SALE-PURCHASE AGREEMENT
between
MAIDEN LANE ASSOCIATES, LTD.,
as seller,
and
XXXXXXX HOLDINGS LLC,
as purchaser.
Premises:
Two Soundview Drive
Greenwich, Connecticut
As of May 25, 2005
\88888888\735\101554.4
SALE-PURCHASE AGREEMENT
THIS SALE-PURCHASE AGREEMENT (this "Agreement"), made as of the 25th day of
May, 2005, between MAIDEN LANE ASSOCIATES, LTD., a Delaware corporation, having
an address at 000 Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("Seller"), and XXXXXXX
HOLDINGS LLC, a Connecticut limited liability company, having an address at 0000
Xxxx Xxxx, Xxxxxxxxx, XX 00000 ("Purchaser").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Property (hereinafter defined) on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the mutual receipt and legal sufficiency of which the
parties hereto hereby acknowledge, Seller and Purchaser hereby agree as follows:
1. Sale-Purchase. Subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees
to purchase and acquire from Seller, the following:
A. The Land. The fee estate in and to that certain plot, piece and parcel
of land located in the Town of Greenwich, County of Fairfield and State of
Connecticut, more particularly described on Exhibit "A" attached hereto and made
a part hereof (the "Land"), including any strips or gores adjacent thereto,
together with all of Seller's right, title and interest, if any, in and to any
land lying in the bed of any street, road or avenue, opened or proposed, public
or private, in front of or adjoining the Land, to the center line thereof, and
all right, title and interest, if any, of Seller in and to any award made or to
be made in lieu thereof and in and to any unpaid award for damage to the Land by
reason of change of grade of any street, subject, however, to the Permitted
Exceptions (hereinafter defined);
B. Improvements. All of Seller's right, title, and interest in and to the
buildings and other improvements built on or attached to the Land (the
"Improvements"), subject, however, to the Permitted Exceptions (the Land and the
Improvements being collectively referred to herein as the "Real Estate");
C. Fixtures. All of Seller's right, title, and interest in and to the
fixtures built on or attached to the Real Estate (the "Fixtures"), subject,
however, to the Permitted Exceptions;
D. Personal Property. All of Seller's right, title, and interest in and to
the equipment, furniture, machinery, furnishings, tools, spare parts, supplies
and other articles of personal property owned by or hereafter acquired by Seller
and located on the Real Estate and used in connection with the ownership
maintenance, use, and operation of the Real Estate (the "Personal Property"),
except for the items of Personal Property set forth on Exhibit "B" attached
hereto and made a part hereof (the Fixtures and the Personal Property being
collectively referred to herein as the "Additional Property"); it being agreed
that no portion of the Purchase Price (as hereinafter defined) is attributable
to the Additional Property;
E. Other Property. All of Seller's right, title and interest, if any, in
and to all easements, rights of way, privileges, servitudes, appurtenances and
other rights, if any, running with Seller's interest in the Real Estate,
subject, however, to the Permitted Exceptions;
F. Space Leases. All of Seller's right, title and interest under all leases
or other agreements for the present or future use or occupancy of any space in
the Improvements, in respect of which Seller holds the interest of the lessor
thereunder, and all guaranties or other documents relating thereto (each, a
"Space Lease"; collectively, the "Space Leases") that are in effect on the
Closing Date (hereinafter defined);
G. Security Deposits. All of Seller's right, title and interest to all
money, negotiable instruments, and other security deposited by the tenants or
occupants under the Space Leases (collectively, "Tenants") to secure performance
of Tenants' obligations thereunder, to the extent such security remains in
Seller's possession or control on the Closing Date, with all accrued interest
thereon (to the extent that the applicable Space Leases require such interest to
accrue for the benefit of Tenants) (collectively, the "Security Deposits");
H. Contract Rights. All of Seller's right, title and interest in and to (i)
any assignable guaranties, warranties, certificates, rights and privileges
relating to the Improvements or the Additional Property, to the extent in effect
on the Closing Date, (ii) any assignable licenses and permits relating to the
Improvements or the Additional Property, to the extent in effect on the Closing
Date, (iii) any deposits made by Seller (or Seller's predecessors-in-interest)
with utility companies relating to the Improvements or the Additional Property,
to the extent apportionment is made therefor under Section 6 hereof, (iv) any
plans or specifications relating to the Improvements or the Additional Property,
to the extent in Seller's possession or control on the Closing Date, and (v) any
assignable trademarks, trade names, logos, or similar property relating to the
Improvements or the Additional Property (the items described in clauses (i),
(ii), (iii), (iv) and (v) above being collectively referred to herein as the
"Contract Rights"); and
I. Third-Party Contracts. All right, title and interest of Seller and/or
Seller's agents in and to any third-party brokerage agreements, if any, relating
to the Real Estate as listed on Exhibit "C" attached hereto and made a part
hereof (such third-party brokerage agreements relating to the Real Estate
together with any new contracts entered into under Section 13B hereof are
collectively referred to herein as "Third-Party Contracts"), to the extent such
contracts or agreements are in effect on the Closing Date (the items described
in clauses A through I of this Section 1 being collectively referred to herein
as the "Property").
2. Purchase Price Subject to adjustment as hereinafter provided, the
purchase price for the Property is Twenty Eight Million Two Hundred Thousand
Dollars ($28,200,000.00), legal currency of the United States of America (the
"Purchase Price"), payable as follows: (A) an amount equal to One Million
Dollars ($1,000,000.00), legal currency of the United States of America (the
"Down payment"), on the date hereof, payable by wire transfer of immediately
available federal funds to the account designated by Xxxxxx and Xxxx LLP, as
escrow agent ("Escrow Agent"), or by check, subject to collection, to the order
of Escrow Agent, to be held by Escrow Agent pursuant to and in accordance with
the provisions of this Agreement; and (B) the balance of the Purchase Price on
the date that the Closing (hereinafter defined) occurs by wire transfer of
immediately available federal funds to the account or accounts designated by
Seller or, at Seller's option, by unendorsed certified or cashier's check or
checks payable to the order of, or at the direction of, Seller and drawn on a
commercial bank which is a member of the New York Clearinghouse Association.
3. Permitted Exceptions. Subject to the terms of Section 9 hereof, the Real
Estate and the Fixtures shall be sold, and title thereto conveyed, subject only
to the matters set forth on Exhibit "D" attached hereto and made a part hereof
(collectively, the "Permitted Exceptions").
4. The Closing; Closing Date. Subject to the provisions of this Section 4,
the consummation of the sale transaction contemplated hereby (the "Closing")
shall take place at 10:00 A.M. on July 6, 2005. (time being of the essence with
respect to Purchaser's obligation to consummate this transaction). The Closing
shall take place at the offices of Xxxxxx and Xxxx LLP, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000 (the date upon which the Closing occurs being referred to
herein as the "Closing Date").
5. Violations. Subject to the terms hereof, all violations of law or
municipal ordinances, orders or requirements noted in or issued by the
departments of buildings, fire, labor, health or other federal, state, county,
city or other departments and governmental agencies having jurisdiction against
or affecting the Property (collectively, the "Violations"), noted against the
Property prior to the date hereof, other than Violations which a Tenant is
responsible for complying with pursuant to the terms of its Space Lease
(collectively, the "Existing Violations"), shall be complied with by Seller, at
its sole cost and expense, on or before the Closing Date, or, at Seller's sole
option, at the Closing, Purchaser shall receive a credit against the Purchase
Price payable by Purchaser pursuant to Section 2 hereof in an amount equal to
the cost of compliance for those Existing Violations which have not been
complied with on or before the Closing Date. If Seller and Purchaser shall be
unable to agree upon the cost of complying with such Existing Violations, Seller
shall, at its sole cost and expense, retain an independent engineer that is
reasonably designated by Seller (the "Violations Engineer"), to estimate such
cost, and the credit to be received by Purchaser under this Section 5 shall be
an amount equal to the Violations Engineer's final determination of such cost of
compliance. Any Violations noted against the Property on or after the date
hereof shall be the sole responsibility of Purchaser and Purchaser shall accept
title to the Property subject to such Violations without any abatement of the
Purchase Price.
