Exhibit 10.13
PURCHASE AND SALE AGREEMENT
BETWEEN
PREFCO III REALTY LLC,
A CONNECTICUT LIMITED LIABILITY COMPANY
("PREFCO")
------
AND
FIRST STATES GROUP, L.P.
A DELAWARE LIMITED PARTNERSHIP
("PURCHASER"),
---------
AND PITNEY XXXXX REAL ESTATE FINANCING CORPORATION,
A DELAWARE CORPORATION
("SOLE MEMBER")
January ___, 2003
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
____ day of January, 2003 between PREFCO III REALTY LLC, a Connecticut limited
liability company ("Prefco"), FIRST STATES GROUP, L.P., a Delaware limited
partnership (together with any of its assignees, "Purchaser"), and PITNEY XXXXX
REAL ESTATE FINANCING CORPORATION, a Delaware corporation (the "Sole Member").
Preliminary Statement
WHEREAS, Prefco is the owner (i) of an estate for years (the "Estate
for Years") expiring on December 31, 2012 (the "Estate for Years Expiration
Date") in those certain parcels of land more particularly described in Exhibits
A-1 through A-98 annexed hereto and made a part hereof (the "Land"), and (ii) in
fee of (a) all buildings, improvements and structures now or hereafter located
on the Land (the "Improvements") and (b) certain equipment and fixtures attached
thereto (the Estate for Years, Improvements, equipment, and fixtures are
hereinafter collectively referred to as the "Property"); and
WHEREAS, Liberty North Carolina Inc., a Delaware corporation
("Remainderman"), is the fee owner of the Land, subject to the Estate for Years;
and
WHEREAS, the Property is subject to the terms and conditions of that
certain lease (the "Lease") between Prefco, as landlord, and Bank of America,
N.A., a national banking association, successor in interest by merger or
otherwise, as tenant ("Lessee"), as more fully described in Exhibit B annexed
hereto and made a part hereof; and
WHEREAS, the Land and the Property are encumbered by that certain
mortgage described in Exhibit C annexed hereto and made a part hereof (which
mortgage, together with the promissory notes secured thereby and any related
loan documents, are together called the "Mortgage"); and
WHEREAS, Prefco, Remainderman and Lessee are parties to that certain
agreement (the "Tripartite Agreement") dated as of December 1, 1988 setting
forth the understanding among the parties with respect to certain rights of the
lessee under the Lease relating to the purchase of the Property and the Land and
certain other matters; and
WHEREAS, Prefco desires to convey all of its right, title and interest
in and to the Property, and Purchaser desires to purchase all of Prefco's
interest in the Property; and
WHEREAS, the Purchaser and Prefco may, at the option of either party,
structure the transaction contemplated hereby as a purchase and sale of all of
the membership interests in Prefco (the "Membership Interests"), in which event
Sole Member would convey all of its right, title and interest in and to the
Membership Interests held by it to Purchaser.
NOW, THEREFORE, for and in consideration of the premises and the mutual
representations, warranties and covenants contained herein and other valuable
consideration, the
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receipt and sufficiency of which are hereby acknowledged, Prefco, Sole Member
and Purchaser hereby agree as follows:
1. Purchase and Sale of the Property. On the Closing Date and
subject to the terms and conditions of this Agreement, Prefco shall sell, assign
and convey, and Purchaser or its assignee shall purchase, the Property on the
terms and conditions provided in this Agreement.
2. Closing Documents. On the Closing Date and subject to the terms
and conditions of this Agreement, Prefco, Sole Member and Purchaser shall enter
into the Closing Documents to which they are a party.
3. Purchase Price. Purchaser shall pay, and Prefco shall accept, as
the purchase price (the "Purchase Price") for the Property, in addition to
Purchaser's acquiring the Property subject to the Mortgage (or Purchaser
prepaying all or any part of the loan as evidenced by those certain Series A
9.47% Secured Note due 1994, Series B 10.05% Secured Note due 1999, Series C
10.29% Secured Note due 2004, and Series D 10.55% Secured Note due 2008 (the
"Notes"), which Notes are secured by the Mortgage, as more fully set forth
below), the amount of Twenty Four Million Eight Hundred Fifty Thousand and
00/100 Dollars ($24,850,000.00), as increased or decreased pursuant to the
provisions of Sections 7 and 13 hereof, which Purchase Price shall be paid by
Purchaser as follows:
(i) simultaneously with the execution of this Agreement,
Purchaser shall deposit with the Title Company (as defined is Section 7 (ii)
hereof), as escrow agent (the "Escrow Agent"), the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) (together with any interest earned
thereon, the "Deposit");
(ii) simultaneously with Purchaser's satisfaction or waiver of
the conditions precedent set forth in Section 7 hereof, Purchaser shall deposit
with Escrow Agent the sum of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00), which amount will be added to and become part of the Deposit; and
(iii) At Closing, Purchaser shall pay or shall cause the Escrow
Agent to pay to Prefco (or its designees) the Deposit ($500,000.00 plus accrued
interest thereon) plus the balance of the Purchase Price in the amount of Twenty
Four Million Three Hundred Fifty Thousand and 00/100 Dollars ($24,350,000.00)
(as increased or decreased pursuant to the provisions of Sections 7 and 13
hereof) in immediately available funds by wire transfer to accounts designated
by Prefco. Purchaser acknowledges that the Property is subject to the Mortgage
and that the Purchase Price shall not be diminished or otherwise reduced by
reason thereof, including, without limitation, reductions by reason of the pay
off of all or any part of the existing financing, prepayment penalties, or
otherwise (whether Purchaser elects to prepay all or any part of the loan as
evidenced by the Notes and secured by the Mortgage).
