AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement) is dated as of
the 14th day of May, 1998 by and between DICTAPHONE CORPORATION, a Delaware
corporation, ("Seller"), at the address of 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000; and STRATFORD CT BUSINESS TRUST, a Delaware business trust
(the "Purchaser"), at the address of c/o U.S. Realty Advisors, Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
A. Seller owns that certain parcel of real property located in
Stratford, Connecticut more particularly described herein, which Seller desires
to sell to Purchaser.
B. Purchaser and Seller desire to enter into this Agreement pursuant
to which Purchaser will buy and Seller will sell the Purchased Assets, as
defined below, and the other assets hereinafter described.
AGREEMENTS
In consideration of the purchase price, the promises and covenants
contained herein, the parties hereto, hereby agree as follows:
1. DEFINITIONS:
A. ACCEPTANCE DATE. "Acceptance Date" means the date upon
which this Agreement is signed by both Seller and Purchaser.
B. APPRAISAL. "Appraisal" means the appraisal obtained by
Purchaser, at Seller's expense, for each of the Purchased Assets.
C. CLOSING. "Closing" means the consummation of the purchase
of the Purchased Assets (defined below) as contemplated by Section 12 of this
Agreement.
D. CONSENT. "Consent" shall mean that certain Assignment of
Master Lease and Guaranty Consent Agreement, dated as of the date hereof, among
Seller, Purchaser and Purchaser's Lender.
E. DUE DILIGENCE DOCUMENTS. "Due Diligence Documents" shall
have the meaning set forth in Section 8(A).
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F. MASTER LEASE. "Master Lease" means the lease to be executed
at the Closing between Tenant, as lessee, and Purchaser, as lessor, with respect
to all of the Purchased Assets, the form of which is attached hereto as
EXHIBIT B.
G. PERMITTED EXCEPTIONS. "Permitted Exceptions" means the
exceptions relating to title as more particularly described in Section 10(E)
below.
H. PROJECT. "Project" shall mean a Real Property with the
Improvements located thereon.
I. PURCHASED ASSETS. "Purchased Assets" means the Project
(Real Property, Improvements and FF&E) as more particularly described in Section
3 below, which is purchased by Purchaser pursuant to the terms of this
Agreement.
J. PURCHASE PRICE. "Purchase Price" means the price payable
for the purchase of the Purchased Assets as more particularly set forth in
Section 5 below.
K. PURCHASER'S LENDER. "Purchaser's Lender" means the lender
engaged by Purchaser to finance a portion of the Purchase Price.
L. REAL PROPERTY. "Real Property" means that certain parcel of
real property located in Stratford, Connecticut described on EXHIBIT A attached
hereto and incorporated herein, together with all easements, rights-of-way,
privileges and appurtenances to all of such parcels.
M. SELLER COSTS. "Seller Costs" means the costs actually
incurred by Seller in connection with the closing of the transaction as
contemplated by Section 12(D)(1) of this Agreement.
N. TENANT. "Tenant" shall mean Dictaphone Corporation.
O. TITLE COMPANY. "Title Company" means Commonwealth Land
Title Insurance Company.
2. AGREEMENT. Subject to the terms and conditions set forth in this
Agreement, Seller will sell and convey to Purchaser and Purchaser will purchase
from Seller at the Purchase Price and upon the terms and conditions set forth in
this Agreement the Purchased Assets more particularly described in Section 3
below.
3. PROPERTY TO BE SOLD. The Purchased Assets to be purchased and sold
(free and clear of all liens, claims, pledges and encumbrances, subject only to
the Permitted Exceptions) are as follows:
A. REAL PROPERTY. Fee simple title to the Real Property.
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B. IMPROVEMENTS. All improvements now or hereafter located in,
upon, and under the Real Property, including without limitation, all buildings,
utilities systems, landscaping and lighting facilities, but excluding Tenant's
Personal Property (as defined in the Master Lease) (collectively, the
"Improvements").
C. FF&E. All fixtures and equipment located in, upon, and
under the Real Property, excluding only Tenant's Personal Property, as such term
is defined in the Master Lease (the "FF&E").
4. INTENTIONALLY OMITTED.
5. PURCHASE PRICE. The total Purchase Price for the Purchased Assets
shall be FOURTEEN MILLION and 00/100 Dollars ($14,000,000); plus all Purchaser
Costs (if allowed as an addition pursuant to the provisions of Section 12(D)).