6. Apportionments.
A. Subject to the terms of this Section 6, the following items, without
duplication, are to be apportioned between Seller and Purchaser with respect to
the Property as of 11:59 p.m., New York City time, on the date immediately prior
to the Closing Date, and at the Closing the net amount thereof shall either be
(x) paid by Purchaser to Seller by wire transfer of immediately available
federal funds to a bank account designated by Seller or, at Seller's option, by
unendorsed certified or cashier's check or checks payable to the order of, or at
the direction of, Seller and drawn on a commercial bank which is a member of the
New York Clearinghouse Association, or (y) credited by Seller against the
Purchase Price:
(i) real property taxes and assessments (including, if applicable, any
business personal property assessment);
(ii) water rates and charges, except those required to be paid by Tenants
directly to the entity imposing same;
(iii) sewer taxes and rents, except those required to be paid by Tenants
directly to the entity imposing same;
(iv) fuel and all other utilities, including, without limitation, taxes
thereon;
(v) deposits on account with any utility company servicing the Property, to
the extent transferred to Purchaser;
(vi) deposits on account with any municipality having jurisdiction over the
Property, to the extent transferred to Purchaser;
(vii) rents and charges under the Space Leases in effect on the Closing
Date, if, as and when collected;
(viii) annual permit, license and inspection fees, if any, on the basis of
the fiscal year for which levied, if the rights with respect thereto are
transferable to Purchaser;
(ix) charges under the Third-Party Contracts that are in effect on the
Closing Date;
(x) inventory in unopened packages; and
(xi) all other items that reasonably require apportionment in accordance
with local custom and practice to effectuate the transactions contemplated
hereby.
Seller and Purchaser shall adjust any apportionments made under this
Section 6 after the Closing to account for errors or incorrect estimates made as
of the Closing Date (it being agreed that the parties' aforesaid agreement to
make such adjustments shall survive the Closing for a period of twelve (12)
months).
B. Governmental Charges. Apportionment of real property taxes, water rates
and charges, sewer taxes and rents and other similar items shall be made on the
basis of the fiscal year for which assessed. If the Closing Date occurs before
the real property taxes, water rates and charges, sewer taxes and rents or
similar items with respect to the Property are finally fixed for the fiscal year
in which the Closing occurs, then the apportionments thereof made at the Closing
shall be made on the basis of the real property taxes, water rates and charges,
sewer taxes and rents or other similar items, as the case may be, for the
preceding fiscal year applied to the latest assessed valuation. After the real
property taxes, water rates and charges, sewer taxes and rents or similar items,
as the case may be, are finally fixed for the fiscal year in which the Closing
occurs, Seller and Purchaser shall make a recalculation of the apportionment
thereof based on the amounts finally fixed for the fiscal year in which the
Closing occurs, and Seller or Purchaser, as the case may be, shall make an
appropriate payment to the other party based on such recalculation. Seller or
its representatives shall have the right (x) at any time before the Closing, to
institute tax reduction or other proceedings to reduce the assessed valuation of
the Real Estate with respect to the period ending at the end of the fiscal year
in which the Closing occurs, or (y) to continue, after the Closing, any such
proceedings commenced by Seller prior to the Closing, provided that such
proceeding shall not be finally settled by Seller without the prior consent of
Purchaser, which consent shall not be unreasonably withheld. If Purchaser, at
any time following the Closing, shall institute tax reduction or other
proceedings to reduce the assessed valuation of the Real Estate with respect to
the period ending at the end of the fiscal year in which the Closing occurs,
such proceeding shall not be finally settled by Purchaser without the prior
consent of Seller, which consent shall not be unreasonably withheld. If any
refund of any real property tax, water rates and charges, sewer taxes and rents
or similar items is issued after the Closing Date for any period including the
period prior to the Closing Date, such refund shall be applied as follows:
first, to the cost incurred in obtaining such refund; second, to any amount
required to be refunded to the Tenants in accordance with the terms of the Space
Leases, to the extent applicable; and, third, the balance of such refund, if
any, shall be apportioned between Seller, for the period prior to the Closing
Date, and Purchaser, for the period from and after the Closing Date.
C. Water Meters. If there shall be any meters measuring water consumption
at the Real Estate (other than meters measuring water consumption which is the
obligation of a Tenant), Seller shall attempt to obtain meter readings to a date
that is no more than thirty (30) days before the Closing, and, if such readings
are obtained, the unfixed water rates and charges and sewer taxes and rents, if
any, based thereon for the intervening time, shall be apportioned on the basis
of such readings, or if such readings are not obtained, the unfixed water rates
and charges and sewer taxes and rents, if any, shall be apportioned upon the
last meter readings.
D. Payment of Certain Items. The amount of any unpaid taxes, assessments,
water rates and charges, sewer taxes and rents and any other similar items which
Seller is obligated to pay and discharge with respect to the Real Estate, with
interest and penalties thereon to the Closing Date, may, at the option of
Seller, be allowed to Purchaser out of the Purchase Price, provided that
official bills therefor with interest and penalties thereon are furnished by
Seller at the Closing. Purchaser, if request is made at least two (2) business
days prior to the Closing, shall provide Seller at the Closing with separate
wire transfers of immediately available federal funds and/or certified and/or
official bank checks drawn on, or by, a commercial bank that is a member of the
New York Clearinghouse Association, payable as directed by Seller, in an
aggregate amount not exceeding the balance of the Purchase Price due to Seller
at the Closing, to facilitate the satisfaction of any of the aforesaid taxes,
assessments, water rates and charges, sewer taxes and rents and other similar
items and any interest and penalties thereon to the Closing Date. Without
limiting the foregoing, Seller is solely obligated to pay and discharge any of
the aforesaid taxes, assessments, water rates and charges, sewer taxes and rents
and other similar items affecting the Real Estate that are delinquent as of the
Closing Date, subject to apportionment as herein provided.
E. Fuel Oil. Fuel oil, if any, owned by Seller and located at the Real
Estate on the Closing Date shall be adjusted at the cost thereof to Seller on a
first in-first out basis. Seller shall arrange for the amount of fuel oil to be
determined in writing by the fuel company presently supplying fuel to the Real
Estate as of a date which is not more than five (5) business days prior to the
Closing Date.
F. Assessments. If, on the Closing Date, the Real Estate, or any part
thereof, is affected by any real property tax assessments, then Seller shall pay
such assessments; provided, however, that if such assessments are payable in
installments, then Seller shall pay such installments due prior to the Closing
Date, and Purchaser shall pay such installments due after the Closing Date.
G. Escalation Rents. Seller shall be entitled to all escalation rents with
respect to any Space Lease for any fiscal year ending prior to the Closing Date.
At the end of the fiscal year during which the Closing occurs with respect to
which escalation rents are payable under each Space Lease, there shall be a
calculation of the portion of such escalation rents to which Seller shall be
entitled, which portion shall be equal to a fraction, the numerator of which is
the number of days in said fiscal year under the applicable Space Lease which
elapsed prior to the Closing Date and the denominator of which is the total
number of days in said fiscal year during which the Space Lease was in effect,
and Purchaser shall be entitled to the remaining portion of such escalation
rents. If Seller has received escalation rents with respect to any Space Lease
for such fiscal year in excess of the amount to which it is entitled pursuant
hereto, such excess shall be paid by Seller to Purchaser within ten (10)
business days after notice to Seller of such calculation. If Purchaser has
received escalation rents with respect to any Space Lease for such fiscal year
in excess of the amount to which it is entitled pursuant hereto, such excess
shall be paid by Purchaser to Seller within ten (10) business days after the
later of (a) Purchaser's receipt of such excess of escalation rents, and (b) the
date of such calculation.
H. Collection of Rents. To the extent that pursuant to the provisions
hereof Seller is entitled to any portion of rents or charges payable under the
Space Leases after the Closing, Purchaser shall xxxx Tenants for all rents and
charges as provided by their respective Space Leases and Purchaser shall use
commercially reasonable efforts to collect any and all rents and charges due
pursuant thereto. Purchaser, without Seller's prior written consent, may not
settle or compromise any rents or charges which are due and payable from Tenants
who have rents or charges outstanding for any period prior to the Closing Date.
Any amounts collected by Purchaser as a result of such collection efforts or any
legal proceeding shall be applied first toward Purchaser's reasonable attorneys'
fees and other reasonable costs of collection incurred in connection therewith
and then in accordance with the provisions of Paragraph 6I hereof.
I. Application of Rents and Charges Under Space Leases. From and after the
Closing Date, all rent and charge collections with respect to the Property shall
be applied in the following order (notwithstanding any designation by the
remitting Tenant), whether received by, on behalf of or at the direction of
Seller or Purchaser: (i) first to the calendar month during which the Closing
Date occurs, (ii) then to any calendar month or months following the calendar
month during which the Closing Date occurs for which rent is then due and
payable, and (iii) finally to any arrears for the period before the calendar
month during which the Closing Date occurs. All such unpaid rents and other
charges collected from Tenants shall be remitted promptly after collection to
(i) Seller to the extent that Seller has the right thereto and (ii) Purchaser to
the extent that Purchaser has the right thereto. Nothing contained herein shall
be construed to prohibit Seller from bringing or pursuing an action for money
damages against any Tenant after the Closing by reason of such Tenant's failure
to pay rent or charges for any period prior to the Closing Date; provided,
however, Seller shall not seek to terminate the applicable Space Lease or evict
the applicable Tenant.
