Exhibit 10.19
AGREEMENT TO ASSIGN GROUND LEASE
BY AND BETWEEN
XXXXXX XXXXXX - EASTVIEW NORTH COMPANY, L.P.
AND
XXXX-XXXX REALTY ACQUISITION CORP.
DATED AS OF APRIL 1, 2002
AGREEMENT TO ASSIGN GROUND LEASE
THIS AGREEMENT TO ASSIGN GROUND LEASE (this "AGREEMENT") is made as of
this 1st day of April, 2002, by and between XXXXXX XXXXXX - EASTVIEW NORTH
COMPANY, L.P., a New York limited partnership having an address c/o Xxxxxx
Xxxxxx Company, LLC, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("RM
EASTVIEW") and XXXX-XXXX REALTY ACQUISITION CORP., a Delaware corporation having
an address c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 ("XXXX-XXXX").
W I T N E S S E T H:
WHEREAS, the County of Westchester (the "COUNTY"), as landlord, and RM
Eastview, as tenant, entered into that certain Agreement of Lease dated
September 15, 1999 and recorded on ____________, in the Office of the County
Clerk of Westchester County Division of Land Records in Liber ____ of
conveyances, at Page ___ (the "GROUND LEASE"), whereby RM Eastview leased that
certain parcel of real property situate and lying in the Town of Mount Pleasant,
County of Westchester and State of New York (the "LAND") more particularly
described in EXHIBIT A annexed thereto; and
WHEREAS, RM Eastview desires to assign, and Xxxx-Xxxx desires
to assume, all of RM Eastview's right, title and interest in and to the Ground
Lease, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. SUBJECT OF THE ASSIGNMENT
Subject to the terms and conditions set forth in this Agreement, RM
Eastview hereby agrees to assign, and Xxxx-Xxxx hereby agrees to assume, all of
RM Eastview's right, title and interest in and to the Ground Lease, which
leasehold interest shall be deemed to include all of RM Eastview's right, title
and interest in and to the following:
(a) any and all easements, rights of way, strips and gores of
land, streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Property and all land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining the Property, to the center
line thereof (collectively, the
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"EASEMENTS");
(b) any and all approvals, permits, licenses and agreements,
including but not limited to environmental permits, subdivision approvals,
development agreements, site plans and approvals relating to the development and
use of the Property, and specifically including any and all plans,
specifications, architectural and engineering drawings, warranties, and
guaranties held by RM Eastview (collectively, the "PERMITS AND LICENSES"), and
any and all contracts and agreements for the servicing and maintenance of the
Property (collectively, the "SERVICE CONTRACTS", together with the Permits and
Licenses, the "INTANGIBLE PROPERTY");
(c) any and all trademarks and tradenames used or useful in
connection with the Property (including but not limited to any other name[s] by
which the Property is commonly known) and all goodwill, if any, related to said
names, all for which Xxxx-Xxxx shall have the sole and exclusive rights
(collectively, the "TRADENAMES");
(d) any and all promotional materials, marketing materials,
brochures, photographs (collectively, the "PROMOTIONAL MATERIALS"), books,
records, files, statements, tax returns, market studies, plans, specifications,
reports, tests and other materials of any kind owned by or in the possession of
RM Eastview which are or may be used by RM Eastview in the development and use
of the Property (collectively, and together with the Promotional Materials, the
"BOOKS AND RECORDS");
(e) any and all awards or payments, including interest
thereon, which may heretofore and hereafter be made with respect to the
Property, whether from the exercise of the right of eminent domain or for a
change of grade or for any other injury to or decrease in the value of the
Property; and
(f) all other rights, interests and privileges (if any) held
by RM Eastview in any way related to the rights and interests described above in
this Section.
The Easements, the Intangible Property, the Tradenames, the Books and
Records, and all other interests in the Property held by RM Eastview, together
with the Ground Lease, shall hereinafter be collectively referred to as the
"LEASE".
2. CONSIDERATION FOR THE ASSIGNMENT
2.1 As consideration for the assignment (the "CONSIDERATION"),
Xxxx-Xxxx shall pay to RM Eastview on the Closing Date (as defined in Section
8.1) the amount of Eight Hundred Thirty Two Thousand Six Hundred ($832,600)
Dollars. The Consideration shall be paid by the wiring of federal funds to such
bank account as RM Eastview shall designate in writing at least two (2) business
days prior to the Closing Date.
3. TITLE MATTERS TO WHICH THE ASSIGNMENT IS SUBJECT
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3.1 The Lease shall be assigned to Xxxx-Xxxx subject to the
following (collectively, the "PERMITTED ENCUMBRANCES"):
(a) the lien of real estate taxes, personal property taxes,
water charges, and sewer charges, provided the same are not due and payable, but
subject to adjustment as provided herein;
(b) those restrictions, covenants, agreements, easements, and
other matters affecting title to the Property as set forth in the Title
Commitment (as defined in Section 3.2), provided same do not impair the use of
the Property as intended by Xxxx-Xxxx and do not render the leasehold interest
uninsurable at standard rates;
(c) any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates affecting the Property as of
the date hereof, except for engineering or institutional controls (including,
without limitation, a deed notice or declaration of environmental restrictions,
a groundwater classification exception area, or well restriction area) affecting
the Property; and
(d) the state of facts shown by that certain survey dated
January 13, 1999, prepared by Xxxx Xxxxxxxxx Engineers Inc., together with any
state of facts disclosed by an update of such survey (said update to be ordered
by Xxxx-Xxxx at its sole cost and expense), provided such state of facts do not
impair the use of the Property as intended by Xxxx-Xxxx and do not render the
leasehold interest uninsurable at standard rates.
3.2 Xxxx-Xxxx shall cause any title company licensed to do
business in the State of New York (the "TITLE COMPANY") to prepare a title
search and commitment for a leasehold insurance policy (the "TITLE COMMITMENT")
and shall cause a copy of the same to be delivered to counsel for RM Eastview.
