AGREEMENT OF PURCHASE AND SALE
between
FR ACQUISITIONS, INC., as Purchaser
and
Di GIORGIO CORP., as Seller
Relating to Premises known as
000 Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000
250140-8
TABLE OF CONTENTS
Paragraph Heading Page No.
1. Sale................................................1
2. Purchase Price......................................1
3. Closing.............................................2
4. Xxxxxxx Money.......................................2
5. Seller's Deliveries.................................3
6. Inspection Period...................................3
7. Title and Survey Matters............................7
8. Seller's Representations and Warranties.............9
8A. Purchaser's Representations........................13
9. Covenants of Seller................................14
9A. Covenants of Purchaser.............................15
10. Environmental Warranties and Agreements............15
11. Additional Conditions Precedent to Closing.........20
12. Intentionally Deleted..............................21
13. Seller's Closing Deliveries........................21
14. Prorations and Adjustments.........................22
15. Closing Expenses...................................22
16. Destruction, Loss or Diminution of Project.........23
17. Default............................................23
18. Successors and Assigns.............................25
19. Litigation.........................................25
20. Notices............................................26
21. Benefit............................................27
22. Limitation of Liability............................27
23. Brokerage..........................................27
24. Reasonable Efforts.................................27
25. Exculpation of Affiliates..........................27
26. Miscellaneous......................................28
250140-8
LOCATION OF DEFINITIONS
A definition for each of the following terms is set forth within the
body of this Agreement, respectively, on the page set forth next to such term.
Definition Term Section No.
Additional Assessment 6
Additional Period 6
Affiliate 18
Agreement Preamble
Approval Date 6
Approved Depository 4
Assessment 6
Basic Project Inspection 6
Building 1
CERCLA 10
Closing 3
Closing Date 3
Conditions Precedent 2
Contract 1
Contract Date 4
Damage 16
Deed 7
Defects 7(b)
Xxxxxxx Money 4
Eminent Domain 16
Environmental Laws 10
Environmental Permits 10
Escrow 4
Escrow Agreement 4
Escrowee 4
First Industrial 18
250140-8
Definition Term Section No.
Governmental Authority 10
Hazardous Conditions 10
Hazardous Materials 10
Improvements 1
Inspection Period 6
Intermediary 18
Land 1
Leases 8(s)
Mandatory Cure Items 7
New Lease 11(h)
Owner 1
Permitted Exceptions 7
Project 1
Purchase Price 2
Purchaser Preamble
Qualified Consulting Firm 00
XXXX 00
Records 6
Release 10
Remedial Action 10
Remedial Costs 10
Representatives 6
Seller Preamble
Seller's Broker 23
Seller's Deliveries 5
Survey 7
Tanks 10
Termination Notice 6
Title Commitment 7
Title Company 7
250140-8
Definition Term Section No.
Title Evidence 7
Title Policy 7
Violations 8(j)
250140-8
THIS AGREEMENT (this "Agreement") is made and entered into this 19th
day of February, 1998, by and between Di Giorgio Corp., a Delaware corporation
("Seller"), and FR Acquisitions, Inc., a Maryland corporation ("Purchaser").
1. SALE.
Seller, in its capacity as contract vendee under that certain agreement (the
"Contract") dated November 26, 1997 for the sale and purchase of the Project (as
hereinafter defined) made with United States Steel and Carnegie Pension Fund,
Inc., as Trustee under Agreement dated as of August 31, 1950 for United States
Steel Corporation Non-Contributory Pension Plan, AND United States Steel and
Carnegie Pension Fund, Inc., as Trustee under Agreement dated as of February 15,
1951 for United States Steel Corporation Contributory Pension Plan
(collectively, the "Owner") agrees to sell and convey (or cause Owner to sell
and convey) to Purchaser, and Purchaser agrees to purchase from Seller, for the
purchase price set forth below, and on the terms and conditions set forth in
this Agreement, the Project. The term "Project" shall mean, on a collective
basis: (a) all those certain plots, pieces and the parcels of land located in
the Town of Hempstead, County of Nassau, State of New York, known by the street
address 000 Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, as more particularly
described in Exhibit A attached hereto (the "Land"), together with and subject
to all rights of way, easements, reservations, privileges, appurtenances,
interests and other rights appurtenant or pertaining thereto including, but not
limited to, in (i) any right, title and interest of Owner or Seller in and to
any streets or other public ways adjacent to the Land together with all right,
title and interest, if any, of Owner or Seller in and to (A) any land lying in
the bed of any street, road or avenue opened or proposed, in front of or
adjoining the Land, to the center line thereof, and any award made or to be made
in lieu thereof and (B) any unpaid award for damages to the Land or the
Improvements (as hereinafter defined) by reason of change of grade of any
street, (ii) any water, oil, gas and mineral rights owned by, or leased to,
Seller or Owner, and (iii) any rights in alleys adjoining the Land; (b) all
buildings, structures and improvements located on the Land, including, but not
limited to, that certain building containing approximately 325,000 rentable
square feet used for warehouse and distribution purposes (collectively, the
"Building"), and all fixtures (other than trade fixtures including, without
limitation, racking and refrigerator freezer equipment), systems and utilities
attached or appurtenant to, or utilized by Seller and/or Owner in the ownership
and operation of the Building (the Building and all such fixtures, systems and
utilities being collectively referred to herein as the "Improvements"); and
Owner's and Seller's interest, if not terminated prior to Closing, in all other
Leases (as hereinafter defined) and other agreements to occupy all or any
portion of the Project that are in effect on the Contract Date (as hereinafter
defined) and as of the Closing (as hereinafter defined).
2. PURCHASE PRICE.
The total purchase price to be paid to Seller by Purchaser for the
Project shall be Fourteen Million Five Hundred Thousand and 00/100 Dollars
($14,500,000.00) (the "Purchase Price"). Provided that all conditions precedent
to Purchaser's obligations to close as set forth in this Agreement
(collectively, the "Conditions Precedent") have been satisfied and fulfilled, or
waived in writing
250140-8 2/23/98
by Purchaser, the Purchase Price shall be paid to Seller (or as Seller may
direct) at Closing, plus or minus prorations and other adjustments hereunder
(including all Xxxxxxx Money (as hereinafter defined) credited against the
Purchase Price), by federal wire transfer of immediately available funds. Seller
shall provide Purchaser with such wire transfer instructions at least two (2)
business days prior to Closing.
3. CLOSING.
The purchase and sale contemplated herein shall be consummated at a
closing ("Closing") to take place at the offices of Purchaser's counsel, Xxxxxx
Xxxxxx Flattau & Klimpl, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or a location as otherwise agreed by the parties. The Closing shall occur
on or before the fifteenth (15th) day after the Approval Date (as hereinafter
defined), on or before the close of business, or at such other time as the
parties may agree upon in writing, provided that the Closing shall take place no
earlier than February 10, 1998 nor later than (i) March 31,1998 or (ii) such
later date to which Seller is able to extend the Closing Date under the Contract
with Owner (the "Closing Date"). The Closing shall be effective as of 12:01 A.M.
on the Closing Date. Notwithstanding the foregoing, the risk of loss of all or
any portion of the Project shall be borne by Seller up to and including the
actual time of the Closing and wire transfer of the Purchase Price to Seller,
and thereafter by Purchaser, subject to the terms and conditions of Paragraph 16
below.
4. XXXXXXX MONEY.
(a) Escrowee. On the date of the full execution and delivery of
this Agreement (which date is set forth on the signature page hereof
and is referred to herein as the "Contract Date"), the parties shall
enter into an escrow agreement in the form attached hereto as Exhibit C
(the "Escrow Agreement"; the escrow created thereby being referred to
herein as the "Escrow"), designating North Shore Abstract, Ltd., as
title agent of Chicago Title Insurance Company, as the escrowee
thereunder ("Escrowee"). The parties hereby authorize their respective
attorneys to execute the Escrow Agreement and to make such amendments
thereto as they shall deem necessary or convenient to close the
transaction contemplated hereby.
(b) Xxxxxxx Money Deposit. Not later than two (2) business days
following the Contract Date, Purchaser shall deposit into the Escrow,
in accordance with the terms of the Escrow Agreement, and as its
xxxxxxx money deposit (the "Xxxxxxx Money"), the sum of Five Hundred
Thousand and 00/100 Dollars ($500,000.00). The Xxxxxxx Money shall be
invested by the Escrowee in an interest-bearing account with an FDIC-
insured, national bank having gross assets in excess of $1,000,000,000
(an "Approved Depository").
(c) Application at Closing. At Closing, the Xxxxxxx Money shall
be delivered to Seller and credited against the Purchase Price. All
interest (if any) earned on the Xxxxxxx Money shall be paid in equal
shares to Seller and Purchaser except in the event of a default
hereunder in which case all interest shall be paid to the
non-defaulting party. All Xxxxxxx Money shall be appropriately dealt
with by the Escrowee so as to be
250140-8 2/23/98
2
delivered to Seller or Purchaser, as the case may be, as
provided herein and as provided in the Escrow Agreement.
5. SELLER'S DELIVERIES.
Seller shall deliver to Purchaser, no later than five (5) business days
after the Contract Date, the documents listed as "Seller's Deliveries" on
Exhibit D attached hereto, except to the extent disclosure of same to Purchaser
is prohibited by written agreement (as to which items Seller shall deliver to
Purchaser a descriptive list of the undeliverable items). In the event that the
transactions contemplated by this Agreement are not consummated, Purchaser shall
return the delivered documents to Seller.
6. INSPECTION PERIOD.
(a) Basic Project Inspection. At all times prior to Closing,
including times following the Inspection Period (which "Inspection
Period" is defined to be the period that is thirty (30) days from and
after the Contract Date), Purchaser, its agents and representatives
shall be entitled to conduct a "Basic Project Inspection", which will
include the right to: (i) enter upon the Land and Improvements, on
reasonable notice to Seller and accompanied by a representative of
Seller, if Seller so requires, to perform industry standard inspections
and tests of the Project, including, but not limited to, inspection,
evaluation and testing of the heating, ventilation and air-conditioning
systems and all components thereof (collectively, the "HVAC System"),
all structural and mechanical systems within the Improvements,
including, but not limited to, sprinkler systems, power lines and
panels, air lines and compressors, automatic doors, tanks, pumps and
plumbing; (ii) examine and copy the records, Leases, and other
documents maintained by Seller or its agents, relating to expenditures
pertaining to the leasing, maintenance, repair and operation of the
Project (but not the business operations conducted by Seller at the
Project) only for the three (3) most recent full calendar years and the
current calendar year (the "Records"); (iii) make investigations with
regard to zoning, environmental (as provided in Subparagraph 6(b)
below), building, code and other legal requirements including, but not
limited to, an environmental Assessment and Additional Assessment (each
as defined and specified in Subparagraph 6(b) below) and (iv) make or
obtain market studies and real estate tax analyses.
If Purchaser, during the Inspection Period, in its sole and
absolute discretion, determines that the results of any inspection,
test or examination do not meet Purchaser's (or its underwriters',
investment bankers', lenders', ratings agency's or investors') criteria
for the purchase, financing or operation of the Project in the manner
contemplated by Purchaser (including, but not limited to, if same
reveal the presence of a Hazardous Condition (as hereinafter defined),
any Hazardous Material (as hereinafter defined), or toxic substance,
including, but not limited to, asbestos, chlordane or formaldehyde, in
or upon any of the Project, or any deficiency or code violation with
respect to any aspect of the Project), or if the information disclosed
does not otherwise meet Purchaser's investment criteria or underwriting
for any reason whatsoever, or if Purchaser, in its sole discretion,
250140-8 2/23/98
3
otherwise determines that the Project is unsatisfactory to it, then
subject to Subparagraph 6(d) below, Purchaser may terminate this
Agreement by notice to Seller (the "Termination Notice"), with a copy
to Escrowee, given not later than two (2) business days after the last
day of the Inspection Period (the "Approval Date"). Upon such
termination, the Xxxxxxx Money, together with all interest thereon,
shall be returned immediately to Purchaser and neither party shall have
any further liability to the other hereunder, except as otherwise
provided herein.
