Exhibit 2.5
154 Contract of sale for New York office, Distribution by Xxxxxx
commercial and multi-family Xxxxxxxx, Inc.
residential premises. NYC 10013
Prepared by the Real Property Committee of the Association of the Bar of the
City of New York.
NOTE: This form is intended to cover matters common to most transactions.
Provisions should be added, altered or deleted to
suit the circumstances of a particular transaction.
Contract of Sale -- Office, Commercial and Multi-Family Residential Premises
Table of Contents
Section 1. Sale of premises and acceptable title
Section 2. Purchase price, acceptable funds, existing mortgages, purchase money
mortgage, escrow of downpayment and foreign persons
Section 3. The closing
Section 4. Representations and warranties of seller
Section 5. Acknowledgements of purchaser
Section 6. Seller's obligations as to leases
Section 7. Responsibility for violations
Section 8. Destruction, damage or condemnation
Section 9. Covenants of seller
Section 10. Seller's closing obligations
Section 11. Purchaser's closing obligations
Section 12. Apportionments
Section 13. Objections to title, failure of seller or purchaser to perform and
vendee's lien
Section 14. Broker
Section 15. Notices
Section 16. Limitations on survival of representations, warranties, covenants
and other obligations
Section 17. Gains tax and miscellaneous provisions
Signatures and receipt by escrowee
Schedule A. Description of premises (to be attached)
Schedule B. Permitted exceptions
Schedule C. Purchase price
Schedule D. Miscellaneous
Schedule E. Rent schedule (to be attached)
CONTRACT dated March 25, 1998 between
Nassau Street Partners, a New York limited partnership, having
offices c/x Xxxxxx Xxxx Property Management, Inc., 000 Xxxxx Xxxxxx
- Xxxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Seller") and
XX Xxxxx Operating Partnership, L.P., a Delaware limited
partnership, having an address c/o XX Xxxxx Realty Corp., 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Purchaser").
Seller and Purchaser hereby covenant and agree as follows:
Section 1. Sale of Premises and Acceptable Title
ss.1.01. Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, at the price and upon the terms and conditions set forth in this
contract: (a) the parcel of land more particularly described in Schedule A
attached hereto ("Land") [INSERT 1]; (b) [INSERT 2] all buildings and
improvements situated on the Land (collectively, "Building"); (c) all right,
title and interest of Seller, if any, in and to the land lying in the bed of any
street or highway in front of or adjoining the Land to the center line thereof
and to any unpaid award for any taking by condemnation or any damage to the Land
by reason of a change of grade of any street or highway; (d) the appurtenances
and all the estate and rights of Seller in and to the Land and Building; and (e)
all right, title and interest of Seller, if any, in and to the fixtures, [INSERT
2A] equipment or appurtenant to the Building (collectively, "Premises"). [INSERT
2B] The Premises are located at or known as
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
ss.1.02. Seller shall convey and Purchaser shall accept fee simple title
to the Premises in accordance with the terms of this contract, subject only to:
(a) the matters set forth in Schedule B attached hereto (collectively,
"Permitted Exceptions"); and (b) such other matters as (i) the title insurer
specified in Schedule D attached hereto (or if none is so specified, then any
title insurer licensed to do business by the State of New York) shall be
willing, without special premium, to omit as exceptions to coverage or to except
with insurance against collection out of or enforcement against the Premises.
Section 2. Purchase Price, Acceptable Funds, Existing Mortgages, Purchase Money
Mortgage and Escrow of Downpayment
ss.2.01. The purchase price ("Purchase Price") to be paid by Purchaser to
Seller for the Premises as provided in Schedule C attached hereto is
$10,500,000.00
ss.2.02 All monies payable under this contract, unless otherwise specified
in this contract, shall be paid by (a) certified checks of Purchaser or any
person making a purchase money loan to Purchaser drawn on any bank, savings
bank, trust company or savings and loan association having a banking office in
the State of New York [INSERT 3] official bank checks drawn by any such banking
institution, payable to the order of Seller [INSERT 4]; except that uncertified
checks of Purchaser payable to the order of Seller up to the amount of one-half
of one percent of the Purchase Price shall be acceptable for sums payable to
Seller at the Closing.
ss.2.05. (a) The sum paid under paragraph (a) of Schedule C [INSERT 5]
other sums paid on account of the Purchase Price prior to the Closing
(collectively, "Downpayment") [INSERT 6] paid by check or checks drawn to the
order of and delivered to [INSERT 7] ("Escrowee"). The Escrowee shall hold the
proceeds thereof in escrow in a special bank account (or as otherwise agreed in
writing by Seller, Purchaser and Escrowee) until the Closing or sooner
termination of this contract and shall pay over or apply such proceeds in
accordance with the terms of this section. Escrowee [INSERT 8] hold such
proceeds in an interest-bearing account. Any interest earned thereon shall be
paid to the same party entitled to the escrowed proceeds, and the party
receiving such interest shall pay any income taxes thereon. The tax
identification numbers of the parties are either set forth in Schedule D or
shall be furnished to Escrowee upon request. At the Closing, such proceeds and
the interest thereon, if any, shall be paid by Escrowee to Seller [INSERT 9]. If
for any reason the Closing does not occur and either party makes a written
demand upon Escrowee for payment of such amount, Escrowee shall give written
notice to the other party of such demand. If Escrowee does not receive a written
objection from the other party to the proposed payment within 10 business days
after the giving of such notice, Escrowee is hereby authorized to make such
payment. If Escrowee does receive such written objection within such 10 day
period or if for any other reason Escrowee in good faith shall elect not to make
such payment, Escrowee shall continue to hold such amount until otherwise
directed by written instructions from the parties to this contract or a final
judgment of a court. However, Escrowee shall have the right at any time to
deposit the escrowed proceeds and interest thereon, if any, with the clerk of
the Supreme Court of the county in which the Land is located. Escrowee shall
give written notice of such deposit to Seller and Purchaser. Upon such deposit
Escrowee shall be relieved and discharged of all further obligations and
responsibilities hereunder.
(b) The parties acknowledge that Escrowee is acting solely as a
stakeholder at their request and for their convenience, that Escrowee shall not
be deemed to be the agent of either of the parties, and that Escrowee shall not
be liable to either of the parties for any act or omission on its part unless
taken or suffered in bad faith, in willful disregard of this contract or
involving gross negligence. Seller and Purchaser shall jointly and severally
indemnify and hold Escrowee harmless from and against all costs, claims and
expenses, including reasonable attorneys' fees, incurred in connection with the
performance of Escrowee's duties hereunder, except with respect to actions or
omissions taken or suffered by Escrowee in bad faith, in willful disregard of
this contract or involving gross negligence on the part of Escrowee.
[INSERT 10]
(c) Escrowee has acknowledged agreement to these provisions by
signing in the place indicated on the signature page of this contract.
Section 3. The Closing
ss.3.01. Except as otherwise provided in this contract, the closing of
title pursuant to this contract ("Closing") shall take place on the scheduled
date and time of closing specified in Schedule D (the actual date of the Closing
being herein referred to as "Closing Date") at the place specified in Schedule
D.
Section 4. Representations and Warranties of Seller
Seller represents and warrants to Purchaser as follows:
ss.4.01. Unless otherwise provided in this contract, Seller is the sole
owner of the Premises.
ss.4.02.
ss.4.03. If any Leases which have been exhibited to and initialed by
Purchaser or its representative contain provisions that are inconsistent with
the foregoing representations and warranties, such representations and
warranties shall be deemed modified to the extent necessary to eliminate such
inconsistency and to conform such representations and warranties to the
provisions of the Leases.
ss.4.04.
ss.4.05.
ss.4.06. [INSERT 11] lists all insurance policies presently affording
coverage with respect to the Premises, and the information contained therein is
accurate as of the date set forth therein or, if no date is set forth therein,
as of the date hereof.
ss.4.07. [INSERT 12] lists all employees presently employed at the
Premises, and the information contained therein is accurate as of the date
hereof, and, except as otherwise set forth in such schedule, [INSERT 13] covered
by a union contract and there are no retroactive increases or other accrued and
unpaid sums owed to any employee.
ss.4.08.
ss.4.09. The copy of a certificate of occupancy for the Premises exhibited
to and initialed by Purchaser or its representative, is a true copy of the
original and such certificate has not been amended, but Seller makes no
representation as to compliance with any such certificate [INSERT 13A].
ss.4.10. The assessed valuation and real estate taxes set forth in
Schedule D, if any, are the assessed valuation of the Premises and the taxes
paid or payable with respect thereto for the fiscal year indicated in such
schedule. Except as otherwise set forth in Schedule D, there are no tax
abatements or exemptions affecting the Premises.
ss.4.11. [INSERT 14]
ss.4.12. Seller has no actual knowledge that any incinerator, boiler or
other burning equipment on the Premises is being operated in violation of
applicable law. [INSERT 15] copies of a certificate or certificates of operation
therefor have been exhibited to and initialed by Purchaser or its
representative, such copies are true copies of the originals.
ss.4.13. Except as otherwise set forth in Schedule D, Seller has no actual
knowledge of any assessment payable in annual installments, or any part thereof,
which has become a lien on the Premises.
Section 5. Acknowledgments of Purchaser
Purchaser acknowledges that:
ss.5.01. Purchaser has inspected the Premises, is fully familiar with the
physical condition and state of repair thereof, and, subject to the provisions
of ss.7.01, ss.8.01, and ss.9.04, shall accept the Premises "as is" and in their
present condition, subject to reasonable use, wear, tear and natural
deterioration between now and the Closing Date, without any reduction in the
Purchase Price for any change in such condition by reason thereof subsequent to
the date of this contract.
ss.5.02. In entering into this contract, Purchaser has not been induced by
and has not relied upon any representations, warranties or statements, whether
express or implied, made by Seller or any agent, employee or other
representative of Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth in this
contract, whether or not any such representations, warranties or statements were
made in writing or orally. [INSERT 15A]
Section 6. Seller's Obligations as to Leases
ss.6.01. Unless otherwise provided in a schedule attached to this
contract, between the date of this contract and the Closing, Seller shall not,
without Purchaser's prior written consent, : (a) amend, renew or extend any
[INSERT 16] Lease in any respect, unless required by law; (b) grant a written
lease to any tenant occupying space pursuant to a Tenancy [INSERT 17]; or (c)
terminate any [INSERT 16] Lease or Tenancy.
ss.6.02.
ss.6.03. If any space is vacant on the Closing Date, Purchaser shall
accept the Premises subject to such vacancy, provided that the vacancy was not
permitted or created by Seller in violation of any restrictions contained in
this contract [INSERT 20]. Seller shall not grant any concessions or rent
abatements for any period following the Closing without Purchaser's prior
written consent. Seller shall not apply all or any part of the security deposit
of any tenant unless such tenant has vacated the Premises.
ss.6.04. [INSERT 21] Seller does not warrant that any particular Lease or
Tenancy will be in force or effect at the Closing or that the tenants will have
performed their obligations thereunder. The termination of any Lease or Tenancy
prior to the Closing by reason of the tenant's default shall not affect the
obligations of Purchaser under this contract in any manner or entitle Purchaser
to an abatement of or credit against the Purchase Price or give rise to any
other claim on the part of Purchaser.