J. Letters of Credit as Security under Space Leases. If a Tenant has
deposited with Seller a letter of credit as security for the performance of such
Tenant's obligations under the applicable Space Lease (a "Tenant L/C"), Seller
shall use reasonable efforts to (i) compel such Tenant to cause the bank which
issued such Tenant L/C to issue an amendment to such Tenant L/C or issue a new
Tenant L/C naming Purchaser as the beneficiary thereunder effective as of the
Closing Date or (ii) execute instruments of assignment of Seller's interest
under such Tenant L/C at or prior to Closing. If Seller is unable to provide for
the transfer of Seller's interest in any Tenant L/C as provided in clauses (i)
or (ii) of this Section 6J at or prior to Closing, then (a) Seller shall
cooperate with Purchaser in arranging for the assignment to Purchaser of the
beneficiary's interest under such letter of credit (or the re-issuance to
Purchaser of such letter of credit) promptly following the Closing and (b) if
requested by Purchaser, upon the default by a Tenant under its Space Lease,
Seller shall present the Tenant L/C for payment and Purchaser shall indemnify
Seller for, and hold Seller harmless against, any and all loss, liability, costs
or expenses (including reasonable attorneys' fees and disbursements) incurred in
connection such presentment.
K. Survival. The provisions of this Section 6 shall survive the Closing.
7. Closing Documents.
A. At the Closing, Seller, at Seller's sole cost and expense, shall deliver
to Purchaser the following:
(i) a certificate of Seller certifying that the execution and delivery of
the documents by Seller set forth herein have been duly authorized by all
necessary action of Seller and that such documents have been duly executed and
delivered by Seller;
(ii) a Deed (the "Deed"), in the form of Exhibit "E" attached hereto and
made a part hereof, duly executed and acknowledged by Seller, so as to convey to
Purchaser all of Seller's right, title and interest in and to the Real Estate,
subject only to the Permitted Exceptions;
(iii) State of Connecticut Real Estate Conveyance Tax Return, to the extent
required in connection with the consummation of the transaction contemplated
hereby, duly executed by Seller;
(iv) a Real Estate Conveyance Tax Statement addressed to the Town Clerk of
Greenwich, Connecticut, to the extent required in connection with the
consummation of the transaction contemplated hereby, duly executed by Seller;
(v) any additional documents promulgated by the Town of Greenwich,
Fairfield County or the State of Connecticut, to the extent required in
connection with the consummation of the transaction contemplated hereby, duly
executed by Seller;
(vi) a "non-foreign person affidavit" that meets the requirements of
Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended (the "Tax
Code"), containing Seller's taxpayer identification number;
(vii) a xxxx of sale, in the form of Exhibit "F" attached hereto and made a
part hereof, duly executed by Seller, so as to convey to Purchaser all of
Seller's right, title and interest in and to the Personal Property existing as
of the Closing Date, free and clear of all liens and encumbrances other than the
Permitted Exceptions;
(viii) an Assignment and Assumption of Space Leases (the "Assignment and
Assumption of Space Leases"), in the form of Exhibit "G" attached hereto and
made a part hereof, duly executed by Seller, so as to assign to Purchaser from
and after the Closing Date all of Seller's right, title and interest as lessor
under the Space Leases (including, without limitation, any guaranties or other
documents relating thereto) that are in effect as of the Closing Date;
(ix) the Security Deposits theretofore paid in cash to Seller, to the
extent held by Seller at the time of Closing, together with an accounting
certified by Seller of the disposition, if any, of such Security Deposits, and
any Tenant L/C issued, amended or to be assigned pursuant to the terms of
Section 6J of this Agreement;
(x) all Tenant Estoppel Certificates received prior to the Closing Date
that have been not theretofore been delivered to Purchaser;
(xi) a notice executed by Seller and addressed to the Tenants under the
Space Lease in effect on the Closing Date, informing such Tenants of the sale of
the Property to Purchaser, of the name and notice address of the Purchaser as
successor landlord under the Space Leases and that the Security Deposits then
held by Seller, if any, have been assigned to Purchaser and directing such
Tenants to make all payments thereafter coming due under the Space Leases to
Purchaser or as Purchaser may otherwise direct;
(xii) an Assignment and Assumption of Contract Rights and Third-Party
Contracts (the "Assignment and Assumption of Contract Rights and Third-Party
Contracts"), in the form of Exhibit "H" attached hereto and made a part hereof,
duly executed by Seller and/or Seller's agent, as the case may be, so as to
assign to Purchaser from and after the Closing Date all of Seller's right, title
and interest in and to the Contract Rights and Third-Party Contracts that are in
effect on the Closing Date;
(xiii) a certificate, from Seller, restating on and as of the Closing Date,
the representations made by Seller in Section 11A hereof, except that Seller, in
such certificate, may modify the representations made by Seller in clauses (vi),
(viii), (ix), (x), (xi), (xii) and (xiii) of Section 11A hereof to reflect facts
and circumstances that exist on and as of the Closing Date (such certificate
being referred to herein as the "Seller's Update Certificate"), it being
understood that nothing contained in this clause (xiii) shall relieve Seller of
its obligation to comply with all covenants of Seller expressly set forth
herein;
(xiv) any originally executed counterparts in the possession of Seller or
Seller's agents, or, in lieu thereof, true and correct copies, of the Space
Leases, if any, that are in effect on the Closing Date;
(xv) Seller's counterparts of all other Tenants' records and documents to
the extent in the possession of Seller or Seller's agents, including but not
limited to all licenses and permits and Tenants' insurance policies,
certificates and endorsements, if any, in the possession of Seller or Seller's
agents;
(xvi) any originally executed counterparts in the possession of Seller or
Seller's agents, or, in lieu thereof, true and correct copies, of the documents
comprising the Contract Rights and Third-Party Contracts, if any, that are in
effect on the Closing Date;
(xvii) to the extent in the possession of Seller or Seller's agents, all
keys or key cards and alarm codes to, and all combinations to, any locks on, all
entrance doors to, and any equipment and utility rooms located in, the
Improvements, appropriately tagged for identification;
(xviii) to the extent in the possession of Seller or Seller's agents, any
as-built plans and specifications, mechanical, electrical and plumbing layouts
and operating manuals, surveys and certificates of occupancy relating to the
Property; and
(xix) any other documentation reasonably required to consummate the
transactions contemplated by this Agreement.
B. At the Closing, Purchaser, at Purchaser's sole cost and expense, shall
deliver to Seller the following:
(i) in accordance with and subject to adjustment as provided in this
Agreement, the balance of the Purchase Price;
(ii) Purchaser's organizational documents, resolutions and consents, as
applicable, certified by a general partner, managing member or officer, as the
case may be, of Purchaser as true, correct and complete, which evidence and
certify that the execution and delivery by Purchaser of this Agreement and the
documents set forth herein have been duly authorized by all necessary action of
Purchaser and that this Agreement and such documents have been duly executed and
delivered by Purchaser;
(iii) any documents promulgated by the Town of Greenwich, Fairfield County
or the State of Connecticut, to the extent required in connection with the
consummation of the transaction contemplated hereby, duly executed by Purchaser;
(iv) the Assignment and Assumption of Space Leases, duly executed and
acknowledged by Purchaser;
(v) the Assignment and Assumption of Contract Rights and Third-Party
Contracts, duly executed by Purchaser;
(vi) a certificate, from Purchaser, restating on and as of the Closing Date
the accuracy of the representations made by Purchaser in Section 11C hereof
(such certificate being referred to herein as the "Purchaser's Update
Certificate"); and
(vii) any other documentation reasonably required to consummate the
transactions contemplated by this Agreement.
C. At the Closing, Seller shall pay, to the extent applicable, the State of
Connecticut Real Estate Conveyance Tax and the Municipal Connecticut Real Estate
Conveyance Tax. The provisions of this Section 7C shall survive the Closing.
D. At the Closing, Purchaser shall pay any applicable (i) title insurance
costs, (ii) survey fees, and (iii) recordation fees.