The Purchase Price shall be payable by Purchaser at Closing via federal wire
transfer, which amount shall be adjusted for closing costs as provided herein
and in Section 12 below.
6. SELLER'S WARRANTIES AND REPRESENTATIONS. Seller represents,
warrants and agrees that the following are true and correct on the Acceptance
Date of this Agreement and will be true and correct on and as of Closing:
A. AUTHORITY. At Closing, Seller will be the sole owner of the
Purchased Assets and will possess all right, authority, and power to execute and
perform under this Agreement, the Master Lease, the Consent and the other
documents executed and delivered by Seller in connection with this transaction.
This Agreement, the Master Lease, the Consent and the other documents executed
and delivered by Seller in connection with this transaction have been duly
executed by Seller and are enforceable against Seller in accordance with their
terms, and Seller will convey good and marketable title to the Purchased Assets
to Purchaser at Closing, free and clear of all liens, claims, pledges and
encumbrances arising by, through and under Seller, except for the Permitted
Exceptions.
B. TITLE. Seller is the sole owner of all the Purchased Assets
and has not assigned, pledged, transferred, leased or otherwise encumbered
Seller's interest in the Purchased Assets. Seller shall be able to and will
transfer to Purchaser at Closing good and marketable title to the Purchased
Assets, free and clear of all liens, claims, pledges and encumbrances arising
by, through and under Seller, other than the Permitted Exceptions.
C. TAXES. Subject to Section 12(C), Seller has paid, or will
pay when due after Closing, in full all taxes and special assessments on the
Purchased Assets that have become due and payable through the date of the
Closing, and the Purchased Assets will not be subject to any lien for payment of
taxes, other than general property and personal property taxes and assessments
and other taxes constituting a lien not yet payable.
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D. NO VIOLATIONS. Neither execution and delivery of this
Agreement, the Master Lease nor the Consent nor the consummation of the
transactions hereby contemplated, nor performance of the covenants and
obligations on the part of Seller to be performed hereunder, under the Master
Lease nor under the Consent nor the fulfillment of the terms hereof, under the
Master Lease nor under the Consent are restricted by, will conflict with, result
in a violation or breach of, constitute (with or without notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration by the other parties thereto) under or require the consent of any
person under any of the terms, conditions or provision of any agreement to which
Seller is a party, or any order, writ, injunction, decree, statute, rule or
regulation applicable to Seller.
E. LITIGATION AND CLAIMS. There are no material actions, suits
or proceedings by any governmental or quasi-governmental entity or any other
person or entity, pending or, to the best knowledge of Seller, threatened
against any part of the Purchased Assets.
F. COMPLIANCE WITH LAW. To Seller's best knowledge and belief,
Seller is in possession of all governmental licenses, permits and easements
necessary or required to own and operate the Projects. Such licenses, permits
and easements are in full force and effect and Seller as received no written
notice that a violation exists in respect of any such license, permit or
easement.
G. ZONING. The Real Property upon which each of the Projects
is located is currently zoned to allow the use of the Project as a an office
property.
H. INSURANCE. Seller presently causes to be maintained
policies of insurance with respect to the Purchased Assets, which policies meet
all of the requirements under any existing mortgage and
under the Master Lease.
I. BANKRUPTCY. There are no bankruptcy, reorganization or
arrangement proceedings pending, being contemplated by or, to the best knowledge
of Seller, threatened against Seller or Tenant. Each of Tenant and Seller is
solvent and will not be rendered insolvent by virtue of the transactions
contemplated by this Agreement.
J. NON-FOREIGN STATUS. Seller is not a "foreign person" as
defined in section 1445 of the Internal Revenue Code of 1986, as amended, and
the Income Tax Regulations thereunder.
7. PURCHASER'S REPRESENTATIONS AND WARRANTIES AND ACKNOWLEDGMENT.
A. REPRESENTATIONS AND WARRANTIES. Purchaser represents,
warrants and agrees that on the Acceptance Date of this Agreement and on and as
of Closing, Purchaser will have all right, power and authorization to execute
and perform under this Agreement, the Master Lease, the Consent and the other
documents executed and delivered by Purchaser in connection
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with this transaction. Purchaser further represents, warrants and agrees that
this Agreement, the Master Lease, the Consent and the other documents executed
and delivered by Purchaser in connection with this transaction have been duly
executed by Purchaser and are enforceable against Purchaser in accordance with
their terms.
