EXHIBIT 10(w)
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of the 31 day of
July, 2003 by and between AIL SYSTEMS, INC., a Delaware corporation ("Seller"),
and DEER PARK ENTERPRISE, LLC, a New York limited liability company ("Buyer").
WITNESSETH THAT:
In consideration of Ten Dollars ($10.00) and the mutual covenants and
agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
Article I
Purchase and Sale
1.1. Real Property. Seller agrees to sell to Buyer and Buyer agrees to
purchase from Seller, upon and subject to the terms and conditions set forth in
this Agreement, those certain tracts or parcels of land situated in Deer Park,
County of Suffolk and State of New York, as more fully described in Exhibit "A"
attached hereto and made a part hereof, together with all improvements located
thereon, the appurtenances and hereditaments thereunto belonging (all of which
are collectively referred to herein as the "Property"), but specifically
excluding any and all personal property of Seller in or at the Property.
1.2. Purchase Price. The full purchase price for the Property is TWENTY
NINE MILLION and No/100 ($29,000,000.00) DOLLARS (the "Purchase Price").
1.3. Payment. The Purchase Price shall be payable as follows, the
payment of which is concurrent with the obligation to convey the Property by
Seller to Buyer at the Closing (hereinafter defined):
(a) ONE MILLION and No/100 ($1,000,000.00) DOLLARS (the
"Deposit") to be deposited with Escrowee (hereinafter defined) upon execution by
Buyer of this
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Agreement as provided in Section 1.4(b) below, to be held and disbursed in
accordance with this Agreement;
(b) TWENTY ONE MILLION and No/100 ($21,000,000.00) DOLLARS at
the Closing (as hereinafter defined), subject to prorations and adjustment
pursuant to Section 1.6 below and in order to reflect the expenses of Closing
described in this Agreement, by wire transfer(s) of federal funds immediately
available in bank accounts designated by Seller.
(c) SEVEN MILLION ($7,000,000.00) DOLLARS by Buyer delivering
to Seller the purchase money mortgage and note in the form annexed hereto as
Exhibit "B" (the "PM Mortgage").
l.4. Escrow. The escrow of the Deposit shall be subject to the
following provisions:
(a) Seller and Buyer hereby appoint Esanu Katsky Xxxxxx &
Siger, LLP ("Escrowee") to serve as Escrowee pursuant to the terms of this
Agreement.
(b) Buyer shall pay the Deposit by an unendorsed check subject
to collection, drawn on a bank which is a member of the New York Clearing House
Association, payable to the order of and delivered to Escrowee. Escrowee shall
deposit the Deposit in an interest-bearing bank account at XX Xxxxxx Chase Bank,
but Escrowee shall have no obligation to obtain any specific interest rate on
the Deposit. Any party that shall receive interest on the Deposit shall be
responsible for payment of any applicable income taxes thereon. The tax
identification numbers of the parties are set forth opposite their signatures to
this Agreement. Any party entitled to receive interest on the Deposit shall
furnish an executed and completed IRS Form W-9 to Escrowee prior to delivery of
such interest.
(c) If this transaction shall not close as a result of Buyer's
default hereunder, then, in such event, the Deposit and any accrued interest on
the Deposit shall be delivered to Seller as and for liquidated damages within
ten (10) days following written demand by Seller, with a copy to be delivered to
Buyer, provided Buyer shall have failed to object to the release within five (5)
days following receipt of such demand by Seller. It is understood that since it
would be impossible to ascertain the amount of damages in the event of such
default by
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Buyer, the parties agree that the Deposit plus interest thereon would constitute
a fair and reasonable sum to cover such damages.
(d) The parties acknowledge that Escrowee is acting solely as
a stakeholder at their request and for their convenience and that Escrowee shall
not be deemed to be the agent or trustee for either of the parties except that
Seller shall bear the responsibility for any loss of the Deposit due to the
wrongful acts of Escrowee.
(e) Escrowee shall not be liable to either of the parties for
any mistake of fact or of law or error of judgment or any act or omission of any
kind unless it involves willful misconduct or gross negligence on the part of
Escrowee. Without limiting the generality of the foregoing, Escrowee shall not
be responsible or liable in any manner whatsoever for (i) the sufficiency,
correctness, genuineness, or validity of any check or other instrument delivered
to it, (ii) the form of execution of any such instruments, (iii) the identity,
authority or rights of any person executing or delivering any such instrument,
(iv) the terms and conditions of any instrument pursuant to which the parties
may act, (v) any loss of interest resulting from a delay in investing or
reinvesting the Deposit and (vi) any loss resulting from, in connection with, or
arising from the deposit or investment of the Deposit as provided herein,
including, but not limited to, the failure, refusal or inability of any
institution with which the Deposit has been deposited or invested to repay any
portion of the principal amount of or any interest accrued on the Deposit.
(f) Seller and Buyer, jointly and severally, hereby indemnify
and hold Escrowee harmless from and against all costs, claims, losses,
liabilities and expenses, including, without limitation, reasonable attorneys'
fees, incurred in connection with or arising from the performance of Escrowee's
duties hereunder, except with respect to acts or omissions involving willful
misconduct or gross negligence on the part of Escrowee, and provided that
Escrowee shall not charge any fees for the performance of its services in the
ordinary course. Such indemnity shall survive the Closing or termination of this
Agreement.
(g) Notwithstanding anything to the contrary contained herein,
Buyer agrees that Esanu Katsky Xxxxxx & Siger, LLP may represent Seller as
Seller's counsel in any
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action, suit or other proceeding between Seller and Buyer, or in which Seller
and Buyer may be involved.
(h) No change or termination of this Agreement affecting the
rights, duties or liabilities of Escrowee shall be binding upon Escrowee unless
agreed to in writing by Escrowee.
(i) At the Closing, the Deposit together with any interest
earned thereon shall be paid by Escrowee to Seller, and Buyer shall receive a
credit against the Purchase Price in the amount of the Deposit and any interest
accrued thereto. If Buyer is entitled to the return of the Deposit pursuant to
the terms hereof, then Buyer shall be entitled to the interest earned thereon.
Escrowee shall deliver or cause the institution holding the Deposit to deliver a
1099 to the party that actually receives or receives credit for any interest
which accrued to the Deposit.
l.5. Closing. The closing (the "Closing") shall take place on or before
September 26, 2003 (the "Closing Date"). Buyer shall be entitled to a one time
adjournment of the Closing, upon notice to Seller given no later than September
25, 2003, to a date no later than October 13, 2003, with time being of the
essence with respect to Buyer's obligation to close on such adjourned Closing
Date. The Closing shall occur in the offices of Esanu Katsky Xxxxxx & Siger,
LLP, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at the offices of
Buyer's lender provided such lender is located in the New York City Metropolitan
area, or such other place as Seller and Buyer may select.
l.6. Adjustments.
(a) Except as otherwise provided herein, all adjustments shall
be made in accordance with the "Customs in Respect to Title Closings" adopted by
the Real Estate Board of New York, Inc. As Seller and Buyer are entering into
the Lease (hereinafter defined), there shall be no adjustments at the Closing
and the following are to be prorated as of 12:0l a.m. on the expiration date of
the Lease (the "Delivery Date") with respect to the Property:
(i) Real estate taxes assessed against the Property
for the calendar or fiscal year for which assessed, including town, village and
school taxes;
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(ii) Water charges and sewer charges, based on the
fiscal period for which assessed;
(iii) Fuel and other utilities;
(iv) Any pre-paid charges incurred with respect to
the Property; and
(v) All other adjustments which are usual and
customary for similar sales of like properties in the area of the Property.
(b) If the Delivery 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, subject to
further and final adjustment when the tax rate is fixed for the year in which
the Delivery Date occurs.
(c) In the event there is any error in the computation of the
adjustments pursuant to this Section 1.6, Seller and Buyer agree to readjust to
correct such error after the Delivery Date.
(d) The parties agree that the provisions of this Section 1.6
shall survive the Closing and the Delivery Date.
1.7. Assessments. If on the Delivery Date, the Property shall be or
shall have been affected by an assessment or assessments which are first
assessed against the Property on or after the date hereof and which are or may
become payable in installments, then for the purposes of this Agreement, Seller
shall be responsible for the unpaid installments of any such assessment or
assessments which are due and payable prior to the Delivery Date and Buyer shall
be responsible for any unpaid installments which are to become due and payable
after the Delivery Date (apportioned in the same manner as real estate taxes
based upon the acreage of the Property).
1.8. Environmental Due Diligence.
(a) Commencing on the date hereof and through and including August 31,
2003 (the "Inspection Period"), Buyer, its employees and agents and the
Consultant (defined below) shall have reasonable access to the Property at all
reasonable times during normal business hours, for the purpose of environmental
inspections and tests, provided that (i) Buyer must give
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Seller at least two (2) business days' prior telephone or written notice of any
such inspection or test, and with respect to any intrusive inspection or test
(i.e., core sampling) must obtain Seller's prior written consent (which consent
shall not be unreasonably withheld or delayed), (ii) at the time of such notice
set forth in (i), Buyer must describe the purpose of such entry, the identity of
the persons who will be entering the Property and the expected duration of such
entry, (iii) prior to performing any inspection or test, Buyer must deliver a
certificate of insurance to Seller evidencing that Buyer and its contractors,
agents and representatives have in place $2,000,000 of comprehensive general
liability insurance and workers' compensation insurance for its activities on
the Property covering any claims arising in connection with the presence of
Buyer, its contractors, agents and representatives on the Property, which
insurance shall name Seller as an additional insured thereunder, and (iv) all
such tests shall be conducted by Buyer in compliance with Buyer's
responsibilities set forth in this Section 1.8. Buyer's environmental
investigations shall consist of Phase I and Phase II environmental reviews and
inspections of the Property to be conducted by the FPM Group and Hygenix, Inc.