8. Estoppel Letters.
A. Prior to the Closing, Seller shall request an estoppel letter, in the
form that each Tenant is required to execute and deliver under its applicable
Space Lease or, if none, substantially in the form attached hereto as Exhibit
"I", from each Tenant under a Space Lease that is then in effect (each, a
"Tenant Estoppel Letter"; collectively, "Tenant Estoppel Letters"). Seller shall
deliver to Purchaser copies of the Tenant Estoppel Letters received by Seller
(if any) promptly after Seller's receipt thereof. In the event that Seller, as
of the Closing Date, has not received and delivered to Purchaser Tenant Estoppel
Letters from all of the Tenants under the Space Leases set forth on Exhibit J
attached hereto that are in effect on the Closing Date (such Tenants herein
referred to as the "Major Tenants"), or if the Tenant Estoppel Certificate
obtained from any Major Tenant omits or fails to address a required item, Seller
may, at its sole option, deliver to Purchaser, in lieu thereof, a written
certificate or certificates of Seller (each, a "Seller's Estoppel Certificate"
and collectively, "Seller's Estoppel Certificates") certifying and representing
to Purchaser all of the items required to be addressed in such Tenant Estoppel
Certificate (or the items required that are omitted or not fully addressed in
the Tenant Estoppel Certificate obtained by Seller, as the case may be). In the
event that Seller, at the Closing, is unable to deliver to Purchaser Tenant
Estoppel Letters from each of the Major Tenants as required hereunder and elects
not to deliver Seller's Estoppel Certificates as permitted above, Purchaser may,
at its option, terminate this Agreement by giving notice thereof to Seller.
B. Seller's liability under any Seller's Estoppel Certificate shall survive
the Closing only until the earliest to occur of (i) the one hundred eightieth
(180th) day following the Closing Date (the "Outside Date"), (ii) the date that
the term of the applicable Space Lease expires or earlier terminates and (iii)
the date that the Tenant under the applicable Space Lease executes a Tenant
Estoppel Letter in form required hereunder that is delivered to Purchaser.
Seller's liability under Seller's Estoppel Certificates shall be limited as
provided in Section 11B hereof, and each Seller Estoppel Certificate shall so
recite.
C. If this Agreement is terminated by Purchaser pursuant to Section 8A
hereof, then, subject to the terms of Section 15 hereof, Escrow Agent shall
return the Down payment (together with all interest thereon, if any) to
Purchaser, and thereupon, no party shall have thereafter any continuing rights,
duties or obligations hereunder, other than any such rights, duties or
obligations that are expressly stated in this Agreement to survive the
termination hereof.
9. Title Insurance.
A. Within five (5) days after the execution and delivery of this Agreement,
Purchaser shall order from a reputable title insurer licensed to do business in
Connecticut (the "Title Insurer") a title insurance report and commitment for a
title insurance policy with respect to the interests in the Real Estate to be
conveyed by Seller to Purchaser hereunder, which policy shall be in the form
currently used by reputable title insurers in the State of Connecticut (such
report and such commitment and any updates thereto issued by the Title Insurer
in connection with this Agreement being referred to herein as the "Commitment"),
and Purchaser, within three (3) business days after Purchaser's receipt of the
Commitment, shall furnish a copy thereof, together with copies of all Exceptions
(hereinafter defined) listed thereon, to Seller's attorneys. Purchaser shall
also provide to Seller's attorneys a copy of any update to the Commitment issued
by the Title insurer on or prior to the Closing Date (an "Update"), together
with copies of all Exceptions listed thereon that Purchaser has not previously
delivered copies of to Seller, promptly after Purchaser's receipt thereof.
Except as expressly provided in this Agreement, Seller shall have no obligation
to remove any Exception. If the Commitment or any Update discloses any Exception
that is not a Permitted Exception and to which Purchaser objects, then Purchaser
shall give a written notice (a "Title Notice") to Seller on or prior to the
tenth (10th) day after the date upon which Purchaser receives the Commitment or
the Update first containing such Exception (but in any event not later than the
Closing), as applicable, which notice shall identify any such Exception. Any
Exceptions contained in the Commitment or any Update not included in a Title
Notice timely given in accordance with the preceding sentence shall be deemed
Permitted Exceptions. If Seller elects not to eliminate any Exception set forth
in a Title Notice that is not a Permitted Exception and that Seller is not
obligated to remove pursuant to this Section 9, then Seller shall so notify
Purchaser within fifteen (15) days after Seller's receipt of such Title Notice
(but in any event not later than the Closing); provided, however, if Seller
fails to so notify Purchaser within such 15-day period, Seller shall be deemed
to have elected not to eliminate such Exception. Purchaser, within ten (10) days
after Seller's giving of such notice, or failure to give such notice, but in any
event not later than the Closing, shall either (i) elect to terminate this
Agreement by notice given to Seller, in which event the provisions of Section 10
hereof shall apply, or (ii) elect to accept title to the Property subject to
such Exception, without any abatement of the Purchase Price (it being understood
that if Purchaser elects, or is deemed to have elected, to proceed under this
clause (ii), then such Exception shall constitute a Permitted Exception for
purposes hereof). If Purchaser fails to make such election to terminate this
Agreement within such ten (10) day period, then Purchaser shall be deemed to
have elected clause (ii) above with the same force and effect as if Purchaser
had elected clause (ii) within such ten (10) day period.
B. Notwithstanding anything to the contrary contained in Section 9A hereof,
if the Commitment discloses judgments, bankruptcies or other returns against
other persons or entities having names the same as or similar to that of Seller,
then Seller, on request and to the extent applicable, shall deliver to Purchaser
or the Title Insurer affidavits to the effect that such judgments, bankruptcies
or other returns are not against Seller. In addition, if the Commitment or any
Update discloses any exception, lien, mortgage, security interest, claim,
charge, reservation, lease, tenancy, occupancy, easement, right of way,
encroachment, restrictive covenant, condition, limitation or other encumbrance
affecting the Property (collectively, "Exceptions"), other than the Permitted
Exceptions, which in each case (a) may be eliminated solely by delivery of an
affidavit reasonably requested by the Title Insurer that can be delivered by
Seller or by reference to the title policy insuring Seller's interest in the
Property, (b) Seller willfully placed of record, or (c) may be satisfied by the
payment of a liquidated sum of money not in excess of One Hundred Thousand
Dollars ($100,000), in the aggregate with all other Exceptions (an Exception
meeting the criteria set forth in clauses (a), (b) or (c) being referred to as a
"Removable Exception"), then, in any such case, Seller shall take such action as
is required on the part of Seller to have such Exception removed by the Title
Insurer.
C. Seller shall exercise due diligence in removing any Removable Exceptions
and any Exceptions that Seller elects to remove pursuant to this Section 9;
provided, however, that Seller shall be entitled to one (1) or more adjournments
of the Closing for a period of time not to exceed sixty (60) days in the
aggregate in order to remove any Removable Exceptions or any Exceptions that
Seller elects to remove pursuant to this Section 9. If Seller is unable to
remove, or cause the removal of, any Exception (which is not a Permitted
Exception or a Removable Exception), then Seller shall so notify Purchaser, and
Purchaser, within ten (10) days thereafter, but in any event not later than the
Closing, shall either (i) elect to terminate this Agreement by notice given to
Seller, in which event the provisions of Section 10 hereof shall apply, or (ii)
elect to accept title to the Property subject to such exception, without any
abatement of the Purchase Price (it being understood that if Purchaser elects,
or is deemed to have elected, to proceed under this clause (ii), then such
exception shall constitute a Permitted Exception for purposes hereof). If
Purchaser shall not make such election to terminate this Agreement within such
ten (10) day period, then Purchaser shall be deemed to have elected clause (ii)
above with the same force and effect as if Purchaser had elected clause (ii)
within such ten (10) day period.
10. Return of Downpayment. Subject to Seller's obligations under Section 9
hereof, if Seller is unable to convey title to the Real Estate in accordance
with the terms of this Agreement and if Purchaser is entitled to and elects to
terminate this Agreement in accordance with Section 9 hereof, or if Purchaser
otherwise terminates this Agreement pursuant to any right to do so in accordance
with the provisions hereof, then Seller shall cause Escrow Agent to refund to
Purchaser the Down payment (together with all interest thereon, if any),
whereupon this Agreement shall terminate and neither party to this Agreement
shall thereafter have any rights or obligations hereunder, at law or in equity
for damages or otherwise (other than any such rights or such obligations which
are expressly stated in this Agreement to survive the termination hereof).