Section 7. Responsibility for Violations
ss.7.01. [INSERT 22] notes or notices of violations of law or governmental
ordinances, orders or requirements which were noted or issued prior to [INSERT
22A] the date of this contract by any governmental department, agency or bureau
having jurisdiction as to conditions affecting the Premises and all liens which
have attached to the Premises prior to the Closing pursuant to the
Administrative Code of the City of New York, if applicable, shall be the sole
responsibility of Purchaser.
ss.7.02.
ss.7.03. Regardless of whether a violation has been noted or issued prior
to the date of this contract, Seller's failure to remove or fully comply with
violations shall not be an objection to title.
ss.7.04. If required, Seller, upon written request by Purchaser, shall
promptly furnish to Purchaser written authorizations to make any necessary
searches for the purposes of determining whether notes or notices of violations
have been noted or issued with respect to the Premises or liens have attached
thereto.
Section 8. Destruction, Damage or Condemnation
ss.8.01. The provisions of Section 5-1311 of the General Obligations Law
shall apply to the sale and purchase provided for in this contract. [INSERT 23]
Section 9. Covenants of Seller
Seller covenants that between the date of this contract and the Closing:
ss.9.01.
ss.9.02. Seller shall not modify or amend any Service Contract or enter
into any new service contract unless the same is terminable without penalty.
[INSERT 23A]
ss.9.03. Seller shall maintain in full force and effect until the Closing
the insurance policies described in [INSERT 24] or renewals thereof for no more
than one year of those expiring before the Closing.
ss.9.04. No fixtures, equipment or personal property included in this sale
shall be removed from the Premises unless the same are replaced with similar
items of at least equal quality prior to the Closing.
ss.9.05. Seller shall not withdraw, settle or otherwise compromise any
protest or reduction proceeding affecting real estate taxes assessed against the
Premises for any fiscal period in which the Closing is to occur or any
subsequent fiscal period without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld. Real estate tax refunds and credits
received after the Closing Date which are attributable to the fiscal tax year
during which the Closing Date occurs shall be apportioned between Seller and
Purchaser, after deducting the expenses of collection thereof, which obligation
shall survived the Closing. [INSERT 24A]
ss.9.06. Seller shall allow Purchaser or Purchaser's representatives
access to the Premises, the Leases and other documents required to be delivered
under this contract upon reasonable prior notice at reasonable times.
Section 10. Seller's Closing Obligations
At the Closing, Seller shall deliver the following to Purchaser:
ss.10.01. A statutory form of bargain and sale deed without covenant
against grantor's acts containing the covenant required by Section 13 of the
Lien Law, and properly executed in proper form for recording so as to convey the
title required by this contract.
ss.10.02. All [INSERT 16] Leases initialed by Purchaser and all others in
Seller's possession. [INSERT 25]
ss.10.03. A schedule of all cash security deposits and a check or credit
to Purchaser in the amount of such security deposits, including any interest
thereon, held by Seller on the Closing Date under the [INSERT 16] Leases or, if
held by an institutional Lender, an assignment to Purchaser and written
instructions to the holder of such deposits to transfer the same to Purchaser,
and appropriate instruments of transfer or assignment with respect to any lease
securities which are other than cash [INSERT 26]
ss.10.04. A schedule updating the [INSERT 27] and setting forth all
arrears in rents and all prepayments of rents. [INSERT 28]
ss.10.05. All Service Contracts initialed by Purchaser and all others in
Seller's possession which are in effect on the Closing Date and which are
assignable by Seller.
ss.10.06. An assignment to Purchaser, [INSERT 29] of all of the interest
of Seller in those Service Contracts, insurance policies, certificates, permits
and other [INSERT 29A] documents to be delivered to Purchaser at the Closing
which are then in effect and are assignable by Seller.
SS.10.07. [INSERT 30]
ss.10.10. To the extent they are then in Seller's possession and not
posted at the Premises, certificates, licenses, permits, authorizations and
approvals issued for or with respect to the Premises by governmental and
quasi-governmental authorities having jurisdiction.
ss.10.11. Such affidavits as Purchaser's title company shall reasonably
require in order to omit from its title insurance policy all exceptions for
judgments, bankruptcies or other returns against persons or entities whose names
are the same as or similar to Seller's name. [INSERT 31]
ss.10.12 Checks to the order of the appropriate officers in payment of all
applicable real property transfer taxes and copies of any required tax returns
therefor executed by Seller, which checks shall be certified or official bank
checks if required by the taxing authority, unless Seller elects to have
Purchaser pay any of such taxes and credit Purchaser with the amount thereof.
[INSERT 31A]
ss.10.13. To the extent they are then in Seller's possession, copies of
current painting and payroll records. Seller shall make all other Building and
tenant files and records available to Purchaser for copying, which obligation
shall survive the Closing.
ss.10.14. An original letter, [INSERT 32] executed by Seller or by its
agent, advising the tenants of the sale of the Premises to Purchaser and
directing that rents and other payments thereafter be sent to Purchaser or as
Purchaser may direct.
ss.10.17. Possession of the Premises in the condition required by this
contract, subject to the Leases and Tenancies, and keys therefor.
ss.10.18. Any other documents required by this contract to be delivered by
Seller.
Section 11. Purchaser's Closing Obligations
At the Closing, Purchaser shall:
ss.11.01. Deliver to Seller checks [INSERT 34] in payment of the portion
of the Purchase Price payable at the Closing, as adjusted for apportionments
under Section 12.
ss.11.03. Deliver to Seller an agreement indemnifying and agreeing to
defend Seller against any claims made by tenants with respect to tenants'
security deposits to the extent paid, credited or assigned to Purchaser under
ss.10.03. [INSERT 35]
ss.11.04. Cause the deed to be recorded, duly complete all required real
property transfer tax returns and cause all such returns and checks in payment
of such taxes to be delivered to the appropriate officers promptly after the
Closing.
ss.11.05. Deliver any other documents required by this contract to be
delivered by Purchaser.
Section 12. Apportionments
ss.12.01. The following apportionments shall be made between the parties
at the Closing as of the close of buisness on the day prior to the Closing Date:
(a) prepaid rents and Additional Rents (as defined in ss.12.03);
(b)
(c) real estate taxes, water charges, sewer rents and vault charges, if
any, on the basis of the fiscal period for which assessed, except that if there
is a water meter on the Premises, apportionment at the Closing shall be based on
the last available reading, subject to adjustment after the Closing when the
next reading is available;
(d) wages, vacation pay, pension and welfare benefits and other fringe
benefits of all persons employed at the Premises whose employment was not
terminated at or prior to the Closing;
(e) value of fuel stored on the Premises, at the price then charged by
Seller's supplier, including any taxes;
[INSERT 36]
(f) charges under Service Contracts or permitted renewals or replacements
thereof;
(g) Permitted administrative charges, if any, on tenants' security
deposits;
(j) Reletting Expenses under ss.6.02, if any; and
(k) any other items listed in Schedule D.
If the Closing shall occur before a new tax rate is fixed, the apportionment of
taxes at the Closing shall be upon the basis of the old tax rate for the
preceding period applied to latest assessed valuation. Promptly after the new
tax rate is fixed, the apportionment of taxes shall be recomputed. Any
discrepancy resulting from such recomputation and any errors or omissions in
computing apportionments at Closing shall be promptly corrected, which
obligations shall survive the Closing.
ss.12.02. If any tenant is in arrears in the payment of rent on the
Closing Date, rents received from such tenant after the Closing shall be applied
in the following order of priority: (a) first to the month preceding the month
in which the Closing occurred; (b) then to the month in which the Closing
occurred; (c) then to any month or months following the month in which the
Closing occurred; and (d) then to the period prior to the month preceding the
month in which the Closing occurred. If rents or any portion thereof received by
Seller or Purchaser after the Closing are payable to the other party by reason
of this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees, costs and expenses of collection thereof, shall be
promptly paid to the other party [INSERT 37], which obligation shall survive the
Closing.
ss.12.03. If any tenants are required to pay percentage rent, escalation
charges for real estate taxes, operating expenses, cost-of-living adjustments
[INSERT 37A] or other charges of a similar nature ("Additional Rents") and any
Additional Rents are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
Purchaser shall promptly pay to Seller [INSERT 38] Seller's proportionate share
thereof, less a proportionate share of any reasonable attorneys' fees, costs and
expenses of collection thereof, if and when the tenant paying the same has made
all payments of rent and Additional Rent then due to Purchaser pursuant to the
tenant's Lease, which obligation shall survive the Closing. [INSERT 39]
Section 13. Objections to Title, Failure of Seller or Purchaser to Perform and
Vendee's Lien
ss.13.01. Purchaser shall promptly order an examination of title and shall
cause a copy of the title report to be forwarded to Seller's attorney upon
receipt. Seller shall be entitled to a reasonable adjournment or adjournments of
the Closing for up to 60 days to remove any defects in or objections to title
noted in such title report and any other defects or objections which may be
disclosed on or prior to the Closing Date.
ss.13.02. If Seller shall be unable to convey title to the Premises at the
Closing in accordance with the provisions of this contract or if Purchaser shall
have any other grounds under this contract for refusing to consummate the
purchase provided for herein, Purchaser, nevertheless, may elect to accept such
title as Seller may be able to convey with a credit against the monies payable
at the Closing equal to the reasonably estimated cost to cure the same (up to
the Maximum Expense described below), but without any other credit or liability
on the part of Seller. If Purchaser shall not so elect, Purchaser may terminate
this contract and the sole liability of Seller shall be to refund the
Downpayment to Purchaser and to reimburse Purchaser for the net cost of title
examination, but not to exceed the net amount charged by Purchaser's title
company therefor without issuance of a policy, and the net cost of updating the
existing survey of the Premises. Upon such refund and reimbursement, this
contract shall be null and void and the parties hereto shall be relieved of all
further obligations and liability other than any arising under Section 14.
Seller shall not be required to bring any action or proceeding or to incur any
expense in excess of the Maximum Expense specified in Schedule D to cure any
title defect or to enable Seller otherwise to comply with the provisions of this
contract, but the foregoing shall not permit Seller to refuse to pay off at the
Closing. [INSERT 39A]
ss.13.03. Any unpaid taxes, assessments, water charges and sewer rents,
together with the interest and penalties thereon to a date not less than two
days following the Closing Date, and any other liens and encumbrances which
Seller is obligated to pay and discharge or which are against corporations,
estates or other persons in the chain of title, together with the cost of
recording or filing any instruments necessary to discharge such liens and
encumbrances of record, may be paid out of the proceeds of the monies payable at
the Closing if Seller delivers to Purchaser on the Closing Date official bills
for such taxes, assessments, water charges, sewer rents, interest and penalties
and instruments in recordable form sufficient to discharge any other liens and
encumbrances of record. Upon request made a reasonable time before the Closing,
Purchaser shall provide at the Closing separate checks for the foregoing payable
to the order of the holder of any such lien, charge or encumbrance and otherwise
complying with ss.2.02. If Purchaser's title insurance company is willing to
insure [INSERT 40] such charges, liens and encumbrances, then, Seller shall have
the right in lieu of payment and discharge to deposit with the title insurance
company such funds or assurances or to pay such special or additional premiums
as the title insurance company may require in order to so insure. In such case
the charges, liens and encumbrances with respect to which the title insurance
company has agreed so to insure shall not be considered objections to title.
ss.13.04. If Purchaser shall default in the performance of its obligation
under this contract to purchase the Premises, the sole remedy of Seller shall be
to retain the Downpayment as liquidated damages for all loss, damage and expense
suffered by Seller, including without limitation the loss of its bargain.
