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PURCHASE AGREEMENT
DATED JULY 23, 1996 BETWEEN
METFER - I
and
MOUNT AIRY REALTY ASSOCIATES L.P.
Premises: 233 Mount Airy Road
Basking Ridge, New Jersey
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INDEX TO PURCHASE AGREEMENT
dated July 23, 1996, between
METFER - I
and
MOUNT AIRY REALTY ASSOCIATES L.P.
Section
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1. Subject of Conveyance
2. Definitions of Certain Terms
3. Inspection Period;
Purchaser's Right of Inspection Prior to Closing
4. Purchase Price and Terms of Payment
5. Matters to Which this Sale is Subject
6. Adjustments
7. Estoppel Certificate
8. Items to be Delivered by Seller on the Closing Date
9. Seller's Representations and Warranties
10. Seller's Covenants
11. Conditions Precedent to Purchaser's Obligations
12. 222 Mount Airy Road
13. Expenses
14. Tax Reduction and Appeals
15. Lease Payment
16. Broker
17. Title Report
18. Casualty Loss
19. Condemnation
INDEX TO PURCHASE AGREEMENT
dated July 23, 1996, between
METFER - I
and
MOUNT AIRY REALTY ASSOCIATES L.P.
Section
- -------
20. Remedies
21. Assessment
22. Closing
23. Notice
24. Escrow Agreement
25. Assignment
26. Environmental Representations and Warranties; Covenants; Conditions
27. Miscellaneous
SCHEDULE OF EXHIBITS
Exhibit A Land
Exhibit B List of Personal Property
Exhibit C Deleted Prior to Execution
Exhibit D Title Exceptions
Exhibit E Estoppel Certificate
Exhibit F Assignment of Leases and Intangible Property
Exhibit G Rent Roll
Exhibit H Assignment of Service Contracts
AGREEMENT
THIS AGREEMENT made this day of July, 1996 between METFER - I, a New
Jersey general partnership having an office at c/o Mt. Airy
Associates/Management, P.O. Box 421, Basking Ridge, New Jersey (the "Seller")
and MOUNT AIRY REALTY ASSOCIATES L.P., a New Jersey limited partnership, having
an office c/o Cali Realty Corporation, 11 Commerce Drive, Cranford, New Jersey
07016 ("Purchaser").
RECITALS
A. Seller is the owner of the building located at 233 Mount Airy Road,
in the Township of Basking Ridge, County of Somerset, State of New Jersey (the
"Building").
B. Seller has agreed to sell to Purchaser, and Purchaser has agreed to
purchase from Seller, the Premises (as hereinafter defined), subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, do hereby agree as follows:
1. SUBJECT OF CONVEYANCE.
Seller hereby agrees to sell and convey, and Purchaser hereby
agrees to purchase, subject to all terms and conditions set forth in this
Agreement:
(a) that certain plot, piece or parcel of land
situate, lying and being in the County of Somerset, Township of Basking Ridge
and State of New Jersey comprised of approximately 10.3 acres in the aggregate
of developed land, as described in Exhibit A annexed hereto (the "Land") on
which there is improved a Building of sixty six thousand two hundred sixty eight
(66,268) square feet; and
(b) the Building, open parking areas and
improvements, including without limitation, all mechanical, electrical, heating,
ventilation, air conditioning and plumbing fixtures, systems and equipment as
well as all compressors, engines, elevators and escalators, if any, erected on
the Land; and
(c) The Lease (as defined below) and the rents,
additional rents, reimbursements, profits, income and receipts thereunder and
all of Seller's right, title and interest in and to those contracts and
agreements for the servicing, maintenance and operation of the Land and the
Building ("Service Contracts") to the extent Purchaser elects to assume same as
provided in Section 9 herein; and
(d) all right, title and interest, if any, of the
Seller in and to those certain fixtures, equipment, furniture and other personal
property affixed to or appurtenant to the Land and the Building including,
without limitation, all carpets, drapes and other furnishings; maintenance
equipment and tools; keys to locks on or in the Building; and all other
machinery, equipment, meters, boilers, repair parts, fixtures and tangible
personal property of every kind and character and all accessions and additions
thereto owned by and in the possession of Seller and attached to or located upon
and used in connection with the ownership, maintenance, or operation of the Land
or the Building which are not the property of tenants of the Building or of
other persons (the "Personal Property"); and
(e) all right, title and interest, if any, of the
Seller in and to any land lying in the bed of any public street, road, alley,
easements, rights of way, water, water courses, hereditaments or avenue opened
or proposed, in front of or adjoining said Land and the Building, including all
strips and gores between the Land and abutting property, to the center line
thereof; and
(f) all right, title and interest of Seller, if any,
in and to all site plans, surveys, soil and substrata studies, architectural
drawings, plans and specifications, engineering plans and studies, floor plans,
landscape plans, operating or maintenance manuals and other plans and studies of
any kind owned by Seller, if any, with respect to the Land, the Building, or the
Personal Property ("Plans"); and
(g) all books, records, promotional material, tenant
data, leasing material and forms, past and current rent rolls, paid bill files,
market studies, keys, and other materials of any kind owned by Seller, if any,
which are or may be used in Seller's ownership or use of the Land, the Building
or the Personal Property ("Books and Records"); and
(h) all right, title and interest of Seller, if any,
in and to any name by which the property is commonly known, and all goodwill, if
any, related to the name by which the property is commonly known; and
(i) all right, title and interest of Seller, if any,
in and to any and all licenses and permits owned or held by Seller (including
any certificates of occupancy) to the extent such are assignable and in any way
related to or arising out of or used in connection with the ownership or
operation of the Land, the Building or the Personal Property (collectively,
"Licenses and Permits"); and
(j) all other rights, privileges and appurtenances
owned by Seller, if any, and in any way related to the rights and interests
described above in this Section.
(The foregoing properties, rights and interests set forth or described in
sub-sections (a) - (j) of this Section 1 are hereinafter collectively referred
to as the "Premises".)
2. DEFINITIONS OF CERTAIN TERMS.
For purposes of this Agreement, unless the context otherwise
requires:
"Appurtenances" shall mean all right, title and
interest, if any, of Seller in and to any award or payment made, or to be made,
(x) for any taking in condemnation, eminent domain or agreement in lieu thereof
of land adjoining all or any part of the Land or the Building, (y) for damage to
the Land or the Building or any part thereof by reason of change of grade or
closing of any such street, road, highway or avenue, and (z) for any taking in
condemnation or eminent domain of any part of the Land or the Building.
"Commission" is as defined in Section 15.
"Cash Payment" is as defined in Section 4.
"Closing" is on or about July 15, 1996, but subject
to the provisions of Section 22.
"Closing Date" shall mean the date on which the deed
to the Premises shall be delivered and title thereto conveyed to Purchaser.
"Deed" shall mean a bargain and sale deed with
covenants in proper statutory form for recording so as to convey to Purchaser
good and marketable title to the fee simple of the Premises, free and clear of
all liens and encumbrances, except the Permitted Encumbrances.
"Deposit" is One-Hundred Twenty Five Thousand
($125,000.00) Dollars.
"Element" is as defined in Section 26.
"Environmental Documents" is as defined in Section
26.
"Escrow Agent" is First American Title Insurance
Company of New York.
"Estoppel Certificate" is as defined in Section 7.
"Execution Date" is the date that a fully executed
copy of this Agreement is in the possession of counsel to Purchaser and Seller.
"Governmental Authorities" shall mean any agency,
board, bureau, commission, department or body of any municipal, county, state or
federal governmental unit, or any subdivision thereof, having, asserting or
acquiring jurisdiction over all or any part of the Premises or the management,
operation, use or improvement thereof.