11. Representations.
A. Subject to Section 11B hereof, Seller hereby represents and warrants to
Purchaser that:
(i) Seller is a corporation, duly organized and validly existing under the
laws of the State of Delaware. Seller's tax identification number is 00-0000000;
(ii) Seller has the power and authority to own and operate the Property and
to execute and deliver, and perform Seller's obligations under, this Agreement;
(iii) Seller's execution and delivery of this Agreement, and the
performance of Seller's obligations hereunder, have been authorized by all
necessary action on the part of Seller;
(iv) all necessary consents for Seller to enter into this Agreement and
perform its obligations hereunder have been obtained;
(v) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by Seller do not violate
any provision of, or cause a default under, or result in the acceleration of any
obligation under, any agreement which will be in effect on and after the Closing
to which Seller is a party or any law, statute, rule, ordinance, regulation or
requirement by which Seller or the properties, assets, business or operations of
Seller may be bound or affected, do not require the consent or approval of any
court, administrative or governmental authority and do not result in the
creation or imposition of any lien or equity of any kind whatsoever upon, or
give to any other person any interest or right (including any right of
termination or cancellation) in or with respect to, any agreement to which
Seller is a party or the business or operations of Seller or any of its
properties or assets which in any such case are material to the Property;
(vi) Exhibit "K" attached hereto and made a part hereof is a true, correct
and complete, in all material respects, list of all Space Leases that are
currently in effect, including, without limitation, any amendments, modification
and supplements thereto, and any related guaranties;
(vii) the copies of the Space Leases heretofore delivered to Purchaser by
or on behalf of Seller are true, correct and complete in all material respects;
(viii) except as otherwise indicated on Exhibit "L" attached hereto and
made a part hereof, (A) Seller has not received any written notice from any
Tenant under any currently effective Space Lease that Seller is in default in
any material respect of any material obligations of Seller to such Tenant under
such Space Lease which default has not been cured, and (B) Seller has not
delivered any written notice to a Tenant under a Space Lease that such Tenant is
in default in any material respect of any material obligations of such Tenant
under such Space Lease which default has not been cured;
(ix) no Tenant is entitled to rent concessions, rebates, rent abatements,
rights of set-off or offset against rent or tenant improvement allowances
except, in each case, as set forth in the applicable Space Lease;
(x) Purchaser will have no obligation to pay brokerage commissions after
the Closing either (a) upon any extension or renewal of, or election of a Tenant
not to exercise any cancellation rights under, any Space Lease that is currently
in effect, or (b) upon the exercise of any option to lease additional space in
the Improvements contained in any Space Lease that is currently in effect by the
landlord or Tenant under such Space Lease, except in either case as set forth in
the applicable Third-Party Contracts listed on Exhibit "C" attached hereto;
(xi) there is no money or other security, including Tenant L/Cs, deposited
by Tenants with Seller as lessor under the current Space Leases to secure
performance of Tenants' obligations thereunder, other than as set forth on
Exhibit "M" attached hereto and made a part hereof;
(xii) the copies of the Third-Party Contracts heretofore delivered to
Purchaser are true, correct and complete;
(xiii) Seller is not a party to any pending action, suit, condemnation or
eminent domain proceeding, or other litigation or proceeding with respect to the
Property which is reasonably likely to have a material adverse effect on
Seller's ability to close on the sale of the Property; and
(xiv) Seller is not the subject of any proceeding pursuant to the United
States Bankruptcy Code of 1978, as amended
B. The representations set forth in Section 11A hereof, as updated by the
Seller's Update Certificate, shall survive the Closing until the Outside Date.
Within ten (10) days after Purchaser's discovery of any misrepresentation of
Seller made under Section 11A hereof, as updated by the Seller's Update
Certificate, or any misrepresentation under a Seller's Estoppel Certificate
(collectively, "Seller Misrepresentations"), but in no event later than the
Outside Date, Purchaser shall give Seller written notice identifying such Seller
Misrepresentation. Notwithstanding anything herein to the contrary, Seller's
liability for Seller Misrepresentations shall not exceed an amount equal to One
Million and 00/100 Dollars ($1,000,000.00) in the aggregate. Purchaser shall not
make any claim and is not entitled to any damages or remedies against Seller
with respect to any Seller Misrepresentations, unless and until Purchaser's
actual damages (but not compensatory, consequential or punitive damages)
resulting from all such claims exceed an amount equal to Fifty Thousand and
00/100 Dollars ($50,000.00) in the aggregate, after considering any recovery
Purchaser obtains from any title insurance coverage or other remedies Purchaser
may have in connection with such claims, which remedies, if any, Purchaser shall
pursue prior to bringing any claim against Seller. Any claim by Purchaser with
respect to Seller Misrepresentations shall be effective and valid only if made
in writing against Seller on or prior to the Outside Date. Seller shall have a
reasonable period of time (not to exceed one hundred twenty (120) days) after
receipt of written notice of such a claim to cure any Seller Misrepresentation
resulting in such claim. If (x) Purchaser, at any time prior to the Closing, has
actual knowledge that any of the representations set forth in Section 11A hereof
or in any Seller's Estoppel Certificate were untrue in any material respect when
made (or Purchaser is deemed to have knowledge that any of the representations
set forth in Section 11A hereof or in any Seller's Estoppel Certificate were
untrue in any material respect when made), or (y) Purchaser, at the Closing, has
actual knowledge that any of the representations made by Seller in the Seller's
Update Certificate are untrue in any material respect (or Purchaser is deemed to
have knowledge that any of the representations set forth in the Seller's Update
Certificate are untrue in any material respect), then Purchaser's sole remedy
for any such misrepresentation by Seller shall be to terminate this Agreement by
giving notice thereof to Seller on or prior to the Closing Date, in which event
the provisions of Section 10 hereof shall apply (it being agreed that Purchaser
shall be deemed to have actual knowledge of any information relating to the
Property that is delivered to Purchaser or is otherwise made available to
Purchaser, at any time prior to the Closing Date, either by or on behalf of
Seller, including, without limitation, by Broker (hereinafter defined), any
Seller's agent, or any partner, member, director, officer, employee or agent of
Seller, Broker or any Seller's agent). If Purchaser fails to deliver such
termination notice to Seller on or prior to the Closing Date, then Purchaser
shall proceed to Closing in accordance with the terms hereof and Seller, after
the Closing, shall have no liability whatsoever to Purchaser with respect to any
such misrepresentation of which Purchaser has knowledge, or is deemed to have
knowledge, as of the Closing Date.
C. Purchaser hereby represents and warrants to Seller that:
(i) Purchaser is a limited liability company, duly organized and validly
existing under the laws of the State of Delaware and licensed to do business in
the State of Connecticut. Purchaser's tax identification number is
________________;
(ii) Purchaser has the power and authority to conduct its business and to
execute and deliver, and perform Purchaser's obligations under, this Agreement;
(iii) Purchaser's execution and delivery of this Agreement, and the
performance of Purchaser's obligations hereunder, have been authorized by all
necessary action on the part of Purchaser; (iv) all necessary consents for
Purchaser to enter into this Agreement and perform its obligations hereunder
have been obtained and there are no pending actions or investigations the
outcome of which could adversely affect Purchaser's ability to perform
Purchaser's obligations hereunder; and
(v) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by Purchaser does not
violate any provision of, or cause a default under, or result in the
acceleration of any obligation under, any agreement to which Purchaser is a
party or any law, statute, rule, ordinance, regulation or requirement by which
Purchaser or the properties, assets, business or operations of Purchaser may be
bound or affected; do not require the consent or approval of any court,
administrative or governmental authority; and do not result in the creation or
imposition of any lien or equity of any kind whatsoever upon, or give to any
other person any interest or right (including any right of termination or
cancellation) in or with respect to, any agreement to which Purchaser is a party
or the business or operations of Purchaser or any of its properties or assets.
12. No Implied Representations. Purchaser represents, warrants and agrees
(i) that Purchaser has examined and understands the operation and/or condition
of the Property, (ii) that Purchaser has made such examination of the operation,
income and expenses of the Property, as well as all other matters and documents
affecting or relating to this transaction, as Purchaser deemed necessary, and
(iii) that, except for the express representations and warranties of Seller set
forth in this Agreement, neither Seller nor its affiliates, or any employees,
agents, attorneys, partners, members, officers, directors, advisors or property
manager of Seller or its affiliates have made any verbal or written
representations, warranties or statements of any nature or kind whatsoever to
Purchaser, whether expressed or implied, and, in particular, that no
representations or warranties have been made with respect to (a) the physical
condition or operation of the Property (including, without limitation, (I) the
absence or presence of hazardous substances at, in or adjacent to the Property,
or (II) the compliance of the Property with applicable legal or insurance
requirements regarding hazardous substances), (b) the revenues and expenses of
the Property, (c) the zoning and other laws, regulations and rules applicable to
the Property or the compliance of the Property therewith, (d) the Space Leases,
the Security Deposits, the Third- Party Contracts, the Contract Rights, and any
rights or obligations of Seller thereunder, (e) the occupancy of the Real Estate
or any part thereof, (f) the quantity, quality or condition of the Fixtures, or
(g) any other matter or thing affecting or related to the Property or the
transactions contemplated hereby, except as and solely to the extent expressly
set forth in this Agreement. Purchaser agrees that Seller shall not be bound in
any manner whatsoever by any guarantees, promises, projections, or other
information pertaining to the Property made, furnished or claimed to have been
made or furnished by Seller or any affiliates, employees, agents, attorneys,
partners, members, officers, directors, advisors or property manager of Seller
or any broker, whether verbally or in writing, except as expressly set forth in
this Agreement. Purchaser acknowledges and agrees that, except as otherwise
expressly provided in this Agreement, Purchaser agrees to take the Property on
an "as is, where-is" basis, with all faults, in substantially its present
condition, subject to ordinary use, wear and tear and natural deterioration and
any Space Lease Action (hereinafter defined) between the date hereof and the
Closing and subject to casualty and condemnation to the extent provided in this
Agreement. Purchaser hereby waives, to the extent permitted by law, any and all
implied warranties.