[INSERT 40A]
ss.13.05. Purchaser shall have a vendee's lien against the Premises for
the amount of the Downpayment, but such lien shall not continue after default by
Purchaser under this contract.
Section 14. Broker
ss.14.01. If a broker is specified in Schedule D, Seller and Purchaser
mutually represent and warrant that such broker is the only broker with whom
they have dealt in connection with this contract that neither Seller nor
Purchaser knows of any other broker who has claimed or may have the right to
claim a commission in connection with this transaction, unless otherwise
indicated in Schedule D. The commission of such broker shall be paid pursuant to
separate agreement by the party specified in Schedule D. If no broker is
specified in Schedule D, the parties acknowledge that this contract was brought
about by direct negotiation between Seller and Purchaser and that neither Seller
nor Purchaser knows of any broker entitled to a commission in connection with
this transaction. Unless otherwise provided in Schedule D, Seller and Purchaser
shall indemnify and defend each other against any costs, claims or expenses,
including attorneys' fees, arising out of the breach on their respective parts
of any representations, warranties or agreements contained in the paragraph. The
representations and obligations under this paragraph shall survive the Closing
or, if the Closing does not occur, the termination of this contract.
Section 15. Notices
ss.15.01.
Section 16. Limitations on Survival of Representations, Warranties, Covenants
and other Obligations
ss.16.02. The delivery of the deed by Seller, and the acceptance thereof
by Purchaser, shall be deemed the full performance and discharge of every
obligation on the part of Seller to be performed hereunder, except those
obligations of Seller which are expressly stated in this contract to survive the
Closing.
Section 17. Miscellaneous Provisions
ss.17.01. No assignment of Purchaser's rights under this contract shall be
effective against Seller unless and until an executed counterpart of the
instrument of assignment shall have been delivered to Seller and Seller shall
have been furnished with the name and address of the assignee. The term
"Purchaser" shall be deemed to include the assignee under any such effective
assignment.
ss.17.02. This contract embodies and constitutes the entire understanding
between the parties with respect to the transaction contemplated herein, and all
prior agreements, understandings, representations and statements, oral or
written, are merged into this contract. Neither this contract nor any provision
hereof may be waived, modified, amended, discharged or terminated except by an
instrument signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument.
ss.17.03. This contract shall be governed by, and construed in accordance
with, the law of the State of New York.
ss.17.04. The captions in this contract are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this contract or any of the provisions hereof.
ss.17.05. This contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs or successors and
permitted assigns.
ss.17.06. This contract shall not be binding or effective until properly
executed and delivered by Seller and Purchaser.
ss.17.07. As used in this contract, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural shall
include the singular, as the context may require.
ss.17.08. If the provisions of any schedule or rider to this contract are
inconsistent with the provisions of this contract, the provisions of such
schedule or rider shall prevail. Set forth in Scheule D is a list of any and all
schedules and riders which are attached hereto but which are not listed in the
Table of Contents.
IN WITNESS WHEREOF, the parties hereto have executed this contract as of the
date first above written.
Seller: NASSAU STREET PARTNERS
By: XXXXXX XXXX ASSOCIATES XVI, INC.,
General Partner
by: /S/ Xxxx Xxxxxxx
--------------------
Xxxx Xxxxxxx,
President
Purchaser: XX XXXXX OPERATING PARTNERSHIP, L.P.
By: XX XXXXX REALTY CORP.,
General Partner
by: /s/ Xxxxxx X. Xxxxx,
--------------------
Xxxxxx X. Xxxxx,
Executive Vice-President
Receipt by Escrowee
The undersigned Escrowee hereby acknowledges receipt of $500,000.00, by check
subject to collection, to be held in escrow pursuant to ss.2.05. [INSERT 41B]
XXXXXX & XXXXXX P.C.
By: [Illegible]
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Schedule A
DESCRIPTION OF PREMISES
(to be attached separately and to include tax map designation)
Schedule B
PERMITTED EXCEPTIONS
1. Zoning regulations and ordinances which are not violated by the
existing structures or present use thereof and which do not render title
uninsurable.
2. Consents by the Seller or any former owner of the Premises for the
erection of any structure or structures on, under or above any street or streets
on which the Premises may abut.
3.
4. [INSERT 42] Leases and Tenancies specified in the [INSERT 43] and any
new leases or tenancies not prohibited by this contract.
5. Unpaid installments of assessments not due and payable on or before the
Closing Date.
6. Financing statements, chattel mortgages and liens on personalty filed
more than 5 years prior to the Closing Date and not renewed, or filed against
property or equipment no longer located on the Premises or owned by Tenants.
7. (a) Rights of utility companies to lay, maintain, install and repair
pipes, lines, poles, conduits, cable boxes and related equipment on, over and
under the Premises, provided that none of such rights imposes any monetary
obligation on the owner of the Premises.
(b) Encroachments of xxxxxx, areas, cellar steps, trim cornices, lintels,
window xxxxx, awnings, canopies, ledges, fences, xxxxxx, coping and retaining
walls projecting from the Premises over any street or highway or over any
adjoining property and encroachments of similar elements projecting from
adjoining property over the Premises [INSERT 44].
(c) Revocability or lack of right to maintain vaults, coal chutes,
excavations or sub-surface equipment beyond the line of the Premises.
(d) Any state of facts that an accurate survey would disclose, provided
that such facts do not render title unmarketable. [INSERT 45]
Schedule C
PURCHASE PRICE
Purchase Price shall be paid as follows:
(a) By check subject to collection or
by wire transfer, the receipt of which
is hereby acknowledged by Seller: $500,000.00
------------
(b) By check, checks or wire transfer
delivered to Seller at Closing in accordance
with the provisions of Section 2.02: $10,000,000.00
--------------
--------------
Purchase Price $10,500,000.00
==============
Schedule D
MISCELLANEOUS
1. Title insurer designated by the parties (ss.1.02):
2.
3.
4.
5. Seller's tax identification number (ss.2.05):
6. Purchaser's tax identification number (ss.2.05):
7. Scheduled time and date of Closing (ss.3.01): [INSERT 47]
8. Place of Closing (ss.3.01): [INSERT 48]
9. Assessed valuation of Premises (ss.4.10): [INSERT 48A]
10. Fiscal year and annual real estate taxes on Premises (ss.4.10):
$111,697.36
11. Tax abatements or exemptions affecting Premises (ss.4.10): None
12. Assessments on Premises (ss.4.13): None
14. Maximum Expense of Seller to cure title defects, etc. (ss.13.02): [INSERT
49]
15. Broker, if any (ss.14.01): Xxxxxxx Management, Inc.
16. Party to pay broker's commission (ss.14.01): Seller
19. Additional Schedules or Riders (ss.17.08):
See attached
Schedule E
RENT SCHEDULE
(to be attached separately)
INSERTS TO CONTRACT OF SALE
BETWEEN NASSAU STREET PARTNERS,
AS SELLER, AND XX XXXXX OPERATING
PARTNERSHIP, L.P., AS PURCHASER
1. , together with all easements, rights of way, privileges, appurtenances
and other rights, if any, pertaining to the Land or the Building (as
hereinafter defined)
2. all of Seller's rights, title and interest in and to
2A. and
2B. The personal property to be conveyed by Purchaser to Seller hereunder is
all personal property owned by Seller, currently existing at the Building
and used in operation of the Building (the "Personal Property").
3. , or (b) by wire of immediately available federal funds, or (c)
4. (or as Seller may otherwise direct in writing to Purchaser at least two
(2) business days prior to the Closing)
5. and all
6. shall be
7. Xxxxxx & Xxxxxx P.C.
8. shall
9. (or as Seller may otherwise direct in writing to Escrowee, with a copy to
Purchaser, prior to the Closing)
10. The parties acknowledge that Escrowee may be instructed to release and
disburse certain funds from (i) the Downpayment in accordance with the
provisions of Section 22(b) hereof and (ii) the "FEGS Deposit" in
accordance with the provisions of Section 22(d) hereof. All of Escrowee's
rights and protections set forth in this Section 2.05 shall apply to the
provisions of said Sections 22(b) and 22(d).
11. The insurance schedule attached hereto as Schedule "F"
12. The payroll schedule attached hereto as Schedule "G"
13. all of such employees are
13A. except as otherwise expressly set forth in this contract.
14. To the best of Seller's knowledge, no portion of the Premises is used for
residential purposes.
15. The
15A. ss.5.03 Purchaser may, but shall not be obligated to, assume the
obligations under any union agreements or other employment agreements for
employees of Seller employed at the Premises, and further may, but shall
not be obligated to, offer employment to and hire any or all employees
covered by any such union agreements or other employment agreements. Upon
Purchaser's written demand and simultaneous delivery of sufficient funds
of Purchaser to do so, Seller shall cause to be paid any liquidated
damages, penalty, additional compensation, accrued vacation and/or
termination pay sought by a union pursuant to any union or other
employment agreements, such amounts arising out of or as a consequence of
Purchaser's failure to adopt and assume the union or employment agreements
and/or to hire any or all of Seller's employees covered by such
agreements. Purchaser shall and does hereby agree to indemnify, defend and
hold Seller free
and harmless from and against any and all liability, claims, actions,
damages, judgments, penalties, costs and expenses, including reasonable
attorneys' fees and disbursements, (i) accruing under or with respect to
such union or other employment agreements on and after the date of the
Closing concerning those of Seller's employees hired by Purchaser and/or
(ii) arising out of a claim that Purchaser has failed to adopt and assume
any of Seller's union or other employment agreements and/or has failed to
offer employment to or employ any or all of the employees covered by such
agreements. The provisions of this Section shall survive the Closing.
16. Existing
17. (which is defined to mean any tenancy in the Premises not arising out of a
lease or sublease)
18. [Intentionally Deleted]
19. [Intentionally Deleted]
20. or in any Lease
21. Except as otherwise expressly provided in this contract,
22. Any
22A. , on, or after
23. For the sole purposes thereof, "material" shall be damage, destruction or
condemnation, the estimated cost to repair or restore of which exceeds
$250,000.00, in the aggregate.
23A. Upon Purchaser's request, Seller shall terminate any existing Service
Contract at or prior to the Closing provided that Purchaser pays all costs
and penalties, if any, applicable to or resulting from the termination of
any such Service Contract. Purchaser hereby agrees to indemnify and hold
Seller harmless from and against any and all liability, claim, action,
damage, judgment, penalty, cost and expense, including all reasonable
attorneys' fees and disbursements, which may result from any such Service
Contract termination(s). The provisions of this Section shall survive the
Closing.