(collectively, the "Consultant"), including (without limitation) taking soil and
water samples from the Property and inspection for the presence of asbestos.
Buyer's Phase II inspections shall be coordinated with Seller and conducted in a
manner that will not interfere with Seller's use and occupancy of the Property.
Buyer shall bear the cost of all such inspections or tests; provided, however,
that if Buyer terminates this Agreement as provided in subsection (b)(i) below,
Seller shall reimburse Buyer for all of Buyer's out-of-pocket costs paid or
incurred in connection with any Phase II environmental inspections of the
Property and the Report (defined below), unless Buyer terminates this Agreement
because it cannot obtain the environmental insurance hereinafter described, in
which case Buyer shall not be entitled to any reimbursement of such costs, and
shall only be entitled to a return of the Deposit and any interest accrued
thereon. In the event Buyer does not terminate this Agreement at the end of the
Inspection Period as provided in subsection (b)(i) below, Buyer shall continue
to be afforded access to the Property on reasonable advance telephone notice to
Seller. Seller shall execute all reasonably acceptable manifests required for
the disposal of any wastes derived from Buyer's inspections as set forth herein.
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(b) (i) In the event that (1) the final reports by the Consultant
(individually and collectively, the "Report") indicate any Environmental
Condition (hereinafter defined) exclusive of asbestos containing materials,
which Environmental Condition is reasonably estimated to require a period in
excess of two (2) years from the Closing to obtain Material Closure (hereinafter
defined), or (2) Buyer cannot obtain environmental insurance satisfactory to
Buyer, Buyer shall have the option, in Buyer's sole discretion, to either (A) to
require Seller to remediate the Environmental Condition at Seller's sole cost
and expense, provided, however, that Seller shall have no obligation with
respect to any groundwater contamination that originated off-site, or (B)
terminate this Agreement by written notice to Seller (the "Environmental
Termination Notice"), which Environmental Termination Notice must be sent no
later than the earlier to occur of (1) twenty five (25) business days after
Buyer's receipt of the Report, and (2) the last day of the Inspection Period. If
this Agreement is terminated by Buyer pursuant to this subparagraph 1.8(b)(i),
Buyer shall be entitled to a return of the Deposit and any interest accrued
thereon. Notwithstanding anything to the contrary contained herein, if Buyer
terminates this Agreement because it cannot obtain the environmental insurance
described above, Buyer shall not be entitled to any reimbursement of its costs
in connection with this Agreement or the Property, and shall only be entitled to
a return of the Deposit and any interest accrued thereon.
(ii) In the event that every Environmental Condition indicated
in the Report is reasonably estimated to require a period of less than two (2)
years from the Closing to obtain Material Closure, and Buyer is able to obtain
environmental insurance to its satisfaction (or if Buyer waives the requirement
that it obtain such insurance) Buyer shall have no right to terminate this
Agreement. Closure of any Environmental Condition shall be performed in
accordance with the terms and condition of this Agreement.
(iii) Notwithstanding anything to the contrary contained
herein, it is specifically acknowledged and agreed that upon taking title to the
Property Buyer shall be responsible for and assume all costs for the removal or
abatement of any and all asbestos containing materials which may be located
thereon, and (1) Seller shall have no obligations with
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respect thereto (except as may be specifically set forth herein), and (2) Buyer
shall have no right to exercise its termination right as set forth in subsection
(i) above as a result of any asbestos containing materials at the Property.
(iv) In the event that the parties cannot agree whether
Material Closure for an Environmental Condition will be obtained within two (2)
years from Closing, the parties shall submit the matter to an independent
environmental consultant reasonably acceptable to both Seller and Buyer. Seller
and Buyer each agree to accept the reasonably expected time for Material Closure
of an Environmental Condition as determined by such independent environmental
consultant.
(v) Buyer represents that, to its knowledge, based upon the
reports and tests received by it through July 23, 2003, there is no
Environmental Condition at the Property which would give rise to Buyer's right
to terminate this Agreement pursuant to this Section 1.8(b).
(vi) Buyer shall, no later than the last day of the Inspection
Period, deliver to Seller a list of any Due Diligence Environmental Conditions
(hereinafter defined).
(c) Buyer acknowledges that any Property information made available to
it is proprietary and confidential and will be delivered to Buyer solely to
assist Buyer in determining the feasibility of purchasing the Property. Buyer
shall not use the information for any purpose other than as set forth in the
preceding sentence. Buyer shall not disclose the contents to any person other
than to those persons who are responsible for determining the feasibility of
Buyer's acquisition of the Property, including without limitation Buyer's
insurance broker, attorneys, consultants, prospective lenders and prospective
insurance companies, and who have agreed to preserve the confidentiality of such
information as required hereby (collectively, "Permitted Outside Parties"). At
any time and from time to time, within two (2) business days after Seller's
request, Buyer shall deliver to Seller a list of all parties to whom Buyer has
provided any Property information. Buyer shall not divulge the contents of any
Property information except in strict compliance with the confidentiality
standards set forth in this subsection and as may be required by law. In
permitting Buyer to review the Property information, Seller has not waived
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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.
(d) In conducting any inspections, investigations or tests of the
Property, Buyer and its agents and representatives shall: (i) not disturb the
Seller, or interfere with its use of the Property; (ii) not interfere with the
operation and maintenance of the Property; (iii) not unreasonably disturb or
damage any part of the Property or any personal property owned or held by Seller
or any third party; (iv) not injure or otherwise cause bodily harm to Seller or
its agents, guests, invitees, contractors and employees or its guests or
invitees; (v) comply with all applicable laws; (vi) promptly pay when due the
costs of all tests, investigations, and examinations done with regard to the
Property; (vii) not permit any liens to attach to the Property by reason of the
exercise of its rights hereunder; (viii) repair any damage to the Property
resulting directly or indirectly from any such inspection or tests; and (ix) not
reveal or disclose prior to Closing any information obtained during the
Inspection Period concerning the Property to anyone other than the Permitted
Outside Parties, in accordance with the confidentiality standards set forth in
subsection (c) above, or except as may be otherwise required by law.
(e) Buyer shall be responsible for any damage to the Property or other
property or any injury to any third party caused by the presence of, or any
inspections or investigations undertaken prior to, on or after, the date hereof,
by Buyer or its agents, employees or contractors, and Buyer agrees to indemnify,
defend and hold Seller harmless from and against any and all liens, claims,
causes of action, costs, damages, liabilities and expenses (including reasonable
attorneys' fees and disbursements, court costs and claims of personal injury and
damage to property) arising out of Buyer's inspections or tests under this
Agreement or any violation of the provisions of Section 1.8, provided, however,
that Buyer shall not be responsible for or be obligated to indemnify Seller
against damages or injuries arising out of any Environmental Condition disclosed
in the Report. Buyer's obligations under this subsection 1.8(e) shall survive
the termination of this Agreement and shall survive the Closing.
(f) As additional consideration for the transaction contemplated in
this Agreement, Buyer must provide to Seller, immediately following the receipt
of same by Buyer,
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copies of the Report and copies of any and all reports, tests or studies
resulting from the Report (but not any interim drafts of any such related
reports, tests or studies) and any amendments of or addenda to any of the
foregoing; provided, however, Buyer shall have no obligation to cause any such
tests or studies to be performed on the Property nor shall Buyer be deemed to
have represented or warranted the accuracy of any of the information contained
in the Report or any related reports, tests or studies and Buyer shall have no
responsibility or liability with respect to the Report or any related reports,
tests or studies. In the event this Agreement is terminated, then
notwithstanding anything contained herein to the contrary, Seller, but not Buyer
(unless required by law or in connection with any litigation involving this
Agreement), shall have the right to provide copies of the Report and any related
materials to third parties, provided that Seller shall indemnify and hold Buyer
harmless from any liability arising from Seller's so providing the Report or any
related materials to third parties (unless such materials were provided if
required by law or in connection with any litigation involving this Agreement).
It is expressly understood and agreed by Seller that the provision of the Report
and any related materials to Seller as provided hereby shall not constitute, nor
be construed to constitute, a waiver by Buyer of the attorney-client privilege
or the work product privilege that may attach to any of the underlying
documents, drafts, reports, communications, tests, correspondence and otherwise
respecting the Report.
(g) Notwithstanding anything to the contrary contained in Section
1.8(c)(i), Seller agrees that Buyer may contact the New York State Department of
Environmental Conservation and other appropriate Governmental Authorities to
obtain documentation about the current status of the Property. Seller shall be
given reasonable advance notice of any such contacts and shall be entitled to
participate in any meetings and discussions between Buyer and agency personnel.
The foregoing shall not be construed to permit Buyer to discuss any findings of
the Report with any Governmental Authority and Buyer shall have no right to
discuss the findings of the Report with any Governmental Authority, it being
agreed and understood that any Environmental Condition or other findings of the
Report shall be governed by the provisions of Article IV hereof.