"Hazardous Materials" shall include, without
limitation, gasoline, petroleum products, explosives, radioactive materials,
polychlorinated biphenyls, asbestos or any materials containing asbestos, or
related or similar materials, or any other substance or material defined as a
hazardous or toxic substance or waste or toxic pollutant by any federal, state
or local law, ordinance, rule, or regulation.
"Inspection Period" is the period commencing on the
Execution Date and ending at 12:00 p.m. on July 9, 1996.
"ISRA" is the Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et seq., the regulations promulgated thereunder and any amending or
successor legislation and regulations.
"ISRA Compliance Date" is as defined in Section 26.
"Lease" is that certain lease dated November 28, 1990
by and between Seller, as landlord, and AT&T Corp. (as successor to AT&T
Resource Management Corporation), as tenant, for the Premises as amended by
amendments dated December 1994, August 27, 1995 and April 1996.
"Lease Payment" is as defined in Section 9.
"Major Facility" is as defined in the Spill Act.
"NJDEP" is the New Jersey Department of Environmental
Protection.
"Permitted Encumbrances" is as defined in Section 5.
"Premises" is as defined in Section 1.
"Purchase Price" is as defined in Section 4.
"Rent Roll" is the rent roll for the Premises set
forth in Exhibit G in the form required under Section 9(b).
"Second Amendment" is as defined in Section 9.
"Service Contracts" shall mean those contracts set
forth in Exhibit H.
"Spill Act" shall mean the Spill Compensation and
Control Act, N.J.S.A. 58:10-23.11 et seq., together with any amendments or
revisions thereof and any regulations promulgated thereunder and any amending or
successor legislation and regulations.
"Tenant" shall mean AT&T Corp., which is the tenant
under the Lease.
"Tests and Studies" is as defined in Section 3.
"Title Company" is First American Title Insurance
Company of New York.
"Title Policy" is as defined in Section 17.
"222 Mount Airy Road Premises" is the premises
commonly known as 222 Mount Airy Road, Basking Ridge, New Jersey and owned by
Metfer - II, an entity with ownership in common with the ownership of Seller.
3. INSPECTION PERIOD; PURCHASER'S RIGHT OF
INSPECTION PRIOR TO CLOSING
During the Inspection Period, Purchaser, at its sole expense,
may perform Tests and Studies and may inspect the physical (including
environmental) and financial condition of the Premises, including but not
limited to the Lease, contracts, engineering and environmental reports,
development approval agreements, permits and approvals and Service Contracts,
which inspection shall be satisfactory to Purchaser in its sole discretion.
Purchaser may terminate this Agreement for any reason, by written notice to
Seller given within the Inspection Period. In the event Purchaser terminates
this Agreement, Purchaser shall be entitled to the return of the Deposit with
interest earned thereon, and this Agreement shall be null and void and the
parties hereto shall be relieved of all further obligations hereunder except as
otherwise provided herein. Upon the receipt of the Deposit, Purchaser shall
deliver to Seller copies of those written reports generated at Purchaser's
direction which are not proprietary or confidential in nature.
During the Inspection Period, Purchaser, its agents and
contractors, shall have the right to enter upon the Premises and perform (or
cause to be performed) tests, investigations and studies of or related to the
Premises including, but not limited to, soil borings, ground water
investigation, percolator tests, surveys, architectural, engineering,
subdivision, environmental, access, financial, market analysis, development and
economic feasibility studies and other tests, investigations or studies as
Purchaser, in its sole discretion, determines is necessary or desirable to
satisfy Purchaser of the feasibility of owning and using the Premises
(collectively the "Tests and Studies"), provided that it shall give Seller
notification of its intention to conduct any such inspection and that such
inspection shall not unreasonably impede the normal day-to-day business
operation of the Premises. Such right of inspection and the exercise of such
right shall not constitute a waiver by Purchaser of the breach of any
representation or warranty of Seller which might have been disclosed by such
inspection.
Seller agrees to permit Purchaser access to the Premises upon
prior notice to Seller for the purpose of performing the Tests and Studies. To
assist Purchaser in the performance of its Tests and Studies, Seller has
previously delivered to Purchaser true and complete copies of all test borings,
environmental reports (including, without limitation, all Environmental
Documents), surveys, title materials and engineering and architectural data and
the like relating to the Premises that are in Seller's possession or under its
control and for which Seller is under no prohibition from releasing same to
Purchaser. In the event any additional materials or information come within
Seller's possession or control after the date of this Agreement, Seller shall
promptly submit true and complete copies of the same to Purchaser. To the extent
Purchaser requests any additional information relating to the Premises, Seller
shall use its best efforts to provide same to Purchaser on a timely basis.
Seller shall cooperate with Purchaser in facilitating the Tests and Studies and
shall obtain, at no cost or expense to Seller, any consents that may be
necessary in order for Purchaser to perform the same. Purchaser shall repair and
restore any portion of the surface of the Premises disturbed by Purchaser, its
agents or contractors during the conduct of any of the Tests and Studies to
substantially the same condition as existed prior to such disturbance.
4. PURCHASE PRICE AND TERMS OF PAYMENT.
The purchase price for the Premises is Five Million Nine
Hundred Nineteen Thousand Eight Hundred Eighty Eight and xx/100 ($5,919,888.00)
payable as follows:
(a) Delivery of the Deposit to the Escrow Agent on
the Execution Date, which shall be held pursuant to the terms of Section 24; and
(b) The balance of the Purchase Price (the "Cash
Payment") by a bank, certified or cashier's check on the Closing Date or by the
wiring of federal funds to Seller or the Escrow Agent, subject to adjustment as
provided herein.
5. MATTERS TO WHICH THIS SALE IS SUBJECT
The Premises are sold and are to be conveyed subject to the
following (collectively the "Permitted Encumbrances"):
(a) The liens of real estate taxes, personal property taxes,
water charges, and sewer charges provided same are not due and payable;
(b) The rights of the Tenant, as tenant only;
(c) Those restrictions, covenants, agreements, easements,
matters and things affecting title to the Premises and more particularly
described in Exhibit "D" annexed hereto and by this reference made a part
hereof;
(d) Any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates as the same may be amended
subsequent to the date hereof affecting the Premises adopted by the United
States, the State of New Jersey, the Township of Basking Ridge and any and every
other Governmental Authority having jurisdiction thereof;
(e) The state of facts shown on that certain survey prepared
by Couvrette Associates Inc. and dated August 8, 1988 and revised August 25,
1988 and any other state of facts which a recent and accurate survey of the
Premises would actually show, provided same do not impair the use of the
Premises as an office building and do not render title uninsurable at standard
rates; and
(f) Those Service Contracts which are assumed by Purchaser, at
its option, at Closing.
6. ADJUSTMENTS
(a) The following items with respect to the Premises are to be
apportioned as of midnight on the date preceding the Closing:
(i) Rents payable by the Tenant as and when
collected. All monies received from the Tenant from and after the Closing shall
belong to Purchaser and shall be applied by Purchaser to current rents and other
charges due under the Lease. After application of such monies to current rents
and charges, Purchaser agrees to remit to Seller any excess amounts paid by the
Tenant to the extent that the Tenant was in arrears in the payment of rent prior
to the Closing, not in excess of one (1) month's rent. The provisions of this
subsection 6(a) shall survive the Closing Date.
(ii) Amounts payable under the Service Contracts, to
the extent Purchaser assumes such Service Contracts at Closing.