If any defects, objections or exceptions in the title to the Property appear in
the Title Commitment (other than the Permitted Encumbrances) which Xxxx-Xxxx is
not required to accept under the terms of this Agreement, RM Eastview agrees to
use good faith efforts to cure the same prior to the Closing, and in any event
to cure, at its expense, the following: (a) judgments against RM Eastview, (b)
leasehold mortgages and other liens which can be satisfied by the payment of a
liquidated amount, and (c) defects, objections or exceptions which can be
removed by payments not to exceed, in the aggregate, three (3%) percent of the
Consideration. RM Eastview, in its discretion, may adjourn the Closing for up to
sixty (60) days in order to eliminate unacceptable defects, objections or
exceptions. If, after complying with the foregoing requirements, RM Eastview is
unable to eliminate all unacceptable defects, objections or exceptions in
accordance with the terms of this Agreement on or before such adjourned date for
the Closing, Xxxx-Xxxx shall elect either (x) to terminate this Agreement by
notice given to the RM Eastview, in which event the provisions of Section 3.5
shall apply, or (y) to assume the Lease subject to such unacceptable defects,
objections or exceptions with no credit against or reduction in the
Consideration. RM Eastview agrees and covenants that it shall not voluntarily
place any defects, objections or exceptions to title to the Property from and
after the date of the first issuance of the Title Commitment for the Lease.
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3.3 (a) It shall be a condition to Closing that RM Eastview
assign, and that the Title Company insure, at a standard rate for such
insurance, the leasehold interest in the Property equal to the amount of the
Consideration in the name of Xxxx-Xxxx or its designees, after execution and
delivery of the Assignment as defined in Section 8.2(a), by a standard leasehold
fee insurance policy, with endorsements as may be available and are required by
Xxxx-Xxxx, free and clear of all liens, encumbrances and other matters, other
than the Permitted Encumbrances (the "TITLE POLICY"). The Title Company shall
provide affirmative insurance that (i) none of the Permitted Encumbrances have
been violated, and that any future violation thereof will not result in a
forfeiture or reversion of leasehold title, (ii) Xxxx-Xxxx'x contemplated use of
the Property will not violate the Permitted Encumbrances; and (iii) the
exception for taxes shall apply only to the current taxes not yet due and
payable as of the Closing Date.
(b) RM Eastview shall provide such affidavits (including title
affidavits and survey affidavits of no change) and undertakings as the Title
Company may require. In addition, if the Title Commitment discloses judgments,
bankruptcies or other returns against other persons having names the same as or
similar to that of RM Eastview, RM Eastview shall, upon request, deliver to the
Title Company affidavits showing that such judgments, bankruptcies or other
returns are not against RM Eastview or any of its affiliates. Upon request by
Xxxx-Xxxx, XX Eastview shall deliver any affidavits and documentary evidence as
reasonably required by the Title Company to eliminate the standard or general
exceptions in the Title Policy.
(c) The words "insurable title" and "insurable" as used in
this Agreement are hereby defined to mean title, which is insurable at standard
rates (without special premium) by the Title Company without exception other
than the Permitted Encumbrances and the standard printed policy and survey
exceptions.
3.4 Any unpaid taxes, water charges, sewer rents and assessments,
together with the interest and penalties thereon, to a date not less than
seven (7) business days following the Closing Date (in each case subject to
any applicable apportionment), together with the cost of recording or filing
of any instruments necessary to discharge such liens and such judgments, shall
be paid at the Closing by RM Eastview. On the Closing Date, RM Eastview shall
deliver to Xxxx-Xxxx instruments in recordable form sufficient to discharge
any liens which RM Eastview is obligated to pay and discharge pursuant to the
terms of this Agreement.
3.5 If RM Eastview is unable to assign the Lease in accordance
with the terms of this Agreement, then Xxxx-Xxxx shall have the right to
terminate this Agreement. In such event, neither party shall have any further
rights or obligations hereunder other than those which are expressly stated
herein to survive any such termination, and RM Eastview shall reimburse
Xxxx-Xxxx for all charges incurred by reason of (a) examining the title to the
Property, (b) any appropriate additional municipal searches made in accordance
with this Agreement, and (c) the survey and survey inspection charges, which
reimbursement obligation shall survive the termination of this Agreement.
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4. REPRESENTATIONS AND WARRANTIES OF RM EASTVIEW
4.1 In order to induce Xxxx-Xxxx to perform as required hereunder,
RM Eastview represents and warrants the following:
(a) RM Eastview is a duly organized and validly existing
limited partnership organized under the laws of the State of New York, and 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 assign the Lease in accordance with the terms and
conditions hereof. All necessary actions of the partners of RM Eastview to
confer such power and authority upon the person(s) 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, shall be
the legal, valid and binding obligation of RM Eastview, enforceable in
accordance with the terms of this Agreement. The performance by RM Eastview 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 RM Eastview 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 RM Eastview is a
party or by which its assets are or may be bound.
(c) The Ground Lease is a valid and bona fide obligation of RM
Eastview and, to RM Eastview's knowledge, of the County, and is in full force
and effect. No defaults exist thereunder and the County has not issued to RM
Eastview any notices of default. To RM Eastview's knowledge, no condition exists
which, with the passage of time or the giving of notice or both, shall become a
default. As of the date hereof, the Ground Lease constitutes the only lease,
tenancy or occupancy affecting the Property, and there are no other agreements
which confer upon any tenant or any other person or entity any rights with
respect to the Property. Xxxx-Xxxx hereby acknowledges that it has received a
true, complete and correct copy of the Ground Lease.
(d) RM Eastview has performed all of the obligations and
observed all of the covenants required of it as tenant under the Ground Lease.
As of the date hereof, no work has been performed at the Property which would
require an amendment or any other change to the Permit and Licenses, and any and
all work which may be performed at the Property from the date hereof to the
Closing Date shall be in accordance with the rules, laws and regulations of all
applicable authorities. Any bills and claims for labor performed and materials
furnished to or for the benefit of the Property shall be paid in full by RM
Eastview on the Closing Date.
(e) There are no service contracts, union contracts,
employment agreements or other agreements affecting the Property or the
operation thereof.
