Exhibit 10.20
AGREEMENT OF SALE
AGREEMENT OF SALE made as of this 22nd day of June, 2004 (the
"Agreement Date"), by and between Xx. Xxxx Xxxxx, with a mailing address of c/x
Xxxxxx, 00 Xxxxxx Xx, Xxxxxxxx, Xxxxxxxxxxx (herein the "Seller") and, Xxxxx X.
Xxxxxxxxxx, Trustee, or his nominee having a mailing address of Xxx Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxx (collectively, herein the "Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of that certain piece or parcel of land situated,
lying and being in Clinton, Connecticut, together with the buildings and the
other improvements erected thereon (the `Improvements"), known as and by the
street address as follows: 00-00 Xxxx Xxxx Xxxxxx (Xxxxx 0), Xxxxxxx,
Xxxxxxxxxxx (the "Property"). The Property is more particularly described in
Exhibit "A" attached hereto. The Property together with the Improvements
constructed thereon is collectively referred to herein as the "Premises";
WHEREAS, Seller desires to sell the Premises and Buyer desires to purchase the
Premises, in accordance with, and subject to, the terms and conditions of this
Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound hereby, the
parties agree as follows:
1 SALE/PURCHASE.
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(a) Sale.
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Seller agrees to sell and convey to Buyer and Buyer agrees to
purchase from Seller, upon the terms and conditions herein
contained, the Premises.
(b) Premises.
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The Premises shall be conveyed, together with the
following appurtenances (collectively, the "Appurtenances")
including (i) all right, title and interest, if any, of Seller
in and to any land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining the
Premises, to the center line thereof, and all tight, title and
interest of Seller, if any, in and to any award made for
damage to the Premises by reason of change of grade of any
street, (ii) all easements, rights of way or use, privileges,
licenses, appurtenances and tights to the same thereunto
belonging to or inuring to the benefit of Seller and
pertaining to the Premises, (iii) all right, title and
interest of Seller in any strips or gores
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adjacent to or abutting the Premises or any portion thereof,
(iv) all sewage treatment capacity, water capacity and other
utility capacity allocated by any public or private utility to
serve the Premises (v) any reversionary tights attributable to
Seller with respect to the Premises (vi) any approvals and
permits for the development of the Premises which have
previously been obtained by Seller (or Seller's predecessors
in interest, to the extent that such approvals and permits are
within Seller's possession and which are assignable) from any
public agencies (the "Approvals and Permits"), and (vii) all
surveys, reports, studies or analyses of the Premises in
Seller's possession to the extent they are assignable.
Hereinafter, the term Premises" shall be deemed to include all
of the Appurtenances pertaining thereto, all in "as-is"
condition and shall be deemed to be used interchangeably with
the word "Property".
2 TITLE.
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(a) Title Report.
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Buyer shall promptly cause a search of title to the Premises
to be made by any title insurance company selected by Buyer
which is reputable and is authorized to do business in the
State of Connecticut (the "Title Company"). Prior to the
expiration of the Due Diligence Period, Buyer shall furnish a
copy of the title commitment (the "Title Commitment") to
Seller, together with: (1) copies of any matters which are
listed as exceptions on the Title Report and (2) a statement
("Buyer's Notice") identifying any conditions, defects,
liens, encumbrances or other items appearing as exceptions in
the Title Report which are unsatisfactory to Buyer
(hereinafter referred to as "Title Objections") because they
are Title Objections which conflict with the list of Permitted
Exceptions (as hereinafter defined). Seller shall at Closing
cure and remove all monetary liens or encumbrances which are
recorded against the Premises which are readily reduced to a
fixed monetary sum, including, but not limited to, mortgages
or other liens securing financing, mechanics' liens, judgments
and liens for delinquent taxes, assessments and sewer and
water charges (herein sometimes referred to as "monetary
liens"). In addition to removing the foregoing monetary liens
and encumbrances, Seller shall within ten (10) days following
Seller's receipt of the Title Report and Buyer's Notice of
Title Objections, give written notice ("Seller's Notice") to
Buyer stating which Title Objections contained in Buyer's
Notice, if any, Seller shall correct at Seller's expense on
or before the Closing Date
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(hereinafter defined). Seller's correction of any Title
Objections shall be a condition precedent to Buyer's
obligation to complete the Closing under this Agreement.
(b) Status of Title.
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The Premises are to be conveyed free and clear of all liens,
encumbrances, easements, restrictions and agreements,
excepting only the Permitted Exceptions. With the exception of
the Permitted Exceptions, title to the Premises shall be good
and marketable and such as will be insured by the Title
Company at its regular rates for regular risks pursuant to the
standard stipulations of an ALTA policy of owner's title
insurance. Seller shall furnish such customary title
affidavits as the Title Company may require for the removal of
standard title objections. As used in this Agreement, the term
"Permitted Exceptions" shall mean all matters listed on
Exhibit B attached hereto, any restrictions, limitations.
Regulations, ordinances, rules and statutes of the Town of
Clinton with respect to the Premises (including, but not
limited to the wetlands, zoning and planning rules and
regulations of the Town of Clinton) and of such other
governmental authorities having jurisdiction over the
Premises, provided the same are not in violation as of the
date and continuing until the Closing Date; real estate taxes
of the Town of Clinton and sewer taxes of the Water Pollution
Control Authority (WPCA}, which taxes become due and payable
on or after the Closing Date, and municipal assessments of any
unpaid installments thereof, which become due and payable to
the Town of Clinton on or after the Closing Date and any
matters which an accurate survey of the Premises would show.
(c) Inability to Convey Title.
