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Exhibit 10(b)
00-00 XXXXXX XXXXXXX XXXX
XXXX XXXX, XX
PURCHASE AND SALE AGREEMENT
BETWEEN
EML ASSOCIATES
a New York general partnership
AS SELLER
AND
INCOME AND GROWTH FUND II, INC.
a Delaware Corporation
AS PURCHASER
As of August 20, 1999
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of the
20th day of August, 1999 (the "Effective Date"), by and between EML ASSOCIATES,
a New York general partnership ( "Seller" ), having a business office at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and INCOME AND GROWTH FUND II,
INC., a Delaware corporation ("Purchaser"), having an office at c/o LaSalle
Investment Management Inc., 000 X. Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell and convey and Purchaser agrees to
purchase the following:
(a) that certain tract or parcel of land situated in Xxxxxxxxxx
County, Pennsylvania, more particularly described on Exhibit A attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title and
interest of Seller in and to adjacent streets, alleys or rights-of-way (the
property described in clause (a) of this Section 1. 1 being herein referred to
collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements on
the Land, including specifically, without limitation, those certain two (2)
office buildings located thereon commonly referred to as 00-00 Xxxxxx Xxxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx (the property described in clause (b) of this
Section 1.1 being herein referred to collectively as the "Improvements");
(c) all of Seller's right, title and interest in and to all
tangible personal property upon the Land or within the Improvements, including
specifically, without limitation, appliances, furniture, carpeting, draperies
and curtains, tools and supplies, and other items of personal property
(excluding cash) used exclusively in connection with the operation of the Land
and the Improvements and only as specifically described on Exhibit B attached
hereto and made a part hereof (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "Personal Property");
(d) all of Seller's right, title and interest in and to all
agreements listed and described on Exhibit C (the "Lease Schedule") attached
hereto and made a part hereof, pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than
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Seller (the property described in clause (d) of this Section 1.1 being herein
referred to collectively as the "Leases"); and
(e) all of Seller's right, title and interest in and to (i) all
assignable contracts and agreements (collectively, the "Operating Agreements")
listed and described on Exhibit D (the "Operating Agreements Schedule") attached
hereto and made a part hereof, relating to the upkeep, repair, maintenance or
operation of the Land, Improvements or Personal Property which will extend
beyond the date of Closing (as such term is defined in Section 4.1 hereof),
including specifically, without limitation, all assignable equipment leases
listed in Exhibit D, and (ii) all assignable existing warranties and guaranties
(expressed or implied) issued to Seller in connection with the Improvements or
the Personal Property, the use of the name 16 and 18 Sentry Parkway West but
without representation as to whether Seller has any rights in such name, and the
hard copies of books and records relating to the operation of the Improvements
(the property described in this Section 1.1(e) being sometimes herein referred
to collectively as the "Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3. Permitted Exceptions. The Property shall be conveyed subject to
the matters which are, or are deemed to be, Permitted Exceptions pursuant to
Article II hereof (herein referred to collectively as the "Permitted
Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase the
Property for a total of TWENTY-NINE MILLION FIFTY THOUSAND DOLLARS ($29,050,000)
(the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available federal funds
through a title company escrow to a bank account designated by Seller in writing
to Purchaser prior to the Closing.
1.6 Xxxxxxx Money. Unless Purchaser elects to terminate this Agreement
on or before August 24, 1999 pursuant to Section 3.2 of this Agreement, on or
before August 26, 1999 Purchaser shall deposit with First American Title
Insurance Company (the "Escrow Agent"), having its office at Xxx Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention Xxxxx Xxxxxxx, the sum
of Five Hundred Thousand Dollars ($500,000) (the "Xxxxxxx Money") in good funds,
either by certified bank or cashier's check or by federal wire transfer. The
Escrow Agent shall hold the Xxxxxxx Money in an interest-bearing account in
accordance with the terms and conditions of an escrow agreement entered into
among Seller, Purchaser and Escrow Agent simultaneously with the execution of
this Agreement. All interest accruing on such sum shall
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become a part of the Xxxxxxx Money and shall be distributed as Xxxxxxx Money in
accordance with the terms of this Agreement. Time is of the essence with respect
to delivery of the Xxxxxxx Money. If Purchaser fails to timely deliver the
Xxxxxxx Money, Purchaser shall be in default under this Agreement.
1.7 Independent Contract Consideration. In addition to the Xxxxxxx
Money, Purchaser shall, concurrently with its execution hereof, deliver to
Seller a check in the amount of ONE HUNDRED AND NO/100 DOLLARS ($100.00), which
amount Seller and Purchaser agree has been bargained for as consideration for
Seller's execution and delivery of this Agreement and Purchaser's right to
inspect the Property pursuant to Article III. Such sum is in addition to and
independent of any other consideration or payment provided for in this Agreement
and is nonrefundable in all events.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination, Commitment for Title insurance. Seller has
obtained and delivered at Purchaser's expense, to Purchaser and the surveyor
preparing the Survey, from a nationally recognized titled insurance company (the
"Title Company"), an ALTA title insurance commitment (the "Title Commitment")
covering the Property and a copy of each document referenced in the Title
Commitment as an exception to title the Property. Purchaser shall have until
August 30, 1999 (the "Title Exam Deadline"), to review the Zoning compliance of
the Property, the Survey and the Title Commitment and at Closing, at Purchaser's
expense, obtain from the Title Company an Owner's Policy of Title Insurance in
the full amount of the Purchase Price pursuant to Section 2.4 hereof. Purchaser
acknowledges that its zoning counsel has raised an issue whether the height of
the buildings exceed the maximum height permitted by zoning. Purchaser agrees
that it will acquire the property subject to the possibility of such height
violation without abatement of the Purchase Price and without any claim against
Seller arising therefrom.
2.2 Survey. Seller has obtained and delivered to Purchaser and the
Title Company, at the Purchaser's expense, from a surveyor or surveying firm
licensed by the state in which the Property is located, a survey of the Property
meeting the minimum ALTA standards (the "Survey") reflecting the total area of
the Property, the location of all improvements, recorded easements and
encroachments, if any, located thereon and other matters of record with respect
thereto.
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2.3 Title Objections: Cure of Title Objections.
(a) Purchaser shall have until the Title Exam Deadline to notify
Seller in writing of such objections as Purchaser may have to any exceptions to
title disclosed in the Title Commitment or the Survey. Any item contained in the
Title Commitment or matter shown on the Survey to which Purchaser does not
object prior to the Title Exam Deadline by timely written notice shall be deemed
a Permitted Exception. Time is of the essence with respect to the provisions of
this Section 2.3. Purchaser hereby confirms that Purchaser has examined the
Title Commitment and has no objection to matters listed on Schedule B-II (other
than removal of exception 1 of Schedule B-II) except any objections that may
arise therefrom when Purchaser reviews the title exceptions against an updated
Survey which Purchaser has ordered.
(b) In the event Purchaser shall notify Seller of objections to
title or matter of survey shown on the Survey prior to the Title Exam Deadline,
Seller shall have the right, but not the obligation, to cure such objections;
provided, however that Seller shall remove any mortgages or monetary liens of a
fixed and ascertainable amount voluntarily created by Seller. Within ten (10)
days after receipt of Purchaser's notice of objections, Seller shall notify
Purchaser in writing whether Seller elects to attempt to cure such objections
which Seller is not obligated to cure hereunder. If Seller elects to attempt to
cure, and provided that Purchaser shall not have terminated this Agreement in
accordance with Section 3.2 hereof, Seller shall have until the date of Closing
to attempt to remove, satisfy or cure the same and for this purpose Seller shall
be entitled to a reasonable adjournment of the Closing if additional time is
required, but in no event shall the adjournment exceed fifteen (15) business
days after the date for Closing set forth in Section 4.1 hereof. If Seller
elects not to cure any objections specified in Purchaser's notice, or if Seller
is unable to effect a cure prior to the Closing (or any date to which the
Closing has been adjourned), Purchaser shall have the following options: (i) to
accept a conveyance of the Property subject to the Permitted Exceptions,
specifically including any matter objected to by Purchaser which Seller is
unwilling or unable to cure, and without reduction of the Purchase Price; or
(ii) to terminate this Agreement by sending written notice thereof to Seller,
and upon delivery of such notice of termination, this Agreement shall terminate
and the Xxxxxxx Money shall be returned to Purchaser as Purchaser's sole remedy;
and thereafter neither party hereto shall have any further rights, obligations
or liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement. If
Seller notices Purchaser that Seller does not intend to attempt to cure any
title objection which Seller is not obligated to cure hereunder, or if, having
commenced attempts to cure any objection, Seller later notifies Purchaser that
Seller will be unable to effect a cure thereof, Purchaser shall, within five (5)
days after such notice has been given, notify Seller in writing whether
Purchaser shall elect to accept the conveyance under clause (i) or to terminate
this Agreement under clause (ii). If Purchaser fails to give timely notice of
its election to terminate this Agreement, Purchaser shall be deemed to have
elected to terminate this Agreement.