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(f) The Permits and Licenses include all certificates,
licenses, permits and authorizations (including, without limitation, any Permits
and Licenses relating to any environmental matters) necessary to properly
subdivide and improve the Property and to operate and use said improvements, all
of which Permits and Licenses are listed on SCHEDULE 4.1(f), along with the
expiration dates of the same. RM Eastview has not received any notice that any
of the Permits and Licenses are subject to, or in jeopardy of, revocation or
non-renewal. RM Eastview is current in the payment of any fees required to be
paid for the Permits and Licenses. All Permits and Licenses are in full force
and effect; are transferable with the Lease without additional payment by
Xxxx-Xxxx; and shall, at Closing, be transferred to Xxxx-Xxxx by RM Eastview.
(g) There are no actions, suits, labor disputes, litigation or
proceedings currently pending or, to the knowledge of RM Eastview, threatened
against or related to RM Eastview or to all or any part of the Property, the
environmental condition thereof, or the operation thereof, nor does RM Eastview
know of any basis for any such action.
(h) To RM Eastview's knowledge, there are no outstanding
requirements or recommendations by (i) the insurance company(s) currently
insuring the Property; (ii) any board of fire underwriters or other body
exercising similar functions, or (iii) the holder of any mortgage encumbering
any of the Property, which require or recommend any repairs or work to be done
on the Property.
(i) RM Eastview has received no written notice and has no
knowledge of (i) any pending or contemplated annexation or condemnation
proceedings, or private purchase in lieu thereof, affecting or which may affect
the Property or any part thereof, (ii) any proposed or pending proceeding to
change or redefine the zoning classification of all or any part of the Property,
(iii) any proposed or pending special assessments affecting the Property or any
portion thereof, (iv) any penalties or interest due with respect to real estate
taxes assessed against the Property, and (v) any proposed change(s) in any road
or grades with respect to the roads providing a means of ingress and egress to
the Property. RM Eastview agrees to furnish Xxxx-Xxxx with a copy of any such
notice received within two (2) business days after its receipt.
(j) RM Eastview has provided Xxxx-Xxxx with all reports,
including, without limitation, the Environmental Documents as defined in Section
4.2(b)(iv), in RM Eastview's possession or under its control related to the
physical condition of the Property.
(k) RM Eastview has no knowledge of any violations or any
notices, suits, investigations or judgments relating to any violations of any
laws, ordinances or regulations (including, without limitation, Environmental
Laws as defined in Section 4.2(b)(v)) affecting the Property, or any violations
or conditions which may give rise thereto, and has no reason to believe that any
agency, board, bureau, commission, department, office or body of any municipal,
county, state or federal governmental unit, or any subdivision thereof, having,
asserting or acquiring jurisdiction over all or any part of the Property or the
management, operation, use or improvement thereof (collectively, the
"GOVERNMENTAL AUTHORITIES") contemplates the issuance thereof, and to RM
Eastview's knowledge, there are no outstanding
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orders, judgments, injunctions, decrees, directives or writs of any Governmental
Authorities against or involving RM Eastview or the Property.
(l) There are no employees working at or in connection with
the Property. There are no union agreements affecting the Property as of the
date hereof, nor shall any such agreements affect the Property as of the Closing
Date.
(m) There are no obligations in the nature of a leasing
commission due and owing from RM Eastview with respect to the Lease or the
Ground Lease or any amendments thereto.
(n) RM Eastview has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by RM Eastview's creditors, suffered the
appointment of a receiver to take possession of all or substantially all of RM
Eastview's assets, suffered the attachment or other judicial seizure of all or
substantially all of RM Eastview's assets, admitted in writing its inability to
pay its debts as they come due or made an offer of settlement, extension or
composition to its creditors generally.
(o) To RM Eastview's knowledge, there are no engineering or
institutional controls at the Property designed to address the Discharge of
Contaminants (both terms as defined in Section 4.2(b)) at the Property or
required by Environmental Laws or Governmental Authorities, including without
limitation any deed notice, declaration of environmental restriction,
groundwater classification exception area, well restriction area or other notice
or use limitations pursuant to Environmental Laws.
(p) RM Eastview has no knowledge that any part of the
Property has been designated as wetlands under the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251 ET SEQ., the Freshwater Wetlands Act, N.Y.
Envtl. Conserv. Law, Section 24-0101 ET SEQ., the Tidal Wetlands Act, N.Y.
Envtl. Conserv. Law Section 25-0101, or any applicable local law or regulation
promulgated pursuant to any of the foregoing.
(q) RM Eastview does not own or operate any property which any
Governmental Authority has demanded, in writing addressed to and received by RM
Eastview or any of its affiliates, counsel or agents, be cleaned up and which
has not been cleaned up.
(r) RM Eastview has paid all Taxes (as hereinafter defined)
due and payable prior to the Closing, and has filed all returns and reports, if
any, required to be filed prior to the Closing by reason of its leasehold
interest in the Property (by it or any predecessor entity) for which Xxxx-Xxxx
could be held liable as RM Eastview's assignee. There are no audits or other
proceedings by any Governmental Authorities pending or to RM Eastview's
knowledge, threatened with respect to the Taxes for which Xxxx-Xxxx could be
held liable. No assessment of Taxes is proposed against RM Eastview (including
any predecessor entities) or the Property. RM Eastview is not party to, and has
no liability under (including liability with respect to a predecessor entity)
any indemnification, allocation or sharing agreement with respect to Taxes.
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"TAXES" shall mean 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 shall include (i)
deficiencies, interest, additions to tax or interest, and penalties with respect
thereto, and (ii) expenses associated with contesting any proposed adjustment
related to any of the foregoing.
(s) There are no proceedings presently pending for a reduction
in the assessed valuation of the Property, and no such proceeding shall be
commenced by RM Eastview without Xxxx-Xxxx'x prior written consent.
(t) No representation or warranty made by RM Eastview
contained in this Agreement, and no statement contained in any document,
certificate, Schedule or Exhibit furnished or to be furnished by, or on behalf
of, RM Eastview to Xxxx-Xxxx or any of Xxxx-Xxxx'x designees or affiliates
pursuant to this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading or necessary in order to fully
and fairly provide the information required to be provided in any such document,
certificate, Schedule or Exhibit.