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If Seller is unable to convey title at Closing as agreed
pursuant to Section 2, Buyer shall have the option:
(i) of taking such title to the Premises as Seller is able to
convey, without credit or abatement of the Purchase Price, in
the event Seller is unable to convey such title as a result of
the existence of non-monetary liens, encumbrances or other
defects; or
(ii) of taking such title to the Premises as Seller is able to
convey, with abatement of the Purchase Price in the amount
(fixed or ascertainable) of any monetary liens or encumbrances
on the Premises, if the Seller is unable to convey such title
as a result of the existence of monetary liens or
encumbrances; or
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(iii) of terminating Buyer's obligations under this
Agreement, in which event Escrow Agent shall refund the
Deposit (as hereinafter defined), together with all interest
accrued thereon, and Seller shall pay to Buyer all fees and
costs expended by Buyer on account hereof, and this Agreement
shall be null and void and neither party shall have any
further obligations hereunder; or
(iv) Notwithstanding the foregoing, if Seller does not convey
good title to Buyer, the same shall constitute a breach by
Seller and Buyer shall be entitled to all remedies available
to Buyer by reason of such breach, including, without
limitation, specific performance.
3. DUE DILIGENCE.
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(a) Due Diligence Period.
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It is expressly understood and agreed that until the close of
sixty (60) business days after the Agreement Date (the "Due
Diligence Period"), the Buyer may make investigations
regarding the Premises and be entitled to examine all leases,
contracts, mechanical and structural reports, environmental
reports, financial information, income and expense reports and
any other documentation relating to the ownership, operation
and maintenance of the Premises. At all times within the Due
Diligence Period, Buyer shall be entitled to make tests and
inspections of the Premises at his sole cost and expense,
including, but not limited to, environmental investigations,
structural, mechanical, wood destroying insects, lead-based
paint, and any other tests and inspections Buyer deems
necessary or desirable, which reports shall be kept
confidential (to the extent such reports contain information
which is not available to the public) by Buyer except to the
extent that Buyer discloses same to its lenders, attorneys,
affiliates and agents in connection with Buyer's proposed
acquisition of the Premises. Buyer shall provide copies to
Seller of all such reports. Buyer, in Buyer's sole
discretion, and for any reason or for no reason at all, may
terminate this Agreement by written notice to Seller with a
copy to Escrow Agent, which written notice must be given to
and received by Seller on any business day up to and including
5:00 p.m. on the final date of the Due Diligence Period and in
which event the Deposit, together with accrued interest
thereon, shall be returned to Buyer and neither party shall
have any further liability hereunder, with the exception of
the confidentiality provisions set forth in the preceding
sentence. Upon execution of the Agreement of Sale, Seller
shall contemporaneously deliver to Buyer: a current rent roll
for the Premises. including up-to-date information on security
deposits, delinquencies, and
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pre-paid rents; any survey of the Premises in possession,
custody or control of Seller, copies of all leases pertaining
to the Premises; operating information pertaining to the
Premises for the past year; copies of all written contracts
pertaining to the Premises; all warranties or certifications
that pertain to the Premises and may be assigned by Seller to
Buyer; all environmental and/or engineering reports in
Seller's possession pertaining to the Premises and any
contracts pertaining to the Premises that may survive closing.
Entry onto the Premises shall be after reasonable notice to
Seller. The Buyer hereby agrees to indemnify Seller from any
liability and reasonable costs or expenses incurred by Seller
resulting from Buyer's or Buyers agents' entry on the
Premises prior to the Closing Date, excluding any such
liability costs, or expenses covered by insurance. The Seller
agrees to afford the Buyer the right to defend or settle any
claim or action pertaining to the foregoing and Seller agrees
not to settle any such claim or action without first obtaining
the Buyer's consent thereto in writing, which consent shall
not be unreasonably withheld or delayed.
(b) Governmental Approval.
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Buyer's intended use of the property requires approval from
varying state and local governmental authorities. Buyer shall
have up to one hundred eighty (180) days from the date of the
execution of this Agreement to obtain said approvals. Buyer
shall have the specific option, in its sole discretion, to
request up to an additional one hundred eighty (180) days to
obtain any said approvals not obtained within the original one
hundred eighty (180) day time period, provided, however, that
Buyer warrants and represents that Buyer will apply as soon as
practicable for all appropriate approvals required. If Buyer
is unable to obtain the approvals for any reason, in the
Buyer's sole discretion and gives timely notice to the
Seller herein, then the rights and obligations of the parties
under this Agreement shall terminate and Buyer shall be
entitled to the return of his deposit plus all accrued
interest and this Agreement shall be null and void and neither
party shall have any further obligations thereunder. Buyer
agrees that the approval process for its proposed use of the
property may take somewhat longer than anticipated and
therefore Buyer agrees to pay Seller directly for a portion of
the Seller's carrying costs based on the following schedule:
(i) 0-90 days from date of execution of this Agreement,
no payment whatsoever by Buyer to Seller; and
(ii) 91-270 days from date of execution of this Agreement,
Buyer shall pay Seller One Thousand Five Hundred
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and 00/100 Dollars ($1,500.00) per month to help
defray Seller's carrying costs; and
(iii) 271 days and thereafter from date of execution of
this Agreement, Buyer shall pay Seller Three Thousand
and 00/100 Dollars ($3,000.00) per month to help
defray Seller's closing costs.
4. PURCHASE PRICE.
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(a) The purchase price ("Purchase Price") for the Premises is Five
Hundred Thousand and 00/100 ($500,000.00) Dollars. The entire
Purchase Price shall be payable to Seller as follows:
(i) The sum of One Thousand and 00/100 ($1,000.00)
Dollars (the "Initial Deposit") receipt of which is
hereby acknowledged by Seller and Escrow Agent, which
Initial Deposit shall be placed in Escrow (as
hereafter defined).