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2.4 Conveyance of Title. At Closing, Seller shall convey and transfer
to Purchaser such title to the Property as will enable the Title Company to
issue to Purchaser, at Purchaser's expense, an ALTA 1992 Owner's Policy of Title
Insurance (the "Title Policy") covering the Property insuring Purchaser as the
fee simple owner of the Land, subject to the Permitted Exceptions, in the full
amount of the Purchase Price, provided, however, Purchaser agrees to accept
title to the Property subject to judgments and unsettled taxes against Seller
provided the Title Company insures Purchaser free of such judgments and
unsettled taxes but only up to $1,500,000. The Title Policy shall contain such
customary endorsements as the Title Company has unconditionally and irrevocably
committed to issue during the Inspection Period and for which Purchaser has
provided Seller written evidence of the Title Company's commitment prior to the
end of the Inspection Period. Notwithstanding anything contained herein to the
contrary, the Property shall be conveyed subject to the following matters, which
shall be deemed to be Permitted Exceptions:
(a) the rights of tenants, as tenants only, under the Leases and
any new Leases entered into between the Effective Date and Closing and, where
required, approved by Purchaser in accordance with the terms of this Agreement;
(b) the lien of all ad valorem real estate taxes and assessments
not yet due and payable as of the date of Closing, subject to adjustment as
herein provided;
(c) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now or, to the extent to general application, hereafter in
effect relating to the Property;
(d) items appearing of record or shown on the Survey and, in either
case, not objected to by Purchaser or waived or deemed to be waived by Purchaser
in accordance with Sections 2.3 or 2.5 hereof; and
(e) any and all assessments becoming liens subsequent to the date
hereof not to exceed $100,000, and in addition if at the date hereof the
Property or any part thereof shall be or shall have been affected by any
assessment or assessments which are payable in installments or may be paid in
installments without penalty (other than interest), Seller shall pay all such
installments due and payable prior to Closing. Purchaser shall pay all such
installments which shall become due and payable or which may be paid without
penalty (other than interest) after Closing, except that any installment
relating to the current fiscal year (with any interest thereon) shall be
apportioned between the parties at Closing.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser shall
have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement,
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Purchaser may, at or prior to Closing, notify Seller in writing of any
objections to title first raised by the Title Company or the Surveyor between
(a) the date which is the earlier of (i) the effective date of Purchaser's Title
Commitment referred to above or (ii) the expiration of the Inspection Period,
and (b) the date on which the transaction contemplated herein is scheduled to
close and which were not created by Purchaser. With respect to any objections to
title set forth in such notice which would, in Purchaser's reasonable judgment,
adversely affect the fair market value of the Property or an owner's ability to
operate the Property as an office building, Seller shall have the same option to
cure and Purchaser shall have the same option to accept title subject to such
matters or to terminate this Agreement as those which apply to any notice of
objections made by Purchaser before the expiration of the Inspection Period. If
Seller elects to attempt to cure any such matters, the date for Closing shall be
automatically extended by a reasonable additional time to effect such a cure,
but in no event shall the extension exceed thirty (30) days after the date for
Closing set forth in Section 4.1 hereof.
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ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the Effective
Date and ending at 5:00 p.m. (local time at the Property) on August 24, 1999
(hereinafter referred to as the "Inspection Period"), Purchaser shall have the
right to make a physical inspection of the Property and to examine at such place
or places at the Property, in the offices of the property manager or elsewhere
as the same may be located, any operating files maintained by Seller or its
property manager in connection with the leasing, current maintenance and/or
management of the Property, including, without limitation, the Leases, lease
files, Operating Agreements, insurance policies, bills, invoices, receipts and
other general records relating to the income and expenses of the Property,
correspondence, surveys, plans and specifications, warranties for services and
materials provided to the Property, engineering studies, environmental audits
and similar materials, but excluding materials not directly related to the
leasing, current maintenance and/or management of the Property such as, without
limitation, Seller's internal memoranda, financial projections, budgets,
appraisals, accounting and tax records and similar proprietary, elective or
confidential information. Purchaser understands and agrees that any on-site
inspections of the Property shall be conducted upon at least twenty-four (24)
hours' prior written notice to Seller and in the presence of Seller or its
representative. Such physical inspection shall not unreasonably interfere with
the use of the Property by Seller or its tenants nor shall Purchaser's
inspection damage the Property in any respect. Such physical inspection shall
not be invasive in any respect (unless Purchaser obtains Seller's prior written
consent), and in any event shall be conducted in accordance with standards
customarily employed in the industry and in compliance with all governmental
laws, rules and regulations. Following each entry by Purchaser with respect to
inspections and/or tests on the Property, Purchaser shall restore the Property
to a condition which is as near to its original condition as existed prior to
any such inspections and/or tests. Seller shall cooperate with Purchaser in its
due diligence but shall not be obligated to incur any liability or expense in
connection therewith. Purchaser shall not contact any tenants of the Property
without obtaining Seller's prior written consent and shall not disrupt Seller's
or Seller's tenants' activities on the Property. Purchaser agrees to indemnify
against and hold Seller harmless from any claim for liabilities, costs, expenses
(including reasonable attorneys' fees actually incurred) damages or injuries
arising out of or resulting from the inspection of the Property by Purchaser or
its agents, and notwithstanding anything to the contrary in this Agreement, such
obligation to indemnify and hold harmless Seller shall survive Closing or any
termination of this Agreement. All inspections shall occur at reasonable times
agreed upon by Seller and Purchaser. Purchaser acknowledges that Purchaser
commenced its due diligence review prior to the date of this Agreement, and that
August 24, 1999 is a reasonable expiration date for the Inspection Period.
3.2 Right of Termination. Seller agrees that in the event Purchaser
determines (such determination to be made in Purchaser's sole discretion) that
the Property is not suitable for its
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purposes, Purchaser shall have the right to terminate this Agreement by giving
written notice thereof to Seller prior to the expiration of the Inspection
Period. If Purchaser gives such notice of termination within the Inspection
Period, this Agreement shall terminate. Time is of the essence with respect to
the provisions of this Section 3.2. If Purchaser fails to give Seller a notice
of termination prior to the expiration of the Inspection Period, Purchaser shall
no longer have any right to terminate this Agreement under this Section 3.2 and
(subject to the provisions of Section 2.5) shall be bound to proceed to Closing
and consummate the transaction contemplated hereby pursuant to the terms of this
Agreement.
3.3 No Liens Permitted. Nothing contained in this Agreement shall be
deemed or construed in any way as constituting the consent or request of Seller,
express or implied by inference or otherwise, to any party for the performance
of any labor or the furnishing of any materials to the Property or any part
thereof, nor as giving Purchaser any right, power or authority to contract for
or permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any liens against the Property or any part
thereof. Prior to permitting any party to enter the Property prior to closing
for the purpose of performing any services or supplying any materials for which
such party could claim a mechanic's lien against the Property or any part
thereof, Purchaser shall cause to be filed in the applicable public filing
office, a waiver of mechanic's liens in form satisfactory to Seller by each of
the parties performing such work.
3.4 Materials. During the Inspection Period Seller shall make available
to Purchaser at the management office of the Property the following:
(i) Copies of plans and specifications and engineering and
environmental reports for the Property, to the extent currently in Seller's
possession.
(ii) Except for the items specifically excluded pursuant to
Section 3.1, the current books and records customarily prepared by or at
Seller's request with respect to the Property, including, without limitation, to
the extent so prepared, all ledgers, records of income, expense, capital
expenditures, utility bills and the most recent property tax xxxx, and
statements of income and expenses for 1997, 1998 and 1999 to date.
(iii) Copies of all management, service, maintenance and other
contracts currently in force with respect to the Property.
(iv) Copies of all Leases and other occupancy agreements
currently in force with respect to the Property.
(v) Copies of all operating permits and certificates of
occupancy issued with respect to the Property to the extent currently in
Seller's possession.
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(vi) Copies of all lease brokerage agreements, leasing
commission agreements or other agreements providing for payments of any amounts
for leasing activities or procuring tenants with respect to the Property which
have not been previously paid in full (including any future renewal or expansion
options contained in the Leases).
ARTICLE IV
CLOSING
4.1 Time and Place.
(a) The consummation of the transaction contemplated hereby
("Closing") shall be held at the offices of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx
LLP at 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 at 10:00
a.m. or, if the parties so agree, through an escrow with the Title Company, on
September 30, 1999 or at such earlier date as Seller and Purchaser may mutually
agree upon in writing. At Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively, Section 4.2 and Section 4.3, the
performance of which obligations shall be concurrent conditions.
(b) Purchaser can extend the Closing date until up to October 28,
1999 by giving Seller written notice thereof ("Extension Notice") on or before
September 24, 1999 and by depositing $500,000, which shall become part of the
Xxxxxxx Money, with Escrow Agent on the same date as the date of the Extension
Notice as an additional deposit.
(c) Time is of the essence with respect to the Extension Notice,
the delivery of $500,000 additional deposit and the date of Closing. The
Extension Notice shall set forth the new Closing date which shall be no later
than October 28, 1999, and shall confirm that Purchaser has either (i) approved
all Tenant Estoppels (hereinafter defined) Purchaser has received prior to the
date of the Extension Notice or (ii) waived any deficiency in such Tenant
Estoppels.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty deed (the
"Deed") in the form attached hereto as Schedule 4.2(a), conveying the Land and
Improvements, subject only to the Permitted Exceptions; the warranty of title in
the Deed will be only as to claims made by, through or under Seller and not
otherwise;
(b) deliver to Purchaser a duly executed xxxx of sale in the form
attached hereto as Schedule 4.2(b) conveying the Personal Property;
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(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by duly executed assignment and
assumption agreement in the form attached hereto as Schedule 4.2(c);
(d) to the extent assignable, assign to Purchaser, and Purchaser
shall assume, Seller's interest in the Operating Agreements and the other
Intangibles by duly executed assignment and assumption agreement in the form
attached hereto as Schedule 4.2(d);
(e) deliver to Purchaser such Tenant Estoppels (as defined in
Section 5.4(b) hereof) as are in Seller's possession;
(f) join with Purchaser to execute a notice in the form attached
hereto as Schedule 4.2(f) which Purchaser shall send to each tenant under each
of the Leases informing such tenant of the sale of the Property;
(g) deliver to Purchaser a certificate, dated as of the date of
Closing and executed on behalf of Seller by a duly authorized officer thereof,
stating that the representations and warranties of Seller contained in this
Agreement are true and correct in all material respects as of the date of
Closing (with appropriate modifications of those representations and warranties
made in Section 5.1 hereof to reflect any changes therein including, without
limitation, any changes resulting from actions under Section 5.4 hereof and
violation notices received after the Effective Date or identifying any
representation or warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the change. In no event shall
Seller be liable to Purchaser for, or be deemed to be in default hereunder by
reason of, any breach of representation or warranty which results from any
change that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a change which is not permitted hereunder or is beyond the reasonable control
of Seller to prevent shall, if materially adverse to Purchaser (as reasonably
determined by Purchaser), constitute the non-fulfillment of the condition set
forth in Section 4.6(b); if, despite changes or other matters described in such
certificate, the Closing occurs, Seller's representations and warranties set
forth in this Agreement shall be deemed to have been modified by all statements
made in such certificate.