(iii) Real estate taxes due and payable over the
calendar year. If the Closing Date shall occur before the tax rate is fixed, the
apportionment of real estate taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. If subsequent to
the Closing Date, real estate taxes (by reason of change in either assessment or
rate or for any other reason) for the Premises should be determined to be higher
or lower than those that are apportioned, a new computation shall be made, and
Seller agrees to pay Purchaser any increase shown by such recomputation and vice
versa. The provisions of this Subsection 6(a)(v) shall survive the Closing Date.
(b) Except as otherwise provided in this Agreement, the
adjustments shall be made in accordance with the customs in respect to title
closings in the State of New Jersey.
(c) Any errors in calculations or adjustments shall be
corrected or adjusted as soon as practicable after the Closing.
7. ESTOPPEL CERTIFICATE
(a) Promptly following delivery by Purchaser to Seller of a
notice that it is not terminating this Agreement as it is otherwise permitted so
to do pursuant to Section 3, Seller shall deliver to the Tenant an estoppel
certificate in the form annexed hereto as Exhibit "E" for Tenant's execution,
completed to reflect the Tenant's particular Lease status (the "Estoppel
Certificate"). Seller agrees to use its best efforts to obtain the Estoppel
Certificate within the thirty (30) day period set forth in the Lease for the
Tenant to respond to a request for delivery of an estoppel certificate. Seller
shall be entitled to extend the Closing Date, by written notice to Purchaser, to
obtain the Estoppel Certificate if same is not obtained by the date first set
forth in this Agreement for the Closing; provided, however, Seller shall not be
entitled to extend the Closing past the outside date for Tenant to so respond to
Seller's request.
(b) As a condition to Closing, Seller shall deliver to
Purchaser the Estoppel Certificate, or in the alternative, the estoppel
certificate required under the Lease, in either event executed by the Tenant and
describing no adverse conditions or information which renders untrue or
incorrect any representation or warranty made by Seller herein.
(c) For an Estoppel Certificate to be deemed delivered for
purposes of this Agreement, it must certify that the Tenant's most recent rental
payment under its Lease was made not more than one (1) month prior to the month
in which the Closing occurs.
8. ITEMS TO BE DELIVERED BY SELLER ON THE CLOSING DATE
On the Closing Date, Seller, at its sole cost and expense,
will deliver or cause to be delivered to Purchaser the following documents in
connection with the Premises in form and substance reasonably satisfactory to
Purchaser:
(a) The Deed duly executed and acknowledged. The delivery of
the Deed shall also be deemed to transfer to Purchaser all of Seller's right,
title and interest in and to the Personal Property.
(b) An original Lease and all other documents pertaining
thereto, with a certified copy of the Lease or other documents where Seller,
using its best efforts, is unable to deliver originals of same.
(c) All other original documents or instruments initialed by
or on behalf of the parties to this Agreement or referred to herein, and
certified copies of same where Seller, using its best efforts, is unable to
deliver originals.
(d) A letter to the Tenant advising the Tenant of the sale
hereunder and directing that rent and other payments thereafter be sent to
Purchaser or its designee, as Purchaser shall so direct.
(e) Duly executed and acknowledged assignment of the Lease and
Intangible Property in the form of Exhibit "F" annexed hereto.
(f) A credit against the Cash Payment in the amount of any
prepaid rents, together with interest required to be paid thereon.
(g) An affidavit, or such other documents as required by the
Title Company, executed by Seller certifying (i) against any work done or
supplies delivered to the Premises which might be grounds for a materialman's or
mechanic's lien under or pursuant to New Jersey law, in form sufficient to
enable the Title Company to affirmatively insure Purchaser against any such
lien, (ii) that the signatures on the Deed are sufficient to bind Seller and
convey the Premises to Purchaser, (iii) that the conveyance is not prohibited or
restricted in any way under the laws of the State of New Jersey and (iv) that
the Rent Roll is true, accurate and correct on the Closing Date.
(h) Any and all affidavits and other instruments (including
but not limited to all organizational documents of the Seller and Seller's
general partner including limited partnership agreements, certificates of
partnership, by laws, articles of incorporation, and good standing certificates)
and documents which the Title Company shall reasonably require in order to
insure title to Purchaser, subject to no exceptions other than the Permitted
Encumbrances.
(i) The Estoppel Certificate required in Section 7.
(j) Plans, Books and Records.
(k) The certificates of occupancy for the Building and a
letter from the local municipal zoning department certifying that the Premises
complies in all respects with the current zoning ordinance.
(l) A Rent Roll, current as of the Closing Date, certified by
Seller as being true and correct in all respects.
(m) All proper instruments as shall be reasonably required for
(i) the conveyance of title to the Appurtenances, and (ii) the assignment of
and/or collection rights to any condemnation or eminent domain claims, awards or
payments, as well as the right to claim or collect damages resulting from damage
to the Premises or any part thereof by reason of the changing of grade or
closing of any street, road, highway or avenue.
(n) Duly executed and acknowledged assignment of those Service
Contracts which Purchaser has elected to assume in the form of Exhibit "H"
annexed hereto.
(o) A certificate signed by an officer of Seller to the effect
that Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended.
(p) All such transfer and other tax declarations and returns
and information returns, duly executed and sworn to by Seller as may be required
of Seller by law in connection with the conveyance of the Premises to Purchaser,
including but not limited to, Internal Revenue Service forms 1099-S and 1096.
(q) A statement setting forth the Purchase Price with all
adjustments and prorations shown thereon.
(r) The Seller's closing certificate with respect to the
representations and warranties described in Section 9 hereof and recertifying
that same are true and correct on the Closing Date.
(s) An affidavit of Seller stating that all representations
and warranties set forth in the Agreement continue to be true and correct as of
the date of the Closing.
9. SELLER'S REPRESENTATIONS AND WARRANTIES
In order to induce Purchaser to purchase the Premises, Seller
hereby warrants, represents and agrees that the following are true as of the
date hereof and will be true on the Closing Date:
(a) The Lease is valid and bona fide and is now in full force
and effect. No defaults exist thereunder and no condition exists which, with the
passage of time or the giving of notice or both, will become a default; the
Lease constitutes the only lease, tenancy or occupancy affecting the Premises;
the Tenant has commenced occupancy; there are no agreements which confer upon
the Tenant or any other person or entity any rights with respect to the
Premises, nor is the Tenant entitled now or in the future to any concession,
rebate, offset, allowance or free rent for any period, nor has any such claim
been asserted by the Tenant.
(b) Annexed hereto as Exhibit "G" (the "Rent Roll") is a true,
complete and correct listing of the fixed rent actually being collected under
the Lease and the expiration date of the Lease (including all rights or options
to renew). No Capital Expenditures (as defined in the Lease) have been incurred
by Seller or Tenant. Seller has performed all of the obligations and observed
all of the covenants required of the landlord under the terms of the Lease.
(c) All work, alterations, improvements or installations
required to be made for or on behalf of the Tenant under the Lease have in all
respects been carried out, performed and complied with, and there is no
agreement with the Tenant for the performance of any work to be done in the
future. No work has been performed at the Premises which would require an
amendment to the certificate of occupancy, and any and all work performed at the
Premises to the date hereof and to the Closing Date has been and will be in
accordance with the rules, laws and regulations of all applicable authorities.
All bills and claims for labor performed and materials furnished to or for the
benefit of the Premises will be paid in full on the Closing Date.
(d) There are no service contracts, union contracts,
employment agreements or other agreements affecting the Premises or the
operation thereof, except the Service Contracts. True, accurate and complete
copies of the Service Contracts have been initialed by the parties. All of the
Service Contracts are and will on the Closing Date be unmodified and in full
force and effect without any default or claim of default by any of the parties
thereto. All sums presently due and payable by Seller under the Service
Contracts have been fully paid and all sums which become due and payable between
the date hereof and the Closing Date shall be fully paid on the Closing Date.
(e) There are no actions, suits, labor disputes, litigation or
proceedings currently pending or, to the knowledge of Seller, threatened against
or related to Seller or to all or any part of the Premises or the operation
thereof, nor does Seller know of any basis for any such action.
(f) There are no outstanding requirements or recommendations
by (i) the insurance company(s) which issued the insurance policies insuring the
Premises; (ii) any board of fire underwriters or other body exercising similar
functions, or (iii) the holder of any mortgage, which require or recommend any
repairs or work to be done on the Premises.
(g) No Tenant is not in arrears for the payment of rent or any
other amounts due Seller as landlord under the Lease nor has Seller received
notice of an intention to vacate from the Tenant.
(h) The Seller has received no written notice and has no
knowledge of (i) any pending or contemplated annexation or condemnation
proceedings, or private purchase in lieu thereof, affecting or which may affect
the Premises, or any part thereof, (ii) any proposed or pending proceeding to
change or redefine the zoning classification of all or any part of the Premises,
(iii) any proposed or pending special assessments affecting the Premises or any
portion thereof, (iv) any penalties or interest due with respect to real estate
taxes assessed against the Premises and (v) any proposed change(s) in any road
or grades with respect to the roads providing a means of ingress and egress to
the Premises. Seller agrees to furnish Purchaser with a copy of any such notice
received within two (2) days after receipt.
(i) Seller has provided Purchaser with all reports in Seller's
possession or under its control and for which Seller is under no prohibition
from releasing same to Purchaser related to the physical condition of the
Premises and all Books and Records necessary for Purchaser to conduct its due
diligence and Tests and Studies.
(j) Seller has no knowledge of any notices, suits, or
judgments relating to any violations (including environmental) of any laws,
ordinances or regulations affecting the Premises, or any violations or
conditions that may give rise thereto and has no reason to believe that any
Governmental Authorities contemplates the issuance thereof.
(k) There are no employees working at or in connection with
the Premises. There is currently no union agreement affecting the Premises and
none will be in effect on the Closing Date.
(l) The only payment due from Seller on account of the Lease,
whether in the nature of a tenant improvement cost, commission, allowance or
otherwise, is as set forth in paragraph 4 of the Second Amendment to Lease and
Lease Extension and Ratification Agreement (the "Second Amendment") dated August
21, 1995 between Seller and Tenant, which payment is Three Hundred Thirty One
Thousand Three Hundred Forty ($331,340.00) Dollars in the aggregate (the "Lease
Payment"). The respective obligations of Seller and Purchaser with respect to
the Lease Payment is set forth in Section 15.
(m) Seller (A) is a duly organized and validly existing
limited partnership (corporation) under the laws of the State of New Jersey, and
is duly authorized to transact business in the State of New Jersey; (B) has all
requisite power and authority to execute and deliver this Agreement and all
other documents and instruments to be executed and delivered by it hereunder,
and to perform its obligations hereunder and under such other documents and
instruments in order to sell the Premises in accordance with the terms and
conditions hereof and all necessary actions of the general and limited partners
(stockholders and board of directors) of Seller to confer such power and
authority upon the persons executing this Agreement and all documents which are
contemplated by this Agreement on its behalf have been taken.
(n) This Agreement, when duly executed and delivered, will be
the legal, valid and binding obligation of Seller, enforceable in accordance
with the terms of this Agreement. Seller's performance of its duties and
obligations under this Agreement and the transfer documents contemplated hereby
will not conflict with, or result in a breach of or default under, any provision
of any of Seller's organizational documents, any agreements, instruments,
decrees, judgments, injunctions, orders, writs, laws, rules or regulations, or
any determination or award of any court or arbitrator, to which Seller is a
party or by which its assets are or may be bound.
(o) No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending or
threatened against, or contemplated by Seller.
(p) No person, firm, or entity has any rights in, or rights to
acquire all or any part of the Premises.
(q) The Personal Property is now owned and will on the Closing
Date be owned by Seller free and clear of any conditional bills of sale, chattel
mortgages, security agreements or financing statements or other security
interests of any kind.
(r) The current zoning classification of the Premises is such
that the Premises is zoned for its present use as a commercial office building
and Seller has received no notice of any violations of any zoning, subdivision,
building or similar law, ordinance, order, regulation or recorded plat or any
certificate of occupancy issued for the Premises.
All representations and warranties provided by Seller in this Agreement shall
survive the Closing Date for a period of one (1) year and shall not be merged in
the delivery of the Deed. Seller agrees to indemnify and hold Purchaser harmless
against all claims, liabilities, losses, deficiencies and damages as well as
reasonable expenses (including attorney's fees), and interest and penalties
related thereto, asserted by any third party against or incurred by Purchaser,
by reason of or resulting from any breach, inaccuracy, incompleteness or
nonfulfillment of the covenants, representations and warranties of Seller
contained in this Agreement.
10. SELLER'S COVENANTS
Seller covenants and agrees that between the date hereof and
the Closing Date it shall perform or observe the following with respect to the
Premises:
(a) Seller, as landlord, will not enter into any new leases
with respect to the Premises, or renew or modify any Lease, without Purchaser's
prior written consent.
(b) If prior to the Closing Date Seller shall have received
from (i) any insurance company which issued a policy with respect to the
Premises, (ii) any board of fire underwriters or other body exercising similar
functions, or (iii) the holder of any mortgage, any notice requiring or
recommending any repair work to be done on the Premises, Seller will do the same
expeditiously and diligently at its own cost and expense prior to the Closing
Date.
(c) Seller will operate and maintain the Premises in the
ordinary course of business and use reasonable efforts to reasonably preserve
for Purchaser the relationships of Seller and Seller's Tenant, suppliers,
managers, employees and others having on-going relationships with the Premises.
Seller will complete any capital expenditure program currently in process or
anticipated to be completed. Seller will not defer taking any actions or
spending any of its funds, or otherwise manage the Premises differently, due to
the pending sale of the Premises.
(d) Seller shall not:
(i) Enter into any agreement requiring Seller to do
work for the Tenant after the Closing Date without first obtaining the prior
written consent of Purchaser; or
(ii) Accept the surrender of any Service Contract or
Lease, or grant any concession, rebate, allowance or free rent.
(e) Between the date hereof and the Closing Date, Seller will
not renew, extend or modify any of the Service Contracts without the prior
written consent of the Purchaser in each instance first had and obtained. At the
Closing, Seller will cancel or will have previously cancelled (effective on the
Closing Date) all Service Contracts except those which Purchaser has agreed in
writing to assume, with all cancellations at Seller's sole cost and expense.
(f) Seller shall not remove any Personal Property, fixtures or
equipment located in or on the Premises, except as may be required for repair
and replacement. All replacements shall be free and clear of liens and
encumbrances and shall be of quality at least equal to the replaced items and
shall be deemed included in this sale, without cost or expense to Purchaser.
(g) Seller shall, upon request of Purchaser at any time after
the date hereof, assist Purchaser in its preparation of audited financial
statements, statements of income and expense, and such other documentation as
Purchaser may reasonably request, covering the period of Seller's ownership of
the Premises.
(h) Between the date hereof and the Closing Date, Seller will
make all required payments under any mortgage affecting the Premises within any
applicable grace period, but without reimbursement by Purchaser therefor. Seller
shall also comply with all other terms covenants, and conditions of any mortgage
on the Premises.
(i) Seller shall not cause or permit the Premises, or any
interest therein, to be alienated, mortgaged, liened, encumbered (other than by
mechanic's or materialman's liens or claims which are removed or bonded against
prior to Closing) or otherwise be transferred.
(j) Up to and including the Closing Date, Seller agrees to
maintain and keep such hazard, liability and casualty insurance policies in full
force and effect in such amounts and covering such risks sufficiently to protect
the Premises and to protect, to a reasonable and prudent extent, the owner of
the Premises, in such amounts as are required so as not to be deemed a
co-insurer, and for actual replacement cost, against any loss, damage, claim or
liability.
(k) All violations of laws, statutes, ordinances, regulations,
orders or requirements affecting the Premises, whether or not such violations
are now noted in the records of or have been issued by any Governmental
Authorities will be complied with by Seller and the Premises will be conveyed
free of any such violations.
In addition, Seller shall permit Purchaser and its authorized
representatives to inspect the Books and Records of its operations at all
reasonable times for a period of one (1) year subsequent to the Closing Date.
All Books and Records not conveyed to Purchaser hereunder shall be maintained
for Purchaser's inspection at Seller's address as set forth above.
11. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Premises and to
perform the other covenants and obligations to be performed by Purchaser on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Purchaser):
(i) The representations and warranties made by Seller
herein shall be true and correct in all respects with the same force and effect
as though such representations and warranties had been made on and as of the
Closing Date.
(ii) Seller shall have performed all covenants and
obligations undertaken by Seller in Section 10 hereof in all respects and
complied with all conditions required by this Agreement to be performed or
complied with by it on or before the Closing Date.
(iii) The Title Company is unconditionally prepared
to issue to Purchaser a Title Policy meeting the requirements set forth in
Section 17 hereof for an "insurable title".
(iv) Seller shall have delivered to Purchaser all of
the documents enumerated in Section 8 hereof.
(v) Metfer - II shall be prepared to convey the 222
Mount Airy Road Premises to Purchaser in accordance with the terms and
conditions of the 222 Contact (as defined below).
12. 222 MOUNT AIRY ROAD
Simultaneously with the execution of this Agreement, Purchaser is
entering into an agreement (the "222 Contract") with Metfer-II, a New Jersey
general partnership which is the owner of the 222 Mount Airy Road Premises. The
legal and beneficial ownership of Metfer - II is identical to the ownership of
Seller. The closing of the 222 Contract is to occur simultaneously with the
Closing hereunder, and neither this Agreement nor the 222 Contract is to close
without the other. By its execution below, Metfer-II acknowledges and agrees
that in the event Purchaser has any claim against Seller hereunder for a failure
to perform as required herein, Purchaser, at its option and in addition to any
other rights and remedies which it may have against Seller, shall be entitled to
seek such remedies as against Metfer-II as it shall elect. Similarly, if
Purchaser shall default hereunder or under the 222 Contract, both Metfer - I and
Metfer - II shall have such rights and remedies against Purchaser as shall be
available to them at law or in equity.
13. EXPENSES
(a) Seller shall pay the fees, costs and expenses of Seller's
counsel, and any and all sales taxes, transfer taxes, documentary stamps,
customary recording fees and other taxes and charges imposed in connection with
the delivery and recording of the Deed, all customary prorations and
appointments and one-half of all reasonable escrow fees.
(b) Purchaser shall pay the fees, costs and expenses of
Purchaser's counsel, all title insurance premiums and charges, all recording
fees, all survey or surveyor charges, and any fees, costs or expenses incurred
by Purchaser in connection with its inspection of the Premises, including, but
not limited to, any architects', engineers', accountants', appraisers' or
contractors' fees or costs, all customary prorations and appointments and
one-half of all reasonable escrow fees.
(c) The obligations of Seller and Purchaser set forth in this
Section 13 shall survive the Closing or the earlier termination of this
Agreement.
14. TAX REDUCTION AND APPEALS
Seller is hereby authorized to continue the proceeding or
proceedings now pending for the reduction of the assessed valuation of the
Premises as set forth on Exhibit "I" and to litigate or settle the same in
Seller's discretion. Purchaser is hereby authorized by Seller, in Purchaser's
sole discretion, to file any applicable proceeding for the 1996 fiscal year for
the reduction of the assessed valuation of the Premises. The net refund of
taxes, if any, for any tax year for which Seller or Purchaser shall be entitled
to share in the refund shall be divided between Seller and Purchaser in
accordance with the apportionment of taxes pursuant to the provisions hereof.
All expenses in connection therewith, including counsel fees, shall be borne by
Seller. The provisions of this Section shall survive the Closing Date.
15. LEASE PAYMENT
Purchaser acknowledges and agrees that from and after the
Closing, it shall assume the obligations of Seller to make the Lease Payment in
accordance with the Second Amendment. Promptly following delivery by Purchaser
to Seller of a notice that it is not terminating this Agreement as it is
otherwise permitted so to do pursuant to Section 3, Purchaser agrees to
participate in negotiations with AT&T and Cushman & Wakefield in an attempt to
achieve a discount of the Lease Payment in consideration for immediate payoff.
If such a settlement results in an economic benefit to both parties, Purchaser
and Seller shall share equally in any discount achieved. Neither party shall
have the right to accept any such settlement without the prior written consent
of the other, which consent shall not be unreasonably withheld or delayed.
16. BROKER
Seller represents that it has not dealt with any brokers,
finders or salesmen in connection with this transaction. Seller agrees to
indemnify, defend and hold Purchaser harmless from and against any and all loss,
cost, damage, liability or expense, including reasonable attorneys' fees, which
Purchaser may sustain, incur or be exposed to by reason of any claim for fees or
commissions. Purchaser represents that it is acting as a principal and has no
broker representing it in this transaction. Notwithstanding anything to the
contrary contained herein, the provisions of this Section shall survive the
Closing Date or other termination of this Agreement.
17. TITLE REPORT
(a) Purchaser agrees promptly after execution of this
Agreement to order a report of title or title commitment from the Title Company
and to direct the Title Company to provide Seller with a copy thereof. It shall
be a condition to Closing that Seller transfer, and that the Title Company agree
to insure, title to the Premises in the amount of the Purchase Price (at a
standard rate for such insurance) in the name of Purchaser, after delivery of
the Deed, by a standard 1992 ALTA Owners Policy (the "Title Policy"). The Title
Policy shall contain endorsements insuring that (i) the covenants and
restrictions included in the Permitted Encumbrances have not been violated and
that a future violation thereof will not cause a forfeiture or reversion of
title; (ii) Purchaser's contemplated use of the Premises as office building(s)
will not violate the covenants, conditions and restrictions included in the
Permitted Encumbrances; (iii) if the Premises consists of multiple parcels, all
such parcels constitute a single contiguous tract; (iv) the Premises has direct
access both to Mount Airy Road and Whitenack Road, publicly dedicated roads; and
(v) the existing use of the Premises complies with all applicable zoning
ordinances and regulations as may affect the Premises. Seller shall provide such
affidavits and undertakings as the Title Company insuring title to the Premises
may require and shall cure all other defects and exceptions. The words
"insurable title" and "insurable" as used in this Agreement are hereby defined
to mean title which is insurable at standard rates (without special premium) by
the Title Company without exception other than the Permitted Encumbrances, and
standard printed policy and survey exceptions. Seller shall be obligated to
expend up to the Purchase Price to cause title to the Premises to be conveyed to
Purchaser in the manner required under this Agreement.