13. Operation during the Contract Period.
A. Space Leases.
(i) Subject to this Section 13 and Section 14 hereof, between the date
hereof and the Closing (such period hereinafter referred to as the "Contract
Period"), Seller shall keep and maintain the Improvements and the Additional
Property in the manner presently maintained and operated by Seller (excepting
only ordinary wear and tear and natural deterioration and any maintenance which
is the obligation of the Tenants to provide). Seller shall not (i) enter into
any Space Leases, or (ii) terminate any Space Lease, or (iii) amend, modify,
renew, or extend any Space Lease, except in each case as provided for under such
Space Lease, other than, in each case, with the consent of Purchaser, not to be
unreasonably withheld; provided, however, that (a) if Purchaser fails to object
to any such action by Seller within five (5) days after Seller gives Purchaser
notice thereof, then Purchaser is deemed to have consented to such Space Lease
Action, and (b) upon notice to Purchaser, Seller may terminate any Space Lease
during the Contract Period by reason of the Tenant's default thereunder (beyond
the expiration of any applicable grace period) without Purchaser's prior
consent. Notwithstanding the foregoing, Seller makes no assurances that the
Space Leases will be in force and effect on the Closing Date. Any new Space
Lease, termination of a Space Lease, or amendment, modification, renewal,
expansion, extension or waiver of any right to terminate any Space Lease (or any
other action that results in liability for a brokerage commission) that in any
case becomes effective from and after the date hereof being referred to herein
as a "Space Lease Action". Seller shall promptly provide Purchaser with a copy
of any written notice of default under any Space Lease given or received between
the date hereof and the Closing Date.
(ii) Purchaser shall pay to Seller at the Closing, in addition to the
Purchase Price and the other amounts then due to Seller hereunder, an amount
equal to the costs incurred by Seller in connection with any Space Lease Actions
to which Purchaser consents or is deemed to have consented as contemplated by
this Section 13 (including, without limitation, brokerage commissions, legal
fees, takeover expenses, free rent, the costs of work performed by or on behalf
of Seller in the Improvements and the Additional Property and work allowances
incurred in connection with such Space Lease Actions). Purchaser, during the
Contract Period, shall not contact, speak to, or commence any negotiations or
discussions with any Tenant or prospective Tenant without the prior written
consent of Seller in each case. Nothing contained in this Section 13 abrogates
Purchaser's obligation to accept the Property in the condition described in
Section 12 hereof.
B. Third-Party Contracts. Seller or its agents, during the Contract Period,
may enter into contracts with third-parties relating to the Real Estate or the
Additional Property to the extent reasonably necessary for the operation of the
Property during the Contract Period, provided that each such third-party
contract is terminable by Seller (or its agent) without penalty or premium on
not more than thirty (30) days' prior notice to the counterparty thereunder (it
being understood, however, that Seller or its agents, during the Contract
Period, may enter into (x) third-party contracts that constitute brokerage
agreements in connection with Space Lease Actions to which Purchaser consents or
is deemed to have consented under Section 13A(i) hereof and (y) contracts for
the restoration of the Real Property and the Additional Property after a
casualty or a condemnation without such brokerage agreements or contracts being
terminable on thirty (30) days' prior notice).
C. Personal Property. Subject to Section 1D hereof and to this Section 13C,
Seller, during the Contract Period, shall not remove from the Property any item
of Personal Property included in the sale, unless such item, in each case, is
replaced with a similar item of comparable utility and value. Seller shall not
be deemed to be in default in respect of Seller's covenant under this Section
13C if Seller or a Tenant performs during the Contract Period alterations to the
Improvements in accordance with the terms of such Tenant's Space Lease or any
Space Lease Action.
D. Contract Rights. Seller, during the Contract Period, (i) shall exercise
all rights and comply with all obligations under the Contract Rights in
substantially the same manner as it generally did prior to the date hereof, and
(ii) shall not amend or modify any permits with respect to the Improvements and
the Additional Property, except to comply with any Space Lease, applicable law
or insurance requirements or as required in connection with any Space Lease
Action.
E. Insurance. During the Contract Period, Seller shall maintain
substantially the same insurance coverage with respect to the Property as it
maintains on the date hereof, to the extent that such insurance coverage remains
available at commercially reasonable rates.
14. Casualty and Condemnation. If, prior to the Closing Date, (i) any
portion of the Real Estate is damaged or destroyed by fire or other casualty and
the reasonable cost to repair same exceeds an amount equal to ten percent (10%)
of the Purchase Price, (ii) a portion of the Real Estate is taken by eminent
domain (or is the subject of a pending or contemplated taking which has not been
consummated) and the remaining portion of the Real Estate cannot be reasonably
expected to be operated in a manner that yields substantially the same economic
return on Purchaser's investment as the Real Estate immediately prior to such
taking, or (iii) at least ten percent (10%) of the gross area of the
Improvements is taken by eminent domain (or is the subject of a pending or
contemplated taking which has not been consummated), then Seller shall notify
Purchaser of such fact and Purchaser shall have the option to terminate this
Agreement upon notice to Seller given not later than ten (10) business days
after Seller gives such notice to Purchaser. If this Agreement is terminated
pursuant to this Section 14, then neither party shall thereafter have any rights
or obligations hereunder (other than any such rights or such obligations that
are expressly stated herein to survive the termination hereof), except that
Seller shall cause Escrow Agent to pay the Down payment (together with all
interest thereon, if any) to Purchaser. If Purchaser does not elect to terminate
this Agreement or has no right to terminate this Agreement pursuant to this
Section 14, then (x) Purchaser shall accept so much of the Real Estate as
remains after such casualty or taking in its "as-is" condition with no abatement
of the Purchase Price, (y) subject to the rights of the Tenants under the Space
Leases, at the Closing, Seller shall assign and turn over to Purchaser, and
Purchaser shall be entitled to receive and keep, all of Seller's interest in and
to (I) all insurance proceeds for such casualty, and (II) all awards for such
taking by eminent domain, less, in either case, costs incurred by Seller to
collect the same and the portion thereof that Seller uses to make temporary or
emergency repairs to the Real Estate or the Additional Property, and (z) at the
Closing, Seller shall assign to Purchaser all of Seller's rights under, and
Purchaser shall assume Seller's obligations thereafter arising under, the
contracts to which Seller is a party with respect to any such repair or
restoration of the Real Property or the Additional Property after any such
casualty or taking.
15. Escrow.
A. The Downpayment shall be held by Escrow Agent, counsel to Seller, upon
the following terms and conditions:
(i) Escrow Agent shall deposit the Down payment in a savings account
bearing interest with JPMorganChase Bank, or invest such proceeds in a
government insured deposit account, or after due regard for the Closing Date, in
short term government securities or certificates of deposit. At the time that
the Downpayment is delivered to a bank or other institution in accordance with
this clause (i), for tax purposes, Escrow Agent shall notify such bank or other
institution, as the case may be, of Seller's and Purchaser's respective tax
identification numbers, as set forth in this Agreement. At the time Escrow Agent
delivers the Downpayment together with the accrued interest thereon in
accordance with this Section 15, Escrow Agent shall direct each bank and other
institution which has held the Downpayment, as the case may be, to (a) credit
for tax purposes the interest accrued on the Downpayment to Seller or Purchaser
or both, as the case may be, in proportion to the amount of the interest each
receives in accordance with this Section 15 and (b) prepare and deliver any tax
forms prepared by such bank or other institution, as the case may be,
accordingly. In the event that the Downpayment has not been delivered by Escrow
Agent pursuant to this Agreement prior to the preparation of any such tax forms,
Escrow Agent shall direct each bank and other institution that has held the Down
payment, as the case may be, to credit for tax purposes the interest accrued on
the Downpayment to Seller and to prepare any tax forms accordingly; provided,
however, if after the Closing or earlier termination of this Agreement any such
tax forms prepared and delivered do not accurately reflect the distribution of
the Downpayment among Seller and Purchaser, Escrow Agent shall direct each bank
and other institution that has held the Down payment, as the case may be, to
amend, correct and reissue such tax forms to accurately reflect the distribution
of the Downpayment.
