PURCHASE AND SALE AGREEMENT
BETWEEN
SMP REAL ESTATE LLC, AS SELLER
AND
EX II NORTHERN BOULEVARD ACQUISITION LLC, AS PURCHASER
AS OF DECEMBER 21, 2007
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS................................................................................1
ARTICLE 2 PURCHASE AND SALE..........................................................................6
2.1 Agreement to Sell and Purchase the Property....................................................6
2.2 Permitted Exceptions...........................................................................7
2.3 Xxxxxxx Money..................................................................................7
2.4 Purchase Price.................................................................................7
2.5 Closing........................................................................................7
ARTICLE 3 PURCHASER'S INSPECTION AND REVIEW RIGHTS...................................................8
3.1 Due Diligence Inspections......................................................................8
3.2 Condition of the Property......................................................................9
3.3 Title and Survey..............................................................................14
3.4 Service Contracts.............................................................................15
3.5 Confidentiality...............................................................................15
ARTICLE 4 REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS..........................................16
4.1 Representations and Warranties of Seller......................................................16
4.2 Knowledge Defined.............................................................................20
4.3 Covenants and Agreements of Seller............................................................20
4.4 Tenant Estoppel Certificate...................................................................22
4.5 Representations and Warranties of Purchaser...................................................23
4.6 Covenant of Purchaser to Comply with Environmental Remediation Easement.......................24
ARTICLE 5 CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS..........................................24
5.1 Seller's Closing Deliveries...................................................................24
5.2 Purchaser's Closing Deliveries................................................................26
5.3 Closing Costs.................................................................................27
5.4 Prorations and Credits........................................................................27
ARTICLE 6 CONDITIONS TO CLOSING.....................................................................29
6.1 Conditions Precedent to Purchaser's Obligations...............................................29
6.2 Conditions Precedent to Seller's Obligations..................................................30
ARTICLE 7 CASUALTY AND CONDEMNATION.................................................................30
7.1 Casualty......................................................................................30
7.2 Condemnation..................................................................................31
7.3 Survival......................................................................................32
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 8 DEFAULT AND REMEDIES......................................................................32
8.1 Purchaser's Default...........................................................................32
8.2 Seller's Default..............................................................................32
8.3 Survival......................................................................................33
ARTICLE 9 ASSIGNMENT................................................................................33
9.1 Assignment....................................................................................33
ARTICLE 10 BROKERAGE COMMISSIONS.....................................................................33
10.1 Broker........................................................................................33
ARTICLE 11 MISCELLANEOUS.............................................................................34
11.1 Notices.......................................................................................34
11.2 Possession....................................................................................35
11.3 Time Periods..................................................................................35
11.4 Publicity.....................................................................................35
11.5 Discharge of Obligations......................................................................36
11.6 Severability..................................................................................36
11.7 Construction..................................................................................36
11.8 Sale Notification Letters.....................................................................36
11.9 General Provisions............................................................................36
11.10 Attorney's Fees...............................................................................37
11.11 Counterparts..................................................................................37
11.12 Effective Agreement...........................................................................37
11.13 Certiorari....................................................................................37
11.14 Defeasance....................................................................................37
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SCHEDULE OF EXHIBITS
Exhibit "A" Description of Land
Exhibit "B" List of Personal Property
Exhibit "C" List of Existing Commission Agreements
Exhibit "D" Form of Escrow Agreement
Exhibit "E" List of Existing Environmental Reports
Exhibit "F" Description of Existing Survey
Exhibit "G" List of Lease Documents
Exhibit "H" Municipal Searches
Exhibit "I" Litigation Schedule
Exhibit "J" List of Service Contracts
Exhibit "K" Form of Tenant/Seller Estoppel Certificate
Exhibit "K-1" Environmental Remediation Easement
Exhibit "K-2" Environmental Insurance Policies
Exhibit "L" List of Property Tax Appeals
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SCHEDULE OF CLOSING DOCUMENTS
Schedule 1 Form of Assignment and Assumption of Leases
Schedule 2 Form of Assignment and Assumption of Service Contracts
Schedule 3 Form of Xxxx of Sale to Personal and Intangible Property
Schedule 4 Form of Seller's FIRPTA Affidavit
Schedule 5 Form of Lease
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PURCHASE AND SALE AGREEMENT
00-00 XXXXXXXX XXXXXXXXX
XXXX XXXXXX XXXX, XXX XXXX
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), made and
entered into as of the 21st day of December, 2007, by and between SMP Real
Estate LLC, a Delaware limited liability company ("Seller"), and Ex II Northern
Boulevard Acquisition LLC, a Delaware limited liability company ("Purchaser").