4. Deposit; Escrow Terms. The Deposit shall be deposited by Escrow
Agent in an interest bearing account and the interest shall be payable to
whichever party is entitled to receive the Deposit. The parties acknowledge that
Escrow Agent is holding the Deposit and interest thereon solely as a stakeholder
at their request and for their convenience, that Escrow Agent shall not be
deemed to be the agent of either party in carrying out its role as Escrow Agent
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hereunder, and that Escrow Agent shall not be liable to either party for any act
or omission on its part unless taken or suffered in bad faith or in willful
disregard of this Agreement or involving its gross negligence. Prefco and
Purchaser shall jointly and severally indemnify and hold Escrow Agent harmless
from and against any and all claims, liabilities and expenses (including
reasonable attorneys' fees and disbursements and court costs) which Escrow Agent
may incur in connection with any dispute over the distribution of the Deposit,
except with respect to actions or omissions taken or suffered by Escrow Agent in
bad faith or in willful disregard of this Agreement or involving Escrow Agent's
gross negligence. Escrow Agent may act or not act in its role as escrow agent
hereunder in full reliance upon and with the advice of counsel which it may
select and shall be fully protected in so acting or not acting. Escrow Agent has
acknowledged its agreement to act as escrow agent in accordance with this
Agreement by signing in the place indicated on the signature page of this
Agreement. Escrow Agent may at any time discharge its duties hereunder by
depositing the Deposit with a court of competent jurisdiction. If the Closing
occurs, the Deposit shall be applied toward the Purchase Price and paid to
Prefco or Sole Member, as applicable. If the Closing does not occur for any
reason other than a Purchaser's default, then the Deposit shall be returned to
Purchaser.
5. "As-Is". Purchaser accepts the Property "AS-IS," "WHERE IS," with
all faults and defects as of the date hereof and the Closing Date. Purchaser
represents that it is relying solely upon its inspection of the Property, if
any, for all purposes whatsoever including, without limitation, the
determination of the character, size (including quantity of acreage), condition
(whether environmental or otherwise), accessibility, compliance with applicable
laws, state of repair and title and zoning, except as expressly set forth in
this Agreement. Purchaser acknowledges that there have been no representations,
warranties, guaranties, statements or information of any kind, express or
implied (including, but not limited to, implied warranties of merchantability
and fitness for a particular purpose), made or furnished to Purchaser by Prefco
or any of its employees or agents, except as expressly set forth in this
Agreement. This Section 5 shall survive the termination of this Agreement or the
Closing.
6. Environmental. Prefco makes no representations or warranties to
Purchaser that the Property is now or will be through the Closing Date in
compliance with applicable federal, state, regional, county or local laws,
statutes, rules, regulations or ordinances, concerning environmental matters or
the environment. Without limitation and in furtherance of the foregoing, it is
expressly agreed between Purchaser and Prefco that the Land and Improvements are
being transferred to and accepted by Purchaser pursuant to this Agreement in
their present, strict "AS IS, WHERE IS" environmental condition as of the
Closing Date and with all environmental faults, including without limitation any
environmental defects involving hazardous materials in, on, under or emanating
from the Land or Improvements, whether latent or patent, disclosed or
undisclosed, asserted or unasserted, known or unknown. Purchaser is not relying
on any environmental representation or environmental warranties of any kind
whatsoever, express or implied, from Prefco as to any matter concerning the
environmental condition or environmental quality (surface or subsurface) of the
Land and Improvements and hereby expressly and unconditionally waives and
releases any and all implied warranties relevant to the environmental condition
and/or environmental quality of the same. Nothing set forth in any other section
of this Agreement shall be interpreted or construed to be a representation or
warranty relating to compliance with environmental, health and safety matters.
This Section 6
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shall survive the termination of this Agreement or the Closing.
7. Approvals and Conditions; Indemnity.
(a) The obligations of Prefco and Purchaser under this Agreement
shall be subject to and contingent upon timely satisfaction of the following
conditions, which conditions, if not satisfied or waived as hereinafter
provided, shall entitle Prefco or Purchaser, as the case may be, to terminate
this Agreement in accordance with (and within the time periods set forth in)
this Section 7:
(i) Review of Documentation Relating to the Property; Physical
Inspection of the Land and Improvements. Prefco has heretofore
provided Purchaser with copies of all documentation concerning
the Property which is in Prefco's possession or control,
including without limitation, any existing title policies
covering Prefco's interest in the Land and Improvements, the
Lease, the Mortgage, and the Tripartite Agreement. In addition,
Prefco covenants and agrees to send Lessee the letter in the form
attached hereto as Exhibit G, and to use commercially reasonable
efforts in obtaining the materials requested therein; provided,
however, that such commercially reasonable efforts shall not be
construed to require Prefco to threaten or initiate litigation,
grant any concession or pay any consideration. Prefco shall
continue to cooperate with Purchaser in providing information and
documents to assist in Purchaser's investigation of the Property.
Purchaser may, at Purchaser's sole risk and expense, undertake
such physical inspection of the Land and Improvements as
Purchaser deems necessary or appropriate subject to the rights of
Lessee under the Lease.
Notwithstanding any other provisions contained in this Agreement
to the contrary, Purchaser understands and agrees that any
on-site inspections of the Property shall be conducted in
accordance with the provisions of the Lease. Purchaser agrees to
indemnify against and hold Prefco harmless from any claims by
third parties for liabilities, costs, expenses (including
reasonable attorney's fees), damages or injuries arising out of
or resulting from the inspection by Purchaser or its agents, and
notwithstanding anything to the contrary in this Agreement, such
obligation to indemnify and hold Prefco harmless shall survive
Closing or any termination of this Agreement. All on-site
inspections shall occur at any reasonable time during normal
business hours, upon the giving of reasonable notice, if the
inspecting parties take precautions not to unreasonably
inconvenience Tenant or any persons occupying the Property in
accordance with the Lease, and are accompanied by an employee or
other representative of Tenant at all times during such entry or
inspection. Notwithstanding anything contained in the foregoing
to the contrary, Purchaser understands and agrees that it may be
excluded from inspecting areas of the Property designated as
security areas by Tenant, including, without limitation, vaults,
modular vaults and automatic teller machines. Without limitation
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of the foregoing, Prefco agrees to afford Purchaser and a
reasonable number of its authorized agents the right to
communicate with Lessee, any subtenants of Lessee (with the
permission of Lessee), and Remainderman, provided that Prefco
shall be entitled to have a representative present, whether in
person or by telephone, as the case may be, during any such
communications between Purchaser and such parties.