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Article II
Permitted Exceptions, Representations,
Warranties, Covenants and Conditions
2.l. Permitted Exceptions. The Property is being conveyed subject to
the following:
(a) Zoning regulations and ordinances of the city, town or district in
which the Property lies.
(b) Such state of facts as shown on (1) the survey of the Property,
dated August 5, 2002 and prepared by America Engineering Services (the "New
Survey"), and (2) any new state of facts as would be shown on an update of the
New Survey, provided that such new state of facts would not materially (i)
impair the existing ingress and egress to the Property, or (ii) interfere with
Buyer's intended use of the Property.
(c) The exceptions listed on and described in the schedule annexed
hereto as Exhibit "C".
The items set forth in (a) through (c) above are hereinafter referred
to as the "Permitted Exceptions".
2.2. Seller's Representations.
(a) Seller represents and warrants to Buyer that as of the date hereof
and, except as provided below, as of the Closing Date:
(i) Seller is a corporation duly organized and validly
existing under and by virtue of the laws of the State of Delaware and is duly
authorized to do business in the State of New York;
(ii) Seller has full power and authority to consummate the
sale of the Property as contemplated hereby. The execution and delivery of this
Agreement by Seller has been duly authorized, constitutes a legal, valid and
binding obligation of Seller, and does not violate any provisions of any
agreement or judicial order to which Seller is a party or to which Seller is
subject. All documents executed by Seller which are to be delivered to Buyer at
the
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Closing will be duly authorized, executed and delivered by Seller and will not
violate any provision of any agreement or judicial order to which Seller is a
party or to which Seller is subject;
(iii) Seller has not granted any right or option to acquire
any interest in the Property to any other party;
(iv) Seller has not entered into any leases or granted any
rights of occupancy or all or any part of the Property except as shown on
Exhibit "D" hereto and the Property shall be delivered vacant and free of any
leases, subleases, license agreements or occupants other than as provided for
under the Lease and as shown on Exhibit "D";
(v) Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code and will deliver to Buyer an affidavit
to that effect at Closing as required pursuant to Section 1445 of the Internal
Revenue Code;
(vi) Seller has received no written notice of any pending
litigation with respect to the Property based upon Seller's acts, which would
impair Seller's ability to convey the Property to Buyer pursuant to this
Agreement; and
(vii) As of the date hereof only, there are no pending or
threatened (by written notice to Seller) condemnation proceedings affecting the
Property or any part thereof.
(viii) As of the date hereof, there are no proceedings pending
to obtain a reduction in real estate taxes applicable to the Property.
(ix) Seller shall keep the Property insured against casualty
prior to the Closing in an amount of not less than $29,000,000 (which insurance
policy is sometimes referred to herein as the "Casualty Insurance Policy").
(x) At Closing there will be no service agreements or other
contracts which Buyer will be obligated to assume or pay for nor shall Buyer be
obligated to hire or pay any termination benefits for any employee of Seller
involved in the operation or maintenance of the Property.
(xi) Seller has no knowledge of any Environmental Claims (as
defined in Article IV) (a) against Seller in respect of the Property, or (b)
concerning the Property.
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(xii) At Closing there shall be no litigation pending against
Seller or the Property which would have a material impact upon Buyer or the
Property after the Closing.
If any representation or warranty made by Seller pursuant to this
Paragraph 2.2(a), other than the representation in subsection (vi) (provided
Buyer's title insurance company omits any exception with respect to such
litigation) is not true in any material way, then in such event Buyer's sole and
exclusive remedy shall be to cancel this Agreement by giving notice to Seller
prior to the Closing, and this Agreement shall be deemed terminated as of such
delivery, in which event the Deposit, together with interest earned thereon
shall be returned to Buyer.
2.3. Buyer's Representations.
(a) Buyer represents and warrants to Seller that:
(i) Buyer is a limited liability company duly organized and
validly existing under and by virtue of the laws of the State of New York;
(ii) Buyer shall have made an independent investigation of the
Property and as of the end of the Inspection Period, shall have examined the
environmental condition of the Property. Seller has not made nor has Buyer
relied upon any representation, warranty or promise with respect to the
condition, value or state of repair of the Property, except as specifically set
forth in this Agreement. Buyer agrees to accept the Property in its condition as
it may exist at the date hereof, subject to reasonable wear and tear, unrestored
condemnation as permitted by this Agreement, and unrepaired casualty damage as
permitted by this Agreement. Without limiting the generality of the foregoing,
Buyer has not relied on any representations or warranties, and Seller has not
made any representations or warranties, in either case, express or implied,
except as expressly set forth herein, as to (a) the current or future real
estate tax liability, assessment or valuation of the Property; (b) the potential
qualification of the Property for any benefits conferred by federal, state or
municipal laws, whether for subsidies, special real estate tax treatment,
insurance, financing, or any other benefits, whether similar or dissimilar to
those enumerated; (c) the compliance of the Property, in its current or any
future state, with applicable zoning ordinances and the ability to obtain a
variance with respect to the Property and possible noncompliance with any zoning
ordinance or the existence of development rights; (d) the
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availability of any financing for the purchase, alteration, rehabilitation or
operation of the Property from any source, including but not limited to state,
city or federal governments or any institutional lenders; or (e) the current or
future use of the Property. Seller is not liable or bound in any manner by any
verbal or written statements, representations, real estate brokers' "setups" or
information pertaining to the Property furnished by any real estate broker,
agent, employee, or other person, unless the same are specifically set forth
herein as a representation of Seller. The acceptance by Buyer of the Deed
(hereinafter defined) conveying the Property shall constitute an acknowledgment
by Buyer that all obligations of Seller set forth in this Agreement have been
discharged in full, and upon such acceptance, Seller shall be released from any
and all obligations set forth in this Agreement, except only such obligations,
if any, which shall, pursuant to the express provisions of this Agreement,
survive the Closing hereunder; and
(iii) The execution and delivery of this Agreement by Buyer
has been duly authorized, constitutes a legal, valid and binding obligation of
Buyer, and does not violate any provision of any agreement or judicial order to
which the Buyer is a party or to which Buyer is subject. All documents executed
by Buyer which are to be delivered to Seller at the Closing will be duly
authorized, executed and delivered by Buyer and will not violate any provisions
of any agreement or judicial order to which the Buyer is a party or to which
Buyer is subject.
2.4. Delivery of Deed and PM Mortgage.
(a) At the Closing, Seller shall deliver to Buyer, in addition to the
other items referred to elsewhere in this Agreement, a statutory form of bargain
and sale deed (the "Deed") without covenants against grantor's acts, in the form
of Exhibit "E" annexed hereto, which shall be duly executed and acknowledged,
conveying to Buyer title in fee simple to the Property, free and clear of all
liens and encumbrances, except for the Permitted Exceptions. All documentary
stamps, recordation taxes, transfer taxes and any other taxes or charges
required to be paid to the State of New York or any governmental subdivision
thereof in connection with the execution, delivery and recordation of the Deed
shall be paid by Seller at Closing. Seller shall prepare and Seller and Buyer
shall execute the New York State Real Property Transfer Tax Return form TP-584
at Closing. Buyer shall pay the costs of title search, title insurance and
updating the survey,
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if Buyer elects to update the survey. If Buyer procures a mortgage in connection
with its purchase hereunder, Buyer shall pay any mortgage recording taxes and
filing fees in connection therewith. The parties also shall execute such other
documents as may be reasonably necessary to consummate the sale pursuant to this
Agreement.
(b) (i) At the Closing, Buyer shall deliver the PM Mortgage to Seller,
which shall be duly executed and acknowledged. All mortgage recording tax and
recording fees shall be paid by Buyer at Closing. Buyer shall also pay for and
deliver to Seller a mortgage title policy insuring the PM Mortgage subject only
to the Permitted Exceptions and the Superior Mortgage (defined below). Buyer
shall deliver evidence reasonably acceptable to Seller for due authorization and
execution for the PM Mortgage. The PM Mortgage, and all rights of Seller as
mortgagee thereunder, shall be subject and subordinate in all respects to any
mortgage loan obtained by Buyer in connection with its purchase of the Property
(the "Superior Mortgage"), and to all renewals, modifications, replacements and
extensions of the Superior Mortgage. In confirmation of such subordination,
Seller shall promptly execute and deliver, at Buyer's expense, any reasonable
and customary instrument or inter-creditor agreement, in recordable form if
requested, that the holder of the Superior Mortgage may reasonably request to
evidence such subordination. Notwithstanding anything to the contrary contained
herein, any such subordination shall be expressly conditioned upon (i) the
Superior Mortgage shall not be in an amount greater than $19,000,000, or if
greater, Seller's subordination of the PM Mortgage shall be limited to the
amount of $19,000,000, and (ii) the holder of the Superior Mortgage shall be an
Institutional Lender (defined below).
