Exhibit 10.22
EXECUTION COPY
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PURCHASE AND SALE AGREEMENT
BETWEEN
XXXXXX XXXXXX COMPANY, LLC
AND
5/6 SKYLINE REALTY L.L.C.
DATED AUGUST 3, 2001
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EXECUTION COPY
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "AGREEMENT") made this 3rd day of
August, 2001 between XXXXXX XXXXXX COMPANY, LLC, a limited liability company
organized under the laws of the State of New York, having an address at 000
Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("SELLER") and 5/6 SKYLINE REALTY
L.L.C., a New York limited liability company, having an address c/o Xxxx-Xxxx
Realty Corporation at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
("PURCHASER").
RECITALS
A. WHEREAS, pursuant to the Amended and Restated Agreement of Limited
Partnership of Madeira-RMC L.P., dated as of September 1, 1994 (the "PARTNERSHIP
AGREEMENT"), Seller, Madeira Management Company, Inc. ("MADEIRA") and Merlot
Management Company, Inc. ("MERLOT" and, together with Madeira, "XXXXXXX")
continued the existence of a limited partnership under the laws of the State of
New York under the name of Madeira-RMC L.P. (the "PARTNERSHIP") for the purpose,
among others, of owning and developing the real property located in the Town of
Mt. Pleasant, County of Westchester, and State of New York, commonly known as 5
and 0 Xxxxxxx Xxxxx in Mid-Westchester Executive Park and more particularly
described on EXHIBIT "A" annexed hereto and made a part hereof (the "PROPERTY").
B. WHEREAS, in accordance with the terms of the Partnership Agreement,
Xxxxxxx has offered to purchase and acquire from Seller all of Seller's right,
title and interest in and to the Partnership (collectively, the "INTEREST") and
Seller has exercised its right to cause Xxxxxxx to sell, assign, transfer and
convey to Seller all of Xxxxxxx'x right, title and interest in and to the
Partnership (collectively, the "XXXXXXX INTEREST");
C. WHEREAS, Purchaser wants to acquire the Property to facilitate a
"like-kind" exchange under Section 1031 of the Internal Revenue Code of 1986, as
amended (the "CODE"), subject to the condition that Purchaser acquire the
Xxxxxxx Interest (in the manner described below) and the Interest in
simultaneous closings;
D. WHEREAS, Seller neither wishes nor intends to acquire the Xxxxxx
Interest for its own account but has agreed to act as Purchaser's agent in
acquiring the Xxxxxx Interest by serving as Purchaser's nominee for the limited
purpose of acquiring title to the Xxxxxx Interest in Seller's name, for the sole
and absolute benefit of Purchaser, pursuant to that certain Nominee Agreement
dated August 3, 2001 (the "NOMINEE AGREEMENT");
E. WHEREAS, pursuant to the terms of the Partnership Agreement, Xxxxxxx
shall sell, assign, transfer and convey to Seller, and Seller has agreed in
accordance with the Nominee Agreement to purchase and acquire from Xxxxxxx on
behalf of Purchaser (who is solely
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responsible for funding the acquisition of the Xxxxxxx Interest) simultaneously
with its sale of the Interest pursuant to this Agreement, title to the Xxxxxxx
Interest (the "XXXXXXX SALE"); and
F. WHEREAS, Seller desires to sell, assign, transfer and convey to
Purchaser and Purchaser desires to purchase and acquire from Seller, the
Interest, upon, and subject to, the terms, covenants, and conditions herein set
forth, including the condition that the acquisition of the Xxxxxxx Interest
close simultaneously herewith.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, do hereby agree as follows:
1. SUBJECT OF CONVEYANCE.
1.1 Seller hereby agrees to sell, assign, transfer and convey to
Purchaser, and Purchaser agrees to purchase and acquire from Seller, the
Interest upon, and subject to, the terms, covenants and conditions set forth in
this Agreement.
2. PURCHASE PRICE AND TERMS OF PAYMENT.
2.1 The total purchase price payable (the "PURCHASE PRICE") to Seller for
the Interest is Four Million Four Hundred Twenty Two Thousand and 00/100
($4,422,000.00) Dollars, which amount shall be subject to adjustment and
proration as set forth on SCHEDULE "A" attached hereto and made a part hereof.