(ii) Escrow Agent shall deliver to Seller the Downpayment (together with
all interest thereon, if any) at and upon the Closing.
(iii) If this Agreement is terminated in accordance with the terms hereof,
or if the Closing does not take place under this Agreement by reason of the
failure of either party to comply with such party's obligations hereunder,
Escrow Agent shall pay the Downpayment (together with all interest thereon, if
any) to Seller or Purchaser, as the case may be, in accordance with the
provisions of this Agreement.
B. It is agreed that:
(i) the duties of Escrow Agent are only as specifically provided in this
Section 15, and, except for the provisions of subsection C of this Section 15,
are purely ministerial in nature, and Escrow Agent shall incur no liability
whatsoever except for willful misconduct or gross negligence, as long as Escrow
Agent has acted in good faith;
(ii) Escrow Agent shall not be liable or responsible for the collection of
the proceeds of any check for the Downpayment;
(iii) in the performance of Escrow Agent's duties under this Agreement,
Escrow Agent shall be entitled to rely upon any document, instrument or
signature believed by Escrow Agent to be genuine and signed by either of the
other parties or their successors;
(iv) Escrow Agent may assume that any person purporting to give any notice
of instructions in accordance with the provisions of this Agreement has been
duly authorized to do so, provided (a) such instructions come from Seller or
Purchaser or their respective attorneys, and (b) unless such instructions are
joint instructions, Escrow Agent gives at least ten (10) business days' prior
notice to the party who did not execute such notice of instructions of its
intention to act on such instructions prior to doing so (and Escrow Agent shall
not release the Downpayment pursuant to any such instructions if such party who
did not execute such notice of instructions, within said ten (10) business days,
gives Escrow Agent instructions not to release the Downpayment);
(v) Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Agreement unless in writing and signed by Escrow Agent,
Seller and Purchaser;
(vi) except as provided in subsection C of this Section 15, Seller and
Purchaser shall jointly and severally reimburse and indemnify Escrow Agent for,
and hold Escrow Agent harmless against, any and all loss, liability, costs or
expenses in connection herewith, including, without limitation, reasonable
attorneys' fees and disbursements, incurred without willful misconduct or gross
negligence on the part of Escrow Agent arising out of or in connection with
Escrow Agent's acceptance of, or the performance of Escrow Agent's duties and
obligations under, this Agreement, as well as the reasonable costs and expenses
of defending against any claim or liability arising out of or relating to this
Agreement; and
(vii) Seller and Purchaser each hereby release Escrow Agent from any act
done or omitted to be done by Escrow Agent in good faith in the performance of
Escrow Agent's duties under this Agreement.
C. Subject to the terms hereof, Escrow Agent is acting as a stakeholder
only with respect to the Downpayment (and the interest earned thereon), as the
case may be. If there is any dispute as to whether Escrow Agent is obligated to
deliver all or any portion of the Down payment (and the interest earned
thereon), or as to whom the Downpayment (and the interest earned thereon) is to
be delivered, then Escrow Agent shall not be required to make any delivery, but
in such event Escrow Agent shall hold the same until receipt by Escrow Agent of
an authorization in writing, signed by all of the parties having any interest in
such dispute, directing the disposition of the Downpayment (and the interest
earned thereon), as the case may be, or in the absence of such authorization
Escrow Agent shall hold the Downpayment (and the interest earned thereon), as
the case may be, until the final determination of the rights of the parties in
an appropriate proceeding. If such written authorization is not given, or
proceedings for such determination are not begun within thirty (30) days after
the date Escrow Agent shall have received written notice of such dispute, and
thereafter diligently continued, Escrow Agent may, but is not required to, bring
an appropriate action or proceeding for leave to deposit the Downpayment (and
the interest earned thereon), as the case may be, in court pending such
determination. Escrow Agent shall be reimbursed for all costs and expenses of
the aforesaid action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements, by the party determined not to be entitled to
the Downpayment (and the interest earned thereon), as the case may be, or if
the proceeds of the Downpayment (and the interest earned thereon), as the case
may be, is split between the parties hereto, such costs of Escrow Agent shall be
split, pro rata, between Seller and Purchaser, based upon the amount of the
proceeds of the Downpayment (and the interest earned thereon), as the case may
be, received by each. Upon making delivery of the proceeds of the Downpayment
(and the interest earned thereon), as the case may be, in the manner provided in
this Agreement, Escrow Agent shall have no further liability hereunder.
D. Escrow Agent has executed this Agreement solely to confirm that Escrow
Agent has received the Down payment and shall hold the Down payment (and the
interest earned thereon) pursuant to the provisions of this Agreement.
E. Escrow Agent shall have the right to represent Seller in any dispute
between Seller and Purchaser with respect to the Downpayment (and the interest
earned thereon) or otherwise.
16. Limitation on Seller's Personal Liability. Purchaser agrees that it
shall look solely to the Property, and not to (x) any other assets of Seller or
(y) Seller's directors, officers, employees, shareholders, members, partners,
affiliates or agents, to enforce Purchaser's rights hereunder, and that none of
the directors, officers, employees, shareholders, members, partners, affiliates
or agents of Seller shall have any personal obligation or liability hereunder,
and that Purchaser shall not seek to assert any claim or enforce any of
Purchaser's rights hereunder against any directors, officers, employees,
shareholders, members, partners, affiliates or agents of Seller or against any
other person, partnership, limited liability company, corporation or trust, as
principal of Seller, whether disclosed or undisclosed. The provisions of this
Section 16 shall survive the Closing.
17. Seller's Default. If Seller defaults in the performance of Seller's
material obligations hereunder (of which default Purchaser shall notify Seller
and give Seller a reasonable period of time to cure, not to exceed thirty (30)
days), then Purchaser, as Purchaser's sole remedy, may either (i) terminate this
Agreement by giving notice thereof to Seller and upon the giving of such notice
this Agreement shall terminate and thereafter neither party shall have any
further rights or obligations hereunder at law or in equity, for damages or
otherwise (other than any such rights or such obligations that are expressly
stated herein to survive the termination hereof), except that, subject to the
terms of Section 15 hereof, Escrow Agent shall deliver the Down payment
(together with all interest thereon, if any) to Purchaser, or (ii) bring an
action against Seller to seek specific performance of Seller's material
obligations hereunder. The terms of this Section 17 shall survive the
termination of this Agreement.
18. Purchaser's Default. If Purchaser defaults hereunder or fails or
refuses to perform Purchaser's obligations in accordance with this Agreement,
then Seller's sole remedy shall be to terminate this Agreement by giving notice
thereof to Purchaser, and, upon the giving of such notice, this Agreement shall
terminate and neither party shall thereafter have any rights or obligations
hereunder (other than any such rights or such obligations that are expressly
stated in this Agreement to survive the termination thereof), except that,
subject to the terms of Section 15 hereof, Escrow Agent shall deliver the Down
payment (together with all interest thereon, if any) to Seller, as liquidated
damages and as Seller's sole and absolute remedy, it being agreed that Seller's
actual damages would be difficult or impossible to ascertain. The terms of this
Section 18 shall survive the termination of this Agreement.
19. Conditions Precedent.
A. Subject to the terms of this Agreement, Purchaser shall have no
obligation to consummate the transaction contemplated hereby at the Closing
unless (I) all of Seller's representations as set forth in Section 11A hereof,
as the same may be updated by Seller's Update Certificate, are true and correct
in all material respects on the Closing Date, (II) the Seller's Update
Certificate indicates that Seller's representations as set forth in clauses (i),
(ii), (iii), (iv), (v), (vii) and (xiii) (other than condemnation or eminent
domain proceedings) of Section 11A hereof are true and correct in all material
respects on and as of the Closing Date without being modified as of the Closing
Date to reflect changed facts or circumstances, (III) Seller has performed in
all material respects the material obligations on Seller's part to be performed
hereunder on or prior to the Closing Date, and (IV) any other conditions
precedent set forth herein to Purchaser's obligation to consummate the
transaction contemplated hereby have been satisfied in all material respects (it
being understood that Purchaser shall have the right to waive any such
conditions precedent to Purchaser's obligation to consummate the transaction
contemplated hereby). If Purchaser elects to proceed to the Closing with actual
knowledge of (i) a default in any of the covenants, agreements or obligations to
be performed by Seller under this Agreement, and/or (ii) an inaccuracy in or
untruthfulness of any representation or warranty of Seller made in this
Agreement, then, upon the consummation of the Closing, Purchaser shall be deemed
to have waived any such default and/or inaccuracy and shall have no claim
against Seller on account thereof.