B. NO VIOLATIONS. Neither execution and delivery of this
Agreement, the Master Lease nor the Consent nor the consummation of the
transactions hereby contemplated, nor performance of the covenants and
obligations on the part of Purchaser to be performed hereunder, under the Master
Lease nor under the Consent nor the fulfillment of the terms hereof, under the
Master Xxxxxx nor under the Consent are restricted by, will conflict with,
result in a violation or breach of, constitute (with or without notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration by the other parties thereto) under or require the
consent of any person under any of the terms, conditions or provision of any
agreement to which Purchaser is a party, or any order, writ, injunction, decree,
statute, rule or regulation applicable to Purchaser.
C. BANKRUPTCY. There are no bankruptcy, reorganization or
arrangement proceedings pending, being contemplated by or, to the best knowledge
of Purchaser, threatened against Purchaser. Purchaser is solvent and will not be
rendered insolvent by virtue of the transactions contemplated by this Agreement.
8. PURCHASER'S INSPECTION OF THE PURCHASED ASSETS.
A. DELIVERY OF DOCUMENTS. Seller hereby represents that it has
provided copies of the following documents, if any, in Seller's possession, as
they relate to the Purchased Assets, for Purchaser's review:
(1) Copy of existing plans and specifications, and copy of
existing location maps;
(2) Audited financial statements for Tenant;
(3) Environmental studies or reports (Phase 1) for the
Purchased Assets completed within six months of the
date of this Agreement, certified to Purchaser and its
assigns, and to Purchaser's Lender;
(4) A Survey for the Real Property completed within six
months of the date of this Agreement as specified in
Section 9 below, certified (in form acceptable to
Purchaser's Lender) to Purchaser and its assigns, and
to Purchaser's Lender;
(5) A Title Commitment for the Real Property in
conformance with Section 10(B) below; and
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(6) An engineering and property condition report.
The documents referred to this Section 8(A) shall be referred to as the "Due
Diligence Documents". The cost of the Due Diligence Documents shall be a Seller
Cost, and shall be added to the Purchase Price at Closing if allowed under the
provisions of Section 12(D).
B. PURCHASER'S ACCESS TO THE PURCHASED ASSETS. Seller
covenants and agrees that from and after the Acceptance Date until Closing or
earlier termination of this Agreement, Purchaser and its lenders, contractors,
agents and/or employees, at the sole expense of Purchaser, may enter upon any
portion of the Real Property from time to time during reasonable business hours,
without any disruption of the normal conduct of Seller's business in or
construction activities on, the Real Property, and with reasonable prior notice
to Seller for the purposes of inspection (mechanical, structural and otherwise),
making surveys and test, staking and obtaining topographical information,
including environmental testing and examination of title and operating condition
of the Purchased Assets. Except as otherwise provided herein, all such
inspections and tests shall be at Purchaser's sole cost and expense. In
addition, Purchaser hereby agrees to indemnify, defend and hold Seller harmless
from any and all losses, liabilities, claims, expenses, costs, damages and
mechanics' liens which may be brought or which may be filed against the
Purchased Assets or any portion thereof by reason of the performance of any of
the acts herein mentioned by Purchaser or Purchaser's agents, and to defend any
action brought by reason of any of the acts herein mentioned and reimburse
Seller for reasonable attorneys' fees and costs incurred by Seller by reason of
any such action. The provisions of this paragraph shall survive Closing and
delivery of deeds.
9. SURVEY. Seller has provided an ALTA "as built" survey, or the
appropriate documentation for the state in which the Real Property is located,
for the Real Property, which meets ALTA/ACSM 1992 requirements, is certified to
Purchaser and the Title Company and Purchaser's Lender, and which shall be
sufficient for the Title Company to remove the preprinted title exceptions
related to survey matters or take other actions as appropriate (the "Surveys").
10. EVIDENCE OF TITLE.
A. CONDITION OF TITLE. Seller shall convey to Purchaser good
and marketable, fee simple title to each of the Purchased Assets, free and clear
of all liens, claims, pledges and encumbrances arising by, through or under
Seller, subject only to the Permitted Exceptions as provided below. It is
specifically understood that the Purchased Assets will not, at the time of
Closing, be subject to any monetary liens or encumbrances, regardless of whether
they arose by, through or under Seller.