Two Hundred Seventy Six Thousand Two Hundred and Seventy Seven and 23/100
($276,277.23) Dollars of the Purchase Price, subject to adjustment and proration
as set forth on SCHEDULE "A" attached hereto and made a part hereof (the "SELLER
AMOUNT") shall be payable, by wire transfer of federal funds, to Seller on the
Closing Date (as defined in SECTION 5) and the remaining portion of the Purchase
Price shall be payable, by wire transfers of federal funds, to such persons and
in such amounts (and in accordance with direction letters that Seller shall have
previously provided to Purchaser and which are reasonably satisfactory to
Purchaser) as set forth on SCHEDULE "A" attached hereto and made a part hereof.
3. INDEMNITY BY SELLER.
3.1 As a material inducement for Purchaser to enter into this Agreement
and purchase the Interest as provided herein, Seller hereby covenants and agrees
to indemnify, defend and hold Purchaser, its successors and assigns, harmless,
from and against any and all claims, liabilities, losses, deficiencies and
damages, as well as reasonable expenses (including attorney's, consulting and
engineering fees), and interest and penalties related thereto, incurred by
Purchaser or its successors or assigns, by reason of or resulting from any
breach, inaccuracy, incompleteness or
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non-fulfillment of the following representations, warranties, covenants and
agreements of Seller contained in this SECTION 3.1:
(a) Seller is a duly organized and validly existing limited liability
company organized under the laws of the State of New York, is duly authorized to
transact business in the State of New York, has all requisite power and
authority to execute and deliver this Agreement and all other documents and
instruments to be executed and delivered by it hereunder, and to perform its
obligations hereunder and under such other documents and instruments in order to
sell the Interest in accordance with the terms and conditions hereof. All
necessary actions of Seller to confer such power and authority upon the persons
executing this Agreement and all documents which are contemplated by this
Agreement on its behalf have been taken.
(b) This Agreement, when duly executed and delivered, will be the legal,
valid and binding obligation of Seller, enforceable in accordance with the terms
of this Agreement. The performance by Seller of its duties and obligations under
this Agreement and the documents and instruments to be executed and delivered by
it hereunder will not conflict with, or result in a breach of, or default under,
any provision of any of the organizational documents of Seller or the
Partnership or any agreements, instruments, decrees, judgments, injunctions,
orders, writs, laws, rules or regulations, or any determination or award of any
court or arbitrator, to which Seller or the Partnership is a party or by which
its assets are or may be bound.
(c) Annexed hereto as SCHEDULE "B" is a true, complete and correct copy of
the Partnership Agreement. Annexed hereto as SCHEDULE "C" is a filed copy of the
certificate of limited partnership of the Partnership.
(d) Seller has good and marketable title to the entire Interest, free of
all liens and encumbrances whatsoever.
(e) The Partnership is duly organized and validly existing limited
partnership organized under the laws of the State of New York, is duly organized
to transact business in the State of New York, and has all requisite power and
authority to own the Property and to conduct and transact its business.
(f) The financial statements, including the income and expense statements
and the balance sheets of the Partnership and its affiliates with respect to the
Property only, all of which are attached hereto as SCHEDULE "D" (collectively,
the "PROPERTY FINANCIALS"), are, to the knowledge of Seller, true, correct and
complete in all material respects and represent the financial position of the
Partnership as of such dates and the results of operations and cash flows of the
Partnership for such respective periods.
(g) Neither Seller nor, to the knowledge of Seller, the Partnership have
made a general assignment for the benefit of creditors, filed any voluntary
petition in bankruptcy or suffered the filing of any involuntary petition by
creditors, suffered the appointment of a receiver to take possession of all, or
substantially all, of their respective assets, suffered the attachment or other
judicial seizure of all, or substantially all, of their respective assets,
admitted in writing its
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inability to pay their debts as they come due or made an offer of settlement,
extension or composition to their creditors generally.
(h) Seller and, to the knowledge of Seller, the Partnership have paid all
Taxes (as hereinafter defined) due and payable prior to the Closing and timely
filed all returns and reports required to be filed prior to the Closing with
respect to the Partnership and the ownership and operation of the Interest and
the Property. Each such tax return or report is true and correct in all material
respects. Seller and, to the knowledge of Seller, the Partnership have paid or
provided for a reserve for all Taxes related to the period ending on the Closing
Date but required to be paid after the Closing Date with respect to the
Partnership, the Interest and the operation of the Property. To the knowledge of
Seller, there are no audits or other proceedings by any governmental authorities
pending or threatened with respect to the Taxes resulting from the ownership and
operation of the Property. To the knowledge of Seller, no assessment of Taxes is
proposed against the Partnership or the Interest. To the knowledge of Seller,
neither Seller nor the Partnership are party to, and have no liability under,
any indemnification, allocation or sharing agreement with respect to Taxes.