W I T N E S S E T H:
-------------------
WHEREAS, Seller desires to sell that certain improved real
property located at street address 00-00 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx Xxxx,
Xxx Xxxx, together with certain related personal and intangible property of
Seller, and Purchaser desires to purchase such real, personal and intangible
property; and
WHEREAS, the parties hereto desire to provide for said sale
and purchase on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises, the
mutual covenants and agreements hereinafter set forth, and for other good and
valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto hereby covenant
and agree as follows:
ARTICLE 1 DEFINITIONS
For purposes of this Agreement, each of the following
capitalized terms shall have the meaning ascribed to such terms as set forth
below:
"ACO" shall have the meaning ascribed thereto in Section
4.3(e) hereof.
"ACO Environmental Work" shall have the meaning ascribed
thereto in Section 4.3(e) hereof.
"Arbitrator" shall have the meaning ascribed thereto in
Section 3.2(f) hereof.
"Assignment and Assumption of Leases" shall mean the form of
assignment and assumption of Leases to be executed and delivered by Purchaser
and Seller, at the Closing in the form attached hereto as SCHEDULE 1.
"Assignment and Assumption of Service Contracts" shall mean
the form of assignment and assumption of the Service Contracts to be executed
and delivered by Purchaser and Seller, at the Closing in the form attached
hereto as SCHEDULE 2.
"Xxxx of Sale" shall mean the form of xxxx of sale to the
Personal Property to be executed and delivered to Purchaser by Seller as to the
Personal Property, at the Closing in the form attached hereto as SCHEDULE 3.
"Broker" shall have the meaning ascribed thereto in SECTION
10.1 hereof.
"Business Day" shall mean any day other than a Saturday,
Sunday or other day on which banking institutions in the State of New York are
authorized by law or executive action to close.
"Closing" shall mean the consummation of the purchase and sale
of the Property pursuant to the terms of this Agreement.
"Closing Date" shall have the meaning ascribed thereto in
SECTION 2.5 hereof.
"Closing Documents" shall mean any certificate, instrument or
other document delivered pursuant to this Agreement.
"Commission Agreement" shall have the meaning ascribed thereto
in SECTION 4.1(F) hereof, and such agreement is more particularly described on
EXHIBIT "C" attached hereto and made a part hereof.
"Deed" shall have the meaning ascribed thereto in SECTION
5.1(A).
"Deliverables" shall have the meaning ascribed thereto in
Section 4.3(e) hereof.
"Due Diligence Material" shall have the meaning ascribed
thereto in SECTION 3.5 hereof.
"Xxxxxxx Money" shall mean the sum of FOUR MILLION SIXTY
THOUSAND DOLLARS ($4,060,000.00) to be paid by Purchaser to Escrow Agent
hereunder as provided in SECTION 2.3 hereof and in the Escrow Agreement, plus
any interest earned thereon.
"Effective Date" shall mean the date upon which Seller and
Purchaser shall have delivered a fully executed counterpart of this Agreement to
the other, which date shall be inserted in the space provided on page 1 hereof.
For the purposes of determining the Effective Date, a facsimile signature shall
be deemed an original signature.
"Environmental Insurance" shall have the meaning ascribed
thereto in SECTION 3.2(C) hereof.