Upon the termination of this Agreement in accordance with its
terms, Purchaser shall keep confidential all such information and
if requested by Prefco, shall furnish to Prefco copies of the
written reports, summaries, analyses or results of all such
inspections, which Prefco may use or may disclose to any
potential purchaser of the Property. Purchaser shall pay in full,
prior to delinquency, all bills and invoices for labor and
material of any kind arising from the inspection of the Land and
Improvements. If there is any damage to or disturbance of any
portion of the Land and Improvements in connection with any
inspection thereof, Purchaser shall restore such portion of the
Land and Improvements as nearly as practicable to its original
condition prior to such damage or disturbance including, without
limitation, damage to landscaping or trees.
Purchaser shall have ninety (90) days from the date hereof (the
"Inspection Period") within which it may, at its sole cost and
expense, review the documentation (including, without limitation,
the Lease and Tripartite Agreement) and the physical and
environmental condition of the Land and Improvements. Purchaser
shall have until the end of the Inspection Period to disapprove
of the documentation and/or the physical and environmental
condition of the Land and Improvements and to terminate this
Agreement by delivering a written notice (a "Termination Notice")
to Prefco on or before the expiration of the Inspection Period,
with time being of the essence with respect to Purchaser's
obligation to deliver such notice. If for any reason whatsoever
Purchaser determines, in its sole discretion, that the Property,
the documentation or any aspect thereof is unsuitable for
Purchaser's acquisition, Purchaser shall have the right to
terminate this Agreement by delivering said Termination Notice to
Prefco prior to the expiration of the Inspection Period, and if
Purchaser gives such notice of termination within the Inspection
Period, this Agreement shall terminate, and the provisions of
Section 7(b) shall control. If Purchaser decides to go forward
with the purchase at or prior to the end of the Inspection
Period, it will deliver written notice (an "Approval Notice") to
Prefco to that effect. If Prefco does not receive an Approval
Notice or a Termination Notice from Purchaser before the end of
the Inspection Period, with time being of the essence, Purchaser
shall be deemed to have disapproved of the documentation and the
physical and environmental condition of the Land and Improvements
and all other matters relating thereto, and Purchaser shall be
considered to have delivered a Termination Notice in accordance
with the provisions hereof.
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The provisions of this Section 7(a)(i) shall survive termination
of this Agreement or Closing.
(ii) Approval of Title and Survey. Upon execution of this
Agreement, Purchaser shall be entitled, but shall not be
required, to order (A) a commitment for an owner's policy of
title insurance (the "Commitment") issued by a title company
selected by Purchaser and approved by Prefco (the "Title
Company") pursuant to which the Title Company commits to issue an
owner's policy of title insurance in such amounts as are
reasonably requested by Purchaser (the "Title Policy") and (B) a
survey of the Land (the "Survey") in form acceptable to Purchaser
and the Title Company (in the event Purchaser elects to obtain
title insurance). The costs of the Title Policy (together with
any endorsements requested by Purchaser) and Survey shall be paid
by Purchaser. During the Inspection Period, Purchaser shall have
the opportunity to review the condition of title and survey. At
any time prior to the expiration of the Inspection Period,
Purchaser may disapprove the Survey and the title exceptions, by
delivering written notice (a "Disapproval Notice") to Prefco
stating with particularity the exceptions which Purchaser
disapproves and the reasons for such disapproval. Time is of the
essence with respect to Purchaser's obligation to deliver such
Disapproval Notice. Prefco, at its option, shall have fifteen
(15) days, from and after delivery of Purchaser's Disapproval
Notice, to agree to undertake to cause the surveyor or the Title
Company, as the case may be, to remove such objectionable
exceptions. Purchaser acknowledges that Prefco shall not be
obligated to undertake to cause the Title Company to remove any
of the title exceptions. If Prefco agrees to undertake to remove
any objectionable exceptions, Prefco will use diligent efforts to
cause the removal of such exceptions within thirty (30) days
after it agrees to such undertaking, provided however that the
Scheduled Closing Date may be adjourned by Prefco, if necessary,
for an additional period of sixty (60) days to remove such
objectionable exceptions (provided that Prefco is diligently
pursuing such removal). If Prefco does not agree to undertake to
remove such exceptions or shall fail to remove such objectionable
exceptions within such time, Purchaser may (a) elect to waive its
objections and close on the Closing Date, (b) terminate this
Agreement by delivering a Termination Notice to Prefco within
three (3) business days after Prefco's failure to remove such
exceptions, or (c) terminate this Agreement by delivering a
Termination Notice to Prefco within three (3) business days after
Prefco's failure to remove such exceptions with respect to the
particular property for which it sent a Disapproval Notice;
provided, however, that Purchaser shall not be permitted to
terminate this Agreement with respect to a particular property or
properties for which it sent a Disapproval Notice which,
individually or in the aggregate, constitute greater than five
percent (5.0%) of the equity value of all Properties. In the
event Purchaser elects option (c) as set forth in the immediately
preceding sentence, Purchaser shall be entitled to
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receive a credit in its favor against the Purchase Price in
respect of due diligence expenses, such due diligence expenses
not to exceed Five Thousand and 00/100 Dollars ($5,000.00) for
each property that Purchaser has terminated this Agreement with
respect to in accordance with the foregoing provisions.
Notwithstanding the foregoing, Purchaser shall not be entitled to
any such reimbursement if the transaction contemplated by this
Agreement does not close for any reason whatsoever, and shall not
be entitled to any such reimbursement in an amount greater than
Fifty Thousand and 00/100 Dollars ($50,000.00). Purchaser's
failure to respond within such three (3) business day period
shall be deemed an election to terminate this Agreement, and the
provisions of Section 7(b) shall control. In the event Prefco
does not receive a Disapproval Notice from Purchaser prior to the
end of the Inspection Period, with time being of the essence,
Purchaser shall be deemed to have approved the Survey and the
condition of title as set forth in the Commitment through the
last day of the Inspection Period. Any title exceptions or survey
exceptions not objected to by Purchaser or otherwise waived and
accepted by Purchaser shall be deemed "Permitted Exceptions" to
the conveyance to Purchaser by Prefco.