The parties hereto acknowledge that Purchaser may expend
material sums of money in reliance on Seller's obligations under this
Agreement, in connection with negotiating and executing this Agreement,
furnishing the Xxxxxxx Money, con ducting the inspections contemplated
by this Paragraph 6 and preparing for Closing, and that Purchaser would
not have entered into this Agreement without the availability of an
Inspection Period. The parties therefore agree that adequate
consideration exists to support Seller's obligations hereunder, even
before expiration of the Inspection Period. Except as otherwise
provided herein, the effect of any representations, warranties or
undertakings made by Seller in this Agreement shall not be diminished,
abrogated, or compromised by the Basic Project Inspection, any
Assessment or Additional Assessment, or other inspections, tests or
investigations made by Purchaser.
(b) Environmental Assessment. During the Inspection Period,
Purchaser or Purchaser's agent(s) shall have the right to employ one or
more environmental consultants or other professional(s) to perform or
complete a so-called "Phase I" environmental inspection and assessment
(the "Assessment") of the Project, and Seller acknowledges and consents
to such Assessment, to the full extent contemplated under ASTM Document
E 1527, which describes the "Phase I Environmental Site Assessment
Process." Purchaser and its consultants shall also have the right to
undertake or complete a technical review of all documentation, reports,
plans, studies and information in possession or control of Seller, or
its past or present environmental consultants, concerning or in any way
related to the environmental condition of the Project. In order to
facilitate the Assessment, the technical review and any other tests and
studies, Seller shall extend its full cooperation (but without third
party expense to Seller) to Purchaser and its environmental
consultants, including, but not limited to, providing complete access
to all its files and fully, completely and truthfully answering, to its
knowledge, all questions relating to the environmental condition of the
Project. The Assessment shall evaluate the present and past uses of the
Project, and the presence on, in, at, about, near or under the Land
(including land sufficiently proximate to any portion of the Project as
to pose the risk of migration, or other adverse effect on any portion
of the Project) of any Hazardous Materials. In the event that (i) the
results of the Assessment or technical review are inconclusive, or (ii)
the results of the Assessment or technical review reveal material
environmental matters unacceptable to Purchaser, in its sole judgment,
then Purchaser, at its sole option, shall have an "Additional Period"
until March 20, 1998 to allow for and accommodate additional required
inspections and tests (the "Additional Assessment"), whether involving
an ASTM "Phase II"
250140-8 2/23/98
4
evaluation or otherwise. Such Additional Period, if applicable, shall
automatically and concomitantly extend the original Inspection Period,
Approval Date and Closing Date [provided, however, that nothing in this
paragraph shall be deemed to authorize Purchaser to extend the Closing
Date beyond the parameters of Section 3 hereof], on a day-to-day basis,
for all relevant purposes hereunder, except that Purchaser's right to
cancel this Agreement during the Additional Period shall relate only to
the environmental condition of the Project and may only be exercised in
accordance with and subject to the provisions of Section 10(c) hereof.
If upon the recommendation of Purchaser's Qualified Consulting Firm
such Additional Assessment is performed, Purchaser and Seller shall
share equally all costs and expenses of such Additional Assessment, to
be performed by Qualified Consulting Firms (as hereafter defined) and
other contractors and consultants selected and approved by Purchaser,
provided that Seller's obligation for the cost of the Additional
Assessment shall not exceed $12,500.00. Prior to the performance of the
Additional Assessment, Purchaser shall cause its Qualified Consulting
Firm to provide to Seller: (i) a Scope of Work for Seller's review and
approval, such approval not to be unreasonably withheld and to be
provided or denied within three business days of Seller's receipt of
the Scope of Work; and (ii) a certificate of insurance evidencing the
following insurance coverages in favor of Seller, each with a combined
single limit of $1,000,000; comprehensive general liability insurance,
comprehensive automobile liability insurance, and professional errors
and omissions liability insurance.
(c) Purchaser's Undertaking. Purchaser hereby covenants and
agrees that it shall cause all studies, investigations and inspections
(including, but not limited to, the Assessment), performed at the
Project pursuant to this Paragraph 6 to be performed in a manner that
does not unreasonably disturb or disrupt the business operations of the
Seller. In the event that, as a result of Purchaser's exercise of its
rights under Subparagraphs 6(a) and 6(b), any damage occurs to the
Project, then Purchaser shall promptly repair such damage at
Purchaser's sole cost and expense. Purchaser hereby indemnifies,
protects, defends and holds Seller harmless from and against any and
all losses, damages, claims, causes of action, judgments, costs and
expenses that Seller actually suffers or incurs as a direct result of
(i) a breach of Purchaser's agreements set forth herein in connection
with its inspection of the Project or (ii) physical damage to the
Project or bodily injury caused by any negligent act of Purchaser or
its agents, employees or contractors in connection with the right of
inspection granted under this Paragraph 6.
(d) Confidentiality. Purchaser, First Industrial (as hereinafter
defined) and each Affiliate (as hereinafter defined) each agree to
maintain in confidence the fact that the Project is being sold and the
information contained in this Agreement or pertaining to the
transaction contemplated hereby and intend that no claim of privilege
or protection from disclosure be waived by reason of the disclosure or
transfer of information among the parties pursuant to the terms of this
Agreement; provided, however, that each party, its agents and
representatives may disclose such information and data (i) to such
party's accountants, attorneys, existing or prospective
250140-8 2/23/98
5
lenders, investment bankers, underwriters, rating agencies, partners,
consultants and other advisors in connection with the transactions
contemplated by this Agreement (collectively, "Representatives") to
the extent that such Representatives reasonably need to know (in the
disclosing party's reasonable discretion) such information and data in
order to assist, and perform services on behalf of, the disclosing
party; (ii) to the extent required by any applicable statute, law,
regulation or Governmental Authority (including, but not limited to,
Form 8-K and other reports and filings required by the SEC and other
regulatory entities, including the Internal Revenue Service, attached
hereto); (iii) in connection with any litigation that may arise
between the parties in connection with the transactions contemplated
by this Agreement; (iv) to the extent such disclosure is required or
appropriate in connection with any securities offering or other
capital markets or financing transaction undertaken by Purchaser; (v)
to the extent such information and data become generally available to
the public other than as a result of disclosure by such party or its
agents or Representatives; (vi) to the extent such information and
data become available to such party or its agents or Representatives
from a third party who, insofar as is known to such party, is not
subject to a confidentiality obligation to the other party hereunder;
(vii) to the extent necessary in order to comply with each party's
respective covenants, agreements and obligations under this Agreement;
and (viii) to the extent necessary to effectuate a transfer of the
Project in a 1031 exchange, including but not limited to the
disclosure of Purchaser's due diligence findings to potential 1031
exchange swap partners and their officers, accountants and agents.
Each party shall take all necessary and appropriate measures to ensure
that any person who is granted access to any confidential information
pursuant to the terms of this Subparagraph 6(d) is familiar with the
terms hereof and complies with such terms as they relate to the duties
of such person. In the event the transactions contemplated by this
Agreement shall not be consummated, such confidentiality shall be
maintained indefinitely and both parties shall promptly return all
documents or other confidential written information, together with all
copies thereof, to the party that generated such information. The
obligations of the parties under this Subparagraph 6(d) shall survive
Closing or any sooner termination of this Agreement and shall not be
merged into any conveyance documents delivered at Closing.
(e) Scope of Representations and Warranties. The Project is
being acquired by Purchaser pursuant to this Agreement and shall be
transferred and conveyed on an "AS-IS" and "WHERE-IS" basis, and WITH
ALL FAULTS, except as otherwise expressly set forth in this Agreement
or in any document delivered by Seller at Closing. Except as expressly
set forth in this Agreement or in any document delivered by Seller at
Closing, Seller has not made any representation or warranty as to the
present or future physical condition, value, presence/absence of
hazardous or toxic materials, financing status, leasing, operations,
use, tax status, income and expense or any other matter pertaining to
the Project.
250140-8 2/23/98
6
7. TITLE AND SURVEY MATTERS.
(a) Conveyance of Title. At Closing, Seller agrees to deliver or
to cause Owner to deliver to Purchaser a trustee's deed containing the
covenant required by subdivision 5 of Section 13 of the Lien Law (the
"Deed"), in recordable form, sufficient to convey good and marketable
fee simple absolute title to the Project to Purchaser, free and clear
of all liens, claims and encumbrances except for the Permitted
Exceptions (as hereinafter defined). The foregoing sentence
notwithstanding, Seller, at its option, may elect to assign to
Purchaser (in lieu of canceling and terminating same) certain
leaseholds affecting the Project, provided that in each such instance
Purchaser shall have no continuing obligations of any nature or
description under any of said leases and provided further that Seller
shall execute and deliver to Purchaser an indemnity with regard to any
and all transfer taxes which may be applicable to said assignments. In
such case only the documents evidencing such leaseholds shall
constitute Permitted Exceptions.
(b) Title Commitment. Purchaser has received a commitment (the
"Title Commitment"), dated June 20, 1997, issued by North Shore
Abstract Ltd., as agent for Chicago Title Insurance Company (the "Title
Company"), for an owner's title insurance policy (the "Title Policy"),
ALTA Owner's Policy Form 10-17-92, in the full amount of the Purchase
Price. Seller shall take all reasonably necessary actions within
Seller's reasonable control (subject to subparagraph 7(e) below) to
cause the Title Company to issue the Title Policy, subject only to the
Permitted Exceptions (as such term is defined herein). As a condition
precedent to Purchaser's obligation to close the transaction described
in this Agreement, the commitment shall be later-dated to cover the
Closing, and the Title Company shall deliver the Title Policy (or a
"marked-up" commitment therefor) to Purchaser concurrently with the
Closing. Should the Title Commitment, as the same may be later-dated,
indicate the presence of any matters other than the Permitted
Exceptions that render unmarketable or uninsurable the title to such
Project, such matters shall be considered "Defects," and the cure
provisions set forth in Subparagraph (e) below shall apply. For
purposes hereof, the term "Permitted Exceptions" shall mean (i) all
liens, claims, encumbrances, restrictions, covenants, conditions,
matters or exceptions to title that are set forth on Schedule E hereof,
and which are not marked "omit" on said Schedule E, (ii) all matters of
title disclosed on that certain survey dated April 29, 1992 prepared by
Xxxx & Xxxxxxx, P.C. as job number 920248, and (iii) that certain
restrictive covenant which shall be incorporated in the Deed and which
shall prohibit the use of the Building as a refrigerated or frozen food
facility by operators primarily engaged in the wholesale warehousing,
storing and/or distributing of refrigerated or frozen foods for a
period of ten (10) years commencing upon the expiration or sooner
termination of the term of the New Lease including the five year option
period, if Tenant's option is duly exercised. The covenant shall not
restrict or prohibit any use of the Building by an operator primarily
engaged in retail sales and sales to the general public; use of the
Building as a supermarket or wholesale club shall be deemed a retail
use, including without limitation, any such use by Xxxxxxxx'x, Grand
Union, A&P, X.X.'s, and Price Club. Additionally, any operator using no
more than five (5%)
000000-8 2/23/98
7
percent of the rentable square footage of the Building for refrigerated
or frozen food storage (excluding glass, retail refrigeration or
freezer cases, which shall be permitted without limitation) shall not
be deemed in violation of this covenant.