(ii) As used herein, "Institutional Lender" shall mean (1) a
bank (state, federal or foreign), trust company (in its individual or trust
capacity), insurance company, credit union, savings bank (state or federal),
pension, welfare or retirement fund or system, real estate investment trust (or
an umbrella partnership or other entity of which a real estate investment trust
is the majority owner), federal or state agency regularly making or guaranteeing
mortgage loans, investment bank, subsidiary of a Fortune 500 company (such as
AT&T Capital Corporation or General Electric Capital Corporation), real estate
mortgage investment conduit,
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or securitization trust; (2) any issuer of collateralized mortgage obligations
or any similar investment entity (provided that such issuer or other entity is
publicly traded or was or is sponsored by an entity that otherwise constitutes
an Institutional Lender or has a trustee that is, or is an affiliate of, any
entity that otherwise constitutes an Institutional Lender), or any person acting
for the benefit of such an issuer; (3) any entity actively engaged in commercial
real estate financing and having total assets (on the date when the Superior
Mortgage is executed and delivered) of at least $100,000,000; (4) any entity
that is a wholly owned subsidiary of or is a combination of any one or more of
the foregoing entities; or (5) any of the foregoing when acting as trustee for
other lender(s) or investor(s), whether or not such other lender(s) or
investor(s) are themselves Institutional Lenders.
2.5. Survival. Except as otherwise expressly provided herein, the
covenants, agreements, warranties, representations, obligations and indemnities
of Seller and Buyer set forth in this Agreement shall not survive the delivery
of the Deed and shall be deemed only conditions to Buyer's and Seller's
respective obligations to close, except that the Seller's representations set
forth in Section 2.2(a)(i), (ii), (iii), (iv), (v), (viii), (ix), (x), (xi) and
(xii) shall survive the Closing for a period of one hundred eighty (180) days
from the Closing and Seller's obligations pursuant to Article IV shall survive
the Closing as set forth in Article IV. Buyer's representations shall survive
the Closing for a period of one hundred eighty (180) days from the Closing.
2.6. Title Exceptions.
(a) Buyer shall accept title to the Property subject to the Permitted
Exceptions. In the event that at or prior to Closing, Buyer determines that
there are title defects other than the Permitted Exceptions, Buyer shall so
notify Seller within ten (10) days of receiving notice of such title defects.
Seller shall have no obligation to cure any title defects to which Buyer has
objected, except that Seller shall be obligated to (i) remove by bond or
otherwise any monetary liens affecting the Property which were granted by Seller
pursuant to an instrument executed by Seller, and (ii) remove by bond or
otherwise any other monetary liens (including tax liens) against the Property to
the extent the cost of such removal or cure does not exceed One Hundred Thousand
and No/100 ($100,000.00) Dollars in the aggregate. If Seller shall desire to
remove
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any title objections raised by Buyer, Seller shall be entitled to reasonable
adjournments of the Closing for the purpose of removing any such title
objections. If Seller fails to remove or elects not to remove any title defect
as provided above, Buyer shall have the right, at Buyer's election in its sole
an absolute discretion, to cancel this Agreement and receive a refund of the
Deposit together with any accrued interest thereon, or to close title
notwithstanding the title defects (x) without any credit against the Purchase
Price for such title defect, or (y) a credit or credits for the amount of any
monetary lien Seller is obligated but fails to remove pursuant to (i) above, and
up to $100,000 for the defects which Seller is obligated to but fails to remove
pursuant to (ii) above.
(b) Seller shall deliver title to the Property in accordance with the
terms hereof and as any reputable title company licensed to do business in the
State of New York will approve and insure at its standard rates subject only to
the Permitted Exceptions. Subsequent to the Closing, Buyer shall look solely to
its title insurance company for any claims arising in respect of title matters
and Seller shall have no liability to Buyer for title defects which are
discovered subsequent to the Closing.
2.7. Lease and Guarantee. At the Closing, (i) Seller and Buyer, in
addition to the other items referred to elsewhere in this Agreement, shall
execute the lease (the "Lease") in the form of Exhibit "F" annexed hereto, which
Lease is for certain tracts or parcels of land as more fully described therein
(the "Leased Premises"), and (ii) Seller, in addition to the other items
referred to elsewhere in this Agreement, shall cause EDO Corporation ("EDO"),
its parent company, to execute the Agreement and Guarantee ("Guarantee") which
guarantees Seller's obligations pursuant to Article IV hereof and Seller's
obligations as tenant under the Lease, in the form of Exhibit "G" annexed
hereto. Execution of (a) the Lease by Buyer and Seller, and (b) the Guarantee by
EDO shall be deemed a material condition to Buyer's and Seller's respective
obligations to close. Failure of either party to execute the Lease and of EDO to
execute the Guarantee shall be deemed a default hereunder.
2.8 Industrial Development Agency Condition. This Agreement, and
Buyer's obligation to close title hereunder, is subject to the adoption by the
Town of Babylon Industrial Development Agency (the "XXX") no later than August
31, 2003 of an Inducement Resolution
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evidencing the intention of the XXX to provide certain financial assistance with
respect to the acquisition of the Property by Buyer pursuant to this Agreement
(the "Inducement Resolution"). In the event that Buyer is unable to obtain the
Inducement Resolution by August 31, 2003, Buyer may terminate this Agreement by
written notice to Escrowee and Seller. In the event Buyer so terminates this
Agreement pursuant to this Section 2.8, (i) Buyer shall forfeit the Deposit and
any interest accrued thereon, and Seller shall be entitled thereto, and (ii)
this Agreement shall be deemed of no further force and effect except for those
matters that are expressly stated to survive the termination of this Agreement.
Article III
General
3.1. Buyer's Remedies.
(a) Subject to subsection 3.1(b) hereof, if at the Closing, (i) Seller
is unable to deliver title to the Property in accordance with all of the terms,
provisions and conditions of this Agreement and comply with all the material
provisions and conditions of this Agreement, or (ii) Buyer shall have been
relieved of its obligation to purchase the Property as provided in this
Agreement, then in such event Buyer's sole and exclusive remedy shall be to
cancel this Agreement by giving notice to Seller at the Closing and this
Agreement shall be deemed terminated as of such delivery, in which event the
Deposit, together with interest earned thereon shall be returned to Buyer and
Buyer shall be entitled to reimbursement by Seller of Buyer's "cost of title
examination", and thereupon all rights and obligations hereunder, by either
party against the other, shall cease and terminate and this Agreement shall be
null and void and the lien, if any, of Buyer against the Property shall wholly
cease. Buyer, without reduction of the Purchase Price or any credit or allowance
against the same and without any liability on the part of the Seller, may
nevertheless accept such title as Seller may be able to convey for the purposes
of this Agreement and Buyer shall have no rights of action against Seller
hereunder, at law or in equity or for damages.
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(b) Notwithstanding anything contained herein to the contrary, if this
transaction shall not close solely as a result of a default by Seller under this
Agreement (a "Seller Default"), Buyer shall have the right (i) to seek specific
performance of this Agreement, or (ii) to recover (A) the Deposit (plus all
accrued interest), and (B) Buyer's reasonable out-of-pocket expenses for its due
diligence, including reasonable legal fees and expenses in connection with this
transaction (and specifically excluding any legal fees or expenses incurred in
connection with any litigation between Buyer and Seller), engineering services,
environmental review, title examination, architectural evaluation and
non-refundable mortgage commitment fees not to exceed $772,000.00 in the
aggregate ("Buyer's Costs"). Notwithstanding the provisions of the preceding
sentence, if this transaction shall not close as a result of Seller's inability
to close (e.g., due to title defects which Seller is not obligated to cure),
Buyer's Costs shall be limited to $250,000.00. In the event Buyer prevails in
such specific performance action, Buyer shall be obligated to pay to Seller the
full Purchase Price without any credit for Buyer's Costs. The prevailing party
in any such specific performance action shall be entitled to recover reasonable
attorneys' fees and court costs. In no event shall Buyer have the right to seek
damages from Seller as a result of any default or breach by Seller under this
Agreement except for Buyer's Costs. As used in this subparagraph (b), the term
"Buyer's Costs" shall not be duplicative of any reimbursement of costs paid to
Buyer pursuant to other provisions of this Agreement.
(c) The term "cost of title examination" whenever it is referred to
herein shall be defined as the expenses actually incurred by the Buyer for
examination of title, but the cost of title examination shall, in no event,
exceed the amount which would be charged by a title company which is a member of
the New York Board of Title Underwriters for examination of title to the
Property without the issuance of a policy.
3.2. Unpaid Taxes. Unpaid franchise taxes of Seller or any other
corporation in the chain of title to the Property or transfer, inheritance,
estate, dissolution, license or other or similar taxes levied or imposed against
former owners of the Property shall not be objections to title provided that the
title company agrees to insure against collection of such taxes out of the
Property or omits any exception in connection therewith from Buyer's title
policy issued at
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Closing and omits any such exception from Buyer's lender's title policy, if any
in each case, without special premium to Buyer.
3.3. Judgments or Bankruptcies Against Third Parties and Title
Affidavit. 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 on request deliver to Buyer an affidavit in form sufficient
to eliminate any exception of same from Buyer's title policy showing that such
judgments, bankruptcies or other returns are not against Seller.
3.4. Assignment.
(a) Subject to the provisions of Subparagraph 4.1(g), Buyer shall not
assign this Agreement or transfer any interest herein without obtaining Seller's
prior written consent, which may be withheld in Seller's sole and absolute
discretion. Notwithstanding the foregoing, Buyer shall have the right to assign
this Agreement to an entity which is owned or controlled by, or under common
control, with Buyer. For purposes hereof, an entity shall be deemed to "control"
another entity if Xxxxx Xxxxxx and/or members of Apollo Real Estate Advisors,
L.P. or Xxxxxxxxxx Development Group, Ltd. own at least twenty-five (25%)
percent of all of the (i) partnership interests, if it is a partnership, (ii)
issued and outstanding shares of stock, if it is a corporation and (iii)
membership interests, if it is a limited liability company.