B. TITLE COMMITMENT. Seller shall provide, at Seller's expense
and such expense shall be a Seller Cost, and shall be added to the Purchase
Price if allowed under Section 12(D), to Purchaser a commitment (the "Title
Commitment") issued through the Title Company committing to issue to Purchaser
an ALTA Form 1970 revised 1984 owner's policy of title
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insurance, insuring good and marketable fee simple title to each of the
Purchased Assets, free and clear of all liens, claims, pledges and encumbrances
other than the Permitted Exceptions, but not subject to the standard printed
exceptions (unless such standard printed exceptions cannot be removed with the
Surveys and an affidavit by Seller) and such reasonable endorsements requested
by Purchaser, together with legible copies of all exceptions to the title
referred to in the Title Commitment (the "Title Documents"). Purchaser shall
also be provided with amounts of reinsurance and direct access agreements as
Purchaser or Purchaser's Lender may require.
C. TITLE POLICY. Purchaser shall pay at Closing the cost of
the premium for the Title Policy for the Purchased Assets (the "Title Policy")
(and the expense shall be a Purchaser Cost, and shall be added to the Purchase
Price if allowed under Section 12(D)), and the Title Company shall deliver such
title policy to Purchaser at the Closing, which title policy shall insure title
to the Purchased Assets, subject only to the Permitted Exceptions.
D. DEFECTS OF TITLE. If prior to Closing Purchaser asserts the
existence of any encumbrance, encroachment on or defect in or objection to title
to any portion of any Purchased Asset based on Purchaser's examination of the
Title Commitments, the Title Documents, and the Surveys or any other information
received by Purchaser (any of which is called a "Defect" in Title"), Purchaser
shall give Seller written notice of such Defect in Title, and Seller shall have
five (5) days after receipt of such notice to elect to either (i) terminate this
Agreement by written notice to Purchaser (unless Purchaser waives such Defect in
Title), or (ii) remove, or otherwise cure to Purchaser's satisfaction, the
Defect in Title, and if necessary the date of Closing shall be extended for such
5-day period to allow Seller to so remove or cure the Defect in Title. Seller
shall be obligated to remove any monetary lien or encumbrance with respect to
the Purchased Asset. In the event Seller fails, refuses or is unable to remove
or cure the Defect in Title, then Purchaser shall have the right to either: (i)
waive such Defect in Title and proceed to Closing or (ii) terminate this
Agreement by delivering written notice of such to Seller, except that with
respect to monetary liens or encumbrances, Purchaser shall have the right to
enforce Seller's obligation to remove the same.
E. PERMITTED EXCEPTIONS. Any title exceptions not disapproved
by Purchaser in writing on or before the Closing, including any Defect in Title
waived by Purchaser as provided in Section 10(D) above, shall be deemed to be
approved by Purchaser and shall be referred to as "Permitted Exceptions" under
this Agreement.
11. CONDITIONS PRECEDENT TO CLOSING. The obligations of the respective
parties to close the purchase of the Purchased Assets will be subject to
fulfillment of the following conditions prior to the Closing:
A. SELLER'S CONDITIONS. Seller will not be obligated to close
the purchase of the Purchased Assets unless Purchaser has complied with all of
the terms and conditions of this Agreement to be met by Purchaser prior to
Closing, and has delivered all funds, instruments, and documents required to be
deposited by Purchaser in connection with the Closing pursuant to the
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terms of this Agreement and Purchaser's representations and warranties remain
accurate. Seller may at any time at or prior to Closing waive any of the
preceding requirements.
B. PURCHASER'S CONDITIONS. Purchaser will not be obligated to
close the purchase of the Purchased Assets unless (i) Seller has complied with
all of the terms and conditions of this Agreement to be met by Seller prior to
the Closing, and has delivered all instruments and documents required to be
deposited by Seller in connection with the Closing pursuant to the terms of this
Agreement; (ii) there has been no material, adverse change in the financial
condition or results of operation of Seller from and after Purchaser's
acceptance of the Due Diligence Documents prior to the Closing; and (iii) all
representations and warranties of Seller contained herein shall remain accurate
in all material respects. Purchaser may at any time at or prior to Closing waive
any one or more of the preceding requirements.
12. CLOSING.
A. DATE, TIME AND PLACE. Closing will take place at the
location designated by Purchaser's Lender, or at such other location as agreed
to by the parties, at 10:00 a.m. on May 14, 1998, (the "Closing Date"), or
earlier upon the mutual agreement of the parties. At Purchaser's Lender's
option, the Closing shall be conducted either by delivery of all closing
documents into escrow, or in the manner of a New York style closing.
The transactions consummated at Closing, when effected, will
be deemed to be effective as of the close of business on the date of Closing,
except as otherwise specifically provided in this Agreement. All action to be
taken at Closing will be considered as taken simultaneously and no paper,
document, or instrument will be considered to be delivered until all items to be
delivered have been delivered.