(h) deliver to Purchaser such evidence as Purchaser's counsel
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Seller;
(i) deliver to Purchaser an affidavit duly executed by Seller
stating that Seller is not a "foreign person" as defined in the Federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act in the
form attached hereto as Schedule 4.2(i);
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(j) deliver to Purchaser the Leases, Operating Agreements and
licenses and permits, if any, in the possession of Seller or Seller's agents,
together with such leasing and property files and records which are material in
connection with the continued operation, leasing and maintenance of the
Property. So long as Purchaser continues to own the Property, Purchaser shall
cooperate with Seller for a period of seven (7) years after Closing in case of
Seller's need in response to any legal requirement, a tax audit, tax return
preparation or litigation threatened or brought against Seller, by allowing
Seller and its agents or representatives access, upon reasonable advance notice
(which notice shall identify the nature of the information sought by Seller), at
all reasonable times to examine and make copies of any and all such instruments,
files and records, which right shall survive the Closing;
(k) deliver to Purchaser possession and occupancy of the Property,
subject to the Permitted Exceptions;
(l) deliver to Purchaser evidence of the termination of the
existing management and leasing agreements for the Property; and
(m) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
(n) a Seller's title affidavit in form reasonably approved by
Seller addressed solely to the Title Company.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall:
(a) pay to Seller the full amount of the Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, in
immediately available wire transferred funds pursuant to Section 1.5 above, it
being agreed that at Closing the Xxxxxxx Money shall be delivered to Seller and
applied towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described in
Sections 4.2(c), 4.2(d), and 4.2(f) above;
(c) deliver to Seller a letter duly executed by Purchaser in the
form attached hereto as Schedule 4.3(c) , confirming that Purchaser is a Real
Estate Operating Company under the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and the regulations promulgated thereunder, and, in
the event Purchaser is unable or unwilling to make such a representation,
Purchaser shall be deemed to be in default hereunder, and Seller shall have the
right to terminate this Agreement and to receive and retain the Xxxxxxx Money;
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(d) deliver to Seller such evidence as Seller's counsel and/or the
Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Purchaser; and
(e) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the Property
as of 12:01 a.m., on the day of Closing, as if Purchaser were vested with title
to the Property during the entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term "rents" as
used in this Agreement includes all payments due and payable by tenants under
the Leases);
(ii) taxes (including personal property taxes on the Personal
Property) and assessments levied against the Property;
(iii) payments under those Operating Agreements which
Purchaser is assuming; Purchaser shall be deemed to have assumed all Operating
Agreements unless Purchaser gives Seller written notice prior to expiration of
the Inspection Period of any Operating Agreements which Purchaser has elected
not to assume;
(iv) gas, electricity and other utility charges for which
Seller is liable, if any, such charges to be apportioned at Closing on the basis
of the most recent meter reading occurring prior to Closing; and
(v) any other operating expenses or other items pertaining to
the Property which are customarily prorated between a purchaser and a seller in
the area in which the Property is located.
(b) Notwithstanding anything contained in the foregoing provisions:
(i) At Closing, (A) Seller shall, at Seller's option, either
deliver to Purchaser any security deposits actually held by Seller pursuant to
the Leases as set forth in Exhibit F or credit to the account of Purchaser the
amount of such security deposits (to the extent such security deposits are not
applied against delinquent rents following Seller's declaration of a default
under such tenant Lease or otherwise as provided in the Leases and the Tenant
Estoppel confirms such application of the security deposit), and (B) Purchaser
shall credit to the account of Seller all refundable cash or other deposits
posted with utility companies serving the Property to
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the extent they have been assigned to Purchaser or, at Seller's option, Seller
shall be entitled to receive and retain such refundable cash and deposits.
(ii) Any taxes paid at or prior to Closing which have accrued
prior to Closing shall be prorated based upon the amounts actually paid. If
taxes and assessments for the current year have not been paid before Closing,
Seller shall be charged at Closing an amount equal to that portion of such taxes
and assessments which relates to the period before Closing and Purchaser shall
pay the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or assessed
valuation, or both, have not yet been fixed shall initially, be based upon the
tax rate and/or assessed valuation last fixed. To the extent that the actual
taxes and assessments for the current year differ from the amount apportioned at
Closing, the parties shall make all necessary adjustments by appropriate
payments between themselves following Closing, which payments shall not be
subject to the threshold set forth in Section 5.3(a).
(iii) Charges referred to in Section 4.4(a) above which are
payable by any tenant to a third party shall not be apportioned hereunder, and
Purchaser shall accept title subject to any of such charges unpaid and Purchaser
shall look solely to the tenant to be responsible therefor for the payment of
the same. If Seller shall have paid any of such charges on behalf of any tenant
subsequent to the Effective Date because failure to make such payment to a third
party would violate Seller's obligations to such third party, and shall not have
been reimbursed therefor by the time of Closing, Purchaser shall credit to
Seller an amount equal to all such charges so paid by Seller but in no event
more than $20,000 in the aggregate.
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or sewer rents.
(v) As to gas, electricity and other utility charges referred
to in Section 4.4(a)(iv) above, Seller may on notice to Purchaser elect to pay
one or more of all of said items accrued to the date hereinabove fixed for
apportionment directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned hereunder, and
Seller's obligation to pay such item directly in such case shall survive the
Closing. Within forty-five (45) days after Closing, Seller shall furnish
Purchaser with evidence of payment thereof except to the extent they are to be
paid by tenants.
(vi) The Personal Property is included in this sale, without
further charge.
(vii) Purchaser shall be responsible for the payment of (A)
all Tenant Inducement Costs (as hereinafter defined) and leasing commissions
which become due and payable (whether before or after Closing) (1) as a result
of any renewals or expansions of existing
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Leases, approved or deemed approved in accordance with Section 5.4 hereof,
between the Effective Date and the date of Closing, (2) under any new Leases,
approved or deemed approved in accordance with Section 5.4 hereof, entered into
between the Effective Date and the date of Closing, and (3) under the lease
amendment with Pharmanet Inc. dated July 9, 1999, and (B) all Tenant Inducement
Costs and leasing commissions which become due and payable from and after the
date of Closing. If, as of the date of Closing, Seller shall have paid any
Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing. For purposes hereof, the term "Tenant Inducement
Costs" shall mean any out-of-pocket payments required under a Lease to be paid
by the landlord thereunder to or for the benefit of the tenant thereunder which
is in the nature of a tenant inducement, including specifically, without
limitation, tenant improvement costs, lease buyout costs, and moving, design,
refurbishment and club membership allowances. The term "Tenant Inducement Costs"
shall not include loss of income resulting from any free rental period, it being
agreed that Seller shall bear the loss resulting from any free rental period
until the date of Closing and that Purchaser shall bear such loss from and after
the date of Closing. Seller shall be responsible for any Tenant Inducement Costs
and Leasing Commissions and shall give Purchaser a credit therefore to the
extent unpaid at Closing for new leases or lease renewals or expansions entered
into prior to the Effective Date except for the lease amendment with Pharmanet.
(viii) There shall be no credit at Closing for unpaid and
delinquent rent except for delinquent rent which became due in the month in
which Closing occurred. Subject to the following sentence, unpaid and delinquent
rent collected by Seller and Purchaser after the date of Closing shall be
delivered as follows: (a) if Seller collects any unpaid or delinquent rent for
the Property, Seller shall, within fifteen (15) days after the receipt thereof,
deliver to Purchaser any such rent which Purchaser is entitled to hereunder
relating to the date of Closing and any period thereafter, and (b) if Purchaser
collects any unpaid or delinquent rent from the Property, Purchaser shall,
within fifteen (15) days after the receipt thereof, deliver to Seller any such
rent which Seller is entitled to hereunder relating to the period prior to the
date of Closing. Seller and Purchaser agree that all rent received by Seller or
Purchaser shall be applied first to delinquent rent which became due in the
month in which Closing occurred, second, to current rentals and then third, to
other delinquent rentals, if any, in inverse order of maturity. Purchaser will
make a good faith effort after Closing to collect all rents in the usual course
of Purchaser's operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
rents. Seller shall not xxx any tenant for delinquent rent for 90 days from the
Closing date and shall not xxx to terminate any lease or evict any tenant.
Seller shall remain responsible for adjustments with tenants after Closing for
periods prior to calendar year in which Closing occurs. In the event that there
shall be any rents or other charges under any Leases which, although relating to
a period prior to Closing, do not become due and payable until after Closing or
are paid prior to Closing but are subject to adjustment after Closing (such as
year end common area expense reimbursements and the like), then any rents or
charges
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of such type received by Purchaser or its agents or Seller or its agents
subsequent to Closing shall, to the extent applicable to a period extending
through the Closing, be prorated between Seller and Purchaser as of Closing and
Seller's portion thereof shall be remitted promptly to Seller by Purchaser.
(ix) Any lease termination fee or other compensation paid by J & B
Software, Inc. to terminate its lease shall be paid entirely to Seller
regardless of when paid.
(x) Without limiting any other post Closing obligation of Purchaser
under this Agreement, Purchaser acknowledges and agrees that Purchaser has the
obligation to pay all mid term tenant improvement costs under the Leases with
Xxxx Xxxxx Xxxx Xxxxxx, Inc. dated March 12, 1996 as amended January 6, 1996 and
Acme-Xxxxxxxx Co. dated December 2, 1996.
(xi) Seller shall have the right, at Seller's option, at any time
prior to Closing to enter into a lease termination agreement with Omnia Inc.
which will terminate the Omnia Inc lease prior to its scheduled expiration date.
In such even Seller shall be entitled to receive all lease termination fees and
delinquent rent regardless of whether paid by Omnia Inc. prior to or subsequent
to Closing.
(c) The provisions of this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction, (b) one-half (1/2) of any
escrow fee which may be charged by the Escrow Agent or Title Company, and (c)
one-half (1/2) of the realty transfer taxes which became due by reason of the
transfer of the Property. Purchaser shall pay (u) the fees of any counsel
representing Purchaser in connection with this transaction; (v) the fee for the
title examination and the Title Commitment and the premium for the Owner's
Policy of Title Insurance to be issued to Purchaser by the Title Company at
Closing and the cost of the survey; (w) the fees for recording the deed
conveying the Property to Purchaser; (x) one-half (1/2) of any realty transfer
tax, which becomes due by reason of the transfer of the Property; and (y)
one-half (1/2) of any escrow fees charged by the Escrow Agent or Title Company.