24. in the insurance schedule attached hereto as Schedule "F"
24A. Seller hereby represents that, with respect to the Premises, it is
presently prosecuting real estate tax reduction proceedings for tax years
1996-97 through 1998-99, inclusive. Seller shall be entitled to receive
and retain any and all tax refunds applicable to any tax year (or portion
thereof) applicable to any period prior to the date of the Closing and
Seller shall promptly deliver Purchaser's pro-rata portion of such refund,
if any, to Purchaser pursuant to Section 9.05 hereof (and if such tax
refunds are received by Purchaser after the Closing, Purchaser agrees that
it promptly shall deliver Seller's pro-rata portion of such refund to
Seller pursuant to Section 9.05 hereof). In the event Seller receives any
real estate tax refund with respect to tax year 1998-99, the proceeds
thereof (net of all reasonable attorney, accountant and other professional
fees and disbursements incurred by Seller in connection with obtaining
such refund) shall be prorated, if applicable, as of the date of the
Closing, and Seller promptly shall deliver Purchaser's pro- rata portion
thereof to Purchaser (and if such tax refund is received by Purchaser
after the Closing, Purchaser agrees that it promptly shall deliver
Seller's pro-rata portion thereof to Seller). The provisions of this
Section 9.05 shall survive the Closing.
25. and an assignment of the Existing Leases in the form attached hereto as
Exhibit "A".
- 2 -
26. and an assignment of said cash security deposits and all other security
deposits being held by Seller, in the form attached hereto as Exhibit "A".
To the extent that any of such security deposits are in the form of a
letter of credit, at the Closing Seller shall deliver to Purchaser all
instruments (duly executed and acknowledged) which are required to
transfer such letters of credit to Purchaser as the new beneficiary
thereunder.
27. information set forth in Schedule "E" attached hereto
28. and all other defaults of which Seller is aware.
29. in the form attached hereto as Exhibit "B"
29A. contracts and
30. ("in Seller's possession," for the purposes of this Section 10.10, being
deemed to include items in the possession of Seller's managing agent or
any other person or entity controlled by Seller)
31. and all other exceptions (other than Permitted Exceptions).
31A. A certification of non-foreign status, in form required by the Code
Withholding Section, signed under penalty of perjury. Seller acknowledges
that such certification will be retained by Purchaser and will be made
available to the Internal Revenue Service upon request.
32. in the form attached hereto as Exhibit "C",
33. All consents, approvals, authorizations, resolutions and certificates
required by Seller's limited partnership agreement and the agreements,
by-laws and other documents and instruments of Seller's constituent
partners, in respect of the transactions contemplated in this contract.
Seller advised its partners of the sale of the Premises contemplated by
this contract and, based solely on the number of "affirmative" written
responses received by Seller, has received the requisite number of
consents from its limited partners in order to enter into this contract
and to sell the Premises as herein provided; however, such limited partner
responses do not correctly refer to "Nassau Street Partners" as the name
of Seller, but refer to "Nassau Street Associates Limited Partnership". If
requested by Purchaser's title company at the Closing, Seller and/or the
general partner of Seller will provide an affidavit to such title company
which provides (i) that the limited partner responses refer to Seller
(although misnamed), (ii) that there are no other partnerships relating to
the Premises, of which Seller is aware, having similar names to Seller,
(iii) that the limited partnership agreement has not been amended, (iv)
that Xxxxxx Hill Associates XVI, Inc. is the general partner of Seller and
(v) provides a current list of limited partners of Seller. Copies of all
written limited partner responses received by Seller have been delivered
to Purchaser, together with a copy of Seller's limited partnership
agreement. In connection with such limited partner responses, the amount
necessary to satisfy the existing mortgage note obligations of Seller is
approximately $6,982,000.
34. (to the extent not paid by a wire transfer)
35. in the form attached hereto as Exhibit "A".
36. transferred
37. (or as Seller may otherwise direct in the case of payments due Seller)
37A. electricity or other utilities or services supplied to tenants
- 3 -
38. (or as Seller may otherwise direct in writing to Purchaser prior to the
Closing)
39. To the extent Seller is paid any Additional Rent after the Closing for the
period on or after the Closing, Seller shall promptly pay same to
Purchaser. Such obligation of Seller shall survive the Closing.
39A. mortgage(s) currently of record against the Premises or such other
mortgages, liens or judgments in specific liquidated amounts filed against
the Premises after the date hereof, which shall have been created by the
express actions of Seller (and not of any tenant) after the date hereof.
With respect to all other title objections raised by Purchaser, Seller
shall not be obligated to spend more than $50,000.00, in the aggregate, to
cure any of such objections.
40. Purchaser's title free and clear of
40A. except for those indemnities, if any, which specifically survive the
Closing.
41. At the Closing, Purchaser may assign this contract without Seller's
consent to any affiliate of Purchaser controlled by Purchaser or to a
third party, provided the assignee assumes in writing all of Purchaser's
obligations under this contract. No such assignment shall release
Purchaser from its obligations under this contract.
41A. , except as to the provisions of paragraphs 6 and 14 of that certain
letter of intent, dated December 30, 1997 (the "Letter of Intent").
41B. Purchaser shall deliver to Escrowee the Downpayment in the amount of
$500,000.00 upon the execution of this contract. The Downpayment (together
with any supplemental Downpayment which may be delivered to Escrowee in
accordance with Insert #47 to Schedule "D", item no. 7) shall, subject to
collection, be held in escrow by the Escrowee pursuant to Section 2.05
hereof.
42. Existing
43. Schedule "E" attached hereto
44. provided none of the foregoing render title to the Premises uninsurable.
45. (e) the state of facts shown on the survey of the Premises prepared by
Xxxx Land Surveying, P.C., dated July 30, 1988 and any additional facts an
accurate survey, or an update thereof of the Premises may show, provided
that such facts do not render title to the Premises uninsurable or
unmarketable;
(f) the Existing Leases;
(g) All covenants, contracts, liens, restrictions, easements,
encumbrances, reservations, consents, departmental reports and agreements
and all other matters affecting the Premises of record as of the date
hereof, provided that the same do not prevent the use of the Premises for
office and educational purposes and do not prohibit the maintenance of the
structure currently at the Premises (or that the title insurance company
insuring Purchaser's title will insure that such existing structure may
remain in its present location so long as same may stand);
(h) Notes or notices of violations of law or municipal ordinances, orders
or requirements noted in or issued by any governmental department having
or asserting authority or jurisdiction as to lands, housing, buildings,
fire, health, labor or any other condition or matter at or affecting the
- 4 -
Premises, whether or not of record, and any conditions which may give rise
to a violation;
(i) Party walls and party wall agreements, if any;
(j) Variations among the record lines of the Premises and fences,
driveways and shrubbery and/or between the legal description of the
Premises herein and the tax map description;
(k) Printed exceptions and exclusions to title and all other stipulations,
provisions, requirements, terms and conditions set forth in the title
report to be issued by Purchaser's title insurance company or otherwise
contained in any form of policy approved by the New York State Department
of Insurance; and
(l) Any other lien, encumbrance, condition or matter of any nature
whatsoever as to which Purchaser's title insurance company will insure
against collection out of or enforcement against the Premises subject to
the provisions of Insert #39A to Section 13.02 hereof and of Section 21(w)
hereof.
46. , or by wiring immediately available federal funds,
47. on a date selected by Purchaser upon not less than five (5) business days'
notice to Seller, such date to be not earlier than May 1, 1998 nor later
than June 30, 1998; provided, however, that Purchaser may extend the date
of the Closing to a date not later than July 31, 1998 if Purchaser, prior
to June 22, 1998, notifies Seller of such election and, together with such
written notice, deposits an additional Two Hundred Ten Thousand ($210,000)
Dollars, as a supplemental Downpayment, with Escrowee, to be held by
Escrowee in accordance with the provisions of Section 2.05 hereof.
48. At Escrowee's office or, if Purchaser or an affiliate thereof is a real
estate investment trust, at such other office as may be designated by
Purchaser's underwriter or other source of Purchaser's financing.
48A. Assessed Value: $2,889,000
ICIP Reg. Comml. Ex.: $1,799,482
----------
Taxable Value $1,089,518
49. $50,000.00, except as otherwise provided in Insert #39A to Section 13.02
hereof.
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RIDER ANNEXED TO CONTRACT OF SALE
BETWEEN NASSAU STREET PARTNERS,
AS SELLER, AND XX XXXXX OPERATING
PARTNERSHIP, L.P., AS PURCHASER
18. Conflict.
In the event of any conflict or inconsistency between the printed
provisions of this contract (the "Contract") and the provisions contained
in this Rider, the provisions of this Rider shall govern.
19. Other Properties; Conditions of Closing.
(a) Purchaser is also negotiating to purchase the property located at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Ninth Avenue Property") from Ninth
Avenue Associates ("Ninth Associates") and the property located at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "30th Street Property") from 00xx
Xxxxxx Associates ("30th Associates"). The Premises herein, together with
the Ninth Avenue Property and the 00xx Xxxxxx Property, are hereinafter
collectively referred to as the "Properties" and Seller, together with
Ninth Associates and 30th Associates, are hereinafter collectively
referred to as the "Sellers". Purchaser's obligation to enter into a
contract in respect of any one of the Properties shall be conditioned upon
the Sellers tendering a contract for each of the other Properties. The
Sellers' obligation to enter into a contract in respect of any one of the
Properties shall be conditioned upon Purchaser's execution of contracts
for all of the Properties. In no event shall either party be bound to this
Contract for the Premises until contracts for the other two Properties
have been executed and delivered by the other party.
(b) As a condition precedent to the closing of title under this Contract,
this Contract must close simultaneously with the closings of title between
(i) Purchaser and Ninth Associates with respect to the Ninth Avenue
Property and (ii) Purchaser and 30th Associates with respect to the 00xx
Xxxxxx Property. Purchaser acknowledges that if Ninth Associates is unable
to sell the Ninth Avenue Property or 30th Associates is unable to sell the
00xx Xxxxxx Property (for reasons other than a wilful default by such
selling partnership) or if Purchaser chooses not to purchase any of the
Properties, Seller shall not be obligated to sell the Premises to
Purchaser pursuant to this Contract or otherwise. Purchaser further
acknowledges that a default or breach by Purchaser of any of its
obligations or undertakings as set forth in this Contract or in either of
the contracts relating to the Ninth Avenue Property or the Nassau Street
Property shall be deemed a default or breach of its obligations and
undertakings as set forth in all three of said contracts.
20. Purchase Price and Payment.
(a) The purchase price (the "Purchase Price") for the Premises shall be
TEN MILLION FIVE HUNDRED THOUSAND and No/100 DOLLARS ($10,500,000.00). It
is expressly acknowledged and agreed that the payment of the Purchase
Price and the Closing hereunder is not contingent or conditioned upon
Purchaser obtaining financing from any source.