B. CONVEYANCES.
(1) At Closing, Seller will deliver to Purchaser the
following:
(i) A special or limited warranty deed, sufficient
to permit the issuance of the Title Policy, conveying each of the Purchased
Assets free and clear of all liens, claims, pledges and encumbrances arising by,
through or under Seller, subject only to the Permitted Exceptions, and not
subject to any monetary encumbrances.
(ii) Four original counterparts of the Master
Lease, executed by Tenant, as tenant, and Purchaser, as landlord, provided that
rent under the Master Lease shall be specified on Schedule C to the Master Lease
as provided in Section 15 below in this Agreement.
(iii) Tenant shall have delivered to Purchaser
certificates evidencing the insurance coverage and policies to be carried by
Tenant, as tenant, under the terms of the Master Lease naming Purchaser as an
additional insured.
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(iv) Seller shall have delivered to Purchaser a
certified copy of the resolutions of the Board of Directors of Seller and
Tenant, as applicable, authorizing the sale of the Purchased Assets and
authorizing the execution, delivery and performance of the Master Lease.
(v) Seller shall have delivered to Purchaser a
"non-foreign" certificate pursuant to Treas. Reg. ss. 1.14452T(b)(2), in form
and substance satisfactory to Purchaser, or such other evidence that Seller is
not a "foreign person" within the meaning of Internal Revenue Code Section 1445,
as Purchaser may reasonably require.
(vi) Seller shall have caused to be filed at its
cost and expense (which expense will be a Seller Cost, and will be added to the
Purchase Price if allowed under Section 12(D)) any negative declaration or
similar document which may be required by the statutes of the state in which the
Real Property is located with respect to environmental matters.
(vii) Any legal opinions reasonably required by
Purchaser's Lender or by Purchaser in connection with the Master Lease, this
Agreement or the closing documents.
(viii) Any other documents contemplated to be
delivered by Seller under the terms of this Agreement or reasonably required to
effectuate the terms of this Agreement.
C. PRORATIONS. In view of the continuing relationship between
Seller, as tenant, and Purchaser, as landlord, under the Master Lease, and the
obligations of Seller under the terms and conditions of the Master Lease, there
shall be no proration of insurance, taxes, special assessments, utilities or any
other similar costs at Closing. The parties acknowledge that Purchaser shall
have no obligation with respect to such expenses, and that the same shall be
paid by Tenant as tenant under the Master Lease.
D. CLOSING COSTS. The costs incurred by Purchaser and Seller
in connection with the Closing shall be paid as follows:
(1) Purchaser shall pay (i) Purchaser's lender's fee, (ii)
Purchaser's lender's reasonable attorneys' fees, (iii) mortgage recording taxes
and the cost of obtaining both the fee and mortgage title policy in excess of a
fee policy, (iv) Purchaser's local counsel fees, and (v) Purchaser's
out-of-pocket costs. Purchaser shall also pay any other expenses incurred in
connection with the Closing, unless Seller has agreed to pay the same as
outlined below. To the extent that any Purchaser Costs are not allowed to be
included in the Purchase Price, Purchaser shall be solely responsible for the
payment thereof.
(2) Seller shall pay all transfer taxes, title fees and
expenses, capital gains taxes (if any), its own attorney's fees, environmental
certification, engineering costs, appraisal fees and all other costs and fees
customarily paid in a net lease transaction.
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E. POSSESSION. Possession of the Purchased Assets shall be
retained by Seller from and after the Closing Date pursuant to the terms and
conditions of the Master Lease.
13. PURCHASER'S CLOSING OBLIGATIONS. At Closing, Purchaser will
deliver to Seller the following:
A. The amount of the Purchase Price provided in Section 5
above for the Purchased Assets via federal wire transfer (as adjusted for
closing costs under Section 12 above).
B. Four (4) original counterparts of the Master Lease signed
by Purchaser as Lessor.
C. The amount of its share of any closing costs via federal
wire transfer, or by proration on the settlement statement.
D. A resolution of Purchaser authorizing the transactions
contemplated under this Agreement, the Master Lease and the Consent.
E. Any legal opinions reasonably required by Purchaser's
Lender or by Seller in connection with the Master Lease, this Agreement, the
closing documents or the loan obtained from Purchaser's Lender.
F. Any other documents required by this Agreement to be
delivered by Purchaser at Closing or reasonably required to effectuate the terms
of this Agreement.