4.2 In addition to the provisions of Section 4.1, RM Eastview
hereby represents and warrants the following with respect to environmental
matters:
(a) Except as disclosed on SCHEDULE 4.2(a):
(i) To RM Eastview's knowledge, there are no
Contaminants on, under, at, emanating from or affecting the Property, which
would allow a Governmental Authority to demand that a cleanup be undertaken;
(ii) To RM Eastview's knowledge, it has not received
any Section 104(e) informational request issued pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Section 9601 ET SEQ.;
(iii) To RM Eastview's knowledge, there is no asbestos
or asbestos containing material on the Property requiring remediation under
Environmental Laws;
(iv) To RM Eastview's knowledge, all pre-existing
above-ground storage tanks and Underground Storage Tanks and vessels, if any, at
the Property have been removed and their contents disposed of in accordance with
and pursuant to all applicable Environmental Laws;
(v) To RM Eastview's knowledge, the Property has not
been used as a solid waste management facility as defined in the New York
Environmental Conservation Law ("ECL") Section 27-0701 ET SEQ.;
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(vi) To RM Eastview's knowledge, RM Eastview has all
required environmental certificates, licenses and permits (collectively,
"PERMITS"), and there is no violation of any statute, ordinance, rule,
regulation, order, code, directive or requirement (including, without
limitation, Environmental Laws) with respect to any Permit or any pending
application for any Permit;
(vii) RM Eastview has not and shall not knowingly
permit any person or entity to engage in any activity on the Property in
violation of Environmental Laws; and
(viii) The Property is in material compliance with
Environmental Laws.
(b) The following terms shall have the following meanings when
used in this Agreement:
(i) "CONTAMINANTS" shall include, without limitation,
any regulated substance, toxic substance, hazardous substance, hazardous waste,
pollution, pollutant or contaminant, as defined or referred to in the Tank Laws
(as defined below); the ECL; the New York State Navigation Law; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 ET SEQ.; the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. Section 9601 ET SEQ.; and the Water Pollution and Control
Act, 33 U.S.C. Section 1251 ET SEQ.; together with any amendments thereto,
regulations promulgated thereunder and all substitutions thereof, as well as
words of similar purport or meaning referred to in any other applicable federal,
state, county or municipal environmental statute, ordinance, code, rule or
regulation, including, without limitation, radon, lead, asbestos,
polychlorinated biphenyls, urea formaldehyde and petroleum products and
petroleum-based derivatives.
(ii) "DISCHARGE" shall mean the releasing, spilling,
leaking, leaching, disposing, pumping, pouring, emitting, emptying, treating or
dumping of Contaminants at, into, onto or migrating from or onto the Property,
regardless of whether the result of an intentional or unintentional action or
omission.
(iii) "DEC" shall mean the New York Department of
Environmental Conservation or its successor.
(iv) "ENVIRONMENTAL DOCUMENTS" shall mean all
environmental documentation in the possession or under the control of RM
Eastview concerning the Property, or its environs, including without limitation,
all sampling plans, cleanup plans, preliminary assessment plans and reports,
site investigation plans and reports, remedial investigation plans and reports,
remedial action plans and reports, or the equivalent, sampling results, sampling
result reports, data, diagrams, charts, maps, analysis, conclusions, quality
assurance/quality control documentation, correspondence to or from any
Governmental Authority, submissions to any Governmental Authority and
directives, orders, approvals and disapprovals issued by any Governmental
Authority.
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(v) "ENVIRONMENTAL LAWS" shall mean each and every
applicable federal, state, county or municipal statute, ordinance, rule,
regulation, order, code, directive or requirement of any Governmental Authority
in any way related to Contaminants.
(vi) "GOVERNMENTAL AUTHORITY" shall mean the federal,
state, county or municipal government, or any department, agency, bureau or
other similar type body obtaining authority therefrom, or created pursuant to
any law.
(vii) "NOTICE" shall mean, in addition to its ordinary
meaning, any written communication of any nature, whether in the form of
correspondence, memoranda, order, directive or otherwise.
(viii) "TANK LAWS" shall mean the New York Bulk Storage
Law, ECL Section 17-1743, the New York Hazardous Substances Bulk Storage Act,
ECL Section 40-0101 ET SEQ., and the federal Underground Storage Tank Law
(Subtitle I) of the Resource Conservation and Recovery Act, as amended, 42
U.S.C. Section 6901 ET SEQ., together with any amendments thereto, regulations
promulgated thereunder, and all substitutions thereof, and any successor
legislation and regulations.
(ix) "UNDERGROUND STORAGE TANK" shall mean each and
every "underground storage tank," whether or not subject to the Tank Laws, as
well as the "monitoring system," the "leak detection system," the "discharge
detection system" and the "tank system" associated with the "underground storage
tank," as those terms are defined by the Tank Laws.
4.3 All representations and warranties made by RM Eastview in this
Agreement shall not be merged in the execution and delivery of the Assignment
and shall instead survive the Closing Date for a period of one (1) year. RM
Eastview agrees to indemnify and defend and to hold Xxxx-Xxxx harmless from and
against any and all claims, liabilities, losses, deficiencies, and damages, as
well as reasonable expenses (including attorneys, consulting and engineering
fees), and interest and penalties related thereto, incurred by Xxxx-Xxxx by
reason of or resulting from any breach, inaccuracy, incompleteness or
nonfulfillment of the representations, warranties, covenants and agreements of
RM Eastview contained in this Agreement. Notwithstanding the foregoing, to the
extent that the County shall certify in its landlord estoppel certificate as to
any of the matters contained in the representations and warranties made by RM
Eastview in this Section 4, then such representation and/or warranty by RM
Eastview as to such matters shall terminate. In no event shall RM Eastview's
liability on account of a failure of a representation or warranty exceed
$250,000 in the aggregate, unless the same results from the gross negligence or
willful misconduct of RM Eastview. In addition, Xxxx-Xxxx shall not be entitled
to make a claim against RM Eastview from and after the Closing if any senior
executive officer of Xxxx-Xxxx or its affiliates had actual knowledge of the
matter which is the subject of the failure of such representation or warranty.
