XI OF THIS
AGREEMENT.
IN ADDITION, FROM THE EFFECTIVE DATE UNTIL CLOSING, UNLESS REQUIRED
BY ANY AUTHORITIES OR GOVERNMENTAL REGULATIONS, OR THE SCHWAB LEASE, OR IN THE
CASE OF AN EMERGENCY OR ON ACCOUNT OF A CASUALTY AT THE PROPERTY (IN WHICH CASE
THE PROVISIONS OF SECTION 11.1 OF THIS AGREEMENT SHALL APPLY), SELLER SHALL NOT,
AND SHALL CAUSE PROPERTY OWNER NOT TO, MAKE ANY CAPITAL EXPENDITURE (OR
COMMITMENTS THEREFOR) AT THE PROPERTY (X) THAT AGGREGATE IN EXCESS OF $500,000,
AND (Y) THE PAYMENT FOR WHICH SHALL BE THE OBLIGATION OF PROPERTY OWNER AFTER
THE CLOSING.
(B)
COMPLIANCE WITH GOVERNMENTAL REGULATIONS/WATERFRONT DEVELOPMENT
PERMIT.
(I)
FROM THE EFFECTIVE DATE UNTIL CLOSING, SELLER SHALL NOT, AND
SHALL CAUSE PROPERTY OWNER NOT TO, KNOWINGLY TAKE ANY ACTION THAT WOULD RESULT
IN A FAILURE TO COMPLY IN ALL MATERIAL RESPECTS WITH ALL GOVERNMENTAL
REGULATIONS APPLICABLE TO THE PROPERTY GROUND LEASE, SUBLEASE, SCHWAB LEASE,
SELLER'S LLC INTEREST AND WITH ANY COVENANTS, CONDITIONS, RESTRICTIONS,
ENCUMBRANCES AND OTHER TITLE EXCEPTION DOCUMENTS AFFECTING THE PROPERTY, IT
BEING UNDERSTOOD AND AGREED THAT PRIOR TO CLOSING, SELLER WILL HAVE THE RIGHT TO
CONTEST ANY SUCH GOVERNMENTAL REGULATIONS AND ANY SUCH TITLE EXCEPTION
DOCUMENTS.
(II)
PURCHASER ACKNOWLEDGES THAT NJDEP HAS ISSUED THAT CERTAIN
WATERFRONT DEVELOPMENT PERMIT, ISSUED JULY 1, 1999, AS MODIFIED BY MODIFICATION
TO WATERFRONT DEVELOPMENT PERMIT #0906-92-0005.4 (MODIFICATION FILE
#0906-92-0005.5) DATED AS OF DECEMBER 5, 2000 (THE "WATERFRONT DEVELOPMENT
PERMIT"), A COPY OF WHICH PURCHASER HAS REVIEWED AS PART OF THE DOCUMENTS, WHICH
GRANTS TO AFE, AND ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO DEVELOP THE REAL
PROPERTY, PLAZA VIII AND PLAZA IX, IN ACCORDANCE WITH AND PURSUANT TO THE
PROVISIONS THEREOF.
PURCHASER ACKNOWLEDGES THAT THE BUILDING FULLY UTILIZES THE
DEVELOPMENT RIGHTS ATTRIBUTABLE TO THE REAL PROPERTY, AND THAT IT IS THE
INTENTION OF THE PARTIES THAT ALL REMAINING DEVELOPMENT RIGHTS ACCRUING UNDER
THE WATERFRONT DEVELOPMENT PERMIT (AS WELL AS ANY OTHER DEVELOPMENT RIGHTS
ACCRUING UNDER ALL OTHER OF THE DOCUMENTS) ARE NOT BEING TRANSFERRED TO
PURCHASER ON THE CLOSING DATE, BUT ARE INSTEAD BEING TRANSFERRED TO 8/9
TRANSFEREE AS PART OF THE EXCLUDED REAL PROPERTY.
IN CONNECTION THEREWITH, IT
IS A CONDITION (THE "PERMIT CONDITION") TO CLOSING THAT EITHER (X) THE
WATERFRONT DEVELOPMENT PERMIT IS BIFURCATED BY NJDEP PRIOR TO CLOSING SUCH THAT
AFTER SUCH BIFURCATION THERE SHALL BE TWO PERMITS, ONE RELATING TO PLAZA X (THE
"PLAZA X BIFURCATED WATERFRONT PERMIT") AND ONE RELATING TO PLAZAS VIII AND IX
(THE "8/9 BIFURCATED WATERFRONT PERMIT"), WHICH PERMITS MUST ALSO COMPLY WITH
THE REMAINING PROVISIONS OF THIS SECTION 7.1(B)(II), OR (Y) 8/9 TRANSFEREE, IN
THE 8/9 TRANSFEREE GUARANTY (AS HEREINAFTER DEFINED), (I) USE COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN SUCH BIFURCATION FOLLOWING THE CLOSING,
(II) SATISFY ANY OBLIGATIONS OF PROPERTY OWNER (AS RECONSTITUTED ON THE CLOSING
DATE WITH PURCHASER AS THE INDIRECT OR DIRECT OWNER THEREOF) ("POST-TRANSFER
AFE") FOLLOWING THE CLOSING UNDER THE WATERFRONT DEVELOPMENT PERMIT UNTIL SUCH
TIME AS THE WATERFRONT DEVELOPMENT PERMIT IS BIFURCATED IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION 7.1(B)(II), INCLUDING, WITHOUT LIMITATION, THE
COMPLETION