"TAXES" means all federal, state, county, local, foreign and other taxes of any
kind whatsoever (including, without limitation, income, profits, premium,
estimated, excise, sales, use, occupancy, gross receipts, franchise, ad valorem,
severance, capital levy, production, transfer, license, stamp, environmental,
withholding, employment, unemployment compensation, payroll related and property
taxes, import duties and other governmental charges or assessments), whether or
not measured in whole or in part by net income, and including deficiencies,
interest, additions to tax or interest, and penalties with respect thereto, and
including expenses associated with contesting any proposed adjustment related to
any of the foregoing.
(i) There are no actions, suits, labor disputes, litigation or proceedings
currently pending or, to the knowledge of Seller, threatened against or related
to the Partnership or the Interest, nor does Seller know of any basis for any
such action.
(j) The Partnership has never maintained, adopted or established,
contributed or been required to contribute to, or otherwise participated in or
been required to participate in, a "multiemployer plan," as defined in Section
3(37) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). The Partnership has not committed itself, orally or in writing to
provide or cause to be provided to any person any payments or provision of any
"welfare" or "pension" benefits (as defined in Sections 3(l) and 3(2) of ERISA),
or to provide or cause to be provided any severance or other post-employment
benefit, salary continuation, termination, disability, death, retirement, health
or medical benefit to any person (including, without limitation, any former or
current employee), or adopted any 401(k) savings plans.
(k) To the best knowledge of Seller, and except as disclosed in those
certain environmental reports more fully described on SCHEDULE "E" attached
hereto, the Property is free of the presence of Hazardous Substances (as defined
below), there have been no releases of Hazardous Substances on the Property, the
Property has not at any time been used for the generation, transportation,
management, handling, treatment, storage, manufacture, emission, disposal or
deposit of any Hazardous Substances or fill or other materials containing
Hazardous Substances in
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excess of levels permitted under applicable law and the Property is in
compliance with all applicable federal, state and local environmental laws.
"HAZARDOUS SUBSTANCES" means any hazardous, industrial, toxic or harmful
solvent, substance, waste, material, pollutant or contaminant (including,
without limitation, asbestos, lead-based paint, polychlorinated biphenyls,
petroleum products, flammable explosives, volatile hydrocarbons, radioactive
materials, infectious substances or raw materials which include hazardous
constituents) or any other substance which is designated as hazardous or toxic
under any federal, state or local legislation applicable to the Property or is
defined as hazardous, dangerous or toxic by any governmental authority having
jurisdiction over the Property.
(l) To the best knowledge of Seller, there are no leases demising to any
party all or any part of the Property except for those leases demised to those
tenants (each, a "TENANT") set forth on SCHEDULE "F" attached hereto.
(m) The Interest and the Xxxxxxx Interest (i) together constitute one
hundred (100%) percent of all of the ownership interests in the Partnership,
(ii) are fully owned by Madeira, Merlot and Seller, and (iii) are not pledged as
security. Other than the Nominee Agreement and any documents in connection with
the Xxxxxxx Sale, there are no outstanding options, warrants or other rights or
commitments of any kind to purchase any interest or other securities of the
Partnership. No securities, agreement or obligation of the Partnership with
right of conversion into interests of the Partnership are outstanding. The
Partnership has no subsidiaries or affiliates, nor any interest in any
partnership, limited liability company, other joint venture or corporation.
3.2 The provisions of this SECTION 3 shall survive the Closing for one (1)
year. Anything in this Agreement to the contrary notwithstanding, the maximum
aggregate liability of Seller for Seller's breaches of representations and
warranties contained in this SECTION 3 shall not exceed the Seller Amount.
Notwithstanding the foregoing, however, Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available to it at law, in equity
or under this Agreement to make a claim against Seller for damages that
Purchaser may incur, or to rescind the transactions contemplated hereby as the
result of any of Seller's representations or warranties contained in this
Section 3 being untrue, inaccurate or incorrect if Purchaser knew or is deemed
to know that such representation or warranty was untrue, inaccurate or incorrect
at the time of the Closing.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
4.1 As a material inducement for Seller to enter into this Agreement and
sell the Interest as provided herein, Purchaser hereby warrants and represents
the following:
(a) Purchaser is a duly organized and validly existing limited liability
company organized under the laws of the State of New York, has all requisite
power and authority to execute and deliver this Agreement and all other
documents and instruments to be executed and delivered by it hereunder, and to
perform its obligations hereunder and under such other documents and instruments
in order to acquire the Interest in accordance with the terms and
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conditions hereof. All necessary actions to confer such power and authority upon
the persons executing this Agreement and all documents which are contemplated by
this Agreement on its behalf have been taken.