"Environmental Law" shall mean any law, ordinance, rule,
regulation, order, judgment, injunction or decree now or hereafter relating to
pollution or substances or materials which are considered to be hazardous or
toxic, including, without limitation, the Resource Conservation and Recovery Act
(42 U.S.C. ss. 6901 et seq.), the Comprehensive Environmental Response,
Compensation and Liability Act (codified in various sections of 26 U.S.C., 33
U.S.C., 42 U.S.C. and 42 U.S.C. ss. 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Clean Water Act (33 U.S.C.
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ss. 1251 et seq.), the Safe Drinking Water Act (21 U.S.C. ss. 349, 42 U.S.C. ss.
201 et seq. and ss. 300 et seq.), the Toxic Substances Control Act (15 U.S.C.
ss. 2061 et seq.), the Emergency Planning and Community Right to Know Act (42
U.S.C. ss. 1100 et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.), and
any state and local environmental laws, all amendments and supplements to any of
the foregoing and all regulations and publications promulgated or issued
pursuant thereto.
"Environmental Liabilities" shall have the meaning ascribed
thereto in SECTION 3.2(B) hereof.
"Environmental Work" shall have the meaning ascribed thereto
in SECTION 4.3(E) hereof.
"Escrow Agent" shall mean Xxxxxx Xxxx & Xxxxxx LLP, with an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Escrow Agreement" shall mean that certain Escrow Agreement in
the form attached hereto as EXHIBIT "D" entered into among Seller, Purchaser and
Escrow Agent with respect to the Xxxxxxx Money.
"Existing Environmental Reports" shall mean those certain
reports, correspondence and related materials, if any, more particularly
described on EXHIBIT "E" attached hereto and made a part hereof.
"Existing Survey" shall mean that certain survey with respect
to the Land, as more particularly described on EXHIBIT "F" attached hereto and
made a part hereof.
"FIRPTA Affidavit" shall mean the form of FIRPTA Affidavit to
be executed and delivered to Purchaser at Closing by Seller in the form attached
hereto as SCHEDULE 4.
"Governmental Authority" shall have the meaning ascribed
thereto in SECTION 3.2(B) hereof.
"Hazardous Materials" shall mean any and all substances, mold
or organism which is toxic, explosive corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous or any other
substances that might pose a hazard to health or safety, the removal of which is
required under any Environmental Law or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage or filtration of which is
regulated, restricted, prohibited or penalized under any Environmental Law
(including, without limitation, lead paint, asbestos, urea formaldehyde foam
insulation, petroleum and polychlorinated biphenyls).
"Improvements" shall mean all buildings, structures and
improvements now or on the Closing Date situated on the Land, including without
limitation, all parking areas and facilities, improvements and fixtures located
on the Land.
"Indemnitees" shall have the meaning ascribed thereto in
SECTION 3.2(B) hereof.
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"Intangible Property" shall mean all intangible property, if
any, owned by Seller and related to the Land, the Improvements and the Personal
Property, including without limitation, the rights and interests, if any, of
Seller in and to the following (to the extent assignable): (i) all assignable
plans and specifications and other architectural and engineering drawings for
the Land and Improvements; (ii) all assignable warranties or guaranties given or
made in respect of the Improvements or Personal Property; (iii) all transferable
consents, authorizations, variances or waivers, licenses, permits and approvals
from any governmental or quasi-governmental agency, department, board,
commission, bureau or other entity or instrumentality solely in respect of the
Land or Improvements; and (iv) all of the right, title and interest of Seller in
and to all Service Contracts that Purchaser agrees to assume (or is deemed to
have agreed to assume).
"Land" shall mean that certain tract or parcel of real
property located in Long Island City, New York, which is more particularly
described on EXHIBIT "A" attached hereto, together with all rights, privileges
and easements appurtenant to said real property, and all right, title and
interest, if any, of Seller in and to any land lying in the bed of any street,
road, alley or right-of-way, open or closed, adjacent to or abutting the Land.