(c) Survey. Purchaser shall order, at its expense, an as-built,
spotted survey of the Project (the "Survey"), prepared by a surveyor
duly registered in the State of New York, and certified by said
surveyor as having been prepared in accordance with the minimum detail
and classification requirements of the land survey standards of the
American Land Title Association, and containing the certification
attached hereto as Exhibit G. The Survey shall be dated as of a date on
or after the Contract Date, and certified to Purchaser, Seller, Owner
and its assigns, Purchaser's designated lender(s), if any, and the
Title Company. Should the Survey indicate the presence of any matters
that render unmarketable or uninsurable title to such Project, such
matters shall be considered "Defects," and the cure provisions set
forth in Subparagraph (e) below shall apply.
(d) UCC Searches. Purchaser may cause the Title Company to
deliver to Purchaser and Seller after the Contract Date, and may update
prior to the Closing Date, current searches of all Uniform Commercial
Code financing statements filed with the Secretary of the State of New
York, and/or the appropriate county official, against Owner; Seller;
any tenant of the Project; the Project itself; Seller's affiliates
involved in the operation of the Project; and the management agents for
the Project. If such searches reveal claims or liens against any of
such parties encumbering all or any portion of the Project, such
matters shall be considered "Defects," and the cure provisions set
forth in Subparagraph (e) below shall apply.
(e) Defects and Cure. The items described in Subparagraphs 7 (a)
- (d) are collectively referred to as "Title Evidence". If the Title
Evidence discloses Defects, said Defects shall, as a Condition
Precedent to Closing, be cured and removed by Seller from the Title
Evidence prior to Closing, in accordance with this Subparagraph 7(e).
Seller's obligations to cure Defects shall be set forth below:
Mandatory Cure Items. Seller shall be unconditionally obligated
to take all steps; spend all necessary funds; institute and prosecute
any action or proceeding; and otherwise take any and all steps and
measures to cure or remove all Defects which are either marked "omit"
on Schedule E annexed hereto or which first arise or are first
disclosed by the Title Company or otherwise to Seller after the date of
the Title Commitment (the "Mandatory Cure Items"), provided that with
respect to Defects arising or first disclosed after the effective date
of the Title Commitment (i) as to those Defects which may be cured by
the payment of a liquidated sum, Seller shall not be required to expend
more than $125,000 in the aggregate to cure such liens, judgments or
encumbrances [except with regard to Defects arising due to Seller's
willful or intentional acts as to which no such limit shall apply], and
(ii) with regard to those Defects not subject to cure by the payment of
a liquidated sum up to $125,000 and which arise solely as the result of
the acts or omissions of persons other
250140-8 2/23/98
8
than Seller, Seller may adjourn the Closing for up to sixty (60) days
during which period Seller shall use all commercially reasonable
efforts to cure same. Subject to the foregoing, such Mandatory Cure
Items shall be cured or removed (by endorsement or otherwise in form
and substance reasonably acceptable to Purchaser) by Seller from the
Title Evidence prior to Closing. If Seller fails to so cure or remove
all Mandatory Cure Items, then Purchaser may either (A) terminate this
Agreement by notice to Seller, with a copy to Escrowee, in which event
the Xxxxxxx Money, together with all interest earned thereon, shall be
returned to Purchaser, and Seller shall reimburse Purchaser for the
cost of the Title Evidence and all other out of pocket due diligence
costs up to $50,000 (which reimbursement obligation shall survive the
termination or cancellation of this Agreement), and neither party shall
have any further liability to the other hereunder, except as otherwise
provided herein; or (B) elect to proceed to close with title to the
Project as it then is, with the right to deduct from the Purchase Price
a sum equal to the total amount necessary to cure or remove (by
endorsement or otherwise) the Mandatory Cure Items which may be cured
by the payment of a liquidated sum [not to exceed an aggregate amount
of $125,000 for Defects arising or first disclosed after the effective
date of the Title Commitment, and not arising due to Seller's willful
or intentional acts], provided that if such items are cured or removed
by endorsements, such endorsements must be reasonably satisfactory to
Purchaser.
8. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to Purchaser that the following matters
are true in all material respects as of the Contract Date and it shall be a
condition to Purchaser's obligation to close that the same shall be true in all
material respects as of the Closing Date:
(a) Descriptive Information. To Seller's knowledge, the
descriptive information concerning the Project set forth in Paragraph 1
hereof is complete, accurate, true and correct.
(b) Title. Owner owns (to Seller's knowledge), and pursuant to
the Contract and the Leases described in Schedule E, Seller holds an
absolute and unconditional right to acquire and convey, legal and
beneficial title to the Project, free and clear of all liens and
encumbrances other than the Permitted Exceptions.
(c) Seller's Deliveries. To Seller's knowledge, all of Seller's
Deliveries listed on Exhibit D attached hereto and all other items
delivered by Seller pursuant to this Agreement, including, but not
limited to, those required pursuant to Paragraphs 5 and 6 above, are
true, accurate, correct and complete in all respects, and fairly
present the information set forth in a manner that is not misleading.
The copies of all documents and other agreements delivered, furnished
or made available by Seller to Purchaser pursuant to this Agreement
constitute all of the Leases and other material agreements relating to
or affecting the Project, there being no "side" or other agreements,
written or oral, in force or effect, to which Seller is a party or to
which the Project is subject, which will be binding upon Purchaser
after the Closing.
250140-8 2/23/98
9
(d) Defaults. To Seller's knowledge, neither Owner nor Seller is
in default under any of the documents, recorded or unrecorded, referred
to in the Title Evidence, or under any of the Major Repair Contracts,
Contracts or Governmental Approvals (as such terms are defined in
Exhibit D attached hereto).
(e) Contracts. There are no material contracts of any kind
relating to the management, leasing, operation, maintenance or repair
of the Project, except (i) those "Contracts" listed on Exhibit H
attached hereto, all of which will be terminated by Seller, prior to
the termination of the New Lease (as hereinafter defined) and (ii) such
other Contracts as may, by the express terms thereof, upon the
expiration or termination of the New Lease, be terminated without
penalty or other payment by Seller (or its assignee or successor) upon
no more than thirty (30) days' prior notice.
(f) Intentionally Deleted.
(g) Utilities. To Seller's knowledge, no fact or condition
exists that would or could result in the termination or impairment of
the furnishing of service to the Project of water, sewer, gas,
electric, telephone, drainage or other such utility services. Seller
has received no notice to the effect that the equipment of the utility
companies servicing the Project is in violation of any applicable
governmental laws, ordinances, rules and regulations.
(h) Improvements. To Seller's knowledge, the Improvements were
approved by all Governmental Authorities having jurisdiction thereover,
and Seller has received no notice of any violation of any governmental
laws, ordinances, rules or regulations.
(i) Employees. To Seller's knowledge, Owner has no employees at
the Project and Purchaser shall have no obligation either subsequent to
the Closing or subsequent to the termination of the New Lease to hire,
retain or pay wages to any of Owner's or Seller's employees.
(j) Compliance with Laws and Codes. To Seller's knowledge, the
Project, and the use and operation thereof, is not in violation of any
material, applicable municipal and other governmental laws, ordinances,
regulations, codes (including Environmental Laws (as hereinafter
defined)), licenses, permits and authorizations (including
Environmental Permits (as hereinafter defined) and specifically
including, but not limited to, life safety codes), and there are
presently and validly in effect all material licenses, permits and
other authorizations (including Environmental Permits) necessary for
the use, occupancy and operation of the Project as it is presently
being operated. If any written notices of any alleged violations at or
about the Project have been or are issued prior to the Closing (a
"Violation"), Seller shall cure (or escrow sufficient funds at Closing
with the Title Company to cure) such Violations; provided, however,
that the maximum, aggregate amount that Seller shall be required to
spend to cure any Violations shall not exceed $50,000. If, prior to
Closing, Seller fails to so cure all Violations, or if Seller fails to
cause all Violations to be insured over by the Title Company (in form
and substance reasonably satisfactory to Purchaser),
250140-8 2/23/98
10
then Purchaser may (i) terminate this Agreement by notice to Seller, in
which event the Xxxxxxx Money, together with all interest earned
thereon, shall be returned to Purchaser, and Seller shall reimburse
Purchaser for the cost of the Title Evidence, not to exceed $10,000
(which reimbursement obligation shall survive the termination or
cancellation of this Agreement), and neither party shall have any
further liability to the other hereunder, except as otherwise provided
herein; or (ii) proceed to close by deducting from the cash otherwise
due at Closing and/or depositing in escrow with the Title Company the
amount necessary (up to $50,000, on a maximum, aggregate basis) to cure
or procure title insurance over each Violation (if such Violation is of
a liquidated nature and an ascertainable monetary amount or can be
endorsed over by the Title Company by the payment or deposit in escrow
of an ascertainable amount) and/or cause the Title Company to insure
and/or endorse over such Violation, provided that the terms of such
insurance and/or endorsements are reasonably satisfactory to Purchaser.
(k) Litigation. Except as indicated on Exhibit I, there are no
pending, or, to Seller's knowledge, threatened, judicial, municipal or
administrative proceedings affecting the Project in which either Seller
or, to Seller's knowledge, Owner is or will be a party by reason of
Owner's ownership or Seller's operation of the Project or any portion
thereof, including, without limitation, proceedings for or involving
condemnation, eminent domain, alleged building code or environmental or
zoning violations. No attachments, execution proceedings, assignments
for the benefit of creditors, insolvency, bankruptcy, reorganization or
other proceedings are pending, or, to Seller's knowledge, threatened,
against Seller or Owner, nor are any of such proceedings contemplated
by Seller. In the event any proceeding of the character described in
this Subparagraph 8(k) is initiated or threatened prior to Closing,
Seller shall promptly advise Purchaser thereof in writing.
(l) Intentionally deleted.
(m) Intentionally deleted.
(n) Re-Zoning. Seller has no knowledge of any pending or
threatened proceeding for the rezoning of the Project or any portion
thereof, or the taking of any other action by governmental authorities
that would have an adverse or material impact on the current value of
the Project.
250140-8 2/23/98
11
(o) Intentionally deleted.
(p) Authority. The execution and delivery of this Agreement by
Seller, and the performance of this Agreement by Seller, have been duly
authorized by Seller, and this Agreement is binding on Seller and
enforceable against Seller in accordance with its terms. No consent of
any creditor, investor, tenant, landlord, the Owner, judicial or
administrative body, Governmental Authority, or other governmental body
or agency, or other party to such execution, delivery and performance
by Seller is required. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in
a breach of, default under, or acceleration of, any agreement to which
Seller is a party or by which Seller or to Seller's knowledge the
Project are bound; or (ii) violate any restriction, court order,
agreement or other legal obligation to which Seller and/or to Seller's
knowledge the Project is subject.
(q) Real Estate Taxes. The most recent real estate "Tax Xxxx(s)"
for (and the only real estate tax bills applicable to) the Project are
attached hereto as (or described in) Exhibit J. Except as set forth on
Exhibit J attached hereto, Seller has not received notice of nor does
it have any knowledge of any proposed increase in the assessed
valuation of the Project. Except as described on Exhibit J attached
hereto, there is not now pending, any proceeding or application for a
reduction in the real estate tax assessment of the Project or any other
relief for any tax year. There are no outstanding agreements with
attorneys or consultants with respect to the Tax Bills that will be
binding on Purchaser or the Project after the expiration or termination
of the New Lease.
(r) Easements and Other Agreements. To Seller's knowledge,
neither Owner nor Seller is in default in complying with the terms and
provisions of any of the covenants, conditions, restrictions,
rights-of-way or easements constituting one or more of the Permitted
Exceptions.
(s) Existing Leases; Agreements to Acquire or Terminate; Lease
Controversies. Set forth on Exhibit K is a description of each and
every lease, ground lease, sublease or occupancy agreement affecting
the Project (the "Leases"). Seller has entered into binding agreements
with each of the tenants under said Leases pursuant to which Seller has
either acquired such tenant's interest in the Lease or obtained the
unconditional right or option to effect a termination of such Lease at
or prior to Closing. No controversy, complaint, negotiation or
renegotiation, proceeding, suit or litigation relating to any Lease, is
pending or, to Seller's knowledge, threatened, whether in any tribunal
or informally. Seller is and shall remain responsible after the Closing
Date for defending (or continuing) any such suit, proceeding or other
matter relating to periods prior to the Closing Date, and all damages,
loss, expenses and costs related thereto.