Purchaser may, at or prior to Closing, notify Prefco in writing
(the "Gap Notice") of any objections to title: (a) raised by the
Title Company between the expiration of the Inspection Period and
the Closing; and (b) not disclosed by the Title Company or
otherwise known to Purchaser prior to the expiration of the
Inspection Period. If Purchaser sends a Gap Notice to Prefco,
Purchaser and Prefco shall have the same rights and obligations
with respect to such notice as apply to a Disapproval Notice in
accordance with the provisions of this Section 7(a)(ii).
In addition to and without limiting the foregoing, Purchaser
shall verbally inform Prefco not more than thirty (30) nor less
than twenty (20) days after the date hereof, and from time to
time thereafter at Prefco's reasonable request, of the status of
Purchaser's document review (including without limitation title
and survey) and Property inspection pursuant to this Section 7,
including a statement of those items and/or documents which
Purchaser is still reviewing and/or inspecting with respect to
the Property.
(b) Effect of Termination. If this Agreement is terminated pursuant
to this Section 7, the Deposit shall be refunded to Purchaser and Purchaser
shall return to Prefco or destroy on behalf of Prefco all documents delivered by
Prefco to Purchaser pursuant to this Agreement. Upon completion of all of the
foregoing, this Agreement shall be deemed terminated and no party shall have any
further rights against or obligations to the other parties hereunder, except as
to those obligations which are expressly stated to survive the termination of
this Agreement.
(c) Indemnity. Purchaser shall indemnify and hold harmless Prefco
from and against any and all liability, loss, cost and expense (including,
without limitation, reasonable
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attorneys' fees and disbursements) arising from any action by Purchaser or any
of its agents, employees or contractors in connection with any entry onto the
Land and Improvements and/or any physical inspection of the same. This provision
shall survive the termination of this Agreement or the Closing.
8. Costs; Prorations. Except as otherwise provided by this
Agreement, each party shall pay the out-of-pocket costs and expenses incurred by
it in connection with this Agreement and the transactions contemplated hereby.
Subject to the terms and provisions of this Agreement, in the event Purchaser
elects to prepay some or all of the loan as evidenced by the Notes and secured
by the Mortgage, any costs incurred in connection with the prepayment of all or
any part of said loan, as evidenced by the Notes and secured by the Mortgage and
payable to the holder thereof shall be paid by Purchaser upon demand, whether or
not this Closing shall occur. There shall be no apportionments, except for any
rent under the Lease in excess of debt service on the Mortgage, which excess
will be prorated from the immediately preceding rent and debt service payment
date to and including the Closing Date (all other expenses being the
responsibility of the Lessee under the Lease both before and after the Closing
Date).
9. Remedies on Default.
(i) Default by Purchaser. In the event that Closing fails to
occur by reason of a default by Purchaser, Prefco shall be entitled, as its sole
remedy, to terminate this Agreement and receive the Deposit as liquidated
damages for default under this Agreement; it being agreed between the parties
hereto that the actual damages to Prefco in the event of such default are
impractical to ascertain and the amount of the Deposit is a reasonable estimate
thereof.
(ii) Default by Prefco. In the event that Prefco or Sole Member
defaults in the performance of its obligations under this Agreement for any
reason other than Purchaser's default, Purchaser shall be entitled to (a)
terminate this Agreement and receive the return of the Deposit, or (b) seek
specific performance of this Agreement by Prefco or the Sole Member.
Notwithstanding the foregoing, in the event that all of the closing conditions
set forth in this Agreement have been satisfied, including, without limitation,
those set forth in Section 13 hereof, and thereafter Prefco or Sole Member
willfully defaults in the performance of this Agreement, Purchaser shall be
permitted to pursue an action for damages against Prefco and the Sole Member
relative to such willful default, but such damages shall in no event exceed the
lesser of Purchaser's actual reasonable out of pocket expenses or the sum of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00). Purchaser acknowledges
and agrees that in no event shall Prefco's or Sole Member's liability pursuant
to this Section 9(ii) exceed the lesser of Purchaser's actual reasonable out of
pocket expenses or the sum or Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00). As a condition precedent to Purchaser's right to pursue an action
for damages as set forth above, Purchaser shall be ready, willing and able to
perform all of its covenants and obligations to be performed or delivered on or
before the Closing including, without limitation, delivery of the balance of the
Purchase Price. If Purchaser fails to satisfy such requirements, Prefco shall be
entitled to an immediate dismissal of any action for damages and an immediate
removal of any lis pendens affecting the Property.
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10. Insurance; Casualty or Condemnation. If any portion of the
Improvements are materially damaged or destroyed by fire or other casualty prior
to the Closing, or in the event Prefco shall receive notice of any taking or any
threatened taking of all or any material portion of the Land or Improvements,
this Agreement shall nevertheless remain in full force and effect, without any
adjournment of the Closing Date and without any adjustment of the Purchase
Price. Prefco and Sole Member shall assign all of its rights in and to any
interest it may have to the proceeds payable by any party to Prefco or Sole
Member, if any, as a result of such casualty or condemnation affecting the Land
or Improvements, as applicable.