(b) In the event Seller consents to an assignment of this Agreement,
the assignment shall not be effective until Seller has been given a fully
executed copy of the assignment and assumption of this Agreement in form and
substance reasonably satisfactory to Seller, pursuant to which the assignee or
transferee shall assume and take all the rights, privileges, obligations,
liabilities and responsibilities of Buyer under this Agreement. No assignment or
transfer of any interest of Buyer in this Agreement shall release Buyer from any
liability hereunder.
3.5. Condemnation. If, prior to the Closing Date, all or any portion of
the Property is taken by eminent domain or a notice of any eminent domain
proceeding with respect to the Property or any part thereof is received by
Seller, Seller shall give notice thereof to Buyer. In such event, Buyer shall
have the option to (a) complete the purchase hereunder, or (b)
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terminate this Agreement, in which event this Agreement shall be null, void and
of no further force and effect and the Deposit with any interest accrued thereon
shall be paid to Buyer. Buyer shall deliver written notice of its election to
Seller on or before the earlier of (x) twenty (20) days after the date upon
which Buyer receives written notice of eminent domain proceedings, or (y) the
Closing Date. If notice of condemnation is received by Buyer and Buyer fails to
deliver written notice of its election within the required time period, such
failure shall be deemed an election by Buyer to complete the purchase of the
Property under this Agreement. If Buyer elects (or is deemed to have elected) to
complete the purchase of the Property hereunder, the purchase shall be completed
in accordance with this Agreement, except that at the Closing, Seller shall pay,
assign and transfer to Buyer all proceeds from such proceedings theretofore
received by Seller with regard to the Property and all rights Seller has to any
future proceeds of such eminent domain proceedings with regard to the Property;
provided, however, that Buyer shall make the proceeds of any eminent domain
proceeding available to Seller for restoration of the Property to the extent
Seller elects to restore. Adjustment of any condemnation claims shall be
conducted by the party entitled to receive the condemnation proceeds.
3.6. Risk of Loss.
(a) If prior to the Closing the Property is damaged by fire or other
casualty, Seller shall estimate the cost to repair and the time required to
complete repairs and will provide Buyer written notice of Seller's estimation
(the "Casualty Notice") as soon as reasonably possible after the occurrence of
the casualty.
(b) (i) In the event of any Material Damage (defined below) to or
destruction of the Property or any portion thereof prior to the Closing, Buyer
may, at its option, terminate this Agreement by delivering written notice to
Seller on or before the expiration of thirty (30) days after the date Seller
delivers the Casualty Notice to Buyer (and if necessary, the Closing Date shall
be extended to give Buyer the full thirty (30) day period to make such
election). Upon any such termination, the Deposit with any accrued interest
shall be returned to Buyer and the parties hereto shall have no further rights
or obligations hereunder, other than those that by their terms survive the
termination of this Agreement. If Buyer does not terminate this Agreement
-21-
within such thirty (30) day period, then the parties shall proceed under this
Agreement and close on schedule (subject to extension of the Closing as provided
above), and as of the Closing, Seller shall assign to Buyer, without
representation or warranty by or recourse against Seller, all of Seller's rights
in and to any resulting insurance proceeds due Seller as a result of such damage
or destruction, and Buyer shall receive a credit at Closing for any deductible
amount under such insurance policies; provided, however, that such insurance
proceeds shall be made available to Seller to make or perform such restoration
or repairs as Seller deems necessary.
(ii) In the event that the Property is Materially Damaged
prior to Closing and Seller has decided not to restore or repair the Property,
Seller may elect to terminate its obligation to enter into the Lease by notice
to Buyer (the "Material Damage Termination Notice") given on or before the
expiration of thirty (30) days after the date of the casualty (and if necessary,
the Closing Date shall be extended to give Seller the full thirty (30) day
period to make such election). In the event that Seller sends a Material Damage
Termination Notice, Buyer shall have a period of ten (10) days after Seller's
Material Damage Termination Notice to elect to terminate this Agreement. If
Seller has given a Material Damage Termination Notice and Buyer does not
terminate this Agreement pursuant to the provisions of the immediately preceding
sentence, then (1) the parties shall proceed under this Agreement and close on
schedule (subject to extension of the Closing as provided above), and at the
Closing, Seller shall assign to Buyer, without representation or warranty by or
recourse against Seller, all of Seller's rights in and to any resulting proceeds
of the Casualty Insurance Policy, (2) Buyer shall receive a credit at Closing of
the amount of the deductible under the Casualty Insurance Policy, (3) Seller
shall nonetheless be obligated to pay twelve (12) months' Fixed Rent and
Additional Rent (as defined in the Lease) on the dates that the installments
thereof would have come due under the Lease, and (4) the maturity date of the PM
Mortgage shall be the day immediately preceding the second (2nd) anniversary of
the Closing.
(iii) For the purposes of this Agreement, "Material Damage"
and "Materially Damaged" means damage which, in Seller's reasonable estimation,
(i) exceeds $500,000.00 to repair, or (ii) will take longer than one hundred
twenty (120) days to repair.
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(c) If the Property is not Materially Damaged, then neither Buyer nor
Seller shall have the right to terminate this Agreement, and Seller shall, at
its option, either (i) repair the damage (either in whole or in part), or (ii)
if Seller elects not to repair the damage (either in whole or in part), then (1)
if the cost to repair is less than the deductible on Seller's casualty insurance
policy, credit Buyer at the Closing for the reasonable cost to complete the
repair, or (2) if the reasonable cost to complete the repair is greater than the
deductible on Seller's casualty insurance policy, then credit Buyer at the
Closing the amount of the deductible and assign to Buyer, without representation
or warranty by, or recourse against, Seller, all of Seller's right in and to any
resulting insurance proceeds (including any rent loss insurance applicable to
any period on or after the Closing Date) due Seller, and Seller shall have no
responsibility with respect to any such repairs. In the event that Seller elects
to partially repair the damage, then with respect to that portion of the damage
which is not repaired, the provisions of clause (ii) of the immediately
preceding sentence shall apply with respect to such portion of the damage which
is not repaired.
3.7. Notices. All notices required or permitted to be given or
delivered under this Agreement shall be in writing and shall be deemed to have
been given or delivered, as the case may be:
(a) if to Seller, on the business day received if transmitted by
telecopy to the number set forth for Seller below prior to 5:00 p.m. or
otherwise on the next business day; on the first business day following the day
when sent by overnight courier or messenger delivery service, or four (4) days
following the day when sent by the United States Postal Service by registered or
certified mail, postage prepaid, return receipt requested, or upon receipt when
personally delivered, and addressed to:
AIL Systems, Inc.
c/o EDO Corporation
00 Xxxx 00xx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
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Esanu Katsky Xxxxxx & Siger, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to Buyer, on the business day received if transmitted by
telecopy to the number set forth for Buyer below prior to 5:00 p.m., or
otherwise on the next business day; on the first business day following the day
when sent by overnight courier or messenger delivery service, or four (4) days
following the day when sent by the United States Postal Service by registered or
certified mail, postage prepaid, return receipt requested, or upon receipt when
personally delivered, and addressed to:
Deer Park Enterprise, LLC
c/o Blumenfeld Development Group, Ltd.
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
With a copy to:
c/o Xxxx Holdings LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
and
c/o Apollo Real Estate Advisors, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
With a copy to:
-00-
Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address and telecopier as a party may from time to time specify
by a written notice to the other party. If such notice is given by personal
delivery as aforesaid, the person to whom such notice is given shall, if
requested, acknowledge receipt of such notice and the date of such receipt on a
copy thereof. Notices may be given by a party or such party's attorneys.
Article IV
Environmental Matters
4.1. Seller's Environmental Liability.
(a) (i) In the event that (1) the Report indicates any Environmental
Condition exclusive of asbestos containing materials (a "Due Diligence
Environmental Condition") or (2) any Environmental Condition is discovered at
the Property which is not a Due Diligence Environmental Condition and which
Environmental Condition is required to be remediated pursuant to Environmental
Laws (hereinafter defined) in existence as of the Effective Date (a "Post
Closing Environmental Condition"), Seller shall be obligated to obtain Closure
for any Due Diligence Environmental Condition and for any Post Closing
Environmental Condition ("Seller's Remediation Obligation"). Notwithstanding the
foregoing, Seller's Remediation Obligation with respect to any Post Closing
Environmental Conditions shall be limited to those Environmental Conditions
which resulted from a Release at the Property during the Ownership Period.
(ii) Seller shall diligently and continuously proceed to
complete Seller's Remediation Obligation in accordance with all applicable
Environmental Laws and as required by the appropriate Governmental Authority
(hereinafter defined) so as to obtain Closure. Buyer shall cooperate with Seller
for the purpose of completing Seller's Remediation Obligation.
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Seller shall perform and complete Seller's Remediation Obligation in an
expeditious manner. In the event that any part of Seller's Remediation
Obligation is performed after the expiration date of the Lease, Buyer shall
provide Seller with access to the Property to complete Seller's Remediation
Obligation pursuant to the terms of the Lease, and if requested, Buyer shall
provide Seller with access to utilities for the purpose of performing Seller's
Remediation Obligation and Seller shall reimburse Buyer for the reasonable cost
of such utilities.