4.4 Xxxx-Xxxx acknowledges and agrees that, except as provided in
this Agreement, RM Eastview has not made any representations or warranties of
any kind or character whatsoever, whether express or implied, with respect to
the Property and that, except as provided in this Agreement, Xxxx-Xxxx accepts
the Property in its "AS IS" condition. Xxxx-Xxxx
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acknowledges that it is not in a significantly disparate bargaining position
with respect to RM Eastview in connection with the transaction contemplated by
this Agreement and that Xxxx-Xxxx was represented by legal counsel in connection
with this transaction.
5. REPRESENTATIONS AND WARRANTIES OF XXXX-XXXX
5.1 In order to induce RM Eastview to perform as required
hereunder, Xxxx-Xxxx hereby warrants and represents the following:
(a) Xxxx-Xxxx is a duly organized and validly existing
corporation organized under the laws of the State of Delaware and is authorized
to do 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 purchase
the Property in accordance with the terms and conditions hereof. All necessary
actions of Xxxx-Xxxx to xxxxxx such power and authority upon the person(s)
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 Xxxx-Xxxx, enforceable in accordance
with the terms of this Agreement. The performance by Xxxx-Xxxx 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 Xxxx-Xxxx 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 Xxxx-Xxxx is a party or by which its
assets are or may be bound.
5.2 All representations and warranties made by Xxxx-Xxxx in this
Agreement shall not be merged in the delivery of the Assignment and shall
survive the Closing Date for a period of one (1) year. From and after the
Closing, Xxxx-Xxxx agrees to indemnify and defend RM Eastview, and to hold RM
Eastview harmless, from and against any and all claims, liabilities, losses,
deficiencies and damages as well as reasonable expenses (including attorney's,
consulting and engineering and other professional and expert fees), and interest
and penalties related thereto, incurred by RM Eastview, by reason of or
resulting from any breach, inaccuracy, incompleteness or nonfulfillment of the
representations, warranties, covenants and agreements of Xxxx-Xxxx contained in
this Agreement.
5.3 RM Eastview acknowledges that it is not in a significantly
disparate bargaining position with respect to Xxxx-Xxxx in connection with the
transaction contemplated by this Agreement and that RM Eastview was represented
by legal counsel in connection with this transaction.
6. COVENANTS OF RM EASTVIEW
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6.1 RM Eastview covenants and agrees that between the date hereof
and the Closing Date, it shall perform or observe the following:
(a) RM Eastview shall not defer taking any actions or spending
any of its funds or otherwise manage the Property differently (other than in the
ordinary course of business) on account of the pending assignment of its
leasehold interest to Xxxx-Xxxx.
(b) RM Eastview shall, at its sole cost and expense and in a
manner reasonably satisfactory to Xxxx-Xxxx, take such action as may be
necessary (including but not limited to subdivision of the Land) to cause the
Property to be assessed as a separate tax lot. Notwithstanding anything to the
contrary in this Agreement, in the event that subdivision of the Land shall be
required so to cause the Property to be assessed as a separate tax lot, RM
Eastview shall (i) bear the cost of the survey of the Property, (ii) cause the
surveyor to update the survey as of the Closing Date, and (iii) have the general
survey exception removed from the Title Policy and the survey affirmatively
insured to Xxxx-Xxxx.
(c) RM Eastview shall not enter into any new agreements of any
nature whatsoever with respect to the Property or further modify any terms in
the Ground Lease or the Lease without Xxxx-Xxxx'x prior written consent, which
consent shall not be unreasonably withheld or delayed.
(d) RM Eastview shall not cause or permit its leasehold
interest in the Property to be alienated, mortgaged, licensed, encumbered or
otherwise transferred.
(e) RM Eastview shall make all required payments under any
mortgage affecting its leasehold interest in the Property within any applicable
grace period but without reimbursement by Xxxx-Xxxx therefor. RM Eastview shall
also comply with all other terms, covenants and conditions of any mortgage on
the Property to the extent such compliance by RM Eastview is required under the
Ground Lease.
(f) Up to and including the Closing Date, RM Eastview shall
maintain and keep such hazard, liability and casualty insurance policies in full
force and effect in such amounts and covering such risks sufficiently to protect
the Property and to protect, to a reasonable and prudent extent, the owner of
the Property, in such amounts as are required so as not to be deemed a
co-insurer, and for actual replacement cost, against any loss, damage, claim or
liability.
(g) All violations of statutes, ordinances, rules,
regulations, orders, codes, directives or requirements affecting the Property,
whether or not such violations are now noted in the records of or have been
issued by any Governmental Authorities (other than those caused by the actions
of Xxxx-Xxxx or its employees, affiliates or agents or the employees or agents
of its affiliates) shall be complied with by RM Eastview (if RM Eastview shall
be the party responsible for such compliance under the Ground Lease or
otherwise) prior to the Closing, and RM Eastview's leasehold interest in the
Property shall be assigned free of any such violations (including, without
13
limitation, violations of Environmental Laws).
(h) In addition to the foregoing, RM Eastview shall:
(i) promptly notify Xxxx-Xxxx of, and promptly
deliver to Xxxx-Xxxx, a certified true and complete copy of any Notice as
defined in Section 4.2(b)(vii) which RM Eastview may receive, on or before the
Closing Date, from any Governmental Authority concerning a violation of
Environmental Laws or Discharge of Contaminants;
(ii) contemporaneously with the signing and delivery
of this Agreement, and subsequently, promptly upon receipt by RM Eastview or its
representatives, deliver to Xxxx-Xxxx a certified true and complete copy of all
Environmental Documents; and
(iii) without any cost or expense to RM Eastview,
cooperate with Xxxx-Xxxx in all reasonable respects in connection with the
submission to and approval by, the requisite municipal authorities of all plans,
specifications, designs, surveys and studies required for the construction on
the Property of the improvements contemplated by Xxxx-Xxxx, including, without
limitation, the making of such submissions in RM Eastview's name.
7. EVALUATION PERIOD
7.1 For a period ending at 5:00 p.m. Eastern Time sixty (60) days
after the Effective Date (the "EVALUATION PERIOD"), Xxxx-Xxxx and its authorized
agents and representatives (for purposes of this Section 7, the "LICENSEE
PARTIES") shall have the right to enter upon the Property at all reasonable
times during normal business hours to perform an inspection of the Property.