(b) The Purchase Price shall be paid by Purchaser to Seller as follows:
(i) FIVE HUNDRED THOUSAND and No/100 DOLLARS ($500,000.00) (the
"Downpayment") upon the execution and delivery of this
Contract, by check drawn on or by a bank which is a member of
the New
York Clearinghouse Association, subject to collection, payable
on its face to the order of Escrowee (as defined herein), or
by wire transfer at Purchaser's option in accordance with
Escrowee's wiring instructions, to be held in escrow pursuant
to Section 2.05 hereof. The Downpayment shall be
non-refundable to Purchaser unless the sale of the Premises
pursuant to this Contract does not close for any reason other
than Purchaser's default; and
(ii) TEN MILLION and No/100 DOLLARS ($10,000,000.00) at the
Closing, plus or minus adjustments or credits as hereinafter
provided.
21. Additional Representations and Warranties of Seller.
(a) Seller represents and warrants to Purchaser as follows:
Schedule "E" attached hereto accurately sets forth (a) all agreements in
force on the date hereof for the use, lease or occupancy of space in or at
the Building (whether or not the terms hereof have commenced) to which
Seller, its affiliates or designees are a party or are bound as landlord
or to which any part of the Building is subject, (b) all subleases in
force on the date hereof for the use, lease or occupancy of space in or at
the Building (whether or not the terms thereof have commenced) to which
any tenant under an Existing Lease is a party or is bound as sublandlord,
and (c) all other tenancies or subtenancies in the Premises not arising
out of the agreements or the subleases referred to in clauses (a) and (b)
above, affecting the Premises on the date hereof (the agreements and
subleases referred to in said clauses (a) and (b), together with all
amendments and modifications thereof, and all of the tenancies and
subtenancies referred to in clause (c) above are collectively referred to
as the "Existing Leases," and all tenants, subtenants or other occupants
of space pursuant to an Existing Lease are hereinafter collectively
referred to as "Existing Tenant(s)". Seller is not a party to any sublease
for the use, lease or occupancy of space in or at the Building (whether or
not the term thereof has commenced). The data set forth on said Schedule
"E" with respect to each Existing Lease includes an accurate statement of
the name of each Existing Tenant, the space demised, the lease, sublease
or tenancy expiration date, the security deposits and the base annual rent
and additional rent currently payable. To the best of Seller's knowledge,
no person or entity has or claims any right to possess the Premises or any
part thereof except for the Existing Tenants shown in said Schedule "E".
True and complete copies of all the Existing Leases and all guaranties and
other documents, agreements and instruments relating thereto have been
delivered to Purchaser but, for purposes of this Contract, Purchaser may
rely on the data set forth in said Schedule "E". Except as otherwise set
forth in said Schedule "E" or in the Existing Leases, to be best of
Seller's knowledge:
(i) each of the Existing Leases is in effect and has not expired
or been terminated; Seller has neither given nor received any
notice of default with respect to any Existing Lease that
remains uncured; to the best knowledge of Seller, neither
Seller, nor any of the other parties thereto are in default of
any of their obligations under any of the Existing Leases; and
none of the Existing Leases has been modified, amended or
extended;
- 2 -
(ii) to the best of Seller's knowledge, all Existing Tenants are in
possession of the spaces leased by them;
(iii) the rents and any Additional Rents reserved under each of the
Existing Leases and shown in said Schedule "E" are legal rents
and no claim to the contrary has been asserted by any Existing
Tenant, and the rents and Additional Rents shown on said
Schedule "E" are actually being paid by the Existing Tenants,
and there are no arrearages in excess of one (1) month of any
base, minimum or fixed rent (as opposed to any Additional
Rent);
(iv) no Existing Tenant has paid rent for more than one (1) month
in advance;
(v) no Existing Tenant has claims or is entitled to free rent,
rent concessions, rebates or rent abatements;
(vi) no Existing Tenant claims or is entitled to any set-offs or
offsets against rent;
(vii) no Existing Tenant occupies any space rent free;
(viii) no space has been rented furnished;
(ix) all work previously required to be performed by the landlord
under the Existing Leases or otherwise has been completed and
fully paid for;
(x) no Existing Tenant is contesting its pro-rata share of taxes,
operating expenses or maintenance increases shown in said
Schedule "E" or their obligations to pay cost-of-living
increases or any other Additional Rent as required by its
Existing Lease;
(xi) except pursuant to an assignment of leases and rents granted
by Seller to its fee mortgagee, Seller has assigned none of
its rights under the Existing Leases;
(xii) no Existing Tenant has an option to renew its lease not
provided in its Existing Lease and no other party has any
option, right of first refusal or other preferential right to
purchase the Premises or any part thereof;
(xiii) no action or proceeding instituted against Seller by any
Existing Tenant, or by any Existing Tenant against Seller, is
presently pending in any court or other judicial or
administrative venue, nor has Seller received any written
notices or demands with respect thereto;
(xiv) no representation or covenant has been made by Seller to any
Existing Tenant except as incorporated in its Existing Lease
and all representations made by Seller in the Existing Leases
and in all other documents, agreements and instruments
relating thereto are true and correct in all material
respects;
(xv) no Existing Lease allows the space demised thereunder to be
leased or otherwise used for any
- 3 -
purpose which is prohibited by a restrictive covenant
contained in any other Existing Lease;
(xvi) any consents or notices required to be obtained or given under
the terms of any Existing Lease in connection with this
transaction have been obtained or given, as the case may be;
(xvii) there are no security deposits other than those set forth in
said Schedule "E"; and
(xviii) there are no outstanding obligations of Seller with respect
to any space previously leased or otherwise occupied by an
Existing Tenant at a location other than at the Building.
(b) Annexed hereto as Schedule "H" and made a part hereof is a list of all
service, maintenance and supply contracts (collectively, "Service
Contracts") relating to the Premises and all deposits of Seller held by
utility companies and other persons and entities who supply goods or
services in connection with the operation of the Property, and the
information set forth therein is accurate as of the date hereof. If Seller
has delivered a notice of termination to the vendor under any Service
Contract pursuant to Section 9.02 hereof, Seller, at the Closing, shall
deliver a copy of such notice to Purchaser.
(c) With respect to any contracts referred to in Schedule "G" (payroll
schedule) or Schedule "H", if there are any pending negotiations with any
union or Service Contract holder which may involve retroactive increases
in pay or rates, Seller agrees to reimburse Purchaser for the amount
thereof with respect to any period through the date of the Closing, even
though the increases may be effected after the date of the Closing.
(d) To the best knowledge of Seller: (i) the use being made of the
Premises at present is in conformity with the certificate of occupancy
issued for the Premises; (ii) all required certificates and permits of
such type, including, without limitation, underwriters certificates
relating to electrical work, and all other building, housing, safety, fire
and health certificates, approvals and permits have been issued, are in
full force and effect and (except as otherwise indicated thereon) are
transferable with the Premises or to Purchaser without payment; (iii) the
Premises and the present use and condition thereof do not violate any deed
restrictions, zoning or subdivision regulations, or urban redevelopment
plans applicable to the Premises, as modified by any duly issued
variances; and (iv) no action or proceeding relating to the foregoing is
pending or threatened with respect to the Premises.
(e) To the extent that an assessment that is payable in installments
becomes a lien on the Premises on or before the Closing, the assessment
shall be adjusted based upon the period covered thereby or, if no period
is specified, upon the due date thereof.
(f) All brokerage commissions payable by reason of the Existing Leases
and/or renewals, elections not to terminate, extensions of Existing Leases
or options to lease additional space or otherwise with respect to leasing
transactions have been fully paid or will be paid when due by Seller,
except only that (i) any brokerage commissions payable by reason of New
Leases (as defined in Article 22 hereof) permitted pursuant to Article 22
hereof, which are made or entered into
- 4 -
on or after the date of this Contract, shall be apportioned between the
parties based upon the rent collectible by each party and shall be payable
by Purchaser and (ii) Seller and Purchaser shall apportion any brokerage
commissions payable by reason of renewals or extensions of Existing Leases
or options to lease additional space exercised after the Closing pursuant
to the applicable Existing Lease provisions based upon the period
commencing on the rent commencement date of any such renewal or extension
and ending on the expiration date of any such renewal or extension. From
and after the date hereof until the Closing, Purchaser shall be the sole
leasing broker for the Premises and shall have the right to charge leasing
commissions at standard industry rates.
(g) To the best of Seller's knowledge, all construction reimbursements,
tenant improvement allowances and similar payments to be made by the
landlord under the Existing Leases have been paid in full or will be paid
in full prior to the Closing.
(h) To the best of Seller's knowledge, the description of the Personal
Property is accurate as of the date hereof and will be accurate as of the
date of the Closing, subject to disposal and/or replacement of such
property in the ordinary course of business.
(i) There is no litigation pending or, to the best knowledge of Seller,
threatened against Seller, the Premises or the transactions contemplated
by this Contract. To the best of Seller's knowledge, there is no
proceeding (zoning or otherwise) or governmental investigation pending or
threatened against or relating to Seller, the Premises or the transactions
contemplated by this Contract, nor, to the best knowledge of Seller, is
there any basis for such action.
(j) Seller has not received written notice of any default or breach by
Seller under any of the covenants, conditions, restrictions, rights of way
or easements affecting the Premises or any portion thereof; to the best
knowledge of Seller, no such default or breach now exists; and, to the
best knowledge of Seller, no event has occurred and is continuing which
with notice and/or the passage of time would constitute a default
thereunder.
(k) No work has been performed or is in progress at, and no materials have
been furnished to, the Premises or any portion thereof for which Seller is
responsible and which, though not at present the subject of, might give
rise to, mechanic's, materialmen's or other liens against the Premises or
any portion thereof.
(l) To the best knowledge of Seller, there are no outstanding requirements
or recommendations by any insurance company that issued a policy with
respect to the Premises or any part thereof, or by any Board of Fire
Underwriters or other body exercising similar functions, requiring or
recommending any repairs or work to be done on or to the Premises.
(m) This Contract has been duly and validly authorized, executed and
delivered by Seller and Seller has full power and authority to consummate
the transactions contemplated hereby, and the Closing will not constitute
a breach or violation of any contract or instrument to which Seller is a
party, or by which it or any of its assets are subject or bound, or any
judgment, order, writ, injunction or decree issued against or imposed upon
it, or will result in a violation of any applicable law, order, rule or
regulation of any governmental authority.
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(n) No person or entity has an option, right of first refusal or other
preferential right to purchase the Premises or any part thereof.
(o) No Existing Tenant has executed or delivered to Seller any promissory
notes or other instruments pursuant to which an Existing Tenant is
indebted to its landlord, and Seller does not own and is not holding any
such notes or other instruments.
(p) True and complete copies of all Service Contracts and any and all
other instruments, documents and agreements recited in this Contract
(other than documents to be executed and delivered at the Closing), and
all amendments to all of the foregoing, have been delivered to Purchaser.