(b) This Agreement, when duly executed and delivered, will be the legal,
valid and binding obligation of Purchaser, enforceable in accordance with the
terms of this Agreement. The performance by Purchaser of its duties and
obligations under this Agreement and the documents and instruments to be
executed and delivered by it hereunder will not conflict with, or result in a
breach of, or default under, any provision of any of the organizational
documents of Purchaser or any agreements, instruments, decrees, judgments,
injunctions, orders, writs, laws, rules or regulations, or any determination or
award of any court or arbitrator, to which Purchaser is a party or by which its
assets are or may be bound.
5. CLOSING.
5.1 The consummation of the transactions contemplated hereunder (the
"CLOSING") shall take place in the New York City metropolitan area
simultaneously with the closing of the Xxxxxxx Sale (the "CLOSING DATE").
5.2 On the Closing Date, Seller, at its sole cost and expense, will
deliver, or cause to be delivered, to Purchaser the following documents:
(a) A duly executed and acknowledged assignment and assumption of the
Interest (the "ASSIGNMENT OF INTEREST"), to Purchaser or its designee, as
assignee.
(b) Affidavits and other instruments, including but not limited to all
consents, resolutions, organizational documents of Seller and Seller's general
partner including operating agreements, filed copies of limited liability
certificates, articles of organization, and good standing certificates,
reasonably requested by Purchaser and the Title Company evidencing the power and
authority of Seller to enter into this Agreement and any documents to be
delivered hereunder, and the enforceability of same.
(c) A certificate indicating that the representations and warranties of
Seller made in this Agreement are true and correct as of the Closing Date, or if
there have been any changes, a description thereof.
(d) A certificate signed by an officer, manager or member of Seller to the
effect that Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "CODE"), in
order to avoid the imposition of the withholding tax payment pursuant to Section
1445 of the Code.
(e) All such transfer and other tax declarations and returns and
information returns, duly executed and sworn to by Seller as may be required of
Seller by law in connection with the
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conveyance of the Interest to Purchaser, including but not limited to, Internal
Revenue Service forms.
(f) A statement setting forth the Purchase Price with all adjustments and
prorations shown thereon.
(g) Such other documents as may be reasonably required or appropriate to
effectuate the consummation of the transactions contemplated by this Agreement.
5.3 On the Closing Date, Purchaser, at its sole cost and expense, will
deliver, or cause to be delivered, to Seller the following documents:
(a) The Purchase Price, net of adjustments and prorations, by certified or
bank check or by wire transfer pursuant to directions given by Seller to
Purchaser no later than three (3) days prior to Closing.
(b) A duly executed and acknowledged Assignment of Interest.
(c) A certificate indicating that the representations and warranties of
Purchaser made in this Agreement are materially true and correct as of the
Closing Date, or if there have been any material changes, a description thereof.
(d) Such other documents as may be reasonably required or appropriate to
effectuate the consummation of the transactions contemplated by this Agreement.
5.4 Seller shall pay all state or county documentary stamps and transfer
taxes, if any imposed with respect to the sale of the Interest. Each party shall
be responsible for its own attorney's fees. The provisions of this SECTION 5.4
shall survive the Closing.
5.5 Notwithstanding anything contained herein to the contrary, if the
Xxxxxxx Sale shall fail to close on the Closing Date, then this Agreement shall
automatically terminate without any further action required by the parties and
shall be of no further force and effect, except with regard to (i) those
provisions which expressly survive any termination of this Agreement and (ii)
those claims for breach hereof which are being pursued by either or both of the
parties hereto.
6. ASSIGNMENT.
6.1 This Agreement may not be assigned by Seller or Purchaser; PROVIDED,
HOWEVER, that Purchaser may assign this Agreement to any directly or indirectly
wholly-owned subsidiary or subsidiaries of Purchaser, any "qualified
intermediary" (as such term is defined in Treasury Regulation section
1.1031(k)-1(g)(iii)), any "exchange accommodation titleholder" (as such term is
defined in Revenue Procedure 2000-37, 2000-40-IRB) or any other accommodation or
other party in connection with facilitating a "like-kind" exchange under section
1031 of the Code (any such permitted assignees, a "PERMITTED ASSIGNEE"). Any
other assignment or attempted
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assignment of this Agreement by Purchaser or Seller shall constitute a default
by such party hereunder and shall be deemed null and void and of no force and
effect. In addition, at Closing, Purchaser shall have the right to cause Seller
to direct the Interest and other closing instruments to such party as Purchaser
shall direct. No assignment or direction of the closing instruments shall
relieve Purchaser from Purchaser's obligations under this Agreement.