All other costs and expenses incidental to this transaction and the closing
thereof shall be paid by the party incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The obligation of
Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
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(a) Seller shall have delivered to Purchaser all of the items
required to be delivered to Purchaser pursuant to the terms of this Agreement,
including but not limited to, those provided for in Section 4.2.
(b) All of the representations and warranties of Seller contained
in this Agreement shall be true and correct in all material respects as of the
date of Closing (with appropriate modifications permitted under this Agreement
or not adverse to Purchaser as reasonably determined by Purchaser).
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Seller as of the date of Closing.
(d) If J & B Software, Inc. remains in its space subsequent to
September 30, 1999 pursuant to its lease termination agreement dated June 30,
1999, Seller shall pay to Purchaser, on a monthly basis, the sum of $222.28 for
each day after September 30, 1999 that J and B Software remains in occupancy of
its space, which amount shall not be subject to the threshold set forth in
Section 5.3(a), but in no event shall Seller pay such sum for more than 90 days.
(e) The Title Company issues to Purchaser the Title Policy with the
required endorsements referred to in Section 2.4 subject to the Permitted
Exceptions.
4.7 Conditions Precedent to Obligation of Seller. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement. (b)
Purchaser shall have delivered to Seller all of the items required to be
delivered to Seller pursuant to the terms of this Agreement, including but not
limited to, those provided for in Section 4.3.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing.
(d) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Purchaser as of the date of Closing.
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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby makes the
following representations and warranties to Purchaser as of the Effective Date:
(a) Organization and Authority. Seller has been duly organized and
is validly existing under the laws of New York. Seller has the full right and
authority to enter into this Agreement and, subject to the provisions of Section
10.6 hereof, to transfer all of the Property to be conveyed by Seller pursuant
hereto and to consummate or cause to be consummated the transactions
contemplated herein to be made by Seller. The person signing this Agreement on
behalf of Seller is authorized to do so.
(b) Pending Actions. To Seller's knowledge, there is no action,
suit, arbitration, unsatisfied order or judgment, governmental investigation or
proceeding pending or overtly threatened in writing against the Property or the
transaction contemplated by this Agreement, which, if adversely determined and
not covered by Seller's insurance could individually or in the aggregate have a
material adverse effect on title to the Property or any portion thereof or which
could in any material way interfere with the consummation by Seller of the
transaction contemplated by this Agreement.
(c) Leases. Seller is the lessor or landlord or the successor
lessor or landlord under the Leases. Except as set forth in the Lease Schedule,
there are no other leases or occupancy agreements to which Seller is a party
affecting the Property or any amendments or modifications thereto. Except as
otherwise set forth in the Leases or on the Lease Schedule, no presently
effective rent concessions have been given to any tenants and no rent has been
paid in advance by any tenants respecting a period subsequent to the Closing.
Except as may be disclosed on the Lease Schedule, no tenants have asserted in
writing directly to Seller (without attribution to Seller of the knowledge of
its property manager which is an affiliate of Purchaser) any claims, defenses or
offsets to rent accruing from and after the date of Closing. To Seller's
knowledge, except as may have been previously disclosed in writing to Purchaser
or set forth in the Lease Schedule or in Section 5.4(c) of this Agreement, no
material default, delinquency or breach exists on the part of any tenant. There
are no material defaults or breaches on the part of the landlord under any
Lease. In the event that any Tenant Estoppel delivered to Purchaser with respect
to any Lease shall contain any statement of fact, information or other matter
which is inconsistent with the matters stated in Seller's representations in
this Section 5.1(c), the Tenant Estoppel shall control and Seller shall have no
liability for any claim based upon a breach of representation regarding such
statement of fact, information or other matter contained in the Tenant Estoppel.
Notwithstanding anything to the contrary contained in this Agreement, Seller
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does not represent or warrant that any particular Lease will be in force or
effect at Closing or that the tenants under the Leases will have performed their
obligations thereunder. The termination of any Lease prior to Closing by reason
of the tenant's default shall not affect the obligations of Purchaser under this
Agreement to complete closing 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. The information on the Leases in the Lease Schedule (or
actually disclosed in the Leases or other materials delivered or made available
to Purchaser prior to the date hereof) is true and complete in all material
respects; and no rents due under any of the Leases have been assigned,
hypothecated or encumbered by Seller; at the time of Closing, Seller shall have
accepted no prepayment of rent under any of the Leases (except for the current
month and except for prepayments heretofore agreed to or received as set forth
either in the Leases or on the Lease Schedule); that Seller shall not have
terminated any of the Leases by agreement with the tenant (except by reason of a
default by the tenant thereunder or except for notices given to indicate the
landlord's intention not to permit the term of the lease to continue or be
renewed for an additional term) and that the copies of the Leases which Seller
shall make available to Purchaser during the Inspection Period are true, correct
and complete copies thereof in all material respects. Following the expiration
of the Inspection Period, Seller shall not terminate a lease by reason of a
default by a tenant without the prior written consent of Purchaser which shall
not be unreasonably withheld or delayed.
(d) Lease Brokerage. There are no lease brokerage agreements,
leasing commission agreements or other agreements providing for payments of any
amounts for leasing activities or procuring tenants with respect to the Property
as of the Effective Date which would be payable subsequent to Closing other than
as disclosed in the Leases, in the Lease Schedule or the Lease files to be made
available to Purchaser during the Inspection Period.
(e) No Violations. To Seller's knowledge, Seller has not received
prior to the Effective Date any written notification from any governmental or
public authority (i) that the Property is in violation of any applicable fire,
health, building, use, occupancy or zoning laws where such violation remains
outstanding or (ii) that any work is required to be done upon or in connection
with the Property, where such work remains outstanding. A possible violation of
the zoning code arising out of the height of the buildings shall not be deemed a
breach of this representation and warranty.
(f) Taxes and Assessments. True and complete copies of the most
recent real estate tax bills for the Property received by Seller have been
delivered to Purchaser. Seller has not filed and has not retained anyone to
file, notices of protests against, or to commence action to review, real
property tax assessments against the Property.
(g) Condemnation. To Seller's knowledge, no condemnation
proceedings relating to the Property are pending or threatened.
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(h) Insurance. To Seller's knowledge, Seller has not received any
written notice from any insurance company or board of fire underwriters of any
defects or inadequacies in or on the Property or any part or component thereof
that would materially and adversely affect the insurability of the Property or
cause any material increase in the premiums for insurance for the Property that
have not been cured or repaired.
(i) Environmental Matters. Except as set forth in the environmental
assessment report dated August 7, 1998, prepared by ATC Associates, a copy of
which has been delivered to Purchaser, any other environmental assessment
reports in Seller's possession and disclosed to Purchaser during the Inspection
Period or as otherwise disclosed to Purchaser, Seller has no knowledge of, and
Seller has received no written notification that any governmental or quasi
governmental authority has determined, that there are any violations of
environmental statutes, ordinances or regulations affecting the Property. As
used herein, "Hazardous Substances" means all hazardous or toxic materials,
pollutants, contaminants or wastes currently identified as hazardous substance
or waste in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (commonly known as "CERCLA"), as amended, the Superfund Amendments
and Reauthorization Act (commonly known as "XXXX"), the Resource Conservation
and Recovery Act (commonly known as "RCRA"), or any other federal, state or
local legislation or ordinances applicable to the Property.
(j) Assessments. Seller has no knowledge that there are, at the
date of this Agreement, any outstanding unpaid municipal assessment notices
against the Property and Seller has no knowledge of any threatened municipal or
special assessment notices, and that to Seller's knowledge all municipal
improvements for the cost for which the Property can be assessed which were
completed between the date of Seller's acquisition of title to the Property and
the date hereof have been paid in full.
(k) Operating Agreements. The Operating Agreements Schedule (the
"Operating Agreement s Schedule") attached hereto as Exhibit D is a complete and
correct list in all material respects of all Operating Agreements in effect, as
of the date hereof, with respect to the operation and maintenance of the
Property.
5.2 Knowledge Defined. References to the "knowledge" of Seller shall
refer only to the actual knowledge of the Designated Employees (as hereinafter
defined) of Lend Lease Real Estate Investments, Inc. ("Lend Lease"), the manager
of this asset for Seller, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller, Lend Lease or any affiliate of
either of them, to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or Lend Lease or any affiliate
thereof or to impose upon such Designated Employees any duty to investigate the
matter to which such actual knowledge,
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or the absence thereof, pertains. As used herein, the term "Designated
Employees" shall refer to the following persons:
(a) Xxxx Xxxxx and
(b) Xxxxx Xxxxxx.
5.3 Survival of Seller's Representations and Warranties. (a) Except as
otherwise provided in subsection (b) below, the representations and warranties
of Seller set forth in Section 5.1 as updated by the certificate of Seller to be
delivered to Purchaser at Closing in accordance with Section 4.2(g) hereof,
shall survive Closing for a period of nine (9) months. No claim for a breach of
any representation or warranty of Seller shall be actionable or payable (a) if
the breach in question results from or is based on a condition, state of facts
or other matter which was known to Purchaser prior to Closing, (b) unless the
valid claims for all such breaches collectively aggregate more than One Hundred
Thousand Dollars ($100,000), in which event the full amount of such claims shall
be actionable, and (c) unless written notice containing a description of the
specific nature of such breach shall have been given by Purchaser to Seller
prior to the expiration of said nine (9) month period and an action shall have
been commenced by Purchaser against Seller within sixty (60) days after the
termination of the survival period provided for above in this Section 5.3. As
used herein, the term "Cap" shall mean the total aggregate amount of One Million
Dollars ($1,000,000). In no event shall Seller's aggregate liability to
Purchaser for breach of any representation or warranty of Seller in this
Agreement, the certificate to be delivered by Seller at Closing pursuant to
Section 4.2(g) hereof and for any other claim, cause of action, or liability of
any kind, arising out of or relating directly or indirectly to this Agreement
(whether in contract, tort or otherwise) exceed the amount of the Cap. Seller
shall maintain a net worth greater than the Cap until after the expiration of
the nine (9) month survival period. If any claims made by Purchaser under this
Agreement prior to the end of the nine (9) month survival period, Seller shall
maintain a net worth greater than the lesser of (i) the Cap or (ii) the
aggregate amount of the claims.
