EXHIBIT 10.92
EXECUTION COPY
AGREEMENT OF SALE AND PURCHASE
BETWEEN
4/33 BUILDING ASSOCIATES, L.P.
AND
IMCLONE SYSTEMS INCORPORATED
PERTAINING TO
33 CHUBB WAY, BRANCHBURG, NEW JERSEY
EXECUTED EFFECTIVE AS OF
MARCH 1, 2002
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") is entered
into and effective for all purposes as of March 1, 2002 (the "EFFECTIVE DATE"),
by and between 4/33 Building Associates, L.P., a New Jersey limited partnership
("SELLER") and ImClone Systems Incorporated a Delaware corporation
("PURCHASER").
In consideration of the mutual promises, covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the meanings set forth in this Section 1.1:
"AFFILIATE" means any person or entity that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with Purchaser or Seller, as the case may be. For the purposes of
this definition, "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"AUTHORITIES" means the various governmental and quasi-governmental bodies
or agencies having jurisdiction over Seller, the Real Property, the
Improvements, or any portion thereof.
"BILLABLE OPERATING COSTS" has the meaning ascribed to such term in
Section 10.4(c).
"BUSINESS DAY" means any day other than a Saturday, Sunday or a day on
which national banking associations are authorized or required to close.
"CLOSING" means the consummation of the purchase and sale of the Property
contemplated by this Agreement, as provided for in Article X.
"CLOSING DATE" means the date on which the Closing occurs, which the
parties anticipate will be on or about, but not prior to, May 15, 2002, or such
later date to which Purchaser and Seller may hereafter agree in writing.
"CLOSING STATEMENT" has the meaning ascribed to such term in Section
10.4(a).
"CLOSING SURVIVING OBLIGATIONS" means the rights, liabilities and
obligations set forth in Sections 3.2, 3.4, 5.5, 5.6, 8.1, 8.2, 10.4, 11.1,
12.1, 12.2, 16.1 and 17.2.
"CODE" has the meaning ascribed to such term in Section 4.3.
"COMMITMENT" has the meaning ascribed to such term in Section 6.2.
"CURE NOTICE" has the meaning ascribed to such term in Section 16.2.
"DEED" has the meaning ascribed to such term in Section 10.3(a).
"DOCUMENTS" has the meaning ascribed to such term in Section 5.2.
"DUE DILIGENCE PERIOD" means the period that ends at 11:59 p.m. Eastern
Time on March 1, 2002.
"EARNEST MONEY DEPOSIT" has the meaning ascribed to such term in Section
4.1.
"EFFECTIVE DATE" has the meaning ascribed to such term in the opening
paragraph of this Agreement.
"ENVIRONMENTAL LAWS" means all federal, state and local environmental
laws, rules, statutes, directives, binding written interpretations, binding
written policies, ordinances and regulations issued by any Authorities and in
effect as of the date of this Agreement with respect to or which otherwise
pertain to or affect the Real Property or the Improvements, or any portion
thereof, the use, ownership, occupancy, or operation of the Real Property or the
Improvements or any portion thereof, or Seller, and as same have been amended,
modified or supplemented from time to time prior to the date of this Agreement,
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"),
the Hazardous Substances Transportation Act (49 U.S.C. Section 1802 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), as
amended by the Hazardous and Solid Wastes Amendments of 1984 ("RCRA"), the Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking Water
Act (42 U.S.C. Section 300f et seq.), the Clean Air Act (42 U.S.C. Section 7401
et seq.), the Clean Water Act (33 U.S.C. Section 1321 et seq.), the Solid Waste
Disposal Act (42 U.S.C. Section 6901 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Emergency Planning and Community
Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et seq.), the Radon and
Indoor Air Quality Research Act (42 U.S.C. Section 7401 note, et seq.), the
Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. Section 9601 et
seq.), the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.),
comparable state and local laws, including but not limited to Industrial Site
Recovery Act (N.J.S.A. 13:1K-6 et seq.) ("ISRA") and any and all rules and
regulations which have become effective prior to the date of this Agreement
under any and all of the aforementioned laws.
"ESCROW HOLDER" means General Land Abstract Company, One Gateway Center,
Suite 2503, Newark, New Jersey 07102 Attention: Gregory Kowalski.
"EXISTING SURVEYS" has the meaning ascribed to such term in Section 6.1.
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"GOVERNMENTAL REGULATIONS" means all laws, ordinances, rules and
regulations of the Authorities applicable to Seller or the use or operation of
the Real Property or the Improvements or any portion thereof.
"HAZARDOUS SUBSTANCES" means all (a) asbestos, radon gas, electromagnetic
waves, urea formaldehyde foam insulation and transformers or other equipment
that contains dielectric fluid containing polychlorinated biphenyls, (b) any
solid, liquid, gaseous or thermal contaminant, including smoke vapor, soot,
fumes, acids, alkalis, chemicals, waste, petroleum products or byproducts,
asbestos, PCBs, phosphates, lead or other heavy metals, chlorine, or radon gas,
(c) any solid or liquid wastes (including hazardous wastes), hazardous air
pollutants, hazardous substances, hazardous chemical substances and mixtures,
toxic substances, pollutants and contaminants, as such terms are defined in any
Environmental Law, including, without limitation, the National Environmental
Policy Act (42 U.S.C. Section 4321 et seq.), Industrial Site Recovery Act
(N.J.S.A. 13:1K-6 et seq.) and (d) any other chemical, material or substance,
the use or presence of which, or exposure to the use or presence of which, is
prohibited, limited or regulated by any Environmental Laws.
"IMPROVEMENTS" means all buildings, structures, fixtures, parking areas
and improvements located on the Real Property.
"LEASE SURRENDER" means the surrender of the Tenant Lease and the Property
by the Tenant at Closing, as evidenced by the Acknowledgement of Lease Surrender
to be entered into by the Purchaser and the Tenant, and which is intended to be
delivered at the Closing.
"LEASE SURRENDER AGREEMENT" means that certain Lease Surrender Agreement
by and between Office Interiors, Inc. and ImClone Systems, Incorporated dated as
of March 1, 2002.
"LICENSEE PARTIES" has the meaning ascribed to such term in Section 5.1.
"LICENSES AND PERMITS" means, collectively, all of Seller's right, title
and interest, to the extent assignable, in and to licenses, permits,
certificates of occupancy, approvals, dedications, subdivision maps and
entitlements now or hereafter issued, approved or granted by the Authorities in
connection with the Real Property and the Improvements, together with all
renewals and modifications thereof.
"LOSSES AND DAMAGES" has the meaning ascribed to such term in Section
5.3(b).
"OUTSIDE CLOSING DATE" means July 31, 2002.
"PERMITTED EXCEPTIONS" means and includes all of the following: (a) zoning
and building ordinances and land use regulations that apply to the Real Property
and the Improvements; (b) the lien of taxes and assessments not yet due and
payable; (c) such state of facts as would be disclosed by a physical inspection
of the Real Property and the Improvements or an update to the Existing Survey;
(d) any exceptions caused by Purchaser, its agents, representatives or
employees; (e) any matters deemed to constitute Permitted Exceptions under
Section 6.2(b). In no event shall the term "Permitted Exceptions" include any of
the matters described in Section 6.2(c).
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"PERMITTED OUTSIDE PARTIES" has the meaning ascribed to such term in
Section 5.2(b).
"PERSONAL PROPERTY" means all of Seller's right, title and interest in and
to the equipment, appliances, tools, supplies, machinery, artwork, furnishings
and other tangible personal property attached to, appurtenant to, located in and
used exclusively in connection with the ownership or operation of the
Improvements other than the personal property described on EXHIBIT B attached
hereto.
"PROPERTY" has the meaning ascribed to such term in Section 2.1.
"PROPERTY MANAGER" means The Gale Management Company, L.L.C., a Delaware
limited liability company.
"PRORATION ITEMS" has the meaning ascribed to such term in Section
10.4(a).
"PURCHASE PRICE" has the meaning ascribed to such term in Section 3.1.
"PURCHASER REPRESENTATION NOTICE" has the meaning ascribed to such term in
Section 16.2.
"PURCHASER'S INFORMATION" has the meaning ascribed to such term in Section
5.2(c).
"PURCHASER'S BROKER" has the meaning ascribed to such term in Section
11.1.
"REAL PROPERTY" means that certain parcel of real property located at 33
Chubb Way, Township of Branchburg, Block 68.06 Lot 5, Somerset County, New
Jersey, as more particularly described on EXHIBIT A attached hereto and made a
part hereof, together with all of Seller's right, title and interest, if any, in
and to the appurtenances pertaining thereto, including, but not limited to,
Seller's right, title and interest in and to the adjacent streets, alleys and
right-of-ways, and any easement rights, air rights, subsurface rights,
development rights and water rights.
"RECORDER'S OFFICE" means the land records of the Somerset County Clerk.
"RECORDS AND PLANS" means, collectively: (i) applicable books and records,
including, but not limited to, property operating statements, specifically
relating to the Improvements; (ii) all structural reviews, architectural
drawings and structural engineering, seismic, and architectural and
environmental reports, studies and certificates pertaining to the Real Property
or the Improvements; and (iii) all preliminary, final and proposed plans,
specifications and drawings of the Improvements or the Real Property or any
portion thereof. The term "Records and Plans" shall not include: (1) any
document or correspondence which would be subject to the attorney-client
privilege; (2) any document or item which Seller is contractually or otherwise
bound to keep confidential; (3) any documents pertaining to the marketing of the
Property for sale to prospective purchasers; (4) any internal memoranda, reports
or assessments of Seller, Seller's Affiliates, relating to Seller's valuation of
the Property; and (5) appraisals of the Property whether prepared internally by
Seller or Seller's Affiliates or externally.
"RENTALS" means fixed monthly rentals, additional rentals, percentage
rentals, escalation rentals (which include Tenant's prorata share of building
operation and maintenance costs and
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expenses as provided for under the Tenant Lease, to the extent the same exceeds
any expense stop specified in such Tenant Lease, if applicable), retroactive
rentals, all administrative charges, utility charges, tenant or real property
association dues, park charges applicable to the Real Property, storage rentals,
special event proceeds, temporary rents, telephone receipts, locker rentals,
vending machine receipts and other sums and charges payable by Tenant under the
Tenant Lease or from other occupants or users of the Property, but excluding
amounts received for Billable Operating Costs for the calendar year in which
Closing occurs. Rentals are "DELINQUENT" when they were due prior to the Closing
Date and payment thereof has not been made on or before the Closing Date.
"RENT ROLL" has the meaning ascribed to such term in Section 5.2(a).
"REPORTING PERSON" has the meaning ascribed to such term in Section 4.3.
"SELLER REPRESENTATION NOTICE" has the meaning ascribed to such term in
Section 16.2.
"SERVICE CONTRACTS" means all service agreements, maintenance contracts,
equipment leasing agreements, and other contracts for the provision of labor,
services, materials or supplies relating solely to the Real Property, the
Improvements or the Personal Property and under which Seller is currently paying
for services rendered in connection with or receiving revenues from the
Property, as listed and described on EXHIBIT C attached hereto, together with
all renewals, supplements, amendments and modifications thereof, and any new
such agreements entered into after the Effective Date, to the extent permitted
by Section 7.1(e). All leasing, listing, and property management agreements will
be terminated at the Closing and excluded from such term. Purchaser has
requested, and Seller has agreed, that all Service Contracts be terminated as of
the Closing Date.
"SIGNIFICANT PORTION" means damage by fire or other casualty to the Real
Property and the Improvements or a portion thereof requiring repair costs in
excess of Five Hundred Thousand and No/100 Dollars ($500,000.00).
"TENANT DEPOSIT" means the Letter of Credit deposited with Seller, as
landlord, or any other person on Seller's behalf, by the Tenant as the security
deposit under the Tenant Lease Seller will produce the original Letter of Credit
at Closing and return the original Letter of Credit to Tenant in connection with
the Lease Surrender, unless Seller has to draw on the Letter of Credit prior to
Closing for Tenant's failure to pay amounts due under the Tenant Lease.
"TENANT LEASE" means (i) the written lease, rental agreements or occupancy
agreements, and all written renewals, amendments, modifications and supplements
thereto, together with (ii) any renewals and modifications thereof for the
single tenant of the building, Office Interiors, Inc., d/b/a Dancker Sellew &
Douglas.
"TENANT" means Office Interiors, Inc., d/b/a Dancker Sellew & Douglas, and
all persons or entities leasing, renting or occupying space within the
Improvements pursuant to the Tenant Lease, but expressly excludes any
subtenants, licensees, concessionaires, franchisees or other persons or entities
whose occupancy is derived through Tenant.
"TERMINATION NOTICE" has the meaning ascribed to such term in Section 5.4.
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"TERMINATION SURVIVING OBLIGATIONS" means the rights, liabilities and
obligations set forth in Sections 5.2, 5.3, 5.6, 10.01(d), 11.1, 12.1, and 12.2,
Article XIII and Section 17.2.
"TITLE COMPANY" means General Land Abstract Company, as agent for First
American Title Insurance Company .
"TITLE DOCUMENTS" has the meaning ascribed to such term in Section 6.2(a).
"TITLE OBJECTION" and "TITLE OBJECTIONS" have the meaning ascribed to such
terms in Section 6.2(a).
"TITLE POLICY" has the meaning ascribed to such term in Section 6.3.
"TO SELLER'S KNOWLEDGE" means the present actual (as opposed to
constructive or imputed) knowledge solely of Joseph Adamo as of the Effective
Date, and recertified to the Closing Date, without any independent investigation
or inquiry whatsoever.
SECTION 1.2 REFERENCES; EXHIBITS AND SCHEDULES. Except as otherwise
specifically indicated, all references in this Agreement to Articles or Sections
refer to Articles or Sections of this Agreement, and all references to Exhibits
or Schedules refer to Exhibits or Schedules attached hereto, all of which
Exhibits and Schedules are incorporated into, and made a part of, this Agreement
by reference. The words "herein," "hereof," "hereinafter" and words and phrases
of similar import refer to this Agreement as a whole and not to any particular
Section or Article.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE
SECTION 2.1 AGREEMENT. Seller hereby agrees to sell, convey and assign to
Purchaser, and Purchaser hereby agrees to purchase and accept from Seller, on
the Closing Date and subject to the terms and conditions of this Agreement, all
of the following (collectively, the "PROPERTY"):
(a) the Real Property;
(b) the Improvements;
(c) the Personal Property, if any;
(d) all of Seller's right, title and interest, if any, in, to and under
the Licenses and Permits;
(e) all of Seller's right, title and interest, if any, to the extent
assignable or transferable, in and to all names, trade names and logos used by
Seller exclusively in the operation and identification of the Improvements;
(f) all of Seller's right, title and interest, if any, to the extent
assignable or transferable, in and to all other intangible rights, titles,
interests, privileges and appurtenances
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owned by and related to or used exclusively in connection with the ownership,
use or operation of the Real Property or the Improvements; and
(g) the Records and Plans, but only to the extent such Records and Plans
are in the possession or control of Seller, its Affiliates or the Property
Manager.