7. BROKER.
7.1 Purchaser and Seller represent and warrant that they have not dealt
with any brokers, finders or salesmen, in connection with this transaction, and
agree to indemnify, defend and hold each other harmless from and against any and
all loss, cost, damage, liability or expense, including reasonable attorneys'
fees, which either party may sustain, incur or be exposed to by reason of any
breach of the foregoing representation and warranty. The provisions of this
Section shall survive the Closing or other termination of this Agreement.
8. CASUALTY LOSS.
8.1 The Partnership and/or Seller shall maintain fire and extended
coverage insurance policies with respect to the Real Property (the "POLICY") in
effect until the time of the Closing which is at least equivalent in all
material respects to the insurance policies covering the Property as of the date
hereof.
8.2 If at any time prior to the Closing Date any portion of the Property
is destroyed or damaged as a result of fire or any other casualty (a
"CASUALTY"), Seller shall promptly give written notice ("CASUALTY NOTICE")
thereof to Purchaser along with Seller's estimate, given in good faith, of the
cost to repair as a result of the Casualty (the "REPAIR COST"). If the Repair
Cost is in excess of One Million Four Hundred and Seventy Four Thousand
($1,474,000.00) Dollars, then within ten (10) days after the receipt of the
Casualty Notice, Purchaser shall have the right, at its sole option, of
terminating this Agreement by written notice to Seller given within ten (10)
days after receipt of the Casualty Notice.
9. CONDEMNATION.
9.1 In the event that prior to Closing, Seller shall become aware of the
institution or threatened institution of any proceedings, judicial,
administrative or otherwise, by eminent domain or otherwise, which propose to
affect a material portion of the Property, Seller shall give notice (a
"CONDEMNATION NOTICE") to Purchaser promptly thereafter. Within ten (10) days
following receipt of the Condemnation Notice, Purchaser shall have the right and
option to terminate this Agreement by giving Seller written notice thereof. Any
damage to or destruction of the Property as a result of a taking by eminent
domain shall be deemed "material" for purposes of this SECTION 9 if the estimate
of the damage, which estimate shall be performed by an insurance adjuster and
Purchaser's architect, shall exceed One Hundred Thousand ($100,000.00)
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Dollars. Should Purchaser so terminate this Agreement in accordance with this
SECTION 9, neither party shall have any further liability or obligations to the
other.
10. CONFIDENTIALITY.
10.1 Without the express written consent of Purchaser, Seller hereby
covenants not to disclose this Agreement or any of the terms, conditions or
other facts contained herein (other than the professionals involved in the
transaction herein contemplated or any party otherwise involved in the
respective businesses of either party hereto), or to issue any press release or
public statement related to the transaction contemplated by this Agreement,
unless required to do so by applicable law or court order, PROVIDED, HOWEVER, if
Purchaser issues any such press release or public statement other than one which
Purchaser is required to issue or make by court order or applicable law
(including all rules and regulations of the Securities Exchange Commission or
any public stock or securities exchange), then Seller shall be allowed to issue
a similar press release or public statement which shall be limited to such facts
and information as are set forth in Purchaser's press release or public
statement.
11. LEASING MATTERS.
11.1 Seller and/or the Partnership shall be solely responsible for the
payment of all brokerage commissions and fees incurred in effecting all leases
at the Property ("LEASES") and with respect to any extensions, expansions or
renewals thereof which have been exercised by Tenants prior to the Closing Date,
and Purchaser shall have no liability or obligation (either individually or as a
partner in the Partnership) with respect to the same. Seller shall have no
liability or obligation with respect to any other brokerage commissions or fees
which may become payable with respect to such Leases.
11.2 Seller shall be responsible to pay for the performance of all of the
obligations of the landlord under the Leases which under the terms of such
Leases are required to be performed by the landlord prior to the Closing.
11.3 Seller shall use commercially reasonable efforts to obtain and
deliver to Purchaser, prior to the Closing Date, from each Tenant an estoppel
letter ("ESTOPPEL") stating (i) whether any uncured defaults exist under the
Lease; (ii) whether the Leases are in full force and effect; and (iii) any such
other items as are reasonably requested by Seller and Purchaser.