(b) Notwithstanding any provision to the contrary set forth in this
Agreement, the warranties and representations of Seller set forth in Sections
5.1(c) with respect to Leases for which a Tenant Estoppel is delivered pursuant
to Section 5.4(b) and in Sections 5.1(e) and (g) above (all herein called the
"Non-Surviving Warranties") shall not survive Closing. Purchaser shall, prior to
the Closing, make its own independent investigation and determination as to the
truth and accuracy of the Non-Surviving Warranties. If Purchaser shall complete
Closing under this Agreement, Purchaser shall be deemed to have conclusively
determined that the Non-Surviving Warranties are true and correct, and Purchaser
shall be deemed to have waived any claim against Seller by reason of a breach of
any of the Non-Surviving Warranties. If Purchaser obtains actual knowledge that
any of the surviving warranties or any of the Non-Surviving Warranties are
breached prior to the Closing, Purchaser's sole right and remedy
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shall be to terminate this Agreement by giving to Seller written notice of such
termination within ten (10) days after Purchaser acquires actual knowledge of
the breach of such warranty. If Purchaser fails to give such written termination
notice to Seller within such time period, Purchaser shall be deemed to have
waived any right or remedy (including, without limitation, any right under this
Agreement to terminate this Agreement) against Seller by reason of the breach of
such warranty.
5.4 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) Seller shall not enter into any new Operating Agreements or
amendments to existing Operating Agreements which cannot be terminated at
Closing.
(b) From the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to operate
and maintain the Property in a manner generally consistent with the manner in
which Seller has operated and maintained the Property prior to the date hereof.
Purchaser shall accept the Property at the time of Closing in the same condition
as the same are as of the date of this Agreement, as such condition shall have
changed by reason of normal wear and tear. Without limiting the generality of
the foregoing, Purchaser specifically acknowledges that the fact that any
portion of the Property or any equipment or machinery therein or any part
thereof may not be in working order or condition at the Closing date by reason
of normal wear and tear or by reason of its present condition, shall not relieve
Purchaser of its obligation to complete Closing under this Agreement and pay the
full Purchase Price. Notwithstanding that Seller has no obligation to make any
repairs or replacements required by reason of wear and tear or fire or other
casualty, Seller may, at its option, make any such repairs and replacements
prior to the Closing if Seller believes such repairs and replacements are
necessary, desirable or legally required to protect the Property, but Seller
shall notify Purchaser if the cost thereof exceeds $25,000 in the aggregate and
provide Purchaser with a list of such items at least five days before incurring
them except in the case of emergencies. The reasonable cost of such repairs and
replacements which is not covered by insurance shall be added to the Purchase
Price and shall be payable by Purchaser to Seller at Closing.
(c) Seller shall use reasonable efforts (but without obligation to
incur any cost or expense) to obtain and deliver to Purchaser prior to Closing,
a written estoppel certificate in the form of Exhibit E attached hereto and made
a part hereof signed by each tenant occupying space in the Improvements. The
signed certificates are referred to herein as the "Tenant Estoppels."
Notwithstanding the foregoing, Purchaser may terminate this Agreement and have
the Xxxxxxx Money returned if (i) the Tenant Estoppels do not conform in any
material respect with the representations as to the Leases made by Seller to
Purchaser in Section 5.1(c) and/or (ii) Seller fails to deliver to Purchaser by
Closing Tenant Estoppels from: (A) Liberty Mutual Insurance Group and Pharmanet
Inc. (as to both existing space and expansion space except for
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physical occupancy of and payment of rent for, expansion space not yet available
for occupancy by Pharmanet Inc.) (collectively the "Major Tenants") and (B) from
such additional tenants that, in the aggregate, including the Major Tenants,
Purchaser receives Tenant Estoppels from tenants occupying at least eighty-five
percent (85%) of the rentable square feet in the Improvements. Purchaser agrees
not to object to (i) any non-material (as determined in Purchaser's reasonable
judgment) qualifications or modifications which a tenant may make to the form of
Tenant Estoppel and (ii) any modification to a tenant estoppel to conform the
Tenant Estoppel to the form of tenant estoppel certificate the tenant is
required to give under its lease and (iii) a statement by tenant that it is made
to the tenant's knowledge. Purchaser's obligations under this Agreement to
complete Closing and pay the Purchase Price shall not be relieved if Seller is
unable to obtain any Tenant Estoppel required to be delivered after using its
reasonable efforts to obtain it if Seller instead, at Seller's sole option,
executes a Tenant Estoppel for such tenant other than a Major Tenant. If any
such tenant or tenants does have a claim which would entitle it to set-off the
amount of the claim against rent due under the lease and the amount of such
claim is ascertainable, Seller shall give Purchaser a credit against the cash
portion of the Purchase Price in the amount of the claim(s) up to $50,000 in the
aggregate for all such claims, and if the claim(s) exceed $50,000 in the
aggregate, Seller has the right, at its sole option, to give Purchaser a credit
against the cash portion of the Purchase Price in the amount of the claim; and,
in such event, Purchaser shall complete Closing and take subject to such claim.
If Seller does not give Purchaser a credit against the cash portion of the
Purchase Price, Purchaser may, as its sole remedies, either terminate this
Agreement and have the Xxxxxxx Money returned or take subject to such claim
without seeking reimbursement or contribution from Seller. If Seller has
delivered a Seller Tenant Estoppel to Purchaser for one or more tenants and
within ninety (90) days following Closing, Seller or Purchaser receives an
acceptable Tenant Estoppel from any such tenant reflecting the same information
as the Landlord's Tenant Estoppel, then the Landlord's Tenant Estoppel for such
tenant shall be deemed null and void. Notwithstanding the foregoing, Purchaser
acknowledges that Omnia, Inc. ("Omnia") is currently in default under its lease
and Compuware Corporation ("Compuware") has vacated its premises but continues
to pay rent. Purchaser waives delivery of a Tenant Estoppel from Omnia and
Computerware and agrees not to include the space under those two (2) leases in
computing the rentable square feet of the Improvements.
(d) A copy of any amendment of an existing Lease or of any new
Lease which Seller wishes to execute between the Effective Date and the date of
Closing will be submitted to Purchaser prior to execution by Seller. Purchaser
agrees to notify Seller in writing within five (5) business days after its
receipt thereof of either its approval or disapproval, including all Tenant
Inducement Costs and leasing commissions to be incurred in connection therewith
specifically identified in writing to Purchaser. In the event Purchaser informs
Seller that Purchaser does not approve the amendment of the existing Lease or
the new Lease, which approval shall not be unreasonably withheld prior to the
expiration of the Inspection Period, Seller shall have the option to cancel this
Agreement by written notice thereof to Purchaser within five (5) business
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days after Seller's receipt of written notice of Purchaser's disapproval
thereof, and upon refund and payment of the Xxxxxxx Money to Purchaser, neither
party shall have any further liability or obligation hereunder. Seller will not
exercise this termination right with respect to Purchaser disapprovals occurring
after expiration of the Inspection Period. In the event Purchaser fails to
notify Seller in writing of its approval or disapproval within the five (5)
business day time period for such purpose set forth above, such failure shall be
deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller
for any Tenant Inducement Costs, leasing commissions or other expenses,
including legal fees, incurred by Seller pursuant to an amendment, or a new
Lease approved (or deemed approved) by Purchaser provided such costs have been
specifically identified in writing to Purchaser prior to its approval.
(e) Upon written request of Purchaser, Seller will cooperate with
Purchaser to provide Purchaser the names and addresses of the general partner of
Seller and the general partners of the subtier partners in Seller and their
parent companies and other similar information reasonably requested by Purchaser
(but excluding the names and addresses of the limited partners of Seller or any
limited partners in any subtier partner of Seller) so Purchaser can make its own
determination with respect to any ERISA matters relevant to Purchaser, but
Seller shall not be required to make any representations or warranties to
Purchaser with respect to ERISA. Seller confirms to Purchaser that (i) the
limited partnership interests in ML/EQ Real Estate Portfolio LP, Seller's
managing venturer, were registered with the Securities and Exchange Commission
and then sold publicly, and (ii) the interests in Seller owned by The Equitable
Life Assurance Society of the United States are owned for its general account
and as of the date hereof less than twenty-five percent 25% of the funds in its
general account are assets of "benefit plan investors" as defined by 29 CFR
2510.3-101(f).
5.5 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller:
(a) Purchaser is a Real Estate Operating Company as defined in
ERISA and the regulations promulgated thereunder.
(b) Purchaser has the full right, power and authority to purchase
the Property as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize Purchaser
to enter into this Agreement and to carry out its obligations hereunder have
been, or by the Closing will have been, taken. The person signing this Agreement
on behalf of Purchaser is authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending against Purchaser
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated by
this Agreement.
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5.6 Survival of Purchaser's Representations and Warranties. The
representation and warranties of Purchaser set forth in Section 5.5(a) shall
survive Closing and shall be a continuing representation and warranty without
limitation. All other representations and warranties of Purchaser shall survive
Closing for a period of nine (9) months.
5.7 Covenants of Purchaser. Purchaser hereby covenants with Seller that
Purchaser shall, in connection with its investigation of the Property during the
Inspection Period, inspect the Property for the presence of Hazardous Substances
(as defined in Section 5. 1 (i) hereof). Purchaser hereby assumes full
responsibility for such inspections and, except for claims based on
representations or warranties contained in Section 5.1(i), irrevocably waives
any claim against Seller arising from the presence of Hazardous Substances on
the Property. Nothing in this Section 5.7 constitutes a waiver by Purchaser of
any representation of Seller under this Agreement.
5.8 Purchaser Assumption. Purchaser shall be responsible to comply with
any notices concerning the existence of an uncorrected violation of law issued
by any public authority after the expiration date of the Inspection Period
(including any fines, interest or penalties thereon due to non-compliance
therewith), and Purchaser shall indemnify, defend and exonerate and save Seller
harmless from any claims therefor or any liability, loss, cost or expense
arising therefrom, and, if such compliance must occur prior to the date of
Closing to protect the Property, or to prevent the imposition of any fine or
penalty, Seller may effect such compliance, and the reasonable cost thereof
shall be deemed added to the Purchase Price and paid at Closing. Purchaser shall
also be responsible for payment of any municipal assessment against the Property
which is levied after the date of this Agreement. Purchaser shall have the same
obligations to Seller with respect to any such violation notice or municipal
assessment made after the date of Closing to the extent that the assessing
entity claims that Seller shall have personal liability. Seller shall be
responsible to correct any violation of law notices issued to Seller between the
Effective Date and the expiration of the Inspection Period, but if the cost of
correcting such violation notices exceeds $100,000 in the aggregate, Seller can
elect to terminate this Agreement in which even the Xxxxxxx Money shall be
returned to Purchaser as its sole remedy. Purchaser agrees and confirms that
Purchaser has not previously sought, and shall not seek, directly or indirectly
to cause or encourage any governmental official to inspect the Property.