14. CASUALTY/CONDEMNATION. From the date hereof until Closing, Seller
shall continue to maintain the Purchased Assets in as good condition and repair
as existing on the date of this Agreement, and promptly notify Purchaser of the
occurrence of any event known to it which materially affects the value or
utility of the Purchased Assets. Notwithstanding anything herein to the
contrary, from and after the Acceptance Date to the Closing, Seller is
considered the owner of the Purchased Assets for all purposes and shall be
entitle to receive all insurance proceeds and/or condemnation awards that may
become payable with respect thereto. Any and all risks associated with ownership
of the Purchased Assets shall be borne by Seller from the Acceptance Date until
Closing. If the Purchased Assets are substantially damaged or condemned as to
material part prior to the Closing Date and is not substantially repaired or
restored on or before the Closing Date, Purchaser may, at it election, (i)
proceed to Closing on the Purchased Assets so damaged, or (ii) terminate and
cancel this Agreement. If Purchaser does not exercise the election, the
occurrence shall be dealt with under the terms of the Master Lease, as if it had
occurred after the commencement date of the Master Lease and the proceeds will
be applied as set forth in the Master Lease.
15. MASTER LEASE. Upon closing, Purchaser agrees to lease back the
Purchased Assets to Tenant and Seller agrees to cause Tenant to lease from
Purchaser under a Master Lease covering all of the Purchased Assets on the terms
contained in EXHIBIT B attached hereto.
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16. BROKERAGE. The parties acknowledge that no real estate broker or
other party, other than CB Commercial (the "Broker") and U.S. Realty Advisors,
Inc. ("Purchaser's Agent"), is entitled to any commission as a result of the
transactions contemplated in this Agreement. Seller shall be responsible for the
payment at Closing of a commission to the Broker and Purchaser shall be
responsible for the payment of any fees or commission to Purchaser's Agent. In
the event that any other claim for a broker's fee or real estate commission is
asserted, the party against whom the claim is asserted shall indemnify and hold
harmless the other party from any and all claims, losses, damages, or expenses
of any nature whatsoever arising out of said claim, including, but not limited
to, reasonably attorneys' fees and costs.
17. DEFAULT.
A. PURCHASER'S DEFAULT. If Purchaser, in default of its
obligations under this Agreement, fails to perform any of the obligations
contemplated by this Agreement, Seller will have the right to: (i) obtain
specific performance by Purchaser of Purchaser's obligations under this
Agreement; or (ii) terminate this Agreement, and both parties shall be released
from all further obligations under this Agreement. Seller shall not terminate
this Agreement pursuant to this Section unless Seller shall have given Purchaser
written notice of default, and Purchaser shall have failed to cure such default
within ten (10) days after receipt of such notice (other than a failure to close
in accordance with the terms of this Agreement, for which Purchaser shall only
be allowed a two (2) business day cure period).
B. SELLER'S DEFAULT. If Seller, in default of its obligations
hereunder, fails to perform any of the obligations contemplated by this
Agreement, Purchaser will have the right to: (i) obtain specific performance by
Seller of Seller's obligations under this Agreement; or (ii) terminate this
Agreement, and both parties shall be released from all further obligations under
this Agreement. Purchaser shall not terminate this Agreement pursuant to this
Section unless Purchaser shall have given Seller written notice of default, and
Seller shall have failed to cure such default within ten (10) days after receipt
of such notice (other than a failure to close in accordance with the terms of
this Agreement, for which Seller shall only be allowed a two (2) business day
cure period).
C. ATTORNEY'S FEES. In the event of litigation arising out of
any alleged default or breach of this Agreement, the prevailing party shall be
entitled to recover all costs and expenses incurred in the prosecution or
defense of such litigation, including reasonable attorneys' fees and costs (and
legal assistant fees). For purposes of this Section, "prevailing party" shall
include, but not be limited to, a party who withdraws or moves to dismiss a
claim in consideration for payment due, performance owed, or other consideration
in substantial satisfaction of the claim withdrawn or dismissed.
