Closing (or, if such day is a Saturday, Sunday or legal
holiday, on the first business day thereafter) shall disburse to Seller the
Escrow Account and all interest earned thereon shall be paid to Purchaser.
(vi) Any Designation of an Exchange Property shall
include an Exchange Contract, or thereafter Seller shall provide Purchaser with
an Exchange Contract, which Exchange Contract comply with the terms set forth in
Subparagraph 27.(a). The parties acknowledge that there may be multiple Exchange
Properties and that multiple Designations may be delivered, provided that each
meets the conditions set forth herein and the requirements of the Internal
Revenue Code Section 1031 and regulations thereunder.
(vii) Upon receipt by Purchaser of an Exchange
Contract, it shall execute and deliver the Exchange Contract to the seller of
the Exchange Property ("Exchange Seller"), Seller and Exchange Escrow Agent.
Thereafter, Purchaser shall assign its interest in the Exchange Contract to
Exchange Escrow Agent, it being agreed that Purchaser shall not take title to
any Exchange Property.
(viii) Upon Purchaser executing any Exchange
Contract, and in accordance therewith, Exchange Escrow Agent shall pay from the
Escrow Account to Exchange Seller, or such other party as is provided for in the
Exchange Contract, the amount of the deposit and all other monies required under
the Exchange Contract or otherwise related to the transaction.
(ix) Exchange Escrow Agent shall not be liable to
either Seller or Purchaser in connection with its performance as Exchange Escrow
Agent, except in the event of intentional wrongdoing or negligence. Exchange
Escrow Agent is authorized only to do those acts necessary and proper to effect
the purpose of this Agreement.
(x) The Exchange Escrow Agent shall use the
Escrow Account, for payment of the deposit and all other payments due under the
Exchange Contract to purchase the Exchange Property, plus closing costs, and for
no other purpose.
(xi) If the payment for the Exchange Property
shall exceed the amount of the Escrow Account, Seller either shall: (i) deposit
an amount equal to such excess with Exchange Escrow Agent no later than the day
of the Exchange Property Closing; or (ii) cause or direct that the funds
necessary to effectuate the Exchange Property Closing be paid directly to
Exchange Seller at the Exchange Property Closing.
(xii) At the Exchange Property Closing, the
following shall be deposited or caused to be deposited with
Exchange Escrow Agent: (i) a deed for the Exchange Property from
Exchange Seller as grantor to Seller, as grantee; and (ii) any
other documents or agreements necessary or incidental to the
acquisition or conveyance of the Exchange Property.
(xiii) When all documents and funds called for
herein have been deposited with Exchange Escrow Agent and when a title policy
can be issued on the Exchange Property to Seller, subject only to title
exceptions approved by Seller, Exchange Escrow Agent shall record the deed,
disburse the funds and deliver all other documents to Seller. All expenses,
reimbursements and prorations in connection with the Exchange Property shall be
governed by the provisions of the Exchange Contract, except as expressly set
forth herein.
(xiv) Purchaser makes no warranty with respect to
the Exchange Property and Seller assumes all responsibility for title to the
Exchange Property being good and marketable. Seller agrees to indemnify
Purchaser and hold Purchaser harmless from any damages, liability, costs,
expenses, claims, losses or demands (including reasonable attorneys' fees and
costs of litigation including those for enforcing this indemnity), arising out
of or in any way related to the acquisition of the Exchange Property. If the
Exchange Property is subject to any mortgage, deed of trust or lease, Purchaser
shall assume no liability or obligation with respect to said mortgage, deed of
trust or lease. Purchaser makes no representations as to the tax consequences of
any aspect of this transaction.
(xv) If the Exchange Property as may be designated
by Seller is not conveyed to Seller within the earlier of: (i)
one hundred eighty (180) days after Closing; or (ii) the due date (determined
with regard to extensions) of Seller's federal income tax return for the taxable
year in which the transfer of the Property occurs or if no Exchange Property is
designated within forty-five (45) days following Closing, then the Escrow
Account shall be released to Seller, free of the escrow, and the obligations of
Purchaser and Exchange Escrow Agent shall end. Notwithstanding failure of the
Exchange Property to be conveyed to Seller as hereinabove set forth, the
transfer of the Property to Purchaser shall not be subject to recession or
revocation by Seller or Purchaser for any reason whatsoever.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
or caused these presents to be signed and sealed by duly authorized persons the
day and year first above written.
SELLER:
WITNESS: LANCER ASSOCIATES, L.L.C.
______________________________ By:__________________________
Name:________________________
Title:_______________________
PURCHASER:
ATTEST: ▇▇▇▇-▇▇▇▇ REALTY, L.P.
By: ▇▇▇▇-▇▇▇▇ REALTY
CORPORATION, its general
partner
______________________________ By:__________________________
Name:________________________
Title:_______________________
AS TO PARAGRAPH 23:
WITNESS or ATTEST: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (Escrow
Agent)
______________________________ By:__________________________
AS TO PARAGRAPH 25:
WITNESSES:
______________________________ ______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
______________________________ ______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