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. If Purchaser defaults under this Agreement
for any reason other than Seller's default or the permitted termination of this
Agreement by either Seller or
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Purchaser as herein expressly provided, Seller shall be entitled, as its sole
remedy, to terminate this Agreement and receive the Xxxxxxx Money as liquidated
damages for the breach of this Agreement, it being agreed between the parties
hereto that the actual damages to Seller in the event of such breach are
impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable
estimate thereof.
6.2 Default by Seller. In the event that Seller fails to consummate its
obligations under this Agreement for any reason other than Purchaser's default
or the permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the Xxxxxxx Money which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller's obligation to
execute the documents required to convey the Property to Purchaser, it being
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder. Purchaser
expressly waives its rights to seek damages in the event of Seller's default
hereunder. Purchaser shall be deemed to have elected to terminate this Agreement
and receive back the Xxxxxxx Money if Purchaser fails to file suit for specific
performance against Seller in a court having jurisdiction in the county and
state in which the Property is located, on or before thirty (30) days following
the date upon which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property or any
portion thereof which is not "major" (as hereinafter defined), this Agreement
shall remain in full force and effect provided Seller performs any necessary
repairs prior to Closing or, at Purchaser's option, gives Purchaser a credit,
but only to the extent of insurance proceeds received by Seller or recoverable
by Seller, at Closing for the cost to repair the damage plus any resulting rent
loss. In the event that Seller elects to perform repairs upon the Property,
Seller shall use reasonable efforts to complete such repairs promptly and the
date of Closing shall be extended a reasonable time in order to allow for the
completion of such repairs but in no event greater than one hundred twenty (120)
days. Upon Closing, full risk of loss with respect to the Property shall pass to
Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the Xxxxxxx Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major loss
or damage, then Seller and Purchaser shall be deemed to have elected to proceed
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with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser all of Seller's right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards and to any rent loss
insurance proceeds relating to the premises in question. In the event that
Seller elects to perform repairs upon the Property, Seller shall use reasonable
efforts to complete such repairs promptly and the date of Closing shall be
extended a reasonable time in order to allow for the completion of such repairs.
If Seller elects to assign a casualty claim to Purchaser, the Purchase Price
shall be reduced by an amount equal to the deductible amount under Seller's
insurance policy. Upon Closing, full risk of loss with respect to the Property
shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of Sections 7.1
and 7.2, "major" loss or damage refers to the following: (i) loss or damage to
the Property or any portion thereof such that (a) the cost of repairing or
restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than One Million Dollars ($1,000,000), or (b) any Leases for
18,000 square feet or more in the aggregate have been terminated as a result of
such loss or damage and (ii) any loss due to a condemnation which permanently
and materially impairs the current use of the Property. If Purchaser does not
give notice to Seller of Purchaser's reasons for disapproving an architect
within five (5) business days after receipt of notice of the proposed architect,
Purchaser shall be deemed to have approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions.
(a) In the event the transaction contemplated by this Agreement is
consummated, but not otherwise, Seller agrees to pay to Xxxxxxx and Xxxxxxxxx of
PA, Inc. (the "Broker") at Closing a brokerage commission pursuant to a separate
written agreement between Seller and Broker. Each party agrees that should any
claim be made for brokerage commissions or finder's fees by any broker or finder
other than the Broker by, through or on account of any acts of said party or its
representatives, said party will indemnify and hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense
in connection therewith. Purchaser shall pay any fees due its advisor, LaSalle
Investment Management, Inc. or any of its affiliates. The provisions of this
paragraph shall survive Closing or earlier termination of this Agreement.
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(b) In consideration of Broker agreeing to reduce its
commission by $50,000, Seller agrees to give Purchaser at Closing a $50,000
credit against the Purchase Price.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated herein, Seller
makes no representation or warranty as to the truth, accuracy or completeness of
any materials, data or information delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information delivered by Seller to Purchaser
in connection with the transaction contemplated hereby are provided to Purchaser
as a convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Without limiting the generality of the
foregoing provisions, Purchaser acknowledges and agrees that (a) any
environmental or other report with respect to the Property which is delivered by
Seller to Purchaser shall be for general informational purposes only,
(b) Purchaser shall not have any right to rely on any such report delivered by
Seller to Purchaser, but rather will rely on its own inspections and
investigations of the Property and any reports commissioned by Purchaser with
respect thereto, and (c) neither Seller, any affiliate of Seller nor the person
or entity which prepared any such report delivered by Seller to Purchaser shall
have any liability to Purchaser for any inaccuracy in or omission from any such
report.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN
THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING
SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS" EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT
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RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR
AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO
ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL
RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF
SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING
BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND
PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. EXCEPT
THAT NOTHING IN THIS SECTION 9.1 CONSTITUTES A WAIVER OF ANY REPRESENTATION OF
SELLER UNDER THIS AGREEMENT.
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9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article IX. Seller and Purchaser agree that the provisions of
this Article IX shall survive Closing.
9.4 Representation by Counsel. Purchaser acknowledges that Purchaser
has been represented by independent legal counsel of Purchaser's selection and
Purchaser is granting the release set forth in Section 9.2 of its own violation
and after consultation with Purchaser's counsel.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to the lenders, investors, employees, consultants, accountants and
attorneys of Purchaser provided that such persons agree in writing to treat such
data and information confidentially. Notwithstanding the foregoing, neither
Purchaser nor its representatives shall be obligated to hold in confidence data
or information which is public or which Purchaser received from a third party
who is not under a confidentiality obligation to Seller. In the event this
Agreement is terminated or Purchaser fails to perform hereunder, Purchaser shall
promptly return to Seller any statements, documents, schedules, exhibits or
other written information obtained from Seller in connection with this Agreement
or the transaction contemplated herein. It is understood and agreed that, with
respect to any provision of this Agreement which refers to the termination of
this Agreement and the return of the Xxxxxxx Money to Purchaser, such Xxxxxxx
Money shall not be returned to Purchaser unless and until Purchaser has
fulfilled its obligations to return to Seller the materials described in the
preceding sentence. In the event of a breach of threatened breach by Purchaser
or its agents or representatives of this Section 10.1, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in party, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach of threatened breach. The provisions
of this Section 10.1 shall survive Closing.
10.2 Public Disclosure. Any release to the public of information with
respect to the sale contemplated herein or any matters set forth in this
Agreement will be made only in the form reasonably approved by Purchaser and
Seller and their respective counsel.
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10.3 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing and except
for the provisions of the Closing documents which expressly state that they are
to survive Closing.
10.4 Assignment. Purchaser shall give Seller prior written notice of
any proposed assignment of this Agreement or proposed transfer, directly or
indirectly, of any stock, partnership or other ownership interest in Purchaser
which will affect the control of Purchaser. Such notice shall identify the
proposed assignee or transferee and the constituent individuals and/or entities
thereof. Such notice shall be accompanied, as the case may be, by the written
certification of the proposed assignee in the case of an assignment or by the
written certification of Purchaser in the case of a transfer, directly or
indirectly, of any stock, partnership or other ownership interest in Purchaser
that the Property will not be purchased in whole or part with the assets of an
Employee Benefit Plan unless an exemption from ERISA is available. Purchaser
shall in addition cause to be delivered to Seller such further information with
respect to the proposed assignee or transferee and the constituent individuals
and/or entities thereof, including specifically, without limitation, any pension
or profit sharing plans related thereto, as Seller may request. Seller's consent
to any such assignment or transfer shall not relieve Purchaser of its
obligations under this Agreement. Purchaser may not assign its rights under this
Agreement to anyone other than a Permitted Assignee (as hereinafter defined)
without first obtaining Seller's written approval which may be given or withheld
in Seller's sole discretion. Subject to the conditions set forth in this Section
10.4, Purchaser may assign its rights under this Agreement to a Permitted
Assignee without the prior written consent of Seller. In the event that
Purchaser desires to assign its rights under this Agreement to a Permitted
Assignee, Purchaser shall send written notice to Seller at least five (5)
business days prior to the effective date of such assignment stating the name
and, if applicable, the constituent persons or entities of the Permitted
Assignee. Such assignment shall not become effective until such Permitted
Assignee executes an instrument reasonably satisfactory to Seller in form and
substance whereby the Permitted Assignee expressly assumes each of the
obligations of Purchaser under this Agreement, including specifically, without
limitation, all obligations concerning the Xxxxxxx Money. No assignment shall
release or otherwise receive Purchaser from any obligations hereunder. For
purposes of this Section 10.4 the term "Permitted Assignee" shall mean any
affiliate or advisee of Purchaser. Notwithstanding anything to the contrary
contained herein, Purchaser shall not have the right to assign this Agreement to
any assignee which, in the reasonable judgment of Seller, will cause the
transaction contemplated hereby or any party thereto to violate the requirement
of ERISA. In order to enable Seller to make such determination, Purchaser shall
cause to be delivered to Seller such information as is requested by Seller with
respect to a proposed assignee and the constituent persons or entities of any
proposed assignee, including specifically, without limitation, any pension or
profit-sharing plans related thereto.
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10.5 Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller:
c/o The Equitable Life Assurance Society of the
United States
1290 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Law Department - Real Estate
Telecopy: 000-000-0000
with a copy to:
Lend Lease Real Estate Investments, Inc.
Monarch Tower
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: 000-000-0000
Lend Lease Real Estate Investments, Inc.