Xxxx-Xxxx will provide to RM Eastview notice of the intention of Xxxx-Xxxx or
the other Licensee Parties to enter the Property at least 24 hours prior to such
intended entry and specify the intended purpose therefor and the inspections and
examinations contemplated to be made and with whom any Licensee Party will
communicate. At RM Eastview's option, RM Eastview may be present for any such
entry and inspection. Notwithstanding anything to the contrary contained herein,
no physical testing or sampling shall be conducted during any such entry by
Xxxx-Xxxx or any Licensee Party upon the Property without RM Eastview's specific
prior written consent.
7.2 During the Evaluation Period, Xxxx-Xxxx and the Licensee
Parties shall have the right to review and inspect, at Xxxx-Xxxx'x sole cost and
expense, all of the following which, to RM Eastview's knowledge, are in RM
Eastview's possession or control (collectively, the "DOCUMENTS"): all existing
environmental reports and studies of the Property that have been prepared for RM
Eastview (which Xxxx-Xxxx shall have the right to have updated at Xxxx-Xxxx'x
sole cost and expense), real estate tax bills, together with assessments
(special or otherwise), ad valorem and personal property tax bills, covering the
period of RM Eastview's ownership of the Property, and Permits and Licenses.
14
7.3 In the event that Xxxx-Xxxx determines, after its inspection
of the Documents and Property, that it does not want to proceed with the
transaction as set forth in this Agreement, Xxxx-Xxxx shall have the right to
terminate this Agreement by providing written notice to RM Eastview prior to the
expiration of the Evaluation Period. In the event Xxxx-Xxxx terminates this
Agreement in accordance with this Section 7.3, or under any other right of
termination as set forth herein, this Agreement shall be null and void and the
parties shall have no further obligation to each other. In the event this
Agreement is terminated, Xxxx-Xxxx shall return to RM Eastview all copies
Xxxx-Xxxx has made of the Documents and all copies of any studies, reports or
test results regarding any part of the Property obtained by Xxxx-Xxxx, before or
after the execution of this Agreement, in connection with Xxxx-Xxxx'x inspection
of the Property promptly following the time this Agreement is terminated for any
reason.
8. CLOSING
8.1 The consummation of the transaction contemplated hereunder
(the "CLOSING") shall take place at the offices of Xxxx-Xxxx Realty Corporation
located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx, (x) five (5) business days
after the expiration of the Evaluation Period or (ii) earlier upon five (5)
business days following notice by Xxxx-Xxxx to RM Eastview at any time before
the expiration of the Evaluation Period (the "CLOSING DATE").
8.2 On the Closing Date, RM Eastview shall, at its sole cost and
expense, deliver or cause to be delivered to Xxxx-Xxxx the following:
(a) an Assignment and Assumption of Lease in the form annexed
hereto as EXHIBIT B (the "ASSIGNMENT"), duly executed and acknowledged by RM
Eastview;
(b) a copy of the Ground Lease, and any amendments and/or
agreements thereto, duly executed and acknowledged by RM Eastview and the
County;
(c) an affidavit, and such other document or instruments
required by the Title Company, executed by RM Eastview certifying (i) against
any work done or supplies delivered to the Property which might be grounds for a
materialman's or mechanic's lien under or pursuant to the laws of the State of
New York, in form sufficient to enable the Title Company to affirmatively insure
Xxxx-Xxxx against any such lien, and (ii) that the signature(s) on the
Assignment is/are sufficient to bind RM Eastview and assign the Ground Lease to
Xxxx-Xxxx;
(d) affidavits and other instruments (including but not
limited to all organizational documents of RM Eastview, including operating
agreements, filed copies of limited liability certificates, articles of
organization, and good standing certificates) reasonably requested by Xxxx-Xxxx
and the Title Company evidencing the power and authority of RM Eastview to enter
into this Agreement and any documents to be delivered hereunder, and the
enforceability of the same;
(e) a certificate indicating that the representations and
warranties of RM
15
Eastview made in this Agreement are true and correct in all material respects as
of the Closing Date, or if there have been any changes, a description thereof;
(f) all proper instruments as shall be reasonably required for
the assignment to Xxxx-Xxxx of all right, title and interest (if any) of RM
Eastview in and to any award or payment made, or to be made, on account of (i)
any damage to the Property or any part thereof by reason of change of grade or
closing of any such street, road, highway or avenue, or (ii) any taking in
condemnation or eminent domain of any part of the Property;
(g) a certificate signed by a general partner of RM Eastview
to the effect that RM Eastview is not a "foreign person" as such 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;
(h) all such transfer and other tax declarations and returns
and information returns, duly executed and sworn to by RM Eastview, as may be
required of RM Eastview by law in connection with the assignment of the Lease to
Xxxx-Xxxx, including but not limited to Internal Revenue Service forms; and
(i) such other documents as may be reasonably required or
appropriate to effectuate the consummation of the transaction contemplated by
this Agreement.
8.3 On the Closing Date, Xxxx-Xxxx shall, at its sole cost and
expense, deliver or cause to be delivered to RM Eastview the following:
(a) the Consideration set forth in Section 2.1 of this
Agreement;
(b) the Assignment, duly executed and acknowledged by
Xxxx-Xxxx;
(c) a certificate indicating that the representations and
warranties of Xxxx-Xxxx made in this Agreement are true and correct as of the
Closing Date, or if there have been any changes, a description thereof; and
(d) such other documents as may be reasonably required or
appropriate to effectuate the consummation of the transaction contemplated by
this Agreement.
8.4 RM Eastview shall pay all state or county documentary stamps
or transfer taxes and recording fees and charges necessary or required in order
for the Assignment to be recorded in the appropriate county register's or
recorder's office. Xxxx-Xxxx shall pay all title insurance premiums and
examination fees and the costs (if any) of its due diligence investigations,
except as may specifically be provided for herein. Each party shall be
responsible for its own attorney's fees and one-half (1/2) of any reasonable
escrow fees. The provisions of this Section 8.4 shall survive the Closing.