(t) Intentionally deleted.
(u) United States Person. Seller and to Seller's knowledge,
Owner is a "United States Person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as
250140-8 2/23/98
12
amended, and shall execute and deliver to Purchaser an "Entity
Transferor" certification at Closing.
(v) Intentionally deleted.
(w) Intentionally deleted.
(x) Intentionally deleted.
(y) Intentionally deleted.
(z) Disclosure. No representation or warranty made by Seller in
this Agreement contains any untrue statement of a material fact, or
omits to state a material fact necessary in order to make the
statements contained therein not misleading or necessary in order to
provide a prospective purchaser of the Project with adequate
information as to the Project and its management, operation,
maintenance and repair.
The representations and warranties made in this Agreement by Seller shall be
continuing, and shall be deemed remade by Seller as of the date of Closing with
the same force and effect as if in fact specifically remade at that time. All
representations and warranties made in this Agreement shall survive the Closing
for a period of one (1) year and shall not merge into any instrument of
conveyance delivered at the Closing except that the representations made in
subparagraph 8(b) shall not survive the Closing Date. Except as otherwise
provided herein, the effect of the representations and warranties made in this
Agreement shall not be diminished, abrogated or deemed to be waived by the Basic
Project Inspection, Assessment(s), or any other inspections or investigations
made by Purchaser. If any written reports delivered to Purchaser by Seller, or
if the professional written reports and studies prepared for Purchaser as part
of the Basic Project Inspection of establish the untruth of any representation
or warranty made by Seller hereunder prior to the Closing Date; and Purchaser
nevertheless elects to close under this Agreement, then Purchaser shall be
deemed to have waived the breach in question and shall not assert any
post-closing claim against Seller with respect to that breach. Such waiver shall
not limit Purchaser's right to refuse to close based on Seller's breach of a
representation and warranty under circumstances other than as set forth above.
8A. REPRESENTATIONS OF PURCHASER.
The execution and delivery of this Agreement by Purchaser and the
performance of this Agreement by Purchaser, have been duly authorized by
Purchaser, and this Agreement is binding on Purchaser and enforceable against
Purchaser in accordance with its terms. No consent of any creditor, investor,
judicial or administrative body, Governmental Authority, or other governmental
body or agency, or other party to such execution, delivery and performance by
Purchaser is required. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in a breach
of, default under, or acceleration of, any agreement to which Purchaser is a
party or otherwise bound; or (ii) violate any restriction, court order,
agreement or other legal obligation to which Purchaser is subject.
250140-8 2/23/98
13
9. COVENANTS OF SELLER.
Effective as of the execution of this Agreement, Seller hereby
covenants with Purchaser as follows:
(a) New Leases. Seller shall not amend any Lease in any material
respect nor, except in accordance with the terms of the New Lease,
execute any new lease, license, or other agreement affecting the
ownership or occupancy of the Project, without Purchaser's prior
written approval.
(b) New Contracts. Seller shall not enter into any new contract
with respect to the ownership and operation of the Project which would
be binding upon Purchaser or which will not be terminable on 30 days
notice after the expiration or termination of the New Lease, without
Purchaser's prior written consent.
(c) Intentionally deleted.
(d) Operation of Project. Seller shall operate and manage the
Project in the manner in which it is being operated, maintaining
present services, and shall maintain the Project in its same repair and
working order; and shall perform, when due, all of Seller's obligations
under the Leases, Contracts, Governmental Approvals and other
agreements relating to the Project and otherwise in accordance with
applicable laws, ordinances, rules and regulations affecting the
Project. Except as otherwise specifically provided herein, Seller shall
deliver the Project at Closing in substantially the same condition as
it is on the Contract Date, reasonable wear and tear excepted.
(e) Pre-Closing Expenses. All bills and invoices for labor,
goods, material and services of any kind relating to the Project and
utility charges, relating to the period prior to Closing and the costs
and expenses associated with any alterations, installations,
decorations and other work required to be performed under any and all
agreements affecting the Project have been or will, by the Closing, be
completed and paid for in full or insured over by the Title Company.
(f) Good Faith. All action required pursuant to this Agreement
that is necessary to effectuate the transaction contemplated herein
will be taken promptly and in good faith by Seller, and Seller shall
furnish Purchaser with such documents or further assurances as
Purchaser may reasonably require.
(g) No Assignment. Except as permitted in Section 18 hereof,
after the Contract Date and prior to Closing, Seller shall not assign,
alienate, lien, encumber or otherwise transfer all or any part of the
Project or any interest therein.
(h) Intentionally deleted.
(i) Change in Conditions. Seller shall promptly notify Purchaser
of the occurrence of any event or circumstance that makes any
representation or warranty of Seller to Purchaser under this Agreement
untrue or misleading in any material
250140-8 2/23/98
14
respect, or any covenant of Seller under this Agreement incapable or
less likely of being performed.
(j) Intentionally deleted.
9A. COVENANTS OF PURCHASER.
Good Faith. All action required pursuant to this
Agreement that is necessary to effectuate the transaction contemplated
herein will be taken promptly and in good faith by Purchaser, and
Purchaser shall furnish Seller with such documents or further
assurances as Seller may reasonably require.
10. ENVIRONMENTAL WARRANTIES AND AGREEMENTS.
(a) Definitions.
Unless the context otherwise requires:
(1) "Environmental Law" or "Environmental Laws" shall
mean: all applicable past, present or future federal, state and
local statutes, regulations, directives, ordinances, rules,
court orders, decrees, arbitration awards and the common law,
which pertain to environmental matters, contamination of any
type whatsoever or health and safety matters, as such have been
amended, modified or supplemented from time to time (including
all present and future amendments thereto and re-authorizations
thereof). Environmental Laws include, without limitation, those
relating to: (i) the manufacture, processing, use, treatment,
storage, disposal, generation of Hazardous Materials; (ii) air,
soil, surface, subsurface, groundwater pollution; (iii)
Releases; (iv) protection of wildlife, endangered species,
wetlands or natural resources; (v) Tanks; and (vi) notification
requirements relating to the foregoing. Without limiting the
above, Environmental Law also includes the following: (i) the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. xx.xx. 9601 et seq.), as amended ("CERCLA"); (ii)
the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act (42 U.S.C. xx.xx. 6901 et seq.),
as amended ("RCRA"); (iii) the Emergency Planning and Community
Right to Know Act of 1986 (42 U.S.C. xx.xx. 11001 et seq.), as
amended; (iv) the Clean Air Act (42 U.S.C. xx.xx. 7401 et seq.),
as amended; (v) the Clean Water Act (33 U.S.C. ss.1251 et seq.),
as amended; (vi) the Toxic Substances Control Act (15 U.S.C. ss.
2601 et seq.), as amended; (vii) the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. ss. 136 et seq.), as
amended; (viii) the Federal Safe Drinking Water Act (42 U.S.C.
ss. 300f et seq.), as amended; (ix) the Federal Radon and Indoor
Air Quality Research Act (42 U.S.C. ss. 7401 note, et seq.); (x)
any state, county, municipal or local statutes, laws or
ordinances similar or analogous to (including counterparts of)
any of the statutes listed above; and (xi) any rules,
regulations, directives, orders or the like adopted pursuant to
or implementing any of the above.
(2) "Environmental Permit" or "Environmental Permits"
shall mean licenses, certificates, permits, directives,
250140-8 2/23/98
15
requirements, registrations, government approvals, agreements,
authorizations, and consents which are required under or are
issued pursuant to an Environmental Law or are otherwise
required by Governmental Authorities.
(3) "Governmental Authority" or "Governmental
Authorities" shall mean any agency, commission, department or
body of any municipal, township, county, local, state or Federal
governmental or quasi-governmental regulatory unit, entity or
authority having jurisdiction or authority over all or any
portion of the Project or the management, operation, use or
improvement thereof.
(4) "Hazardous Conditions" refers to the existence or
presence of any Hazardous Materials on, in, under, at, the
Project or any portion thereof (including groundwater).
(5) "Hazardous Material" or "Hazardous Materials" shall
mean any chemical, pollutant, contaminant, pesticide, petroleum
or petroleum product or by product, asbestos,
asbestos-containing material, polychlorinated biphenyls
("PCBs"), solvents and waste oil, radioactive substance, solid
waste (hazardous or extremely hazardous), special, dangerous or
toxic waste, substance, chemical or material regulated, listed,
limited or prohibited under any Environmental Law.
(6) "Release" means any spill, discharge, leak,
migration, emission, escape, injection, dumping or other release
or threatened release of any Hazardous Material into the
environment, whether or not notification or reporting to any
Governmental Authority was or is required. Release includes,
without limitation, historical releases and the meaning of
Release as defined under CERCLA.
(7) "Qualified Consulting Firm" shall mean a
first-class nationally or regionally recognized environmental
engineering and/or consulting firm (the parties hereby
specifically recognize ERM, O'Brien & Xxxx, Xxxxxx Engineering,
Ground Water Technologies, Inc., ICF Kaiser
and Dames and Xxxxx as such firms).
(8) "Remedial Action" shall mean any and all corrective
or remedial action, preventative measures, response, removal,
transport, disposal, clean-up, abatement, treatment and
monitoring of Hazardous Materials or Hazardous Conditions,
required to be performed under Environmental Law, and includes
all studies, assessments, reports or investigations performed in
connection therewith to determine if such actions are necessary
or appropriate (including investigations performed to determine
the progress or status of any such actions), all occurring on or
after the Opening of Escrow.
(9) "Tank" or "Tanks" mean above-ground and underground
storage tanks, vessels and related equipment, including, but not
limited to, appurtenant pipes, lines and fixtures, containing or
previously containing any Hazardous Material or fraction
thereof.
250140-8 2/23/98
16
(10) "Remedial Costs" shall include all out-of-pocket
costs, liabilities, expenses and fees incurred on or after the
date of this Agreement in connection with Remedial Action,
including but not limited to: (i) the fees of environmental
consultants and contractors; (ii) reasonable attorneys' fees;
(iii) the costs associated with the preparation of reports, and
laboratory analysis (including charges for expedited results if
reasonably necessary); (iv) regulatory, permitting and review
fees; (v) costs of soil and/or water treatment (including
groundwater monitoring) and/or transport and disposal; and (iv)
the cost of supplies, equipment, material and utilities used in
connection with Remedial Action.
(b) Representations and Warranties.
(1) Seller has made available or delivered (or
will make available or deliver in accordance with Section 6) to
Purchaser originals (or true, complete and accurate copies) of
all of the documents in Seller's possession, custody or control
which include and/or relate to:
(x) All approvals, plans, specifications,
test borings, percolation tests, engineering studies,
surveys or other environmental data concerning the
Project;
(y) All permits (including Environmental
Permits), approvals, registration, Tank registration
and/or closure documentation, certificates,
applications, notices, orders, directives, legal
pleadings, correspondence, or other documents of any
nature which Owner or Seller, any tenant of Owner or
Seller, any of Owner's or Seller's
predecessors-in-title, or any tenant of Owner's or
Seller's predecessors- in-title have submitted to or
received from any Governmental Authority regarding
the Project and its use, compliance or non-compliance
with Environmental Laws; and
(z) The results of any investigation of the
Project including, but not limited to, Phase I or
Phase II site assessments, asbestos inspection and/or
removal reports, tests or investigations of soil or
other substrate, air, groundwater, surface water, or
the building interior, and any testing or
investigation results relating to the removal from or
abandonment at the Project of any Tanks.