11. Representations, Warranties and Covenants of Purchaser. Purchaser
represents, warrants and covenants to Prefco as of the date hereof as follows,
which representations, warranties and covenants shall be deemed to have been
made again as of the Closing:
(a) Purchaser is a limited partnership duly organized and validly
existing under the laws of the State of Delaware and is duly
qualified as a foreign entity in each jurisdiction where the
nature of its business or the character of its properties
requires such qualification;
(b) Purchaser has all requisite power and authority to carry on its
business and to execute and deliver this Agreement and each of
the Closing Documents (as hereinafter defined) and to perform its
obligations under this Agreement and each of the Closing
Documents; and the individual executing this Agreement on behalf
of Purchaser hereby represents and warrants that he, she or it
has the capacity set forth on the signature page hereof with full
power and authority to bind Purchaser to the terms hereof;
(c) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Purchaser and constitutes a legal,
valid and binding obligation of Purchaser enforceable against it
in accordance with its terms except as the enforcement may be
limited by (i) the effect of the laws and judicial decisions of
the State of Delaware, (ii) the discretion of any court or
governmental or public body, authority, bureau or agency before
which any proceeding may be brought or (iii) bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally;
(d) to the best of Purchaser's knowledge, no consent, license,
approval or authorization of, or filing, registration or
declaration with, or exemption by, any governmental or public
body, authority, bureau or agency is required in connection with
the execution, delivery or performance by Purchaser of this
Agreement and all of the other Closing Documents, other than
those which have been obtained;
(e) Purchaser's execution, delivery and performance of this Agreement
and the other Closing Documents does not and will not violate (i)
Purchaser's certificate of limited partnership, limited
partnership agreement or the
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terms of any security issued by it, or (ii) to the best of
Purchaser's knowledge, any law, governmental regulation,
judgment, order, writ, injunction or decree applicable to
Purchaser in any manner which will materially adversely affect
Purchasers ability to perform its obligations hereunder, (iii)
provided that all necessary consents are obtained, do not and
will not constitute a default or event of default under any
instrument, contract, agreement, lease or other undertaking to
which Purchaser is a party or by which it or any of its
properties may be subject or bound in a manner which will
materially adversely affect its ability to perform the same, or
(iv) do not result and will not result in the creation or
imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property, except as permitted by the
Closing Documents;
(f) to the best of Purchaser's knowledge without any inquiry, there
is no action, suit or proceeding pending or to the best of
Purchaser's knowledge, threatened against or affecting Purchaser
in any court, or by or before any federal, state, municipal or
other governmental department, commission, board, bureau or
instrumentality which would have any effect on Purchaser's
ability to execute and perform its obligations under this
Agreement;
(g) Purchaser has not dealt with any broker, agent or finder in
connection with the transaction contemplated by this Agreement.
To the extent Purchaser engages a broker in connection with
obtaining financing for the acquisition of the Property, the
obligations with respect to such broker in connection with such
financing shall be the responsibility of Purchaser. Purchaser
shall indemnify and hold harmless Prefco from and against any
cost, expense (including without limitation reasonable attorneys'
fees and disbursements), claim, liability or damage arising out
of any claim or demand by any broker, consultant, finder or
similar agent claiming to have dealt with Purchaser in connection
with this Agreement and the transaction contemplated hereby;
(h) Purchaser and each of Purchaser's assignees, if any, shall comply
with all the requirements, representations, covenants and
negative covenants, as the same may be amended from time to time,
contained in the Lease and the Tripartite Agreement (the
foregoing documents are hereinafter collectively referred to as
the "Operative Documents");
(i) Purchaser has not filed any voluntary petition in bankruptcy or
been adjudicated as bankrupt or insolvent, or filed any petition
or answer seeking any reorganization, liquidation, dissolution or
similar or other relief for debtors, or sought or consented to or
acquiesced in the appointment of any trustee, receiver,
conservator or liquidator for all or any substantial part of its
properties; and
(j) the making, execution and delivery of this Agreement by Purchaser
has
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been induced by no representations, warranties, covenants or
agreements other than those expressly set forth in this Agreement.
12. Representations, Warranties and Covenants of Prefco. Prefco
represents, warrants and covenants to Purchaser as of the date hereof as
follows, which representations, warranties and covenants shall be deemed to have
been made again as of the Closing:
(a) Prefco has all requisite power and authority to carry on its
business and to perform its obligations under this Agreement and
each of the other Closing Documents;
(b) Prefco is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Connecticut and has all requisite power and authority to carry on
its business and to execute and deliver this Agreement and each of
the other Closing Documents; and the individual executing this
Agreement on behalf of Prefco hereby represents and warrants that
he, she or it has the capacity set forth on the signature page
hereof with full power and authority to bind Prefco to the terms
hereof;
(c) this Agreement has been duly authorized by all necessary actions,
duly executed and delivered by Prefco and constitutes a legal,
valid and binding obligation of Prefco enforceable against it in
accordance with its terms except as the enforcement may be limited
by (i) the effect of the laws and judicial decisions of the State
of Connecticut, (ii) the discretion of any court or governmental or
public body, authority, bureau or agency before which any
proceeding may be brought or (iii) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally;
(d) to the best of Prefco's knowledge, no consent, license, approval or
authorization of, or filing, registration or declaration with, or
exemption or other action by, any governmental or public body,
authority, bureau or agency is required in connection with the
execution, delivery or performance by Prefco of this Agreement or
the transactions herein contemplated or the Closing Documents to
which it is a party other than those which have been obtained;
(e) Prefco's performance, execution and delivery of this Agreement and
the other Closing Documents (i) do not and will not violate (x)
Prefco's operating agreement or the terms of any security issued by
it, or (y) to the best of Prefco's knowledge, any law, governmental
regulation, judgment, order, writ, injunction or decree applicable
to Prefco in any manner which will materially adversely affect
Prefco's ability to perform its obligations hereunder, (ii)
provided that all necessary consents are obtained (including,
without limitation, consents of the registered owners of the Notes
and any other applicable party), do not and will not violate the
11
provisions of, or constitute a default or an event of default under
the Mortgage, (iii) provided that all necessary consents are
obtained, do not and will not constitute a default or an event of
default under any instrument, contract, agreement, lease or other
undertaking to which Prefco is a party or by which any of its
properties may be subject or bound in a manner which will
materially adversely effect its ability to perform the same; or
(iv) do not result and will not result in the creation or
imposition of any lien, pledge, mortgage, claim, charge or
encumbrance upon any of its property pursuant to such agreement or
instrument, except as permitted by the Closing Documents;
(f) to the best of Prefco's knowledge without any inquiry, there is no
action, suit or proceeding pending or threatened against or