B. Subject to the terms of this Agreement, Seller shall have no obligation
to consummate the transaction contemplated hereby at the Closing unless (i) all
of Purchaser's representations as set forth herein are true and correct in all
material respects when made, (ii) Purchaser has performed all of the obligations
on Purchaser's part to be performed on or prior to the Closing Date, (iii) the
Purchaser's Update Certificate indicates that Purchaser's representations as set
forth in Section 11C hereof are true and correct as of the Closing Date without
being modified as of the Closing Date to reflect changed facts or circumstances,
and (iv) any other conditions precedent set forth herein to Seller's obligation
to consummate the transaction contemplated hereby have been satisfied (it being
understood that Seller shall have the right to waive any such conditions
precedent to Seller's obligation to consummate the transaction contemplated
hereby). If Seller elects to proceed to the Closing with actual knowledge of (i)
a default in any of the covenants, agreements or obligations to be performed by
Purchaser under this Agreement, and/or (ii) an inaccuracy in or untruthfulness
of any representation or warranty of Purchaser made in this Agreement, then,
upon the consummation of the Closing, Seller shall be deemed to have waived any
such default and/or inaccuracy and shall have no claim against Purchaser on
account thereof.
20. Notices. All notices, demands or requests made pursuant to, under or by
virtue this Agreement (in each case, a "Notice") must be in writing and sent to
the party to which the Notice is being made by certified or registered mail,
return receipt requested, commercial overnight delivery service, or delivered by
hand with receipt acknowledged in writing as follows:
To Seller:
Maiden Lane Associates, Ltd.
c/c Ambase Corporation
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx and Xxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx III, Esq.
To Purchaser:
c/c Ceruzzi Holdings LLC
0000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Xx.
with a copy to:
Ceruzzi Holdings LLC
0000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
All Notices (i) shall be deemed given upon (x) the date which is three (3)
business days after the date the same is deposited with the United States Postal
Service, in the case of Notices delivered by registered or certified mail, or
(y) the date of delivery of such Notice or refusal to accept delivery of such
Notice, in the case of notices given by commercial overnight delivery service or
hand delivery, and (ii) may be given either by a party hereto or by such party's
attorney set forth above.
21. Assignment of Agreement. Purchaser shall not assign its rights under
this Agreement or delegate Purchaser's duties hereunder, without the prior
written consent of Seller, which consent may be withheld, delayed and
conditioned by Seller in its sole discretion.
22. Broker.
A. Purchaser represents and warrants to Seller that Purchaser dealt with no
broker, finder or salesperson in connection with this Agreement other than CB
Xxxxxxx Xxxxx, Inc. ("Broker"). Purchaser shall indemnify Seller, and hold
Seller harmless, from and against, any and all losses, damages, liabilities,
costs and expenses (including without limitation, reasonable attorneys' fees and
disbursements) incurred by Seller to the extent arising out of a claim for
commission or other compensation made by a broker, finder or other person (other
than Broker) with whom Purchaser dealt in connection herewith.
B. Seller represents and warrants to Purchaser that Seller dealt with no
broker, finder or salesperson in connection with this Agreement other than
Broker. Seller shall pay any commission payable to Broker in connection with
this transaction pursuant to a separate agreement between Seller and Broker.
Seller shall indemnify Purchaser, and hold Purchaser harmless, from and against,
any and all losses, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) incurred by Purchaser
to the extent arising out of a claim for commission or other compensation made
by a broker, finder or other person (including, without limitation, Broker) with
whom Seller dealt in connection herewith.
C. The provisions of this Section 22 shall survive the Closing.
23. Like-Kind Exchange.
A. Purchaser, at the request of Seller, agrees to cooperate with Seller so
that Seller may dispose of the Real Estate in a transaction intended to qualify
in whole or in part as a tax-deferred exchange pursuant to Section 1031 of the
Tax Code. In order to implement such exchange, Seller, upon written notice to
Purchaser, may assign its rights, but not its obligations, under this Agreement
to a third party designated by Seller to act as a qualified intermediary (as
such phrase is defined in applicable Internal Revenue Service regulations), and
Purchaser agrees to make all payments due hereunder to or as may be directed by
such intermediary and to execute such instruments as Seller may reasonably
request in connection therewith; provided, however, that Purchaser shall not be
required to incur any additional expense (unless reimbursed by Seller) or
liability (other than to a de minimis extent) as a result of such cooperation,
exchange or assignment; and Seller agrees that Seller shall save, defend,
indemnify and hold Purchaser harmless from and against any and all liability
incurred by Purchaser as a result of any such cooperation, exchange or
assignment.
B. The provisions of this Section 23 shall survive the Closing.
24. Entire Agreement. This Agreement contains all of the terms agreed upon
between the parties with respect to the subject matter hereof, and all
agreements heretofore had or made between the parties hereto are merged in this
Agreement which alone fully and completely expresses the agreement of said
parties.
25. Amendments. This Agreement may not be changed, modified or terminated,
except by an instrument executed by all of the parties hereto.
26. No Waiver. No waiver by either party of any failure or refusal to
comply with its obligations under this Agreement shall be deemed a waiver of any
other or subsequent failure or refusal to so comply.
27. Successors and Assigns. The stipulations aforesaid shall inure to the
benefit of, and shall bind, the heirs, executors, administrators, successors and
permitted assigns of the respective parties.
28. Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
29. Section Headings. The headings of the various Sections of this
Agreement have been inserted only for the purposes of convenience, and are not
part of this Agreement and shall not be deemed in any manner to modify, explain
or restrict any of the provisions of this Agreement.
30. Governing Law. This Agreement shall be governed by, interpreted under
and construed and enforced in accordance with, the laws of the State of
Connecticut.
31. Confidentiality. Except as may be required by law or in connection with
any court or administrative proceeding or by any applicable regulation,
including, without limitation, state or federal securities laws or requirements
if the New York Stock Exchange, the Securities and Exchange Commission, rating
agencies or similar agencies or bodies, neither Seller, Purchaser nor their
respective designees shall issue or cause the publication of any press release
or other public announcement, or cause, permit or suffer any other disclosure
which sets forth the terms of the transactions contemplated hereby to any party
other than Seller's or Purchaser's partners, prospective partners, members,
prospective members, directors, officers, employees, counsel, advisors,
accountants, lenders or prospective lenders, investors or prospective investors,
without first obtaining the written consent of the other party.
32. No Recording or Notice of Pendency. The parties hereto agree that
neither this Agreement nor any memorandum of notice hereof shall be recorded,
and Purchaser agrees not to file any notice of pendency or other instrument
against the Property.
33. Counterparts. This Agreement may be executed in counterparts, it being
understood that all such counterparts, taken together, shall constitute one and
the same agreement. The exchange of counterparts of this Agreement between the
parties by means of facsimile transmissions which shall contain accurate
reproductions of the signatures hereto shall constitute a valid exchange of this
Agreement and it shall be binding upon the parties hereto.
34. Due Diligence Period. Purchaser shall have the right to conduct a due
diligence review (the "Due Diligence Review") of the Property which due
diligence period shall expire at 3:00 P.M. (New York time) on June 10, 2005 (the
"Due Diligence Period"). On or before the expiration of the Due Diligence
Period, Purchaser shall deliver written notice (the "Diligence Notice") to
Seller stating either:
34.1. that Purchaser elects to terminate this Agreement, in which event
Escrow Agent shall deliver the Downpayment (together with all interest thereon,
if any) to Purchaser and this Agreement shall terminate and thereafter neither
party shall have any further rights or obligations hereunder at law or in
equity, for damages or otherwise (other than any such rights or such obligations
that are expressly stated herein to survive the termination hereof); or
34.2. that Purchaser elects not to terminate this Agreement, in which event
Purchaser shall thereupon be deemed to have waived any right to terminate this
Agreement pursuant to the provisions of this Section 34, this Agreement shall
continue in full force and effect in accordance with its terms, and the
Downpayment shall thereupon become nonrefundable.
The failure of Purchaser to deliver any Diligence Notice to Seller during
the Due Diligence Period as provided in the immediately preceding sentence shall
be deemed to be the delivery of a Diligence Notice by Purchaser at 3:00 p.m.
(New York time) on the last day of the Due Diligence Period under Section 34.1
above. Time shall be of the essence with respect to Purchaser's right and
obligation to deliver the Diligence Notice.
[END OF TEXT]
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
MAIDEN LANE ASSOCIATES, LTD., Seller
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXXXX HOLDINGS LLC, Purchaser
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: President
The undersigned has executed this Agreement solely to confirm the
undersigned's acceptance of the duties of Escrow Agent as set forth in Section
15 hereof.
XXXXXX AND XXXX LLP
By: /s/ Xxxx Xxxxxx, III
----------------------