(iii) In the event of any Seller's Remediation Obligation with
respect to Post Closing Environmental Conditions which are discovered after the
expiration of the term of the Lease, Buyer shall give Seller prompt written
notice of such Post Closing Environmental Condition (the "Buyer's Post Closing
Notice"). Seller shall, within forty five (45) days of Buyer's Post Closing
Notice, obtain and deliver to Buyer bids from one or more reputable
environmental firms for the remediation of such Post Closing Environmental
Condition (the "Post Lease Work"). Buyer shall, within fifteen (15) days of the
receipt of such bids give Seller written notice of Buyer's election to perform
the Post Lease Work. If Buyer does not give Seller written notice of its
election to perform the Post Lease Work, Buyer shall be deemed to have waived
its rights to perform the Post Lease Work and Seller shall be obligated to
perform the same in accordance with the provisions of this Agreement. If Buyer
elects to perform the Post Lease Work, Seller shall, within ten (10) business
days of Buyer's election, pay to Buyer an amount equal to one hundred ten (110%)
percent of the lowest bid received by Seller for the Post Lease Work, and upon
such payment, (a) Seller shall have no further liability with respect to such
Post Lease Work, (b) Buyer shall be solely responsible for the performance of
such Post Lease Work (including, without limitation, the obtaining of any
permits and authorizations from any Governmental Authorities with respect
thereto), and (c) Buyer shall indemnify, defend and hold Seller harmless from
and against any obligation arising out of such Post Lease Work and the
Performance of the Post Lease Work, including, without limitation, reasonable
attorney's fees and costs.
(iv) In connection with any Seller's Remediation Obligation,
Seller shall control all communications and agreements with any Governmental
Authority having
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jurisdiction over Seller's Remediation Obligation, provided that (a) Seller
shall provide Buyer with drafts of all documents to be submitted to any
Governmental Authority, not less than two (2) business days prior to submission
thereof (or such lesser time as may be reasonable, if a shorter period is
mandated by the Governmental Authority), it being understood that Buyer shall
have the right to submit comments to such submittals to Seller, but Seller shall
be under no obligation to incorporate any such comments into the submittals, (b)
Seller shall provide Buyer, promptly upon receipt thereof, with copies of all
documentation received from Governmental Authorities pertaining to Seller's
Remediation Obligation, and (c) reasonable prior notice (which notice may be
oral) of any meetings or substantive telephone calls with any Governmental
Authorities, and Buyer shall be permitted to attend such meetings or be present
for such telephone calls, but Buyer shall have no rights to participate therein
other than to observe such communication. Buyer shall cooperate with Seller, to
the extent required, in connection with Seller's Remediation Obligation,
including the entering into of any use or development restriction which may be
required by a Governmental Authority which would limit the use of the Property
to office, industrial and retail use (the "Use Restriction"). Seller shall use
its reasonable efforts to have any Use Restriction limited to the area of the
Property which contains the Environmental Condition at issue, but shall not be
obligated to incur any material costs or liability to do so. The form of the Use
Restriction, but not the scope thereof, shall be subject to Buyer's reasonable
approval, which approval shall be deemed given if Buyer does not submit any
comments to Seller within five (5) business days of submission thereof by
Seller.
(b) It is expressly understood and agreed that except as provided in
the Lease, Seller's Remediation Obligation with respect to any Post Closing
Environmental Condition shall be limited to the remediation of Environmental
Conditions (hereinafter defined) which are required to be remediated pursuant to
Environmental Laws in existence as of the Effective Date, and which
Environmental Conditions resulted from a Release (hereinafter defined) at the
Property during the period from the date Xxxxxx-Xxxxxx acquired the Property
through the date of the Closing (the "Ownership Period").
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(c) (i) Seller agrees to indemnify, defend and hold harmless Buyer and
its employees, officers, shareholders, partners, members, general managers and
directors (collectively, the "Indemnitees") from and against any and all
liabilities, claims, actions, suits, demand, judgments, damages, expenses,
penalties and costs (including reasonable attorneys' fees) arising from (1)
Seller's failure to comply with any Seller's Remediation Obligation, and (2)
claims by third parties for damages and other relief sought by such third
parties as a result of any Release at or from the Property during the Ownership
Period.
(ii) Buyer agrees that upon receipt of any notice of the
assertion by a third party of an Environmental Claim (hereinafter defined), or
upon Buyer's reasonable determination that an Environmental Claim would be
covered by Seller's indemnification as set forth in subparagraph (i) above,
Buyer shall promptly give Seller written notice of such Environmental Claim (a
"Claim Notice"). Seller agrees that within the Response Period (defined below),
Seller shall notify Buyer in writing that Seller shall defend such Environmental
Claim in accordance with the provisions hereof, including (without limitation)
the provisions of subparagraph (i) of this subparagraph (c). Buyer agrees not to
expend any sum for which it shall or may claim reimbursement or indemnification
from Seller with regard to such Environmental Claim unless (1) Seller fails to
notify Buyer that it shall undertake defense of such Environmental Claim within
the Response Period, or (2) Buyer must, in Buyer's reasonable discretion, take
action within the Response Period in order to protect Buyer's or Seller's
interests. Buyer agrees to cooperate in the defense of any such Environmental
Claims with Seller, attorneys designated by Seller and/or any insurance company.
As used herein, the term "Response Period" shall mean a period of thirty (30)
days from the date of the Claim Notice, or any shorter period within which Buyer
is obligated to respond to such Environmental Claim, provided, however, that
Buyer shall be obligated to use its good faith efforts to obtain an extension of
the period in which to respond to any Environmental Claim so that Seller shall
be afforded the full thirty (30) day Response Period. Notwithstanding anything
to the contrary contained herein, Buyer shall not be entitled to reimbursement
of any amounts expended pursuant to the terms hereof unless the Claim Notice
contains a legend in capital letters and bold
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type on the first page thereof which states "PURSUANT TO THE PROVISIONS OF
ARTICLE IV OF THE PURCHASE AGREEMENT, IN THE EVENT THAT YOU DO NOT RESPOND TO
THIS NOTICE WITHIN THIRTY (30) DAYS, YOU MAY BE LIABLE FOR ANY AMOUNTS EXPENDED
BY THE UNDERSIGNED IN CONNECTION WITH THE ENVIRONMENTAL CLAIM DESCRIBED HEREIN."
The thirty (30) day period referenced in such legend shall be adjusted to
reflect the actual number of days within which Seller must respond, which number
of days shall be determined in accordance with this subparagraph (c)(ii).
(iii) Buyer agrees to indemnify, defend and hold harmless
Seller and its employees, officers, shareholders, partners, members, general
managers and directors from and against any and all liabilities, claims,
actions, suits, demand, judgments, damages, expenses, penalties and costs
(including reasonable attorneys' fees) arising from asbestos related claims by
third parties for damages and other relief sought by such third parties which
claims arose from exposure to asbestos (1) after the expiration of the term of
the Lease, and (2) during the term of the Lease if such exposure arose out of
actions taken by Buyer or its agents during the term of the Lease.
(d) As used in this Agreement, the following terms shall have the
following meanings:
(i) "Environmental Claim" shall mean any summons, complaint,
demand, order, appearance ticket, indictment, search warrant, accusatory
instrument, judicial decree, consent decree, consent order, hearing notice,
administrative order, notice of violation, subpoena, discovery request, action,
proceeding or investigation, whether administrative, civil or criminal,
including any claims alleging negligence, nuisance, trespass, strict liability,
toxic tort or any other claim brought or initialed by or on behalf of any
federal, state or local authority or any individual, group of individuals or
private organization in connection with an Environmental Condition.
(ii) "Environmental Condition" shall mean any (1) Release
(defined below) at, in, under or otherwise affecting the Property, (2) actual or
alleged violation of any
-29-
Environmental Law, including (but not limited to) penalties, judgments and
costs, (3) the commencement of a Third Party Action (defined below) or any
action by any Governmental Authority, or (4) the presence of any other condition
or event which gives rise to or serves as the basis for an Environmental Claim.
(iii) "Environmental Laws" shall mean any and all federal,
state or local laws, statues, ordinances, rules or regulations relating to the
generation, storage, possession, use, handling, transportation, treatment,
disposal or Release of Hazardous Substances (defined below). The term
"Environmental Laws" shall include, but not be limited to, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601
et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.),
the Oil Pollution Act of 1990 (P.L. 101-380), the Safe Drinking Water Act (42
U.S.C. Section 300 (f) et seq.), the Clean Air Act (42 U.S.C. Section 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.) and the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 et
seq.), as such laws have been amended or supplemented, and any related or
analogous federal, state or local statutes, rules, regulations, ordinances,
licenses, permits and interpretations or orders of regulatory or administrative
bodies that govern or apply to environmental matters.
(iv) "Hazardous Substance" shall mean any pollutant,
contaminant, chemical waste, substance or material, whether or not defined or
regulated as such in any Environmental Law, including (without limitation)
asbestos, petroleum (including any crude oil or any fraction), petroleum
constituents including chemicals associated with petroleum, radioactive
substances, polychlorinated biphenyls or any other material which has the
potential to become a Hazardous Substance; provide, to the extent that the
applicable laws of the State of New York establish a meaning for "hazardous
material", "hazardous substance", "hazardous waste", "solid waste" or "toxic
substance" which is broader than that specified here or in any Environmental
Law, such broader meaning shall apply.