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9. ADJUSTMENTS
9.1 The real estate taxes due and payable with respect to the
Property for the fiscal/calendar year in which the Closing occurs shall be
apportioned as of midnight on the date preceding the Closing. If the Closing
Date shall occur before the tax rate is fixed, the apportionment of real estate
taxes shall be upon the basis of the tax rate for the preceding year applied to
the latest assessed valuation, and if subsequent to the Closing Date, the real
estate taxes (by reason of change in either assessment or rate or for any other
reason) for the Property shall be determined to be higher or lower than those
that are apportioned, a new computation shall be made, and RM Eastview agrees to
pay Xxxx-Xxxx any increase shown by such recomputation and VICE VERSA.
9.2 Except as otherwise provided in this Agreement, the
adjustments shall be made in accordance with the customs in respect to title
closings in the State of New York. Any errors in calculations or adjustments
shall be corrected or adjusted as soon as practicable after the Closing.
9.3 The provisions of this Section 9 shall survive the Closing
Date.
10. CONDITIONS PRECEDENT TO CLOSING
10.1 The obligations of RM Eastview under this Agreement to assign
the Ground Lease and to perform the other covenants and obligations to be
performed by RM Eastview on or before the Closing Date shall be subject to the
following conditions (all or any of which may be waived, in whole or in part, by
RM Eastview):
(a) The representations and warranties made by Xxxx-Xxxx
herein shall be true and correct in all material respects with the same force
and effect as though such representations and warranties had been made on and as
of the Closing Date;
(b) RM Eastview shall have performed all covenants and
obligations undertaken by RM Eastview herein in all respects and complied with
all conditions required by this Agreement to be performed or complied with by it
on or before the Closing Date; and
(c) Xxxx-Xxxx shall have delivered to RM Eastview all of the
documents provided herein for said delivery.
10.2 The obligations of Xxxx-Xxxx to assume the Ground Lease and to
perform the other covenants and obligations to be performed by Xxxx-Xxxx on or
before the Closing Date shall be subject to the following conditions (all or any
of which may be waived, in whole or in part, by Xxxx-Xxxx):
(a) RM Eastview shall have taken, at its sole cost and expense
and in a manner reasonably satisfactory to Xxxx-Xxxx, such necessary action
(including but not limited to subdivision of the Land, if required) to cause the
Property to be assessed as a separate tax lot;
17
(b) The County shall have duly executed, acknowledged and
delivered to Xxxx-Xxxx a landlord estoppel certificate as provided for in
Section 22.1 of the Ground Lease;
(c) The survey of the Property shall include a certification
to Xxxx-Xxxx and its successors and assigns;
(d) The representations and warranties made by RM Eastview
herein shall be true and correct in all material respects with the same force
and effect as though such representations and warranties had been made on and as
of the Closing Date;
(e) RM Eastview shall have performed all covenants and
obligations undertaken by RM Eastview herein in all respects and complied with
all conditions required by this Agreement to be performed or complied with by it
on or before the Closing Date;
(f) The Title Company is unconditionally prepared to issue a
Title Policy meeting the requirements for an "insurable title" as set forth in
Section 3.3 hereof;
(g) The Property shall be in compliance with all Environmental
Laws;
(h) There shall not be any sewer moratorium affecting the
Property; and
(i) RM Eastview shall have delivered to Xxxx-Xxxx all of the
documents provided herein for said delivery.
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11. ASSIGNMENT OF THIS AGREEMENT
Xxxx-Xxxx may not assign its rights under this Agreement except (i) to
a subsidiary or subsidiaries which are wholly-owned, directly or indirectly, by
Xxxx-Xxxx, or (ii) to a partnership in which any such wholly-owned subsidiary or
subsidiaries owns, either directly or indirectly, at least seventy-five (75%)
percent of the profits, losses and cash flow thereof, and controls the
management of the affairs of such partnership (any such entity, a "PERMITTED
ASSIGNEE"). In the event of an assignment by Xxxx-Xxxx to a Permitted Assignee,
Xxxx-Xxxx shall have the right at Closing to direct RM Eastview to assign the
Ground Lease and such other closing instruments to such Permitted Assignee.
Notwithstanding the foregoing, Xxxx-Xxxx shall not be relieved of its
obligations under this Agreement. Any other assignment or attempted assignment
shall constitute a default hereunder and shall be deemed null and void and of no
force and effect.
12. BROKER
Xxxx-Xxxx and RM Eastview represent that they have not dealt with any
brokers, finders or salesmen in connection with this transaction, and agree to
indemnify, defend and hold the other party 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 claim
for fees or commissions made through the other party. The provisions of this
Section shall survive the Closing or other termination of this Agreement.
13. CONDEMNATION
13.1 In the event that, prior to the Closing, RM Eastview shall
become aware of the institution or threatened institution of any proceeding
(judicial, administrative or otherwise), by eminent domain or otherwise, which
proposes to affect a material portion of the Property, RM Eastview shall give
notice (the "CONDEMNATION NOTICE") to Xxxx-Xxxx promptly thereafter. Within
fifteen (15) days following receipt of the Condemnation Notice, Xxxx-Xxxx shall
have the right and option to terminate this Agreement by giving RM Eastview
written notice thereof.
13.2 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
if the estimate of the damage, which estimate shall be performed by an insurance
adjuster and Xxxx-Xxxx'x architect, shall exceed three (3%) percent of the
Consideration. In the event that Xxxx-Xxxx shall elect to terminate this
Agreement in accordance with this Section, neither party shall have any further
liability or obligations to the other. In the event that Xxxx-Xxxx shall not
elect to terminate this Agreement, RM Eastview shall promptly assign all
proceeds of such taking to Xxxx-Xxxx, the same shall be Xxxx-Xxxx'x sole
property, and Xxxx-Xxxx shall have the sole right to settle any claim in
connection with the Property.
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14. PUBLICATION; CONFIDENTIALITY
14.1 Xxxx-Xxxx shall have the right to make such public
announcements or filings with respect to the transaction contemplated by this
Agreement as Xxxx-Xxxx may xxxx reasonably prudent; PROVIDED, HOWEVER, that
Xxxx-Xxxx shall not issue any such announcement without the prior approval of RM
Eastview as to the text of the announcement, which approval shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Xxxx-Xxxx
shall, without the prior approval of RM Eastview, be entitled to make such
filings or announcements as may be necessary upon the advice of counsel or as
required by law.