(2) Except as disclosed on Exhibit N attached
hereto, Seller has received no notice that either the Project or
the operations of Seller at the Project, or of any
predecessor(including underlying groundwater), were, are or will
be in violation of any Environmental Laws and Environmental
Permits.
(3) Except as disclosed on Exhibit N attached
hereto, to Seller's knowledge, there have been no past and
Seller has not received any written notice of any pending or, to
250140-8 2/23/98
17
Seller's knowledge, threatened: (i) claims, complaints, notices,
correspondence or requests for information received by Seller
with respect to any violation or alleged violation of any
Environmental Law or Environmental Permit or with respect to any
corrective or remedial action for or cleanup of the Project or
any portion thereof, and (ii) written correspondence, claims,
complaints, notices, or requests for information from or to
Seller regarding any actual, potential or alleged liability or
obligation under or violation of any Environmental Law or
Environmental Permit with respect to the Project or any portion
thereof.
(4) Except as disclosed in Exhibit N attached
hereto, Seller has not received, and does not have in its
possession or control, any written notice alleging any Releases
of Hazardous Materials on, in, under, or at the Project or any
portion thereof.
(5) To Seller's knowledge, except as listed and
described in Exhibit M attached hereto, there are no Tanks in
use or abandoned at, on or under the Project. Any and all Tanks
which have heretofore been removed from or closed at the Project
by Seller, or to Seller's knowledge by any other person, have
been removed or closed in accordance with all Environmental
Laws.
(6) Except as disclosed on Exhibit N attached
hereto, to Seller's knowledge, the Project is not listed,
proposed or nominated for listing on the National Priorities
List pursuant to CERCLA (the "NPL"), the CERLIS or on any other
similar list of sites under any other Environmental Law.
(7) Except as disclosed on Exhibit N attached
hereto, Seller has not received, and does not have in its
possession or control, any written notice alleging or advising
the existence of any PCBs or friable or damaged asbestos at the
Project.
Notwithstanding the fact that certain of the foregoing
representations and warranties in this Subparagraph 10(b) are
made to Seller's knowledge, Seller shall nevertheless be deemed
to have knowledge of the information set forth in, or described
or discussed in, the Environmental Reports in Seller's
possession, including, but not limited to, those described on
Exhibit N attached hereto.
(c) Remediation. In the event the Additional Assessment,
indicates that there exists at the Project any Hazardous Conditions or
Hazardous Materials for which Purchaser's Qualified Consulting Firm
recommends Remedial Action as necessary or appropriate in order to
comply with Environmental
Laws, the following shall apply:
(1) If the Remedial Costs for all Remedial Action at
the Project are reasonably anticipated by such Qualified
Consulting Firm to be equal to or to exceed Fifty Thousand and
00/100 Dollars ($50,000), then Purchaser, at its sole option,
may either (A) proceed under subparagraph (2) below, with Seller
being obligated to deposit, from Seller's or its designee's
proceeds of sale at Closing or from Seller's own funds into the
Remediation Escrow therein
250140-8 2/23/98
18
described the sum of $50,000 plus one half the cost of the
Additional Assessment up to $12,500; or (B) on or before the
Approval Date, as the same may have been extended, terminate
this Agreement by notice to Seller, with a copy to Escrowee,
receive a refund of the Deposit, together with all interest
thereon and Seller shall reimburse Purchaser for one half the
cost of the Additional Assessment up to $12,500, whereupon the
parties shall be relieved of all further rights or obligations
hereunder, except for such rights and obligations as expressly
survive termination of this Agreement. The "reasonably
anticipated Remedial Costs" shall be the good faith estimate of
Remedial Costs as set forth in a proposal by Purchaser's
Qualified Consulting Firm. Prior to arriving at a final
estimate, Purchaser's Qualified Consulting Firm shall confer
with Seller's consultant, Xxxxxx X. Xxxxx, Consulting Engineer,
and the two consulting firms shall arrive at a Remedial Cost
that both agree is reasonable; and
(2) If the Remedial Costs for all Remedial Actions at
the Project are reasonably anticipated by a Qualified Consulting
Firm to be less than $50,000, then (A) the terms and provision
of this Agreement shall remain in full force and effect, and (B)
Seller shall be obligated to deposit into a "Remediation Escrow"
at Closing, from Seller's proceeds of sale or from Seller's own
funds an amount (not to exceed $50,000) equal to 100% of the
reasonably anticipated Remedial Costs as determined by such
Qualified Consulting Firm plus one half the cost of the
Additional Assessment up to $12,500. Purchaser shall be entitled
to draw on the escrowed funds (including interest) from time to
time after Closing for payment of (or reimbursement for)
Remedial Costs (including, but not limited to, Seller's share of
the costs of any Additional Assessment related to such Hazardous
Condition) incurred in connection with the Remedial Action
provided that all work shall be completed within one year after
the Closing. Any escrowed funds remaining in the Remediation
Escrow upon completion of the Remedial Action shall be promptly
repaid to Seller or its designee. In the event funds are
escrowed pursuant to this provision, Purchaser and Seller shall
enter into a Remediation Escrow and Disbursement Agreement
reasonably satisfactory to Purchaser, Seller and their
respective counsel at Closing.
(d) Reservation of Rights. Purchaser shall retain all
rights under statutory and common law not explicitly waived or
released in this Agreement, including, but not limited to, any
rights that may exist under CERCLA or the New York State
Navigation Law to obtain contribution. In the event of any
litigation pursuant to this Subparagraph 10(d), the prevailing
party shall be entitled to recover from the other party its
reasonable attorney, consultant and witness fees and litigation
costs.
250140-8 2/23/98
19
11. ADDITIONAL CONDITIONS PRECEDENT TO CLOSING.
In addition to the other conditions enumerated in this Agreement, it
shall be an additional Condition Precedent to Purchaser's obligation to close
hereunder that except as discovered by Purchaser during the Inspection Period or
as should have been discovered at such time with the use of commercially
customary and reasonable due diligence:
(a) Physical Condition. The physical condition of the Project
shall be substantially the same on the Closing Date as on the Approval
Date, reasonable wear and tear excepted, unless the alteration of said
physical condition is the result of Damage (as defined in Paragraph 16
hereof).
(b) Pending Actions. At Closing, there shall be no
administrative agency, litigation or governmental proceeding of any
kind whatsoever, pending or threatened, that, after Closing, would, in
Purchaser's sole discretion, materially and adversely affect the value
or marketability of the Project, or the ability of Purchaser to operate
the Project in the manner it is being operated on the Contract Date.
(c) Real Estate Taxes. As of the Closing Date, there shall have
been no actual or pending reassessment of the value of the Project for
the purpose of calculating real estate taxes.
(d) Zoning. On the Closing Date, no proceedings shall be pending
or threatened that could or would involve the change, redesignation,
redefinition or other modification of the zoning classifications of (or
any building, environmental, or code requirements applicable to) the
Project, or any portion thereof, or any property adjacent to the
Project.
(e) Flood Insurance. As of the Closing Date, if the Project is
located in a flood plain, Purchaser shall have obtained flood plain
insurance in form and substance acceptable to Purchaser.
(f) Utilities. On the Closing Date, no moratorium or proceeding
shall be pending or threatened affecting the availability, at regular
rates and connection fees, of sewer, water, electric, gas, telephone or
other services or utilities servicing the Project.
(g) Termination of Leases. As of the Closing Date, all leases
affecting the Project including without limitation those Leases
described on Exhibit K shall be duly and unconditionally terminated and
cancelled of record or, at Seller's option, assigned to Purchaser. In
the event Seller elects to arrange for the assignment of the Leases to
Purchaser, Seller shall be responsible for and shall furnish Purchaser
with an indemnity agreement relating to all transfer taxes imposed on
the assignments. All obligations of each Landlord under such leases,
which shall accrue prior to the termination thereof, shall be fulfilled
and fully performed.
(h) Execution of New Lease. Seller and Purchaser have entered
into a triple net lease (the "New Lease") commencing as of the Closing
Date in the form annexed hereto as Exhibit Q.
250140-8 2/23/98
20
12. INTENTIONALLY DELETED.
13. SELLER'S CLOSING DELIVERIES.
At Closing (or such other times as may be specified below), Seller
shall deliver or cause to be delivered to Purchaser the following, in form and
substance acceptable to Purchaser:
(a) Deed. The Deed, executed by Owner, in recordable form
conveying good and marketable fee simple absolute title to the Project
to Purchaser, free and clear of all liens, claims and encumbrances
except for the Permitted Exceptions.
(b) Intentionally deleted.
(c) General Assignment. An assignment, executed by Seller to
Purchaser of all the right, title and interest in and to the
Governmental Approvals which relate to the ownership and/or operation
of the Project, and which do not specifically relate to Seller's
business.
(d) Intentionally deleted.
(e) Intentionally deleted.
(f) Keys. Keys to all exterior doors located in the Project.
(g) Affidavit of Title. An affidavit (without warranty of title)
executed by Seller and in form and substance reasonably acceptable to
the Title Company, and as required by the Title Company to issue the
Title Policy with the Endorsements and otherwise in accordance with
Paragraph 7 hereof and with regard to Owner such documents as are
required under the Contract.
(h) Intentionally deleted.
(i) New Lease. A fully executed copy of the New Lease, in
accordance with and upon the terms and conditions set forth in the form
of lease annexed hereto as Exhibit Q.
(j) Intentionally deleted.
(k) Closing Statement. A closing statement conforming to the
proration and other relevant provisions of this Agreement.
(l) Plans and Specifications. All plans and specifications in
Seller's possession and control or otherwise available to Seller.
(m) Tax Bills. Copies of the most currently available Tax Bills.
(n) Entity Transfer Certificate. Entity Transfer Certification
confirming that neither Owner nor Seller is a "United States Person"
within the meaning of Section 1445 of the Internal Revenue Code of
1986, as amended.
(o) Intentionally deleted.
(p) Intentionally deleted.
250140-8 2/23/98
21
(q) Certificate as to Representations and Warranties. A
certificate from Seller as to the truth, accuracy and completeness of
the representations and warranties made by it hereunder as of the
Closing Date.
(r) Other. Such other documents and instruments as may
reasonably be required by Purchaser, its (or its underwriters' or
lenders') counsel or the Title Company and that may be necessary to
consummate this transaction and to otherwise effect the agreements of
the parties hereto.
For a period of one (1) year after Closing, each of the parties shall execute
and deliver to the other such further documents and instruments as the
requesting party shall reasonably request to effect this transaction and
otherwise effect the agreements of the parties hereto.
14. PRORATIONS AND ADJUSTMENTS.
(a) Such items that are customarily prorated in transactions of
this nature shall be ratably prorated between Purchaser and Seller as
of the Closing Date, other than those items as to which, pursuant to
the New Lease, Seller is fully responsible and obligated to make direct
payment of all amounts due and owing to the appropriate creditors,
which items shall be prorated and adjusted as at and upon the
expiration or earlier termination of the New Lease.
For purposes of calculating prorations, Purchaser shall be
deemed to be in title to the Project, and therefore entitled to the
income therefrom and responsible for the expenses thereof, for the
entire day upon which the Closing occurs. All such prorations shall be
made on the basis of the actual number of days of the year and month
that shall have elapsed as of the Closing Date. The amount of such
prorations shall be adjusted at Closing, as and when complete and
accurate information becomes available. Seller and Purchaser agree to
cooperate and use their good faith and diligent efforts to make such
adjustments no later than thirty (30) days after the Closing. Bills
received after Closing that relate to expenses incurred, services
performed or other amounts allocable to the period prior to the Closing
Date shall be paid by Seller. Any amounts not so paid by Seller shall
be paid in accordance with the New Lease. The obligations of the
parties pursuant to this Paragraph 14 shall survive the Closing.
15. CLOSING EXPENSES.
Seller will pay, or cause to be paid, the entire cost of any fees
associated with terminating or assigning each of the Leases, prepayment of debt
encumbering the Project, all bond transfer costs, the fees of Seller's attorney,
all documentary and state, county and municipal transfer taxes relating to the
instruments of conveyance contemplated herein, and the cost of any special or
specific escrows hereunder. Purchaser will pay the fees of Purchaser's attorney,
the cost of recording the Deed, and the cost of the Title Evidence.
250140-8 2/23/98
22
16. DESTRUCTION, LOSS OR DIMINUTION OF PROJECT
If, prior to Closing, all or any portion of the Project is damaged by
fire or other natural casualty (collectively "Damage"), or is taken or made
subject to condemnation, eminent domain or other governmental acquisition
proceedings (collectively "Eminent Domain"), then the following procedures shall
apply:
(a) If the aggregate cost of repair or replacement of the
Damage (collectively, "repair and/or replacement") is $1,450,000.00 or
less, in the opinion of Purchaser's and Seller's respective engineering
consultants, Purchaser shall close and take the Project as diminished
by such events, subject to a reduction in the Purchase Price applied
against the cash otherwise due at the Closing, in the full amount of
the estimated cost of such repair and/or replacement not to exceed
$1,450,000.00. Any casualty insurance shall be the sole property of
Seller.
(b) If the aggregate cost of repair and/or replacement is
greater than $1,450,000.00, in the opinion of Purchaser's and Seller's
respective engineering consultants, or in the event of an Eminent
Domain, then either Purchaser or Seller may elect to terminate this
Agreement by notice to the other party, with a copy to Escrowee,
whereupon Purchaser shall receive an immediate return of the Xxxxxxx
Money, (the interest earned thereon to be split between the parties),
and neither party shall have any further liability to the other
hereunder, except as otherwise provided herein. If neither party elects
to terminate this Agreement within thirty (30) days of the casualty,
the parties shall proceed to close, the New Lease shall, upon and after
the Closing Date be in full force and effect, Tenant will rebuild or
restore the Project as provided in the New Lease, and the insurance
proceeds shall be applied, as provided in the New Lease.
(c) In the event of a dispute between Seller and Purchaser
with respect to the cost of repair and/or replacement with respect to
the matters set forth in this Paragraph 16, an engineer designated by
Seller and an engineer designated by Purchaser shall select an
independent engineer licensed to practice in the jurisdiction where the
Project is located who shall resolve such dispute. All fees, costs and
expenses of such third engineer so selected shall be shared equally by
Purchaser and Seller.
17. DEFAULT.
(a) Default by Seller. If any of Seller's representations and
warranties contained herein shall not be true and correct in any
material respect on the Contract Date and continuing thereafter through
and including the Closing Date, or if Seller shall have failed in any
material respect to perform any of the covenants and agreements
contained herein to be performed by Seller within the time for
performance as specified herein (including Seller's obligation to
close), and such failure shall continue for more than twenty (20) days
after written notice, Purchaser may elect either to (i) terminate
Purchaser's obligations under this Agreement by notice to Seller, with
a copy to Escrowee, in which event the Xxxxxxx Money, together with all
interest earned thereon, shall
250140-8 2/23/98
23
be returned immediately to Purchaser, and Seller shall reimburse
Purchaser for the cost of the Title Evidence [not to exceed $10,000]
(which reimbursement obligation shall survive the termination or
cancellation of this Agreement), or (ii) file an action for specific
performance. Seller hereby covenants and agrees that in the event that
(x) Purchaser elects (i) above and (y) as a result of, due to, or
because of any willful or intentional act of Seller (A) any of Seller's
representations and warranties contained herein shall not be true and
correct in all material respects on the Closing Date, (B) any of the
covenants and agreements are not performed in all materials respects by
Seller within the time for performance as specified herein (including
Seller's obligation to close), and/or (C) any of the Conditions
Precedent shall not have been satisfied in all material respects,
Purchaser may (in addition to any and all other remedies of Purchaser
hereunder) file an action for damages actually suffered by Purchaser by
reason of Seller's defaults hereunder (including, but not limited to,
attorneys' fees, engineering fees, fees of environmental consultants,
appraisers' fees, and accountants' fees incurred by Purchaser in
connection with this Agreement and any action hereunder) provided,
however, that in any such event Purchaser's monetary damages shall not
exceed $1,000,000. The foregoing covenant shall survive any termination
of this Agreement. Nothing in this Subparagraph 17(a) shall be deemed
to in any way limit or prevent Purchaser from exercising any right of
termination provided to Purchaser elsewhere in this Agreement.
Notwithstanding the foregoing, in the event Seller defaults in any of
its post-closing obligations under Paragraph 14 or Paragraph 23 hereof,
Purchaser shall have all of its remedies at law or in equity on account
of such default. Anything to the contrary contained herein
notwithstanding, in the event Seller is unable to close in a timely
fashion due to a default by Owner under the Contract, or by any party,
other than Seller, to a Lease, and provided that Seller institutes a
legal action within ten (10) business days of the original Closing Date
and take all other actions as may be necessary to specifically enforce
Owner or such other party to perform under the Contract or other
agreement with Seller and convey the Project to Purchaser, Purchaser
shall forbear from canceling this Contract or exercising any other
remedies granted to it hereunder for up to 90 days following the
Closing Date. In the event that Seller is unable to close before the
end of such extended period, Purchaser may cancel this Agreement by a
notice to Seller and Escrowee and shall receive a return of the Escrow
Money plus all of its out of pocket due diligence costs.
(b) Default by Purchaser. In the event Purchaser defaults in
its obligations to close the purchase of the Project, then Seller's
sole and exclusive remedy shall be to cause the Escrowee to deliver the
Xxxxxxx Money, together with all interest earned thereon, to Seller,
the amount thereof being fixed and liquidated damages, it being
understood that Seller's actual damages in the event of such default
are difficult to ascertain and that such proceeds represent the
parties' best current estimate of such damages. Seller shall have no
other remedy for any default by Purchaser; provided, however that,
notwithstanding the foregoing, in the event Purchaser defaults in any
of its post-closing obligations under Paragraph 14 or Paragraph 23
hereof, Seller shall have all of its remedies at law or in equity on
account of such default.
250140-8 2/23/98
24
18. SUCCESSORS AND ASSIGNS.
The terms, conditions and covenants of this Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective
nominees, successors, beneficiaries and assigns; provided, however, no
conveyance, assignment or transfer of any interest whatsoever of, in or to the
Project shall be made by Seller during the term of this Agreement. Purchaser may
assign all or any of its right, title and interest under this Agreement to (i)
any third party intermediary (an "Intermediary") in connection with a 1031
exchange, including, but not limited to, Chicago Deferred Exchange Corporation,
and (ii) First Industrial Realty Trust, Inc., a Maryland corporation ("First
Industrial"), or to any corporate or partnership entity affiliated with, or
related to, First Industrial ("Affiliate"). The foregoing notwithstanding,
Seller may assign its rights or delegate its duties hereunder to any Affiliate
who succeeds to all of its interests in the Project and the Leases. First
Industrial is a publicly-owned real estate investment trust that owns all of the
capital stock of Purchaser. For purposes of this Paragraph 18, an Affiliate
shall, without limitation, include any entity having substantially common
ownership or management with Purchaser or Seller, including with respect to
Purchaser, First Industrial and First Industrial, L.P., a Delaware limited
partnership. No such assignee shall accrue any obligations or liabilities
hereunder until the effective date of such assignment. In addition to its right
of assignment, Purchaser shall also have the right, exercisable prior to
Closing, to designate any Affiliate or Intermediary, as the grantee or
transferee of any or all of the conveyances, transfers and assignments to be
made by Seller at Closing hereunder, independent of, or in addition to, any
assignment of this Agreement. In the event of an assignment of this Agreement by
either party, its assignee shall be deemed to be the Purchaser or Seller (as the
case may be) hereunder for all purposes hereof, and shall have all rights of the
assigning party hereunder (including, but not limited to, the right of further
assignment), provided that the Assignor shall remain fully liable for all
liability hereunder. In the event that an Affiliate shall be designated as a
transferee hereunder, that transferee shall have the benefit of all of the
representations and rights which, by the terms of this Agreement, are
incorporated in or relate to the conveyance in question. In the event either
party elects to assign this Agreement to an Intermediary, the other party shall
cooperate in connection with such election, including, but not limited to, by
executing an acknowledgment of such assignment of this Agreement to the
Intermediary and by executing such additional documents as may be reasonably
necessary to effect such assignment, provided that the non-assigning party shall
not be required to take title to the Project or incur any costs with respect to
any ss. 1031 exchange.
250140-8 2/23/98
25
19. LITIGATION.
In the event of litigation between the parties with respect to the
Project, this Agreement, the Escrow Agreement, the performance of their
respective obligations hereunder or the effect of a termination under this
Agreement or the Escrow Agreement, the losing party shall pay all costs and
expenses incurred by the prevailing party in connection with such litigation,
including, but not limited to, reasonable attorneys' fees of counsel selected by
the prevailing party. Notwithstanding any provision of this Agreement to the
contrary, the obligations of the parties under this Paragraph 19 shall survive
termination of this Agreement.
20. NOTICES.
Any notice, demand, request or other communication which may be
permitted, required or desired to be given in connection herewith shall be given
in writing and directed to Seller and Purchaser as follows:
Seller: Di Giorgio Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xx. Xxxxxxx X. Xxxx, Chief
Financial Officer and Executive
Vice President
With a copy to
its attorneys: Xxxxx Xxxxxx Xxxxxxxxx Xxxxx
Tischman Xxxxxxx & Xxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn.: Xxxxxxxx X. Xxxxx, Esq.
Purchaser: FR Acquisitions, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xx. Xxxxxxxxx Yap and
Mr. Xxxxx XxXxxxxx
With a copy to its
regional office: First Industrial
000 Xxxxxxxxx Xxxxxxxxx
P.O. Box 830
Syosset, New York 11791
Attn.: Xx. Xxx Xxxxxx,
Senior Regional Director
With a copy to
its attorneys: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Miles X. Xxxxxx, Esq.
250140-8 2/23/98
26
With a copy to its
general counsel: Barrack Ferazzano Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx
000 X. Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx Xxxxxxxx-Xxxxx, Esq.
Notices shall be deemed properly delivered and received (i) the same day when
personally delivered; or (ii) one (1) business day after timely deposit with
Federal Express or other nationally recognized commercial overnight courier,
charges prepaid; or (iii) the same day when sent by confirmed facsimile; or (iv)
three (3) business days after timely deposit in the United States Mail, by
registered mail, return receipt requested, postage prepaid.
The attorneys for the parties hereto are hereby authorized on
behalf of their respective client to (i) deliver any notice permitted or
required by the terms of this Agreement and (ii) extend, in writing, any of the
time limitations set forth in this Agreement, by a notice delivered in
accordance with this paragraph 20.
21. BENEFIT.
This Agreement is for the benefit only of the parties hereto and their
nominees, successors, beneficiaries and assignees as permitted in Paragraph 18
and no other person or entity shall be entitled to rely hereon, receive any
benefit herefrom or enforce against any party hereto any provision hereof.
22. LIMITATION OF LIABILITY.
Upon the Closing, Purchaser shall neither assume nor undertake to pay,
satisfy or discharge any liabilities, obligations or commitments of Seller or
Owner other than those specifically agreed to between the parties and set forth
in this Agreement. Purchaser shall not assume or discharge any debts,
obligations, liabilities or commitments of Seller, whether accrued now or
hereafter, fixed or contingent, known or unknown.