(ii) The sum of Twenty Four Thousaand and 00/100
($24,000.00) Dollars (the Second Deposit") upon
execution and delivery of this Agreement by both
Buyer and Seller, which Second Deposit shall be
placed in Escrow (as hereinafter defined).
(iii) The sum of Twenty Five Thousand and 00/100
($25,000.00) Dollars (the "Third Deposit") upon
satisfaction of all pre-closing contingencies and
completion of all due diligence requirements by the
Buyer, which Third Deposit shall be placed in escrow
(as hereinafter defined).
(iv) The balance of the Purchase Price ($450,000.00) on
the Closing Date (as hereinafter defined) as follows:
(a) $450,000.00 by wire transfer, bank check or other
immediately available funds.
5. SELLER'S REPRESENTATIONS. WARRANTIES AND COVENANTS.
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To induce the Buyer to enter into this Agreement, the Seller
represents, warrants and covenants to the Buyer as of the date hereof
and as of the date of Closing as follows:
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(a) Title.
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Seller is the sole owner of fee simple title to the
Premises.
(b) Pending Litigation.
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There are no litigation actions or proceedings pending before
any court or other agency or agencies, nor, to the best of
Seller's knowledge, are the same threatened, which pertain
to or affect the Premises.
(c) Execution of Agreement.
----------------------
Neither the execution and delivery of this Agreement or any
other documents necessary to complete this transaction, nor
the consummation of the transactions contemplated hereby or
thereby in the manner herein or therein provided, nor the
fulfillment of or compliance with the terms and conditions
hereof shall: (1) violate, be in conflict with, constitute a
default under, cause the acceleration of any payments pursuant
to, or otherwise impair the good standing, validity, or
effectiveness of any agreement, contract, indenture, lease, or
mortgage, or subject any properties or assets of Seller to any
indenture, mortgage, contract, commitment, or agreement, to
which Seller is a party or by which Seller or the Premises is
bound or subject the Premises to any lien, claim, charge or
encumbrance; or (ii) to the best of Seller's knowledge,
violate any provision of law, rule, regulation, order, permit,
or license to which Seller or the Premises is subject or
pursuant to which Seller conducts its business.
(d) Condemnation: Pending Improvements.
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There is no pending, nor, to the best of Seller's knowledge,
information and belief, threatened condemnation or similar
proceeding affecting the Premises or any portion thereof~
there are no pending public improvements in, about, or outside
the Premises which shall in any manner affect access to the
Premises.
(e) Options to Purchase.
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Other than this Agreement, there are no options to purchase,
rights of first refusal to purchase, or conditional sales
agreements, whether oral or written, which affect any portion
of or all of the Premises.
(f) Assessments.
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Seller has received no written notices of any proposed or
pending assessments pertaining to the Premises; however, the
Town of Clinton is in the process of a revaluation of all
properties within its boundaries. Seller shall provide copies
of all notices regarding the existing or future assessment of
the Premises and shall provide Buyer with the opportunity to
timely contest any such assessment between the date hereof and
Closing.
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(g) Insurance.
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All of the Premises is, and between the date hereof and the
date of Closing shall be, insured against fire and casualty on
a replacement cost basis. Between the date hereof and the date
of Closing all insurance premiums pertaining to the Premises
shall be fully paid when the same are due and payable. Seller
shall promptly notify Buyer of any notices of cancellation
received by Seller in connection with any such policies.
(h) No Bankruptcy.
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There has not been filed by or against Seller a petition in
bankruptcy or insolvency proceedings or for reorganization or
for the appointment of a receiver or trustee, under the state
or federal law, nor has Seller made an assignment for the
benefit of creditors or filed a petition for an arrangement or
entered into an agreement with creditors which petition,
proceedings, assignment or arrangement was not dismissed by
final, unappealable order of the court or body having
jurisdiction over the matter; and Seller is not insolvent and
nor has Seller admitted in writing the inability to pay his
debts as they became due.
(i) No Insurance Notices.
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Seller has not received any notice of any unsatisfactory
condition of the Premises from any insurance company or Board
of Fire Underwriters or the authorities within the
jurisdiction in which the Premises is located.
(j) Taxes.
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Seller has not received any written notice that any tax
pertaining to the Premises is overdue or has not been paid.
Except for unpaid real estate taxes which will be paid at
Closing, subject to the proration provisions contained herein,
there are no unpaid real property taxes or governmental
assessments concerning any portion of the Premises and Seller
has no knowledge as of the Agreement Date of any taxes or
assessments threatened or pending. which could impose
transferee liability on the Buyer under the Internal Revenue
Code of 1986, as amended to date, or under any applicable
state or local law.
(k) Foreign Person.
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Seller is not a foreign person for purposes of the withholding
provisions of Section 1445 of the Internal Revenue Code of
1986. Seller shall execute and deliver a F1RPTA certificate to
Buyer at Closing.
(l) Environmental.
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Seller has received no written notice of any hazardous
materials, environmental violations, actions or conditions nor
of any environmental releases concerning the Premises and/or
Property.
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(m) No Notices of Violations;
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Use. Seller has received no notices of violations of any
federal, state or municipal or other health, building, zoning,
safety, environmental protection or other applicable code,
law, ordinance or regulation regarding and/or affecting the
Premises and/or Property.
(n) Seller represents and warrants, to the best of Seller's
knowledge, the following:
(i) There are no pending or threatened governmental or
private proceedings that would impair or result in
the termination of access from the Premises and/or
Property to abutting public highways, streets, and
roads.