0000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Bank Center
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: 000-000-0000
AND
00
00
Xxxx, Xxxxx, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: 000-000-0000
If to Purchaser:
c/o LaSalle Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: X. X. Xxxxx
Telecopy: 000-000-0000
10.6 Binding Effect. This Agreement shall not be binding in any way
upon Seller unless and until (a) Seller shall execute and deliver the same to
Purchaser, (b) each stage of Seller's investment approval process has approved
this transaction, and (c) Seller's Investment Committee has thereafter given its
written approval thereof. If Seller has not given Purchaser written notice (the
"Approval Notice") of such approvals on or before September 8, 1999 (the
"Approval Deadline"), or if prior to the Approval Deadline Seller notifies
Purchaser in writing that this Agreement has been disapproved by the persons or
entities referred to in clauses (b) or (c) of the preceding sentence, then this
Agreement shall be deemed terminated and Purchaser shall be entitled to the
return of the Xxxxxxx Money. It is understood and agreed that at each stage of
Seller's investment approval process, Seller or its investment advisor, Lend
Lease Real Estate Investment, Inc., shall each have the right, in its unfettered
discretion, to disapprove the transaction contemplated by this Agreement for any
reason whatsoever, without obligation thereafter to proceed to the next stage of
Seller's investment approval process. Seller's approval of this Agreement shall
be evidenced only by both Seller's execution of this Agreement and Seller's
sending of the Approval Notice to Purchaser prior to the Approval Deadline and,
accordingly, Purchaser acknowledges and agrees that Purchaser cannot and will
not rely upon any other statement or action of Seller or its representatives as
evidence of Seller's approval of this Agreement or the subject matter hereof.
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10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to each and
every tenant of the Property under a Lease thereof the notice required under
Section 4.2 (f). The provisions of this paragraph shall survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.11 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. The provisions of this Section 10. 12 shall survive
Closing.
10.13 Counterparts. This Agreement may be executed in counterparts, and
all such executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart in proving this Agreement.
10.14 Severability. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
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10.15 Applicable Law. This Agreement is performable in the state in
which the Property is located and shall in all respects be governed by, and
construed in accordance with, the substantive federal laws of the United States
and the laws of such state. Seller and Purchaser hereby irrevocably submit to
the jurisdiction of any state or federal court sitting in the state in which the
Property is located in any action or proceeding arising out of or relating to
this Agreement and hereby irrevocably agree that all claims in respect of such
action or proceeding shall be heard and determined in a state or federal court
sitting in the state in which the Property is located. Purchaser and Seller
agree that the provisions of this section 10. 15 shall survive the Closing of
the transaction contemplated by this Agreement.
10.16 No Third Party Beneficiary. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A Legal Description of the Land
(b) Exhibit B Personal Property
(c) Exhibit C Lease Schedule
(d) Exhibit D Operating Agreements Schedule
(e) Exhibit E Tenant Estoppel Form
(f) Exhibit F Security Deposits
(g) Schedule 4.2(a) Deed
(h) Schedule 4.2(b) Xxxx of Sale
(i) Schedule 4.2(c)&(d) Assignment
(j) Schedule 4.2(f) Tenant Notice
(k) Schedule 4.2(i) FIRPTA Affidavit
(l) Schedule 4.3(c) ERISA letter
10.18 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.19 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
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10.20 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement.
10.21 Survival. The provisions of this Article 10 and of the following
Sections of this Agreement shall survive Closing or any termination of this
Agreement prior thereto and shall not be merged into the execution and delivery
of the Deed: 3. 1; 4.2(j); 4.4; 4.5; 5.3; 5.5; 5.6; Article VI; 8.1, 9.3, 10.1,
10.5; 10.8, 10.9; 10.12 and 10.15. The foregoing is in addition to and not in
exclusion of any survival provisions elsewhere set forth in this Agreement.
10.22 No Recordation. Neither this Agreement nor any memorandum of the
terms hereof shall be recorded or otherwise placed of public record and any
breach of this covenant shall, unless the party not placing same of record is
otherwise in default hereunder, entitle the party not placing same of record to
pursue its rights and remedies under Article VI.
10.23 Limited Liability. The obligations of Seller arising by virtue of
this Agreement shall be limited to the interest of Seller in the Property and
the net sale proceeds thereof and resort shall not be held to any other assets
of Seller.
10.24 Waiver of Tender of Deed and Purchase Monies. The tender of an
executed Deed by Seller and the tender by Purchaser of the portion of the
Purchase Price payable at Closing are hereby mutually waived except as otherwise
provided in Sections 4.2 and 4.3; provided, however, nothing herein contained
shall be construed as a waiver of Seller's obligation to deliver the Deed and/or
of the concurrent obligation of Purchaser to pay the Purchase Price payable at
closing.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:
Name:
Title:
PURCHASER:
INCOME AND GROWTH FUND II, INC.
By:
Name:
Title:
36
38
Exhibit B
PERSONAL PROPERTY
37
39
Exhibit C
LEASE SCHEDULE
40
Exhibit D
OPERATING AGREEMENTS SCHEDULE
41
Exhibit E
TENANT ESTOPPEL FORM
__________________________________, 199
[PURCHASER]
Re: Lease dated ______________________________________________ ,199__
(the "Lease") executed between ______________________________________________
("Landlord"), and ("Tenant"), for those premises located at suite _________,
in 16 [18] Xxxxxx Xxxxxxx Xxxx, Xxxx Xxxx, XX.
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire that property located at 00-00 Xxxxxx Xxxxxxx Xxxx, Xxxx Xxxx, XX (the
"Property") from EML Associates ("Seller"). The undersigned Tenant does hereby
certify to you as follows:
A. The Lease consists only of the documents identified in Items 1
and 2 on Schedule A attached hereto ("Schedule A").
B. The Lease is in full force and effect and has not been modified,
supplemented, or amended except as indicated in Item 2 on
Schedule A.
C. Tenant has not given Landlord written notice of any dispute
between Landlord and Tenant or that Tenant considers Landlord in
default under the Lease.
D. Tenant does not claim any offsets or credits against rents
payable under the Lease.
E. Tenant has not paid a security or other deposit with respect to
the Lease, except as shown on Item 3 of Schedule A.
F. Tenant has fully paid rent on account of the month of _________,
1999; the current base rent under the Lease is shown on Item 4 of
Schedule A.
G. Tenant has not paid any rentals in advance except for the current
month of ________, 1999.
H. Tenant pays escalations above the base year of_________.
Currently, Tenant pays the amount per month shown as Item 7
on Schedule A.
42
I. The term of the Lease will terminate on the date indicated in
Item 4 on Schedule A.
J. Except as shown in Item 6 on Schedule A, Tenant has no options to
renew or extend the term of the Lease, right to terminate the
Lease, right of first refusal or option to purchase the Property
or any part thereof .
This certificate may be relied upon by you, your mortgagee and Seller
in completing the sale of the Property.
Very truly yours,
By:
Title:
43
Schedule A
1. Lease:
Landlord:
Tenant: ____________________
Suite #: ____________________
Date: ____________________
2. Modifications and/or Amendments
(a) Date: ____________________
(b) Date: ____________________
(c) Date: ____________________
3. Security Deposit
(currently held by
Landlord) $____________________
4. Monthly Base Rent
for current term
of Lease $____________________
5. Commencement Date: ____________________
Termination Date ______________________
6. Right of First refusal to Lease to Purchase
or option ___________ _____________
(if none, state "None")
If "yes", does such right or option still exist or has such right or
option been exercised or waived?
Still Exists_____ Exercised______ Waived______
7. Right To Terminate _________
8. Current Monthly Share of Common Operating Expenses: $_________
44
Schedule 4.2(a)
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
THAT EML ASSOCIATES, a New York general partnership (hereinafter
referred to as "Grantor"), for and in consideration of the sum of Twenty-Nine
Million Three Hundred Thousand Dollars ($29,300,000.00) and other good and
valuable consideration to it in hand paid by ____________, a ____________
(hereinafter referred to as "Grantee"), whose mailing address is____________,
the receipt and sufficiency of which consideration are hereby acknowledged,
and upon and subject to the exceptions, liens, encumbrances, terms and
provisions hereinafter set forth and described, has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY,
unto Grantee all of the real property situated in Xxxxxxxxxx County,
Pennsylvania, described on Exhibit A attached hereto and made a part hereof for
all purposes, together with all and singular the rights, benefits, privileges,
easements, tenements, hereditaments and appurtenances thereon or in any wise
appertaining thereto, and together with all improvements located thereon and any
right, title and interest of Grantor in and to adjacent streets, alleys and
rights-of-way (said land, rights, benefits, privileges, easements, tenements,
hereditaments, appurtenances, improvements and interests being hereinafter
referred to as the "Property").
This conveyance is made subject to the agreements, easements and
restrictions of public record (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
as aforesaid, unto Grantee, its successors and assigns, forever; and Grantor
does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all
and singular the Property unto Grantee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Grantor, but not otherwise.
By acceptance of this Special Warranty Deed, Grantee assumes payment of
all real property taxes on the Property for the year 1999 not due and payable as
of the date hereof and subsequent years.
45
IN WITNESS WHEREOF, this Special Warranty Deed has been executed by
Grantor to be effective as of the day of _____________, 1999.
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:__________________________
Name:
Title:
46
STATE OF ______________________ :
: SS.
COUNTY OF ____________________ :
On the ___ day of September, 1999, before me, the subscriber, a Notary
Public in and for the State and County aforesaid, personally appeared _________,
who acknowledge himself/herself to be a ____________ of EREIM Managers Corp., a
corporation and the general partner of ML/EQ Real Estate Portfolio, LP, a
limited partnership which is the managing venturer of EML ASSOCIATES, a New York
general partnership, and that he/she being authorized to do so executed the
foregoing instrument on behalf of the corporation as general partner of the
managing venturer of such general partnership for the purposes therein contained
and desired that it may be recorded.
WITNESS my hand and seal the day and year aforesaid.