18. MISCELLANEOUS.
A. NOTICES. All notices hereunder to the respective parties
will be in writing and will be served by personal delivery or by prepaid,
overnight mail via a reputable courier
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service, or by telecopy, or by prepaid, registered or certified mail, addressed
to the respective parties at their addresses set forth below. Any such notice to
Seller or Purchaser will be deemed to be given and effective: (i) if personally
delivered or sent by telecopy, then on the date of such delivery, (ii) if sent
via overnight courier, then twenty-four (24) hours after the date such notice is
sent, or (iii) if sent by registered or certified mail, then three (3) days
following the date on which such notice is deposited in the United States mail
addressed as aforesaid. Copies of all notices will be sent to the following:
If to Purchaser: c/o U.S. Realty Advisors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
with a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to Seller: Dictaphone Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxxx
with a copy to: Xxxxxx, Xxxx & Xxxxxx LLP
000 Xxxxxxx Xxxx.
Two Stamford Plaza
Stamford, CT 06901
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
All such addresses may be changed by notice given in accordance with this
Section.
B. PARTIES IN INTEREST. All of the terms and provisions of
this Agreement will be binding upon and inure to the benefit of and be
enforceable by the successors, representatives, and permitted assigns of Seller
and Purchaser.
C. ENTIRE AGREEMENT. There are and were no verbal or written
representations, warranties, understandings, stipulations, agreements, or
promises pertaining to the subject matter of this Agreement made by either party
or any agent, employee, or other representative of either party or by any broker
or any other person representing or purporting to represent either party, not
incorporated in writing in this Agreement, and neither this Agreement nor any of
the terms, provisions, conditions, representations, or covenants contained in
this Agreement can be modified, changed or terminated, amended, superseded,
waived, or extended except by an appropriately written instrument duly executed
by the parties.
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D. SURVIVAL. The representations and warranties on the part of
Seller or Purchaser contained in this Agreement shall survive the Closing and
delivery of the deed and shall not be merged thereby.
E. ORIGINALS. This Agreement may be executed in two or more
counterparts, each of which will be an original.
F. TIME. Time is of the essence under this Agreement. In the
event the last day permitted for the performance of any act required or
permitted under this Agreement falls on a Saturday, Sunday, or holiday, the time
for such performance will be extended to the next succeeding business day. Time
periods under this Agreement will exclude the first day and include the last day
of such time period.
G. SECTION AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and will not in any
way affect the meaning or interpretation of the text of this Agreement.
H. GOVERNING LAW. This Agreement will be construed and
enforced in accordance with the laws of the State of New York.
I. ASSIGNMENT OF AGREEMENT. Seller acknowledges that the
actual purchaser under this Agreement may be a trust in which Purchaser (or its
permitted assignee) owns the beneficial interest. Except as provided in Section
12.1, Purchaser may not assign all or any interest in this Agreement, nor any of
the benefits or obligations of this Agreement, without the prior written consent
of Seller, and such consent shall not be unreasonably withheld if the assignment
is to any entity that owns or is owned in whole or in part by Purchaser or any
entity affiliated with Purchaser or to a partnership of which Purchaser is a
general partner. Seller shall be entitled to assign all or any interest in this
Agreement without the prior written consent of Purchaser. Any assignment in
violation hereof will be void.
J. RECORDING. This Agreement may not be recorded in whole or
in part, and any recordation in violation hereof shall be deemed to be a default
under this Agreement by the recording party.
K. BINDING EFFECT. This Agreement will not be binding or
effective until property executed and delivered by the Seller and Purchaser.
L. GENDER. As used in this Agreement, the masculine will
include the feminine and neuter, the singular will include the plural, and the
plural will include the singular, as the context may require.
M. NO JOINT VENTURE, PARTNERSHIP, AGENCY, ETC. This Agreement
shall not be construed as in any way establishing a partnership, joint venture,
express or implied agency, or employer-employee relationship between Purchaser
and Seller.
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N. NO THIRD PARTY BENEFICIARIES. This Agreement is for the
sole benefit of Purchaser and Seller and their respective successors and
permitted assigns, and no other person or entity shall be entitled to rely upon
or receive any benefit from this Agreement.
O. NO WAIVER. No consent or waiver, express or implied, by
Purchaser to or of any breach of any representation, covenant or warranty of
Seller shall be construed as a consent or waiver to or of any other breach of
the same or any other representation, covenant or warranty.
P. PUBLICITY. Seller and Purchaser agree that before or
following Closing under this Agreement, neither party will issue or authorize
the issuance of any press release, publicity, or information to any third party
whatsoever (except Purchaser's Lender or other lenders and agents and Seller's
lender(s) or to governmental authorities as necessary in any approval process)
pertaining to the transaction contemplated hereunder without the prior written
approval of the other party. The results of any inspections conducted by
Purchaser prior to Closing and any other information delivered to Purchaser by
Seller related to this transaction shall be treated as strictly confidential,
except that Purchaser may transmit such information to Purchaser's Lender and to
Purchaser's agents, attorneys and other consultants.
Q. CONCERNING WILMINGTON TRUST COMPANY. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually or personally but
solely as trustee of Landlord, in the exercise of the powers and authority
conferred and vested in them under the Trust Agreement of Landlord dated as of
May 4, 1998 (b) each of the representations, undertakings and agreements herein
made on the part of Purchaser is made and intended not as personal
representations, undertakings and agreements of Wilmington Trust Company but is
made and intended for the purpose of binding only Purchaser, and (c) under no
circumstance shall Wilmington Trust Company be personally liable for the payment
of any indebtedness or other obligations of Purchaser or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by Purchaser under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date specified below.
SELLER:
DICTAPHONE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
and Chief Financial Officer
PURCHASER:
STRATFORD CT BUSINESS TRUST,
a Delaware business trust
By: WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
trustee under Trust Agreement dated as
of May 4, 1998
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: XXXXXX X. XXXXXXXXX
Title: ASSISTANT VICE PRESIDENT
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EXHIBIT A
Policy No: S985180
ALL THAT CERTAIN tract or parcel of land situate, lying and being in
the Town of Stratford, County of Fairfield, and State of Connecticut,
more particularly described as follows:
Beginning a point on the southwesterly line of Broadbridge Avenue,
which point is located at the northeast corner of land formerly of
Remington Arms Company, Inc. and 324.66 feet northwesterly from the
intersection of said street line of Broadbridge Avenue with the
westerly street line of Broadmere Road; thence proceeding the following
courses and distances:
S 19"(degree)" 52' 50" W 63.84 feet
S 19"(degree)" 31' 50" W 341.15 feet
S 19"(degree)" 11' 20" W 447.03 feet
S 19"(degree)" 25' 30" W 486.81 feet
S 82"(degree)" 41' 50" E 10.00 feet
S 82"(degree)" 51' 10" E 163.56 feet
S 05"(degree)" 47' 35" W 82.76 feet
S 00"(degree)" 38' 40" E 105.87 feet
S 00"(degree)" 34' 50" E 18.77 feet
S 00"(degree)" 22' 30" W 64.06 feet
S 08"(degree)" 03' 40" E 81.43 feet
S 13"(degree)" 20' 30" E 43.29 feet
S 10"(degree)" 40' 20" E 161.02 feet
S 05"(degree)" 28' 10" E 288.27 feet
S 04"(degree)" 51' 10" E 174.61 feet
S 00"(degree)" 53' 20" E 36.06 feet
S 82"(degree)" 57' 20" W 61.98 feet
S 77"(degree)" 59' 40" W 420.15 feet
N 07"(degree)" 52' 45" E 643.57 feet
N 17"(degree)" 03' 40" E 65.41 feet
N 07"(degree)" 55' 30" E 43.33 feet
N 16"(degree)" 13' 20" W 31.34 feet
N 13"(degree)" 48' 40" E 142.76 feet
N 74"(degree)" 57' 55" W 28.32 feet
N 13"(degree)" 56' 36" E 133.34 feet
N 18"(degree)" 12' 28" E 133.89 feet
N 18"(degree)" 41' 22" E 486.79 feet
N 19"(degree)" 02' 29" E 447.09 feet and
N 19"(degree)" 29' 44" E 422.49 feet to the xxxxxxxxxxxxx xxxxxx xxxx
xx Xxxxxxxxxxx Xxxxxx; thence along said street line S 45"(degree)"
55' 00" E, 41.83 feet, to the point or place of beginning, which is
also the northwesterly corner of land now or formerly of X. X. & X.
Xxxxxxxx.
Continued....
EXHIBIT A (cont'd.)
Policy No.: S985180
Containing within said bounds 9.6789 acres, be the same more or less, said
premises being all that certain tract or parcel of land shown on the drawing
entitled "Plan of Survey of Property in Stratford, Connecticut" prepared by
Xxxxxx & Co., Inc., dated November 30, 1984 and filed in the office of the Clerk
of the Town of Stratford as Maps #2574 & 2575.
TOGETHER WITH the rights and privileges conveyed to Dictaphone Corporation in a
deed from Remington Arms Company, Inc. dated June 26, 1986 and recorded June 27,
1986 in Book 636 at Page 964 of the Stratford Land Records.
2
EXHIBIT B
MASTER LEASE AGREEMENT
[See execution copy filed as Exhibit 10.21].