(ii) There are no liens outstanding against the Premises
and/or Property other than as shown of record, the
lien for real estate taxes and inchoate liens for
water and sewer charges for the current year not yet
due and payable and no petition in bankruptcy
(voluntary or otherwise), assignment for the benefit
of creditors or petition seeking reorganization or
arrangement or other action under federal or state
bankruptcy laws is pending or threatened against, or
contemplated by Seller.
(iii) There is presently in existence or available water,
electrical, and gas utility service required for the
existing use of the Premises and/or Property.
(iv) Seller has delivered to Buyer contemporaneously with
the execution of this Agreement true and accurate
financial statements of the income and expenses of
the Premises and/or Property for the three (3) years
prior to closing, if available.
(v) There are no underground storage tanks located on the
Premises and/or Property.
(vi) At the closing of title, there will be no unpaid
bills or claims with respect to the Premises and/or
Property, including all liens which affect
marketability of title, as shown in Buyer's title
search.
(o) All of Seller's representations and warranties set forth
herein shall survive Closing.
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6. CLOSING.
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(a) Closing.
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If Buyer does not terminate this Agreement as provided herein,
the closing shall occur at the office of Buyer's counsel,
Kantrovitz & Xxxxxxxxxx, P.C., One Xxxxxxx Road, Woodbridge,
Connecticut on or before December 31, 2004, or within thirty
(30) days after satisfaction of all conditions precedent set
forth in paragraphs 3(a) and (b) of this Agreement (the
"Closing Date").
(b) Deliveries At Closing.
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Seller shall deliver, or cause to be delivered, to Buyer,
the following:
(i) A warranty deed in the usual Connecticut form (the
"Deed") executed by Seller conveying to Buyer good
and marketable title in fee simple to the Premises,
free of all liens and encumbrances other than the
Permitted Exceptions.
(ii) A FIIRPTA affidavit.
(iii) A Xxxx of Sale for all personalty related to and/or
appurtenant to the Premises and/or Property.
Any other documents expressly required by the terms of this
Agreement to effectuate closing hereunder, excluding the
filing of a Form 1099 with the Internal Revenue Service, which
shall be the responsibility of Buyer's counsel.
(c) Payment of Purchase Price.
--------------------------
At Closing, Buyer shall pay to Seller or as Seller otherwise
directs the sums due under this Agreement in the manner
described in Section 4 and shall deliver any other documents
required by the terms of this Agreement to effectuate closing
hereunder.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS.
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(a) Buyer's Conditions Precedent.
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The obligation of Buyer to purchase the Premises from Seller
in accordance with this Agreement is subject to satisfaction
of each of the following conditions (the "Conditions
Precedent"), any of which may be waived in whole or in part by
Buyer on or prior to the Closing Date:
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(i) Seller's Representations and Warranties.
---------------------------------------
Each of the representations and warranties of Seller
contained in this Agreement shall be true and correct
in all respects on the Closing Date to the best of
Seller's knowledge, as though made on such date.
(ii) Compliance with Seller's Covenants.
-----------------------------------
Seller shall have performed and complied with all of
the terms, conditions and covenants required by this
Agreement to be performed and complied with by Seller
prior to or on the Closing Date.
(iii) Title Policy.
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Title to the Premises shall meet the requirements of
Paragraph 2 hereof.
(iv) Condition of Premises.
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Subject to Section 15, the Premises shall be in the
same condition, as it was on the date of this
Agreement, reasonable wear and tear excepted.
(v) Tenants.
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All tenants shall have vacated the premises with no
right to reenter.
(vi) Zoning.
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The premises are zoned for office, retail and
commercial use under the Zoning Regulations of the
Town of Clinton so that the Buyer can operate a
branch office of a commercial bank at the premises
without formerly requesting a variance from the
requisite Town of Clinton governmental authorities.
(b) Buyer's Rights If Conditions Precedent Are Not Satisfied.
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If, on the Closing Date, all of the Conditions Precedent to
Buyer's obligation to consummate the purchase of the
Premises which are set forth in this Agreement have not been
satisfied, Buyer shall elect to either (1) waive each of those
conditions as are unsatisfied; (2) terminate this Agreement or
(3) bring an action for specific performance in accordance
with Paragraph 17 of this Agreement. If Buyer terminates this
Agreement because the Conditions Precedent set forth above
have not been satisfied, without fault of the Seller, the
Deposit and all accrued interest shall be paid to Buyer by
Seller, and thereafter the parties hereto shall be released
from all liabilities and obligations under this Agreement. In
the event the Conditions Precedent have not been satisfied due
to the fault of the Seller, Seller shall pay to Buyer an
amount equal to Five Thousand and 00/100 Dollars ($5,000.00)
to partially defray the Buyer's out of pocket expenses.
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8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
----------------------------------------------
Seller's Conditions Precedent.
-----------------------------
The obligation of Seller to sell the Premises to Buyer in accordance
with this. Agreement is subject to satisfaction of each of the
following conditions (the "Conditions Precedent")
(i) Compliance with Contract.
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Buyer shall have performed and complied with all of the
material terms, conditions and covenants required by this
Agreement to be performed and complied with by Buyer prior to
or on the Closing Date.
(ii) Purchase Price.
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At Closing, Buyer shall have delivered the balance of the
Purchase Price to Seller.
(iii) Documents.
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All items required to be delivered by Buyer pursuant to the
terms of this Agreement shall have been delivered to Seller at
or prior to Closing.
(iv) Buyer's Representations and Warranties.
-----------------------------------------
Each of the representations and warranties of Buyer contained
in this Agreement shall be true and correct in all material
respects on the Closing Date, as though made on such date.