"Leases" shall mean the leases identified on EXHIBIT "G"
attached hereto.
"Monetary Objection" or "Monetary Objections" shall mean (a)
any mortgage, deed to secure debt, deed of trust or similar security instrument
encumbering all or any part of the Property, (b) any mechanic's, materialman's
or similar lien (unless resulting from any act or omission of Purchaser or any
of its agents, contractors, representatives or employees or any tenant of the
Property), (c) the lien of ad valorem real or personal property taxes,
assessments and governmental charges affecting all or any portion of the
Property which are due and payable, and (d) any judgment of record against
Seller in the county or other applicable jurisdiction in which the Property is
located.
"Mortgage" shall have the meaning ascribed thereto in Section
11.15 hereof.
"Non-ACO Environmental Work" shall have the meaning ascribed
thereto in SECTION 4.3(E) hereof.
"Other Notices of Sale" shall have the meaning ascribed
thereto in SECTION 5.1(Q) hereof.
"Permitted Exceptions" shall mean, collectively, (a) liens for
taxes, assessments and governmental charges not yet due and payable with respect
to the Land and Improvements, (b) the Leases affecting the Land and
Improvements, (c) such state of facts set forth on the Existing Survey, (d) such
state of facts, if any, in addition to the state of facts set forth on the
Existing Survey, as would be disclosed by a current survey of the Land, provided
such additional state of facts, if any, would not render title to the Property
unmarketable, (e) Reservation of Easement set forth in deed dated May 11, 1911,
recorded May 31, 1911 in Liber 1751 Cp. 354, (f) Sidewalk Violation No. 2447/92
filed June 8, 1992, and (g) such other easements, restrictions and encumbrances
with respect to the Land and Improvements that do not constitute Monetary
Objections, and that are approved (or are deemed approved) by Purchaser in
accordance with the provisions of SECTION 3.3 hereof.
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"Personal Property" shall mean all carpeting, draperies,
appliances, personal property (excluding any computer software which is either
licensed to Seller or which Seller deems proprietary), machinery, apparatus and
equipment owned by Seller and currently used exclusively in the operation,
repair and maintenance of the Land and Improvements and situated thereon,
including, without limitation, as generally described on EXHIBIT "B" attached
hereto and made a part hereof. The Personal Property does not include any
property owned by tenants, contractors or licensees, and shall be conveyed by
Seller to Purchaser subject to depletions, replacements and additions in the
ordinary course of Seller's business.
"Property" shall have the meaning ascribed thereto in SECTION
2.1 hereof.
"Purchase Price" shall be the amount specified in SECTION 2.4
hereof.
"Purchaser Waived Breach" shall have the meaning ascribed
thereto in SECTION 4.1 hereof.
"Purchaser Consultation Matters" shall have the meaning
ascribed thereto in SECTION 3.2(E) hereof.
"Purchaser's Counsel" shall mean Stroock & Stroock & Xxxxx
LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, Attention: Xxxxx Xxxxxxx, Esq.
"Purchaser's Environmental Insurance" shall have the meaning
ascribed thereto in SECTION 3.2(B) hereof.
"Purchaser's Investigation" shall have the meaning ascribed
thereto in SECTION 3.2(C) hereof.
"Purchaser's Investigation Workplan" shall have the meaning
ascribed thereto in SECTION 3.2(C) hereof.
"Release" shall mean any discharge, disposal, leaching,
emission, or spill of Hazardous Materials in violation of Environmental Law or
in such manner that would be reasonably likely to result in liability or an
obligation under Environmental Law to investigate and/or remediate such
Hazardous Material.
"ROD" shall have the meaning ascribed thereto in Section
3.2(e) hereof.
"Seller Estoppel Certificate" shall mean the certificate to be
provided by Seller in substantially the form attached hereto as EXHIBIT "K" if
and to the extent Seller fails to provide a Tenant Estoppel Certificate for each
subject tenant under a Lease.