affecting Prefco or the Property in any court, or by or before any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which would
have any effect on Prefco's ability to execute and perform its
obligations under this Agreement;
(g) Prefco is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code;
(h) Prefco has not filed any voluntary petition in bankruptcy or been
adjudicated as bankrupt or insolvent, or filed any petition or
answer seeking any reorganization, liquidation, dissolution or
similar relief under any federal bankruptcy or insolvency laws, or
other relief for debtors, or sought or consented to or acquiesced
in the appointment of any trustee, receiver, conservator or
liquidator of all or any substantial part of its properties or
interest in the Land or the Property;
(i) Prefco has not dealt with any broker in the negotiations of the
transactions contemplated by this Agreement. Prefco shall indemnify
and hold harmless Purchaser from and against any cost, expense
(including without limitation reasonable attorneys' fees and
disbursements), claim, liability or damage arising out of any claim
or demand by any broker, consultant, finder or similar agent
claiming to have dealt with Prefco in connection with this
Agreement and the transaction contemplated hereby;
(j) to Prefco's actual knowledge, the Lease is in full force and effect
and has not been modified, and Prefco has no actual knowledge of
any current material default in the performance of the obligations
of any party under the Lease;
(k) after the date hereof and prior to the Closing, except as required
under the Lease, Prefco shall not sell or otherwise transfer
without Purchaser's consent any part of the Property, or any
interest therein (provided, however, that Purchaser acknowledges
Prefco is permitted to enter into negotiations for the sale of the
Property, and, at such time, Purchaser shall
12
deliver its consent to Prefco (without delay) to enter into such
negotiations);
(l) after the date hereof and prior to the Closing, except as required
under the Lease, Prefco shall not enter into or approve any new
leases and/or subleases of the Land and Improvements, or amend,
modify or extend the Lease, without the prior written consent of
Purchaser (which consent shall not be unreasonably withheld or
delayed), except as required pursuant to the terms and conditions
of the Lease;
(m) to the best of Prefco's knowledge, Prefco is the owner of the
Estate for Years in the Land, and, to the best of Prefco's
knowledge, is the fee owner of the Improvements and Property, all
of which are subject to the Permitted Exceptions. Notwithstanding
the foregoing, Prefco makes no representations, warranties or
covenants with respect to any title matters, it being expressly
agreed that Purchaser is relying solely on title insurance
commitments issued by the Title Company with respect to such
matters;
(n) the making, execution and delivery of this Agreement by Prefco has
been induced by no representations, warranties, covenants or
agreements other than those expressly set forth in this Agreement;
and
(o) to the best of Prefco's knowledge, Prefco has not received any
written condemnation notice with respect to the Property, except
that Prefco received a Declaration of Taking and Notice of Deposit
in or about April, 2002 with respect to that certain property
located at 0000 Xxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxx.
13. Closing; Conditions to Closing.
(a) Closing. As used herein, "Closing" shall mean the closing of the
transactions contemplated herein on the Closing Date (as hereinafter defined).
Either party shall have the option, exercisable by such party by delivery of
written notice to the other party and the Sole Member within five (5) days prior
to the Closing Date (the "Equity Purchase Notice"), to restructure the
transaction contemplated hereby as a purchase and sale of all of the outstanding
Membership Interests in Prefco ("Equity Purchase"). In the event either party
exercises such option, the parties hereto hereby agree that this Agreement shall
automatically be amended as set forth on Exhibit I hereto; provided, however,
that if either party objects to consummating the transaction as an Equity
Purchase, which such objection must be exercised, if at all, by providing
written notice of such objection to the other party and the Sole Member within
one (1) day of the receipt of the Equity Purchase Notice (the "Equity Purchase
Objection Notice"), then such Equity Purchase Objection Notice shall be deemed
void, and the transaction shall proceed as previously contemplated subject to
the provisions of this Agreement, with each party bearing one-half (1/2) of any
transfer taxes required pursuant to applicable law. The Closing shall take place
through an escrow with the Title Company with the closing documents and actions
not previously delivered or taken to be delivered to the Title Company or taken
on or before the Closing Date in New York, New York at the offices of Prefco's
attorneys, as specified by Prefco. The Closing
13
Date shall be on or before May 30, 2003 (the "Scheduled Closing Date") (the
Scheduled Closing Date, as adjourned from time to time as provided for more
fully below shall be the "Closing Date"). At any time after the expiration of
the Inspection Period and prior to the Scheduled Closing Date, Purchaser may
adjourn the Scheduled Closing Date as hereinafter provided. Purchaser may
adjourn the Scheduled Closing Date for a period of up to thirty (30) days (the
"First Adjournment Option") by delivering written notice of such adjournment to
Prefco on or before the Scheduled Closing Date. In the event Purchaser exercises
the First Adjournment Option, Purchaser may further adjourn the adjourned
Closing Date for an additional period of up to thirty (30) days (the "Second
Adjournment Option") by delivering written notice of the exercise of such Second
Adjournment Option to Prefco, provided, that in no event may the Closing be
extended to a date which is later than July 28, 2003. In the event Purchaser
exercises the First Adjournment Option, the Purchase Price shall be increased in
the amount of Eighty Five Thousand and 00/100 Dollars ($85,000.00) and, in the
event Purchaser exercises the Second Adjournment Option, the Purchase Price
shall be increased in the additional amount of Eighty Five Thousand and 00/100
Dollars ($85,000.00).
(b) Conditions to Closing (Purchaser). Purchaser's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
(i) Prefco shall deliver an estoppel certificate to Purchaser
from Lessee in the form attached hereto as Exhibit D.
(ii) Prefco shall deliver an estoppel certificate to Purchaser
from Prefco in the form attached hereto as Exhibit H.
(iii) The Lessee and any third parties enjoying a right of first
refusal or other similar rights to purchase the Property, if any, shall have
waived said rights. This condition may not be waived by Prefco or Purchaser.
(iv) In the event Purchaser elects to assume the obligations under
the Mortgage, Purchaser shall have obtained the right to assume such Mortgage
from the beneficiaries holding the Mortgage or, if Purchaser elects to prepay
all or any part of the obligations evidenced by the Notes and secured by the
Mortgage, Purchaser shall have obtained the requisite consent to make such
prepayment from all necessary parties.
(v) Purchaser shall have reached a separate agreement with
Remainderman, on terms mutually acceptable to Purchaser and Remainderman, for
the purchase of said Remainderman's fee interest in the Land. Prefco shall only
be required to use commercially reasonable efforts in assisting Purchaser in
such negotiations, and such commercially reasonable efforts shall not, without
limitation, be construed to require Prefco to grant any concession or pay any
consideration
(vi) Prefco shall have obtained any consents identified in Section
12(e) hereof.
14
(vii) All of the representations and warranties of Prefco contained
in this Agreement shall be true and correct as of the date of Closing and Prefco
shall have performed and satisfied all agreements, covenants and conditions it
is required to perform and satisfy under this Agreement prior to or at Closing,
or, in the event this Agreement is restructured as an Equity Purchase, all of
the representations and warranties of Prefco and the Sole Member contained in
this Agreement shall be true and correct as of the date of Closing and Prefco
and the Sole Member shall have performed and satisfied all agreements, covenants
and conditions that they are required perform and satisfy under this Agreement
prior to or at Closing.