9. APPORTIONMENTS.
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The following are to be adjusted and prorated between Seller and Buyer
as of 11:59 PM on the day of the Closing (the "Apportiomnent Date"),
and the net amount thereof shall be added to (if such net amount is in
Sellers" favor) or deducted from (if such net amount is in Buyer's
favor) the payment required pursuant to Paragraph 4 above:
(a) Real estate taxes (uniform fiscal year), water and sewer rents
and charges, and all other fees, taxes and charges relating to
or payable in connection with the use, occupancy, maintenance,
ownership and operation of the Property, shall be adjusted and
prorated on the basis of uniform fiscal year for which
assessed, or the fiscal period covered by the appropriate
invoice, xxxx or statement, or based on the most recently
available meter reading therefor; provided that no
apportionment shall be made with respect to any of the
foregoing that are payable directly by Tenants pursuant to
their Leases. Metered utility charges for the period from the
last reading date prior to the Closing through the day of the
Closing shall be apportioned on the basis of such last
reading, but shall be reapportioned according to actual
charges promptly after the first reading following the Closing
Date. Unmetered water charges shall be apportioned on the
basis of the charges
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therefor for the same period in the preceding calendar year,
but apply the current rate thereto. If the Closing shall occur
before the tax rate or assessed valuation is fixed, the
apportiomnent of real estate taxes shall be upon the basis of
the tax rate for the preceding year applied to the most
recently applicable assessed valuation of the Property,
subject to further and final adjustment when the tax rate
and/or assessed valuation is fixed for the year in which the
Closing takes place; and
(b) any other charges for which apportionment would be customary
or appropriate.
(c) Seller shall be responsible for the payment of any special
assessments (and all installments thereof, whether or not the
same are then payable) imposed with respect to the Property on
or prior to the Closing, and Seller shall be responsible for
the payment of any special assessments (and all installments
thereof, whether or not the same are then payable) imposed
with respect to the Property after the Closing.
(d) Any errors or omissions in computing the foregoing adjustments
shall be corrected within a reasonable time following the
Closing.
10. CLOSING COSTS.
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Seller shall be responsible for the payment of all state and local
conveyance taxes. Buyer shall pay the title insurance premiums required
for the issuance of any title insurance commitment, report and/or
policy required by Buyer, any legal fees payable to Buyer's counsel,
the recording of the Deed to the Premises and the survey costs (if
any). Seller shall pay any legal fees payable to Seller's counsel and
the recording of any mortgage satisfaction releases or other documents
required to convey title as required in this Agreement.
11. SELLER'S COVENANTS.
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(a) Seller hereby covenants that Seller shall:
(i) Maintenance of Premises.
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Prior to the Closing Date, Seller shall maintain the
Premises in the condition existing on the Agreement
Date, reasonable wear and tear and damage from fire
and other casualty excepted.
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(ii) Insurance.
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Maintain in effect until the Closing Date all
insurance policies now in effect (or policies
reasonably consistent therewith) with respect to the
Premises. Seller shall bear the risk of loss until
Closing.
(iii) Alterations to Premises.
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Prior to the Closing Date, not make or permit to be
made any material alteration, improvement, or
addition to the Premises without the prior written
consent of Buyer.
(iv) Satisfaction of Liens.
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Not permit any mortgage lien, easement, encumbrance
or other cloud on the title to the Premises to be
created after the date hereof, (hereinafter referred
to as a "Title Imperfection"). If Seller creates or
permits any Title Imperfection to be created in
violation hereof, Seller shall satisfy each such
Title Imperfection with the consent and approval of
the Title Company, by (A) if it is a monetary lien,
the payment of money, bonding or otherwise causing
such Title Imperfection to be removed of record or
(B) if it is a non-monetary Title Imperfection,
Seller shall cause such Title Imperfection to be
removed to the satisfaction of Buyer's Title
Company. A Title Imperfection, as defined herein,
shall not include any such lien, encumbrance or other
cloud on title created by Buyer, its agents,
contractors or employees.
(v) Leases and Contracts.
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Not enter into any lease, license or other occupancy
agreement or any supply, maintenance, service or
similar contract for the Premises or any part thereof
which is not terminable on or before the Closing
Date, without obtaining the prior written approval of
Buyer, which approval Buyer may withhold in its sole
and absolute discretion for any or no reason.
(vi) Seller shall give Buyer prompt notice (within two
business days after its receipt of notice of same) of
any fire or other casualty affecting the Premises or
of any actual or threatened taking or condemnation of
all or any portion of the Premises.
(b) At the Closing, Seller shall have the following obligations:
(i) Seller shall execute, acknowledge and deliver to
Buyer a warranty deed in sufficient and recordable
form to convey title to the Premises in accordance
with the terms of this Agreement.
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(ii) Seller shall execute, acknowledge and deliver to
Buyer affidavits of title and such other documents as
are reasonably required by Buyer's title insurer to
insure title to the Premises in accordance with the
terms of this Agreement
(iii) Seller shall deliver to Buyer the originals of any
use, occupancy, operating, road access, environmental
protection and other licenses, permits,
authorizations, or approvals which are included for
the Premises and instruments of assignments of all
right, title and interest therein.
(iv) Seller shall deliver to Buyer a copy of the xxxx for
current real estate taxes. Seller shall deliver to
Buyer a xxxx of sale in form reasonably acceptable to
Buyer and sufficient to convey all of Seller's
right, title and interest in the personal property
included within the Premises, free and clear of all
liens.
(v) Seller shall execute, acknowledge and deliver to
Buyer an affidavit for the purpose of complying with
the Foreign Investment in Real Property Tax Act.
(vi) Seller shall execute a closing statement reflecting
the payment and disbursement of the Purchase Price
for the Premises in accordance with this Agreement.
(vii) Seller shall deliver to Buyer duly executed and
acknowledged recordable discharges and releases for
all mortgages and liens against the Premises in a
form reasonably acceptable to Buyer's title
insurance company.