11.4 This SECTION 11 shall survive the Closing.
12. LIKE-KIND EXCHANGE.
12.1 If Purchaser desires to use the Property in a "like-kind" exchange
transaction pursuant to Section 1031 of the Code, Seller agrees to cooperate and
assist Purchaser in all
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reasonable respects (at no cost to Seller other than incidental attorneys' fees
relating to reviewing the exchange documents) in order that the exchange so
qualifies as a "like-kind" exchange under Section 1031 of the Code and the
Treasury Regulations promulgated, or to be promulgated, thereunder, provided
that such cooperation and assistance does not require Seller to incur any
material obligations. Purchaser hereby agrees to indemnify, defend and hold
Seller, and its respective stockholders, directors, officers, agents, servants,
and employees harmless from and against all losses, obligations, costs,
expenses, damages, claims or liabilities in connection with or arising from the
execution of any exchange documents by Seller or the failure of Purchaser to
consummate the exchange, or otherwise relating to the potential exchange,
provided Seller has performed its obligations under this SECTION 12 in all
material respects. This provisions of this SECTION 12 shall survive the Closing.
13. NOTICE.
13.1 All notices, demands, requests, or other writings (a "NOTICE") in
this Agreement provided to be given or made or sent, or which may be given or
made or sent, by either party hereto to the other, shall be in writing and shall
be delivered by depositing the same with any nationally recognized overnight
delivery service, with all transmittal fees prepaid, properly addressed, and
sent to the following addresses:
If to Purchaser: 5/6 Skyline Realty L.L.C.
c/o Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If Seller: Xxxxxx Xxxxxx Company, LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxx X. Xxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
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with a copy to: Xxxxxx Xxxxxx Company, LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxx X. Xxxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate by
written notice to the other. Notices given by overnight delivery service as
aforesaid shall be deemed received and effective on the first business day
following such dispatch. Notices may be given by counsel for the parties
described above, and such Notices shall be deemed given by said party, for all
purposes hereunder.
13. MISCELLANEOUS
13.1 This Agreement (a) constitutes the entire agreement between the
parties, (b) supersedes all prior negotiations and discussions between the
parties, (c) cannot be amended, waived or terminated orally, but only by an
agreement in writing signed by the party to be charged, (d) shall be interpreted
and governed by the laws of the State of New York without regard to conflicts of
laws principals, and (e) shall be binding upon the parties hereto and their
respective successors and assigns.
13.2 The caption headings in this Agreement are for convenience only and
are not intended to be part of this Agreement and shall not be construed to
modify, explain or alter any of the terms, covenants or conditions herein
contained. If any term, covenant or condition of this Agreement is held to be
invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision.
13.3 Each party shall, from time to time, execute, acknowledge and deliver
such further instruments, and perform such additional acts, as the other party
may reasonably request in order to effectuate the intent of this Agreement.
Nothing contained in this Agreement shall be deemed to create any rights or
obligations of partnership, joint venture or similar association between Seller
and Purchaser. This Agreement shall be given a fair and reasonable construction
in accordance with the intentions of the parties hereto, and without regard to
or aid of canons requiring construction against Seller, Purchaser or the party
whose counsel drafted this Agreement.
13.4 This Agreement shall not be effective or binding until such time as
it has been executed and delivered by all parties hereto. This Agreement may be
executed by the parties hereto in counterparts, all of which together shall
constitute a single Agreement.
13.5 All references herein to any section, schedule or exhibit shall be to
the sections of this Agreement and to the schedules and exhibits annexed hereto
unless the context clearly
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dictates otherwise. All of the schedules and exhibits annexed hereto are, by
this reference, incorporated herein.
13.6 In the event of any litigation or alternative dispute resolution
between Seller and Purchaser in connection with this Agreement or the
transaction contemplated herein, the non-prevailing party in such litigation or
alternative dispute resolution shall be responsible for payment of all expenses
and reasonable attorneys' fees incurred by the prevailing party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX XXXXXX COMPANY, LLC, a New York limited
liability company
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Manager
5/6 SKYLINE REALTY L.L.C., a New York limited
liability company
By: Xxxx-Xxxx Realty, L.P., a Delaware limited
partnership, its sole member
By: Xxxx-Xxxx Realty Corporation, a Delaware
corporation, its general partner
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx,
Executive Vice President
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