(q) Seller (i) is a New York limited partnership validly existing in the
State of New York, (ii) owns the fee interest in the Premises and (iii)
has good and marketable title to the Personal Property.
(r) To the best of Seller's knowledge, no fact or condition exists which
would result in the termination or impairment of access to the Premises or
the discontinuation of necessary sewer, water, electric, gas, telephone or
other utilities or services to the Premises.
(s) To the best of Seller's knowledge, Seller has filed with all of the
applicable governmental authorities having jurisdiction over the Premises,
all statements, affidavits, documents and other instruments with respect
to the Premises and the operation and use thereof that are required to be
filed by applicable laws, rules, regulations, and ordinances.
(t) No air rights or development rights appurtenant to the Premises have
been conveyed, transferred, granted or licensed to any third party.
(u) To the best of Seller's knowledge, neither Seller, nor to Seller's
knowledge, any other person has ever caused or permitted any Hazardous
Substance (hereinafter defined) to be placed, located, spilled or
otherwise disposed of on under or at the Premises or any part thereof in
violation of any Environmental Laws (hereinafter defined), excluding
materials used in the maintenance and operation of the Premises, such as
cleaning materials. There is not now pending, nor has Seller received any
notice of any threatened, investigation, action or proceeding against
Seller or the Premises seeking to enforce any right or remedy under any
Environmental Laws. "Hazardous Substance" shall mean any material or
substance governed or regulated or defined under any local, state or
Federal law, rule ordinance, code, regulation, order or decree regulating,
relating to or imposing liability or standards of conduct with regard to
hazardous, toxic or dangerous waste, substances or materials or regulating
or governing air or water quality, the environment or environmental,
health safety or hygiene ("Environmental Laws").
(v) All of the representations, warranties and agreements set forth in
Article 4 hereof and elsewhere in this Contract, all Exhibits and
Schedules annexed hereto, or in any letter or certificate furnished to
Purchaser pursuant hereto, each of which is incorporated herein by
reference and made a part hereof, shall be true upon the execution of this
Contract and shall be deemed repeated on and as of the date of the
Closing. No such representation or warranty shall omit to state a material
fact necessary to make the statements contained therein not misleading.
From time to time between the date of
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this Contract and the Closing, to the extent that any of Seller's
representations or warranties set forth in this Contract changes or
becomes inaccurate, Seller shall so notify Purchaser.
(w) Without limiting any of the rights of Purchaser elsewhere provided for
in this Contract, it is agreed that the obligation of Purchaser to close
under this Contract is conditioned upon, and shall be subject to, the
accuracy, truthfulness and completeness of all of Seller's representations
and warranties in all material respects, and the due compliance by Seller
of all of its agreements set forth in Article 4 hereof and elsewhere in
this Contract. If, at the Closing, any of Seller's representations or
warranties are determined to be inaccurate, untrue or incomplete in any
material respect, then Purchaser may elect to terminate this Contract by
notice given to Seller in addition to any other remedy specifically
provided herein. If this Contract is so terminated, Seller shall promptly
cause the Downpayment to be refunded to Purchaser, with all interest
earned thereon, and Seller shall promptly pay the cost of any survey
obtained. Upon such refund and payment, this Contract shall terminate and
neither party to this Contract shall have any further rights or
obligations hereunder other than any arising under Article 14 hereof.
Notwithstanding anything to the contrary contained in the preceding
sentence, if on the date scheduled for Closing any of Seller's
representations or warranties are determined to be inaccurate, untrue or
incomplete in any material respect, Seller shall have the same sixty (60)
days (as opposed to an additional sixty (60) days, as provided in Section
13.01 hereof), to adjourn the Closing to correct the underlying facts of
the representations or warranties in question. For the purposes of this
Section, if, at the Closing, any of Seller's representations or warranties
are inaccurate, untrue or incomplete in any respect, and the resulting
cost, expense and/or damages that Purchaser may incur, pay or be liable
for as a result of such inaccuracy, untruthfulness or incompleteness is
reasonably determinable and quantifiable at the Closing and is, at the
Closing determined to be, and quantified at, $25,000.00 or less in the
aggregate, then such inaccuracy, untruthfulness or incompleteness shall be
deemed not material. If such quantified amount in the aggregate is greater
than $25,000.00 but less than $50,000.00, and any such inaccurate, untrue
or incomplete representation or warranty of Seller can be made accurate,
true or complete with the payment of money on or prior to the Closing,
Seller shall be obligated to spend such amount in order to correct or
complete such representa- tation and/or warranty on or prior to the
Closing. Any amount incurred by Seller in connection with the foregoing
curative action shall be deducted from and reduce the $50,000.00 Maximum
Expense of Seller set forth in Schedule "D", item no. 14. Under no
circumstances shall Seller be obligated to spend more than $50,000.00, in
the aggregate, to cure any matter(s) set forth in this Contract and/or
relating to the Premises (except as otherwise specifically provided in
Insert #39A to Section 13.02 hereof and in Section 22(c) hereof), whether
before, on or after the date of the Closing.
In connection with the foregoing, at the Closing, Seller shall deposit
(from the proceeds of the Purchase Price) the sum of $50,000.00 less any
amount incurred by Seller in reduction of the $50,000.00 Maximum Expense
set forth in Schedule "D", item no. 14 (the "Rep/Warranty Reserve"), in
escrow with Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.C.
("GTHLR&Q") in order to secure Seller's obligations to cure or correct, on
or after the Closing, any inaccurate, untrue or incomplete material
representation or warranty of Seller (which is
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specifically provided in Article 26 hereof to survive the Closing and for
the specific survival period therein provided), as expressly set forth
above in this Section 21(w). The Rep/Warranty Reserve shall be held in one
or more interest-bearing escrow accounts of GTHLR&Q for a period
commencing on the date of the Closing and expiring on the earlier to occur
of (i) six (6) months after the date of the Closing or (ii) December 15,
1998 ("Reserve Period I"). Proceeds from the Rep/Warranty Reserve shall be
released by GTHLR&Q and used by Seller, following Seller's and Purchaser's
written direction to GTHLR&Q, for the foregoing purposes. At the
expiration of Reserve Period I, GTHLR&Q shall notify Seller and Purchaser
in writing of GTHLR&Q's intention to release the unapplied balance of the
Rep/Warranty Reserve to Seller; if Purchaser does not object to such
release in writing to GTHLR&Q within five (5) business days after receipt
of such notice from GTHLR&Q, GTHLR&Q shall release the proceeds of such
Rep/Warranty Reserve (or that portion thereof not contested by Purchaser)
to Seller. All interest earned on the Rep/Warranty Reserve shall be paid
to Seller.
Notwithstanding any provision in this Contract to the contrary, (i) the
foregoing provisions of this Section 21(w) shall not affect or extend any
of the survival periods, if any, set forth in Article 26 hereof (and shall
not create any survival period not set forth in said Article 26) and (ii)
the Rep/Warranty Reserve shall not be used to cure, satisfy or address any
matter relating to "Rent Claims" or other matters covered by the "Rent
Reserve" in accordance with Section 22(c) hereof unless, and to the extent
that, a Rent Claim relates specifically to an Article 21 representation or
warranty which relates specifically to the substance of such Rent Claim.
The provisions of this Section 21(w) shall survive the Closing.
GTHLR&Q shall be afforded the same protections of Escrowee provided in
Section 2.05 hereof with respect to the Rep/Warranty Reserve.
22. Seller's Obligations Under Leases
(a) Attached hereto as Schedule "M" are the leasing criteria for new
leases (the "Leasing Criteria"), acceptable to Seller and Purchaser. All
such leases entered into between the date of this Contract and the Closing
by Seller, as landlord, are herein referred to as the "New Leases", except
that Seller's right to enter into New Leases is subject to Section 22(b)
hereof. Within two (2) business days after Seller enters into a New Lease,
or immediately prior to the Closing (if the New Lease is entered into
within two (2) business days prior to the Closing), Seller shall deliver
to Purchaser an updated Schedule "E" setting forth, with respect to each
New Lease, all of the information provided for in said Schedule "E". For
the purposes of the representations, warranties, covenants and conditions
set forth in this Contract, immediately upon Seller's entering into a New
Lease, such New Lease shall be deemed an Existing Lease, except that all
of the representations and warranties that are made as of the date of this
Contract shall be deemed to have been made as of the date of the New
Lease. (For the purposes of this Contract, the Existing Leases and all New
Leases, if any, are herein referred to, collectively, as the "Leases.") In
addition, from time to time between the date of this Contract and the
Closing, to the extent that any of the information set forth in the said
Schedule "E" changes with respect to an Existing Lease or a New Lease, or
if any of the representations or warranties set forth in this Contract
with respect to a Lease
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changes or becomes inaccurate, Seller shall so notify Purchaser.
(b) If Purchaser wishes to enter into a New Lease prior to the Closing, it
has the authority to enter into such lease as authorized leasing agent of
Seller provided the Leasing Criteria is satisfied in all material respects
with respect to such New Lease. Notwithstanding anything to the contrary
set forth in this Contract, if Seller wishes to enter into a New Lease
prior to the Closing, Seller shall notify Purchaser of same in writing.
Within three (3) business days after receipt of Seller's written notice of
such proposed New Lease (which notice shall set forth the name and address
of the proposed Tenant, the terms of such New Lease and the New Lease
Expenses (as hereinafter defined)), Purchaser shall advise Seller in
writing whether it consents to such New Lease. Purchaser shall have the
right to reject such New Lease if the Leasing Criteria is not satisfied in
Purchaser's reasonable judgment. If Purchaser rejects a New Lease pursuant
to which the Leasing Criteria has been satisfied in Seller's reasonable
judgment, then, at the Closing, Purchaser shall pay to Seller all rental
and other income which Seller would have been entitled to receive pursuant
to such New Lease (from the rent commencement date of the New Lease until
the date of the Closing) as if such New Lease had been executed and
delivered by Seller and the proposed Tenant.
Notwithstanding anything to the contrary set forth in this Contract, from
and after the date hereof, Purchaser shall be solely responsible for, and
shall be the exclusive leasing agent with respect to, any New Leases and
may, without the consent of Seller, enter into any New Leases and
brokerage commission agreements (which shall expressly provide that such
brokers shall look only to the landlord with respect to payment of such
commissions) provided the Leasing Criteria is met in all material
respects.
A New Lease, where applicable, may require the landlord to pay outside
real estate brokerage commissions and the cost of tenant improvements
("New Lease Expenses"). All New Lease Expenses shall be funded from the
three (3) Downpayments, to the extent available, delivered on this date
(and as may be supplemented at a future date in accordance with Insert #47
to Schedule "D", item no. 7) to Xxxxxx & Xxxxxx P.C. ("Escrowee") in
connection with this Contract, the contract with respect to the Ninth
Avenue Property and the contract with respect to the 00xx Xxxxxx Property
(collectively, the "Combined Downpayment"). As funds are required to be
paid for New Lease Expenses prior to the Closing, such funds shall be
disbursed from the Combined Downpayment pursuant to specific written
instructions signed and delivered from both Purchaser and Seller to
Escrowee, and such parties hereby authorize Escrowee to release and
disburse any portion of the Combined Downpayment in accordance with such
instructions.