(b) If, at the Closing, Seller is unable to convey to
Purchaser insurable title to the Premises subject to and in accordance with the
provisions of this Agreement, Seller shall be entitled, upon written notice
delivered to Purchaser at or prior to the Closing, to reasonable adjournments of
the Closing Date one or more times, for a period or periods not to exceed, in
the aggregate, thirty (30) days, to enable Seller to convey such title or to
fulfill such obligations. If Seller does not so elect to adjourn the Closing, or
if at the adjourned date Seller is still unable to convey insurable title
subject to, and in accordance with the provisions of, this Agreement, then
Purchaser may, at its option, (a) terminate this Agreement by written notice
delivered as provided in Section 23 hereof, in which event the sole liability of
Seller shall be to direct the Title Company to refund the Deposit with interest
thereon to Purchaser, and to refund to Purchaser all charges made for (i)
examining the title, (ii) any appropriate additional municipal searches made in
accordance with this Agreement, and (iii) survey and survey inspection charges;
or (b) accept title to the Premises subject to such defect(s), in which event
such defect(s) shall become Permitted Encumbrance(s). Upon such refund being
made to Purchaser in accordance with clause (a) of the immediately preceding
sentence, then this Agreement shall automatically become void and of no further
force or effect, and neither party shall have any obligations of any nature to
the other hereunder or by reason hereof, except obligations which, pursuant to
the provisions of this Agreement, are expressly stated to survive the
termination of this Agreement. If Seller elects to adjourn the Closing as
provided above, this Agreement shall remain in effect for the period or periods
of adjournments, in accordance with its terms.
(c) Upon notice to Seller, Purchaser shall have the right to
cause one or more title insurance companies, whether or not through abstract
agencies, to insure Purchaser's title to the Premises on a co-insurance basis or
to change title companies, so long as in each instance, said company and agency,
to the extent applicable, is a duly licensed title insurance company authorized
to conduct business in the State of New Jersey.
18. CASUALTY LOSS
(a) If prior to the Closing Date any part of the Premises is
damaged as the result of fire or other casualty and the estimated cost of repair
of the damage exceeds $50,000.00, Purchaser shall have the option to either (i)
accept title to the Premises without any abatement of the Purchase Price
whatsoever, in which event on the Closing Date all of the insurance proceeds
shall be assigned by Seller to Purchaser and any moneys theretofore received by
Seller in connection with such fire or other casualty shall be paid over to
Purchaser, or (ii) cancel this Agreement and the Deposit together with all
interest earned thereon shall be returned to Purchaser by the Escrow Agent, and
upon such return neither party shall have any further liability or obligation to
the other. In the event that the damages shall not exceed $50,000.00, this
Agreement shall remain in full force and effect, the insurance proceeds shall be
assigned by Seller to Purchaser and all sums received by Seller in connection
therewith shall be paid over to Purchaser. Seller shall maintain or cause to be
maintained insurance on the Premises in accordance with the terms and conditions
of the Lease.
(b) Seller shall not settle any fire or casualty loss claims
in connection with the Premises without obtaining Purchaser's prior written
consent.
(c) Seller hereby agrees to furnish Purchaser with written
notification of any such fire or casualty within twenty-four (24) hours of such
event.
19. CONDEMNATION
In the event of the institution of any proceedings, judicial,
administrative or otherwise, which shall relate to the proposed material taking
of any portion of the Premises by eminent domain prior to the Closing Date, or
in the event of the material taking of any portion of the Premises by eminent
domain prior to the Closing Date, Purchaser shall have the right and option to
terminate this Agreement by giving the Seller written notice to such effect at
any time after its receipt of written notification of any such occurrence. Any
damage to or destruction of the Premises as a result of a taking by eminent
domain shall be deemed "material" for purposes of this Section 19 if the
estimate of the damage, which estimate shall be performed by an insurance
adjustor and Purchaser's architect, shall exceed $50,000.00. Should Purchaser so
terminate this Agreement in accordance with this Section 19, the Deposit
together with interest earned thereon shall immediately be returned to Purchaser
by the Escrow Agent and upon such return, neither party shall have any further
liability or obligations to the other. In the event Purchaser shall not elect to
cancel this Agreement, Seller shall assign all proceeds of such taking to
Purchaser, and same shall be Purchaser's sole property, and Purchaser shall have
the sole right to settle any claim in connection with the Premises.
20. REMEDIES
(a) In the event Purchaser fails to perform on the Closing
Date, Purchaser's sole liability and Seller's sole recourse shall be limited to
the amount of the Deposit. Seller agrees that retention of the Deposit
constitutes fixed and liquidated damages resulting from Purchaser's default, and
Seller waives any other claim, at law or in equity, either against Purchaser or
against any person, known or unknown, disclosed or undisclosed.
(b) (i) If, after complying with the terms of this Agreement,
Seller shall be unable to convey the Premises in accordance with the terms of
this Agreement, the sole obligation and liability of Seller shall be to direct
the Escrow Agent to refund to Purchaser the Deposit, and to pay Purchaser's net
cost of examining title, which cost is not to exceed the charges fixed by the
local board of title underwriters and actually to be paid by Purchaser, and
survey charges actually to be paid by Purchaser, which charges for title
examination and survey are not to exceed $5,000, whereupon this Agreement shall
be deemed cancelled and the parties hereto shall be released of all obligations
and liabilities under this Agreement, except those that are expressly stated to
survive the cancellation or termination of this Agreement.
(ii) In the event of any default on the part of
Seller or Seller's failure to comply with any representation, warranty or
agreement in any material respect, Purchaser shall be entitled to terminate this
Agreement upon notice to Seller, in which event the Deposit shall be returned by
Escrow Agent to Purchaser and neither party shall thereafter have any further
obligations under this Agreement; to commence an action against Seller seeking
specific performance of Seller's obligations under this Agreement; to pursue all
of its remedies at law or in equity; or to do any or all of the above.
(c) The acceptance of the Deed by Purchaser shall be deemed a
full performance and discharge of every agreement and obligation of Seller to be
performed under this Agreement, except those, if any, which are specifically
stated in this Agreement to survive the Closing.
21. ASSESSMENT
If, on the Closing Date, the Premises or any part thereof
shall be or shall have been affected by an assessment or assessments which are
or may become payable in annual installments, of which the first installment is
either then a charge or lien 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 Closing Date, shall be deemed to
be due and payable and to be liens upon the Premises and shall be paid and
discharged by Seller on the Closing Date.
22. CLOSING
The closing and delivery of the Deed (the "Closing") shall
take place at the offices of Pryor, Cashman, Sherman & Flynn, 410 Park Avenue,
New York, New York 10022 on or about the Closing Date, but subject to extension
by Seller as provided in Section 7. Upon notice to Seller, Purchaser may elect
to accelerate the Closing Date to a date not less than five (5) days after the
date of Purchaser's notice.
23. NOTICE
All notices, demands, requests, or other writings in this
Agreement provided to be given or made or sent, or which may be given or made or
sent, by either party hereto to the other or by Escrow Agent, shall be in
writing and shall be delivered by depositing the same with any nationally
recognized overnight delivery service, or by telecopy or fax machine, in either
event with all transmittal fees prepaid, properly addressed, and sent to the
following addresses:
If to Purchaser: Mount Airy Realty Associates L.P.
c/o Cali Realty Corporation
11 Commerce Drive
Cranford, New Jersey 07016
Attn: John J. Cali and Roger W. Thomas, Esq.
(908) 272-8000 (tele.)