ARTICLE III
CONSIDERATION
SECTION 3.1 PURCHASE PRICE. The purchase price for the Property (the
"PURCHASE PRICE") will be Three Million Nine Hundred Eighty Five Thousand and No
/100 Dollars ($3,985,000.00) in lawful currency of the United States of America,
payable as provided in Section 3.3.
SECTION 3.2 ASSUMPTION OF OBLIGATIONS. As additional consideration for the
purchase and sale of the Property, at Closing, Purchaser will assume and agree
to discharge, perform and comply with each and every liability, duty, covenant,
or obligation of Seller resulting from, arising out of, or in any way related to
the Licenses and Permits and arising on or after the Closing Date; provided,
however, nothing contained in this Section 3.2 shall relieve or release Seller
from its covenants set forth in Section 7.1(a). Purchaser hereby indemnifies and
holds Seller harmless from and against any and all claims, liens, damages,
demands, causes of action, liabilities, lawsuits, judgments, losses, costs and
expenses (including, but not limited to, reasonable attorneys' fees and
expenses) asserted against or incurred by Seller and arising out of the failure
of Purchaser to perform its obligations pursuant to this Section 3.2. Seller
hereby indemnifies and holds Purchaser harmless from and against any and all
claims, liens, damages, demands, causes of action, liabilities, lawsuits,
judgments, losses, costs and expenses (including, but not limited to, reasonable
attorneys' fees and expenses) asserted against or incurred by Purchaser and
arising out of the failure of Seller to perform its obligations pursuant to the
Tenant Lease, any Service Contract or any of the Licenses and Permits which
shall have arisen prior to the Closing Date The provisions of this Section 3.2
will survive the Closing without limitation.
SECTION 3.3 METHOD OF PAYMENT OF PURCHASE PRICE. As and when set forth in
Section 10.2, Purchaser will deposit in escrow with the Title Company the
Purchase Price (subject to adjustments described in Section 10.4), together with
all other costs and amounts to be paid by Purchaser at Closing pursuant to the
terms of this Agreement, by Federal Reserve wire transfer of immediately
available funds to an account to be designated by the Title Company. Provided
Seller has timely performed all of its obligations under this Agreement (unless
otherwise expressly waived by Purchaser) and that all of the conditions to
Purchaser's performance under this Agreement have been satisfied (unless
otherwise expressly waived by Purchaser), no later than 2:00 p.m. Eastern Time
on the Closing Date, Purchaser will authorize the Title Company to (a) pay to
Seller by Federal Reserve wire transfer of immediately available funds to an
account to be designated by Seller, the Purchase Price (subject to adjustments
described in Section 10.4), less any costs or other amounts to be paid by Seller
at Closing pursuant to the terms of this Agreement, and (b) pay to all
appropriate payees the other costs and amounts to be paid by Purchaser at
Closing pursuant to the terms of this Agreement. Provided Purchaser has timely
performed all of its obligations under this Agreement (unless otherwise
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expressly waived by Seller) and that all of the conditions to Seller's
performance under this Agreement have been satisfied (unless otherwise expressly
waived by Seller), no later than 2:00 p.m. Eastern Time on the Closing Date,
Seller will direct the Title Company to pay to the appropriate payees out of the
proceeds of Closing payable to Seller all costs and amounts to be paid by Seller
at Closing pursuant to the terms of this Agreement.
SECTION 3.4 NO TENANCY. The Seller and the Purchaser expressly agree that
the Tenant's surrender of the Leased Premises (as that term is defined in the
Lease Surrender Agreement) on the earlier of the Date upon which the Tenant
surrenders the Tenant Lease to Purchaser under the Lease Surrender Agreement or
the Closing Date pursuant to the terms of the Lease Surrender Agreement will not
create a landlord-tenant relationship between Purchaser and Seller, and that
neither party will make any claim against the other arising out of or relating
to any purported landlord-tenant relationship. This provision shall survive
Closing.
ARTICLE IV
EARNEST MONEY DEPOSIT
SECTION 4.1 THE DEPOSIT. On or before the date that is three (3) Business
Days after the execution and delivery of this Agreement, Purchaser will deposit
with the Escrow Holder, in good funds immediately collectible by the Escrow
Holder, the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00)
(together with all interest earned thereon, the "EARNEST MONEY Deposit").
SECTION 4.2 ESCROW INSTRUCTIONS. The Earnest Money Deposit shall be held
in escrow by the Escrow Holder in accordance with the terms and provisions of an
escrow agreement by and among the Escrow Holder, Seller and Purchaser, the form
of which is attached hereto and made a part hereof as EXHIBIT D.
SECTION 4.3 DESIGNATION OF REPORTING PERSON. In order to assure compliance
with the requirements of Section 6045 of the Internal Revenue Code of 1986, as
amended (the "CODE"), and any related reporting requirements of the Code, the
parties hereto agree as follows:
(a) Provided the Escrow Holder shall execute a statement in writing (in
form and substance reasonably acceptable to the parties hereunder) pursuant to
which it agrees to assume all responsibilities for information reporting
required under Section 6045(e) of the Code, Seller and Purchaser shall designate
the Escrow Holder as the person to be responsible for all information reporting
under Section 6045(e) of the Code (the "REPORTING PERSON"). If the Escrow Holder
refuses to execute a statement pursuant to which it agrees to be the Reporting
Person, Seller and Purchaser shall agree to appoint another third party,
acceptable to Seller and Purchaser in their reasonable discretion, as the
Reporting Person.
(b) Seller and Purchaser each hereby agree:
(i) to provide to the Reporting Person all information and
certifications regarding such party as reasonably requested by the Reporting
Person or otherwise required to be provided by a party to the transaction
described herein under Section 6045 of the Code; and
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(ii) to provide to the Reporting Person such party's taxpayer
identification number and a statement (on Internal Revenue Service Form W-9 or
an acceptable substitute form, or on any other form the applicable current or
future Code sections and regulations might require and/or any form requested by
the Reporting Person), signed under penalties of perjury, stating that the
taxpayer identification number supplied by such party to the Reporting Person is
correct.
(c) Each party hereto agrees to retain this Agreement for not less than
four years from the end of the calendar year in which Closing occurred, and to
produce it to the Internal Revenue Service upon a valid request therefor.
(d) The addresses for Seller and Purchaser are as set forth in Section
14.1 hereof, and the real estate subject to the transfer provided for in this
Agreement is described in EXHIBIT A.
ARTICLE V
INSPECTION OF PROPERTY
SECTION 5.1 ENTRY AND INSPECTION.
(a) From and after the Effective Date until the expiration of the Due
Diligence Period, but subject to the provisions of this Section 5.1 and subject
to the obligations set forth in Section 5.3 below, Seller will permit Purchaser
and its authorized agents, consultants, representatives, and lenders (the
"LICENSEE PARTIES") the right to enter upon the Real Property and Improvements
at all reasonable times during normal business hours to perform inspections of
the Property, including a Phase I evaluation, and communicate with the Tenant.
Purchaser will provide to Seller notice of the intention of Purchaser or the
other Licensee Parties to enter the Real Property and/or Improvements at least
48 hours prior to such intended entry to conduct the Phase I and specify the
intended purpose therefor and the inspections and examinations contemplated to
be made. Notwithstanding anything to the contrary contained herein, no physical
testing or sampling shall be conducted during any such entry by Purchaser or any
Licensee Party upon the Real Property without Seller's specific prior written
consent, which consent may not be unreasonably withheld, delayed or conditioned.
Solely as an accommodation to Purchaser in connection with Purchaser's
contemplated ownership the Property and operation of the Property following the
Closing and provided Purchaser has not exercised its right to terminate this
Agreement pursuant to Section 5.4, Purchaser shall have the right, after the
expiration of the Due Diligence Period, to continue to conduct examinations,
inspections, tests, studies and investigations regarding the Property provided
that Purchaser complies with the provisions of this Agreement and provided
further that such continuing inspection right shall not give, and Purchaser
acknowledges that Purchaser shall not have any right to terminate this Agreement
on account of the results of any examinations, inspections, tests, studies, or
investigations regarding the Property or on account of the failure to obtain
financing for the consummation of the transactions contemplated by this
Agreement after the expiration of the Due Diligence Period.
(b) Subject to the obligations set forth in Section 5.3 below, the
Licensee Parties shall have the right to communicate directly with the
Authorities for any good faith reasonable purpose in connection with this
transaction contemplated by this Agreement. Purchaser shall be
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free to request copies of building permits, certificates of occupancy and
approved site plans and zoning compliance letters or certificates from the
Authorities without prior written notice to Seller.
SECTION 5.2 DOCUMENT REVIEW.
(a) Throughout the Due Diligence Period and, if this Agreement is not
terminated, thereafter (but subject to Section 5.1 above), Purchaser and its
authorized agents or representatives will have the opportunity to review,
inspect, examine, analyze, verify and photocopy, at the office of Seller, all
non-privileged, non-confidential and/or non-proprietary documents and materials
relating to the Property that are in Seller's possession or control
(collectively, the "DOCUMENTS"), including (without limitation) the following:
(i) assessments (special or otherwise) and ad valorem and personal property tax
bills; (ii) the most current rent roll for the Real Property and the
Improvements (the "RENT ROLL"); (iii) operating statements for the Property for
calendar year 1999, calendar year 2000 and the first ten (10) months of calendar
year 2001; and (iv) copies of the Tenant Lease, the Service Contracts, the
Licenses and Permits, and the Records and Plans. Notwithstanding the foregoing,
in no event shall Purchaser be entitled to review, inspect, examine, analyze,
verify or photocopy any materials relating to Seller's proposed sale of the
Property to, or negotiations with, Purchaser or with any other proposed prior
purchaser of the Property.
(b) Purchaser acknowledges that any and all of the Documents may be
proprietary and confidential in nature and have been provided to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Subject only to the provisions of Article XII, Purchaser agrees not to
disclose the contents of the Documents, or any of the provisions, terms or
conditions contained therein, to any party outside of Purchaser's organization
other than its attorneys, partners, accountants, consultants, advisors, lenders
or investors (collectively, the "PERMITTED OUTSIDE PARTIES"). Purchaser further
agrees that within its organization, or as to the Permitted Outside Parties, the
Documents will be disclosed and exhibited only to those persons within
Purchaser's organization or to those Permitted Outside Parties who are
responsible for, advising with respect to, or determining the feasibility of,
Purchaser's acquisition of the Property. Purchaser further acknowledges that the
Documents and other information relating to the leasing arrangements between
Seller or its Affiliates and the Tenant or prospective tenants are proprietary
and confidential in nature. Purchaser agrees not to divulge the contents of such
Documents and other information except in strict accordance with the
confidentiality standards set forth in this Section 5.2 and Article XII and
agrees to notify all of the Permitted Outside Parties of the restrictions set
forth in this Section 5.2(b). In permitting Purchaser and the Permitted Outside
Parties to review the Documents or information to assist Purchaser, Seller has
not waived any privilege or claim of confidentiality with respect thereto, no
third party benefits or relationships of any kind, either express or implied,
have been offered, intended or created by Seller, and any such claims are
expressly rejected by Seller and waived by Purchaser. Notwithstanding the
foregoing, Seller acknowledges that Purchaser is a publicly traded corporation,
and as such, Purchaser may disclose the transaction contemplated by this
Agreement in public filings with governmental agencies, as required by law.
(c) Purchaser will use its best efforts to return to Seller all copies
Purchaser and the Permitted Outside Parties have made of the Documents and all
copies of any studies, reports or
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test results regarding any part of the Property obtained by Purchaser, before or
after the execution of this Agreement, in connection with Purchaser's inspection
of the Property (collectively, "PURCHASER'S INFORMATION") not later fifteen (15)
days following the time this Agreement is terminated for any reason.
(d) Purchaser acknowledges that some of the Documents may have been
prepared by third parties and may have been prepared prior to Seller's ownership
of the Property. Purchaser hereby acknowledges that, except as expressly
provided in Section 8.1 below, Seller has not made and does not make any
representation or warranty regarding the truth, accuracy or completeness of the
Documents or the sources thereof. Seller has not undertaken any independent
investigation as to the truth, accuracy or completeness of the Documents.
(e) Notwithstanding any provision of this Agreement to the contrary, no
termination of this Agreement will terminate Purchaser's obligation pursuant to
this Section 5.2.
SECTION 5.3 ENTRY AND INSPECTION OBLIGATIONS.
(a) Purchaser agrees that in entering upon and inspecting or examining the
Property and communicating with the Tenant, Purchaser and the other Licensee
Parties will not: disturb the Tenant or interfere with its use of the Property
pursuant to the Tenant Lease; interfere with the operation and maintenance of
the Real Property or Improvements; damage any part of the Real Property, the
Improvements, or any personal property owned or held by the Tenant or any other
person or entity; injure or otherwise cause bodily harm to Seller or the Tenant,
or to any of their respective agents, guests, invitees, contractors and
employees, or to any other person or entity; permit any liens to attach to the
Real Property by reason of the exercise of Purchaser's rights under this Article
V; communicate with the service providers except as provided in this Article V;
or reveal or disclose any information obtained concerning the Property and the
Documents to anyone outside Purchaser's organization, except in accordance with
the confidentiality standards set forth in Section 5.2(b) and Article XII. If
testing or sampling are consented to by Seller, Purchaser, at its sole cost,
shall promptly repair and/restore the Property. In connection with Purchaser's
inspections, examinations, and testing or sampling to the extent consented to by
Seller, of the Property, Purchaser will: (i) maintain commercial general
liability (occurrence) insurance on terms and amounts reasonably satisfactory to
Seller covering any accident arising in connection with the presence of
Purchaser or the other Licensee Parties on the Real Property or Improvements,
and deliver a certificate of insurance verifying such coverage to Seller prior
to entry upon the Real Property or Improvements; (ii) promptly pay when due the
fees and costs of all entry and inspections, examinations, consented to testing
or sampling done by Purchaser with regard to the Property; and (iii) restore the
Real Property, the Improvements, and the Personal Property to the condition in
which the same were found before any such entry upon the Real Property and
inspection, examination, consented to testing or sampling was undertaken.
Nothing contained in this Section 5.3 shall be deemed or construed as Seller's
consent to any physical testing or sampling with respect to the Property without
compliance with the provisions of this Article V.
(b) Purchaser hereby indemnifies, defends and holds Seller and its
members, partners, directors, officers, other principals, agents, employees,
successors and assigns harmless from and against any and all liens, claims,
causes of action, damages, liabilities, demands, suits,
11
obligations to third parties, together with all losses, penalties, costs and
expenses relating to any of the foregoing (including, but not limited to, court
costs and reasonable attorneys' fees) (collectively referred to in this Section
5.3(b) as "LOSSES AND DAMAGES") arising out of any inspections, investigations,
examinations, sampling or tests that have been or will be conducted by Purchaser
or any Licensee Party, whether prior to or after the date hereof, with respect
to the Property or any violation of the provisions of this Section 5.3
(excluding any Losses and Damages incurred or suffered by Seller as a result of
Purchaser's discovery of any information or condition regarding the Property or
relating to the results of any such inspections, investigations, examinations,
samplings or tests (except to the extent Purchaser violates the terms of this
Agreement in obtaining or disseminating such discovery or the information
related thereto)).
(c) Notwithstanding any provision of this Agreement to the contrary, no
termination of this Agreement will terminate Purchaser's obligations pursuant to
this Section 5.3.
SECTION 5.4 TERMINATION. Purchaser, in its sole and absolute discretion,
by giving Seller written notice, in accordance with the provisions of Section
14.1, on or prior to the expiration of the Due Diligence Period (the
"TERMINATION Notice"), may elect to terminate this Agreement and its obligations
hereunder for any reason or no reason, in Purchaser's sole discretion, without
further liability except for the Termination Surviving Obligations. If Purchaser
fails to give Seller the Termination Notice prior to the expiration of the Due
Diligence Period, then Purchaser shall be deemed to have elected to waive its
rights to terminate this Agreement pursuant to this Section 5.4. If Purchaser
timely elects to terminate this Agreement pursuant to this Section 5.4, the
Earnest Money Deposit shall be refunded to Purchaser, upon Purchaser's
unilateral written instructions to the Escrow Holder prior to the expiration of
the Due Diligence Period, Purchaser shall promptly return the Purchaser's
Information to Seller, and this Agreement shall terminate and be of no further
force or effect except for the Termination Surviving Obligations.
SECTION 5.5 SALE "AS IS". THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER. THIS AGREEMENT REFLECTS THE
MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED OR WILL
CONDUCT TO THE EXTENT DEEMED NECESSARY OR APPROPRIATE BY PURCHASER, ITS OWN
INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN THE MATTERS REPRESENTED IN
SECTIONS 7.3, 8.1 AND 11.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF
THIS SECTION 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY
UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR
ANY OF SELLER'S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES
THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND
NEITHER IT NOR ANY OF ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY
REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER OTHER THAN THE
REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN SECTIONS 7.3,
8.1 and 11.1 OF THIS AGREEMENT, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND
OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY
PURCHASER WITH RESPECT TO THE STATUS OF TITLE , TO OR THE MAINTENANCE, REPAIR,
12
CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF,
INCLUDING, BUT NOT LIMITED TO, (a) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES
OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM
DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF
DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE
PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND
(g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH
GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE
CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF
REPAIR, "AS IS" AND "WHERE IS", WITH ALL FAULTS. Purchaser represents that it is
a knowledgeable, experienced and sophisticated purchaser of real estate, and
that it is relying on Seller's express representations and warranties set forth
in Sections 7.3, 8.1 and 11.1 of this Agreement and on its own expertise and
that of the Permitted Outside Parties in purchasing the Property. Prior to the
date hereof and during the Due Diligence Period, Purchaser has conducted and may
conduct such inspections, investigations and other independent examinations of
the Property and related matters as Purchaser deemed necessary, including, but
not limited to, the physical and environmental conditions thereof, and will rely
upon same and not upon any statements of Seller (excluding the matters expressly
represented by Seller in Sections 7.3, 8.1 and 11.1 hereof) or of any officer,
director, employee, agent or attorney of Seller. Purchaser acknowledges that all
information obtained by Purchaser was obtained from a variety of sources and
Seller will not be deemed to have represented or warranted the completeness,
truth or accuracy of any of the Documents or other such information heretofore
or hereafter furnished to Purchaser, except as expressly represented in Sections
7.3, 8.1 and 11.1 hereof. Upon Closing Purchaser will assume the risk that
adverse matters, including, but not limited to, adverse physical and
environmental conditions, may not have been revealed by Purchaser's inspections
and investigations; provided, however, that the foregoing shall not constitute a
waiver of any false or misleading representation or warranty expressly made by
Seller in Sections 7.3, 8.1 and 11.1 herein. Purchaser acknowledges and agrees
that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will
accept the Property, "AS IS, WHERE IS," with all faults. Purchaser further
acknowledges and agrees that there are no oral agreements, warranties or
representations, collateral to or affecting the Property, by Seller, any agent
of Seller or any third party. Seller is not liable or bound in any manner by any
oral or written statements, representations or information pertaining to the
Property furnished by any real estate broker, agent, employee, servant or other
person, unless the same are specifically set forth or referred to herein.
Purchaser acknowledges that the Purchase Price reflects the "as is, where is"
nature of this sale and any faults, liabilities, defects or other adverse
matters that may be associated with the Property. Purchaser, with Purchaser's
counsel, has fully reviewed the disclaimers and waivers set forth in this
Agreement, and understands the significance and effect thereof. Purchaser
acknowledges and agrees that the disclaimers and other agreements set forth
herein are an integral part of this Agreement, and that Seller would not have
agreed to sell the Property to Purchaser for the Purchase Price without the
disclaimer and other agreements set
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forth in this Agreement. The terms and conditions of this Section 5.5 will
expressly survive the Closing, will not merge with the provisions of any closing
documents and will survive recordation of the Deed.
SECTION 5.6 PURCHASER'S RELEASE OF SELLER.
(a) Seller is hereby released from all responsibility and liability to
Purchaser regarding the condition (including the presence in the soil, air,
structures, and surface and subsurface waters of Hazardous Substances or
substances that have been or may in the future be determined to be toxic,
hazardous, undesirable or subject to regulation and that may need to be
specially treated, handled and/or removed from the Property under current or
future federal, state and local laws, regulations, or guidelines), valuation,
salability or utility of the Property, or is suitability for any purpose
whatsoever except to the extent that such responsibility or liability is the
result of the material inaccuracy (if any) of Seller's representation under
Section 8.1(j) hereof. Notwithstanding any other provisions of this Agreement,
nothing herein shall be deemed or construed to prohibit Purchaser from (i)
impleading or joining Seller as a third party defendant or co-defendant in any
action, suit, hearing, or other proceeding instituted by any third party or any
Authorities with respect to any claim against Purchaser or Seller arising from
any environmental condition at the Real Property which shall have existed or is
alleged to have existed while Seller shall have been the owner or operator of
the Property (an "ENVIRONMENTAL ACTION") and (ii) seeking to enforce the
payment, by Seller, of its portion of any joint and several non-appealable final
judgment against Seller and Purchaser arising from or as a result of any such
Environmental Action.
(b) Purchaser acknowledges that it has inspected and/or has or will have
the opportunity to inspect the Property, observed and/or has or will have the
opportunity to observe its physical characteristics and existing conditions, and
had or has or will have the opportunity to conduct such investigation and study
on and of the Property and adjacent areas as Purchaser deemed or deems
necessary. Subject to Seller's responsibility for any breach of the warranties
and representations contained in Sections 7.3, 8.1 and 11.1 of this Agreement
and subject to the provisions of the last sentence of Section 5.6(a), Purchaser
hereby waives any and all objections to or complaints (including, but not
limited to, actions based on federal, state or common law and any private right
of action under CERCLA, RCRA, ISRA or any other state and federal law to which
the Property is or may be subject) regarding physical characteristics and
existing conditions, including, without limitation, structural and geologic
conditions, subsurface soil and water conditions and solid and hazardous waste
and Hazardous Substances on, under, adjacent to or otherwise affecting the
Property. Purchaser further hereby assumes the risk of changes in applicable
laws and regulations relating to past, present and future environmental
conditions on the Property, and the risk that adverse physical characteristics
and conditions, including, without limitation, the presence of Hazardous
Substances or other contaminants, may not be revealed by its investigation.
(c) The provisions of this Section 5.6 shall survive either (i) the
Closing and the recordation of the Deed, and shall not be deemed merged into the
Deed upon its recordation, or (ii) any termination of this Agreement.
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SECTION 5.7 ISRA. The Seller acknowledges and agrees that the Seller shall
be responsible to take all necessary and required action in connection with,
arising from or relating to compliance with the provisions of any Environmental
Laws in connection with the sale and conveyance of the Property to the
Purchaser. Notwithstanding the foregoing, Purchaser has entered into a Lease
Surrender Agreement with Tenant dated as of March 1, 2002, in which agreement,
Tenant has agreed to submit an Application/Affidavit to the New Jersey
Department of Environmental Protection ("NJDEP") requesting a letter of
non-applicability from NJDEP (the "LNA") for the Real Property. The Seller shall
cooperate with Tenant to complete the Application/Affidavit and Tenant shall
deliver a copy of the LNA, together with a copy of the Application/Affidavit in
request therefor, to the Purchaser at or prior to Closing.
If Tenant or Seller is unable to obtain the LNA, Purchaser shall have the
option of (i) terminating this Agreement and receiving a return of the Earnest
Money Deposit, and thereafter, neither party shall have any remaining
obligations under this Agreement, except for the Termination Surviving
Obligations or (ii) continuing with the purchase of the Property.
ARTICLE VI
TITLE AND SURVEY MATTERS
SECTION 6.1 SURVEY. Prior to the execution and delivery of this Agreement,
Seller has delivered to Purchaser a copy of that certain survey of the Real
Property and the Improvements commonly referred to as 33 Chubb Way prepared by
Parker Engineering & Surveying P.C. dated August 1, 1997, last revised October
22, 1997, bearing International Land Services, Inc. job no. 97-07-32:025,. Said
survey, together with and any modification, update or recertification thereof
which Purchaser elected to obtain, are herein referred to as the "EXISTING
SURVEY". Seller shall not have any obligation to obtain any modification, update
or recertification of the Existing Survey. Should Purchaser obtain its own
survey and should Purchaser wish Seller to utilize its surveyor's metes and
bounds description on the Deed, then Purchaser shall have such description
certified to Seller and its attorney.
SECTION 6.2 TITLE COMMITMENT.
(a) Purchaser shall cause the Title Company to furnish to Purchaser (i) a
preliminary title report or title commitment (the "COMMITMENT") and (ii) copies
of all recorded documents referred to on Schedule B of the Commitment as
exceptions to coverage (the "TITLE DOCUMENTS").
(b) Purchaser shall have the right to object in writing to any matters
shown on the Commitment or disclosed by the Title Documents, the Existing Survey
or any updated or subsequent survey that are not Permitted Exceptions
(individually, a "TITLE OBJECTION" and collectively, the "TITLE OBJECTIONS")
prior to the date which is the tenth (10th) Business Day following the execution
and delivery of this Agreement. Purchaser shall have the further right to order
a run-down title examination prior to Closing, and to submit to Seller any Title
Objection which may have arisen since the initial Commitment. Unless Purchaser
shall timely object to any exceptions or matters shown on or disclosed by the
Title Commitment, the Title Documents, the Existing Survey or any updated or
subsequent survey, all such exceptions and matters (other than
15
exceptions relating to the matters described in Section 6.2(c)) shall be deemed
to constitute additional Permitted Exceptions. Seller may elect (but, subject to
Section 6.2(c), shall not be obligated) to remove or cause to be removed, at
Seller's expense, any Title Objections, and shall be entitled to a reasonable
adjournment of the Closing (not to exceed thirty (30) days) for the purpose of
such removal. Seller shall notify Purchaser in writing within ten (10) days
after receipt of Purchaser's notice of Title Objections whether Seller elects to
remove same. If Seller fails to provide such notice, Seller shall be deemed to
have elected not to cure such Title Objections. If Seller is unable to remove
any Title Objections in a manner acceptable to Purchaser (in Purchaser's
reasonable discretion), prior to the Closing, or if Seller elects not to remove
one or more Title Objections, Purchaser may elect, as its sole and exclusive
remedy therefor, to either (i) terminate this Agreement by giving written notice
to Seller on or before the earlier of the date that is three (3) Business Days
after receipt of Seller's notice or three (3) Business Days after the expiration
of the foregoing ten (10) day period, in which event the Earnest Money Deposit
shall be paid to Purchaser, upon Purchaser's unilateral written instructions to
the Escrow Holder within the foregoing time period, Purchaser shall return the
Purchaser's Information to Seller, and thereafter the parties shall have no
further rights or obligations hereunder except for the Termination Surviving
Obligations or (ii) waive such Title Objections, in which event such Title
Objections shall be deemed additional "Permitted Exceptions" and the Closing
shall occur as herein provided without any reduction of or credit against the
Purchase Price. If before the end of the period set forth in (i) above,
Purchaser fails to give Seller and Escrow Agent such written notice, then
Purchaser shall be deemed to have elected to take title to the Real Property
subject to such Title Objections pursuant to Section 6.2(b)(ii).
(c) Notwithstanding any provision of this Section 6.2 to the contrary,
Seller will be obligated, prior to or at the Closing, to cure exceptions to
title to the Property relating to (i) liens and security interests securing the
loan from GELCO Corporation to Seller, (ii) any other monetary liens or security
interests against Seller's interest in the Property (including, without
limitation mechanics' liens, judgment liens and tax liens against Seller's
interest in the Property), (iii) all taxes and assessments due and payable for
any period prior to the Closing, and (iv) any exception to title created after
the effective date of the Commitment that has not been consented to by
Purchaser.
SECTION 6.3 TITLE INSURANCE. At Closing, the Title Company shall issue to
Purchaser or be irrevocably committed to issue to Purchaser an owner's policy of
title insurance on a currently available ALTA Owner's Policy of Title Insurance
in accordance with the terms of the Commitment, in the amount of the Purchase
Price, insuring that fee simple title to the Real Property and the Improvements
is good and marketable and vested in Purchaser subject only to the Permitted
Exceptions (the "TITLE POLICY"), which Title Policy shall be issued at ordinary
rates. Purchaser shall be entitled to request that the Title Company provide
such other endorsements (or amendments) to the Title Policy as Purchaser may
reasonably require, provided that (a) such endorsements or amendments shall be
at no cost to, and shall impose no additional liability on, Seller, other than
such liability as shall result from the Affidavit of Title to be delivered at
Closing, (b) Purchaser's obligations under this Agreement shall not be
conditioned upon Purchaser's ability to obtain such endorsements and, if
Purchaser is unable to obtain such endorsements, Purchaser shall nevertheless be
obligated to proceed to close the transaction
16
contemplated by this Agreement without reduction of or set off against the
Purchase Price, and (c) the Closing shall not be delayed as a result of
Purchaser's request for such endorsements.
ARTICLE VII
INTERIM OPERATING COVENANTS
SECTION 7.1 INTERIM OPERATING COVENANTS. Seller covenants to Purchaser
that Seller will:
(a) OPERATIONS. From the Effective Date until the earlier of the
termination of this Agreement or Closing, continue to or cause to continue to
operate, manage and maintain the Improvements in the ordinary course of Seller's
business and substantially in accordance with Seller's present practice, subject
to ordinary wear and tear and further subject to Article IX of this Agreement;
(b) MAINTAIN INSURANCE. From the Effective Date until the earlier of the
termination of this Agreement or Closing, maintain, or cause to be maintained,
fire and extended coverage insurance on the Property which is at least
equivalent in all material respects to the insurance policies covering the Real
Property and the Improvements as of the Effective Date;
(c) COMPLY WITH GOVERNMENTAL REGULATIONS. From the Effective Date until
the earlier of the termination of this Agreement or Closing, comply in all
material respects with all Governmental Regulations applicable to the Property,
it being understood and agreed that prior to Closing Seller will have the right
to contest any such Governmental Regulations, and Seller shall not knowingly
take any action that would result in a failure to so comply;
(d) LEASES. From the Effective Date until the earlier of the termination
of this Agreement or the Closing, not enter into any new lease, or any amendment
to the Tenant Lease or terminate the Tenant Lease, without the prior written
consent of Purchaser;
(e) SERVICE CONTRACTS. From the Effective Date until the earlier of the
termination of this Agreement or Closing, not enter into any service contract
unless such service contract is terminable on thirty (30) days' notice without
penalty or unless Purchaser consents thereto in writing (and thereby
automatically agrees to assume at Closing); and
(f) NOTICES. To the extent received by Seller, from the Effective Date
until the earlier of the termination of this Agreement or Closing, promptly
deliver to Purchaser copies of written default notices, notices of lawsuits,
written threats to initiate lawsuits, and notices of violations affecting the
Property.
SECTION 7.2 Intentionally deleted
SECTION 7.3 SERVICE CONTRACTS. Seller hereby agrees to provide a notice of
termination to the applicable service provider under all Service Contracts in a
timely manner such that the Service Contracts shall terminate on or before the
Closing Date. Seller shall have no obligation to replace any of the Service
Contracts, such obligation to be the sole
17
responsibility of Purchaser. The existing management agreement between Property
Manager and Seller shall be deemed to automatically terminate upon the sale of
the Property and Purchaser has no obligations with respect thereto. In
accordance with the definition of Service Contracts, the Property Manager's
management agreement shall be not be provided to Purchaser.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.1 SELLER'S REPRESENTATIONS AND WARRANTIES. The following,
together with the representations and warranties set forth in Sections 7.3 and
11.1, constitute the sole representations and warranties of Seller. Subject to
the limitations set forth in Article XVI of this Agreement, Seller represents
and warrants to Purchaser the following:
(a) STATUS. Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of New Jersey.
(b) AUTHORITY AND CONSENTS. Seller has the full power and authority to
execute and deliver this Agreement and perform its obligations hereunder and
under all documents delivered pursuant to this Agreement. The execution and
delivery of this Agreement and the performance of Seller's obligations hereunder
have been or will be duly authorized by all necessary action on the part of
Seller, and this Agreement constitutes the legal, valid and binding obligation
of Seller, subject to equitable principles and principles governing creditors'
rights generally. No consent, waiver, approval or authorization is required from
any person or entity (that has not already or will not be obtained prior to
Closing) in connection with the execution and delivery of this Agreement by
Seller or the performance by Seller of the transactions contemplated hereby.
Seller has obtained general partner approval for the sale on the terms and
conditions set forth herein but has not yet obtained the necessary consent of a
majority in interest of certain minority partners of the Seller. Accordingly,
the validity of this representation and the consummation of the Closing shall be
conditioned upon and subject to Seller's receipt of such partner approval, which
if not obtained prior to Closing, shall entitle (i) the parties to adjourn the
Closing Date until any mutually acceptable date up to and including the Outside
Closing Date or (ii) Purchaser, at its sole election, to terminate this
Agreement. In the event that the parties adjourn the Closing Date pursuant to
this Section 8.1(b), Seller shall reimburse Purchaser for any payments made to
Tenant up to the date of Closing from Purchaser pursuant to Section 7(d) of the
Lease Surrender Agreement. In the event that Purchaser terminates this Agreement
due to Seller's failure to obtain such minority partner approval prior to the
Closing Date or any adjourned Closing Date pursuant to this Section 8.1(b),
Seller shall (i) return the Deposit, together with all interest earned thereon,
to Purchaser; (ii) reimburse Purchaser for the Deposit pursuant to the Lease
Surrender Agreement and (iii) reimburse Purchaser for any payments actually paid
from Purchaser to Tenant pursuant to Section 7(d) of the Lease Surrender
Agreement. Reimbursement payments due from Seller to Purchaser pursuant to this
Section 8.1(b) shall be due and payable within three (3) business days of
Seller's receipt of written proof of Purchaser's payment to Tenant under the
Lease Surrender Agreement.
(c) NON-CONTRAVENTION. The execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby
will not violate any
18
judgment, order, injunction, decree, regulation or ruling of any court or
Authority or conflict with, result in a breach of, or constitute a default under
the organic documents of Seller, any note or other evidence of indebtedness, any
mortgage, deed of trust or indenture, or any lease or other material agreement
or instrument to which Seller is a party or by which it is bound.
(d) SUITS AND PROCEEDINGS. Except as listed in EXHIBIT G, there are no
legal actions, suits or similar proceedings pending and served, or to Seller's
Knowledge, threatened against Seller or the Property, which are not adequately
covered by existing insurance or, if adversely determined, would adversely
affect the value of the Property, the continued operations thereof, or Seller's
ability to consummate the transactions contemplated hereby. There are no legal
actions, suits or similar proceedings related to the condemnation of all or any
portion of the Property pending and served, or to Seller's Knowledge threatened
against the Property.
(e) NON-FOREIGN ENTITY. Seller is not a "foreign person" or "foreign
corporation" as those terms are defined in the Code and the regulations
promulgated thereunder.
(f) TENANT. As of the Effective Date, the Tenant, as set forth on EXHIBIT
H attached hereto, constitutes all of the Tenants from whom Seller is currently
accepting rental payments. There are no written leases or occupancy agreements
affecting the Property to which Seller is a party or of which Seller has
knowledge with any parties other than with the Tenant listed on EXHIBIT H.
(g) SERVICE CONTRACTS. To Seller's Knowledge, none of the service
providers listed on EXHIBIT C is in default under any Service Contract. To
Seller's Knowledge, the Documents made available to Purchaser pursuant to
Section 5.2 hereof include copies of all Service Contracts listed on EXHIBIT C
under which Seller is currently paying for services rendered in connection with
the Property.
(h) NO VIOLATIONS. To Seller's Knowledge, Seller has not received prior to
the Effective Date any written notification from an Authority (i) that the Real
Property or the Improvements are in violation of any applicable fire, health,
building, use, occupancy or zoning laws or (ii) that any work is required to be
done upon or in connection with the Real Property or the Improvements where such
work remains outstanding and, if unaddressed would become a violation of law or
have an adverse affect on the use of the Real Property and the Improvements as
currently owned and operated.
(i) INSURANCE. To Seller's Knowledge, Seller has not received any written
notice from any insurance company or board of fire underwriters of any defects
or inadequacies in or on the Real Property or the Improvements or any part or
component thereof that would adversely affect the insurability of the Real
Property or the Improvements or cause any increase in the premiums for insurance
for the Real Property or the Improvements. The Real Property is located in a
flood zone and Federal Flood insurance is available.
(j) ENVIRONMENTAL. To Seller's Knowledge, Seller has not received written
notice of violation of any Environmental Law from any Authorities or from any
contiguous property owner.
19
(k) BANKRUPTCY. Seller is not in the hands of a receiver, and Seller has
not committed any act of bankruptcy or insolvency.
(l) SPECIAL ASSESSMENTS. To Seller's Knowledge, no special assessments
have been levied or are threatened or pending against all or any part of the
Property.
(m) PROPERTY RIGHTS. There are no leases, occupancy agreements or similar
agreements giving any person or entity any post-Closing rights to use, occupy or
operate on the property or any portion thereof or otherwise affecting or
relating to the Property other than the Leases .
(n) RIGHTS TO PURCHASE. There are no options or other written agreements
with respect to the sale of all or any part of the Property, and no person or
entity has any option, right of first refusal or right of first offer to
purchase all or any part of the Property, which will not be discharged or waived
prior to or at the time of Closing.
(o) MATERIAL LATENT DEFECTS. To Seller's Knowledge, there are no material
latent defects affecting the Property.
(p) UNDERGROUND STORAGE TANKS. To Seller's Knowledge, there are no
underground storage tanks at or under the Property.
( q ) ENVIRONMENTAL CONDITIONS. To Seller's Knowledge, there does not
exist on the Property any environmental condition or matter which would require
remediation or other corrective action pursuant to any Environmental Laws.
(r) HAZARDOUS SUBSTANCES. To Seller's Knowledge, Seller has not used,
treated, stored or disposed of any Hazardous Substances at the Property in
violation of any Environmental Laws and no Hazardous Substances have been used,
treated, stored or disposed of at the Property in violation of any Environmental
Laws.
SECTION 8.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser
represents and warrants to Seller the following:
(a) STATUS. Purchaser is a corporation duly organized and validly existing
under the laws of the State of Delaware.
(b) AUTHORITY. Purchaser has the full power and authority to execute and
deliver this Agreement and perform its obligations hereunder and under all
documents delivered pursuant to this Agreement. The execution and delivery of
this Agreement and the performance of Purchaser's obligations hereunder have
been or will be duly authorized by all necessary action on the part of Purchaser
and this Agreement constitutes the legal, valid and binding obligation of
Purchaser, subject to equitable principles and principles governing creditors'
rights generally.
(c) NON-CONTRAVENTION. The execution and delivery of this Agreement by
Purchaser and the consummation by Purchaser of the transactions contemplated
hereby will not violate any judgment, order, injunction, decree, regulation or
ruling of any court or Authority or conflict with, result in a breach of, or
constitute a default under the organic documents of Purchaser, any
20
note or other evidence of indebtedness, any mortgage, deed of trust or
indenture, or any lease or other material agreement or instrument to which
Purchaser is a party or by which it is bound.
(d) CONSENTS. No consent, waiver, approval or authorization is required
from any person or entity (that has not already been obtained) in connection
with the execution and delivery of this Agreement by Purchaser or the
performance by Purchaser of the transactions contemplated hereby.
ARTICLE IX
CONDEMNATION AND CASUALTY
SECTION 9.1 SIGNIFICANT CASUALTY. Subject to the provisions of this
Article IX, Seller shall bear the risk of all loss, destruction or damage to the
Real Property and Improvements from any and all causes up to the Closing. If,
prior to the Closing Date, all or any portion of the Real Property and
Improvements is destroyed or damaged by fire or other casualty, Seller will
promptly notify Purchaser of such casualty. If all or a Significant Portion of
the Real Property and Improvements shall have been damaged, Purchaser will have
the option to terminate this Agreement upon notice to Seller given not later
than fifteen (15) days after receipt of Seller's notice. If this Agreement is
terminated, the Earnest Money Deposit will be returned to Purchaser, Purchaser
shall return the Purchaser's Information to Seller, and thereafter neither
Seller nor Purchaser will have any further rights or obligations to the other
hereunder except with respect to the Termination Surviving Obligations. If
Purchaser does not elect to terminate this Agreement, Seller will not be
obligated to repair such damage or destruction but (a) Seller will assign and
turn over to Purchaser all of the insurance proceeds net of reasonable
collection costs (or, if such have not been awarded, all of its right, title and
interest therein, pursuant to an assignment agreement reasonably acceptable to
Purchaser) payable with respect to such fire or other casualty and (b) the
parties will proceed to Closing pursuant to the terms hereof without abatement
of the Purchase Price, except that Purchaser will receive credit for any
insurance deductible or co-pay amount. Purchaser's reasonable consent shall be
required prior to Seller settling any loss with its insurance carrier.
SECTION 9.2 CASUALTY OF LESS THAN A SIGNIFICANT PORTION. If less than a
Significant Portion of the Real Property or the Improvements is damaged as
aforesaid, then (a) the Closing will occur without abatement of the Purchase
Price (except that Purchaser will receive a credit for any insurance deductible
or co-pay amount), (b) Seller will not be obligated to repair such damage or
destruction, and (c) Seller will credit to Purchaser at Closing an amount equal
to (i) the reasonably estimated cost of repair of such casualty as, for purposes
of this Section 9.2, made by a reputable general contractor in the Branchburg
area who regularly performs the type of work required and is reasonably
acceptable to Purchaser and (ii) the estimated amount of post-closing rental
abatement as a result of such casualty as reasonably estimated by Seller and
reasonably approved by Purchaser.
SECTION 9.3 CONDEMNATION OF PROPERTY. If prior to Closing, there is a
condemnation or sale in lieu of condemnation of all or any portion of the Real
Property or the Improvements, Seller shall promptly notify Purchaser of such
condemnation or sale. In the event of (a) a condemnation or sale in lieu of
condemnation of all or a Significant Portion of the Real Property
21
and the Improvements, (b) a condemnation or sale in lieu of condemnation of any
portion of the Real Property or the Improvements that is not a Significant
Portion of the Property but that causes the remainder of the Real Property and
the Improvements to no longer be in compliance with applicable law
("grandfathering" as a pre-existing use or pre-existing structure constituting
compliance for this purpose), (c) a condemnation or sale in lieu of condemnation
of any portion of the Real Property that affects access to the Real Property or
reduces the available parking within the Real Property, or (d) a condemnation or
sale in lieu of condemnation of any portion of the buildings on the Real
Property, prior to the Closing, Purchaser will have the option, by providing
Seller written notice within fifteen (15) days after receipt of Seller's notice
of such condemnation or sale, of terminating this Agreement and Purchaser's
obligations under this Agreement. In the event Purchaser does not terminate this
Agreement pursuant to the preceding sentence or is not entitled to terminate
this Agreement pursuant to the preceding sentence, Seller will assign to
Purchaser, pursuant to an assignment agreement reasonably acceptable to
Purchaser and Seller, any and all claims for the proceeds of such condemnation
or sale to the extent the same are applicable to the Real Property and the
Improvements, and Purchaser will take title to the Property with the assignment
of such proceeds and subject to such condemnation and without reduction of the
Purchase Price. Should Purchaser elect to terminate Purchaser's obligations
under this Agreement under the provisions of this Section 9.3, the Earnest Money
Deposit will be returned to Purchaser, Purchaser shall return the Purchaser's
Information to Seller, and neither Seller nor Purchaser will have any further
obligation under this Agreement except for the Termination Surviving
Obligations. Notwithstanding anything to the contrary herein, if any eminent
domain or condemnation proceeding is instituted (or notice of same is given)
solely for the taking of any subsurface rights for utility easements or for any
right-of-way easement, and the taking does not materially affect the value or
enjoyment of the Real Property and the Improvements for their current use or
Purchaser's anticipated use, Purchaser will not be entitled to terminate this
Agreement as to any part of the Property, but any award resulting therefrom will
be assigned to Purchaser at Closing, pursuant to an assignment agreement
reasonably acceptable to Purchaser and Seller, and will be the exclusive
property of Purchaser upon Closing.
ARTICLE X
CLOSING
SECTION 10.1 CLOSING. (a)The Closing of the sale of the Property by
Seller to Purchaser will occur on or about the Closing Date through the escrow
established with the Title Company. The Closing is intended to occur
simultaneously with the Lease Surrender, and the parties agree to cooperate with
each other to effect the simultaneous Closing of the transaction contemplated by
this Agreement and the Lease Surrender. The parties shall endeavor to conduct
Closing by depositing with the Title Company all closing documents prior to or
on the Closing Date and shall endeavor to finalize all Proration Items (to the
extent adjusted between Seller and Purchaser) and the Closing Statement no later
than one (1) Business Day prior to Closing. Each party (or its counsel) shall
deliver appropriate closing instructions to the Title Company with respect to
implementing the provisions of this Article. At Closing, the events set forth in
this Article X will occur, it being understood that the performance or tender of
performance of all matters set forth in this Article X are mutually concurrent
conditions which may be waived by the party for whose benefit they are intended.
22
(b) Notwithstanding the foregoing, the parties acknowledge that Purchaser
has made an application to the Branchburg Township Planning Board, seeking
certain approval for site improvements and changes to the use of the Property
(the "APPROVAL"), which Approval has been granted, subject to the statutory time
under the New Jersey Municipal Land Use Law within which a legal action or
appeal may be filed contesting the Approval. In the event a third party legal
action or appeal is taken contesting such Approval, Purchaser may adjourn the
Closing until the Outside Closing Date to have a final, unappealable decision
rendered affirming the Approval. If Purchaser shall not have (x) received such
final, unappealable decision affirming the Approval and proceeded to Closing on
or before the Outside Closing Date, or (y) at Purchaser's option, proceeded to
Closing on or before the Outside Closing Date without such final, unappealable
decision, then unless the Outside Closing Date shall be extended by mutual
agreement of the parties, either party may by written notice to the other party
within five (5) Business Days thereafter elect to terminate this Agreement.
Purchaser may void Seller's election to terminate by waiving the contingency for
such final, unappealable decision in writing within five (5) days of receipt of
Seller's termination notice and proceeding promptly to Closing. If termination
is caused by Purchaser's inability to obtain necessary final, unappealable
Approval from the municipality, then upon termination, the Earnest Money Deposit
shall be returned to Purchaser, and neither party shall have any remaining
obligations to the other under this Agreement, except for the Termination
Surviving Obligations.
(c) Purchaser shall notify Seller promptly if any third party appeal of
the Approval is taken. Purchaser shall be permitted to defend an appeal at the
sole cost of Purchaser and subject to (1) Purchaser providing prior written
notice to Seller; (2) Purchaser keeping Seller informed of all issues with
respect to the appeal; and (3) Purchaser defending, indemnifying and holding
harmless the Seller as to any loss, cost, damage or claim (including reasonable
attorney fees) arising out of or related to Purchaser's appeal. Notwithstanding
anything to the contrary contained in this Section or this Agreement, in no
event shall Seller be required to consent to nor shall Purchaser be permitted to
defend or pursue an appeal beyond the Outside Closing Date, as same may be
extended by mutual agreement of the parties.
(d) Purchaser agrees and acknowledges that, within thirty (30) days of the
conclusion of the expiration or earlier termination of this Agreement, Purchaser
will, at its sole cost and responsibility, cause the full and final dismissal,
removal or settlement of title record, if any, of such appeal action to the
extent that same are within Purchaser's control, which provision shall survive
expiration or termination of this Agreement.
SECTION 10.2 PURCHASER'S CLOSING OBLIGATIONS. On or before the Closing
Date, Purchaser, at its sole cost and expense, will deliver the following items
in escrow with the Title Company pursuant to Section 3.3 for delivery to Seller
at Closing as provided herein:
(a) The Purchase Price, after all adjustments are made at the Closing as
herein provided, by Federal Reserve wire transfer of immediately available
funds, in accordance with the timing and other requirements of Section 3.3;
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(b) Counterpart originals of the Acknowledgement of Lease Surrender and
Lease, Surrender Agreement duly executed by Purchaser and Tenant.
(c) Fully executed original of Release duly executed by Seller and Tenant;
(d) Evidence reasonably satisfactory to Seller that the person executing
any closing documents on behalf of Purchaser has full right, power and authority
to do so;
(e) Such other documents as may be reasonably necessary or appropriate to
effect the consummation of the transaction which is the subject of this
Agreement, including, without limitation, settlement instructions with Seller
and Escrow Holder, in form and substance acceptable to Purchaser, Seller, and
Escrow Holder and provided such documents do not increase Purchaser's
obligations or liabilities beyond those otherwise created by this Agreement;
(f) A counterpart original of the Closing Statement, duly executed by
Purchaser; and
(g) A certificate stating that all of its representations and warranties
set forth in Sections 8.2 and 11.1 are true and correct in all material
respects, duly executed by Purchaser in a counterpart form to EXHIBIT M.
SECTION 10.3 SELLER'S CLOSING OBLIGATIONS. On or before the Closing Date,
Seller, at its sole cost and expense, will deliver the following items (a), (b),
(c), (d), (e), (f), (g), (h), (l), (m), (n), (o), (p), (q) and (r) in escrow
with the Title Company, and the following items (i), (j), and (k) to Purchaser
at the Property:
(a) A Bargain and Sale Deed with Covenant Against Grantor's Acts from
Seller for the Real Property in proper statutory form for recordation in the
form attached as EXHIBIT I (the "DEED");
(b) A bill of sale for the Personal Property in the form attached hereto
as EXHIBIT J, duly executed by Seller;
(c) Evidence reasonably satisfactory to Purchaser and the Escrow Holder
that the person executing the documents delivered by Seller pursuant to this
Section 10.3 on behalf of Seller has full right, power, and authority to do so;
(d) A certificate in the form attached hereto as EXHIBIT L certifying that
Seller is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended, as well as any form or other document required
under applicable laws to be executed by Seller in connection with any transfer
tax applicable to the transaction contemplated by this Agreement;
(e) A counterpart original of the Closing Statement duly executed by
Seller;
(f) A certificate stating that all of the representations and warranties
set forth in Sections, 7.3, 8.1 and 11.1 are true and correct in all material
respects in the form attached hereto as EXHIBIT M, duly executed by Seller;
(g) Intentionally deleted;
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(h) The Letter of Credit deposited by Tenant as the Tenant Deposit, which
shall be returned by the Escrow Agent to Tenant, together with such executed
statements of Landlord as shall be required to cancel the Letter of Credit.
Notwithstanding the foregoing, Seller reserves the right to draw on the Letter
of Credit prior to the Closing to the extent draw events are triggered prior to
Closing in accordance with the terms of the Tenant Lease;
(i) The Personal Property, if any;
(j) All original Licenses and Permits in Seller's possession and control;
(k) All keys, passes, lock combinations, pass cards, remote control access
devices, security codes, computer software operating building systems, and other
devices relating to the operation of the Improvements which are in Seller's
possession and which Seller has the right to transfer;
(l) Affidavit of Title in standard form;
(m) A Form 1099 Information Statement as required by the Internal Revenue
Code (to be supplied by Purchaser's title company);
(n) The most recent tax bills for the Property;
(o) Payoff letters or releases with respect to any mortgages or liens
encumbering the Property;
(p) A copy of any other documents required to be delivered by Seller under
this Agreement if not theretofore delivered, to the extent any such documents
are in Seller's possession;
(q) If required by the Township to transfer title, a certificate of
occupancy, continuing certificate of occupancy or building code approval for the
Property, to be obtained at Seller's cost and expense; and
(r) Such other documents as may be reasonably necessary or appropriate to
effect the consummation of the transaction which is the subject of this
Agreement, including, without limitation, documents required by the title
company or settlement instructions with Purchaser and Escrow Holder, in form and
substance acceptable to Purchaser, Seller and Escrow Holder and provided such
documents do not increase Seller's obligation or liabilities beyond those
otherwise created by this Agreement.
SECTION 10.4 PRORATIONS.
(a) Seller and Purchaser agree to adjust, as of the Closing Date, the
following (collectively, the "PRORATION Items"): real estate taxes and
assessments only. Seller will be charged or credited for the amounts of all of
the Proration Items relating to the period up to and including the Closing Date,
and Purchaser will be charged or credited for all of the Proration Items
relating to the period after the Closing Date. Such preliminary estimated
Closing
25
prorations shall be set forth on a preliminary closing statement to be prepared
by Seller using its reasonable business judgment and submitted to Purchaser for
Purchaser's approval (which approval shall not be unreasonably withheld, delayed
or conditioned) (the "CLOSING STATEMENT"). The Closing Statement, once agreed
upon, shall be signed by Purchaser and Seller and delivered to the Title Company
for purposes of making the preliminary proration adjustment at Closing subject
to the final cash settlement provided for below. The preliminary proration shall
be paid at Closing by Purchaser to Seller (if the preliminary prorations result
in a net credit to Seller) or by Seller to Purchaser (if the preliminary
prorations result in a net credit to Purchaser) by increasing or reducing the
cash to be delivered by Purchaser in payment of the Purchase Price at the
Closing. If the actual amounts of the Proration Items are not known as of the
Closing Date, the prorations will be made at Closing on the basis of the best
evidence then available; thereafter, when actual figures are received,
re-prorations will be made on the basis of the actual figures, and a final cash
settlement will be made between Seller and Purchaser. No prorations will be made
between Seller and Purchaser in respect of Rentals, operating costs, Billable
Operating Costs or insurance premiums, and Seller's insurance policies will not
be assigned to Purchaser. All adjustments other than the specified Proration
Items shall be made by Seller, as landlord, and Tenant, as tenant, which
adjustments shall be made in accordance with the Lease as if the Closing Date
and Lease Surrender were the expiration date of the Lease. Final readings and
final billings for utilities will be made as of the Closing Date, in which event
no proration will be made at the Closing with respect to utility bills,
otherwise, such prorations shall be made between Seller and Tenant, as
aforesaid, for the period up to and including the Closing Date, and between
Tenant and Purchaser for the period after the Closing Date. Seller will be
entitled to all deposits presently in effect with the utility providers, and
Purchaser will be obligated to make its own arrangements for deposits with the
utility providers. Purchaser will use reasonable efforts to give Seller ten (10)
business days notice of the Closing Date to allow Seller adequate time to
arrange for final readings and calculation of all prorations. The provisions of
this Section 10.4 will survive the Closing for nine (9) months.
(b) Purchaser will cause to be paid or turned over to Seller, in the form
received by Purchaser, all Rentals, if any, received by Purchaser after Closing
and attributable to the Tenant Lease for any period prior to the Closing Date.
Purchaser will have no liability for the failure to collect any such amounts and
will not be required to take any other legal action to enforce collection of any
such amounts owed to Seller by the Tenant of the Property. After the Closing
Date, Seller may collect Delinquent Rentals and billings described in Section
10.4(d) below from Tenant and take other legal non-possessory action to enforce
collection of any such amounts, provided, however, in no event will Seller have
the right to threaten termination of the Tenant Lease or institute any eviction
or ejectment proceedings.
(c) Seller, using its reasonable business judgment, will prepare, at least
seven (7) days prior to the Closing Date, a reconciliation as of the Closing
Date of the amounts of all billings and charges for Tenant's use of water &
sewer, operating costs and tax escalations (collectively, "BILLABLE OPERATING
COSTS") comparing actual electricity and operating costs escalations for the
year-to-date until the Closing Date with Seller's actual collections of Billable
Operating Costs that have actually been charged to Tenant for the calendar year
in which Closing occurs and submit such reconciliation to Tenant for its
approval. All adjustments of Billable Operating Costs shall be conducted by
Seller and Tenant. In no event will Purchaser be responsible for any adjustment
on account of Billable Operating Costs. If more amounts have
26
been expended for Billable Operating Costs than have been billed to and
collected from Tenant for Billable Operating Costs, Seller will seek to collect
such difference from Tenant at Closing. If more amounts have been collected from
Tenant for Billable Operating Costs than have been expended for Billable
Operating Costs, Seller will remit to Tenant at Closing such excess collected
amount. Purchaser and Seller agree that such proration of Billable Operating
Costs at the Closing will fully relieve Purchaser from any responsibility to
Tenant or Seller for such matters. In this regard, Seller will be solely
responsible for (i) seeking collection from Tenant of the amount of any Billable
Operating Costs not previously collected, and (ii) where appropriate,
reimbursing Tenant for amounts attributable to Billable Operating Costs as may
be necessary based on annual reconciliations for Billable Operating Costs for
all calendar years including the calendar year in which Closing occurs. (The
provisions of this subsection do not apply to Billable Operating Costs for the
calendar year preceding the calendar year in which Closing occurs, the same
being governed by Section 10.4(b) above.)
(d) With respect to specific tenant billings for work orders, special
items performed or provided at the request of Tenant, other specific services,
and specific billings for Billable Operating Costs or other additional rents and
amounts due which relate to the foregoing specific services rendered by Seller
prior to the Closing Date, Seller may seek to collect same from Tenant in
accordance with the Lease and Purchaser shall have no responsibility therefor.
(e) Nothing contained in this Agreement shall obligate or be deemed to
obligate Purchaser to pay or reimburse Seller for any Commissions, tenant
improvement costs or other expenditures with respect to the existing Tenant
Lease.
SECTION 10.5 DELIVERY OF REAL PROPERTY. Upon completion of the Closing,
Seller will deliver to Purchaser possession of the Real Property, subject to the
Tenant Lease and the Permitted Exceptions.
SECTION 10.6 COSTS OF TITLE COMPANY AND CLOSING COSTS. Costs of the Title
Company and other Closing costs incurred in connection with the Closing will be
allocated as follows:
(a) Purchaser will pay (i) all premiums and other costs for the Title
Policy, including, but not limited to, any endorsements (except for those
insuring over remaining Title Objections) or deletions, as provided for in
Section 6.2(b), (ii) all premiums and other costs for any mortgagee policy of
title insurance, if any, including, but not limited to, any endorsements or
deletions, (iii) all costs for any modification, update or recertification of
the Existing Surveys which Purchaser elected to obtain, (iv) Purchaser's
attorney's fees, (v) one-half of the Title Company's escrow fees, if any, and
(vi) all recording fees.
(b) Seller will pay (i) the cost of any endorsements to the Title Policy
that insure over remaining Title Objections pursuant to Section 6.2(b),if so
agreed by Purchaser, (ii) one-half of the Title Company's escrow fees, if any,
(iii) all documentary transfer taxes and deed recordation taxes, and (iv)
Seller's attorneys' fees.
(c) Any other costs and expenses of Closing not provided for in this
Section 10.6 shall be allocated between Purchaser and Seller in accordance with
the custom in Somerset County, New Jersey.
27
(d) If the Closing does not occur for any reason whatsoever, the costs
incurred through the date of termination will be borne by the party incurring
same.
SECTION 10.7 Intentionally Deleted.
ARTICLE XI
BROKERAGE
SECTION 11.1 BROKER. Seller agrees to pay to Colliers Houston & Co.
("PURCHASER'S BROKER") a real estate commission at Closing (but only in the
event of Closing in strict compliance with this Agreement) in an amount equal to
Two Hundred Thousand and No/100 Dollars ($200,000.00) and such commission to
Purchaser's Broker shall be reflected on the Closing Statement as a charge to be
paid by the Seller. Purchaser represents that the payment of the commission by
Seller to Purchaser's Broker will fully satisfy the obligations of Purchaser for
the payment of a real estate commission to Purchaser's Broker in connection with
this Agreement and the Closing. Other than as stated in this Section 11.1,
Purchaser and Seller represent to the other that no real estate brokers, agents
or finders' fees or commissions are due or will be due or arise in conjunction
with the execution of this Agreement or consummation of this transaction by
reason of the acts of such party, and Purchaser and Seller will indemnify and
hereby agree to hold the other party harmless from any brokerage or finder's fee
or commission claimed by any person asserting his entitlement thereto at the
alleged instigation of the indemnifying party for or on account of this
Agreement or the transactions contemplated hereby. The provisions of this
Article XI will survive any Closing or termination of this Agreement.
ARTICLE XII
CONFIDENTIALITY
SECTION 12.1 CONFIDENTIALITY. Seller and Purchaser each expressly
acknowledges and agrees that the transactions contemplated by this Agreement and
the terms, conditions, and negotiations concerning the same will be held in the
strictest confidence by each of them and will not be disclosed by either of them
except to their respective legal counsel, accountants, consultants, advisors,
officers, members, partners, directors, shareholders, investors, and lenders,
and to the Title Company, Escrow Holder, and Broker, and except and only to the
extent that such disclosure may be necessary for their respective performances
hereunder. Purchaser further acknowledges and agrees that, unless and until the
Closing occurs and except as set forth in Section 5.2(b) and Article XII, all
information obtained by Purchaser in connection with the Property will not be
disclosed by Purchaser to any third persons without the prior written consent of
Seller. Nothing contained in this Article XII will preclude or limit either
party to this Agreement from disclosing or accessing any information otherwise
deemed confidential under this Article XII in connection with that party's
enforcement of its rights following a disagreement hereunder, or in response to
lawful process or subpoena or other valid or enforceable order of a court of
competent jurisdiction or any filings with governmental authorities required by
reason of the transactions provided for herein pursuant to an opinion of
counsel. Notwithstanding the foregoing, Seller acknowledges that Purchaser is a
publicly traded corporation, and as such,
28
Purchaser may disclose the transaction contemplated by this Agreement in public
filings with governmental agencies, as required by law. The provisions of this
Section 12.1 will survive any termination of this Agreement.
SECTION 12.2 PRESS RELEASES. Except as required by applicable law, (a)
neither party shall issue any press release, take out any advertisement, or make
any statement to the media with respect to this Agreement or the transactions
contemplated by this Agreement, without the other party's consent, which consent
may be given or withheld in such other party's reasonable discretion, (b) prior
to Closing Purchaser shall not issue any press release, take out any
advertisement, or make any statement to the media with respect to the Property,
without Seller's consent, which consent may be given or withheld in Seller's
sole discretion, and (c) following Closing Purchaser shall not issue any press
release, take out any advertisement or make any statement to the media with
respect to the Property if the same mentions Seller or any of Seller's parents,
subsidiaries, affiliates or principals by name, acronym, abbreviation, trade
name or service mark, without Seller's consent, which consent may be given or
withheld in Seller's sole discretion. The provisions of this Section 12.2 will
survive any Closing or any termination of this Agreement.
ARTICLE XIII
REMEDIES
SECTION 13.1 DEFAULT BY SELLER. IN THE EVENT THE CLOSING AND THE
TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS HEREIN PROVIDED BY REASON OF
ANY DEFAULT OF SELLER, PURCHASER, AS PURCHASER'S SOLE AND EXCLUSIVE REMEDY, MAY
ELECT BY NOTICE TO SELLER WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE SCHEDULED
CLOSING DATE, EITHER OF THE FOLLOWING: (A) TO TERMINATE THIS AGREEMENT, IN WHICH
EVENT THE EARNEST MONEY DEPOSIT SHALL BE RETURNED TO PURCHASER, PURCHASER SHALL
RETURN TO SELLER THE PURCHASER'S INFORMATION, SELLER SHALL REIMBURSE PURCHASER
FOR THE ACTUAL THIRD PARTY OUT-OF-POCKET COSTS AND EXPENSES INCURRED BY
PURCHASER IN CONNECTION WITH THIS AGREEMENT, PROVIDED, HOWEVER, SELLER SHALL
HAVE NO OBLIGATION TO REIMBURSE PURCHASER FOR MORE THAN $25,000.00, AND
THEREAFTER SELLER AND PURCHASER WILL HAVE NO FURTHER RIGHTS OR OBLIGATIONS UNDER
THIS AGREEMENT EXCEPT WITH RESPECT TO THE TERMINATION SURVIVING OBLIGATIONS, OR
(B) TO SEEK TO ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT. FAILURE OF
PURCHASER TO MAKE THE FOREGOING ELECTION WITHIN THE FOREGOING TEN (10) BUSINESS
DAY PERIOD SHALL BE DEEMED AN ELECTION BY PURCHASER TO TERMINATE THIS AGREEMENT
UNDER THE AFORESAID TERMS AND CONDITIONS THEREOF. NOTWITHSTANDING THE FOREGOING,
NOTHING CONTAINED HEREIN WILL LIMIT PURCHASER'S REMEDIES AT LAW, IN EQUITY OR AS
HEREIN PROVIDED IN THE EVENT OF A BREACH BY SELLER OF ANY OF THE CLOSING
SURVIVING OBLIGATIONS OR THE TERMINATION SURVIVING OBLIGATIONS.
29
SECTION 13.2 DEFAULT BY PURCHASER. IN THE EVENT THE CLOSING AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN DO NOT OCCUR AS PROVIDED
HEREIN BY REASON OF ANY DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE DAMAGES WHICH SELLER MAY
SUFFER. PURCHASER AND SELLER HEREBY AGREE THAT (i) AN AMOUNT EQUAL TO THE
EARNEST MONEY DEPOSIT IS A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT SELLER
WOULD SUFFER IN THE EVENT PURCHASER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE
OF THE PROPERTY, AND (ii) SUCH AMOUNT WILL BE THE FULL, AGREED AND LIQUIDATED
DAMAGES FOR PURCHASER'S DEFAULT AND FAILURE TO COMPLETE THE PURCHASE OF THE
PROPERTY, AND WILL BE SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN
EQUITY) FOR ANY DEFAULT OF PURCHASER RESULTING IN THE FAILURE OF CONSUMMATION OF
THE CLOSING, WHEREUPON THIS AGREEMENT WILL TERMINATE, PURCHASER SHALL RETURN TO
SELLER THE PURCHASER'S INFORMATION, AND SELLER AND PURCHASER WILL HAVE NO
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT WITH RESPECT TO THE TERMINATION
SURVIVING OBLIGATIONS. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN
WILL LIMIT SELLER'S REMEDIES AT LAW, IN EQUITY OR AS HEREIN PROVIDED IN THE
EVENT OF A BREACH BY PURCHASER OF ANY OF THE CLOSING SURVIVING OBLIGATIONS OR
THE TERMINATION SURVIVING OBLIGATIONS.
ARTICLE XIV
NOTICES
SECTION 14.1 NOTICES. All notices or other communications required or
permitted hereunder will be in writing, and will be given by (a) personal
delivery, or (b) professional expedited delivery service with proof of delivery,
or (c) United States mail, postage prepaid, registered or certified mail, return
receipt requested, or (d) facsimile transmission with a second copy sent by any
of the foregoing methods, sent to the intended addressee at the address set
forth below, or to such other address or to the attention of such other person
as the addressee will have designated by written notice sent in accordance
herewith and will be deemed to have been given either at the time of personal
delivery, or, in the case of expedited delivery service or mail, as of the date
of first attempted delivery at the address or in the manner provided herein, or,
in the case of facsimile transmission, upon receipt. Unless changed in
accordance with the preceding sentence, the addresses for notices given pursuant
to this Agreement will be as follows:
To Purchaser: ImClone Systems Incorporated
180 Varick Street
New York, NY 10014
Attn: John B. Landes, Esquire
Fax: (212) 645-2054
with a copy to: ImClone Systems Incorporated
22 Chubb Way
Somerville, NJ 08876
30
Attn: Mr. Paul Goldstein
Fax: (908) 218-7764
with a copy to: Wolff & Samson, P.A.
5 Becker Farm Road
Roseland, NJ 07068
Attn: Jeffrey M. Gussoff, Esquire
Fax: (973) 436-4426
To Seller: c/o The Gale Company, LLC
200 Campus Drive
Suite 200
Florham Park, New Jersey 07932
Attn: Messrs. Stephen J. Cusma and
Christopher F. Sameth
Fax: (973) 301-9501
with a copy to: c/o The Morgan Stanley Real Estate Fund II, L.P.
1585 Broadway
New York, New York 10036
Attn: Mr. John Buza
Fax: (212) 761-3288
with copy to: c/o Paine Webber Inc.
1285 Avenue of the Americas
38th Floor
New York, New York 10019
Attn: Mr. Kevin D. Cox
Fax: (212) 713-7949
ARTICLE XV
ASSIGNMENT AND BINDING EFFECT
SECTION 15.1 ASSIGNMENT; BINDING EFFECT. Purchaser will not have the right
to assign this Agreement without Seller's prior written consent, which consent
shall not be unreasonably withheld or delayed. Purchaser and Seller may each
assign its rights under this Agreement to an Affiliate of such assigning party
without the consent of the non-assigning party, provided that any such
assignment does not relieve the assigning party of its obligations hereunder.
This Agreement will be binding upon and inure to the benefit of Seller and
Purchaser and their respective successors and permitted assigns, and no other
party will be conferred any rights by virtue of this Agreement or be entitled to
enforce any of the provisions hereof. Whenever a reference is made in this
Agreement to Seller or Purchaser, such reference will include the successors and
permitted assigns of such party under this Agreement.
31
ARTICLE XVI
LIMITED SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 16.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Seller set forth in Sections 7.3, 8.1 and
11.1, together with Seller's liability for any breach before Closing of any of
Seller's interim operating covenants under Section 7.1, will survive the Closing
for a period of twelve (12) months. Purchaser will not have any right to bring
any action against Seller as a result of any untruth or inaccuracy of such
representations and warranties, or any such breach, unless and until the
aggregate amount of all liability and losses arising out of any such untruth or
inaccuracy, or any such breach, exceeds $25,000, and then only to the extent of
such excess. In addition, in no event will Seller's liability for all such
breaches exceed, in the aggregate $400,000. Notwithstanding the foregoing,
Seller's liability for a breach of Section 8.1(b) shall be valued at an
aggregate amount up to a maximum of the Purchase Price. Seller shall have no
liability with respect to any of Seller's representations, warranties and
covenants herein if, prior to the Closing, Purchaser has actual knowledge of any
breach of a covenant of Seller herein, or Purchaser obtains actual knowledge
(from whatever source, including, without limitation, as a result of Purchaser's
due diligence tests, investigations and inspections of the Property, or written
disclosure by Seller or Seller's agents and employees) that contradicts any of
Seller's representations and warranties herein, and Purchaser nevertheless
consummates the transaction contemplated by this Agreement. The Closing
Surviving Obligations will survive Closing without limitation unless a specified
period is otherwise provided in this Agreement. All other representations,
warranties, covenants and agreements made or undertaken by Seller under this
Agreement, unless otherwise specifically provided herein, will not survive the
Closing Date but will be merged into the Deed and other Closing documents
delivered at the Closing.
SECTION 16.2 NOTICE OF BREACH; SELLER'S RIGHT TO CURE. If at or prior to
the Closing, Purchaser obtains actual knowledge that any of the representations
or warranties made herein by Seller are untrue, inaccurate or incorrect in any
material respect, Purchaser shall give Seller written notice (the "PURCHASER
REPRESENTATION NOTICE") thereof within five (5) Business Days of obtaining such
knowledge (but, in any event, prior to the Closing). Purchaser's actual
knowledge shall be the actual knowledge of Paul Goldstein. If at or prior to the
Closing, Seller obtains actual knowledge that any of the representations or
warranties made herein by Seller are untrue, inaccurate or incorrect in any
material respect, Seller shall give Purchaser written notice (the "SELLER
REPRESENTATION NOTICE") thereof within five (5) Business Days of obtaining such
knowledge (but, in any event, prior to the Closing). In either such event,
Seller shall have the right to cure such misrepresentation or breach and shall
be entitled to a reasonable adjournment of the Closing (not to exceed thirty
(30) days) for the purpose of such cure by giving a written notice (a "CURE
NOTICE") to Purchaser promptly upon receipt of the Purchaser Representation
Notice or concurrently with the giving of a Seller Representation Notice, as
applicable. If Seller does not timely give a Cure Notice or does give a Cure
Notice but is unable to so cure any such misrepresentation or breach identified
in a Seller Representation Notice or a Purchaser Representation Notice, then
Purchaser, as its sole remedy for any and all such materially untrue, inaccurate
or incorrect representations or warranties, shall elect either (a) to waive such
misrepresentations or breaches of representations and warranties and consummate
the purchase and sale of the Property as contemplated hereby without any
reduction of or credit against the Purchase Price, or (b) to terminate this
Agreement by written notice given to Seller on or before
32
the Closing Date, in which event this Agreement shall be terminated, Purchaser
shall receive the Earnest Money Deposit, Purchaser shall return to Seller the
Purchaser's Information, Seller shall reimburse Purchaser for its actual third
party out-of-pocket costs incurred in connection with this Agreement, provided,
however, in no event shall Seller have any obligation to reimburse Purchaser for
an amount in excess of $25,000.00, and thereafter neither party shall have any
further rights or obligations hereunder except to the extent of the Termination
Surviving Obligations.
ARTICLE XVII
MISCELLANEOUS
SECTION 17.1 WAIVERS. No waiver of any breach of any covenant or
provisions contained herein will be deemed a waiver of any preceding or
succeeding breach thereof, or of any other covenant or provision contained
herein. No extension of time for performance of any obligation or act will be
deemed an extension of the time for performance of any other obligation or act.
SECTION 17.2 RECOVERY OF CERTAIN FEES. In the event a party hereto files
any action or suit against another party hereto by reason of any breach of any
of the covenants, agreements or provisions contained in this Agreement, then in
that event the prevailing party will be entitled to have and recover of and from
the other party all reasonable attorneys' fees and costs resulting therefrom.
For purposes of this Agreement, the term "attorneys' fees" or "attorneys' fees
and costs" shall mean the reasonable fees and expenses of counsel to the parties
hereto, which may include printing, photostating, duplicating and other
expenses, air freight charges, and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the
supervision of an attorney, and the costs and fees incurred in connection with
the enforcement or collection of any judgment obtained in any such proceeding.
The provisions of this Section 17.2 shall survive the entry of any judgment, and
shall not merge, or be deemed to have merged, into any judgment.
SECTION 17.3 CONSTRUCTION. Headings at the beginning of each article and
Section are solely for the convenience of the parties and are not a part of this
Agreement. Whenever required by the context of this Agreement, the singular will
include the plural and the masculine will include the feminine and vice versa.
This Agreement will not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. All exhibits and
schedules referred to in this Agreement are attached and incorporated by this
reference, and any capitalized term used in any exhibit or schedule which is not
defined in such exhibit or schedule will have the meaning attributable to such
term in the body of this Agreement. In the event the date on which Purchaser or
Seller is required to take any action under the terms of this Agreement is not a
Business Day, the action will be taken on the next succeeding Business Day.
SECTION 17.4 COUNTERPARTS. To facilitate execution of this Agreement, this
Agreement may be executed in multiple counterparts, each of which, when
assembled to include an original signature for each party contemplated to sign
this Agreement, will constitute a complete and fully executed original. All such
fully executed original counterparts will collectively constitute a single
agreement.
33
SECTION 17.5 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of law
or public policy, all of the other conditions and provisions of this Agreement
will nevertheless remain in full force and effect, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
adverse manner to either party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto will negotiate in good faith to modify this Agreement so as to reflect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 17.6 ENTIRE AGREEMENT. This Agreement is the final expression of,
and contains the entire agreement between, the parties with respect to the
subject matter hereof, and supersedes all prior understandings with respect
thereto. This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written
instrument, signed by the party to be charged or by its agent duly authorized in
writing, or as otherwise expressly permitted herein.
SECTION 17.7 GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED, PERFORMED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY.
SECTION 17.8 NO RECORDING. The parties hereto agree that neither this
Agreement nor any memorandum concerning it will be recorded. Nothing herein,
however, shall be deemed to prohibit the filing of a standard Notice of
Settlement in connection with this transaction.
SECTION 17.9 FURTHER ACTIONS. The parties agree to execute such
instructions to the Title Company and such other instruments and to do such
further acts as may be reasonably necessary to carry out the provisions of this
Agreement.
SECTION 17.10 NO OTHER INDUCEMENTS. The making, execution and delivery of
this Agreement by the parties hereto has been induced by no representations,
statements, warranties or agreements other than those expressly set forth
herein.
SECTION 17.11 NO PARTNERSHIP. Notwithstanding anything to the contrary
contained herein, this Agreement shall not be deemed or construed to make the
parties hereto partners or joint venturers, it being the intention of the
parties to merely create the relationship of seller and purchaser with respect
to the Property to be conveyed as contemplated hereby.
SECTION 17.12 LIMITATIONS ON BENEFITS. It is the explicit intention of
Purchaser and Seller that no person or entity other than Purchaser and Seller
and their permitted successors and assigns is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the parties
hereto, and the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
Purchaser and Seller or their respective successors and assigns as permitted
hereunder. Nothing contained in this Agreement shall under any circumstances
whatsoever be deemed or construed, or be interpreted, as making any third party
(including, without limitation, Broker) a beneficiary of any
34
term or provision of this Agreement or any instrument or document delivered
pursuant hereto, and Purchaser and Seller expressly reject any such intent,
construction or interpretation of this Agreement.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES BEGIN ON NEXT PAGE
35
IN WITNESS WHEREOF, Seller and Purchaser have respectively executed this
Agreement to be effective as of the date first above written.
PURCHASER: IMCLONE SYSTEMS INCORPORATED,
a Delaware corporation
By: /S/ John B. Landes
---------------------------------
Name: John B. Landes
Its: Senior Vice President, Legal
SELLER: 4/33 BUILDING ASSOCIATES, L.P.
a New Jersey limited partnership
By: Scott Princeton Associates, L.P., a general partner
By: Scott Princeton PW/MS LLC, its sole
general partner
By: /S/ Joseph Adamo
----------------------------------
Name: Joseph Adamo
Its: Authorized Person
By: Independence/Chubb Associates, L.P.
a general partner
By: Independence Chubb/PW/MS LLC, its sole
general partner
By: /S/ Joseph Adamo
----------------------------------
Name: Joseph Adamo
Its: Authorized Person
36
EXHIBITS
A -- Real Property Description
B -- Excluded Personal Property
C -- Service Contracts
D -- Escrow Instructions
E -- Intentionally Deleted
F -- Intentionally Deleted
G -- List of Known Suits, Actions and Proceedings
H -- Tenant List
I -- Form of Bargain and Sale Deed with Covenants Against Grantor's Acts
J -- Form of Bill of Sale
K -- Intentionally Deleted
L -- Nonforeign Certificate -FIRPTA
M -- Form of Certificate of Reaffirmation of Representations
37
EXHIBIT A
LEGAL DESCRIPTION OF THE REAL PROPERTY
All that certain Lot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Township of
Branchburg, County of Somerset, State of New Jersey:
BEING known as lot 5 block 68 F on "Amended Final Map Branchburg Township
Somerset County New Jersey" filed January 3, 1983 as Map No. 1997.
Being more particularly described as follows:
BEGINNING at a point in the southerly sideline of Chubb Way said point being
distant 1,380.74 feet southeasterly from the intersection of the said southerly
sideline of Chubb Way with the easterly sideline of U.S. Route 202 and from said
beginning point, running
(1) Along the southerly sideline of Chubb Way in a northerly direction on a
curve to the left having a radius of 530.00 feet, an arc distance of 163.55 feet
to a point of tangence; thence
(2) Continuing along same North 64 degrees 59 minutes 00 seconds East, a
distance of 188.14 feet to a point; thence
(3) South 25 degrees 01 minutes 00 seconds East, a distance of 916.05 feet to a
point; thence
(4) South 65 degrees 30 minutes 00 seconds West, a distance of 25.07 feet to an
angel point; thence
(5) South 84 degrees 00 minutes 00 seconds West, a distance of 92.40 feet to an
angle point; thence
(6) North 66 degrees 45 minutes 00 seconds West, a distance of 77.20 feet to an
angle point; thence
(7) South 63 degrees 18 minutes 59 seconds West, a distance of 144.53 feet to an
angle point; thence
(8) South 69 degrees 43 minutes 00 seconds West, a distance of 45.04 feet to a
point; thence
(9) North 24 degrees 44 minutes 39 seconds West, a distance of 853.65 feet to a
point of BEGINNING.
Also known as Lot 5, Block 68.06, Tax Map of the Township of Branchburg, County
of Somerset.
EXHIBIT B
LIST OF EXCLUDED PERSONAL PROPERTY
Any personal property owned or leased by Tenant and/or by the property
manager NOTE: Per property manager, there is no personal property at 33 Chubb
Way.
EXHIBIT C
SERVICE CONTRACTS
- --------------------------------------------------------------------------------------------------------
VENDOR/CONTRACT SERVICE PERIOD CANCELLATION
- --------------------------------------------------------------------------------------------------------
ESSI Fire panel monitoring and Semi-annual and Emergency Thirty days prior notice
emergency on call
- --------------------------------------------------------------------------------------------------------
Shauger Parking lot sweeping Twice Yearly Thirty days prior notice
- --------------------------------------------------------------------------------------------------------
Dubrows Landscaping Varies by season Thirty days prior notice
- --------------------------------------------------------------------------------------------------------
EXHIBIT D
ESCROW AGREEMENT
________________, 2002
GENERAL LAND ABSTRACT COMPANY
One Gateway Center, Suite 2503
Newark, New Jersey 07102
Attention: Gregory Kowalski
Subject: 33 Chubb Avenue, Branchburg, New Jersey
Gentlemen and Mesdames:
ImClone Systems Incorporated, a Delaware corporation ("PURCHASER") and
4/33 Building Associates, L.P. ("SELLER") have entered into that certain
Agreement of Sale and Purchase dated _____________, 2002 (the "PURCHASE
AGREEMENT").
Purchaser and Seller have selected General Land Abstract Company ("ESCROW
HOLDER") to hold, in escrow, the Earnest Money Deposit required under Section
4.1 of the Purchase Agreement. The purpose of this letter agreement (this
"LETTER") is to prescribe the specific instructions governing Escrow Holder's
obligations with respect to the Earnest Money Deposit.
Pursuant to the foregoing, the parties hereto agree as follows:
1. Seller and Purchaser hereby engage Escrow Holder to hold the Earnest
Money Deposit and Escrow Holder hereby accepts such engagement. Escrow Holder
agrees to hold in escrow all funds comprising the Earnest Money Deposit. The
Earnest Money Deposit shall be invested in a federally-insured interest bearing
account at a federally insured bank or such other investment as may be
reasonably approved by Purchaser and Seller, pursuant to the instructions
contained in the form attached hereto. All interest earned on the Earnest Money
Deposit shall accrue to the benefit of the party to whom the Earnest Money
Deposit is delivered in accordance with the terms of the Purchase Agreement.
2. If at any time Escrow Holder receives a certificate of either Seller or
Purchaser (the "CERTIFYING PARTY") stating that (a) the Certifying Party is
entitled to receive the Earnest Money Deposit pursuant to the terms of the
Purchase Agreement and a copy of the certificate was sent as provided herein to
the other party (the "OTHER PARTY") prior to or contemporaneously with the
giving of such certificate to Escrow Holder, then, unless Escrow Holder receives
contrary instructions from the Other Party within five (5) business days after
Escrow Holder's receipt of said certificate, Escrow Holder, no sooner than five
(5) business days after its receipt of said certificate, will deliver the
Earnest Money Deposit to the Certifying Party, and thereupon Escrow Holder will
be discharged and released from any and all liability hereunder. If Escrow
Holder receives contrary instructions from the Other Party within five (5)
business days following Escrow Holder's receipt of said certificate, Escrow
Holder will not so deliver the
38
Earnest Money Deposit, but will, at its option, either (x) continue to hold the
same pursuant hereto pending the joint written instructions of the parties or an
order of a court of competent jurisdiction with respect to the disbursement
thereof, or (y) commence an interpleader action a court of competent
jurisdiction by giving Seller and Purchaser notice thereof and depositing the
Earnest Money Deposit with the applicable court, whereupon Escrow Holder may
resign as Escrow Holder. Notwithstanding the foregoing provisions to the
contrary, if Purchaser terminates the Purchase Agreement pursuant to Section 5.4
or Section 6.2 of the Purchase Agreement, then Escrow Holder, upon unilateral
written instructions of Purchaser delivered in accordance with Section 6 below
and received in accordance with the time conditions, if any, contained in the
Purchase Agreement and regardless of any conflicting written instructions that
Escrow Holder may receive from Seller, shall immediately return the Deposit to
or as directed by Purchaser.
3. In the event that (a) closing occurs under the Purchase Agreement then
immediately after Closing, or (b) Escrow Holder receives a written statement
executed by the Purchaser and the Seller, at any time, stating that Purchaser is
excused from performing under the Purchase Agreement, then, within two (2)
business days thereafter, Escrow Holder shall deliver the Earnest Money Deposit
to Purchaser to the extent the Earnest Money Deposit has not been applied to the
Purchase Price in accordance with the written instructions of Purchaser and
Seller.
4. Escrow Holder shall receive no compensation for its service performed
pursuant to this Letter except for (a) such expense or cost charged for
investments by the bank or institution holding the Earnest Money Deposit, which
expenses or costs shall be shared equally by Seller and Purchaser, and (b)
reasonable attorneys' fees or costs incurred as a result of any dispute between
Seller and Purchaser, which fees or costs will be reimbursed by the party whose
non-performance or default gave rise to the dispute.
5. Escrow Holder shall not be liable for any damage, liability or loss
arising out of or in connection with the services rendered by Escrow Holder
pursuant to the Purchase Agreement or this Letter, except for any damage,
liability, or loss resulting from the willful or grossly negligent misconduct of
Escrow Holder or any of its employees. Escrow Holder shall be entitled to rely,
and shall not be subject to any liability acting in reliance, upon any writing
furnished to Escrow Holder by either Seller or Purchaser, and Escrow Holder
shall be entitled to treat as genuine and as the document it purports to be, any
letter, paper, or other document furnished to Escrow Holder in connection with
this Letter. Escrow Holder may rely on any affidavit of either Seller or
Purchaser or any other person with respect to the existence of any facts stated
therein to be known to the affiant.