(viii) Purchaser shall have received fully executed copies of the
Closing Documents.
(c) Conditions to Closing (Prefco). Prefco's obligations under this
Agreement to proceed with Closing are subject to the satisfaction (or waiver to
the extent they may be waived as hereinafter provided) of the following
conditions on or before the Closing Date:
(i) Prefco shall be able to obtain an estoppel certificate from
Lessee in the form attached hereto as Exhibit D.
(ii) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct as of the date of Closing
and Purchaser shall have performed and satisfied all agreements, covenants and
conditions it is required to perform and satisfy under this Agreement prior to
or at Closing.
(iii) Purchaser shall have paid the Purchase Price as set forth in
Section 3.
(iv) Prefco shall have received fully executed copies of the
Closing Documents.
(d) Failure of Conditions to Closing. In the event one or more of the
conditions to Closing described in Section 13(b) hereof is not satisfied or
waived on or before the Closing, and the failure of such conditions to be
satisfied is not a result of a default by Prefco, Sole Member or Purchaser, then
Purchaser shall have the right to terminate this Agreement and the escrow
created hereby by giving written notice of termination to Prefco. In the event
one or more of the conditions to Closing described in Section 13(c) hereof are
not satisfied or waived on or before the Closing, and the failure of such
conditions to be satisfied is not a result of a default by Prefco, Sole Member
or Purchaser, then Prefco shall have the right to terminate this Agreement and
the escrow created hereby by giving written notice of termination to Purchaser.
14. Documents to be Delivered at Closing. At or prior to Closing,
the following documents, certificates, opinions and agreements (the "Closing
Documents"), in form and substance satisfactory to Prefco and Purchaser shall be
executed and/or delivered by the respective parties thereto:
15
(i) Special Warranty Deed to the Estate for Years in Land and fee
simple in Improvements (in substantially the form attached
hereto as Exhibit E), unless the transaction is structured as
an Equity Purchase, in which case the foregoing shall not be
required;
(ii) an Assignment and Assumption Agreement (in substantially the
form attached hereto as Exhibit F), unless the transaction is
restructured as an Equity Purchase, in which case the foregoing
shall not be required;
(iii) appropriate resolutions and consents of Prefco and/or Sole
Member (or evidence that such consent is not required);
(iv) Secretary's certificates and corporate resolutions of Purchaser
and Prefco and/or Sole Member;
(v) Incumbency certificates of Prefco and/or the Sole Member and
Purchaser;
(vi) Good standing certificates of Prefco and/or the Sole Member and
Purchaser;
(vii) Transfer Tax Affidavits/Forms, if any, unless the transaction
is restructured as an Equity Purchase, in which case the
foregoing shall not be required;
(viii) "Nonforeign" Person Certificates from Prefco pursuant to Treas.
Reg. 1.1445-2T(b)(2), unless the transaction is restructured as
an Equity Purchase, in which case the foregoing shall not be
required;
(ix) any other documents required to transfer to Purchaser all
right, title, and interest of Prefco in, to, or in any way
arising out of or connected with the Property or the Operative
Documents, and, in the event the transaction is restructured as
an Equity Purchase, any other documents required to transfer to
Purchaser all right, title, and interest of Sole Member in, to,
or in any way arising out of or connected with the Membership
Interests;
(x) Title affidavits and any other documents reasonably required by
the Title Company;
(xi) Proof as to the waiver and/or lapse of all rights of first
refusal and/or first offer, if any;
(xii) a certificate by each of Prefco and Purchaser (and Sole Member
in the event that the transaction is restructured as an Equity
Purchase) to the effect that their respective representations
and warranties contained herein are true and correct as of the
Closing; and
(xiii) Any other documents required pursuant to this Agreement or
reasonably requested by the Title Company.
16
15. Purchaser's Assignees. Purchaser, at Purchaser's sole cost and
expense, may designate separate assignees to acquire title to the Property, or
in the event that the transaction is restructured as an Equity Purchase, the
Membership Interests. In the event Purchaser elects to take title to the
Property subject to the Mortgage, any assignment of this Agreement or
Purchaser's rights hereunder shall be subject to the terms of the Mortgage
pertaining to transfers. In the event Purchaser elects to prepay all or any part
of the loan as evidenced by the Notes and secured by the Mortgage, any such
prepayment shall be subject to the terms of the Mortgage and any other
conditions required by the registered owners of such Notes or other applicable
party.
16. Notices. All notices, offers, acceptances, rejections, consents,
requests and other communications hereunder shall be in writing and shall be
deemed to have been given (i) when delivered in person or (ii) when sent by
telecopier (with receipt confirmed) or (iii) on receipt after being sent by
express mail or delivery service guaranteeing overnight delivery, provided that
in the case of clause (ii) a copy is mailed by first class registered or
certified mail, postage prepaid, return receipt requested, in each case
addressed as follows:
As to Prefco and/or Sole
Member: c/o Pitney Xxxxx Credit Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Mr. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
As to Purchaser: First States Group, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
or to such other person or address as either party shall furnish to the other
party in writing.
17. Entire Agreement. This Agreement contains the entire agreement
between Prefco, Sole Member and Purchaser with respect to the purchase and sale
contemplated hereby and supersedes any prior agreements with respect thereto.
18. Further Acts. Each party, upon the request of the other, agrees to
perform such further acts and to execute and deliver such other documents as are
reasonably necessary to carry out the provisions of this Agreement.
19. Survival of Obligations. The representations, warranties and
indemnities of the parties hereto as set forth in this Agreement shall, except
as otherwise provided in this Agreement, survive the termination of this
Agreement, and shall survive the Closing and the execution, delivery and
recording of the agreements, certificates, instruments and other documents
referred to herein.