23. BROKERAGE.
Each party hereto represents and warrants to the other that it has
dealt with no brokers or finders in connection with this transaction, except for
Island Realty Services, Inc. ("Seller's Broker"). Seller shall pay any brokers'
commission due to Seller's Broker pursuant to the terms of a separate agreement
between Seller and Seller's Broker. Seller and Purchaser each hereby indemnify,
protect and defend and hold the other harmless from and against all losses,
claims, costs, expenses, damages (including, but not limited to, attorneys' fees
of counsel selected by the indemnified party) resulting from the claims of any
broker, finder, or other such party, other than Seller's Broker, claiming by,
through or under the acts or agreements of the indemnifying party. The
obligations of the parties pursuant to this Paragraph 23 shall survive the
Closing or any earlier termination of this Agreement.
24. REASONABLE EFFORTS
Seller and Purchaser shall use their reasonable, diligent and good
faith efforts, and shall cooperate with and assist each other
250140-8 2/23/98
27
in their efforts, to obtain such consents and approvals of third parties
(including, but not limited to, governmental authorities), to the transaction
contemplated hereby, and to otherwise perform as may be necessary to effectuate
the transfer of the Project to Purchaser in accordance with this Agreement.
25. EXCULPATION OF AFFILIATES
The Affiliates of either party shall not be liable for the obligations
and liabilities of such party under this Agreement. Without limitation on the
foregoing, none of the shareholders, officers, employees, representatives or
agents of either party shall be personally liable for the satisfaction of
obligations of any nature whatsoever of the party under this Agreement to which
it is an Affiliate.
26. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the transaction
contemplated herein, and all prior or contemporaneous oral agreements,
understandings, representations and statements, and all prior written
agreements, understandings, letters of intent and proposals are merged
into this Agreement. Neither this Agreement nor any provisions hereof
may be waived, modified, amended, discharged or terminated except by an
instrument in writing signed by the party against which the enforcement
of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
Neither party has relied upon any statement of the other party except
as set forth in this Agreement.
(b) Time of the Essence. Time is of the essence of this
Agreement. If any date herein set forth for the performance of any
obligations by Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should be on a Saturday, Sunday
or legal holiday, the compliance with such obligations or delivery
shall be deemed acceptable on the next business day following such
Saturday, Sunday or legal holiday. As used herein, the term "legal
holiday" means any state or federal holiday for which financial
institutions or post offices are generally closed in the State of New
York for observance thereof.
(c) Conditions Precedent. The obligations of Purchaser to make
the payments described in Paragraph 2 and to close the transaction
contemplated herein are subject to the express Conditions Precedent set
forth in this Agreement, each of which is for the sole benefit of
Purchaser and may be waived at any time by notice thereof from
Purchaser to Seller. The waiver of any particular Condition Precedent
shall not constitute the waiver of any other.
(d) Seller's Representations and Warranties. Relative to each
representation and warranty made by Seller in this Agreement, Seller
shall be charged with only that knowledge and information of its
officers and directors, and the actual and constructive knowledge of
such persons will be imputed to Seller.
250140-8 2/23/98
28
(e) Construction. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of
the fact that it may have been prepared by counsel for one of the
parties, it being recognized that both Seller and Purchaser have
contributed substantially and materially to the preparation of this
Agreement. The headings of various Paragraphs in this Agreement are for
convenience only, and are not to be utilized in construing the content
or meaning of the substantive provisions hereof.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
regard to conflicts of laws principals.
(g) Partial Invalidity. The provisions hereof shall be deemed
independent and severable, and the invalidity or partial invalidity or
enforceability of any one provision shall not affect the validity of
enforceability of any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Purchase and Sale on the date first above written.
SELLER:
Di GIORGIO CORP.,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
PURCHASER:
FR ACQUISITIONS, INC.,
a Maryland corporation
By:
Name:
Title:
250140-8 2/23/98
29
SCHEDULE OF EXHIBITS
A Legal Description of Land
B Intentionally Deleted.
C Xxxxxxx Money Escrow Instructions
D Seller's Deliveries
E Title Exceptions Disclosed by Purchaser's
Title Commitment
F Intentionally Deleted
G Surveyor's Certification
H Service Contracts
I Pending Litigation
J Real Estate Tax Bills
K Existing Leases; Agreements to Acquire or
Terminate; Lease Controversies
L Intentionally Deleted
M Tanks
N Seller's Environmental Tests and
Government Orders
O Intentionally Deleted
P Intentionally Deleted
Q Form of New Lease
250140-8 2/23/98
30
EXHIBIT A
Legal Description of the Land
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING XXXX
XXXXX XXXXX, XXXX XX XXXXXXXXX, XXXXXX OF NASSAU AND STATE OF NEW YORK, BOUNDED
AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY SIDE OF EAST GATE BOULEVARD SOUTH, DISTANT
369.60 FEET SOUTHERLY FROM THE SOUTHERLY END OF A CURVE HAVING A RADIUS OF 40.00
FEET AND A LENGTH OF 62.83 FEET WHICH CURVE CONNECTS THE SAID WESTERLY SIDE OF
EAST GATE BOULEVARD SOUTH WITH THE SOUTHERLY SIDE OF ZECKENDORF BOULEVARD;
RUNNING THENCE ALONG SAID WESTERLY SIDE OF EAST GATE BOULEVARD SOUTH THE
FOLLOWING THREE COURSES AND DISTANCES:
(1) SOUTH 04 DEGREES 35 MINUTES 24 SECONDS EAST, 590.35 FEET;
(2) SOUTHERLY ALONG THE ARC OF A CIRCLE BEARING TO THE RIGHT AND
HAVING A RADIUS OF 65.00 FEET A DISTANCE ALONG SAID ARC OF
63.06 FEET;
(3) SOUTHERLY ALONG THE ARC OF A CIRCLE BEARING TO THE LEFT HAVING A RADIUS
OF 50.00 FEET A DISTANCE ALONG SAID ARC OF 115.98 FEET TO LAND OF THE
PEOPLE OF THE STATE OF NEW YORK AS MEADOWBROOK STATE PARKWAY;
THENCE ALONG SAID LAST MENTIONED LAND THE FOLLOWING TWO COURSES OF
DISTANCE:
(1) NORTHWESTERLY ALONG THE ARC OF A CIRCLE BEARING TO THE RIGHT
AND HAVING A RADIUS OF 2030.00 FEET A DISTANCE ALONG SAID ARC
OF 945.89 FEET;
(2) NORTHERLY ALONG THE ARC OF A CIRCLE BEARING TO THE LEFT AND HAVING A
RADIUS OF 700.00 FEET A DISTANCE ALONG SAID ARC OF 245.42 FEET TO THE
LAND OF THE LONG ISLAND RAILROAD COMPANY;
THENCE NORTHERLY ALONG SAID LAST MENTIONED LAND ALONG THE ARC OF A
CIRCLE BEARING TO THE LEFT HAVING A RADIUS OF 500.00 FEET A DISTANCE
ALONG SAID ARC OF 84.01 FEET;
THENCE NORTH 85 DEGREES 24 MINUTES 36 SECONDS EAST, 910.92 FEET TO THE POINT OR
PLACE OF BEGINNING.
FOR INFORMATION ONLY: SECTION 44 BLOCK 72 XXXX 0 XXX 0.
XXXX XXXX XXXXXXXXX XX NOW KNOWN AS XXXXXXX DRIVE.
250140-8 2/23/98
31
EXHIBIT C
Xxxxxxx Money Escrow Instructions
THESE XXXXXXX MONEY ESCROW INSTRUCTIONS ("Instructions") are entered
into as of this _______ day of February, 1998 by and among Di GIORGIO CORP., a
Delaware corporation("Seller"), FR ACQUISITIONS, INC., a Maryland corporation
("Purchaser"), and CHICAGO TITLE INSURANCE COMPANY ("Escrowee").
WHEREAS, Purchaser and Seller entered into an Agreement of Purchase and
Sale, dated February __, 1998 (the "Agreement"), for the purchase and sale of
the Project (as defined in the Agreement and hereinafter collectively referred
to as the "Property"); and
WHEREAS, the parties desire to enter into escrow instructions with
Escrowee pursuant to which Purchaser shall deposit xxxxxxx money, as required
under the Agreement (the "Escrow").
NOW, THEREFORE, in consideration of the mutual covenants contained in
these Instructions, and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Deposit.
(a) Xxxxxxx Money. Pursuant to the terms and provisions of the
Agreement, and within two (2) business days after the date of the
Agreement, Purchaser has deposited or will deposit with Escrowee
xxxxxxx money in the sum of Five Hundred Thousand and 00/100 Dollars
($500,000.00) (the "Xxxxxxx Money").
(b) Investment of Xxxxxxx Money. Escrowee shall invest the
Xxxxxxx Money in interest-bearing securities, bank deposits and/or
so-called "money market funds" established and managed by nationally
recognized firms, as selected by Purchaser. All interest earned on the
Xxxxxxx Money shall be paid as specifically provided in these
Instructions.
2. Application of Xxxxxxx Money at Closing and Upon Termination of
Agreement.
(a) At Closing. At Closing (as defined in the Agreement), (i)
the Xxxxxxx Money shall be delivered by Escrowee to Seller and credited
against the payment of the Purchase Price, and (ii) all interest earned
thereon shall be split equally between the parties, whereupon the
Escrow shall terminate.
(b) Upon Termination of Contract. Notwithstanding the
foregoing, the Agreement provides certain circumstances in which
Purchaser shall have the unilateral right to terminate the Agreement,
(i) pursuant to Section 6 thereof, on or before two (2) days after the
last day of the Inspection Period (as defined in the Agreement) (the
"Approval Date"), and (ii) pursuant to certain other specified
instances expressly set forth in the Agreement, in each instance by
delivery of written notice to Seller and Escrowee (the "Termination
Notice"). Furthermore, under the terms of the Agreement, the Approval
Date may be unilaterally extended by Purchaser under certain
circumstances, pursuant to Section 6 hereof; however,
250140-8 2/23/98
32
Purchaser's election to so extend the Approval Date (the "Extended
Approval Date") shall be evidenced by delivery, on or before the
above-specified Approval Date, of written notice to Seller and Escrowee
(the "Extension Notice"). Upon Escrowee's receipt of the Termination
Notice (provided Escrowee receives such Termination Notice on or before
the Approval Date or the Extended Approval Date, whichever is
applicable, or if Purchaser specifies that the Termination Notice is
being delivered pursuant to Section 7(e), 10(c) or 16(b) of the
Agreement, whichever is applicable), Escrowee shall immediately and
simultaneously (x) deliver a copy of the Termination Notice to Seller,
in the manner provided in Paragraph 5 below, and (y) disburse the full
amount of the Xxxxxxx Money to Purchaser and shall disburse all
interest earned thereon equally between the parties.
3. Default.
(a) Purchaser's Default. In the event that Purchaser breaches
or defaults under the obligations imposed on it under the Agreement,
and Seller desires to obtain the Xxxxxxx Money from Escrowee (pursuant
to the terms of the Agreement), Seller shall be required to present to
Escrowee: Seller's affidavit of default (the "Default Affidavit"),
executed under penalty of perjury by an authorized representative of
Seller, certifying to Purchaser and Escrowee that Purchaser is in
default under the Agreement and, therefore, Seller is entitled to the
Xxxxxxx Money proceeds. Upon receipt of the Default Affidavit from
Seller, Escrowee shall (i) deliver a copy of the Default Affidavit to
Purchaser, in the manner as provided in Paragraph 5 below and (ii) if,
within four (4) business days after the date on which the Default
Affidavit is deemed to be delivered to Purchaser (pursuant to Paragraph
5 below), Escrowee has not received from Purchaser a notice ("Objection
Notice") objecting to Escrowee's compliance with the Default Affidavit,
Escrowee shall deliver the Xxxxxxx Money, together with all interest
earned thereon, to Seller.