(viii) Seller shall deliver to Buyer all keys for the
Premises,
12. REPRESENTATIONS AND WARRANTIES
------------------------------
A. In order to induce Seller to enter into this Agreement, Buyer
hereby warrants and represents to Seller, as of the date
hereof and as of the Closing Date, that (i) Buyer has full
power and authority to enter into and fulfill its obligations
under this Agreement and to consummate the purchase of the
Premises, and the execution, delivery and performance of this
Agreement by the Buyer constitutes a valid and binding
obligation of Buyer in accordance with its terms; (ii) no
consent, waiver or approval by
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any other party is required in connection with the execution
and delivery by Buyer of this Agreement or the performance by
Buyer of the obligations to be performed by it under this
Agreement or any instrument contemplated hereby; (iii) neither
the entering into of this Agreement nor the consummation of
such purchase will constitute a violation or breach by Buyer
of any contract or other instrument to which Buyer is a party
or to which Buyer is subject or by which any of Buyer's
assets or properties may be affected, or of any judgment,
order, writ, injunction or decree issued against or imposed
upon Buyer, nor will the said purchase result in a violation
of any applicable law, order, rule, or regulation of any
governmental authority applicable to Buyer; (iv) there are no
litigation actions or proceedings pending before any court or
other agency or agencies, nor, to the best of Buyer's actual
knowledge, are the same threatened, which pertain to or affect
Buyer; and (v) except as specifically set forth in this
Agreement, neither Seller nor its agents have made any
representations regarding the condition of the Premises which
have been relied on by Buyer.
B. In order to induce Buyer to enter into this Agreement, Seller
hereby warrants and represents to Seller, as of the date
hereof and as of the Closing Date, that (i) Seller has full
power and authority to enter into and fulfill its obligations
under this Agreement and to consummate the purchase of the
Premises, and the execution, delivery and performance of this
Agreement by the Seller constitutes a valid and binding
obligation of Seller in accordance with its terms; (ii) no
consent, waiver or approval by any other party is required in
connection with the execution and delivery by Seller of this
Agreement or the performance by Seller of the obligations to
be performed by it under this Agreement or any instrument
contemplated hereby; (iii) neither the entering into of this
Agreement nor the consummation of such purchase will
constitute a violation or breach by Seller of any contract or
other instrument to which Seller is a party or to which Seller
is subject or by which any of Seller's assets or properties
may be affected, or of any judgment, order, writ, injunction
or decree issued against or imposed upon Seller, nor will the
said purchase result in a violation of any applicable law,
order, rule, or regulation of any governmental authority
applicable to Seller; (iv) there are no litigation actions or
proceedings pending before any court or other agency or
agencies, nor, to the best of Seller's actual knowledge, are
the same threatened, which pertain to or affect Seller.
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13. NOTICES.
-------
(a) Notices
-------
Any notice or advice to be given or otherwise made to any
party hereto shall be deemed given if in writing and delivered
in person with a receipt obtained, or sent via reputable
overnight courier, or via facsimile with proof of confirmation
of receipt and followed by another permitted means of notice
provided herein, or duly sent by certified mail, return
receipt requested, postage prepaid, addressed to the
respective recipient as follows:
(i) If to Seller, to him at the address set forth below:
Xx. Xxxx Xxxxx
c/o Xxxx Xxxxxx, Esq.
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(ii) If to Buyer, to it at the address set forth above,
with a copy to Attorney Xxxxx Xxxxxxxxxx, Xxx Xxxxxxx
Xxxx, Xxx Xxxxx, XX 00000.
(iii) If to Escrow Agent: Xxxxxxx Engingro, Coldwell
Banker, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
Any such address maybe changed, or additional addresses (not
to exceed 3) added by notice given in the manner provided
herein. Any notice given by mail shall be deemed given three
(3) days after mailing in the case of certified mail, upon
receipt in the case of hand delivery, facsimile (with proof of
confirmation and delivery in another acceptable means) or
overnight courier. Any notice or other communication may be
given by counsel for the party giving the same.
14. BROKERS.
--------
Buyer and Seller represent and warrant each to the other that they have
dealt with no broker or consultant other than Coldwell Banker which is
the sole broker entitled to a commission upon the sale of the property
referenced herein. Each of Buyer and Seller agree to defend, indemnify
and hold the other harmless from and against any and all loss,
liability and expense, including reasonable attorneys' fees, which the
indemnified party may incur arising by reason of the above
representation being false. The liability to pay the real estate
commission of
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4 1/2% shall be the sole responsibility of the Seller herein. The
provisions of this paragraph shall survive the Closing.
15. CONDEMNATION OR DESTRUCTION
---------------------------
(a) Eminent Domain.
---------------
If prior to Closing there shall occur any taking of the
Premises (or any material part thereof) by eminent domain,
Buyer shall have the right to terminate this Agreement, within
fifteen (15) days after receipt of a written notice produced
by Seller documenting the taking (which documentation shall
provide a description in reasonable detail of the parcel being
taken and if the condemning authority shall have made an offer
of compensation, the amount of that offer). If Buyer does not
terminate this Agreement, then this Agreement shall remain in
force, the Purchase Price for the Premises shall not be abated
and Seller shall assign all right, title, interest in and to
the condemnation award (and deliver any portion of that award
received by Seller prior to Closing) to Buyer at Closing.
(b) Casualty.