14.2 Without the prior written consent of the other party, until
Xxxx-Xxxx shall make a public announcement as provided in Section 13.1, neither
Xxxx-Xxxx nor RM Eastview shall disclose, and RM Eastview and Xxxx-Xxxx will
direct their respective representatives, employees, agents and consultants not
to disclose, to any person or entity the fact that Xxxx-Xxxx and RM Eastview
have entered into an agreement to assign the Lease or any of the terms,
conditions or other facts with respect to this Agreement. Notwithstanding the
foregoing, either party may disclose those terms and conditions which are
required to be disclosed pursuant to law or in order to comply with this
Agreement; PROVIDED, HOWEVER, that the disclosing party (i) shall use its best
efforts to limit the disclosure to the information necessary, (ii) shall advise
any party to whom disclosure is made that said terms and conditions are subject
to a confidentiality requirement, and (iii) shall obtain the agreement of said
party to keep any information disclosed to it as confidential. In the event of a
breach of the provisions of this Section 14, the non-breaching party shall be
entitled to all of its rights and remedies under this Agreement, at law and/or
in equity.
15. REMEDIES
15.1 In the event that Xxxx-Xxxx fails to perform on the Closing
Date, this Agreement shall terminate and neither party shall have any further
rights or obligations hereunder, except that RM Eastview shall be entitled to
such remedies which it may have against Xxxx-Xxxx under this Agreement, at law,
or in equity by reason of Xxxx-Xxxx'x default.
15.2 (a) If, after complying with the terms of this Agreement, RM
Eastview shall be unable to assign the Lease in accordance with the terms of
this Agreement, then the sole obligation and liability of RM Eastview shall be
to perform in accordance with Section 3.7, following which this Agreement shall
be deemed canceled and the parties hereto shall be released of all obligations
and liabilities under this Agreement, except for those provisions which are
expressly stated to survive the cancellation or termination of this Agreement.
(b) In the event of any default on the part of RM Eastview or
RM Eastview's failure to comply with any representation, warranty or agreement
by RM Eastview in any material respect, Xxxx-Xxxx shall be entitled (i) to
terminate this Agreement upon notice to RM Eastview, in which event neither
party shall thereafter have any further obligations under this Agreement, except
as otherwise provided herein; (ii) to commence an action against RM Eastview
seeking specific performance of RM Eastview's obligations under this Agreement;
(iii)
20
to pursue all of its remedies under this Agreement, at law or in equity;
or (iv) to do any or all of the above.
15.3 The acceptance of the Assignment by Xxxx-Xxxx shall be deemed
a full performance and discharge of every agreement and obligation of RM
Eastview required to be performed under this Agreement, except those provisions
which are expressly stated in this Agreement to survive the Closing or which, by
their terms, cannot be performed or complied with until after the Closing.
15.4 The provisions of this Section 15 shall survive the Closing or
earlier termination of this Agreement.
16. NOTICES
16.1 All notices, demands, requests, or other writings
(individually, a "NOTICE" and collectively, "NOTICES") required to be given or
made or sent under this Agreement, 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
using any nationally-recognized overnight delivery service with all transmittal
fees prepaid, properly addressed, and sent to the following:
IF TO XXXX-XXXX: Xxxx-Xxxx Realty Acquisition Corp.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
with a separate notice to: Attn: Xxxxxxxx X. Xxxxx, CEO
Tel: (000) 000-0000
Fax: (000) 000-0000
IF TO RM EASTVIEW: Xxxxxx Xxxxxx - Eastview North Company,L.P.
c/o Xxxxxx Xxxxxx Company, LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
21
with a copy to: Xxxxxx Xxxxxx Company, LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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 given and effective when received or when delivery is
refused, and the records of the delivery service shall be conclusive with
respect to the date of receipt or refusal of delivery. 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.
16.2 Any Notice which, pursuant to this Agreement, requires a
response within a certain number of days or gives the other party certain rights
if said party responds within a certain number of days shall set forth such
requirement or right in order for the Notice to be effective.
17. MISCELLANEOUS
17.1 If any instrument or deposit is necessary in order to obviate
a defect in or objection or exception to title, the following shall apply: (a)
any such instrument shall be in such form and shall contain such terms and
conditions as may be required by the Title Company to omit any defect, objection
or exception to title, (b) any such deposit shall be made with the Title
Company, and (c) RM Eastview agrees to execute, acknowledge and deliver any such
instrument and to make any such deposit.
17.2 This Agreement (a) constitutes the entire agreement between
the parties and incorporates and supersedes all prior negotiations and
discussions between the parties, (b) cannot be amended, waived or terminated
orally, but only by an agreement in writing signed by the party to be charged,
(c) shall be interpreted and governed by the laws of the State of New York, and
(d) shall be binding upon the parties hereto and their respective successors and
assigns.
17.3 The caption headings in this Agreement are for convenience
only, 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.
17.4 From time to time, each party shall 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, and the foregoing requirement shall survive the Closing. Nothing
contained in this Agreement shall be deemed to create any rights or
22
obligations of partnership, joint venture or similar association between RM
Eastview and Xxxx-Xxxx. 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 RM Eastview,
Xxxx-Xxxx or the party whose counsel drafted this Agreement.
17.5 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 in one or more counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which when taken together
shall constitute but one and the same instrument.
17.6 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 dictates otherwise. All of the
Schedules and Exhibits annexed hereto are, by this reference, incorporated
herein.
17.7 In the event of any litigation or alternative dispute
resolution between RM Eastview and Xxxx-Xxxx 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 the
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 date first above written.
XXXXXX XXXXXX -EASTVIEW NORTH COMPANY, L.P.
A NEW YORK LIMITED PARTNERSHIP
By: Xxxxxx Xxxxxx Company, LLC,
its general partner
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Manager
XXXX-XXXX REALTY ACQUISITION CORP.
A DELAWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
24