At the Closing, all New Lease Expenses shall be assumed by Purchaser and
any amount disbursed from the Combined Downpayment in connection therewith
shall be added to the balance of the Purchase Price payable by Purchaser
at the Closing. If the Closing does not occur due to a default by
Purchaser, Purchaser shall pay to Seller (not later than ten (10) days
after the scheduled date of the Closing) the amount of any New Lease
Expenses disbursed from the Combined Downpayment, and such amount shall be
deemed to be part of the liquidated damages due to Seller pursuant to
Article 2 hereof. If the Closing does not occur due to any reason other
than Purchaser's default hereunder, Seller shall deliver to Escrowee (not
later than ten (10) days after the scheduled
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date of the Closing) a sum equal to the amount disbursed from the Combined
Downpayment on account of New Lease Expenses. It is the intention of
Purchaser and Seller that, on the date of the Closing, the entire Combined
Downpayment shall equal (exclusive of interest earned) the aggregate
amount originally delivered (and any amounts subsequently delivered in
accordance with Insert #47 to Schedule "D", item no. 7) by Purchaser to
Escrowee in connection with this Contract and the contracts relating to
the Ninth Avenue Property and the 30th Street Property.
(c) Notwithstanding anything to the contrary set forth in this Contract,
Seller shall be responsible for any and all quantifiable overcharges or
other quantifiable unperformed or improperly performed obligations of
Seller, as landlord, with respect to rent, rent rebates, additional rent,
rent adjustments, rent concessions, offsets or setoffs, escalations,
services, utilities or other improper charges or unperformed or improperly
performed obligations to tenants at the Premises claimed or asserted by
such tenants if such claims or assertions (i) after investigation by
Purchaser and Seller, are verified (and any amounts payable are
quantified, and such amounts are determined to be payable in accordance
with the applicable leases) by both Purchaser and Seller, in writing, in
their reasonable judgment, (ii) are made by such tenants prior to December
15, 1998 and (iii) relate to any period prior to the date of the Closing
(collectively, "Rent Claims"). In connection therewith, Seller shall
deposit the sum of $25,000.00 (the "Rent Reserve") with GTHLR&Q at the
Closing to secure Seller's obligations to pay and be responsible for
approved Rent Claims which shall have resulted or will result in any rent
rebates, rent adjustments, rent concessions, offsets or setoffs by
landlord in favor of tenants at the Premises after the date of the
Closing. The Rent Reserve shall be held in one or more interest-bearing
escrow accounts of GTHLR&Q for the period coterminous with Reserve Period
I ("Reserve Period II"), to be used or needed to pay Purchaser or any
tenants for such approved Rent Claims. At the expiration of Reserve Period
II, GTHLR&Q shall notify Seller and Purchaser in writing of GTHLR&Q's
intention to release the unapplied balance of the Rep/Warranty Reserve to
Seller; if Purchaser does not object to such release in writing to GTHLR&Q
within five (5) business days after receipt of such notice from GTHLR&Q,
GTHLR&Q shall release the proceeds of such Rent Reserve (or that portion
thereof not contested by Purchaser) to Seller. All interest earned on the
Rent Reserve shall be paid to Seller.
GTHLR&Q shall be afforded the same protections of Escrowee provided in
Section 2.05 hereof with respect to the Rent Reserve.
(d) At the Closing, the sum of One Hundred Fifty Thousand ($150,000)
Dollars shall be credited against the Purchase Price and deposited by
Purchaser with Escrowee (the "FEGS Deposit"). The FEGS Deposit shall be
held by Escrowee in accordance with Section 2.05 hereof and shall be
released by Escrowee upon the following terms and conditions:
(i) If within one (1) year following the date of the Closing,
the existing lease with Federation Employment and Guidance Services, Inc.
("FEGS") is renewed by Purchaser (or its successor-in-interest), Purchaser
(or its successor-in-interest) shall receive the FEGS Deposit from
Escrowee; or
(ii) If within one (1) year following the date of the Closing,
the existing lease with FEGS is not renewed for
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any reason whatsoever, Seller shall receive the FEGS Deposit from
Escrowee.
Either party may provide written notice to both Escrowee and
the other party of its claim to the FEGS Deposit, and if Escrowee receives
no written objection thereto from the other party within ten (10) business
days after Escrowee's and the other party's receipt of such notice,
Escrowee shall promptly deliver the FEGS Deposit to the party demanding
same and thereupon Escrowee shall be released from all obligations or
liability in connection therewith.
If there is a dispute between the parties with respect to any
matter relating to the FEGS Deposit or the rights of the parties to the
receipt of the FEGS Deposit, or if for any other reason Escrowee in good
faith shall elect not to release and distribute the FEGS Deposit to either
of the parties, Escrowee shall have the right to hold the FEGS Deposit
until otherwise directed by written instructions from both parties or by a
final judgment of a court (pursuant to the provisions of Section 2.05
hereof). Purchaser and Seller acknowledge that, with respect to the FEGS
Deposit, Escrowee shall be entitled to all of the rights and protections
afforded to it in said Section 2.05.
(e) The provisions of this Article 22 shall survive the Closing.
23. Additional Covenants of Seller.
(a) Seller shall provide or cause to be provided all such services with
respect to the Premises and the tenants that are now required to be
provided or currently are being provided.
(b) Seller shall maintain and keep the Premises, including mechanical
equipment of every kind used in the operation thereof, in a condition at
least as good as its present condition so that the same shall be in a
condition at least as good as its present condition on the date of the
Closing, reasonable wear and tear excepted, and Seller shall not enter
into any contracts, agreements or arrangement, including Service
Contracts, or extend or modify any existing contracts, agreements or
arrangements, including Service Contracts, which may affect the Premises
in any manner whatsoever (other than with respect to New Leases as herein
provided), without Purchaser's prior consent.
(c) No Personal Property included in this sale shall be removed from the
Premises unless the same are replaced with similar items of at least equal
quality prior to the Closing.
(d) If the landlord under any Lease or Tenancy has an obligation, whether
accrued or contingent, to reimburse the tenant under such Lease or
Tenancy, whether by way of payment or rent credit, for any expenses
incurred by such tenant, Seller shall pay to Purchaser an amount equal to
such payment or credit for reimbursable expenses at the Closing, provided
such expenses were or are to be incurred by such tenant prior to or after
the date of the Closing. Prior to the Closing, Seller shall perform and
comply with all obligations and provisions to be performed and complied
with by the tenant under any take-over leases entered into in connection
with the leasing of the Premises, and Seller shall indemnify Purchaser
against and hold Purchaser harmless from all losses, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) suffered or incurred by Purchaser as a result of
Seller's failure to perform and comply with such obligations and
provisions.
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(e) Prior to the Closing, Seller shall make all books and records
(including tenant files) relating to the ownership and operation of the
Premises available to Purchaser and its accountants, attorneys and other
representatives, and, upon reasonable prior notice at reasonable times,
shall permit Purchaser's accountants, attorneys and other representatives
to examine, audit and make copies of the same, at Purchaser's sole cost
and expense. Prior to the Closing, Seller shall cooperate with Purchaser's
accountants, attorneys and other representatives, shall allow such persons
to make extracts from the aforesaid books and records and shall respond
fully and candidly to inquiries made by such accountants, attorneys and
other representatives.
(f) After the date hereof, Seller shall request that, at the Closing, the
holder of Seller's mortgage note and mortgage, upon receipt of full
pay-off proceeds, assign such documents to Purchaser's designee. Seller
agrees to reasonably cooperate with Purchaser and such lender in
connection with the foregoing.
24. Failure of Seller to Perform
Except for a willful default by Seller, if Seller is unable for any reason
to satisfy the conditions to Closing set forth herein, the sole remedy of
Purchaser hereunder shall be the return of the Downpayment and the payment
by Seller to Purchaser of the "net cost of title examination" and the cost
of updating the survey for the Premises, Purchaser hereby waiving any
right or claim for damages or specific performance and the right to file a
lis pendens against the Premises. If Purchaser believes that any of the
Sellers has wilfully defaulted under any of the three contracts described
in Article 19 hereof and if Purchaser elects to commence an action against
such selling partnership for specific performance with respect to the
particular contract executed by such selling partnership, Purchaser must
commence such action, and diligently prosecute the same, against all three
of the Sellers with respect to all three of the Properties in one
consolidated proceeding. If Purchaser discontinues such action at any
time, Purchaser must release all three of the Sellers and their respective
Properties, with prejudice, therefrom.
25. Notices
Except as otherwise expressly permitted in this Contract, all notices,
demands, approvals, consents, requests and other communications which
under the terms of this Contract, or under any statute, must or may be
given or made by the parties hereto, must be in writing, and must be made
either (i) by depositing such notice in the registered or certified mail
of the United States of America, return receipt requested, or (ii) by
delivering such notice by a commercial courier, which courier provides for
delivery with receipt guaranteed, or (iii) by hand delivery, addressed to
each party as follows:
If to Purchaser: at the address set forth on the
first page of this Contract,
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
With a copy to: Xxxxxxxxx Traurig Xxxxxxx Xxxxxx
Xxxxx & Quentel, P.C.
Attention: Xxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Seller: at the address set forth on the
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first page of this Contract,
Attention: Mr. Xxxxxxx Xxxxx
With a copy to: Xxxxxx & Xxxxxx P.C.
Attention: Xxxxx X. Xxxxxx, Esq.
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Escrowee: Xxxxxx & Xxxxxx P.C.
Attention: Xxxxx X. Xxxxxx, Esq.
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
All notices, demands, approvals, consents, requests and other
communications shall be deemed to have been delivered (i) if mailed as
provided for in this Article, on the date which is three (3) business days
after mailing or (ii) if sent by commercial courier, on the date which is
one (1) business day after dispatching, or (iii) if sent by hand delivery,
on the date of such delivery or refusal to accept same. Either party may
designate by notice in writing given in the manner herein specified a new
or other address to which such notice, demand, approval, consent, request
or other communication shall thereafter be so given or made. A notice
given by counsel for Seller or Purchaser shall be deemed a valid notice if
addressed and sent in accordance with the provisions of this Article.
26. Survival.
Except as otherwise provided in this Contract, no representations,
warranties, covenants or other obligations of Seller set forth in this
Contract shall survive the Closing, and no action based thereon shall be
commenced after the Closing. The representations, warranties, covenants
and other obligations of Seller set forth in Sections 6.01, 6.02, 21(a)
and 21(k) hereof shall survive the Closing for ninety (90) days, and no
action based thereon shall be commenced after the last day of such ninety
(90) day period. Notwithstanding anything contained in this Contract to be
contrary, (i) the covenants and obligations of Seller set forth in
Sections 9.05, 12.03, 14.01, 21(c), 21(f), 21(g) and 23(d) hereof shall
survive the Closing indefinitely, subject to applicable statutes of
limitation, and (ii) with respect to Section 21(k) hereof, the survival of
Seller's representation for 90 days shall be limited to any liens filed or
to be filed against the Premises resulting from work caused to be
performed by Seller (and for which no tenant is responsible).