(908) 272-6755 (fax)
with a copy to: Andrew S. Levine, Esq.
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, New York 10022
(212) 326-0414 (tele.)
(212) 326-0806 (fax)
If to Seller: Paul L. Ferber
Mt. Airy Associates/Management
P.O. Box 421
Basking Ridge, New Jersey
(908) 221-0882 (tele.)
(908) 221-0056 (fax)
with a copy to: T. Thomas Van Dam, Esq.
Sinisi, Van Dam, Sproviero & Sokolich
Two Sears Drive
Paramus, New Jersey 07652
(201) 599-1600 (tele.)
(201) 599-1616 (fax)
If to Escrow Agent: First American Title Insurance
Company of New York
228 East 45th Street
New York, New York 10017
(212) 922-9700 (tele.)
(212) 922-0881 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed received and effective
on the first business day following such dispatch and (ii) telecopy or fax
machine shall be deemed given at the time and on the date of machine transmittal
provided same is sent prior to 4:00 p.m. on a business day (if sent later, then
notice shall be deemed given on the next business day) and if the sending party
receives a written send confirmation on its machine and forwards a copy thereof
by regular mail accompanied by such notice or communication. Notices may be
given by counsel for the parties described above, and such Notices shall be
deemed given by Purchaser or Seller, as the case may be, for all purposes
hereunder.
24. ESCROW AGREEMENT
Upon the signing of this Agreement by the parties, Purchaser
shall deliver the Deposit to the Escrow Agent. The parties agree that the
Deposit shall be held by the Escrow Agent in escrow and disposed of only in
accordance with the provisions of this Section 24. The parties agree that if the
Deposit is cash, such cash shall be invested in an assignable interest-bearing
certificate of deposit, money market fund, treasury bill or other similar
security approved by Seller and Purchaser, and all interest accruing thereon
shall be paid to Purchaser, except as otherwise provided herein.
(a) The Escrow Agent will deliver the Deposit to Seller or to
Purchaser, as the case may be, under the following conditions:
(i) To Seller on the Closing Date;
(ii) To Seller upon receipt of written demand
therefor, such demand stating that Purchaser has defaulted in the performance of
this Agreement and specifically setting forth the facts and circumstances
underlying such default. The Escrow Agent shall not honor such demand until more
than five (5) days have elapsed after the Escrow Agent has mailed a copy of such
demand to Seller or Purchaser, as the case may be, nor thereafter if the Escrow
Agent shall have received written notice of objection from Purchaser in
accordance with the provisions of clause (b) of this Section 24; or
(iii) To Purchaser upon receipt of written demand
therefor, such demand stating that this Agreement has been terminated in
accordance with the provisions hereof, or Seller has defaulted in the
performance of this Agreement, and specifically setting forth the facts and
circumstances underlying the same. The Escrow Agent shall not honor such demand
until more than five (5) days have elapsed after the Escrow Agent has mailed a
copy of such demand to Seller or Purchaser, as the case may be, nor thereafter,
if the Escrow Agent shall have received written notice of objection from the
other party in accordance with the provisions of clause (b) of this Section 24.
(b) Upon the filing of a written demand for the Deposit by
Purchaser or Seller, pursuant to subclause (ii) or (iii) of clause (a) of this
Section 24, the Escrow Agent shall promptly mail a copy thereof to the other
party. The other party shall have the right to object to the delivery of the
Deposit by filing written notice of such objection with the Escrow Agent at any
time within five (5) days after the mailing of such copy to it, but not
thereafter. Such notice shall set forth the basis for objecting to the delivery
of the Deposit. Upon receipt of such notice, the Escrow Agent shall promptly
mail a copy thereof to the party who filed the written demand.
(c) In the event the Escrow Agent shall have received the
notice of objection provided for in clause (b) above and within the time therein
prescribed, the Escrow Agent shall continue to hold the Deposit until (i) the
Escrow Agent receives written notice from Seller and Purchaser directing the
disbursement of said Deposit, in which case, the Escrow Agent shall then
disburse said Deposit in accordance with said direction, or (ii) in the event of
litigation between Seller and Purchaser, the Escrow Agent shall deliver the
Deposit to the Clerk of the Court in which said litigation is pending, or (iii)
the Escrow Agent takes such affirmative steps as the Escrow Agent may, in the
Escrow Agent's reasonable opinion, elect in order to terminate the Escrow
Agent's duties including, but not limited to, depositing the Deposit with the
Court and bringing an action for interpleader, the costs thereof to be borne by
whichever of Seller or Purchaser is the losing party.
(d) The Escrow Agent may act upon any instrument or other
writing believed by it in good faith to be genuine and to be signed and
presented by the proper person and it shall not be liable in connection with the
performance of any duties imposed upon the Escrow Agent by the provisions of
this Agreement, except for damage caused by the Escrow Agent's own negligence or
willful default. The Escrow Agent shall have no duties or responsibilities
except those set forth herein. The Escrow Agent shall not be bound by any
modification of this Agreement, unless the same is in writing and signed by
Purchaser and Seller, and, if the Escrow Agent's duties hereunder are affected,
unless the Escrow Agent shall have given prior written consent thereto. In the
event that the Escrow Agent shall be uncertain as to the Escrow Agent's duties
or rights hereunder, or shall receive instructions from Purchaser or Seller
which, in the Escrow Agent's opinion, are in conflict with any of the provisions
hereof, the Escrow Agent shall be entitled to hold and apply the Deposit
pursuant to clause (c) above and may decline to take any other action. The
Escrow Agent shall not charge a fee for its services as escrow agent.
25. ASSIGNMENT.
Purchaser shall have the right, at its sole option, to assign
its rights hereunder to an affiliate of Purchaser upon written notice to Seller.
26. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES;
COVENANTS; CONDITIONS.
A. Seller represents and warrants that to its knowledge after due
inquiry (a) there are no Hazardous Materials on, emanating from or affecting at
the Premises, except those in compliance with all applicable federal, state and
local laws, ordinances, rules and regulations; (b) no current owner or occupant
nor any prior owner or occupant of the Premises has received any notice or
advice from any Governmental Authority or any source whatsoever with respect to
Hazardous Materials on, at, emanating from or affecting the Premises; (c) no
portion of the Premises has ever been used by Seller, or any current occupant or
operator, or any former owner, occupant or operator to generate, manufacture,
refine, produce, treat, store, handle, dispose of, transfer, process or
transport Hazardous Materials, whether or not any of those parties has received
notice or advice from any Governmental Authority or other source with respect
thereto; (d) no portion of the Premises is now, or has ever been used as a
"Major Facility," and Seller has not used, and does not intend to use, any
portion of the Premises for that purpose; (e) Hazardous Materials have not been
transported from the Premises to another location which is not in compliance
with all applicable federal, state or local environmental laws, regulations or
permit requirements; (f) the Premises does not constitute sanitary landfill as
defined by N.J.S.A. ss. 1E-3 and N.J.A.C. ss. 7:26-1.4; and (g) the Premises is
not the subject of any engineering or institutional contracts pursuant to P.L.
1993 c.139, or a groundmaster classification exception area. Seller has complied
with, and represents and warrants compliance by all occupants of the Premises
with, all applicable federal, state and local laws, ordinances, rules and
regulations, and has kept the Premises free and clear of any liens imposed
pursuant to such laws, ordinances, rules or regulations. In the event that
Seller receives any notice or advice from any Governmental Agency or any source
whatsoever with respect to Hazardous Materials on, at, emanating from or
affecting the Premises, Seller shall immediately notify Purchaser.