-30-
(v) "Release" shall mean any act, omission or event occurring
during the Ownership Period that resulted in the accidental or intentional
spilling, leaking, pumping, pouring, emitting, emptying, discarding, injecting,
escaping, leaching, dumping or disposing of a Hazardous Substance on, at, in or
migrating from the Property or the soil and groundwater underlying the Property.
The term "Release" shall include the abandonment or discarding of barrels,
containers or other receptacles containing Hazardous Substances.
(vi) "Third Party Action" shall mean any claim, notice of
claim, action, proceeding or demand brought by any third party (including a
Governmental Authority) other than Buyer, any Indemnitee or any affiliate of or
any party related to Buyer or any Indemnitee, alleging negligence, nuisance,
trespass, strict liability, toxic tort or any other claim alleging damage or
injury arising out of any Environmental Condition at the Property during the
Ownership Period.
(vii) "Governmental Authority" shall mean the federal
government and of any state, county, city, borough and municipality, and of any
division, agency, subdivision, bureau, office, commission, board, authority and
department thereof, and of any public officer or official and of any
quasi-governmental officials and authorities, and of any insurance boards,
having jurisdiction over the Property.
(viii) "Final Closure" shall mean the investigation,
assessment and remediation of an Environmental Condition, together with the
monitoring required by and the actual receipt of a final, unconditional "no
further action" letter, certificate of completion, or equivalent document
evidencing regulatory closure from the Governmental Authority having
jurisdiction of such Environmental Condition. It is specifically agreed and
understood that the remediation of the Property which is required of Seller in
order to achieve Closure shall be to put the Property to a condition which would
permit the development thereof for office, industrial and retail use only, and
taking into account any Use Restriction.
(ix) "Material Closure" shall mean the investigation,
assessment and remediation of an Environmental Condition sufficient to not cause
any material interference with Buyer's ability to develop, construct, finance or
lease the Property.
-31-
(x) "Closure" shall mean collectively Material Closure and
Final Closure.
(e) Notwithstanding anything contained in this Agreement to the
contrary, it is expressly understood and agreed that (i) Seller shall not be
liable to Buyer for any consequential damages, business losses or damages due to
the diminution in the value of the Property arising in respect of any
Environmental Condition, (ii) Seller shall have no liability with respect to the
removal, encapsulation or other remediation of any asbestos containing materials
at the Property, and (iii) Seller shall have no liability for groundwater
contamination which the Governmental Authority having jurisdiction over such
contamination confirms is attributable to off-site sources.
(f) The provisions of this Article IV shall survive the Closing.
(g) Notwithstanding the provisions of Section 3.4 or any other
provisions of this Agreement to the contrary, the provisions of this Article IV
may be assigned by Buyer without Seller's consent after Closing in connection
with the financing of, or sale of all or parts of, the Property.
(h) Seller shall absolutely and unconditionally, without
representation, warranty or recourse, assign, convey and transfer to Buyer all
of Seller's right, title and interest in and to any and all claims, demands,
actions and causes of action which Seller has or may in the future have against
another party respecting any Environmental Condition which is not part of
Seller's Remediation Obligation or with respect to which Seller has been
released from liability pursuant to the provisions of Subsection 4.1(a)(iii),
but specifically excluding any indemnification claims or contribution rights of
Seller with respect to third party, which claims and rights Seller retains.
(i) Notwithstanding anything to the contrary contained in this
Agreement, those items identified as "Tenant's Closing Obligations" in Exhibit D
of the Lease are not Environmental Conditions as defined herein, and Seller's
obligations with respect thereto are covered exclusively under the Lease.
(j) Notwithstanding anything to the contrary contained in this
Agreement, Seller's obligations with respect to Due Diligence Environmental
Conditions shall not be limited to the Ownership Period.
-32-
Article V
Miscellaneous
5.1. Expenses. Unless otherwise provided for herein, each of Buyer and
Seller shall pay its own costs and expenses (including, without limitation,
attorneys' fees and other professional fees and expenses) incurred in connection
with the negotiation, preparation, execution and delivery of this Agreement and
all related documents and the consummation of the transactions contemplated
hereby. The provisions of this Section 5.1 shall survive the Closing or
termination of this Agreement.
5.2. Recordation. Buyer agrees not to record a memorandum hereof,
except in the event of Seller's default hereunder, which default continues after
written notice and a reasonable opportunity to cure.
5.3. Tax Certiorari Proceedings. Seller shall have the right to
commence and maintain tax certiorari proceedings in respect of the Property. In
the event that as a result of any such proceeding there is a real estate tax
reduction which covers a fiscal tax year a portion of which occurs from or after
the Delivery Date, appropriate adjustments shall be made as of the Delivery Date
in accordance with the provisions of Section 1.6 of this Agreement and the
Lease. Notwithstanding anything to the contrary contained herein, Seller shall
not settle any such tax certiorari proceeding without the prior approval of
Buyer (which approval shall not be unreasonably withheld or delayed) where such
settlement would affect any post-Delivery Date tax periods. The provisions of
this Section 5.3 shall survive the Closing and the Delivery Date.
5.4. Violations. Buyer shall be obligated to accept the Property at
Closing and on the Delivery Date subject to any violations affecting the
Property as of the date hereof or which would be cured or rendered moot as a
result of the demolition of that portion of the Property subject to such
violations. Seller shall be obligated to cure and remove of record any
violations which would not be so cured or rendered moot and which are issued
after the date hereof. In any event, Seller shall remain liable for any fines or
penalties associated with any violations against the Property, whenever
recorded, and at Closing Seller shall pay any fines or penalties then
-33-
outstanding. In lieu of paying the fines on the Delivery Date or the Closing,
Seller may pay or credit Buyer the amount of the fines, with interest and
penalties if any.
5.5. Assignment. This Agreement cannot be assigned by either party
except as provided for in Section 3.4 hereof.
5.6. Waiver. Any of the terms or conditions of this Agreement may be
waived in writing at any time by the party which is entitled to the benefits
thereof. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of such provision at any time in the future or a
waiver of any other provision hereof.
5.7. Governing Law and Construction. This Agreement shall be governed
by and construed in accordance with the local laws of the State of New York.
This Agreement shall be given a fair and reasonable construction in accordance
with the intention of the parties, without regard to canons or aids or
interpretation, if any, requiring construction against either party.
5.8. Enforceability. If any provision of this Agreement as applied to
any party or to any circumstance shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances, or the
validity or enforceability of this Agreement. The parties intend this Agreement
to be enforced as written. If any provision of this Agreement shall otherwise
finally be determined to be unlawful, then such provision shall be deemed to be
severed from this Agreement and every other provision of this Agreement shall
remain in full force and effect.
5.9. No Third-Party Beneficiaries or Right to Rely. Notwithstanding
anything to the contrary in this Agreement, (a) nothing in this Agreement is
intended to or shall create for or grant to any third person any rights
whatsoever, as a third party beneficiary or otherwise, (b) no third person is
entitled to rely on any of the representations, warranties, covenants or
agreements contained herein; and (c) no party hereto shall incur any liability
or obligation to any third person because of any reliance by such third person
on any representation, warranty, covenant or agreement herein.
5.10. Other. As used in this Agreement and the Exhibits and as required
by the context: the singular and plural shall be deemed to include each other;
each gender to include all genders;
-34-
words importing persons shall include partnerships, associations, corporations,
trusts and other entities, the terms "herein", "hereof", and "hereunder" or
other similar terms refer to this Agreement as a whole and not only to the
particular sentence, paragraph, subsection or section in which any term is used
except as expressly more specifically limited; and words and phrases defined in
this Agreement have the same meaning in the Exhibits unless specifically
provided to the contrary in any Exhibits. As used herein the term "party"
refers, as appropriate, to Seller or Buyer.
5.11 Maintenance of Property. Between the date hereof and the Closing,
Seller shall maintain the Property in its current condition, reasonable wear and
tear, condemnation and casualty excepted.
5.12. Table of Contents; Captions. The captions and table of contents
in this Agreement are solely for convenience of reference and shall not in any
manner alter or vary the interpretation or construction of this Agreement.
5.13. Full Execution. This Agreement shall not be deemed binding upon
either Seller or Buyer unless and until (i) the same has been fully executed by
Seller and Buyer, and (ii) fully executed original copies of this Agreement have
been delivered to each of the parties. The date upon which both of the aforesaid
conditions shall have been satisfied shall for purposes of this Agreement be
referred to as the "Effective Date".
5.14. Counterparts. This Agreement may be executed in more than one
counterpart, each of which shall for all purposes be deemed to be an original
and all of which shall constitute one and the same agreement.
5.15. Facsimile Signatures. This Agreement may be executed by facsimile
signatures of the parties and in such event, shall be fully binding upon the
parties hereto.