20. No Waiver. No waiver of any provision of this Agreement shall be
effective unless it is in writing, signed by the party against whom it is
asserted and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
22. Governing Law; Consent to Jurisdiction and Venue. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
Connecticut. Prefco, Sole Member and Purchaser agree that all disputes arising
out of or relating to this Agreement and all actions to enforce this Agreement
shall be exclusively adjudicated in the state courts of Connecticut or the
federal courts sitting in Connecticut or having appellate jurisdiction with
respect thereto and Prefco, Sole Member and Purchaser hereby irrevocably submit
to the jurisdiction of such courts in any suit, action or proceeding arising out
of or relating to this Agreement or in any action to enforce this Agreement. So
far as is permitted under applicable law, this consent to personal jurisdiction
shall be self-operative and no further instrument or action, other than service
of process as required by law, shall be necessary in order to confer
jurisdiction upon the person of Prefco, Sole Member or Purchaser in any such
court.
23. Exhibits. All of the Exhibits annexed hereto are incorporated
herein by reference and form part of this Agreement.
24. Miscellaneous. In the event that any provision of this Agreement
shall be determined to be void or unenforceable, such determination shall not
affect the remaining provisions of this Agreement; and this Agreement shall not
be construed against the party preparing it but shall be construed as if both
parties prepared this Agreement.
25. Third Parties. This Agreement shall not be deemed to confer in
favor of any third parties any rights whatsoever as third-party beneficiaries,
the parties hereto intending by the provisions hereof to confer no such benefits
or status.
18
26. Jury Waiver. PREFCO, SOLE MEMBER AND PURCHASER WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTER-CLAIM FILED BY EITHER PARTY (AND THEIR RESPECTIVE
NOMINEES, DESIGNEES, AND ASSIGNEES), WHETHER IN CONTRACT, TORT OR OTHERWISE,
ARISING OUT OF THIS AGREEMENT OR THE SALE OF THE PROPERTY OR ANY ACTS OR
OMISSIONS OF ANY SUCH PERSON, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH. THIS SECTION 26 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT OR THE CLOSING.
27. Successors and Assigns. Subject to the provisions of Section 15
hereof, this Agreement shall be binding upon and inure to the benefit of each of
the parties hereto and their respective permitted transferees, successors and
assigns.
28. No Joint Venture. Notwithstanding anything to the contrary
contained herein, this Agreement shall not be deemed or construed to make the
parties hereto partners or joint venturers, or to render either party liable for
any of the debts or obligations of the other, it being the intention of the
parties to merely create the relationship of seller and purchaser with respect
to the Property to be conveyed as contemplated hereby.
29. Confidentiality. Each party agrees to maintain in confidence the
dealings, negotiations and agreements of the parties with respect to this
Agreement and the transaction contemplated hereby, and neither of them shall
make any disclosure of any information regarding those matters (except to their
members, officers, directors, employees, accountants, lenders, attorneys,
consultants, appropriate governmental personnel, and others who have a need for
that information and who agree to comply with this provision, and except as to
any information which is a matter of public record or provided in connection
with applicable governmental proceedings), (a) unless both Prefco and Purchaser
otherwise agree in writing, or (b) except as may be necessary in order to comply
with applicable law after consultation with legal counsel.
30. Saturdays, Sundays or Holidays. In the event that any of the dates
specified in this Agreement shall fall on a Saturday, Sunday or a holiday, then
the date of such action shall be deemed to be extended to the next business day.
31. Section Headings. Section headings of this Agreement are solely for
convenience of reference and shall not govern the interpretation of any of the
provisions of this Agreement. References to "Sections" are to Sections of this
Agreement, unless otherwise specifically provided.
32. Section 1031 Exchange. Purchaser and Prefco agree to execute any
documents necessary for Prefco to effectuate the transfer of the subject
property as reasonably requested by Prefco, including, without limitation, an
assignment of any purchase agreement to a "qualified intermediary" as defined in
Treas. Reg. 1.103(k) - 1(g)(4) if requested by such qualified intermediary in
order for said party to be able to effectuate a "like kind exchange" pursuant to
Internal Revenue Code Section 1031 and the regulations promulgated thereunder,
provided that such actions by Prefco have no material adverse impact on
Xxxxxxxxx.
00
00. Cooperation. Prefco, Sole Member and Purchaser hereby agree to
cooperate with each other in providing all information, documents and other
materials within their reasonable control necessary to assist Purchaser in the
investigation of the Property and Prefco as contemplated by this Agreement.
Purchaser agrees to reasonably cooperate with Prefco and Sole Member in order to
minimize any transfer taxes and similar taxes imposed on Prefco or Sole Member
in connection with the transaction, including without limitation, as provided
above, structuring the transaction as a sale of Membership Interests in Prefco,
provided that Purchaser shall not be required to take any action which will
increase the risks or the costs of the transaction to Purchaser.
34. Interim Covenants. From and after the date hereof and up to and
including the Closing Date or the termination of this Agreement, Prefco and Sole
Member shall promptly deliver (to the extent actually received by Prefco or Sole
Member) to Purchaser copies of written default notices, notices of lawsuits
(including, without limitation, condemnation proceedings), and notices of
violations affecting the Property, Prefco or the Membership Interests. In
addition, Prefco and Sole Member shall deliver (to the extent actually received
by Prefco or Sole Member) to Purchaser copies of written default notices,
notices of lawsuits (including, without limitation, condemnation proceedings),
and notices of violations affecting the Property, Prefco or the Membership
Interests which are now in the possession of Prefco or Sole Member.
[the remainder of the page is intentionally blank]
20
IN WITNESS WHEREOF, Prefco and Purchaser have caused this Agreement to
be executed, under seal, by their respective signatories thereunto duly
authorized.
PREFCO:
PREFCO III REALTY LLC, a Connecticut
limited liability company
By: Pitney Xxxxx Real Estate Financing
Corporation, a Delaware corporation
By:_____________________
Name:________________
Title:_______________
SOLE MEMBER:
PITNEY XXXXX REAL ESTATE FINANCING
CORPORATION, a Delaware corporation
By:_____________________
Name:________________
Title:_______________
21
PURCHASER:
FIRST STATES GROUP, L.P.
a Delaware limited partnership
By: First States Group, LLC, a Delaware limited
liability company, its general partner
By:______________________________
Name:_________________________
Title:________________________
22
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:____________________________
Xxxxx Xxxxxx, Vice-President
23