B. Seller represents and warrants that to its knowledge after due
inquiry, no lien has been attached to the Premises as a result of any action by
the Commissioner of the NJDEP or its successor or its designee pursuant to the
New Jersey Spill Compensation Fund as such term is defined in the Spill Act
expending monies from said fund to pay for "cleanup and removal costs" or
"natural resources" damages as a result of any "discharge" of any "hazardous
substances" on or at the Premises, as such terms are defined in the Spill Act.
Seller further represents, warrants, covenants and agrees that Seller has not in
the past, and does not now own, operate or control any Major Facility or any
hazardous or solid waste disposal facility.
C. Notwithstanding anything to the contrary contained in this
Agreement, the obligation of the Purchaser to pay the Cash Payment and otherwise
close title to the Premises on the Closing Date shall be subject to the
condition that Seller obtain a Letter of Non-Applicability, which Seller shall
promptly apply for and diligently pursue, pursuant to ISRA from the Industrial
Site Evaluation Element or its successor (hereinafter called the "Element") of
the NJDEP, on or before the date (hereinafter called the "ISRA Compliance
Date"), that is thirty (30) days after the Execution Date. If this condition is
not satisfied on or before the ISRA Compliance Date, Purchaser shall have the
right to extend the ISRA Compliance Date or to terminate this Agreement, in
which event this Agreement shall be rendered null and void and of no further
force or effect, Seller shall promptly reimburse Purchaser for the costs of
obtaining its title search, appraisal and any survey of the Premises obtained by
Purchaser, the Deposit shall promptly be paid to Purchaser, and neither party
shall have any further liability or obligation to the other under or by virtue
of this Agreement.
D. Seller shall provide Purchaser with all information, reports,
studies and analysis which Seller delivered to the NJDEP in connection with the
application for and issuance of the Letter of Non-Applicability.
E. For purposes of this Agreement, the term "Environmental Documents"
shall mean all environmental documentation in the possession or under the
control of Seller concerning the Premises 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, quality assurance/quality control documentation,
correspondence to or from the Element or any other Governmental Authority,
submissions to the Element or any other municipal, county, state or federal
Governmental Authority and directives, orders, approvals and disapprovals issued
by the Element or any other Governmental Authority. Within five (5) days from
the date of this Agreement, and subsequently promptly upon receipt by Seller or
Seller's representatives, Seller shall deliver to Purchaser the following, to
the extent not previously delivered and within Seller"s possession or control:
(i) all Environmental Documents concerning or generated by or on behalf of
predecessors in title or former occupants of the Premises whether currently or
hereafter existing; (ii) all Environmental Documents concerning or generated by
or on behalf of Seller, whether currently or hereafter existing; (iii) all
Environmental Documents concerning or generated by or on behalf of current or
future occupants of the Premises, whether currently or hereafter existing; and
(iv) a description of all known operations, past and present, undertaken at the
Premises, and existing maps, diagrams and other Environmental Documents
designating the location of past and present operations at the Premises and past
and present storage of hazardous or toxic substances, pollutants or wastes, or
fill materials, above or below ground, in, on, under or about the Premises or
its environs.
F. Seller shall notify Purchaser in advance of all meetings scheduled
between Seller or Seller's representatives and NJDEP and Purchaser, and
Purchaser's representatives shall have the right, without obligation, to attend
and participate in all such meetings.
G. Seller shall indemnify, defend and hold harmless Purchaser from and
against all claims, liabilities, losses, damages, penalties and costs, foreseen
or unforeseen including, without limitation, counsel, engineering, attorney and
other professional or expert fees, which Purchaser may incur, resulting directly
or indirectly, wholly or partly, from any misrepresentation or breach of
warranty by Seller or by reason of Seller's action or non-action with regard to
Seller's obligation under this Section 26.
H. Seller further represents and warrants the following to its
knowledge, after due inquiry:
(i) No ss.104(e) informational request has been received by
Seller issued pursuant to CERCLA.
(ii) Seller has not received a written notice of intention
concerning the Premises to commence suit pursuant to the New Jersey
Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., and, to its knowledge,
there is no basis for such written notice to be issued to Seller.
(iii) The Premises is not subject to any statutory land use
regulation administered by the United States of America, Army Corps. of
Engineers or NJDEP, including, without limitation, the Coastal Area Facility
Review Act.
I. Seller shall promptly notify Purchaser of, and shall promptly
deliver to Purchaser, a certified true and complete copy of any notice (oral or
written) Seller may receive from any Governmental Authority, concerning the
Premises and a violation of any law, ordinance, rule, regulation or directive.
J. This Section 26 shall survive Closing.
27. MISCELLANEOUS
(a) If any instrument or deposit is necessary in order to
obviate a defect in or objection or exception to title, the following shall
apply: (i) any such instrument shall be in such form and shall contain such
terms and conditions as may be required by the Title Company to omit any defect,
objection or exception to title, (ii) any such deposit shall be made with the
Title Company, and (iii) Seller agrees to execute, acknowledge and deliver any
such instrument and to make any such deposit.
(b) This Agreement constitutes the entire agreement between
the parties and incorporates and supersedes all prior negotiations and
discussions between the parties.
(c) This Agreement cannot be amended, waived or terminated
orally, but only by an agreement in writing signed by the party to be charged.
(d) This Agreement shall be interpreted and governed by the
laws of the State of New Jersey and shall be binding upon the parties hereto and
their respective successors and assigns.
(e) Whenever in this Agreement there is a provision for the
return of the Deposit, the provision shall be deemed to include all interest
earned thereon and paid to Purchaser.
(f) The caption headings in this Agreement are for convenience
only and are not intended to be part of this Agreement and shall not be
construed to modify, explain or alter any of the terms, covenants or conditions
herein contained.
(g) If any term, covenant or condition of this Agreement is
held to be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such provision.
(h) Each party shall, from time to time, execute, acknowledge
and deliver such further instruments, and perform such additional acts, as the
other party may reasonably request in order to effectuate the intent of this
Agreement. Nothing contained in this Agreement shall be deemed to create any
rights or obligations of partnership, joint venture or similar association
between Seller and Purchaser. This Agreement shall be given a fair and
reasonable construction in accordance with the intentions of the parties hereto,
and without regard to or aid of canons requiring construction against Seller,
Purchaser or the party whose counsel drafted this Agreement.
(i) This Agreement shall not be effective or binding until
such time as it has been executed and delivered by all parties hereto. This
Agreement may be executed by the parties hereto in counterparts, all of which
together shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PURCHASER
MOUNT AIRY REALTY ASSOCIATES L.P.
By: Cali Sub IX, Inc.,
its general partner
By: ________________________________
Name:
Title:
SELLER
METFER - I
By: ________________________________
Name:
Title:
The undersigned is executing this Agreement in order to evidence its
agreement to be bound by the provisions of Section 12.
METFER - II
By: ________________________________
Name:
Title:
The undersigned joins in the execution of the Agreement solely for the
purpose of acknowledging the receipt of the Deposit and its agreement to hold
the Deposit in escrow in accordance with the terms hereof.
ESCROW AGENT
FIRST AMERICAN TITLE INSURANCE COMPANY
OF NEW YORK
By:________________________________
Name:
Title:
Exhibit A
(Land)
Exhibit B
(List of Personal Property)
None
Exhibit C
(Deleted Prior to Execution)
Exhibit D
(Title Exceptions)
Exhibit E
(Estoppel Certificate)
Exhibit F
(Assignment of Leases and Intangible Property)
Exhibit G
(Rent Roll)
Exhibit H
(Assignment of Service Contracts)