(b) Seller's Default. In the event that after the Approval
Date, as the case may be, Seller breaches or defaults under the
obligations imposed on it under the Agreement, and Purchaser desires
the return of the Xxxxxxx Money from Escrowee (pursuant to the terms of
the Agreement), Purchaser shall be required to present to Escrowee: its
own Default Affidavit executed under penalty of perjury by an
authorized representative of Purchaser certifying to Seller and
Escrowee that Seller is in default under the Agreement and, therefore,
Purchaser is entitled to return of the Xxxxxxx Money proceeds. Upon
receipt of the Default Affidavit from Purchaser, Escrowee shall (i)
deliver a copy of the Default Affidavit to Seller as provided in
Paragraph 5 below, and (ii) if, within four (4) business days after the
date on which the Default Affidavit is deemed to be delivered to Seller
(pursuant to Paragraph 5 below), Escrowee has not received from Seller
an Objection Notice, objecting to Escrowee's compliance with the
Default Affidavit, Escrowee shall deliver the Xxxxxxx Money, together
with all interest earned thereon, to Purchaser.
4. Objection Notices. If Escrowee receives an Objection Notice from
either Seller or Purchaser within the time period set forth in
Paragraph 3 above, then Escrowee shall refuse to
250140-8 2/23/98
33
comply with the Default Affidavit then in question ("Objectionable
Default Affidavit") until Escrowee receives (a) joint written
instructions executed by both Purchaser and Seller, or (b) a final
non-appealable order with respect to the disposition of the Xxxxxxx
Money from a federal or state court of competent jurisdiction ("Court
Order"), in either of which events Escrowee shall then disburse the
Xxxxxxx Money and all interest earned thereon, in accordance with such
direction or order, as the case may be.
5. Notices. Notices hereunder shall be deemed properly delivered and
received (a) the same day when personally delivered; or (b) one (1)
business day after timely deposit with Federal Express or other
nationally recognized commercial overnight courier, charges prepaid;
(c) the same day when sent by confirmed facsimile or (d) three (3)
business days after timely deposit in the U.S. Mail, by registered or
certified mail, return receipt requested, postage prepaid, to the
parties as set forth below:
Seller: Di Giorgio Corp.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xx. Xxxxxxx X. Xxxx, Chief
Financial Officer and Executive
Vice President
With a copy to
its attorneys: Xxxxx Cummis Xxxxxxxxx Xxxxx
Tischman Xxxxxxx & Xxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn.: Xxxxxxxx X. Xxxxx, Esq.
Purchaser: FR Acquisitions, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xx. Xxxxxxxxx Yap and
Mr. Xxxxx XxXxxxxx
With a copy to its
regional office: First Industrial
000 Xxxxxxxxx Xxxxxxxxx
P.O. Box 830
Syosset, New York 11791
Attn.: Xx. Xxx Xxxxxx
Senior Regional Director
With a copy to
its attorneys: Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Miles X. Xxxxxx, Esq.
250140-8 2/23/98
34
With a copy to its
general counsel: Barrack Ferazzano Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx
000 X. Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx Xxxxxxxx-Xxxxx, Esq.
Escrowee: Chicago Title Insurance Company
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn.: Xxx Xxxxxxxxxx or Xxxxxx Xxxxxx
6. Escrowee Obligations. The parties agree that, except as
otherwise expressly provided in Paragraph 4 above, the actions of, and
the relationship between, Purchaser and Seller shall be governed by the
terms of the Agreement. In all events and under all circumstances
(except as otherwise expressly provided in Paragraph 4 above), the
ultimate rights and obligations of Seller and Purchaser shall be
strictly governed and controlled by the terms and provisions of the
Agreement, rather than these Instructions. In the event of any conflict
between the terms and provisions of the Agreement and these
Instructions, the terms and provisions of the Agreement shall control
in all events and circumstances except as otherwise expressly provided
in Paragraph 4 above. Notwithstanding the existence of the Agreement or
any references herein to the Agreement, the parties agree that Escrowee
(but not Seller and Purchaser) shall be governed solely by the terms
and provisions of these Instructions. The parties furthermore agree
that, except as otherwise specifically provided in Paragraph 4 above,
Escrowee is hereby expressly authorized to regard, comply with, and
obey any and all orders, judgments or decrees entered or issued by any
court, and, in case Escrowee obeys and complies with any such order,
judgment or decree of any court, it shall not be liable to either of
the parties hereto or to any other person, firm or corporation by
reason of such compliance. Notwithstanding any such order, judgment or
decree entered without jurisdiction or subsequently reversed, modified,
annulled, set aside or vacated in case of any suit or proceeding
regarding this escrow to which Escrowee is or may be at any time a
party, Escrowee shall have a lien on the contents hereof for any or all
costs, attorneys' fees (whether such attorneys shall be regularly
retained or specially employed) and other expenses that have been
incurred by Escrowee or for which Escrowee becomes, and Escrowee shall
be entitled to reimburse itself therefor out of the Xxxxxxx Money
deposit.
7. Litigation. In the event of litigation between the parties
with respect to these Instructions, the performance of their respective
obligations hereunder, or the effect of a termination under the
Agreement or these Instructions, the losing party shall pay all costs
and expenses incurred by the prevailing party in connection with such
litigation, including, but not limited to, court costs and reasonable
fees of counsel selected by the prevailing party. Notwithstanding any
provision of the Agreement or these Instructions to the contrary, the
obligations of the parties under this Paragraph 7 shall survive a
termination of either or both of the Agreement and these Instructions.
250140-8 2/23/98
35
8. Counterpart. These Instructions may be executed in
counterparts, each of which shall constitute an original but
all of which together shall constitute one and the same
instrument.
SELLER:
Di GIORGIO CORP.,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
PURCHASER:
FR ACQUISITIONS, INC.,
a Maryland corporation
By:
Name:
Title:
ACCEPTED BY ESCROWEE:
CHICAGO TITLE INSURANCE COMPANY
By:
Name:
Title:
250140-8 2/23/98
36
EXHIBIT D
Seller's Deliveries
1. Copies, with monetary and other confidential and proprietary terms
deleted, at Seller's option, of the agreements, contracts or understandings made
by Seller with Owner, Waldbaums, Inc. (A&P), Sysco Corporation and WRGFF
Associates, L.P., pursuant to which Seller shall (i) cause Owner to convey the
Project to Purchaser at Closing and (ii) terminate or cause the assignment to
Purchaser of the Leases presently affecting the Project.
2. Copies of all hazard, rent loss, liability and other insurance
policies currently in force with respect to the Project and/or Seller's use and
occupancy of the Project (the "Existing Insurance Policies").
3. Copies of all engineering and architectural plans and
specifications, drawings, studies and surveys relating to the Project
(collectively the "Plans"), in Seller's possession or control, and copies of any
reports or studies (including, but not limited to, inspection reports of
governmental authorities or insurance carriers), in Seller's possession or
control, in respect of the physical condition or operation of the Project or
recommended improvements thereto. Copies of all material records in Seller's
possession pertaining to the repair, replacement and maintenance of the
mechanical systems at the Building, the roof and the structural components of
the Building.
4. Copies of the xxxx or bills issued for the tax years 1993/94,
1994/95, 1995/96, 1996/97, and, if available, 1997/98, for all real estate taxes
and personal property taxes and copies of any and all notices pertaining to real
estate taxes or assessments applicable to the Project (the "Tax Bills"). Seller
shall promptly deliver to Purchaser copies of any such bills or notices received
by Seller after the Contract Date, even if received after Closing.
5. Copies of all management, maintenance, repair, service, pest control
and supply contracts (including, without limitation, janitorial, elevator,
scavenger, laundry and landscaping agreements), equipment rental agreements and
master antenna agreements (if applicable), and any other contracts or agreements
relating to or affecting the Project (other than Major Repair Contracts, as
defined herein), all as amended (the "Contracts").
6. Copies of all contracts for repairs or capital replacements to be
performed at the Project, or covering such work performed during the two (2)
years immediately preceding the Contract Date for a contract price in excess of
$25,000 ("Major Repair Contracts").
7. Copies of all certificates of occupancy, and similar or related real
estate, use or occupancy, licenses, permits, authorizations and approvals
required by law or by any governmental authority having jurisdiction thereover
in respect of the use, occupancy or maintenance of the Project or the
improvements thereupon (the "Governmental Approvals").
250140-8 2/23/98
37
8. Copies of any operating budgets for the Project for the years 1994,
1995 and 1996 and 1997 or, in lieu thereof, a detailed, descriptive summary of
maintenance costs for such year.
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38
EXHIBIT E
Title Exceptions Disclosed by Purchaser's Title Commitment
250140-8 2/23/98
39
EXHIBIT G
Surveyor's Certification
TO: FR Acquisitions, Inc.; First Industrial Realty Trust, Inc.,
First Industrial, L.P., and Chicago Title Insurance Company; and
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
I hereby certify that on the ______ day of _______________, 1998 (a) an
accurate, "as-built" on the ground instrument survey entitled
"___________________" the ("Survey") of the premises (the "Property") known by
street address 000 Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxx, was conducted under my
direction according to local professional practices; (b) the Survey and the
information, courses and distances shown thereon are correct; (c) all monuments
shown on the survey actually exist, and the location , size and type of
materials thereof are correctly shown; (d) the title lines and lines of actual
possession of the Property are the same; (e) the size, location and type of all
buildings and improvements, if any, on the Property are shown on the Survey; (f)
the Property has direct access to Xxxxxxx Drive, which is a dedicated public
way; (g) there are no easements, rights-of-way, old highways or abandoned roads,
lanes or driveways affecting the Property appearing from a careful physical
inspection of the same, other than those shown and depicted on the Survey or
those which may be discovered by a complete title exam of the subject property
and all adjoiners; (h) there are no visible boundary line conflicts (i) all
recorded easements, as noted in Title Company Commitment Xx. X00000X
(97050155000495), dated June 20, 1997, and all set-back lines, have been
correctly platted or noted on the Survey; (j) except as shown on the Survey
there are no improvements on the Property upon any easement, rights-of-way or
adjacent land or encroachments of improvements located on adjacent land upon the
Property; (k) there were no cemeteries or burying ground observed on the
Property; (l) the Survey shows the location of any visible telephone, telegraph,
electric or other power lines, wires and poles on the Property; (m) the Survey
shows the location of all visible and unobstructed manholes; (n) the parcel(s)
described on the Survey do not lie within flood areas in accordance with maps
entitled "Flood Insurance Rate Map", which such map covers the area in which the
Property is situated; (o) the Property is made up of more than one parcel, each
of which constitutes a separate tax lot and none of which constitutes a portion
of any other tax lot; and (p) all utilities for the operation of the Premises
have been shown.
I further certify that this map or plat and the survey on which it is
based were made (i) in accordance with "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys" jointly established and adopted by ALTA and ACSM
in 1992 and includes Items 1 (excluding the placement of new monuments), 3, 4, 6
(showing setback lines only), 7(a), 7(b)(1),8, 9, 10, 11 and 13 of Table A
thereof and (ii) pursuant to the Accuracy Standards (as adopted by ALTA/ACSM and
in effect on the date of this Certification) of an urban survey.
Date: ______________________
-----------------------
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40
EXHIBIT H
Service Contracts
To be delivered pursuant to Schedule D
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41
EXHIBIT I
Pending Litigation
None
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42
EXHIBIT J
Real Estate Tax Bills
To be delivered pursuant to Schedule D
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EXHIBIT K
Existing Leases; Agreements to Acquire or Terminate;
Lease Controversies
Existing Leases - See Title Commitment (Exhibit E)
Agreements to Acquire / Terminate - attached hereto
250140-8 2/23/98
44
EXHIBIT M
Tanks
See Exhibit N and permits attached
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EXHIBIT N
Seller's Environmental Tests and Government Orders
Information previously delivered to purchaser
250140-8 2/23/98
46
EXHIBIT O
Form of New Lease between Purchaser,
as Landlord, and Seller, as Tenant
250140-8 2/23/98
47