---------
If, prior to Closing, there shall occur any damage or
destruction to the Premises by fire or other casualty, and the
Premises shall not as of the Closing Date have been restored
to the condition prior to the said damage, then Buyer shall
have the right to terminate this Agreement within 15 days
after receipt by the Buyer of the determination of the cost to
restore (as provided in Paragraph 15 (d) below). If Buyer
shall elect to terminate this Agreement, then this Agreement
shall terminate as of the date of Buyer's election, and the
Deposit, and all interest thereon, shall be returned to Buyer,
and neither party shall have any obligations hereunder other
than the obligations of either party that, by the terms of
this Agreement, survive such termination. If Buyer shall not
terminate this Agreement then the Agreement shall remain in
force and the parties shall proceed as provided in subsection
(c) below.
(c) Casualty Where Agreement is not Terminated.
------------------------------------------
If, prior to Closing, there shall occur any damage or
destruction to the Premises by fire or other casualty and the
Premises shall be restored prior to the Closing Date and Buyer
shall not have terminated this Agreement under subsection (b)
above, then this Agreement shall remain in force, and the
Purchase Price shall not be abated by the cost to restore (as
determined pursuant to subsection (d) below). If prior to the
Closing there shall occur any damage or destruction to the
Premises by fire or other casualty, and the Premises shall not
be restored prior to the Closing Date and Buyer shall not have
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terminated this Agreement under Subsection (b) above, then
this Agreement shall remain in force and Buyer shall be
entitled to all of the insurance proceeds arising from that
casualty (to the extent not applied to restoration of the
Premises) and shall receive a credit against the Purchase
Price in the amount of the applicable deductible from
Seller's insurance policy.
(d) Cost to Restore.
---------------
The cost to restore the Premises at the time of the casualty
shall be determined by Seller and Buyer jointly obtaining a
fixed price bid for that work by a contractor having at least
five years experience in the construction of similar
buildings, such contractor to be selected by Seller and
reasonably approved by Buyer. If Seller and Buyer cannot agree
on the identity of contractor within ten (10) days from the
date of the hazard, this Agreement shall automatically
terminate, thereafter neither party shall have any obligations
hereunder other than the obligations of either party that, by
the terms of this Agreement, survive such termination, and the
Deposit and all interest thereon shall be returned to Buyer.
(e) Extension of Closing.
---------------------
The Closing shall be adjourned for such time as may be
required to obtain the information and make the decisions
described above and shall occur on the later of the Closing
Date or 10 days after Buyer's decision under subsection (a)
or (b) above or if subsection (d) is applicable, the receipt
of the contractor's bid. Notwithstanding anything to the
contrary herein, any extension shall be subject to Buyer's
right to terminate this Agreement, if said extension shall
cause a loss or change in the terms of Buyer's financing for
the transaction contemplated herein.
16. ASSIGNMENT OF AGREEMENT OF SALE.
-------------------------------
Buyer may assign its interest hereunder to its nominee or assignee,
provided such nominee or assignee is one in which Buyer has an
interest, provided that such assignee assumes all obligations of Buyer
hereunder.
17. DEFAULT.
--------
(a) By Buyer.
---------
Buyer shall be in default under this Agreement if(1) Buyer
shall fail to tender to Seller either the Deposit or the
remainder of the Purchase Price as and when due under the
terms of this Agreement (time not being of the essence), or
(ii) if Buyer fails to perform its covenants and obligations
hereunder. If Buyer so defaults hereunder, Seller shall give
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Buyer written notice thereof and Buyer shall be permitted
thirty (30) days following receipt of such notice (the "Cure
Period") within which to cure such default. If Buyer does not
cure its default, then as Seller's sole and exclusive
remedy, Escrow Agent shall pay the Deposit and all interest
accrued thereon to Seller as liquidated damages and not a
penalty, such being agreed between Buyer and Seller to be a
necessary condition to this Agreement to compensate Seller for
expenses and expenditures incurred and made in connection
therewith, the damages sustained as a result of withdrawing
the Premises from the market, and otherwise for Buyer's
non-compliance with this Agreement. Thereupon, this Agreement
shall become null and void and of no further force and both
parties shall be released of further liability and obligations
hereunder except those specifically provided herein which are
to survive the termination of this Agreement, and Seller shall
have no further remedy, either at law or in equity.
(b) By Seller.
---------
Seller shall be in default under this Agreement if Buyer is
ready, willing and able to proceed to Closing hereunder but
(i) Seller shall fail at Closing to tender its required
deliveries pursuant to Section 6 hereof or (ii) Seller fails
to comply with its covenants and obligations hereunder,
including the failure to provide title to the Premises in
accordance with the terms of this Agreement. If Seller so
defaults hereunder, Buyer shall give Seller written notice
thereof and Seller shall be permitted thirty (30) days
following receipt of such notice (the "Cure Period") within
which to cure such default. In such event, if the Cure Period
extends beyond the then scheduled Closing Date, the day for
Closing shall be extended one (1) time until the first
business day following the Cure Period, to allow Seller
sufficient time within which to effect such cure. If Seller
does not cure its default within the Cure Period, then Buyer
shall be entitled to pursue all of its rights at law or in
equity, including, without limitation, the remedy of specific
performance.
18. ESCROW AGREEMENT
----------------
The Deposit shall be held in escrow by Escrow Agent until the Closing
or earlier termination of this Agreement in accordance with all
applicable laws and regulations and subject to the following
provisions:
(a) Escrow Account.
---------------
The duties of Escrow Agent shall be determined solely by the
express provisions of this Agreement and as required by
applicable laws and regulations. Escrow Agent shall not pay
the Deposit or any
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interest to either party (other than payment or delivery in
accordance with the Closing) until the following has occurred:
(i) the party claiming to be entitled thereto shall have given
notice of such entitlement to Escrow Agent, (ii) Escrow Agent
shall have sent a copy of such notice to the other party, and
(iii) the other party shall not have given, within 10 days of
receipt of such notice, notice to Escrow Agent that the claim
of the first party is disputed. If Escrow Agent receives
notice within such 10-day period that the claim of entitlement
is disputed, Escrow Agent shall not pay such amounts to either
party until such dispute is finally resolved by written
agreement signed by both parties or by final unappealable
judgment of a court of law, and when such dispute is resolved.