27. Miscellaneous Provisions.
(a) Supplementing Section 17.06 hereof, the submission of this Contract
for examination shall not bind Seller in any manner or be construed as an
offer to sell, and no contract or obligation of Seller or Purchaser shall
arise until this instrument is executed and delivered by both Seller and
Purchaser and the Downpayment has been received and collected by Escrowee.
(b) At or prior to the Closing, Seller shall deliver an estoppel
certificate (in the form annexed hereto as Exhibit "D") duly executed and
delivered by each of the Existing Tenants listed on Schedule "L" hereto
or, if Seller is unable to obtain and deliver such estoppel certificate
from one or more of such tenants, Seller shall execute and deliver such
estoppel certificate(s) in its name. Each such estoppel certificate
delivered by each of the Existing Tenants shall be
- 13 -
dated not earlier than April 1, 1998 and Seller's estoppel certificate(s)
shall be dated not earlier than five (5) business days prior to the date
of the Closing. In addition, Seller shall submit such estoppel certificate
to all other tenants of the Building. Seller shall use its reasonable
efforts to have all tenants complete, execute and deliver such estoppel
certificate to Purchaser prior to the Closing; however, a tenant's failure
or refusal to execute and return an estoppel certificate (in the form of
Exhibit "D") or a tenant's modification of or supplement to the text of
such estoppel certificate (which has been executed and returned by such
tenant), shall not be deemed a default by Seller under this Contract or
entitle Purchaser to terminate this Contract provided that Seller has
delivered, at the Closing, substitute estoppel certificate(s) in its name
as provided above.
(c) Prior to the Closing, Seller, at Seller's election, may convert the
within transfer of title to the Premises to a tax free exchange under
Section 1031 of the Internal Revenue Code, provided that such tax free
exchange in no way delays the Closing under this Contract. If Seller so
elects, Purchaser, at no cost or expense to Purchaser, shall cooperate
with Seller in effectuating said tax free exchange, and Seller shall
indemnify and hold Purchaser harmless from and against any and all costs,
expenses, damages and liabilities incurred or paid by Purchaser in
connection therewith, Seller's obligation under this Section surviving the
Closing.
(d) Except as otherwise specifically set forth herein, Seller has not made
and does not make, and Seller has not authorized any other party to make,
any representations or other statements whatsoever as to: the use,
convertibility for other use, occupancy, physical condition (including,
without limitation, the presence or absence of hazardous materials in, on
or about the Premises), market value, state of repair, gross or net income
derived from the Premises, expenses of operation (including, without
limitation, taxes assessed against the Premises), or any other matter or
thing affecting or relating to the Premises or the fixtures and items of
Personal Property included in this sale and Purchaser hereby expressly
acknowledges that no such representations or other statements have been
made by or on behalf of Seller.
(e) Neither party shall record this Contract or any memorandum hereof. Any
such filing or recordation shall be null and void ab initio. Further, any
attempt by Purchaser to record this Contract as aforesaid shall be a
default of Purchaser hereunder and thereupon, at Seller's option, this
Contract shall be deemed terminated and Seller shall have any and all
remedies for the default of Purchaser as provided herein.
(f) For the purposes of this Contract, all representations and warranties
made by Seller shall be based upon the actual knowledge of Xx. Xxxxxx
Xxxxxxx and/or Xx. Xxxx Xxxxxxx.
28. Inspection
Purchaser has caused or has waived the right to cause a full and complete
inspection to be made of the Premises and the Personal Property, as well
as a thorough investigation regarding all matters and things relating to
the Premises, including all environmental matters relating thereto. Except
as otherwise set forth in this Contract, Purchaser shall take title to the
Premises and any fixtures and items of Personal Property being sold
therewith "AS IS" and "WHERE IS" as of the date hereof, subject to any and
all conditions and defects of any nature whatsoever (including, without
limitation,
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structural, environmental, latent and other conditions or defects) which
may now or hereafter exist.
29. Risk of Loss
Supplementing the provisions of Article 8 hereof, the risk of loss shall
be on Seller until the Closing and thereafter it shall be assumed by
Purchaser. In the event of a fire or other casualty or condemnation of a
material nature occurring prior to the Closing, Purchaser shall have the
option of either terminating this Contract or acquiring the Premises with
an abatement in the Purchase Price in an amount equal to the insurance
proceeds paid in respect of the damages sustained to the Premises.
30. Management
Seller shall cancel, on or before the date of the Closing, any and all
management agreements applicable to the Premises and such cancellation
shall be a condition precedent to Purchaser's obligation to purchase the
Premises.
31. Rent Arrears
As to prior rent arrears, Purchaser shall receive the first rents from
tenants in arrears as a trust fund for prompt remission to Seller in
payment of such tenant's arrears. However, if a court of competent
jurisdiction shall have finally determined that any tenant in arrears is
entitled to a rent abatement with respect to any portion of prior rent
arrears, the payment due to Seller pursuant to the immediately preceding
sentence shall be appropriately adjusted. The provisions of this Article
shall survive the Closing.
32. Termination of Tenancies
(a) If any tenant shall fail to comply with the provisions of any lease or
other agreement affecting the Premises, or any part thereof, prior to the
Closing, Seller shall have the right to commence summary proceedings
against such tenant(s) in the event of non-payment of rent, and to
prosecute such proceedings to money judgment (but not a judgment of
possession) after the Closing (with Purchaser's cooperation, at no cost to
Purchaser if such action relates to unpaid rents due exclusively to Seller
for any period(s) prior to the Closing).
(b) Seller makes no representation and assumes no responsibility with
respect to continued occupancy of the Premises or any part thereof by any
tenant or tenants now in possession. Prior to the Closing, (i) Seller
shall not settle any suit, action or proceeding commenced to enforce the
collection of rents or Additional Rents due Seller from past, present or
future tenants of the Building without obtaining Purchaser's prior consent
(which consent shall not be unreasonably withheld or delayed) if such
settlement would materially adversely affect Purchaser's rights, after the
Closing, in any respect; and (ii) Seller shall be entitled, but not
obligated, to enforce the rights under any lease or any tenancy by summary
proceedings or otherwise; however, Seller shall not terminate any lease
without Purchaser's prior consent.
33. Title Objections.
Purchaser shall order a title report and a full lien and municipal search
with respect to the Premises promptly upon execution of this Contract, and
shall instruct its title
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company to deliver a copy of the title report and all title documents and
title updates and continuations to be delivered to Xxxxxx & Xxxxxx P.C.,
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxx, Esq., at the time such documents and information are
delivered to Purchaser and/or its counsel. All objections to title must be
submitted by Purchaser in writing to Xxxxxx & Xxxxxx P.C. promptly
following Purchaser's receipt of a title report and each title update or
continuation, but not less than ten (10) days prior to the date of the
Closing set forth herein. All objections not so submitted to Seller's
counsel shall be deemed waived by Purchaser, except with respect to any
matters of title initially disclosed to Purchaser and Seller within such
10-day period (in which event any objections to title shall be
communicated to Seller's counsel not later than the second business day
following receipt, so long as such second business day precedes the date
of the Closing). Any attempt by Seller to cure an objection shall not be
construed as an admission by Seller that such objection is one which would
give Purchaser the right to cancel this Contract.
NASSAU STREET PARTNERS
BY: XXXXXX HILL ASSOCIATES XVI, INC.
General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx,
President
XX XXXXX OPERATING PARTNERSHIP, L.P.,
BY: XX XXXXX REALTY CORP.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx,
Executive Vice President
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LIST OF SCHEDULES AND EXHIBITS
000 Xxxxxx Xxxxxx
Schedule A - Legal Description of Premises
Schedule B - Permitted Exceptions
Schedule C - Purchase Price
Schedule D - Miscellaneous Information
Schedule E - Existing Leases, Rent Roll and
Security Deposits
Schedule F - Insurance
Schedule G - Pay Roll/Employees
Schedule H - Service Contracts
Schedule I - Certain Pending Transactions for
which Purchaser may be Obligated to Pay
a Brokerage Commission
Schedule J - Personal Property
Schedule K - Operating Statements
Schedule L - List of Existing Tenants
for Estoppel Certificates
Schedule M - Leasing Criteria
Exhibit A - Assignment and Assumption of Leases
and Security Deposits
Exhibit B - Assignment and Assumption of
Contracts
Exhibit C - Form of Notice to Tenants
Exhibit D - Tenant Estoppel Certificate
Schedule A
Legal Description of Premises
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Brooklyn, County of Kings, City and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the Southerly side of
Nassau Street with the Easterly side of Xxx Street;
THENCE RUNNING Easterly along the Southerly side of Xxxxxx Xxxxxx 000 feet 1
inch to land now or late of Xxxxx Xxxxxxx, Xx.;
THENCE Southerly parallel with Xxx Street and along said land of Xxxxx Xxxxxxx
Xx. 100 feet;
THENCE Westerly parallel with Xxxxxx Xxxxxx 00 feet 4 inches;
THENCE Northerly parallel with Xxx Street 6 feet;
THENCE Westerly nearly parallel with Nassau Street and part of the distance
through a party wall 84 feet 9 inches to a point on the Easterly side of Xxx
Street 93 feet 10 inches Southerly from the Southeasterly corner of Nassau and
Xxx Street;
THENCE Northerly along the Easterly side of Xxx Street 93 feet 10 inches to the
corner, the point or place of Beginning.
Premises known as: 000-000 Xxxxxx Xxxxxx a/k/a 000-000 Xxx
Xxxxxx, Xxxxxxxx, XX.
Xxxxx 000
Xxx 0
Xxxxxxxx X
XXXXXXXX PRICE
The Purchase Price shall be paid as follows:
(a) By check subject to collection or
by wire transfer, the receipt of which
is hereby acknowledged by Seller: $500,000.00
------------
(b) By check, checks or wire transfer
delivered to Seller at Closing in accordance
with the provisions of Section 2.02: $10,000,000.00
--------------
--------------
Purchase Price $10,500,000.00
==============
Schedule D
MISCELLANEOUS
1. Title insurer designated by the parties (ss.1.02):
2.
3.
4.
5. Seller's tax identification number (ss.2.05):
6. Purchaser's tax identification number (ss.2.05):
7. Scheduled time and date of Closing (ss.3.01): [INSERT 47]
8. Place of Closing (ss.3.01): [INSERT 48]
9. Assessed valuation of Premises (ss.4.10): [INSERT 48A]
10. Fiscal year and annual real estate taxes on Premises (ss.4.10):
$111,697.36
11. Tax abatements or exemptions affecting Premises (ss.4.10): None
12. Assessments on Premises (ss.4.13): None
14. Maximum Expense of Seller to cure title defects, etc. (ss.13.02): [INSERT
49]
15. Broker, if any (ss.14.01): Xxxxxx Xxxx Properties Corp.
16. Party to pay broker's commission (ss.14.01): Seller
19. Additional Schedules or Riders (ss.17.08):
See attached
Schedule E
RENT SCHEDULE
(to be attached separately)