________________________________
Notary Public
My Commission Expires:
47
Schedule 4.2(b)
XXXX OF SALE AND ASSIGNMENT
THAT this XXXX OF SALE AND ASSIGNMENT (this "Xxxx of Sale") is made
from EML ASSOCIATES, a New York general partnership ("Assignor")
to ___________________________ , a ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Xxxx of Sale,
Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, SELL, TRANSFER, CONVEY,
SET OVER, and DELIVER to Assignee the following (collectively, the "Assigned
Properties"):
(a) The personal property owned by Assignor upon the Land or
within the Improvements, including specifically, without limitation, heating,
ventilation and air conditioning systems and equipment, appliances, furniture,
carpeting, draperies and curtains, tools and supplies, and other items of
personal property (excluding cash) used in connection with the operation of the
Land and the Improvements (collectively, the "Personal Property"); and
(b) All of Assignor's right, title and interest in and to all
assignable warranties and guaranties (express or implied) issued in connection
with the Improvements or the Personal Property, plans and specifications
permits, licenses and certificates of occupancy (collectively, the "Warranties
and Documents"); provided, however, that Assignor makes no representation or
warranty with respect to the existence, availability or assignability of any
Warranties and Documents.
1
48
EXCEPT AS MAY BE OTHERWISE EXPRESSLY PROVIDED IN THE PURCHASE AND SALE
AGREEMENT DATED JULY ____ , 1999 BETWEEN ASSIGNOR AND ASSIGNEE [ ], ASSIGNOR
MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN
RESPECT OF THE PERSONAL PROPERTY, AND THE SAME IS SOLD IN "AS IS, WHERE IS"
CONDITION, WITH ALL FAULTS. BY EXECUTION OF THIS XXXX OF SALE, ASSIGNEE AFFIRMS
THAT IT HAS NOT RELIED ON ASSIGNOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE
PERSONAL PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT ASSIGNOR MAKES NO
WARRANTY THAT THE PERSONAL PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE, AND THAT
THE PERSONAL PROPERTY IS BEING SOLD TO ASSIGNEE WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.
This Xxxx of Sale is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Assigned Properties.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its successors
and assigns, forever, and Assignor does hereby bind itself and its successors to
WARRANT AND FOREVER DEFEND, all and singular, title to the Assigned Properties
unto Assignee, its successors and assigns, against every person whomsoever
lawfully claiming or to claim the same, or any part thereof by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
EXECUTED to be effective as of the ____________ day of September, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:__________________________
Name:
Title:
2
49
Title:
ASSIGNEE:
______________________________,
a ____________________________
By:__________________________
Name:________________________
Title:_______________________
3
50
Schedule 4.2(c) and (d)
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THAT this ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is
made by and between EML ASSOCIATES, a New York general partnership ("Assignor"),
and ________________, a _______________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts").
(a) all written agreements pursuant to which any portion of
the Land or Improvements is used or occupied by anyone other than Assignor
(collectively, the "Leases"), such Leases being more particularly described in
Exhibit B attached hereto and made a part hereof; provided, however, that
Assignor reserves and retains for itself all claims and causes of action
accruing to Assignor with respect to the Leases prior to the effective date
hereof subject to the terms of the Purchase and Sale Agreement dated July ___,
1999 between Assignor and ASSIGNEE [_______________] Seller and Purchaser
("Purchase Agreement"); and
(b) all assignable contracts and agreements relating to the
upkeep, repair, maintenance or operation of the Land, Improvements or Personal
Property, including specifically, without limitation, all service contracts,
leasing commission agreements and assignable equipment leases (collectively, the
"Operating Agreements") listed as Exhibit B attached hereto
1
51
and made a part hereof; provided, however, that Assignor makes no representation
or warranty with respect to the assignability of any of the Operating
Agreements.
This Assignment is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Contracts.
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), to the extent such Contractual Obligations accrue
from and after the date of this Assignment. Without limiting the generality of
the preceding sentence, Assignee acknowledges the receipt of the security
deposits either credited to Assignee's account or delivered to Assignee pursuant
to Section 4.4(b) of the Purchase Agreement and agrees to apply same in
accordance with the terms of the Leases. Assignee hereby agrees to indemnify,
hold harmless and defend Assignor from and against any and all third party
obligations, liabilities, costs and claims (including reasonable attorney's
fees) arising as a result of or with respect to any of the Contractual
Obligations which accrue from and after the date of this Assignment.
Assignor agrees to indemnify, hold harmless and defend Assignee from
and against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations which arose or accrued prior to the date of
this Assignment except as otherwise provided in the Purchase Agreement.
ASSIGNEE ACKNOWLEDGES THAT IT HAS INSPECTED THE CONTRACTS AND THAT THIS
ASSIGNMENT IS MADE BY ASSIGNOR AND ACCEPTED BY ASSIGNEE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE
AGAINST ASSIGNOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE PURCHASE
AGREEMENT.
Assignee agrees not to grant any extension or renewal of any of the
Contracts, but shall, instead, provide for any extensions or renewals by means
of new leases or new agreements which will contain no reference to Seller.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
2
52
EXECUTED to be effective as of the __ day of September, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York
general partnership
By: ML/EQ REAL ESTATE
PORTFOLIO, LP, its Managing
Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:_____________________________
Name:
Title:
ASSIGNEE:
________________________________,
a ______________________________
By:_____________________________
Name:___________________________
Title:__________________________
4
53
Schedule 4.2(f)
TENANT NOTIFICATION LETTER
December __, 1998
[Name and Address of Tenant]
Re: Sale of 00-00 Xxxxxx Xxxxxxx, Xxxx Xxxx, XX
Gentlemen:
Please be advised that _______________ ("Purchaser") has
purchased the captioned property, in which you occupy space as a tenant pursuant
to a lease dated _____, 199__ (the "Lease), from EML Associates ("EML"), the
previous owner thereof. In connection with such purchase, EML has assigned its
interest as landlord in the Lease to Purchaser and has transferred your security
deposit in the amount of $ (the "Security Deposit") to Purchaser. Purchaser
specifically acknowledges the receipt of and responsibility for the Security
Deposit, the intent of Purchaser and EML being to relieve EML of any liability
for the return of the Security Deposit.
All rental and other payments that become due subsequent to
the date hereof should be payable to _______________ and should be addressed as
follows:
_________________________
_________________________
_________________________
In addition, all notices from you to the landlord concerning
any matter relating to your tenancy should be sent to _________________________
at the following address.
Very truly yours,
[NAME OF PURCHASER]
By:_______________________________
1
54
Name: ______________________________
Title:______________________________
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:_________________________________
Name:
Title:
2
55
Schedule 4.2(i)
FIRPTA AFFIDAVIT
KNOW ALL MEN BY THESE PRESENTS:
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform _______________, a _______________ ("Transferee"), that
withholding of tax is not required upon the disposition of a U.S. real property
interest by EML Associates ("Transferor"), the undersigned hereby certifies as
follows:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations);
2. Transferor's U.S. employer identification number is: # _______________;
3. Transferor's office address is 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned, in the capacity set forth below,
hereby declares that he has examined this certification and to the best of his
knowledge and belief it is true, correct, and complete, and the undersigned
further declares that he has authority to sign this document in such capacity.
1
56
EXECUTED effective as of the _____ day of September, 1999.
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:__________________________
Name:
Title:
SWORN TO AND SUBSCRIBED BEFORE ME this ______ day of September, 1999.
Notary Public in and for the
State of ________________
[Printed or Typed Name of Notary]
My Commission Expires:
2
57
Schedule 4.3(c)
ERISA STATEMENT
September __, 1999
EML Associates
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sale of 00-00 Xxxxxx Xxxx Xxxxxxx, Xxxx Xxxx, XX
Gentlemen:
In connection with the sale of the above captioned property
(the "Property") more particularly described on Exhibit A attached hereto by EML
Associates to _______________, a _______________, the undersigned hereby
represents and certifies that (i) it is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 as amended ("ERISA") and (ii) that it is
a Real Estate Operating Company under ERISA and the regulations promulgated
thereunder.
Very truly yours,
_________________________________
a
By: ______________________________
Name:_____________________________
Title:____________________________
3
58
FIRST AMENDMENT
TO PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made as of the 29th day of September, 1999 by and
between EML ASSOCIATES ("Seller") and INCOME AND GROWTH FUND II, INC.
("Purchaser").
BACKGROUND OF TRANSACTION
A. Seller and Purchaser entered into a Purchase and Sale Agreement
dated as of August 20, 1999 ("Purchase Agreement").
B. Seller and Purchaser desire to amend certain provisions of the
Purchase Agreement as set forth below.
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby covenant and agree as follows:
1. Reference is made to an Extension Notice given by Purchaser to
Seller on September 22, 1999, a copy of which is attached hereto as Exhibit A.
("Extension Notice").
2. Purchaser hereby rescinds its disapproval of the tenant estoppel
certificate for Mathieson, Atken, Xxxxxxx LLP ("Mathiesan") and hereby approves
that tenant estoppel certificate. In consideration for Purchaser's approval of
it, Seller agrees to credit to Purchaser at Closing the sum of $20,000, and
Purchaser agrees that Purchaser is obligated to perform all future refurbishing
work required under the Xxxxxxxxx lease.
3. Purchaser hereby rescinds its disapproval of the Acme Xxxxxxxx Inc.
("Acme") tenant estoppel certificate, and Purchaser hereby approves it. In
consideration of Purchaser's approval of the Acme tenant estoppel certificate,
Seller hereby agree to credit to Purchaser at Closing the sum of $14,364 and
Purchaser agrees that Purchaser is obligated to perform all future refurbishing
work required under the Acme lease.
4. Purchaser has approved the tenant estoppel certificates set forth on
Exhibit B.
5. Seller hereby acknowledges that Purchaser has validly exercised its
Extension Notice and that Closing is now set for October 28, 1999.
6. Purchaser agrees that to Purchaser's actual knowledge, Seller has
complied to date with Seller's obligations under the Purchase Agreement.
7. If TPA asserts that it is entitled to a credit of $16,020.80
pursuant to an April 21, 1999 memo to TPA Inc. attached hereto as Exhibit C,
Seller and Buyer want to agree who will be responsible for such purported claim.
Seller hereby agrees to credit to Purchaser at Closing the sum of $8,000, and
Purchaser agrees that Purchaser will be responsible for payment of any
59
remaining tenant improvement allowance which TPA Inc. may successfully
assert up to $16,020.80. If TPA Inc. does not assert a claim, Purchaser will
nevertheless retain the $8,000 credit.
8. Except as expressly amended hereby, the terms of the Purchase
Agreement shall remain in full force and effect without modification.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:
Name:
Title:
PURCHASER:
INCOME AND GROWTH FUND II, INC.
By:
Name:
Title:
