Agreement Of Sale And Purchase

Agreement of Sale and Purchase

Exhibit 10.7

 

AGREEMENT OF SALE AND PURCHASE

 

THIS AGREEMENT OF SALE AND PURCHASE (“Agreement”) made this 15th day of July, 2013 by and between MONUMENT 150 REALTY L.L.C., a Delaware limited liability company,  having an address c/o Mack-Cali Realty Corporation, 343 Thornall Street, Edison; New Jersey 08837-2206 (“Seller”) and MONUMENT KPG III, LLC, a Delaware limited liability company, a Delaware limited liability company, having an address at c/o Keystone Property Group, One Presidential Boulevard, Suite 300, Bala Cynwyd, Pennsylvania 19004 (“Purchaser”).

 

In consideration of the mutual promises, covenants, and agreements set forth herein, and 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:

 

Assignment” has the meaning ascribed to such term in Section 10.3(d) and shall be in the form attached hereto as Exhibit A.

 

Assignment of Leases” has the meaning ascribed to such term in Section 10.3(c) and shall be in the form attached hereto as Exhibit B.

 

Authorities” means the various federal, state and local governmental and quasigovernmental bodies or agencies having jurisdiction over the Real Property and Improvements, or any portion thereof.

 

Bill of Sale” has the meaning ascribed to such term in Section 10.3(b) and shall be in the form attached hereto as Exhibit 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.

 

“Certificate as to Foreign Status” has the meaning ascribed to such term in Section 10.3(g) and shall be in the form attached hereto as Exhibit I.

 

Certifying Person” has the meaning ascribed to such term in Section 4.3(a).

 

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 of the transaction contemplated hereby actually occurs.

 



 

Closing Statement” has the meaning ascribed to such term in Section 10.4(b).

 

Closing Surviving Obligations” means the rights, liabilities and obligations set forth in Sections 5.3, 5.4, 7.5, 8.1 8.2, 8.3, 10.4, 10.6, 11.1, 11.2, 12.1, Article XIV, 16.1, 18.2 and 18.9, and any other provisions which pursuant to their terms survives the Closing hereunder.  If Purchaser or Seller consists of more than one entity, then the Closing Surviving Obligations of such Purchaser or Seller set forth in this Agreement shall only apply to such Purchaser or Seller as to the portion of the Property it sells or purchases.

 

Code” has the meaning ascribed to such term in Section 4.3.

 

Confidentiality and Exclusivity Agreements” means that certain Confidentiality Agreement dated April 23, 2013, and that certain Exclusivity Agreement dated June 20, 2013, by and between KPG Investments, LLC (“KPG”) and certain affiliates of Mack-Cali Realty Corporation.

 

Deed” has the meaning ascribed to such term in Section 10.3(a).

 

Delinquent Rental” has the meaning ascribed to such term in Section 10.4(c).

 

Documents” has the meaning ascribed to such term in Section 5.2(a).

 

Earnest Money Deposit” has the meaning ascribed to such term in Section 4.2.

 

Effective Date” means the date of this Agreement first set forth above.

 

Environmental Laws” means each and every federal, state, county and municipal statute, ordinance, rule, regulation, code, order, requirement, directive, binding written interpretation and binding written policy pertaining to Hazardous Substances issued by any Authorities and in effect as of the date of this Agreement with respect to or which otherwise pertains to or effects 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 Purchaser, and as same have been amended, modified or supplemented from time to time prior to the Effective Date, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Hazardous Substances Transportation Act (49 U.S.C. § 1802 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), as amended by the Hazardous and Solid Wastes Amendments of 1984, the Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Water Act (33 U.S.C. § 1321 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Radon Gas and Indoor Air Quality Research Act of 1986 (42 U.S.C. § 7401 et seq.), the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), the Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.) (collectively, the “Environmental Statutes”), and any and all rules and regulations which have become effective prior to the date of this Agreement under any and all of the Environmental Statutes.

 

2



 

Escrow Agent” means First American Title Insurance Company, having an address c/o Executive Realty Transfer, Inc., 1431 Sandy Circle, Narberth, PA 19072.

 

Existing Survey” means Seller’s existing survey of the Real Property prepared by Joseph J. Viscuso of Barton & Martin Engineers, a division of Vollmer Associates LLP, certified to Mack-Cali Realty Acquisition Corp., Monument 150 Realty L.L.C., Commonwealth Land Title Insurance Company, revision dated December 22, 2004.

 

Evaluation Period” has the meaning ascribed to such term in Section 5.1.

 

Governmental Regulations” means all laws, statutes, 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 including but not limited to the Environmental Laws.

 

Hazardous Substances” means (a) asbestos, radon gas and urea formaldehyde foam insulation, (b) any solid, liquid, gaseous or thermal contaminant, including smoke vapor, soot, fumes, acids, alkalis, chemicals, petroleum products or byproducts, polychlorinated biphenyls, phosphates, lead or other heavy metals and chlorine, (c) any solid or liquid waste (including, without limitation, hazardous waste), hazardous air pollutant, hazardous substance, hazardous chemical substance and mixture, toxic substance, pollutant, pollution, regulated substance and contaminant, 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 other improvements located on the Real Property.

 

“KPG Purchasers” has the meaning ascribed to such term in Section 2.3.

 

Lease Schedule” has the meaning ascribed to such term in Section 5.2(a) and is attached hereto as Exhibit F.

 

Leases” means all of the leases and other agreements with Tenants with respect to the use and occupancy of the Real Property, together with all renewals and modifications thereof, if any, all guaranties thereof, if any, and any new leases and lease guaranties entered into after the Effective Date.

 

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.

 

Major Tenant” means any Tenant leasing in excess of 10,000 square feet of space at the Real Property, in the aggregate, as listed on Exhibit J attached hereto.

 

3



 

“M-C Sellers” has the meaning ascribed thereto in Section 2.3.

 

New Tenant Costs” has the meaning ascribed to such term in Section 10.4(f).

 

Operating Expenses” has the meaning ascribed to such term in Section 10.4(d).

 

“Other P&S Agreements” has the meaning ascribed thereto in Section 2.3.

 

“Other Properties” has the meaning ascribed thereto in Section 2.3.

 

Permitted Exceptions” has the meaning ascribed to such term in Section 6.2(a).

 

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 all 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 and situated at the Real Property at the time of Closing, but specifically excluding all personal property leased by Seller or owned by tenants or others.

 

Property” has the meaning ascribed to such term in Section 2.1.

 

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’s Affiliates” means any past, present or future: (i) shareholder, partner, member, manager or owner of Purchaser; (ii) entity that, directly or indirectly, controls, is controlled by or is under common control with Purchaser and (iii) the heirs, executors, administrators, personal or legal representatives, successors and assigns of any or all of the foregoing.

 

Purchaser’s Information” has the meaning ascribed to such term in Section 5.3(c).

 

REA Party” means any entity that is a party to a reciprocal easement agreement, cost sharing agreement, association agreement, declaration or other similar agreement affecting the Property.

 

Real Property” means that certain parcel of land located at 150 Monument Road, Bala Cynwyd, Lower Merion, Pennsylvania, as is more particularly described on the legal description attached hereto and made a part hereof as Exhibit D, 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 development rights and water rights.

 

“Rental” has the meaning ascribed to such term in Section 10.4(c).

 

Scheduled Closing Date” means thirty (30) days after the expiration of the Evaluation Period, subject to Seller’s and Purchaser’s right to adjourn the Scheduled Closing Date for up to

 

4



 

ten (10) days in accordance with the terms and conditions set forth in Section 10.1 below, or such earlier or later date to which Purchaser and Seller may hereafter agree in writing.

 

Security Deposits” means all Tenant security deposits in the form of cash and letters of credit, if any, held by Seller, as landlord (together with any interest which has accrued thereon, but only to the extent such interest has accrued for the account of the Tenant).

 

Service Contracts” means all of Seller’s right, title and interest, to the extent assignable, in all service agreements, maintenance contracts, equipment leasing agreements, warranties, guarantees, bonds, open purchase orders and other contracts for the provision of labor, services, materials or supplies relating solely to the Real Property, Improvements or Personal Property and under which Seller is currently paying for services rendered in connection with the Property, as listed and described on Exhibit E 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.

 

Seller’s Affiliates” means any past, present or future: (i) shareholder, partner, member, manager or owner of Seller; (ii) entity in which Seller or any past, present or future shareholder, partner, member, manager or owner of Seller has or had an interest; (iii) entity that, directly or indirectly, controls, is controlled by or is under common control with Seller and (iv) the heirs, executors, administrators, personal or legal representatives, successors and assigns of any or all of the foregoing.

 

Significant Portion” means, for purposes of the casualty provisions set forth in Article XI hereof, damage by fire or other casualty to the Real Property and the Improvements or a portion thereof, the cost of which to repair would exceed ten percent (10%) of the Purchase Price.

 

SNDA” has the meaning ascribed to such term in Section 7.3.

 

Survey Objection” has the meaning ascribed to such term in Section 6.1.

 

Tenants” means the tenants or users of the Real Property and Improvements who are parties to the Leases.

 

Tenant Notice Letters” has the meaning ascribed to such term in Section 10.2(e), and are to be delivered by Purchaser to Tenants pursuant to Section 10.6.

 

Termination Surviving Obligations” means the rights, liabilities and obligations set forth in Sections 5.2, 5.3, 5.4, 12.1, Articles XIII and XIV, 16.1, 18.2 and 18.8, and any other provisions which pursuant to their terms survive any termination of this Agreement.

 

Title Commitment” has the meaning ascribed to such term in Section 6.2(a).

 

Title Company” means First American Title Insurance Company, through its agent, Executive Realty Transfer, Inc.

 

Title Objections” has the meaning ascribed to such term in Section 6.2(a).

 

5



 

To Seller’s Knowledge” or “Seller’s Knowledge” means the present actual (as opposed to constructive or imputed) knowledge solely of John Adderly, Vice President, Leasing, and Laurence Fedorka, Senior Director of Property Management and regional property manager for this Property, without any independent investigation or inquiry whatsoever.

 

Updated Survey” has the meaning ascribed to such term in Section 6.1.

 

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;

 

(d)           all of Seller’s right, title and interest as lessor in and to the Leases and, subject to the terms of the respective applicable Leases, the Security Deposits;

 

(e)           to the extent assignable, the Service Contracts and the Licenses and Permits; and

 

(f)            all of Seller’s right, title and interest, to the extent assignable or transferable, in and to all other intangible rights, titles, interests, privileges and appurtenances owned by Seller and related to or used exclusively in connection with the ownership, use or operation of the Real Property or the Improvements.

 

Section 2.2            Conversion.  Seller and Purchaser recognize that they may each benefit from converting this Agreement into an agreement of sale of the partnership or membership interests in the Seller.  During the Evaluation Period, Seller and Purchaser shall analyze whether such conversion is feasible and benefits both parties and, if both parties agree, Seller and Purchaser shall terminate this Agreement as to the Property and enter into an agreement of sale of partnership or membership interests of Seller with respect to the Property.

 

Section 2.3            Other P&S Agreements.  Certain affiliates of Seller listed on Schedule 2.3 (collectively, the “M-C Sellers”), and certain affiliates of Purchaser listed on Schedule 2.3

 

6



 

(collectively, the “KPG Purchasers”) have entered into various agreements of sale and purchase, dated of even date herewith (the “Other P&S Agreements”), with respect to the sale and purchase of certain land and the improvements thereon listed on Schedule 2.3 (the “Other Properties”), which land and improvements are more fully described in the applicable Other P&S Agreements.  Notwithstanding anything to the contrary set forth in this Agreement, Purchaser has no right or obligation to purchase, and Seller has no obligation to sell, the Property unless there is a simultaneous sale and purchase of each and all of the Other Properties pursuant to the Other P&S Agreements, it being the express agreement and understanding of Purchaser and Seller that, as a material inducement to Seller and Purchaser to enter into this Agreement, the M-C Sellers and the KPG Purchasers have entered into the Other P&S Agreements pursuant to which the KPG Purchasers have agreed to purchase, and the M-C Sellers have agreed to sell, the Other Properties, subject to and in accordance with the terms and conditions of the Other P&S Agreements.  Any termination of any Other P&S Agreement shall constitute a termination of this Agreement.  Any breach of, or default under, any Other P&S Agreement shall constitute a breach of, or default under, this Agreement.

 

Section 2.4            Land.  It is the intention and desire of Seller and Purchaser that a portion of the Real Estate be retained by Seller.  However, due to subdivision and other applicable laws, such retention cannot occur until that portion is properly subdivided from the Real Estate.  Accordingly, Purchaser agrees that Purchaser, at the direction of and in communication and cooperation with Seller, shall use commercially reasonable efforts to cause a portion of the Property (the “Out Parcel”) to be conveyed to Seller, or an affiliate of Seller, within two (2) years following Closing (the “Outside Date”).  The Out Parcel shall be of a size and configuration necessary to maximize the size and value of the Residential Project without materially and negatively impacting the use and enjoyment of the remainder of the Property for its current use as an office building or violating any Governmental Regulations.  The parties acknowledge that the location and dimensions of the Out Parcel are not yet fixed.  Prior to the expiration of the Evaluation Period the parties shall use commercially reasonable efforts to fix the location and dimensions of the Out Parcel.  Prior to the conveyance of the Out Parcel, Purchaser, shall, at Seller’s sole cost and expense, use commercially reasonable efforts to (i) cause the Out Parcel to be subdivided (final and unappealable) from the Property so as to constitute a separate tax parcel, in accordance with the Subdivision and Land Development Code of Lower Merion Township (the “SALDO”); (ii) cause all final and unappealable zoning, land use and other entitlements, approvals and permits as determined by Seller under the SALDO, other codes of Lower Merion Township, and other applicable Commonwealth and federal laws, statutes, codes, regulations and orders, to be issued that Seller determines are necessary for the development, construction and use of the Out Parcel as a multi-story, multi-family, residential complex of such size and configuration as Seller shall reasonably determine, together with associated common facilities (the “Residential Project”); and (iii) cause water and sanitary sewer service to be available and all private easements and rights reasonably necessary for the Residential Project to be in effect, provided, the same do not materially interfere with or materially adversely effect the Property, it being understood that there may be required easements burdening or benefiting either of the Out Parcel or the Property in connection with the creation of the Out Parcel and the Residential Project (collectively, “Final Approvals”).  Subject to Purchaser’s rights herein, the Final Approvals must be acceptable to Seller in its sole discretion.  The Out Parcel shall be conveyed by Purchaser to Seller free and clear of all mortgages and liens and encumbrances subject only to those encumbrances listed on Purchaser’s

 

7



 

title policy at Closing and not created by Purchaser and those mortgages, liens and encumbrances recorded by or at the direction of Seller in connection with the Residential Project.  To that end, Purchaser shall not finance the acquisition of the Property with a third party lender unless such lender agrees to release the Out Parcel from the lien of any mortgage or other security interest upon the request of Purchaser without the payment of any release price or other fee unless Purchaser agrees to pay such release price or fee with no reimbursement obligation of Seller.  Prior to the expiration of the Evaluation Period, the parties shall use commercially reasonable efforts to agree on the form and content of a development and sale agreement (the “Development and Sale Agreement”) with respect to the Out Parcel and Purchaser’s and Seller’s obligations and rights discussed above in this Section 2.3, which agreement shall include customary provisions included in such agreements, including, without limitation, the right of Seller to either terminate or assume control of the approval process at its election.  Prior to Closing, Purchaser shall use commercially reasonable efforts to cause Purchaser’s lender for the acquisition of the Property to enter into a Recognition Agreement with Purchaser and Seller (the “Recognition Agreement”) to provide, among other things, (i) that upon Final Approval, Purchaser’s lender shall release the Out Parcel from the lien of its mortgage or other security interest without the payment of any release price or other fee unless Purchaser agrees to pay such release price or fee with no reimbursement obligation of Seller; and (ii) recognize and agree not to disturb the Development and Sale Agreement.  In the event that, despite Purchaser’s efforts, Purchaser’s lender is unwilling to provide the Recognition Agreement in form and substance acceptable to Purchaser and Seller, then Purchaser shall provide notice to Seller of such refusal,  and within five (5) Business Days after receipt of such notice from Purchaser, Seller shall elect, in its sole discretion, to either (x) terminate all efforts to seek Final Approvals and subdivide the Out Parcel, in which event Purchaser shall reimburse Seller for all of Seller’s reasonable out-of-pocket costs and expenses payable to third parties and/or reimbursed to Purchaser in connection with the pursuit of the Final Approvals, following which Purchaser shall be free to enter into the loan transaction with its designated lender without need or necessity of the Recognition Agreement or any further obligation under this Section 2.4, or (y) at Closing, have Seller, or an affiliate of Seller, provide Purchaser a mortgage loan (the “Seller Provided Purchase Money Loan”) in a principal amount equal to Sixteen Million Five Hundred Thousand Dollars ($16,500,000.00) to finance the acquisition of the Property on the same terms and conditions (other than the loan amount, and an escrow amount of One Million Four Hundred Thousand Dollars ($1,400,000.00)) as the Purchase Money Loan as set forth in the Agreement of Sale and Purchase of even date herewith between Mack-Cali-R Company No. 1 L.P. and Plymouth Meeting KPG III LLC relating to the property located at 502 W. Germantown Pike, Plymouth Meeting, Pennsylvania, and Purchaser shall fund Two Million Four Hundred Thousand Dollars ($2,400,000.00) and Seller, or an affiliate of Seller, shall fund Two Million One Hundred Thousand Dollars ($2,100,000.00) as their respective equity contributions for payment of the Purchase Price. If efforts to obtain Final Approvals are not so terminated by Seller, at Closing, Seller and Purchaser shall execute and deliver the Development and Sale Agreement and after Closing, Purchaser shall continue to use commercially reasonable efforts to obtain the Final Approvals and convey the Out Parcel to Seller or an affiliate of Seller. In the event that Final Approvals have not yet been issued by the Outside Date, Seller may elect to extend the Outside Date for a period of at least six (6) but not more than twelve (12) months upon notice given to Purchaser at least ninety (90) days prior to the Outside Date, in which event the stated maturity date of the Seller Provided Purchase Money Loan shall be extended automatically to coincide

 

8



 

with the new Outside Date selected by Seller.  If, on the Outside Date, as the same may be extended by Seller, Purchaser has not obtained the Final Approvals, Purchaser shall have no further obligation to pursue such approvals or convey the Out Parcel to Seller and Purchaser shall reimburse Seller for Seller’s reasonable out-of-pocket costs and expenses payable to third parties and/or reimbursed to Purchaser in connection with its pursuit of the Final Approvals.

 

ARTICLE III
CONSIDERATION

 

Section 3.1            Purchase Price.  The purchase price for the Property (the “Purchase Price”) shall be Twenty-one Million Dollars ($21,000,000) in lawful currency of the United States of America.  No portion of the Purchase Price shall be allocated to the Personal Property.

 

Section 3.2            Method of Payment of Purchase Price.  No later than 3:00 p.m. Eastern Time on the Closing Date, subject to the adjustments set forth in Section 10.4, Purchaser shall pay the Purchase Price (less the Earnest Money Deposit), together with all other costs and amounts to be paid by Purchaser at the Closing pursuant to the terms of this Agreement (“Purchaser’s Costs”), by Federal Reserve wire transfer of immediately available funds to the account of Escrow Agent. Escrow Agent, following authorization by the parties prior to 4:00 p.m. Eastern Time on the Closing Date, shall (i) pay to Seller by Federal Reserve wire transfer of immediately available funds to an account designated by Seller, the Purchase Price less any costs or other amounts to be paid by Seller at Closing pursuant to the terms of this Agreement, (ii) 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, and (iii) pay Purchaser’s Costs to the appropriate payees at Closing pursuant to the terms of this Agreement.

 

ARTICLE IV
EARNEST MONEY DEPOSIT
AND ESCROW INSTRUCTIONS

 

Section 4.1            The Initial Earnest Money Deposit. Within two (2) Business Days after the Effective Date, Purchaser shall deposit with the Escrow Agent, by Federal Reserve wire transfer of immediately available funds, the sum of One Hundred Eighty Thousand One Hundred Forty-nine Dollars ($180,149) as the initial earnest money deposit on account of the Purchase Price (the “Initial Earnest Money Deposit”). TIME IS OF THE ESSENCE with respect to the deposit of the Initial Earnest Money Deposit.

 

Section 4.2            Escrow Instructions and Additional Deposit. The Initial Earnest Money Deposit, the Additional Deposit (as defined below in this Section 4.2), and the Evaluation Period Extension Deposit (as hereinafter defined in Section 5.1(b)) shall be held in escrow by the Escrow Agent in an interest-bearing account, in accordance with the provisions of Article XVII. (The Initial Earnest Money Deposit, Additional Deposit and Evaluation Period Extension Deposit are hereinafter collectively and individually referred to as the “Earnest Money Deposit”.) In the event this Agreement is not terminated by Purchaser pursuant to the terms hereof by the end of the Evaluation Period in accordance with the provisions of Section 5.3(c) herein, then, (i) prior to the expiration of the Evaluation Period, Purchaser shall deposit with the Escrow Agent, by Federal Reserve wire transfer of immediately available funds, the additional

 

9



 

sum of Seven Hundred Twenty Thousand Five Hundred Ninety-seven Dollars ($720,597)  as an additional earnest money deposit on account of the Purchase Price (the “Additional Deposit”), and (ii) the Earnest Money Deposit and the interest earned thereon shall become non-refundable to Purchaser except in accordance with Sections 6.3, 9.1, 11.1, 11.2 and 13.1 below. TIME IS OF THE ESSENCE with respect to the payment of the Additional Deposit. In the event this Agreement is terminated by Purchaser prior to the expiration of the Evaluation Period, then the Initial Earnest Money Deposit, together with all interest earned thereon, shall be refunded to Purchaser.

 

Section 4.3            Designation of Certifying 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 Agent 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 Agent as the person to be responsible for all information reporting under Section 6045(e) of the Code (the “Certifying Person”). If the Escrow Agent refuses to execute a statement pursuant to which it agrees to be the Certifying Person, Seller and Purchaser shall agree to appoint another third party as the Certifying Person.

 

(b)           Seller and Purchaser each hereby agree:

 

(i)            to provide to the Certifying Person all information and certifications regarding such party, as reasonably requested by the Certifying Person or otherwise required to be provided by a party to the transaction described herein under Section 6045 of the Code; and

 

(ii)           to provide to the Certifying 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 Certifying Person), signed under penalties of perjury, stating that the taxpayer identification number supplied by such party to the Certifying Person is correct.

 

ARTICLE V
INSPECTION OF PROPERTY

 

Section 5.1            Evaluation Period.

 

(a)           For a period ending at 5:00 p.m. Eastern Time on August 19, 2013 (as may be extended as provided in 5.1(b) below, the “Evaluation Period”), Purchaser and its authorized agents and representatives (for purposes of this Article V, the “Licensee Parties”) shall have the right, subject to the right of any Tenants, to enter upon the Real Property and Improvements at all reasonable times during normal business hours to perform an inspection, including but not limited to a Phase I environmental assessment of the Property. At least 24 hours prior to such intended entry, Purchaser will provide e-mail notice to Seller, at the e-mail addresses set forth in Article XIV below, of the intention of Purchaser or the other Licensee

 

10



 

Parties to enter the Real Property and Improvements, and such notice shall specify the intended purpose therefor and the inspections and examinations contemplated to be made and with whom any Licensee Party will communicate. At Seller’s option, Seller may be present for any such entry and inspection. Purchaser shall not communicate with or contact any of the Tenants without notifying Seller and giving Seller the opportunity to have a representative present. Purchaser shall not communicate with or contact any of the Authorities; provided, however, that Purchaser may communicate with the township in which the Real Property is located for the sole purpose of (i) confirming whether there are any existing municipal zoning or building code violations filed against the Property, (ii) without identifying the Property, to discuss real estate tax issues affecting the township generally, and (iii) to obtain copies of previously issued certificates of occupancy.  Notwithstanding the foregoing, Purchaser shall not take any action that would cause a municipal inspection to be made of the Property. During the Evaluation Period, Seller shall instruct its tax appeal counsel to answer any questions that Purchaser may have regarding the real estate taxes and the real estate tax appeals with respect to the Property. No physical testing or sampling shall be conducted during any entry by Purchaser or any Licensee Party upon the Real Property without Seller’s specific prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. TIME IS OF THE ESSENCE with respect to the provisions of this Section 5.1.

 

(b)           Only for the purpose of obtaining financing for the purchase of the Property, Purchaser shall have the option to extend the Evaluation Period for two (2) consecutive thirty-day periods by (i) providing notice to Seller at least one (1) Business Day prior to the expiration of the original Evaluation Period and any extended Evaluation Period that Purchaser is exercising such option; and (ii) prior to the expiration of the original Evaluation Period and prior to the expiration of the first extended Evaluation Period, delivering to Escrow Agent, via Federal Reserve wire transfer of immediately available funds, the sum of Twenty-two Thousand Five Hundred Nineteen Dollars ($22,519) as an additional earnest money deposit on account of the Purchase Price (each, an “Evaluation Period Extension Deposit”).  The Evaluation Period Extension Deposit shall be non-refundable to Purchaser except in accordance with Sections 6.3, 9.1, 11.1, 11.2 and 13.1 below but applicable to Purchase Price.  TIME IS OF THE ESSENCE with respect to the exercise of the option to extend the Evaluation Period and the payment of the Evaluation Period Extension Deposit.  Purchaser agrees and acknowledges that if it elects to exercise its option to extend the Evaluation Period as provided above, Purchaser shall have elected to proceed with the transaction as set forth in this Agreement, subject only to Purchaser obtaining unconditional acquisition financing on terms and conditions acceptable to Purchaser in its reasonable discretion for the Property and all of the Other Properties and that notwithstanding anything to the contrary set forth in Subsection 5.3(c) below, Purchaser shall not have the further right to terminate this Agreement under Subsection 5.3(c) for any reason other than its inability to obtain such unconditional acquisition financing for the Property and all of the Other Properties on terms and conditions acceptable to Purchaser in its reasonable discretion.

 

Section 5.2            Document Review.

 

(a)           During the Evaluation Period, Purchaser and the Licensee Parties shall have the right to review and inspect, at Purchaser’s sole cost and expense, all of the following which, to Seller’s Knowledge, are in Seller’s possession or control (collectively, the “Documents”): all existing environmental reports and studies of the Real Property, real estate

 

11



 

tax bills, together with assessments (special or otherwise), ad valorem and personal property tax bills, covering the period of Seller’s ownership of the Property; Seller’s most current lease schedule in the form attached hereto as Exhibit F (the “Lease Schedule”); current operating statements; historical financial reports; the Leases, lease files, Service Contracts, and Licenses and Permits. Such inspections shall occur at a location selected by Seller, which may be at the office of Seller, Seller’s counsel, Seller’s property manager, at the Real Property, in an electronic “war room” or any of the above. Purchaser shall not have the right to review or inspect materials not directly related to the leasing, maintenance and/or management of the Property, including, without limitation, Seller’s internal e-mails and memoranda, financial projections, budgets, appraisals, proposals for work not actually undertaken, income tax records and similar proprietary, elective or confidential information, and engineering reports and studies.

 

(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 desirability 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, agents, consultants, lenders or investors (collectively, for purposes of this Section 5.2(b), 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 determining the desirability of Purchaser’s acquisition of the Property. Purchaser further acknowledges that the Documents and other information relating to the leasing arrangements between Seller and 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. In permitting Purchaser and the Permitted Outside Parties to review the Documents and other information to assist Purchaser, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller, and any such claims are expressly rejected by Seller and waived by Purchaser and the Permitted Outside Parties, for whom, by its execution of this Agreement, Purchaser is acting as an agent with regard to such waiver.

 

(c)           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 SET FORTH 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 AND IS PROVIDING THE DOCUMENTS SOLELY AS AN ACCOMMODATION TO PURCHASER.

 

12



 

Section 5.3            Entry and Inspection Obligations Termination of Agreement.

 

(a)           Purchaser agrees that in entering upon and inspecting or examining the Property, Purchaser and the other Licensee Parties will not disturb the Tenants or interfere with the use of the Property pursuant to the Leases; interfere with the operation and maintenance of the Real Property or Improvements; damage any part of the Property or any personal property owned or held by Tenants or any other person or entity; injure or otherwise cause bodily harm to Seller or any 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; 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 5.4(b)) and Article XII. Purchaser will (i) maintain comprehensive general liability (occurrence) insurance on terms and in amounts reasonably satisfactory to Seller, and Workers’ Compensation insurance in statutory limits, and, if Purchaser or any Licensee Party performs any physical inspection or sampling at the Real Property in accordance with Section 5.1, then Purchaser or such Licensee Party shall maintain errors and omissions insurance and contractor’s pollution liability insurance on terms and in amounts reasonably acceptable to Seller, and insuring Seller, Mack-Cali Realty, L.P., Mack-Cali Realty Corporation, Purchaser and such other parties as Seller shall request, covering any accident or event arising in connection with the presence of Purchaser or the other Licensee Parties on the Real Property or Improvements, and deliver evidence of insurance verifying such coverage to Seller prior to entry upon the Real Property or Improvements; (ii) promptly pay when due the costs of all entry and inspections and examinations done with regard to the Property; (iii) cause any inspection to be conducted in accordance with standards customarily employed in the industry and in compliance with all Governmental Regulations; (iv) at Seller’s request, furnish to Seller any studies, reports or test results received by Purchaser regarding the Property, promptly after such receipt, in connection with such inspection; and (v) restore the Real Property and Improvements to the condition in which the same were found before any such entry upon the Real Property and inspection or examination was undertaken.

 

(b)           Purchaser hereby indemnifies, defends and holds Seller and its partners, members, agents, directors, officers, employees, successors and assigns harmless from and against any and all liens, claims, causes of action, damages, liabilities, demands, suits, and 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 and expenses), arising out of any inspections, investigations, examinations, sampling or tests conducted by Purchaser or any of the Licensee Parties, whether prior to or after the Effective Date, with respect to the Property or any violation of the provisions of this Article V.

 

(c)           In the event that Purchaser determines, after its inspection of the Documents and Real Property and Improvements, that it wants to proceed with the transaction as set forth in this Agreement, Purchaser shall provide written notice to Seller that it elects to proceed with the transaction prior to the expiration of the Evaluation Period, WITH TIME BEING OF THE ESSENCE WITH RESPECT THERETO. In the event Purchaser does not provide such written notice or if Purchaser provides written notice of its election to terminate this Agreement, this Agreement shall automatically terminate. If this Agreement terminates under this Section 5.3(c), or under any other right of termination as set forth herein, Purchaser shall have the right to receive a refund of the Earnest Money Deposit, together with all interest which

 

13



 

has accrued thereon, and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligation to each other hereunder. In the event this Agreement is terminated, Purchaser shall return to Seller all copies Purchaser has made of the Documents and all copies of any studies, reports or 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”) promptly following the termination of this Agreement for any reason.

 

Section 5.4            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 THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. OTHER THAN THE MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 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 OR WARRANTIES HAVE BEEN MADE.

 

SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, 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, 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, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, 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 SOLELY ON ITS OWN

 

14



 

EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS 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 LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOF) NOR 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. 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. 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 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 THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT.

 

SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO SUE SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER

 

15



 

OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.

 

ARTICLE VI
TITLE AND SURVEY MATTERS

 

Section 6.1            Survey. Purchaser acknowledges receipt of the Existing Survey. Any modification, update or recertification of the Existing Survey shall be at Purchaser’s election and sole cost and expense. Any updated survey that Purchaser has elected to obtain, if any, is herein referred to as the “Updated Survey.” Purchaser shall have until August 2, 2013 to obtain an Updated Survey and to deliver a copy of same to Seller. Any gores, strips, overlaps or potential boundary line disputes and other survey defects, including but not limited to encroachments, legal description issues, easement locations that impede or interfere with use or occupancy and similar defects shall constitute a “Survey Objection” under this Agreement.

 

Section 6.2            Title Commitment.

 

(a)           Purchaser has ordered a title insurance commitment with respect to the Real Property issued, by the Title Company (the “Title Commitment”).  On or before July 25, 2013, Purchaser shall provide to Seller the Title Commitment, together with legible copies of the title exceptions listed thereon. On or before August 8, 2013 (the “Title Objection Date”), Purchaser shall notify Seller in writing, if there are (i) any monetary liens or other title exceptions that Purchaser objects to (“Title Objections”) or (ii) any Survey Objection. In the event Seller does not receive written notice of any Title Objections or Survey Objection by the Title Objection Date, TIME BEING OF THE ESSENCE, then Purchaser will be deemed to have accepted or waived such exceptions to title set forth on the Title Commitment as permitted exceptions (as accepted or waived by Purchaser, the “Permitted Exceptions”) and shall be deemed to have waived its right to object to any Survey Objection.

 

(b)           After the Title Objection Date, if the Title Company raises any new exception to title to the Real Property, Purchaser’s counsel shall have five (5) Business Days after he or she receives notice of such exception (the “New Objection Date”) (or as promptly as possible prior to the Closing if such notice is received with less than five (5) Business Days prior to the Closing), to provide Seller with written notice if such exception constitutes a Title Objection. In the event Seller does not receive notice of such Title Objection by the New

 

16



 

Objection Date, Purchaser will be deemed to have accepted the exceptions to title set forth on any updates to the Title Commitment as Permitted Exceptions.

 

(c)           All taxes, water rates or charges, sewer rents and assessments, plus interest and penalties thereon, which on the Closing Date are liens against the Real Property and which Seller is obligated to pay and discharge will be credited against the Purchase Price (subject to the provision for apportionment of taxes, water rates and sewer rents herein contained) and shall not be deemed a Title Objection. If on the Closing Date there shall be security interests filed against the Real Property, such items shall not be Title Objections if (i) the personal property covered by such security interests are no longer in or on the Real Property, or (ii) such personal property is the property of a Tenant, and Seller executes and delivers an affidavit to such effect, or the security interest was filed more than five (5) year prior to the Closing Date and was not renewed.

 

(d)           If on the Closing Date the Real Property shall be affected by any lien which, pursuant to the provisions of this Agreement, is required to be discharged or satisfied by Seller, Seller shall not be required to discharge or satisfy the same of record provided the money necessary to satisfy the lien is retained by the Title Company at Closing, and the Title Company either omits the lien as an exception from the title insurance commitment or insures against collection thereof from out of the Real Property, and a credit is given to Purchaser for the recording charges for a satisfaction or discharge of such lien.

 

(e)           No franchise, transfer, inheritance, income, corporate or other tax open, levied or imposed against Seller or any former owner of the Property, that may be a lien against the Property on the Closing Date, shall be an objection to title if the Title Company insures against collection thereof from or out of the Real Property and/or the Improvements, and provided further that Seller deposits with the Title Company a sum of money or a parental guaranty reasonably acceptable to the Title Company and sufficient to secure a release of the Property from the lien thereof. If a search of title discloses judgments, bankruptcies, or other returns against other persons having names the same as or similar to that of Seller, Seller will deliver to Purchaser an affidavit stating that such judgments, bankruptcies or other returns do not apply to Seller, and such search results shall not be deemed Title Objections.

 

Section 6.3            Title Defect.

 

(a)           In the event Seller receives notice of any Survey Objection or Title Objection (collectively and individually a “Title Defect”) within the time periods required under Sections 6.1 and 6.2 above, Seller may elect (but shall not be obligated) to attempt to remove, or cause to be removed at its expense, any such Title Defect, and shall provide Purchaser with notice within five (5) days of its receipt of any such objection, of its intention to attempt to cure such any such Title Defect. If Seller elects to attempt to cure any Title Defect, the Scheduled Closing Date shall be extended for a period of twenty (20) days for the purpose of such removal.  In the event that (i) Seller elects not to attempt to cure any such Title Defect, or (ii) Seller is unable to cure any such Title Defect within such twenty (20) days from the Scheduled Closing Date, Seller shall so notify Purchaser and Purchaser shall have the right to terminate this Agreement pursuant to this Section 6.3(a) and receive a refund of the Earnest Money Deposit, together with all interest which has accrued thereon, or to waive such Title Defect and proceed to the Closing. Purchaser shall make such election by written notice to Seller within three (3) days

 

17



 

after receipt of Seller’s notice. If Seller has elected to cure a Title Defect and thereafter fails to timely cure such Title Defect, and Purchaser elects to terminate this Agreement, then (i) Seller shall reimburse Purchaser for its reasonable out-of-pocket costs and expenses payable to third parties in connection with this transaction incurred after the date on which Seller informed Purchaser of its election to cure the Title Defect, not to exceed the Reimbursement Cap, and (ii) Purchaser shall promptly return Purchaser’s Information to Seller, after which neither party shall have any further obligation to the other under this Agreement except for the Termination Surviving Obligations. If Purchaser elects to proceed to the Closing, any Title Defects waived by Purchaser shall be deemed to constitute Permitted Exceptions, and there shall be no reduction in the Purchase Price. If, within the three-day period, Purchaser fails to notify Seller of Purchaser’s election to terminate, then Purchaser shall be deemed to have waived the Title Defect and to have elected to proceed to the Closing.

 

(b)           Notwithstanding any provision of this Article VI to the contrary, Seller shall be obligated to cure exceptions to title to the Property, in the manner described above, relating to liens and security interests securing any financings to Seller, any judgment liens, which are in existence on the Effective Date, or which come into existence after the Effective Date, and any mechanic’s liens resulting from work at the Property commissioned by Seller; provided, however, that any such mechanic’s lien may be cured by bonding in accordance with Pennsylvania law. In addition, Seller shall be obligated to pay off any outstanding real estate taxes that were due and payable prior to the Closing (but subject to adjustment in accordance with Section 10.4 below).

 

ARTICLE VII
INTERIM OPERATING COVENANTS AND ESTOPPELS

 

Section 7.1            Interim Operating Covenants. Seller covenants to Purchaser that Seller will:

 

(a)           Operations and Leasing. From the Effective Date until Closing, continue to operate, manage and maintain the Property 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 XI of this Agreement. From the Effective Date through the expiration of the Evaluation Period, Seller will notify Purchaser of any new Leases or amendments to existing Leases and provide copies thereof to Purchaser, along with notice of the anticipated expenditures in connection therewith to the extent known to Seller at such time, if such expenditures are not set forth in the amendment or new Lease, and will notify Purchaser of any real estate tax appeals initiated or settled during such period, but Purchaser shall have no right to approve any new Leases or Lease amendments or the initiation or settlement of any real estate tax appeals during such period (for the avoidance of doubt, Seller shall not be obligated to provide notice of tenant inducements that are set forth in a Lease amendment or new Lease, such as notice of the landlord’s tenant improvement or moving expense, obligations, even if the amendment or Lease does not set forth a specific dollar amount or maximum expenditure in connection with such inducement, unless Seller has already obtained a cost estimate for such item). Nothing herein shall require Seller to obtain written cost estimates for tenant improvements, but if Seller has them, it will deliver them to Purchaser along with the other new lease or lease amendment documents. After the expiration of the Evaluation Period and

 

18



 

Purchaser’s posting of the Additional Deposit with the Escrow Agent, Seller shall not amend any existing Lease or enter into any new Lease, or initiate or settle any tax appeal, without Purchaser’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.  It shall be reasonable for Purchaser to reject a proposed lease due to (i) rent amounts or free rent, (ii) tenant improvement allowances, (iii) term, (iv) creditworthiness of tenant, (v) landlord obligations such as requiring Purchaser to construct additional parking spaces at the Property and (vi) other reasonable underwriting criteria. From the expiration of the Evaluation Period and continuing through and after the Closing, Seller expressly reserves the right to prosecute and settle, subject to Purchaser’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed, any tax appeals that pertain to tax years prior to the tax year in which the Closing occurs.

 

(b)           Compliance with Governmental Regulations. From the Effective Date until Closing, not knowingly take any action that Seller knows would result in a failure to comply in any material respects with any 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 so long as there is no penalty or fine as a result thereof.

 

(c)           Service Contracts. From the expiration of the Evaluation Period until Closing, not enter into any service contract other than in the ordinary course of business, unless such service contract is terminable on thirty (30) days notice without penalty or unless Purchaser consents thereto in writing, which approval will not be unreasonably withheld, conditioned or delayed.

 

(d)           Notices. To the extent received by Seller, from the Effective Date until Closing, promptly deliver to Purchaser copies of written default notices, notices of lawsuits and notices of violations affecting the Property.

 

(e)           Representations and Warranties. Three (3) Business Days prior to the expiration of the Evaluation Period, Seller shall notify Purchaser in writing of any changes in the representations and warranties of Seller set forth in Section 8.1 below.

 

(f)            No New Liens and Encumbrances. After the Evaluation. Period, Seller shall not encumber the Property with any new lien or encumbrance.

 

Section 7.2            Estoppels. It will be a condition to Closing that Seller obtain from each Major Tenant an executed estoppel certificate in the form, or limited to the substance, prescribed by each Major Tenant’s Lease. Notwithstanding the foregoing, Seller agrees to request that each Major Tenant and other Tenants in the buildings and any REA Party execute an estoppel certificate in the form reasonably requested by Purchaser and annexed hereto as Exhibit G or such form as reasonably required by Purchaser’s lenders if such form is provided to Seller at least five (5) days prior to the end of the Evaluation Period. No later than five (5) Business Days after the end of the Evaluation Period, Seller will request each Major Tenant and other Tenants in the buildings and any REA Party to execute an estoppel certificate in the form of Exhibit G or such form as reasonably required by Purchaser’s lenders if such form is provided to Seller at least five (5) days prior to the end of the Evaluation Period and use good faith efforts to obtain same. Seller shall not be in default of its obligations hereunder if any Major Tenant or other

 

19



 

Tenant or REA Party fails to deliver an estoppel certificate, or delivers an estoppel certificate which is not in accordance with this Agreement.

 

Section 7.3            SNDAs.  Upon Purchaser’s request, Seller shall deliver to each Major Tenant a subordination, non-disturbance and attornment agreement (“SNDA”) in the form, or limited to the substance, prescribed by each Major Tenant’s Lease, or if no form is required or substance prescribed, then in a commercially reasonable form required by Purchaser’s lender, provided such form is provided to Seller at least five (5) days prior to the expiration of the Evaluation Period.  Seller shall not be in default of its obligations hereunder if any Major Tenant fails to deliver an SNDA, or delivers a SNDA which is not in accordance with this Agreement and the delivery of any SNDA shall not be a condition precedent to Purchaser’s obligations to complete Closing.

 

Section 7.4            Board Approval.  Purchaser acknowledges that Seller’s obligations hereunder are contingent upon Purchaser obtaining the approval of the Board of Directors of Mack-Cali Realty Corporation to the transaction contemplated herein.  In the event that the Board of Directors of Mack-Cali Realty Corporation does not grant its formal approval of the transaction contemplated by this Agreement and by the Other P&S Agreements prior to 5:00 p.m. on July 19, 2013, Seller may elect to terminate this Agreement by notice given to Purchaser prior to 5:00 p.m. on July 19, 2013, in which event Purchaser shall have the right to receive a refund of the Earnest Money Deposit, together with all interest which has accrued thereon, and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligation to each other hereunder.  If Seller does not give such termination notice to Purchaser prior to 5:00 p.m. on July 19, 2013, TIME BEING OF THE ESSENCE, Seller shall not have any further right to terminate this Agreement under this Section 7.4.

 

Section 7.5            Bulk Sales.  The parties acknowledge that certain taxes which may be due by Seller to the Commonwealth of Pennsylvania as of the Closing may become the obligation of Purchaser pursuant to Act of May 25, 1939, P.L. 189, 69 P.S. Section 529, the Act of May 29, 1951, P.L. 508, 72 P.S. Section 1403(a), and the Act of March 4, 1971, P.L. 6, No. 2, 72 P.S. Section 7240 and their respective amendments (“Bulk Sales Law”).  Accordingly, Seller hereby covenants to pay, on a timely basis, all tax obligations of Seller, including but not limited to any tax withholding obligations, that could become a liability of Purchaser pursuant to the Bulk Sales Law.  Seller hereby agrees to indemnify and to protect, defend, and hold Purchaser harmless from and against any and all claims, losses, damages, costs, and expenses (including reasonable attorneys’ fees, charges, and disbursements) incurred by Purchaser by reason of Seller’s failure to pay such taxes when due.  Such indemnification obligation shall expire on the earlier to occur of (a) Seller’s payment of such taxes and evidence substantiating same or, (b) Seller’s delivery to Purchaser of a certificate from the applicable Governmental Authority evidencing compliance with the Notice requirements of the Bulk Sales Law.  Seller’s covenants and obligations set forth in this Section 7.5 shall survive the Closing and shall not merge into the Deed.

 

20



 

ARTICLE VIII
REPRESENTATIONS AND WARRANTIES

 

Section 8.1            Seller’s Representations and Warranties. The following constitute the sole representations and warranties of Seller, which representations and warranties shall be true in all material respects as of the Effective Date and the Closing Date (but subject to modifications as permitted by this Agreement). Subject to the limitations set forth in Section 8.3 of this Agreement, Seller represents and warrants to Purchaser the following:

 

(a)           Status. Seller is a Delaware limited liability company, duly organized and validly existing under the laws of the State of Delaware.

 

(b)           Authority. Subject to Seller obtaining the approval of the Board of Directors of Mack-Cali Realty Corporation as provided in Section 7.4 above, 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.

 

(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 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 organizational 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. To Seller’s Knowledge, except as listed in Exhibit H, there are no legal actions, suits or similar proceedings pending and served, or threatened in writing against Seller or the Property which (i) are not adequately covered by existing insurance and (ii) if adversely determined, would materially and adversely affect the value of the Property, the continued operations thereof, or Seller’s ability to consummate the transactions contemplated hereby.

 

(e)           Non-Foreign Entity. Seller is not a “foreign person” or “foreign corporation” as those terms are defined in the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.

 

(f)            Tenants and Leases. As of the Effective Date, to Seller’s Knowledge, the only tenants of the Property are the Tenants set forth in the Lease Schedule on Exhibit F. To Seller’s Knowledge, the Documents made available to Purchaser pursuant to Section 5.2 hereof include true and correct copies of all of the Leases listed on Exhibit F. To Seller’s Knowledge, as of the Effective Date, no Tenant is in material non-monetary default, or in monetary default, under its Lease except as set forth on the arrearage schedule annexed hereto and made a part hereof as Exhibit K (the “Arrearage Schedule”). To Seller’s Knowledge, as of the Effective Date: (i) Seller has not received written notice in accordance with requirements of the applicable Lease from any Tenant that such Tenant is terminating its Lease, vacating its premises, or filing for bankruptcy, other than as listed on Schedule 8.1(f)(i); and (ii) Seller has paid all Tenant allowances and commissions for the current lease terms and demised premises under all Leases, other than as listed on Schedule 8.1(f)(ii). For the avoidance of doubt, Seller makes no representation or warranty with respect to any Tenant allowances or commissions that may be

 

21



 

due and owing upon an extension, renewal or expansion of an existing Lease as stated in such Lease or in any extension, renewal or expansion amendment to such Lease.

 

(g)           Service Contracts. To Seller’s Knowledge, none of the service providers listed on Exhibit E 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 E under which Seller is currently paying for services rendered in connection with the Property.

 

(h)           Environmental Matters. To Seller’s Knowledge, (i) copies of all environmental assessments, reports and studies in Seller’s possession have been made available to Purchaser for Purchaser’s review, and (ii) Seller has not received written notice that the Property is currently in violation of any Environmental Laws.

 

(i)            Condemnation. To Seller’s Knowledge, there are no condemnation or eminent domain actions pending, or threatened in writing, against Seller or any part of the Property.

 

(j)            Bankruptcy. Seller is not insolvent or bankrupt within the meaning of United States federal law or Commonwealth of Pennsylvania law.

 

(k)           Anti-Terrorism. Neither Seller, nor any officer, director, shareholder, partner, investor or member of Seller is named by any Executive Order of the United States Treasury Department as a terrorist, a “Specially Designated National and Blocked Person;” or any other banned or blocked person, entity, nation or transaction pursuant to the law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control (collectively, an “Identified Terrorist”). Seller is not engaging in this transaction on the behalf of, either directly or indirectly, any Identified Terrorist.

 

Section 8.2            Purchaser’s Representations and Warranties.  Purchaser represents and warrants to Seller the following:

 

(a)           Status. Purchaser is a duly organized and validly existing limited liability company under the laws of the Delaware.

 

(b)           Authority. The execution and delivery of this Agreement and the performance of Purchaser’s obligations hereunder have been duly authorized by all necessary action on the part of Purchaser, and this Agreement constitutes the legal, valid and binding obligation of Purchaser.

 

(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 organizational documents of Purchaser, 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 Purchaser is a party or by which it is bound.

 

22



 

(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.

 

(e)           Anti-Terrorism. Neither Purchaser, nor any officer, director, shareholder, partner, investor or member of Purchaser is named by any Executive Order of the United States Treasury Department as Identified Terrorist. Purchaser is not engaging in this transaction on the behalf of, either directly or indirectly, any Identified Terrorist.

 

Section 8.3            Survival of Representations, Warranties and Covenants. The representations and warranties of Seller set forth in Subsections 8.1 (a) through (g), (i), (j) and (k) will survive the Closing for a period of six (6) months, after which time they will merge into the Deed. The representations and warranties of Seller set forth in Subsection 8.1 (h) will survive the Closing for a period of one (1) year, after which time they will merge into the Deed. Purchaser will not have any right to bring any action against Seller as a result of any untruth or inaccuracy of such representations, warranties or certifications, unless and until the aggregate amount of all liability and losses arising out of any such untruth or inaccuracy when combined with the aggregate amount of all liability and losses with respect to the representations and warranties made by the M-C Sellers pursuant to the Other P&S Agreements, exceeds Two Hundred Fifty Thousand Dollars ($250,000.00); and then only to the extent of such excess.  In addition, in no event will the Seller’s and the M-C Sellers’ collective liability for all such breaches exceed, in the aggregate, the sum of Six Million Dollars ($6,000,000.00).  Seller shall have no liability with respect to any of Seller’s representations, warranties or certifications herein if, prior to the Closing, Purchaser obtains knowledge (from whatever source, including, without limitation, any tenant estoppel certificates, 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, warranties or certifications, and Purchaser nevertheless consummates the transaction contemplated by this Agreement. The Closing Surviving Obligations and the Termination 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 but will be merged into the Deed and other Closing documents delivered at the Closing.  Purchaser’s knowledge shall mean the present actual knowledge of William Glazer or Michael Corvasce.

 

ARTICLE IX
CONDITIONS PRECEDENT TO CLOSING

 

Section 9.1            Conditions Precedent to Obligation of Purchaser. The obligation of Purchaser to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by Purchaser in its sole discretion:

 

(a)           Seller shall have delivered to Purchaser all of the items required to be delivered to Purchaser pursuant to the terms of this Agreement, including but not limited to the

 

23



 

tenant estoppel certificates required under Section 7.2 and the documents and other items provided for in Section 10.3.

 

(b)           All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date (with appropriate modifications permitted under this Agreement). For the avoidance of doubt, the representations and warranties contained in Subsections 8.1 (f) and (g) may be modified at Closing to reflect changes in the identity of the Tenants and the Leases (that are not in violation of the operating covenants set forth in Section 7.1 above), notices received from any Tenant that it is terminating its Lease, vacating its premises, or filing for bankruptcy, any Tenant defaults between the date hereof and Closing, and any changes in the Service Contracts (in accordance with the operating covenants set forth in Section 7.1 above), and any defaults by the service providers thereunder.

 

(c)           Seller shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Seller as of the Closing Date.

 

(d)           At or prior to Closing, the Title Company shall be prepared, or First American Title Insurance Company’s National Office shall be prepared if the Title Company is not so prepared, to irrevocably commit to issue to Purchaser a standard Pennsylvania basic owner’s title insurance policy (without regard to any endorsements required by Purchaser or its lender) in the amount of the Purchase Price with respect to the Property pursuant to a marked-up title commitment or a pro-forma policy effective as of the Closing Date, subject only to Permitted Exceptions and the standard printed exceptions on such policy, upon the fulfillment by Seller and Purchaser of the Schedule B, Section I requirements, and the payment by Purchaser of the requisite premium.  Seller shall have the right to arrange for First American Title Insurance Company’s National Office to become involved in such title decisions.

 

(e)           Closing shall simultaneously take place between KPG Purchasers and M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Purchaser or any KPG Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement or any KPG Purchaser under the other P&S Agreements of which it is a party.

 

(f)            If elected by Seller, Seller shall have provided the Seller provided Purchase Money Loan at Closing pursuant to Section 2.4 above, unless such failure is due to the bad faith and intentional acts of Purchaser intended to impede Closing or a breach of any material covenant of Purchaser under this Agreement.

 

If the conditions precedent to Closing under this Section 9.1 are not satisfied or waived by Purchaser on or before Closing, Purchaser shall have the right to terminate this Agreement and receive a refund of the Earnest Money Deposit and interest earned thereon and except with respect to the Termination Surviving Obligations, this Agreement shall be null and void and the parties shall have no further obligations to each other hereunder.

 

24



 

Section 9.2            Conditions Precedent to Obligation to Seller. The obligation of Seller to consummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date (or as otherwise provided) of all of the following conditions, any or all of which may be waived by Seller in it sole discretion:

 

(a)           Seller shall have received the Purchase Price as adjusted pursuant to, and payable in the manner provided for, in this Agreement.

 

(b)           Purchaser shall have delivered to Seller all of the items required to be delivered to Seller pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 10.2.

 

(c)           All of the representations and warranties of Purchaser contained in this Agreement shall be true and correct in all material respects as of the Closing Date.

 

(d)           Purchaser shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Purchaser as of the Closing Date.

 

(e)           Seller shall have timely received from Keystone Property Group the notices and certificates required under that certain letter agreement dated of even date with this Agreement by and between M-C Penn Management Trust and Keystone Property Group.

 

(f)            Closing shall simultaneously take place between KPG Purchasers and the M-C Sellers under all of the Other P&S Agreements, unless such failure to close thereunder is due to the bad faith and intentional acts of Seller or any M-C Sellers intended to impede Closing or a breach of any material covenant of Seller under this Agreement or any M-C Seller under the other P&S Agreements of which it is a party.

 

ARTICLE X
CLOSING

 

Section 10.1          Closing.  (a)  The consummation of the transaction contemplated by this Agreement by delivery of documents and payments of money shall take place and be completed on or before 4:00 p.m. Eastern Time on the Scheduled Closing Date at the offices of the Escrow Agent.  Either of Purchaser and Seller may elect, one (1) time, to adjourn the Closing to a date no later than ten (10) days after the Scheduled Closing Date, or the next Business Day thereafter if such date is not a Business Day, by delivery of notice to the other, given at least one (1) day prior to the Scheduled Closing Date, TIME BEING OF THE ESSENCE with respect to each party’s respective obligation to close on such adjourned date.  Such adjourned date, if any, shall be the Closing Date.

 

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. The acceptance of the Deed by Purchaser shall be deemed to be full performance and discharge of each and every agreement and obligation on the part of Seller to be performed hereunder unless otherwise specifically provided herein.

 

25



 

Section 10.2          Purchaser’s Closing Obligations. On the Closing Date, Purchaser, at its sole cost and expense, will deliver to Seller the following items:

 

(a)           The Purchase Price, after all adjustments are made as herein provided, by Federal Reserve wire transfer of immediately available funds, in accordance with the timing and other requirements of Section 3.2;

 

(b)           A counterpart original of each Assignment of Leases, duly executed by Purchaser;

 

(c)           A counterpart original of each Assignment, duly executed by Purchaser;

 

(d)           Evidence reasonably satisfactory to Seller that the person executing the Assignment of Leases, the Assignment, and the Tenant Notice Letters on behalf of Purchaser has full right, power and authority to do so;

 

(e)           Form of written notice executed by Purchaser and to be addressed and delivered to the Tenants by Purchaser in accordance with Section 10.6 herein, (i) acknowledging the sale of the Property to Purchaser, (ii) acknowledging that Purchaser has received and that Purchaser is responsible for the Security Deposit (specifying the exact amount of the Security Deposit) and (iii) indicating that rent should thereafter be paid to Purchaser and giving instructions therefor (the “Tenant Notice Letters”);

 

(f)            A counterpart original of the Closing Statement, duly executed by Purchaser;

 

(g)           A certificate, dated as of the Closing Date, stating that the representations and warranties of Purchaser contained in Section 8.2 are true and correct in all material respects as of the Closing Date;

 

(h)           A counterpart original of the Operating Agreement (as defined in Section 10.3(k) below), duly executed by Purchaser;

 

(i)            Such other documents as, may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement; and

 

(j)            If Seller elects to provide the Seller Provided Purchase Money Loan pursuant to Section 2.4 above, Purchaser shall execute and deliver the loan documents required by Section 2.4 with respect to such loan.

 

Section 10.3          Seller’s Closing Obligations. On the Closing Date, Seller, at its sole cost and expense, will deliver to Purchaser the following items:

 

(a)           A special warranty deed (the “Deed”), duly executed and acknowledged by Seller, conveying to Purchaser the Real Property and the Improvements, subject only to the Permitted Exceptions;

 

26



 

(b)           A bill of sale in the form attached hereto as Exhibit C (the “Bill of Sale”), duly executed by Seller, assigning and conveying to Purchaser, without representation or warranty, title to the Personal Property;

 

(c)           A counterpart original of an assignment and assumption of Seller’s interest, as lessor, in the Leases and Security Deposits in the form attached hereto as Exhibit B (the “Assignment of Leases”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title and interest, as lessor, in the Leases and Security Deposits;

 

(d)           A counterpart original of an assignment and assumption of Seller’s interest in the Service Contracts (other than any Service Contracts as to which Purchaser has notified Seller prior to the expiration of the Evaluation Period that Purchaser elects not to assume at Closing) and the Licenses and Permits in the form attached hereto as Exhibit A (the “Assignment”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title, and interest, if any, in such Service Contracts and the Licenses and Permits;

 

(e)           The Tenant Notice Letters, duly executed by Seller, with respect to the Tenants;

 

(f)            Evidence reasonably satisfactory to Purchaser and the Title Company 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;

 

(g)           A certificate in the form attached hereto as Exhibit I (“Certificate as to Foreign Status”) certifying that Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended;

 

(h)           All original Leases, to the extent in Seller’s possession, the original Major Tenant Estoppels and any other estoppels as described in Section 7.2, SNDAs as described in Section 7.3 and all original Licenses and Permits and Service Contracts in Seller’s possession bearing on the Property;

 

(i)            A certificate, dated as of the Closing Date, stating that the representations and warranties of Seller contained in Section 8.1 are true and correct in all material respects as of the Closing Date (with appropriate modifications to reflect any changes therein that are not prohibited by this Agreement, including but not limited to updates to the Lease Schedule, Schedule of Service Contracts and Arrearage Schedule as set forth in Section 9.1(b));

 

(j)            An Affidavit of Title in form and substance reasonably satisfactory to the Title Company; and

 

(k)           A counterpart original of an operating agreement in the form of Exhibit L attached to this Agreement, duly executed by Seller or an affiliate of Seller (the “Operating Agreement”).

 

27



 

Section 10.4          Prorations and Adjustments.

 

(a)           Seller and Purchaser agree to prorate and/or adjust, as of 11:59 p.m. on the day preceding the Closing Date (the “Proration Time”), the following (collectively, the “Proration Items”):

 

(i)            Rents, in accordance with Section 10.4(c) below.

 

(ii)           Cash Security Deposits and any prepaid rents, together with any interest required to be paid thereon.

 

(iii)          Utility charges payable by Seller, including, without limitation, electricity, water charges and sewer charges. If there are meters on the Real Property, final readings and final billings for utilities will be made if possible on the day before the Closing Date, in which event no proration will be made at the Closing with respect to utility bills. If meter readings on the day before the Closing Date are not possible, then Seller will cause readings of all said meters to be performed not more than five (5) days prior to the Closing Date, and a per diem adjustment shall be made for the days between the meter reading date and the Closing Date based on the most recent meter reading. 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 any deposits with the utility providers.

 

(iv)          Amounts payable under the Service Contracts other than those Service Contracts which Purchaser has elected not to assume by written notice to Seller prior to the expiration of the Evaluation Period.

 

(v)           Real estate taxes due and payable for the calendar year. If the Closing Date shall occur before the tax rate is fixed, the apportionment of real estate taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation. If, subsequent to the Closing Date, real estate taxes (by reason of change in either assessment or rate or for any other reason other than as a result of the final determination or settlement of any tax appeal) for the Real Property should be determined to be higher or lower than those that are apportioned, a new computation shall be made, and Seller agrees to pay Purchaser any increase shown by such recomputation and vice versa; provided, however, that if any increase in the assessed value of the Property results from improvements made to the Property by Purchaser, then Purchaser shall be solely responsible for any increase in taxes attributable thereto. With respect to tax appeals, any tax refunds or credits attributable to tax years prior to the tax year in which the Closing occurs shall belong solely to Seller, regardless of whether such refunds are paid or credits are given before or after Closing. Any tax refunds or credits attributable to the tax year in which the Closing occurs shall be apportioned between Seller and Purchaser based on their respective periods of ownership in such tax year. The expenses of any tax appeals shall be apportioned between the parties in the same manner as the refunds and/or credits. The provisions of this Section 10.4(a)(v) shall survive the Closing.

 

28



 

(vi)          The value of fuel stored at the Real Property, at Seller’s most recent cost, including taxes, on the basis of a reading made within ten (10) days prior to the Closing by Seller’s supplier.

 

(b)           Seller will be charged and credited for the amounts of all of the Proration Items relating to the period up to and including the Proration Time, and Purchaser will be charged and credited for all of the Proration Items relating to the period after the Proration Time. The estimated Closing prorations shall be set forth on a preliminary closing statement to be prepared by Seller and submitted to Purchaser prior to the Closing Date (the “Closing Statement”). The Closing Statement, once agreed upon, shall be signed by Purchaser and Seller. The proration shall be paid at Closing by Purchaser to Seller (if the prorations result in a net credit to Seller) or by Seller to Purchaser (if the 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 in relation to insurance premiums, and Seller’s insurance policies will not be assigned to Purchaser. The provisions of this Section 10.4(b) will survive the Closing for twelve (12) months.

 

(c)           Purchaser will receive a credit on the Closing Statement for the prorated amount (as of the Proration Time) of all Rental previously paid to or collected by Seller and attributable to any period following the Proration Time. After the Closing, Seller will cause to be paid or turned over to Purchaser all Rental, if any, received by Seller after Closing and attributable to any period following the Proration Time. “Rental” as used herein includes fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by Tenants under the Leases or from other occupants or users of the Property. Rental is “Delinquent” when it was due prior to the Closing Date, and payment thereof has not been made on or before the Proration Time. Delinquent Rental will not be prorated. Purchaser agrees to use good faith collection procedures with respect to the collection of any Delinquent Rental. All sums collected by Purchaser in the month of Closing shall be applied to the month of Closing. All sums collected by Purchaser thereafter from each Tenant (excluding tenant specific billings for tenant work orders and other specific services as described in and governed by Section 10.4(e) below) will be applied first to current amounts owed by such Tenant to Purchaser, and then delinquencies owed by such Tenant to Seller. Any sums due Seller will be promptly remitted to Seller.  Purchaser shall not modify, amend or terminate any existing agreements with Tenants relating to past rent due.

 

(d)           At the Closing, Seller shall deliver to Purchaser a list of additional rent, however characterized, under each Lease, including without limitation, real estate taxes, electrical charges, utility costs, easement charges and operating expenses (collectively, “Operating Expenses”) billed to Tenants for the calendar year in which the Closing occurs

 

29



 

(both on a monthly basis and in the aggregate), the basis on which the monthly amounts are being billed and the amounts actually incurred by Seller on account of the components of Operating Expenses for such calendar year. Upon the reconciliation by Purchaser of the estimated Operating Expenses billed to Tenants, and the amounts actually incurred for such calendar year, Seller and Purchaser shall be liable to Tenants for the refund of any overpayments of Operating Expenses, and shall be entitled to payments from Tenants in the event of underpayments, as the case may be, on a prorata basis based upon each party’s period of ownership during such calendar year.

 

(e)           With respect to specific tenant billings for work orders, special items performed or provided at the request of a Tenant or other specific services, which are collected by Purchaser after the Closing Date but relate to the foregoing specific services rendered by Seller prior to the Proration Time, then notwithstanding anything to the contrary contained herein, Purchaser shall cause the first amounts collected from such Tenant to be paid to Seller on account thereof.

 

(f)            Notwithstanding any provision of this Section 10.4 to the contrary, Purchaser will be solely responsible for any leasing commissions, tenant improvement costs or other expenditures due with respect to any Lease amendments, renewals and/or expansions entered into or, if pursuant to options, exercised after the Effective Date.  Purchaser further agrees to be solely responsible for all leasing commissions, tenant improvement costs and other expenditures (for purposes of this Section 10.4(f), “New Tenant Costs”) incurred or to be incurred in connection with any new lease executed on or after the Effective Date in accordance with Section 7.1 above, and Purchaser will pay to Seller at Closing as an addition to the Purchase Price an amount equal to any New Tenant Costs paid by Seller.

 

Section 10.5          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)           Seller shall pay (i) Seller’s attorney’s fees; (ii) one-half (1/2) of escrow fees, if any; (iii) the cost of recording any discharges or satisfactions of liens that are the Seller’s responsibility to cure at Closing; and (iv) one-half (1/2) of the realty transfer tax.

 

(b)           Purchaser shall pay (i) the costs of recording the Deed to the Property and all other documents; (ii) the premium for an owner’s title insurance policy, the cost of customary title searches, the cost of any additional coverage under the title insurance policy or endorsements; (iii) all premiums and other costs for any mortgagee policy of title insurance, including but not limited to any additional coverage or endorsements required by the mortgage lender; (iv) Purchaser’s attorney’s fees; (v) one-half (1/2) of escrow fees, if any; (vi) the costs of the Updated Survey, as provided for in Section 6.1; and (vii) one-half (1/2) of the realty transfer tax.

 

(c)           Any other costs and expenses of Closing not provided for in this Section 10.5 shall be allocated between Purchaser and Seller in accordance with the custom in the area in which the Property is located.

 

30



 

Section 10.6          Post-Closing Delivery of Tenant Notice Letters. Immediately following Closing, Purchaser will deliver to each Tenant a Tenant Notice Letter, as described in Section 10.2(e).

 

Section 10.7          Like-Kind Exchange. Purchaser hereby acknowledges that Seller may now or hereafter desire to enter into a partially or completely nontaxable exchange (a “Section 1031 Exchange”) involving the Property (and/or any one or more of the properties comprising the Property) under Section 1031 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. In connection therewith, and notwithstanding anything herein to the contrary, Purchaser shall cooperate with Seller and shall take, and consent to Seller taking, any action in furtherance of effectuating a Section 1031 Exchange (including, without limitation, any action undertaken pursuant to Revenue Procedure 2000-37, 2000-40. IRB, as may hereafter be amended or revised (the “Revenue Procedure”)), including, without limitation, (a) permitting Seller or an “exchange accommodation titleholder” (within the meaning of the Revenue Procedure) (“EAT”) to assign, or cause the assignment of, this Agreement and all of Seller’s rights hereunder with respect to any or all of the Property to a “qualified intermediary” (as defined in Treasury Regulations Section 1.1031(k)-1(g)(4)(iii)) (a “QI”); (b) permitting Seller to assign this Agreement and all of Seller’s rights and obligations hereunder with respect to any or all of the Property and/or to convey, transfer or sell any or all of the Property, to (i) an EAT; (ii) any one or more limited liability companies (“LLCs”) that are wholly-owned by an EAT; or (iii) any one or more LLCs that are wholly-owned by Seller and/or any affiliate of Seller and to thereafter permit Seller to assign its interest in such one or more LLCs to an EAT; and (c) pursuant to the terms of this Agreement, having any or all of the Property conveyed by an EAT or any one or more of the LLCs referred to in (b)(ii) or (b)(iii) above, and allowing for the consideration therefor to be paid by an EAT, any such LLC or a QI; provided, however, that Purchaser shall not be required to delay the Closing; and provided further that Seller shall provide whatever safeguards are reasonably requested by Purchaser, and not inconsistent with Seller’s desire to effectuate a Section 1031 Exchange involving any of the Property, to ensure that all of Seller’s obligations under this Agreement shall be satisfied in accordance with the terms thereof.

 

ARTICLE XI
CONDEMNATION AND CASUALTY

 

Section 11.1          Casualty. If, prior to the Closing Date, all or a Significant Portion of the Property is destroyed or damaged by fire or other casualty, Seller will notify Purchaser of such casualty. 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 and all interest accrued thereon will be returned to Purchaser 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 or less than a Significant Portion of the Property is destroyed or damaged as aforesaid, Seller will not be obligated to repair such damage or destruction but (a) Seller will assign and turn over to Purchaser the insurance proceeds net of reasonable collection costs (or if such have not been awarded, all of its right, title and interest therein) payable with respect to such fire or other casualty up to the amount of the Purchase Price and (b) the parties will proceed to Closing pursuant to the terms hereof without abatement of the Purchase Price,

 

31



 

except that Purchaser will receive a credit for any insurance deductible amount. In the event Seller elects to perform any repairs as a result of a casualty, Seller will be entitled to deduct its costs and expenses from any amount to which Purchaser is entitled under this Section 11.1, which right shall survive the Closing; provided, however, that if the casualty occurs after the expiration of the Evaluation Period, then Seller’s right to make such repairs shall be subject to the prior written approval of Purchaser, which will not be unreasonably withheld, conditioned or delayed.

 

Section 11.2          Condemnation of Property. In the event of (a) any condemnation or sale in lieu of condemnation of all of the Property; or (b) any condemnation or sale in lieu of condemnation of greater than ten percent (10%) of the fair market value of the Property prior to the Closing, Purchaser will have the option, to be exercised within fifteen (15) days after receipt of notice of such condemnation or sale, of terminating Purchaser’s obligations under this Agreement, or electing to have this Agreement remain in full force and effect. In the event that either (i) any condemnation or sale in lieu of condemnation of the Property is for less than ten percent (10%) of the fair market value of the Property, or (ii) Purchaser does not terminate this Agreement pursuant to the preceding sentence, Seller will assign to Purchaser any and all claims for the proceeds of such condemnation or sale to the extent the same are applicable to the Property, 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 11.2, the Earnest Money Deposit and any interest thereon will be returned to Purchaser 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 surface may, after such taking, be used in substantially the same manner as though such rights have not been taken, 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 and will be the exclusive property of Purchaser upon Closing.

 

ARTICLE XII
CONFIDENTIALITY

 

Section 12.1          Confidentiality. Seller and Purchaser each expressly acknowledge and agree 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, officers, partners, directors, and shareholders, 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, 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 response to lawful process or subpoena or other valid or enforceable order of a court of competent jurisdiction or any filings with governmental authorities or stock exchange required by reason of the transactions provided for herein pursuant

 

32



 

to advice of counsel. Nothing in this Article XII will negate, supersede or otherwise affect the obligations of the parties under the Confidentiality Agreement. In addition, prior to, at or after the Closing, any release to the public of information with respect to the sale contemplated herein or any matters set forth in this Agreement will be made only in a form approved by Purchaser and Seller and their respective counsel, which approval shall not be unreasonably withheld, conditioned or delayed. The provisions of this Article XII will survive the 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 may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the following: (a) terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Earnest Money Deposit, together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Sixty-seven Thousand Five Hundred Fifty-six Dollars ($67,556) and the aggregate reimbursement by Seller to Purchaser under this Agreement and the Other P&S Agreements shall not exceed  Seven Hundred Fifty Thousand Dollars ($750,000) (the “Reimbursement Cap”); whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Earnest Money Deposit if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located on or before thirty (30) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Termination Surviving Obligations.

 

Section 13.2

 

Section 13.3          Default by Purchaser. In the event the Closing and the consummation of the transactions contemplated herein do not occur as provided herein, and if the Closing does not occur 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 (a) an amount equal to the Earnest Money Deposit, together with all interest accrued thereon, 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 (b) 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

 

33



 

equity) for any default by Purchaser resulting in the failure of consummation of the Closing, whereupon this Agreement will terminate and Seller and Purchaser will have no further rights or obligations hereunder, except with respect to the Termination Surviving Obligations. The  payment of such amount as liquidated damages is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Seller. 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 Termination Surviving Obligations.

 

ARTICLE XIV
NOTICES

 

Section 14.1          Notices.

 

(a)           All notices or other communications required or permitted hereunder shall be in writing, and shall be given by any nationally recognized overnight delivery service with proof of delivery, or by facsimile transmission (provided that such facsimile is confirmed by the sender by expedited delivery service in the manner previously described), 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. Unless changed in accordance with the preceding sentence, the addresses for notices given pursuant to this Agreement will be as follows:

 

If to Purchaser:

 

c/o Keystone Property Group

 

 

One Presidential Boulevard, Suite 300

 

 

Bala Cynwyd, Pennsylvania 19004

 

 

Attn.: William Glazer

 

 

(610) 980-7000 (tele.)

 

 

(610) 980-7009 (fax)

 

 

 

with a copy to:

 

Bradley A. Krouse, Esq.

 

 

Klehr Harrison Harvey Branzburg LLP

 

 

1835 Market Street

 

 

Philadelphia, PA 19103

 

 

(215) 568-6060 (tele.)

 

 

(215) 568-6603 (fax)

 

 

E-mail: [email protected]

 

 

 

If to Seller:

 

c/o Mack-Cali Realty Corporation

 

 

343 Thornall Street

 

 

Edison, New Jersey 08837-2206

 

 

 

with separate notices
to the attention of:

 

Mr. Mitchell E. Hersh

 

 

(732) 590-1040 (tele.)

 

 

(732) 205-9040 (fax)

 

 

E-mail: [email protected]

 

34



 

 

 

and

 

 

 

 

 

Roger W. Thomas, Esq.

 

 

(732) 590-1010 (tele.)

 

 

(732) 205-9015 (fax)

 

 

E-mail: [email protected]

 

 

 

 

 

and

 

 

 

 

 

Stephan K. Pahides

 

 

McCausland Keen & Buckman

 

 

Suite 160, Radnor Court

 

 

259 N. Radnor-Chester Road

 

 

Radnor, PA 19087

 

 

(610) 341-1075 (tele.)

 

 

(610) 341-1099 (fax)

 

 

E-Mail:  [email protected]

 

 

 

If to Escrow Agent:

 

c/o Executive Realty Transfer, Inc.

 

 

1431 Sandy Circle

 

 

Narberth, PA 19072

 

 

(610) 668-9301 (tele.)

 

 

(610) 668-9302 (fax)

 

 

E-mail: [email protected]

 

(b)           Notices given by (i) overnight delivery service as aforesaid shall be deemed received and effective on the first business day following such dispatch and (ii) facsimile transmission as aforesaid shall be deemed given at the time and on the date of machine transmittal provided same is sent and confirmation of receipt is received by the sender prior to 4:00 p.m. (EST) on a Business Day (if sent later, then notice shall be deemed given on the next Business Day). Notices may be given by counsel for the parties described above, and such notices shall be deemed given by said party for all purposes hereunder.

 

ARTICLE XV
ASSIGNMENT

 

Section 15.1          Assignment: Binding Effect. Purchaser shall not have the right to assign this Agreement except with the prior written consent of Seller, which such consent may be withheld in Seller’s sole discretion.  In the event that Seller consents to any such assignment, Purchaser shall be solely responsible and shall pay any transfer tax levied or due in connection with such assignment and shall indemnify Seller from any such transfer tax liability and Purchaser shall remain liable under this Agreement.  The provisions of this Section 15.1 shall survive Closing.

 

35



 

ARTICLE XVI
BROKERAGE.

 

Section 16.1          Brokers. Purchaser and Seller represent that they have not dealt with any brokers, finders or salesmen, in connection with this transaction, except Cushman & Wakefield to which Purchaser agrees to pay the fee of $100,000 at Closing. Purchaser and Seller agree to indemnify, defend and hold each other harmless from and against any and all loss, cost, damage, liability or expense, including reasonable attorneys’ fees, which either party may sustain, incur or be exposed to by reason of any claim for fees or commissions made through the other party. The provisions of this Article XVI will survive any Closing or termination of this Agreement.

 

ARTICLE XVII
ESCROW AGENT

 

Section 17.1          Escrow.

 

(a)           Escrow Agent will hold the Earnest Money Deposit in escrow in an interest-bearing account of the type generally used by Escrow Agent for the holding of escrow funds until the earlier of (i) the Closing, or (ii) the termination of this Agreement in accordance with any right hereunder. In the event Purchaser has not terminated this Agreement by the end of the Evaluation Period, the Earnest Money Deposit shall be non-refundable to Purchaser, but shall be credited against the Purchase Price at the Closing. All interest earned on the Earnest Money Deposit shall be paid to the party entitled to the Earnest Money Deposit. In the event this Agreement is terminated prior to the expiration of the Evaluation Period, the Earnest Money Deposit and all interest accrued thereon will be returned by the Escrow Agent to Purchaser. In the event the Closing occurs, the Earnest Money Deposit and all interest accrued thereon will be released to Seller, and Purchaser shall receive a credit against the Purchase Price in the amount of the Earnest Money Deposit, without the interest. In all other instances, Escrow Agent shall not release the Earnest Money Deposit to either party until Escrow Agent has been requested by Seller or Purchaser to release the Earnest Money Deposit and has given the other party five (5) Business Days to object to the release of the Earnest Money Deposit by giving written notice of such objection to the requesting party and Escrow Agent. Purchaser represents that its tax identification number, for purposes of reporting the interest earnings, is [                        ]. Seller represents that its tax identification number, for purposes of reporting the interest earnings, is 43-2068507.

 

(b)           Escrow Agent shall not be liable to any party for any act or omission,  except for bad faith, gross negligence or willful misconduct, and the parties agree to indemnify Escrow Agent and hold Escrow Agent harmless from any and all claims, damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Agent is acting solely as stakeholder for their mutual convenience. In the event Escrow Agent receives written notice of a dispute between the parties with respect to the Earnest Money Deposit and the interest earned thereon (the “Escrowed Funds”), Escrow Agent shall not be bound to release and deliver the Escrowed Funds to either party but may either (i) continue to hold the Escrowed Funds until otherwise directed in a writing signed by all parties hereto or (ii) deposit the Escrowed Funds with the clerk of any court of competent jurisdiction. Upon such deposit, Escrow Agent will be released from all duties and responsibilities hereunder. Escrow Agent shall have the right to consult with separate counsel of its own choosing (if it deems such consultation advisable) and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.

 

36



 

(c)           Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it with respect to the Escrowed Funds, the Property or the subject matter of this Agreement unless requested to do so by Purchaser or Seller, and Escrow Agent is indemnified to its satisfaction against the cost and expense of such defense. Escrow Agent shall not be required to institute legal proceedings of any kind and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectability of any check delivered in connection with this Agreement. Escrow Agent shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to have been signed by the proper parties.

 

ARTICLE XVIII
MISCELLANEOUS

 

Section 18.1          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 18.2          Recovery of Certain Fees. In the event a party hereto files any action or suit against another party hereto alleging 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 certain fees from the other party including 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 fees and expenses of counsel to the parties hereto, which may include printing, photocopying, 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 18.2 shall survive the entry of any judgment, and shall not merge, or be deemed to have merged, into any judgment.

 

Section 18.3          Construction. Headings at the beginning of each Article and Section of this Agreement 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 18.4          Counterparts. This Agreement may be executed in multiple counterparts, each of which, when assembled to include a signature for each party contemplated to sign this Agreement, will constitute a complete and fully executed contract. All such fully executed

 

37



 

counterparts will collectively constitute a single agreement. The delivery of a signed counterpart of this Agreement via e-mail or other electronic means by a party to this Agreement or legal counsel for such party shall be legally binding on such party, as fully as the delivery of a counterpart bearing an original signature of such party.

 

Section 18.5          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 18.6          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 18.7          Governing Law. THIS AGREEMENT WILL BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE COMMONWEALTH OF PENNSYLVANIA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT SITTING IN THE COMMONWEALTH OF PENNSYLVANIA.

 

Section 18.8          No Recording. The parties hereto agree that neither this Agreement nor any affidavit or memorandum concerning it will be recorded, and any recording of this Agreement or any such affidavit or memorandum by Purchaser will be deemed a default by Purchaser hereunder.

 

Section 18.9          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 18.10       Exhibits and Schedules. The following sets forth a list of Exhibits and Schedules to the Agreement:

 

Exhibit A -

 

Assignment

Exhibit B -

 

Assignment of Leases

Exhibit C -

 

Bill of Sale

 

38



 

Exhibit D -

 

Legal Description of Real Property

Exhibit E -

 

Service Contracts

Exhibit F -

 

Lease Schedule

Exhibit G -

 

Tenant Estoppel

Exhibit H -

 

Suits and Proceedings

Exhibit I -

 

Certificate as to Foreign Status

Exhibit J -

 

Major Tenants

Exhibit K -

 

Arrearage Schedule

Exhibit L -

 

Operating Agreement

Schedule 2.3 -

 

Purchasers, Sellers and Properties

Schedule 8.1(f)(i) -

Termination Notices

Schedule 8.1(f)(ii) -

Tenant Allowances and Leasing Commissions

 

Section 18.11       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 18.12       Limitations on Benefits. It is the explicit intention of Purchaser and Seller that no person or entity other than Purchaser, Seller and Seller’s Affiliates 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, Seller and Seller’s Affiliates or their respective successors and assigns as permitted hereunder. Except as set forth in this Section 18.12, 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 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.

 

Section 18.13       Discharge of Obligations. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every representation and warranty made by Seller herein and every agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement, except those which are herein specifically stated to survive the Closing.

 

Section 18.14       Waiver of Formal Requirements. The parties waive the formal requirements for tender of payment and deed.

 

Section 18.15       Zoning.  The current zoning classification of the Property is CAD — RCA — City Avenue District — Regional Center Area under the applicable Township zoning code.

 

39



 

IN WITNESS WHEREOF, Seller and Purchaser have respectively executed this Agreement as of the Effective Date.

 

 

PURCHASER:

 

 

 

MONUMENT KPG III, LLC, a Delaware limited liability company

 

 

 

By:

/s/ William Glazer

 

Name: William Glazer

 

Title: President

 

 

 

 

 

 

 

SELLER:

 

 

 

 

MONUMENT 150 REALTY L.L.C., a Delaware limited liability company

 

 

 

 

By:

Monument Holding L.L.C., sole member

 

 

 

 

By:

Mack-Cali Realty, L.P., sole member

 

 

 

 

By:

Mack-Cali Realty Corporation, general partner

 

 

 

By:

/s/ Mitchell E. Hersh

 

Name: Mitchell E. Hersh

 

Title: President and Chief Executive Officer

 

 

 

 

 

As to Article XVII only:

 

 

 

ESCROW AGENT:

 

 

 

 

First American Title Insurance Company,

 

through its agent, Executive Realty Transfer, Inc.

 

 

 

 

By:

/s/ Beth Krause

 

Name: Beth Krause

 

Title: President

 

40



 

EXHIBIT A

 

ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS,

LICENSES AND PERMITS

 

THIS ASSIGNMENT AND ASSUMPTION (this “Assignment”) is made as of                      20         by and between [                                                          ] under the laws of the [                                                          ], having an office located at c/o Mack-Cali Realty Corporation, 343 Thornall Street, Edison, New Jersey 08837 (“Assignor”), and                                           , a                                                       , having an office located at                                                           (“Assignee”).

 

W I T N E S S E T H:

 

WHEREAS, Assignor is the owner of real property commonly known as [                                                          ], more particularly described in Exhibit A attached hereto and made a part hereof (the “Property”), which Property is affected by certain service agreements, maintenance contracts, equipment leasing agreements, warranties, guarantees, bonds, open purchase orders and other contracts for the provision of labor, services, materials or supplies relating solely to the Property, together with all renewals, supplements, amendments and modifications thereof, which are set forth on Exhibit B attached hereto and made a part hereof (hereinafter collectively referred to as the “Contracts”);

 

WHEREAS, Assignor has entered into that certain     Agreement of Sale and Purchase (the “Sale Agreement”), dated                   , 20        , with Assignee, wherein Assignor has agreed to convey to Assignee all of Assignor’s right, title and interest in and to the Property;

 

WHEREAS, Assignor desires to assign to Assignee, to the extent assignable, all of Assignor’s right, title and interest in and to: (i) the Contracts and (ii) all licenses, permits, certificates of occupancy, approvals, dedications, subdivision maps and entitlements in connection with the Property now or hereafter issued, approved or granted by any governmental or quasi-governmental bodies or agencies having jurisdiction over the Property or any portion thereof, together with all renewals and modifications thereof (collectively, the “Licenses and Permits”), and Assignee desires to accept the assignment of such right, title and interest in and to the Contracts and Licenses and Permits and to assume all of Assignor’s rights and obligations thereunder.

 

NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained and for other good and valuable consideration, the parties, intending to be legally bound, do hereby agree as follows:

 

1.             Assignor hereby assigns, sells, transfers, and sets over to Assignee, its successors and assigns, to the extent assignable, all of Assignor’s right, title and interest in and to (i) the Contracts and (ii) the Licenses and Permits.

 

2.             Assignee hereby accepts the foregoing assignment and transfer and agrees to assume, fulfill, perform and discharge all the various commitments, obligations and liabilities of

 



 

Assignor under and by virtue of the Contracts and Licenses and Permits accruing or obligated to be performed from and after the date hereof.

 

3.             Assignor hereby agrees to indemnify, defend and hold harmless Assignee from and against any and all obligations, claims, liabilities, losses, damages, causes of action, costs and expenses (including, without limitation, court costs through all appeals and reasonable attorneys’ fees and disbursements) incurred in connection with claims arising with respect to the Contracts and/or Licenses and Permits before the date hereof.

 

4.             Assignee hereby agrees to indemnify, defend and hold harmless Assignor from and against any and all obligations, claims, liabilities, losses, damages, causes of action, costs and expenses (including, without limitation, court costs through all appeals and reasonable attorneys’ fees and disbursements) incurred in connection with claims arising with respect to the Contracts and/or Licenses and Permits on and after the date hereof.

 

5.             This Assignment is made without representation, warranty (express or implied) or recourse of any kind, except as may be expressly provided herein or in the Sale Agreement.

 

6.             This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.  This Agreement shall be governed by, and construed under, the laws of the Commonwealth of Pennsylvania.

 

7.             This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original Assignment, but all of which shall constitute but one and the same Assignment.

 

IN WITNESS WHEREOF, Assignor and Assignee do hereby execute and deliver this Assignment as of the date and year first above written.

 

 

ASSIGNOR:

 

 

 

 

 

[                                                          ]

 

 

 

By: [                                                          ]

 

 

 

 

 

By [                                                          ]

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

EXHIBIT A

 

Legal Description

 



 

EXHIBIT B

 

Contracts

 



 

EXHIBIT B

 

ASSIGNMENT AND ASSUMPTION OF LEASES

 

THIS ASSIGNMENT AND ASSUMPTION (this “Assignment”) is made as of                      20       by and between [                                                          ] organized under the laws of the [                                                          ], having an office located at c/o Mack-Cali Realty Corporation, 343 Thornall Street, Edison, New Jersey 08837 (“Assignor”), and                                           , a                                                       , having an office located at                                                           (“Assignee”).

 

W I T N E S S E T H:

 

WHEREAS, the property commonly known as [                                                          ], further described in Exhibit A attached hereto (the “Property”) is affected by certain leases and other agreements with respect to the use and occupancy of the Property, which leases and other agreements are listed on Exhibit B annexed hereto and made a part hereof (the “Leases”);

 

WHEREAS, Assignor has entered into that certain Agreement of Sale and Purchase (“Agreement”) dated                                 , 20       with Assignee, wherein Assignor has agreed to assign and transfer to Assignee all of Assignor’s right, title and interest in and to the Leases and all security deposits paid to Assignor, as landlord (together with any interest which has accrued thereon, but only to the extent such interest has accrued for the benefit of a tenant), to the extent such security deposits have not yet been applied toward the obligations of any tenant under the Leases (“Security Deposits”);

 

WHEREAS, Assignor desires to assign to Assignee all of Assignor’s right, title and interest in and to the Leases and Security Deposits, and Assignee desires to accept the assignment of such right, title and interest in and to the Leases and Security Deposits and to assume all of Assignor’s rights and obligations under the Leases and with respect to the Security Deposits.

 

NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, and for other good and valuable consideration, the parties, intending to be legally bound, do hereby agree as follows:

 

1.             Assignor hereby assigns, sells, transfers, sets over and conveys to Assignee, its successors and assigns, all of Assignor’s right, title and interest in and to (i) the Leases and (ii) Security Deposits.  Assignee hereby accepts this assignment and transfer and agrees to assume, fulfill, perform and discharge all the various commitments, obligations and liabilities of Assignor under and by virtue of the Leases, accruing or obligated to be performed from and after the date hereof, including the return of Security Deposits in accordance with the terms of the Leases.

 

2.             Assignor hereby agrees to indemnify, defend and hold harmless Assignee from and against any and all obligations, claims, liabilities, losses, damages, causes of action, costs and expenses (including, without limitation, court costs through all appeals and reasonable

 



 

attorneys’ fees and disbursements) incurred in connection with claims arising with respect to (i) the obligations of the landlord under the Leases required to be performed prior to the date hereof; and (ii) the failure of Assignor to deliver or credit to Assignee the Security Deposits.

 

3.             Assignee hereby agrees to indemnify, defend and hold harmless Assignor from and against any and all obligations, claims, liabilities, losses, damages, causes of action, costs and expenses (including, without limitation, court costs through all appeals and reasonable attorneys’ fees and disbursements) incurred in connection with claims arising with respect to (i) the obligations of the landlord under the Leases from and after the date hereof and (ii) the failure of Assignee to properly maintain, apply and return any of the Security Deposits in accordance with terms of the Leases.

 

4.             This Assignment is made without representation, warranty (express or implied) or recourse of any kind, except as may be expressly provided herein or in the Agreement.

 

5.             This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.  This Assignment shall be governed by, and construed under, the laws of the Commonwealth of Pennsylvania.

 

6.             This Assignment may be executed in one or more counterparts, each of which shall be deemed to be an original Assignment, but all of which shall constitute but one and the same Assignment.

 

IN WITNESS WHEREOF, Assignor and Assignee do hereby execute and deliver this Assignment as of the date and year first above written.

 

 

ASSIGNOR:

 

 

 

[                                                          ]

 

 

 

By: [                                                          ]

 

 

 

 

 

 

By [                                                          ]

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

ASSIGNEE:

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

Exhibit A

 

Legal Description

 



 

Exhibit B

 

Description of Leases

 



 

EXHIBIT C

 

BILL OF SALE

 

[                                                          ] organized under the laws of the [                                                          ] (“Seller”), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby grants, bargains, sells, transfers and delivers to                                                           , a                                                      (“Buyer”), all of Seller’s right, title and interest in and to all 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 real property commonly known as [                                                          ] (more fully described on Exhibit A annexed hereto and made a part hereof; the “Real Property”) and situated at the Real Property on the date hereof, but specifically excluding all personal property leased by Seller or owned by tenants or others, if any (the “Personal Property”), to have and to hold the Personal Property unto Buyer, its successors and assigns, forever.

 

Seller makes no representation or warranty to Buyer, express or implied, in connection with this Bill of Sale or the sale, transfer and conveyance made hereby.

 

EXECUTED under seal this            day of                 , 20      .

 

 

[                                                          ]

 

 

 

By: [                                                          ]

 

 

 

 

 

By: [                                                          ]

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

EXHIBIT D

 

LEGAL DESCRIPTION

 

ALL THAT CERTAIN parcel or tract of land with the buildings or improvements erected thereon, SITUATE in the Township of Lower Merion, County of Montgomery State of Pennsylvania, bounded and described in accordance with a land Title Survey prepared by Barton and Martin Engineers a division of Vollmer Associates LLP, dated 12/15/2004, last revised 12/22/2004, to wit.

 

BEGINNING at a point on the title line within the bed of Righters Ferry Road, said point being at the distance of 231.31 feet measured Southwesterly along the said Title line from its intersection with the title line within the bed of Monument Road, said point also being a comer of lands now or formerly of Charles W. Montague, the Southeasterly right of way line of Righters Ferry Road being 25 feet Southeasterly from and parallel to the title Line; thence from said point of beginning along lands now or formerly of Charles W. Montague, South 41 degrees 7 minutes East 107.33 feet to an iron pin, the line crossing a monument set 25.08 feet from the beginning of this line; thence still along the said land South 22 degrees 45 minutes East 92.45 feet to an iron pin a corner; thence still along lands of the same and lands now or formerly of the Estate of Helen Challenger, North 67 degrees 15 minutes East 190.25 feet to a point in the title line in the bed of Monument Road, the line crossing a monument 30.02 feet from the end of this line; thence along the title line within the bed of Monument Road, the Southwesterly side line of Monument Road being 30 feet Southwesterly from and parallel to the title line; thence along the said title line South 25 degrees 00 minutes East 491.20 feet to a point a comer of lands now or formerly of Prudential Insurance Company of America; thence leaving said Monument Road and along lands now or formerly of Prudential Insurance Company of America, South 67 degrees 15 minutes West 603.05 feet to an iron pin the line crossing an iron pin 30.02 feet from the beginning of this line; thence along lands now or formerly of Muriel H. Miller, North 22 degrees 45 minutes West 464.34 to an iron pin corner; thence Still along lands of the same, North 44 degrees 13 minutes 30 seconds East 21.73 feet to a point a corner; thence still along lands of the same, North 22 degrees 45 minutes West 67.92 feet to a point in the title line within the bed of Righters Ferry Road, aforementioned, the line passing over a monument 27.16 feet from the end of this line; thence along the said title line within the bed of Righters Ferry Road, North 44 degrees 13 minutes 30 seconds East 369.10 feet to the first mentioned point and place of beginning.

 

CONTAINING 7.73985 Acres.

 

#40-00-40804-007

 



 

EXHIBIT E

 

SERVICE CONTRACTS

 

Day Porter

 

Agreement between Sky-Hi Building Porters, LLC, Contractor, and Monument 150 Realty L.L.C., Owner, dated December 11, 2012.

 

Elevator Inspections

 

Agreement between Elevator Code Inspections, Contractor, and Monument 150 Realty L.L.C., Owner, dated February 1, 2013.

 

Elevator Maintenance

 

Agreement between Quality Elevator, Inc., Contractor, and Monument 150 Realty L.L.C., Owner, dated November 1, 2010.

 

Generator Service

 

Agreement between Penncat Corporation, Contractor, and Monument 150 Realty L.L.C., Owner, dated August 15, 2011.

 

HVAC Maintenance

 

Agreement between Wilgro Services, Inc., Contractor, and Monument 150 Realty L.L.C., Owner, dated May 27, 2011. [Out for Renewal]

 

Interior Plant Maintenance And Holiday Displays

 

Agreement between Ambius, LLC, Contractor, and Monument 150 Realty L.L.C., Owner, dated April 26, 2012.

 

Janitorial Services

 

Agreement between Sky-Hi Building Services, Contractor, and Monument 150 Realty L.L.C., Owner, dated December 11, 2012.

 

Landscaping

 

Agreement between Charles Friel, Inc., Contractor, and Monument 150 Realty L.L.C., Owner, dated February 21, 2012.

 

Life Safety

 

Agreement between Wayman Fire Protection, Inc., Contractor, and Monument 150 Realty L.L.C., Owner, dated May 17, 2013.

 

Pest Control

 

Agreement between Orkin Pest Control, Contractor, and Monument 150 Realty L.L.C., Owner, dated April 4, 2013.

 



 

Trash and Recyclable Removal

 

Agreement between Waste Management of PA, Contractor, and Monument 150 Realty L.L.C., Owner, dated April 6, 2012.

 

Water Treatment

 

Agreement between Esco Process, Contractor, and Monument 150 Realty L.L.C., Owner, dated December 13, 2011.

 

Window Cleaning

 

Agreement between Sky-Hi Building Services, Contractor, and Mack Monument 150 Realty L.L.C., Owner, dated December 11, 2012.

 



 

EXHIBIT F

 

LEASE SCHEDULE

 

Alan F. Markovitz, individually, and Gilbert E. Toll, Attorney at Law P.C.

 

Standard Office Lease between 150 Monument Road Inc., Landlord, and Alan F. Markovitz, individually, and Gilbert E. Toll, Attorney at Law, PC, Lessee, dated September 14, 2004.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument Road Inc., Lessor, and Alan F. Markovitz, individually, and Gilbert E. Toll, Attorney at Law, PC, Lessee, dated April 15, 2008.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Alan F. Markovitz, individually, and Gilbert E. Toll, Attorney at Law, PC, Lessee, dated September 12, 2012.

 

American Diabetes Association, Inc.

 

Lease between Monument 150 Realty L.L.C., Lessor, and American Diabetes Association, Inc., Lessee, dated October 12, 2005.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and American Diabetes Association, Inc., Lessee, dated March 21, 2006.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and American Diabetes Association, Inc., Lessee, dated September 29, 2011.

·                  Standard Form of License Agreement between Monument 150 Realty L.L.C., Licensor, and American Diabetes Association, Inc., Licensee, dated November 1, 2011.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and American Diabetes Association, Inc., Lessee, dated November 26, 2012.

 

Atlantic Real Estate Group, LLC

 

Short Form Lease between Monument 150 Realty L.L.C., Landlord, and Atlantic Real Estate Group, LLC, Tenant, dated March 30, 2010.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Atlantic Real Estate Group, LLC, Tenant, dated December 20, 2011.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Atlantic Real Estate Group, LLC, Tenant, dated May 10, 2013.

 

Boardroom Advisors LLC

 

Short Form Lease between Monument 150 Realty L.L.C., Landlord, and Boardroom Advisors LLC, Tenant, dated June 24, 2008.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Boardroom Advisors LLC, Tenant, dated November 5, 2008.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Boardroom Advisors LLC, Tenant, dated November 5, 2008.

 

Box-It, Inc.

 

Standard Office Lease between 150 Monument, Inc., Lessor, and Box-It, Inc., Lessee, dated September 8, 1999.

 



 

·                  First Amendment to Lease between 150 Monument Inc., Lessor, and Box-It, Inc., Lessee, dated January 1, 2004.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument Inc., Lessor, and Box-It, Inc. Lessee, dated December 28, 2007.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Box-It, Inc., Lessee dated February 6, 2009.

·                  Fourth Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Box-It, Inc., Lessee dated March 27, 2013.

 

Brotech Corp.

 

Standard Office Lease between 150 Monument Inc., Lessor, and Brotech Corp., Lessee, dated 2001.

 

·                  First Amendment to Lease between 150 Monument Inc., Lessor, and Brotech Corp., Lessee, dated June 15, 2001.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument Inc., Lessor, and Brotech Corp., Lessee, dated March 31, 2005.

·                  Landlord’s Subordination between Brotech Corp., Borrower, and Wilmington Trust FSB as Delegate, Secured Party, and Monument 150 Realty L.L.C., Landlord, dated August 27, 2009.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Brotech Corporation, Lessee, dated March 7, 2012.

 

Corporate Staffing Services, LLC

 

Standard Office Lease between 150 Monument Road, Inc., Lessor and Corporate Staffing Services, LLC, Lessee, dated November 19, 2004.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument Inc., Lessor, and Corporate Staffing Services, LLC, Lessee, dated December 21, 2007.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Corporate Staffing Services, LLC, Lessee, dated March 22, 2013.

 

Crohns and Colitis Foundation of America, Inc.

 

Short Form Lease between 150 Monument Realty LLC,  Landlord, and Crohns and Colitis Foundation of America, Inc., Tenant, dated April 23, 2012.

 

Hmetrix LLC

 

Short Form Lease between Monument 150 Realty L.L.C., Landlord, and Hmetrix LLC, Tenant, dated March 27, 2012.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Hmetrix LLC, Tenant, dated June 20, 2012.

·                  Letter between Monument 150 Realty L.L.C., Landlord, and Hmetrix LLC,  Tenant, advising Landlord invoking its right, pursuant to Article 29 of the Lease, to relocate the Tenant’s Premises to other space within the Building consisting of 1,491 RSF (“Relocation Space”), dated October 16, 2012.

 



 

Interactive Forums, Inc.

 

Standard Office Lease between 150 Monument, Inc., Lessor, and Interactive Forums Inc., Lessee, dated December 31, 2002.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Interactive Forums Inc., Lessee, dated December 21, 2007.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument Inc. Lessor, and Interactive Forums, Inc., Lessee, dated December 22, 2008.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Interactive Forums Inc., Lessee, dated December 12, 2009.

·                  Fourth Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Interactive Forums Inc., Lessee, dated March 7, 2011.

 

Iverson Gaming Systems, Inc.

 

Lease between Monument 150 Realty L.L.C., Lessor, and Iverson Gaming Systems, Inc., Lessee, dated August 23, 2006.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Iverson Gaming Systems, Inc., Lessee, dated January 30, 2007.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Iverson Gaming Systems, Inc., Lessee, dated September 30, 2009.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Iverson Gaming Systems, Inc., Lessee, dated May 24, 2013.

 

Medarbor LLC d/b/a Medarbor Pharmacy Pennsylvania Domestic LLC

 

Short Form Lease between Monument 150 Realty L.L.C., Landlord, and Medarbor LLC d/b/a Medarbor Pharmacy Pennsylvania Domestic LLC, Tenant, dated September 11, 2009.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Medarbor LLC d/b/a Medarbor Pharmacy Pennsylvania Domestic LLC, Tenant, dated October 15, 2002.

 

Morison Cogen, LLP

 

Standard Office Lease between 150 Monument Inc., Lessor, and Cogen Sklar, LLP,  Lessee, dated August 23, 2002.

 

·                  Amendment of Registration filed with the Registered Limited Liability Partnership, Pennsylvania Department of State Corporation Bureau, amend name from Cogen Sklar LLP, to Morison Cogen LLP, dated January 18, 2006.

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Morison Cogen LLP f/k/a Cogen Sklar, LLP, Lessee, dated December 29, 2006.

·                  Settlement Agreement between Monument 150 Realty L.L.C., Lessor, and Morison Cogen LLP, Lessee, dated March 24, 2008.

 

Office Media Network, Inc.

 

Property Service Agreement for Office Buildings between Monument 150 Realty L.L.C., Subscriber, and Office Media Network, Inc., Service Provider, Effective Date listed as September 5, 2007.

 



 

The Papal Foundation

 

Lease between Monument 150 Realty L.L.C., Lessor, and The Papal Foundation, Lessee, dated June 16, 2006.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and The Papal Foundation, Lessee, dated August 14, 2006.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C.,  Lessor, and The Papal Foundation, Lessee, dated December 1, 2008.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and The Papal Foundation, Lessee, dated June 29, 2012.

 

Peruto & Peruto

 

Short Form Lease between Monument 150 Realty L.L.C., Landlord, and Peruto & Peruto, Tenant, dated June 30, 2009.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Peruto & Peruto, Tenant, dated April 9, 2010.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and Peruto & Peruto, Tenant, dated December 26, 2011.

 

Philadelphia Partners of Pennsylvania, Inc. d/b/a Hair Club for Men

 

Standard Office Lease between 150 Monument, Inc., Lessor, and Philadelphia Partners of Pennsylvania, Inc., d/b/a Hair Club for Men, Lessee, dated October 24, 2001.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument, Inc., Lessor, and Philadelphia Partners of Pennsylvania, Inc., d/b/a Hair Club for Men, Lessee, dated September 12, 2008.

 

Regency Centers, L.P.

 

Standard Office Lease between 150 Monument, Inc., Lessor, and Regency Centers, L.P., Lessee, dated October, 2002.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument, Inc., Lessor, and Regency Centers, L.P., Lessee, dated January 30, 2006.

·                  Standard Form of License Agreement between Monument 150 Realty L.L.C., Lessor, and Regency Centers, L.P., Lessee, dated July 20, 2006.

·                  Letter from Regency Centers, L.P. giving official notice to exercise the Termination Option, dated August 21, 2012.

·                  Letter of Acknowledgement of Lessee’s Termination Notice between Monument 150 Realty L.L.C., Lessor, and Regency Centers, L.P., Lessee, dated August 23, 2012.

·                  Second Amendment between Monument 150 Realty L.L.C., Lessor, and Regency Centers, L.P., Lessee, dated October 10, 2012.

 

RGN-Bala Cynwyd I, LLC

 

Lease between Monument 150 Realty L.L.C., Lessor, and RGN-Bala Cynwyd I, LLC,  Lessee, dated October 12, 2012.

 

·                  Guaranty between Monument 150 Realty L.L.C., Lessor, to RGN-Bala Cynwyd I, LLC, Lessee, and HQ Global Workplaces LLC, undated.

 



 

RLI Insurance Company

 

Short Form Lease between Monument 150 Realty L.L.C., Landlord, and RLI Insurance Company, Tenant, dated October 21, 2009.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and RLI Insurance Company, Tenant, dated January 21, 2010.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and RLI Insurance Company, Tenant, dated March 30, 2011.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and RLI Insurance Company, Tenant, dated April 17, 2012.

·                  Fourth Amendment to Lease between Monument 150 Realty L.L.C., Landlord, and RLI Insurance Company, Tenant, dated May 23, 2012.

 

Simpson Senior Services, Inc.

 

Standard Office Lease between 150 Monument, Inc., Lessor, and Simpson Senior Services, Inc., Lessee, dated September, 2002.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument, Inc., Lessor, and Simpson Senior Services, Inc., Lessee, dated December 30, 2005.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Simpson Senior Services, Inc., Lessee, dated August 11, 2006.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and Simpson Senior Services, Inc., Lessee, dated January 23, 2012.

 

The Standard Register Company

 

Standard Office Lease between 150 Monument, Inc., as Lessor, and The Standard Register Company, as Lessee, dated October, 2002.

 

·                  First Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument, Inc., Lessor, and The Standard Register Company, Lessee, dated September 14, 2005.

·                  Second Amendment to Lease between Monument 150 Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and The Standard Register Company, Lessee, dated August 14, 2006.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and The Standard Register Company, Lessee, dated October 30, 2006.

·                  Fourth Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and The Standard Register Company, Lessee, dated March 2, 2010.

·                  Fifth Amendment to Lease between Monument 150 Realty L.L.C., Lessor, and The Standard Register Company, Lessee, dated June 24, 2010.

 

The Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, a Pennsylvania non-profit corporation, and its subsidiary Wissahickon Hospice

 

Lease between Monument 150 Realty L.L.C., Lessor, and The Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, a Pennsylvania non-profit corporation, and its subsidiary Wissahickon Hospice, Lessee, dated September 29, 2006.

 



 

·                  Amendment No. 1 to Lease between Monument 150 Realty L.L.C., Landlord, and Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, Tenant, dated April 11, 2007.

·                  First Amendment to Lease between Monument 150 Realty L.L.C., Lessor, as The Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, a Pennsylvania non-profit corporation, and its subsidiary Wissahickon Hospice, Lessee, dated October 3, 2007.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., Lessor, as The Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, a Pennsylvania non-profit corporation, and its subsidiary Wissahickon Hospice, Lessee, dated March 23, 2012.

·                  Letter from The Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, a Pennsylvania non-profit corporation, and its subsidiary Wissahickon Hospice, giving formal notice of their intent to exercise the Termination Option, dated July 30, 2012.

 

Verizon Pennsylvania Inc.

 

Telecommunications Facilities License Agreement between Monument 150 Realty L.L.C., as Owner, and Verizon Pennsylvania Inc., as Verizon, dated June 8, 2009.

 

Mark Verlin, an individual

 

Standard Office Lease between 150 Monument, Inc., Lessor, and Mark Verlin, an individual, Lessee, dated October 8, 1999.

 

·                  First Amendment to Lease between 150 Monument, Inc., Lessor, and Mark Verlin, Esquire, Lessee, dated October 2003.

·                  Second Amendment to Lease between Monument 150 Realty L.L.C., successor-in-interest to 150 Monument, Inc., Lessor, and Mark Verlin, Esquire, Lessee, dated December 14, 2007.

·                  Third Amendment to Lease between Monument 150 Realty L.L.C., as Lessor, and Mark Verlin, Esquire, as Lessee, dated June 14, 2011.

 



 

EXHIBIT G

 

TENANT ESTOPPEL CERTIFICATE

 

FORM

 

[Letterhead of Tenant]

 

[Date]

 

To:                             [Purchaser name and address]

 

[Lender name and address]

 

Re:                             Lease dated                                                                   , with amendments dated                                            ( together with all amendments and modifications thereto, the “Lease”), between                                                         , as landlord, and                                                                                                (“Tenant”) (the landlord thereunder from time to time being referred to herein as “Landlord”), covering approximately                                square feet of space (the “Leased Premises”) in a building located at                                                           , and commonly known as

 

The undersigned Tenant hereby ratifies the Lease and agrees and certifies as follows:

 

1.                                      That attached hereto as “Exhibit A” is a true, correct and complete copy of the Lease, together with all amendments thereto, which Lease is in full force and effect and has not been modified, supplemented or amended in any way except as set forth in “Exhibit A.”  The Leased Premises have not been sublet in whole or in part, except                                                   , and the Lease has not been assigned or encumbered in whole or in part, whether conditionally, collaterally or otherwise, except                                                 .

 

2.                                      Tenant has accepted possession of the Leased Premises and is presently in occupancy of the Leased Premises.  The initial term of the Lease commenced on                               , and the current term of the Lease will expire on                                                           .  The Lease provides     [  ] additional successive extensions for a period of         [  ] year[s ] each.  The extension options for the following period[s] has/have been exercised:                       .

 

3.                                      Tenant began paying rent on                                           .  Tenant is obligated to pay fixed or base rent under the Lease in the annual amount of $                                , payable in monthly installments of $                          .  No rent under the Lease has been paid more than one month in advance, and no other sums have been deposited with Landlord other than $                                 deposited as security under the Lease.  Tenant is entitled to no rent concessions or free rent.

 

4.                                      Tenant is currently paying estimated payments of additional rent of $                     on account of real estate taxes, insurance and common area maintenance expenses. [Select

 



 

correct alternative A Tenant pays its full proportionate share of real estate taxes, insurance and common area maintenance expenses OR B Tenant pays Tenant’s proportionate share of the increase in real estate taxes, common maintenance expenses and insurance over the [base year/base amount] OR [                                              .]

 

5.                                      All conditions and obligations under the Lease to be satisfied or performed, or to have been satisfied or performed, by Landlord as of the date hereof have been fully satisfied or performed, including any and all conditions and obligations of Landlord relating to completion of tenant improvements and making the Leased Premises ready for occupancy by Tenant.

 

6.                                      There exist no defenses to enforcement of the Lease by Landlord, nor any rights or claims to offset with respect to rent payable under the terms of the Lease except as may be set forth in “Exhibit A”.  To the best of Tenant’s knowledge, neither Landlord nor Tenant is in default under the Lease or in breach of its obligations thereunder, and no event has occurred or situation exists which would with the passage of time and/or the giving of notice, constitute a default or an event of default by the Tenant under the Lease.

 

7.                                      Tenant has no purchase options under the Lease or any other right or option to purchase the real property and/or improvements, or a part thereof, on which the demised premises are located.

 

8.                                      That as of this date there are no actions, whether voluntary or otherwise, pending against the Tenant or any guarantor of the Lease under the bankruptcy or insolvency laws of the United States or any state thereof.

 

9.                                      That to the best of the Tenant’s knowledge, no hazardous wastes have been generated, treated, stored or disposed of, by or on behalf of the Tenant or anyone else on the Leased Premises except for those that are customary in connection with typical office uses, and any such generation, treatment, storage and/or disposal has been in accordance with all applicable environmental laws.

 

The agreements and certifications set forth herein are made with the knowledge and intent that Purchaser and Lender will rely on them, and shall be binding upon the successors and assigns of Tenant.

 

 

[TENANT]

 

 

 

By

 

 

Name:

 

Title:

 



 

EXHIBIT H

 

SUITS & PROCEEDINGS

 

None.

 



 

EXHIBIT I

CERTIFICATE OF NON-FOREIGN STATUS

 

Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), provides that under specified circumstances, a transferee of a United States real property interest must withhold tax if the transferor is a foreign person.  For United States tax purposes (including Section 1445), the owner of a disregarded entity (which has legal title to a United States real property interest under local law) will be the transferor of the real property interest and not the disregarded entity.  To inform                            (the “Transferee”), that withholding of tax is not required upon the disposition of a United States real property interest by                            (the “Transferor”), the undersigned hereby certifies the following:

 

1.                                      The Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Code and Income Tax Regulations).

 

2.                                      The Transferor is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of the United States Treasury Regulations.

 

3.                                      The Transferor’s United States taxpayer identification number is                                         .

 

4.                                      The Transferor’s office address is                                                                             .

 

The Transferor understands that this certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment or both.

 

Under penalties of perjury, I declare that I have examined this certification and, to the best of my knowledge and belief, it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of the Transferor.

 

 

Date:                                         , 2013

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

EXHIBIT J

 

MAJOR TENANTS

 

Morison Cogen, LLP

 

The Trustees of the University of Pennsylvania, as owners and operators of the University of Pennsylvania Health System, on behalf of Home Care and Hospice Services, a Pennsylvania non-profit corporation, and its subsidiary Wissahickon Hospice

 

RGN — Bala Cynwyd I, LLC

 



 

EXHIBIT K

 

ARREARAGE SCHEDULE

 

MACK-CALI REALTY CORPORATION

 

OPENAR - OPEN A/R LIST - RUN ON: 07/12/13 - AGING BY: DUE DATE

 

ENTITY: 0284 - MONUMENT 150 REALTY LLC

PROPERTY: PW - MONUMENT 150 REALTY LLC

 

CHARGE CODE

 

TOTAL OPEN

 

0-30 DAYS

 

31-60 DAYS

 

61-90 DAYS

 

OVER 90 DAYS

 

TENANT: PW /ADA2 - AMERICAN DIABETES ASSOCIATION

 

 

 

 

 

 

 

 

 

 

 

LEASE:

 

03/01/13-02/28/16

 

 

 

 

 

 

 

 

 

 

 

TEL:

 

(518) 218-1755

 

 

 

 

 

 

 

 

 

 

 

RENT:

 

12,435.13

 

 

 

 

 

 

 

 

 

 

 

SEC:

 

10,154.97

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RR-RENT

 

(83.70

)

(16.74

)

(16.74

)

(16.74

)

(33.48

)

TENANT TOTALS:

 

(83.70

)

(16.74

)

(16.74

)

(16.74

)

(33.48

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT: PW /BOA - BOARDROOM ADVISORS LLC

 

 

 

 

 

 

 

 

 

 

 

LEASE:

 

09/26/08-09/30/13

 

 

 

 

 

 

 

 

 

 

 

TEL:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

 

2,477.75

 

 

 

 

 

 

 

 

 

 

 

SEC:

 

0.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

E -ELECTRIC

 

133.73

 

133.73

 

0.00

 

0.00

 

0.00

 

 

 

 

 

OM-MONTHLY OPERATE

 

7.58

 

7.58

 

0.00

 

0.00

 

0.00

 

 

 

 

 

RR-RENT

 

2,477.75

 

2,477.75

 

0.00

 

0.00

 

0.00

 

 

 

 

 

T -TAXES

 

51.85

 

51.85

 

0.00

 

0.00

 

0.00

 

 

 

 

 

UM-MONTHLY UTILITY

 

22.79

 

22.79

 

0.00

 

0.00

 

0.00

 

 

 

 

 

L -LATE FEE

 

215.50

 

215.50

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

2,909.20

 

2,909.20

 

0.00

 

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT: PW /BOX1 - BOX-IT INC.

 

 

 

 

 

 

 

 

 

 

 

LEASE:

 

02/01/09-08/31/19

 

 

 

 

 

 

 

 

 

 

 

TEL:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

 

860.99

 

 

 

 

 

 

 

 

 

 

 

SEC:

 

0.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RR-RENT

 

860.99

 

860.99

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

860.99

 

860.99

 

0.00

 

0.00

 

0.00

 

 

1



 

MACK-CALI REALTY CORPORATION

 

OPENAR - OPEN A/R LIST - RUN ON: 07/12/13 - AGING BY: DUE DATE

 

ENTITY: 0284 - MONUMENT 150 REALTY LLC

PROPERTY: PW - MONUMENT 150 REALTY LLC

 

CHARGE CODE

 

TOTAL OPEN

 

0-30 DAYS

 

31-60 DAYS

 

61-90 DAYS

 

OVER 90 DAYS

 

TENANT: PW /BOX2 - BOX-IT INC.

 

 

 

 

 

 

 

 

 

 

 

LEASE:

 

09/01/09-08/31/19

 

 

 

 

 

 

 

 

 

 

 

TEL:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

 

1,914.25

 

 

 

 

 

 

 

 

 

 

 

SEC:

 

0.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RR-RENT

 

1,914.25

 

1,914.25

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

1,914.25

 

1,914.25

 

0.00

 

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT:PW /COR3 - CORPORATE STAFFING SERVICES

 

 

 

 

 

 

 

 

 

 

 

LEASE:

 

05/01/13-06/30/18

 

 

 

 

 

 

 

 

 

 

 

TEL:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

 

6,750.00

 

 

 

 

 

 

 

 

 

 

 

SEC:

 

11,500.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

 

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

L -LATE FEE

 

1,375.05

 

916.70

 

458.35

 

0.00

 

0.00

 

 

 

 

 

E -ELECTRIC

 

891.54

 

445.77

 

445.77

 

0.00

 

0.00

 

 

 

 

 

OM-MONTHLY OPERATE

 

886.78

 

443.39

 

443.39

 

0.00

 

0.00

 

 

 

 

 

RR-RENT

 

13,500.00

 

6,750.00

 

6,750.00

 

0.00

 

0.00

 

 

 

 

 

RC-RENT CONCESSION

 

(6,750.00

)

(6,750.00

)

0.00

 

0.00

 

0.00

 

 

 

 

 

TR-TEN’T BAL.TRANF

 

590,178.16

 

590,178.16

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

600,081.53

 

591,984.02

 

8,097.51

 

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT: PW /CRO - CROHNS AND COLITIS FOUNDATION

 

 

 

 

 

 

 

 

 

 

 

LEASE:

 

07/01/12-09/30/17

 

 

 

 

 

 

 

 

 

 

 

TEL:

 

(646) 943-7475

 

 

 

 

 

 

 

 

 

 

 

RENT:

 

2,298.00

 

 

 

 

 

 

 

 

 

 

 

SEC:

 

2,250.13

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

 

LS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

E -ELECTRIC

 

47.87

 

47.87

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

47.87

 

47.87

 

0.00

 

0.00

 

0.00

 

 

2



 

MACK-CALI REALTY CORPORATION

 

OPENAR - OPEN A/R LIST - RUN ON: 07/12/13 - AGING BY: DUE DATE

 

ENTITY: 0284 - MONUMENT 150 REALTY LLC

PROPERTY: PW - MONUMENT 150 REALTY LLC

 

CHARGE CODE

 

TOTAL OPEN

 

0-30 DAYS

 

31-60 DAYS

 

61-90 DAYS

 

OVER 90 DAYS

 

TENANT: PW /HME1 - HMETRIX LLC

 

 

 

 

 

 

 

 

 

 

 

LEASE:

01/01/13-05/31/15

 

 

 

 

 

 

 

 

 

 

 

TEL:

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

2,908.00

 

 

 

 

 

 

 

 

 

 

 

SEC:

5,816.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

NONE

 

 

 

 

 

 

 

 

 

 

 

 

TR-TEN’T BAL.TRANF

 

(411.90

)

(411.90

)

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

(411.90

)

(411.90

)

0.00

 

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT:PW /MED1 - MEDARBOR LLC

 

 

 

 

 

 

 

 

 

 

 

LEASE:

11/01/12-12/31/13

 

 

 

 

 

 

 

 

 

 

 

TEL:

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

2,500.00

 

 

 

 

 

 

 

 

 

 

 

SEC:

2,400.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

NONE

 

 

 

 

 

 

 

 

 

 

 

 

TR-TEN’T BAL.TRANF

 

(1,100.49

)

(1,100.49

)

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

(1,100.49

)

(1,100.49

)

0.00

 

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT: PW /RGN - RGN-BALA CYNWYD I LLC

 

 

 

 

 

 

 

 

 

 

 

LEASE:

05/01/13-10/31/24

 

 

 

 

 

 

 

 

 

 

 

TEL:

NONE

 

 

 

 

 

 

 

 

 

 

 

RENT:

12,748.54

 

 

 

 

 

 

 

 

 

 

 

SEC:

55,073.70

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

LS

 

 

 

 

 

 

 

 

 

 

 

 

E -ELECTRIC

 

3,287.56

 

1,643.78

 

1,643.78

 

0.00

 

0.00

 

 

OM-MONTHLY OPERATE

 

418.32

 

209.16

 

209.16

 

0.00

 

0.00

 

 

T -TAXES

 

319.64

 

159.82

 

159.82

 

0.00

 

0.00

 

 

UM-MONTHLY UTILITY

 

560.14

 

280.07

 

280.07

 

0.00

 

0.00

 

 

WT-CUSTOMER EXTRAS

 

12,749.20

 

12,749.20

 

0.00

 

0.00

 

0.00

 

 

TR-TEN’T BAL.TRANF

 

1,660.00

 

1,660.00

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

18,994.86

 

16,702.03

 

2,292.83

 

0.00

 

0.00

 

 

3



 

MACK-CALI REALTY CORPORATION

 

OPENAR - OPEN A/R LIST - RUN ON: 07/12/13 - AGING BY: DUE DATE

 

ENTITY: 0284 - MONUMENT 150 REALTY LLC

PROPERTY: PW - MONUMENT 150 REALTY LLC

 

CHARGE CODE

 

TOTAL OPEN

 

0-30 DAYS

 

31-60 DAYS

 

61-90 DAYS

 

OVER 90 DAYS

 

TENANT: PW /RLI - RLI INSURANCE COMPANY

 

 

 

 

 

 

 

 

 

 

 

LEASE:

12/22/09-03/31/15

 

 

 

 

 

 

 

 

 

 

 

TEL:

(309) 692-1000

 

 

 

 

 

 

 

 

 

 

 

RENT:

7,038.00

 

 

 

 

 

 

 

 

 

 

 

SEC:

0.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

NONE

 

 

 

 

 

 

 

 

 

 

 

 

SO-OPERAT SETTLEUP

 

(1,107.10

)

0.00

 

(1,107.10

)

0.00

 

0.00

 

 

IP-INSURANCE SETTL

 

(39.24

)

0.00

 

(39.24

)

0.00

 

0.00

 

 

SU-UTILITY SETL UP

 

(29.55

)

0.00

 

(29.55

)

0.00

 

0.00

 

 

ET-ELECTRIC TRUEUP

 

(2,545.45

)

0.00

 

(2,545.45

)

0.00

 

0.00

 

 

SR-RE TAX SETTLEUP

 

(154.93

)

0.00

 

(154.93

)

0.00

 

0.00

 

 

RR-RENT

 

6,344.51

 

6,958.00

 

(613.49

)

0.00

 

0.00

 

 

E -ELECTRIC

 

488.49

 

488.49

 

0.00

 

0.00

 

0.00

 

 

OM-MONTHLY OPERATE

 

67.16

 

67.16

 

0.00

 

0.00

 

0.00

 

 

T -TAXES

 

113.14

 

113.14

 

0.00

 

0.00

 

0.00

 

 

UM-MONTHLY UTILITY

 

83.23

 

83.23

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

3,220.26

 

7,710.02

 

(4,489.76

)

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT: PW /RLI1 - RLI INSURANCE COMPANY

 

 

 

 

 

 

 

 

 

 

 

LEASE:

05/01/11-03/31/15

 

 

 

 

 

 

 

 

 

 

 

TEL:

(309) 692-1000

 

 

 

 

 

 

 

 

 

 

 

RENT:

1,993.25

 

 

 

 

 

 

 

 

 

 

 

SEC:

0.00

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

NONE

 

 

 

 

 

 

 

 

 

 

 

 

E -ELECTRIC

 

139.30

 

139.30

 

0.00

 

0.00

 

0.00

 

 

OM-MONTHLY OPERATE

 

19.15

 

19.15

 

0.00

 

0.00

 

0.00

 

 

RR-RENT

 

1,993.25

 

1,993.25

 

0.00

 

0.00

 

0.00

 

 

T -TAXES

 

32.26

 

32.26

 

0.00

 

0.00

 

0.00

 

 

UM-MONTHLY UTILITY

 

23.73

 

23.73

 

0.00

 

0.00

 

0.00

 

 

L -LATE FEE

 

176.62

 

176.62

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

2,384.31

 

2,384.31

 

0.00

 

0.00

 

0.00

 

 

4



 

MACK - CALI REALTY CORPORATION

 

OPENAR - OPEN A/R LIST - RUN ON: 07/12/13 - AGING BY: DUE DATE

 

ENTITY: 0284 - MONUMENT 150 REALTY LLC

PROPERTY: PW - MONUMENT 150 REALTY LLC

 

CHARGE CODE

 

TOTAL OPEN

 

0-30 DAYS

 

31-60 DAYS

 

61-90 DAYS

 

OVER 90 DAYS

 

TENANT:PW /RLI2 - RLI INSURANCE COMPANY

 

 

 

 

 

 

 

 

 

 

 

LEASE:

07/01/12-06/30/17

 

 

 

 

 

 

 

 

 

 

 

 

 

TEL:

(309) 692-1000

 

 

 

 

 

 

 

 

 

 

 

 

 

RENT:

4,479.50

 

 

 

 

 

 

 

 

 

 

 

 

 

SEC:

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

LS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AS-ACCESS CARD/KEY

 

80.00

 

0.00

 

80.00

 

0.00

 

0.00

 

 

 

E -ELECTRIC

 

312.04

 

312.04

 

0.00

 

0.00

 

0.00

 

 

 

OM-MONTHLY OPERATE

 

39.71

 

39.71

 

0.00

 

0.00

 

0.00

 

 

 

RR-RENT

 

4,479.50

 

4,479.50

 

0.00

 

0.00

 

0.00

 

 

 

T -TAXES

 

30.34

 

30.34

 

0.00

 

0.00

 

0.00

 

 

 

UM-MONTHLY UTILITY

 

53.17

 

53.17

 

0.00

 

0.00

 

0.00

 

 

 

L -LATE FEE

 

393.18

 

393.18

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

 

 

5,387.94

 

5,307.94

 

80.00

 

0.00

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT:PW /UPA - U OF PA HEALTH SYSTEM

 

 

 

 

 

 

 

 

 

 

 

LEASE:

04/02/07-04/30/14

 

 

 

 

 

 

 

 

 

 

 

 

 

TEL:

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

RENT:

47,938.50

 

 

 

 

 

 

 

 

 

 

 

 

 

SEC:

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

FLAGS:

NONE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RR-RENT

 

37,088.31

 

41,404.00

 

887.75

 

887.75

 

(6,091.19

)

 

 

SO-OPERAT SETTLEUP

 

(8,649.57

)

0.00

 

(8,649.57

)

0.00

 

0.00

 

 

 

SU-UTILITY SETL UP

 

(190.43

)

0.00

 

(190.43

)

0.00

 

0.00

 

 

 

ET-ELECTRIC TRUEUP

 

(16,395.76

)

0.00

 

(16,395.76

)

0.00

 

0.00

 

 

 

SR-RE TAX SETTLEUP

 

(997.96

)

0.00

 

(997.96

)

0.00

 

0.00

 

 

 

E -ELECTRIC

 

3,146.41

 

3,146.41

 

0.00

 

0.00

 

0.00

 

 

 

OM-MONTHLY OPERATE

 

1,465.38

 

1,465.38

 

0.00

 

0.00

 

0.00

 

 

 

T -TAXES

 

1,386.63

 

1,386.63

 

0.00

 

0.00

 

0.00

 

 

 

UM-MONTHLY UTILITY

 

536.08

 

536.08

 

0.00

 

0.00

 

0.00

 

 

 

TR-TEN’T BAL.TRANF

 

584.07

 

584.07

 

0.00

 

0.00

 

0.00

 

TENANT TOTALS:

 

 

 

17,973.16

 

48,522.57

 

(25,345.97

)

887.75

 

(6,091.19

)

PROPERTY TOTALS:

 

 

 

652,178.28

 

676,814.07

 

(19,382.13

)

871.01

 

(6,124.67

)

 

5



 

MACK - CALI REALTY CORPORATION

 

OPENAR - OPEN A/R LIST - RUN ON: 07/12/13 - AGING BY: DUE DATE

 

ENTITY: 0284 - MONUMENT 150 REALTY LLC

PROPERTY: PW - MONUMENT 150 REALTY LLC

 

CHARGE CODE

 

TOTAL OPEN

 

0-30 DAYS

 

31-60 DAYS

 

61-90 DAYS

 

OVER 90 DAYS

 

 

 

 

 

PROPERTY CHARGE CODE SUMMARY

 

 

 

 

 

 

 

 

 

AS-ACCESS CARD/KEY

 

80.00

 

0.00

 

80.00

 

0.00

 

0.00

 

 

 

E -ELECTRIC

 

8,446.94

 

6,357.39

 

2,089.55

 

0.00

 

0.00

 

 

 

ET-ELECTRIC TRUEUP

 

(18,941.21

)

0.00

 

(18,941.21

)

0.00

 

0.00

 

 

 

IP-INSURANCE SETTL

 

(39.24

)

0.00

 

(39.24

)

0.00

 

0.00

 

 

 

L -LATE FEE

 

2,160.35

 

1,702.00

 

458.35

 

0.00

 

0.00

 

 

 

OM-MONTHLY OPERATE

 

2,904.08

 

2,251.53

 

652.55

 

0.00

 

0.00

 

 

 

RC-RENT CONCESSION

 

(6,750.00

)

(6,750.00

)

0.00

 

0.00

 

0.00

 

 

 

RR-RENT

 

68,574.86

 

66,821.00

 

7,007.52

 

871.01

 

(6,124.67

)

 

 

SO-OPERAT SETTLEUP

 

(9,756.67

)

0.00

 

(9,756.67

)

0.00

 

0.00

 

 

 

SR-RE TAX SETTLEUP

 

(1,152.89

)

0.00

 

(1,152.89

)

0.00

 

0.00

 

 

 

SU-UTILITY SETL UP

 

(219.98

)

0.00

 

(219.98

)

0.00

 

0.00

 

 

 

T -TAXES

 

1,933.86

 

1,774.04

 

159.82

 

0.00

 

0.00

 

 

 

TR-TEN’T BAL.TRANF

 

590,909.84

 

590,909.84

 

0.00

 

0.00

 

0.00

 

 

 

UM-MONTHLY UTILITY

 

1,279.14

 

999.07

 

280.07

 

0.00

 

0.00

 

 

 

WT-CUSTOMER EXTRAS

 

12,749.20

 

12,749.20

 

0.00

 

0.00

 

0.00

 

PROPERTY TOTALS:

 

 

 

652,178.28

 

676,814.07

 

(19,382.13

)

871.01

 

(6,124.67

)

ENTITY TOTALS:

 

 

 

652,178.28

 

676,814.07

 

(19,382.13

)

871.01

 

(6,124.67

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTITY CHARGE CODE SUMMARY

 

 

 

 

 

 

 

 

 

AS-ACCESS CARD/KEY

 

80.00

 

0.00

 

80.00

 

0.00

 

0.00

 

 

 

E -ELECTRIC

 

8,446.94

 

6,357.39

 

2,089.55

 

0.00

 

0.00

 

 

 

ET-ELECTRIC TRUEUP

 

(18,941.21

)

0.00

 

(18,941.21

)

0.00

 

0.00

 

 

 

IP-INSURANCE SETTL

 

(39.24