Escrow Agent shall pay such funds including the interest to
the party or parties entitled thereto pursuant to such final
resolution. The parties authorize Escrow Agent, without
creating any obligation on Escrow Agents part, in the event
this Agreement or the Deposit becomes involved in litigation,
to deposit the Deposit and all accrued interest with the clerk
of the court in which the litigation is pending and thereupon
Escrow Agent shall be fully relieved and discharged of any
further responsibility under this Agreement The parties also
authorize Escrow Agent, if it is threatened with litigation,
to interplead all interested pasties in any court of competent
jurisdiction and to deposit the Deposit and all accrued
interest with the clerk of that court and thereupon Escrow
Agent shall be fully relieved and discharged of any further
responsibility hereunder.
(b) Liability of Escrow Agent.
-------------------------
Escrow Agent shall not be liable for my mistake of fact or
error of judgment or any acts or omissions of any kind unless
caused by its willful misconduct or gross negligence. Escrow
Agent shall be entitled to rely on any instrument or signature
believed by it to be genuine and may assume that any person
purporting to give any writing, notice or instruction in
connection with this Agreement is duly authorized to do so by
the party on whose behalf such writing, notice or instruction
is given.
(c) Indemnity of Escrow Agent.
--------------------------
The parties will jointly indemnify Escrow Agent for and hold
it harmless again any loss, liability or expense incurred
without negligence or bad faith on Escrow Agent's part
arising out of or in connection with the acceptance of, or the
performance of its duties under this Agreement, as well as the
costs and expenses of defending against any claim or liability
arising under this Agreement.
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(d) Taxpayer Identification Numbers.
--------------------------------
Seller and Buyer agree to promptly furnish Escrow Agent with
their respective federal taxpayer Identification numbers upon
demand therefor.
(e) Interest on Escrow Amounts.
---------------------------
Interest on all money held by Escrow Agent in escrow shall be
for the sole benefit of the Buyer herein and shall be payable
to Buyer by the Escrow Agent at closing or upon the
termination of this Agreement pursuant to its terms.
19. MISCELLANEOUS.
--------------
(a) Modifications.
--------------
This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular
unless the same shall be in writing signed by or on behalf of
the party to be charged therewith
(b) Binding Nature.
--------------
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and to their respective heirs,
executors, representatives, administrators, successors and
permitted assigns.
(c) Waiver.
------
No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or
succeeding breach thereof or of any other agreement or
provision herein contained. No extension of time for
performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations
or acts.
(d) Counterparts.
------------
This Agreement may be executed in one or more counterparts,
each of which when so executed and delivered shall be deemed
an original.
(e) Construction.
------------
Any singular word or term herein shall also be read as in the
plural whenever the sense of this Agreement may require it.
All pronouns and nouns and any variations thereof shall be
deemed to refer to masculine, feminine or neuter, singular or
plural, as the identity of the parties may require.
(f) Conflict Between Provisions: Governing Law.
-------------------------------------------
If any term or provision of this Agreement or
the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of
this Agreement or the application of such term or provision to
person or
-22-
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 greatest extent permitted by law. This Agreement shall
be governed and construed in accordance with the laws of the
State of Connecticut.
(g) Notice of Claims.
----------------
Whenever any party shall learn through the filing of a claim
or the commencement of a proceeding or otherwise of the
existence of any liability for which another party is or may
be responsible under this Agreement, such party shall notify
the other party promptly and finish such copies of documents
(and make originals thereof available) and furnish such other
information as such party may have which may be used or useful
in the defense of such claim and shall afford said other party
full opportunity to defend the same in the name of any party
and shall generally cooperate with the other party in the
defense of any such claim.
20. CONFIDENTIAL.
------------
The parties hereto agree that the terms of this Agreement shall be held
strictly confidential and neither party shall disclose the terms hereof
to any third party, except for the parties' respective, tax, legal and
other advisers, without the prior written consent of the other.
21. NON-BINDING UNTIL EXECUTION.
---------------------------
The submission of this Agreement shall in no manner bind Seller or
Buyer until both Seller and Buyer have duly executed this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as of the date first above written.
WITNESS: SELLER:
/S/ Xxxx X. Xxxxxx /S/ Xxxx X. Xxxxx
-------------------- -----------------
Xxxx X. Xxxxxx Xx. Xxxx Xxxxx
/S/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
BUYER:
/S/ Xxxxxxx X. Check /S/ Xxxxx X Xxxxxxxxxx, Trustee
-------------------- -----------------------------
Xxxxxxx X. Check Xxxxx X. Xxxxxxxxxx, Trustee
/S/ Xxxxxxxxx X. Xxxx
---------------------
Xxxxxxxxx X. Xxxx
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STATE OF CONNECTICUT }
} ss: Xxxxxxxx Xxxx 00, 0000
XXXXXX XX XXX XXXXX }
Personally appeared Xx. Xxxx Xxxxx, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed, before me.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx
Notary Public
Commission Expires March 31, 2009
STATE OF CONNECTICUT }
} ss: Woodbridge June 22, 2004
COUNTY OF NEW HAVEN }
Personally appeared Xxxxx X. Xxxxxxxxxx, Trustee, signer and sealer of
the foregoing instrument, and acknowledged the same to be his free act and deed,
before me.
/S/ Xxxxxxxx Xxxxxx
-------------------------------
Notary Public/
My Commission Expires: 1/31/09
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