5.16. Entire Agreement; Merger; Assigns and Amendment. This Agreement,
including all Exhibits hereto, constitutes the sole understanding of the parties
with respect to the matters contemplated hereby and thereby and supersedes and
renders null and void all prior agreements and understandings between the
parties with respect to such matters. It is understood and agreed that all
understandings, representations and agreements heretofore had between the
parties
-35-
(including their brokers and agents) hereto are merged in this Agreement, which
alone fully and completely expresses their agreement, and that the same is
entered into after full investigation, neither party relying upon any statement
or representation not embodied in this Agreement, made by the other. All of the
terms, conditions and undertakings contained herein are to apply to, bind and
inure to the benefit of the permitted successors and assigns of the respective
parties. This Agreement may not be changed or terminated orally. No amendment,
modification or alteration of the terms or provisions of this Agreement,
including all Exhibits hereto, shall be binding unless the same shall be in
writing and duly executed by Buyer and Seller.
5.17. Brokers.
(a) Buyer and Seller warrant and represent to each other that
Insignia/ESG, Inc. (the "Broker") is the sole broker with whom Buyer or Seller
have dealt in this transaction. Seller shall be responsible to pay any
commission or other amounts due Broker pursuant to a separate agreement with
Broker. Buyer and Seller agree to indemnify and hold the other harmless, and
defend the other from and against any claim, loss, damage, liability, cost and
expense (including, without limitation, reasonable attorneys' fees) resulting
from any broker other than Broker that shall involve a breach or an alleged
breach of the warranty and representation by Buyer and Seller in this Section
5.17
(b) The provisions of this Section 5.17 shall survive the Closing or
early termination of this Agreement.
5.18. Waiver of Provisions.
Either Buyer or Seller, in their sole discretion, shall have
the right to waive any condition contained in this Agreement which is for the
benefit of either Buyer or Seller, respectively.
BALANCE OF PAGE LEFT INTENTIONALLY BLANK
-36-
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of
the date first above written.
SELLER:
AIL SYSTEMS, INC.
Federal Taxpayer I.D. No. a Delaware corporation
00-0000000
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BUYER:
DEER PARK ENTERPRISE, LLC
Federal Taxpayer I.D. No. a New York limited liability company
00-0000000
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
EDO CORPORATION AS TO
SECTION 2.7 ONLY:
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President-Admin
ESCROWEE:
ESANU KATSKY XXXXXX & SIGER, LLP
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxxx
Title:Partner
-37-
EXHIBIT A
Description of the Property
Follows this page.
EXHIBIT B
PM Note and PM Mortgage
Follows this page.
EXHIBIT C
Permitted Exceptions
1. Rights of the public and private parties in and to the public roads and
streets abutting the Property.
2. Sewer rights, if any.
3. Real estate taxes, water rates and sewer rents, if any, subject to
adjustment as herein provided.
4. Building restrictions and zoning regulations heretofore or hereafter
adopted by any public authority.
5. Minor Variations between the record lot lines of the Property and those
shown on the tax map.
6. Standard printed exceptions contained in the form of title insurance
policy then issued (except those to be omitted pursuant to specific
sections of this Agreement, if any).
7. The state of facts shown on the survey made by Xxxxxxx X. Xxxxx, dated
August 5, 2002, and updated on June 24, 2003 by Xxxxxxx X. Xxxxx.
8. Ten (10) foot wide strip reserved for widening of Grand Boulevard, as
shown on filed Final Map, Minor Subdivision of AIL Systems Property,
filed on March 2, 1994 as Map #9474 ("Filed Map #9474") and shown on
Subdivision Map of Lot 2, AIL Systems Property, filed June 8, 2000, as
Map #10457 ("Filed Map #10457") and ten (10) foot wide additional strip
reserved for widening of Grand Boulevard as shown on Filed Map #10457.
Approximately 10 foot wide strip was conveyed to the Town of Babylon,
pursuant to Quitclaim Deed, dated June 29, 2000, executed and delivered
by A.I.L. Systems, Inc.
The following exceptions 9-17 apply to the extent applicable to the Property
9. Reciprocal Easement Agreement dated as of June 29, 2000 by and among
AIL Systems Inc., Home Depot U.S.A., Inc. and RG Partners, and recorded
on July 21, 2000 in the Office of the Suffolk County Clerk's Office in
Liber 12057, Page 595.
10. Declaration of Covenants and Restrictions made by AIL Systems, Inc.
dated June 15, 2000 and recorded June 19, 2000 in Liber 12049, page
784. Said Declaration by its terms: (i) supercedes Declaration of
Covenants and Restrictions made by AIL Systems, Inc., dated January 17,
1994 and recorded January 27, 1994 in Liber 11662, page 204;
C-i
and (ii) modifies in part and supercedes in part the Declaration of
Covenants and Restrictions made by AIL Systems, Inc., dated June 1,
1990 and recorded June 28, 1990 in Liber 11093, page 531. Said
Declaration of June 1, 1990 superceded by its terms (x) Declaration of
Covenants and Restrictions made by Xxxxx Corporation, dated September
14, 1987 and recorded September 14, 1987 in Liber 10418, page 363 and
(y) Declaration of Covenants and Restrictions made by Xxxxx
Corporation, dated September 7, 1983, recorded October 11, 1983 in
Liber 9439, page 399.
11. Entrance Easement, Temporary Construction Easement, Fill Easement and
other easements and matters, including existing water and sewer lines,
all as shown on Filed Map #9474 and Filed Map # 10457.
12. Temporary Construction Easement acquired by the County of Suffolk
pursuant to Vesting Order, dated June 13, 1991, entered on June 21,
1991 in Condominium Proceeding in the Supreme Court, County of Suffolk,
Index No. 91-5197, which easement is shown as Parcel "H" on Map. No.
10, and also shown on Filed Map #9474 and Filed Map #10457.
13. Thirty (30) foot set back line along the Northerly and Easterly record
lines as shown on Filed Map # 9474.
14. Terms, covenants, conditions and provisions of that certain Easement
Agreement made between Suffolk County Industrial Development Agency,
AIL System, Inc. and RG Partners, dated as of January 12, 1994 and
recorded in Liber 11662, Page 202.
15. Covenants and/or restrictions set forth in that certain Declaration of
Covenants and Restrictions - Groundwater Management made by Suffolk
County Development Agency, dated January 14, 1994 and recorded on
January 27, 1994 in Liber 11662 page 276.
16. Covenants and/or restrictions set forth in that certain Grant of
Easement made by Xxxxx Corporation to New York Telephone Company, dated
October 14, 1986 and recorded on December 17, 1986 in Liber 10195, page
244.
17. Covenants and/or restrictions set forth in that certain Easement
Agreement, made by AIL Systems, Inc. to United Way of Long Island,
Inc., dated as of June 29, 2000 and recorded on July 28, 2000 in Liber
12059, page 19.
C-ii
EXHIBIT D
Rights of Occupancy and Leases
Follows this page.
EXHIBIT E
Form of Deed
Follows this page.
E-i
EXHIBIT F
Lease
Follows this page.
F-i
EXHIBIT G
Guarantee
Follows this page.
G-i
--------------------------------------------------------------------------------
AIL SYSTEMS, INC.
SELLER
AND
DEER PARK ENTERPRISE, LLC
BUYER
PURCHASE AGREEMENT
Dated: July 31, 2003
Property: Approximately 80.789 acres located in
Deer Park, New York
--------------------------------------------------------------------------------
TABLE OF CONTENTS TO
PURCHASE AGREEMENT
Introductory Recitals 1
Article I - Purchase and Sale:
Section 1.1. - Real Property 1
1.2. - Purchase Price 1
1.3. - Payment 1
1.4. - Escrow 2
1.5. - Closing 4
1.6. - Adjustments 4
1.7. - Assessments 5
1.8. - Due Diligence 5
Article II - Permitted Exceptions, Representations,
Warranties, Covenants and Conditions:
Section 2.1. - Permitted Exceptions 11
2.2. - Seller's Representations 11
2.3. - Buyer's Representations 13
2.4. - Delivery of Deed and PM Mortgage 14
2.5. - Survival 16
2.6. - Title Exceptions 16
2.7. - Lease and Guarantee 17
2.8. - Industrial Development Agency Condition 17
Article III - General:
Section 3.1. - Buyer's Remedies 18
3.2. - Unpaid Taxes 19
3.3. - Judgments or Bankruptcies
Against Third Parties and Title Affidavit 20
3.4. - Assignment 20
3.5. - Condemnation 20
3.6. - Risk of Loss 21
3.7. - Notices 23
Article IV - Environmental Matters:
Section 4.1 - Seller's Environmental Liability 25
Article V - Miscellaneous:
Section 5.1 - Expenses 33
5.2 - Recordation 33
5.3 - Tax Certiorari Proceedings 33
5.4 - Violations 33
5.5 - Assignment 34
5.6 - Waiver 34
5.7 - Governing Law and Construction 34
5.8 - Enforceability 34
5.9 - No Third-Party Beneficiaries or Right to Rely 34
5.10 - Other 34
5.11 - Maintenance of Property 35
5.12 - Table of Contents; Captions 35
5.13 - Full Execution 35
5.14 - Counterparts 35
5.15 - Facsimile Signatures 35
5.16 - Entire Agreement; Merger, Assigns and Amendment 35
5.17 - Brokers 36
5.18 - Waiver of Provisions 36
Page
Initially
Referred To:
------------
Schedule of Exhibits and Schedules:
Exhibit A - Description of the Property 1
Exhibit B- PM Mortgage 2
Exhibit C - Permitted Exceptions 11
Exhibit D - Rights of Occupancy and Leases 12
Exhibit E - Form of Deed 14
Exhibit F - Lease 17
Exhibit G - Guarantee 17