6. All notices or other communications required or permitted hereunder
will be in writing, and will be given by (a) personal delivery, or (b)
professional expedited delivery service with proof of delivery, or (c) United
States mail, postage prepaid, registered or certified mail, return receipt
requested, or (d) facsimile transmission with a second copy sent by any of the
foregoing methods, sent to the intended addressee at the address set forth
below, or to such other address or to the attention of such other person as the
addressee will have designated by written notice sent in accordance herewith and
will be deemed to have been given either at the time of personal delivery, or,
in the case of expedited delivery service or mail, as of the date of first
39
attempted delivery at the address or in the manner provided herein, or, in the
case of facsimile transmission, upon receipt. Unless changed in accordance with
the preceding sentence, the addresses for notices given pursuant to this Letter
will be as follows:
To Purchaser: ImClone Systems Incorporated
180 Varick Street
New York, NY 10014
Attn: John B. Landes, Esquire
Fax: (212) 645-2054
with a copy to: ImClone Systems Incorporated
22 Chubb Way
Somerville, NJ 08876
Attn: Mr. Paul Goldstein
Fax: (908) 218-7764
with a copy to: Wolff & Samson, P.A.
5 Becker Farm Road
Roseland, NJ 07068
Attn: Jeffrey M. Gussoff, Esquire
Fax: (973) 436-4426
To Seller: c/o The Gale Company, LLC
200 Campus Drive
Suite 200
Florham Park, New Jersey 07932
Attn: Messrs. Stephen J. Cusma and
Christopher F. Sameth
Fax: (973) 301-9501
with copy to: c/o The Morgan Stanley Real Estate Fund II, L.P.
1585 Broadway
New York, New York 10036
Attn: Mr. John Buza
Fax: (212) 761-3288
with copy to: c/o Paine Webber Inc.
1285 Avenue of the Americas
38th Floor
New York, New York 10019
Attn: Mr. Kevin D. Cox
Fax: (212) 713-7949
To Escrow Holder: General Land Abstract Company
One Gateway Center, Suite 2503
Newark, New Jersey 07102
Attn: Gregory Kowalski
Fax: (973) 621-7488
7. The instructions contained in this Letter shall not be modified,
amended, or altered in any way except by a writing (which may be in counterpart
copies) signed by both Seller and Purchaser (or by their respective counsel) and
acknowledged by Escrow Holder.
8. Purchaser and Seller reserve the right, at any time and from time to
time, by mutual agreement, to substitute a new Escrow Holder in place of Escrow
Holder.
9. This Letter is intended solely to supplement and implement the
provisions of the Purchase Agreement and is not intended to modify, amend, or
vary any of the rights or obligations of Purchaser or Seller under the Purchase
Agreement.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, this Letter is executed as of the day and year
first above written.
PURCHASER:
IMCLONE SYSTEMS INCORPORATED,
a Delaware corporation
By: ___________________________________
Name:
Its:
SELLER:
4/33 BUILDING ASSOCIATES, L.P.
a New Jersey limited partnership
By:Scott Princeton Associates L.P., a general partner
By: Scott Princeton PW/MS LLC, its general partner
By:________________________________
Name: Joseph Adamo
Its: Authorized Person
By:Independence/Chubb Associates, L.P.
a general partner
By: Independence Chubb/PW/MS LLC, its sole
general partner
By: ______________________
Name: Joseph Adamo
Its Authorized Person
ESCROW HOLDER:
GENERAL LAND ABSTRACT COMPANY
By: _________________________________
Name:
Its:
EXHIBIT E
INTENTIONALLY DELETED
EXHIBIT F
INTENTIONALLY DELETED
EXHIBIT G
LIST OF LAWSUITS
NONE
EXHIBIT H
LIST OF TENANTS
Office Interiors, Inc. d/b/a Dancker, Sellew & Douglas
EXHIBIT I
Prepared By:
_________________________
Stephen J. Cusma, Esquire
DEED
This Deed is made on , 2002.
BETWEEN
4/33 BUILDING ASSOCIATES, L.P., a New Jersey limited partnership, having an
office c/o Gale & Wentworth, LLC, 200 Campus Drive, Suite 200, Florham Park, NJ
07932, referred to as the "GRANTOR"
AND
IMCLONE SYSTEMS INCORPORATED, a Delaware corporation, having an office at 180
Varick Street, New York, NY 10014, referred to as the "GRANTEE".
TRANSFER OF OWNERSHIP. The Grantor grants and conveys (transfers ownership
of) the property described below to the Grantee. This transfer is made for the
sum of Three Million Nine Hundred Eighty-Five Thousand and 00/100 Dollars
($3,985,000.00). The Grantor acknowledges receipt of this money.
TAX MAP REFERENCE. (N.J.S.A. 46:15-2.1) Township of Branchburg, Block
68.06 Lot 5.
PROPERTY. The property consists of the land and the building and improvements on
the land in the Township of Branchburg, County of Somerset and State of New
Jersey. The legal description is attached hereto as Schedule A.
(See Schedule A attached hereto and incorporated herein).
Being the same Property conveyed to Grantor herein by Deed from Bellemead
Development Corporation, a Delaware corporation dated September 1, 1988,
recorded October 6, 1988 in Deed Book 1703 Page 810.
Commonly known as 33 Chubb Way, Branchburg, NJ.
Subject to easements, restrictions and agreements of record, and such state of
facts as an accurate survey may disclose
PROMISES GRANTOR. The Grantor promises that except for easements,
restrictions and agreements of record, Grantor has done no act to encumber the
Property. This promise is called a "covenant as to grantor's acts" (N.J.S.A.
46:4-6). This promise means that the Grantor has not allowed anyone else to
obtain any legal rights which affect the property (such as by making a
40
mortgage or allowing a judgment to be entered against the Grantor).
SIGNATURES. The Grantor signs this Deed as of the date at the top of the
first page.
WITNESS: GRANTOR:
4/33 BUILDING ASSOCIATES, L.P., A NEW JERSEY
LIMITED PARTNERSHIP
_____________________ BY: SCOTT PRINCETON ASSOCIATES, L.P., A NEW JERSEY
LIMITED PARTNERSHIP, A GENERAL PARTNER
BY: SCOTT PRINCETON PW/MS LLC, A NEW JERSEY
LIMITED LIABILITY COMPANY, ITS SOLE GENERAL
PARTNER
BY: _________________________________________
JOSEPH ADAMO, AUTHORIZED PERSON
BY: INDEPENDENCE/CHUBB ASSOCIATES, L.P., A NEW JERSEY
LIMITED PARTNERSHIP, A GENERAL PARTNER
BY: INDEPENDENCE CHUBB/PW/MS LLC, A NEW JERSEY
LIMITED LIABILITY COMPANY, ITS SOLE GENERAL
PARTNER
BY: _________________________________________
JOSEPH ADAMO, AUTHORIZED PERSON
STATE OF NEW JERSEY )
)SS.:
COUNTY OF MORRIS )
I CERTIFY that on , 2002, Joseph Adamo personally came before me and this
person acknowledged under oath, to my satisfaction, that:
(a) this person is the Authorized Person for (i) Scott Princeton PW/MS
LLC, the sole general partner of Scott Princeton Associates, L.P.,
and (ii) Independence Chubb/PW/MS LLC, the sole general partner of
Independence/Chubb Associates, L.P.. Scott Princeton Associates,
L.P. and Independence/Chubb Associates, L.P. are the general
partners of 4/33 Building Associates, L.P., the limited partnership
named in this Deed as the Grantor;
(b) this Deed was signed and delivered by the Grantor as its voluntary
act duly authorized by a proper consent of its general partners;
(c) this person signed this proof to attest to the truth of these facts;
and
(d) the full and actual consideration paid or to be paid for the
combined transfer of title is $3,985,000.00 (such consideration is
defined in N.J.S.A. 46:15-5).
Signed and sworn to before me on , 2002.
_____________________________________________________
DEED
DATED: , 2002
4/33 Building Associates, L.P., Grantor
TO
ImClone Systems Incorporated, Grantee
Record and return to:
Wolff & Samson, P.A.
5 Becker Farm Road
Roseland, NJ 07068
Attn: Jeffrey M. Gussoff, Esquire
EXHIBIT J
BILL OF SALE
IN CONSIDERATION of Ten and No/100 Dollars ($10.00) and other good and valuable
consideration paid to 4/33 Building Associates, L.P., a New Jersey limited
partnership ("SELLER"), the receipt of which is hereby acknowledged, Seller does
hereby GRANT, CONVEY AND WARRANT to ImClone Systems Incorporated, a Delaware
corporation ("PURCHASER"), all of Seller's right, title, and interest in and to
all equipment, appliances, tools, supplies, machinery, artwork, furnishings and
other tangible personal property, if any, attached to, located in and used
exclusively in connection with the ownership or operation of (i) the real
property legally described on Exhibit A attached hereto and made a part hereof
(the "REAL PROPERTY") and (ii) all buildings, structures, fixtures, parking
areas and improvements located on the Real Property (the "IMPROVEMENTS"), but
specifically excluding items of personal property owned by lawful tenants of the
Improvements or of the Real Property and further excluding any items of personal
property owned by third parties and leased to Seller (the "PERSONAL PROPERTY").
TO HAVE AND TO HOLD the Personal Property unto Purchaser and Purchaser's
successors and assigns, forever.
Seller has executed this Bill of Sale and BARGAINED, SOLD, TRANSFERRED, CONVEYED
and ASSIGNED the Personal Property and Purchaser has accepted this Bill of Sale
and purchased the Personal Property "AS IS AND WHEREVER LOCATED," WITH ALL
FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE,
EXPRESS, IMPLIED, OR STATUTORY, EXCEPT AS EXPRESSLY SET FORTH IN THIS BILL OF
SALE OR IN THE AGREEMENT OF SALE AND PURCHASE BETWEEN SELLER AND PURCHASER DATED
AS OF MARCH 1, 2002, AS IT MAY HAVE BEEN AMENDED TO DATE (the "PURCHASE
AGREEMENT") AND THE WARRANTIES SET FORTH HEREIN, IT BEING THE INTENTION OF
SELLER AND PURCHASER TO EXPRESSLY NEGATE AND EXCLUDE ALL OTHER WARRANTIES
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, ANY IMPLIED OR EXPRESS
WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, ANY RIGHTS OF
PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, ANY
CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN WITH
RESPECT TO THE PERSONAL PROPERTY, WARRANTIES CREATED BY AFFIRMATION OF FACT OR
PROMISE AND ANY OTHER WARRANTIES CONTAINED IN OR CREATED BY THE UNIFORM
COMMERCIAL CODE AS NOW OR HEREAFTER IN EFFECT IN THE STATE IN WHICH THE PERSONAL
PROPERTY IS LOCATED, OR CONTAINED IN OR CREATED BY ANY OTHER LAW.
EXECUTED to be effective as of the ________ day of _____________ 2002.
SELLER:
4/33 BUILDING ASSOCIATES, L.P., A NEW JERSEY
LIMITED PARTNERSHIP
BY: SCOTT PRINCETON ASSOCIATES, L.P., A NEW JERSEY
LIMITED PARTNERSHIP, A GENERAL PARTNER
BY: SCOTT PRINCETON PW/MS LLC, A NEW JERSEY
LIMITED LIABILITY COMPANY, ITS SOLE GENERAL PARTNER
BY:________________________________________________
JOSEPH ADAMO, AUTHORIZED PERSON
BY: INDEPENDENCE/CHUBB ASSOCIATES, L.P. , A NEW JERSEY
LIMITED PARTNERSHIP, A GENERAL PARTNER
BY: INDEPENDENCE CHUBB/PW/MS LLC, A NEW
JERSEY LIMITED LIABILITY COMPANY, ITS SOLE
GENERAL PARTNER
BY:________________________________________________
JOSEPH ADAMO, AUTHORIZED PERSON
EXHIBIT K
INTENTIONALLY DELETED
EXHIBIT L
NON-FOREIGN ENTITY CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S.
real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by the transferor, 4/33 Building
Associates, L.P., a New Jersey limited partnership ("4/33"), the undersigned
hereby certifies the following:
1. 4/33 is not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the Internal Revenue Code and
Income Tax Regulations);
2. 4/33's U.S. employer identification number is 22-2948461; and
3. 4/33's office address is:
c/o The Gale Company, LLC
200 Campus Drive, Suite 200
Florham Park, New Jersey 07932
4/33 understands that this certification may be disclosed to the
Internal Revenue Service and that any false statement made within this
certification could be punished by fine, imprisonment, or both.
Under penalties of perjury the undersigned declares that he has examined
this certification and that to the best of his knowledge and belief it is true,
correct and complete, and the undersigned further declares that he has the
authority to sign this document on behalf of the transferor.
TRANSFEROR:
4/33 BUILDING ASSOCIATES, L.P., A NEW JERSEY
LIMITED PARTNERSHIP
By: Scott Princeton Associates, L.P., a general partner
By: Scott Princeton PW/MS LLC,
its sole general partner
BY:____________________________________________
JOSEPH ADAMO, AUTHORIZED PERSON
By: Independence/Chubb Associates, L.P.
a general partner
By: Independence Chubb/PW/MS LLC, its sole
general partner
BY:____________________________________________
JOSEPH ADAMO, AUTHORIZED PERSON
EXHIBIT M
CERTIFICATE
This Certificate (this "CERTIFICATE") is made pursuant to the terms and
conditions of that certain Agreement of Sale and Purchase, as it may have been
amended to date (the "AGREEMENT") dated as of ___________, 2002 by and among
4/33 Building Associates, L.P., a New Jersey limited partnership (the "SELLER"),
and ImClone Systems Incorporated, a Delaware corporation (the "PURCHASER").
[For Seller's Certificate] In consideration of the purchase of the
Property (as defined in the Agreement) by the Purchaser from the Seller pursuant
to the Agreement, the Seller certifies that all of the representations and
warranties made by the Seller in Sections 7.3, 8.1 and 11.1 of the Agreement are
true and correct in all material respects as of the date hereof except as may be
set forth on any schedule attached hereto.
[For Purchaser's Certificate] In consideration of the sale of the Property
(as defined in the Agreement) by the Seller to the Purchaser pursuant to the
Agreement, the Purchaser certifies that all of the representations and
warranties made by the Purchaser in Section 8.2 and 11.1 of the Agreement are
true and correct in all material respects as of the date hereof except as may be
set forth on any schedule attached hereto.
IN WITNESS WHEREOF, the Seller has executed this Certificate as of
_______________, 2002.
_________________________________
By: ____________________________
Name:
Its: Authorized Representative