"Seller Lease" shall mean the form of lease covering a portion
of the Property to be executed and delivered by Purchaser, as landlord, and
Standard Motor Products, Inc., as tenant, at the Closing in the form attached
hereto as Schedule 5.
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"Seller's Affidavit" shall mean the form of owner's affidavit
to be given by Seller at Closing to the Title Company in a form reasonably
acceptable to Seller and the Title Company.
"Seller's Counsel" shall mean Xxxxxx Xxxx & Xxxxxx LLP, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxx, Esq.
"Service Contracts" shall mean all those certain contracts and
agreements more particularly described as Service Contracts on EXHIBIT "J"
attached hereto and made a part hereof relating to the repair, maintenance or
operation of the Land, Improvements or Personal Property which will extend
beyond the Closing Date, including, without limitation, all equipment leases.
"Survey" shall have the meaning ascribed thereto in SECTION
3.3 hereof.
"Taxes" shall have the meaning ascribed thereto in SECTION
5.4(A) hereof.
"Tenant Estoppel Certificate" shall mean the certificate to be
sought from the tenants under the Leases in substantially the form attached
hereto as EXHIBIT "K"; PROVIDED, HOWEVER, that in no event shall Seller be
obligated to deliver to Purchaser a Tenant Estoppel Certificate containing any
terms or items that are not expressly the obligation of tenant to certify
pursuant to the terms of its Lease.
"Tenant Inducement Costs" shall mean any out-of-pocket
payments required under a Lease to be paid by the landlord thereunder to or for
the benefit of the tenant thereunder which is in the nature of a tenant
inducement, including specifically, but without limitation, tenant improvement
costs, lease buyout payments, and moving, design, refurbishment and costs.
"Tenant Notice of Sale" shall have the meaning ascribed
thereto in SECTION 5.1(P) hereof.
"Title Company" shall mean Fidelity National Title Insurance
Company; provided, however, that Purchaser may obtain co-insurance (pursuant to
a "me-too" endorsement), as to not more than twenty-five percent (25%) of the
owner's policy, from Regal Title Agency.
"Title Commitment" shall have the meaning ascribed thereto in
SECTION 3.3 hereof.
"Title Notice" shall have the meaning ascribed thereto in
SECTION 3.3 hereof.
ARTICLE 2 PURCHASE AND SALE
2.1 AGREEMENT TO SELL AND PURCHASE THE PROPERTY. Subject to and in
accordance with the terms and provisions of this Agreement, Seller agrees to
sell and Purchaser agrees to purchase, the following property (collectively, the
"Property"):
(a) the Land;
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(b) the Improvements;
(c) all right, title and interest of Seller as "landlord" or "lessor"
in and to the Leases;
(d) the Personal Property; and
(e) the Intangible Property.
2.2 PERMITTED EXCEPTIONS. The Property shall be conveyed subject to the
matters which are, or are deemed pursuant to the terms of this Agreement to be,
Permitted Exceptions.
2.3 XXXXXXX MONEY.
(a) On December 24, 2007, Purchaser shall deliver the Xxxxxxx Money
to Escrow Agent by federal wire transfer, which Xxxxxxx Money shall be held and
released by Escrow Agent in accordance with the terms of the Escrow Agreement.
(b) The Xxxxxxx Money shall be applied to the Purchase Price at the
Closing and shall otherwise be held, refunded, or disbursed in accordance with
the terms of the Escrow Agreement and this Agreement. Interest and other income
from time to time earned on the Xxxxxxx Money shall be earned for the account of
the party to which the Xxxxxxx money is refunded or disbursed, as applicable, by
Escrow Agent.
2.4 PURCHASE PRICE. Subject to adjustment and credits as otherwise specified in
this Section 2.4 and elsewhere in this Agreement, the purchase price (the
"Purchase Price") to be paid by Purchaser to Seller for the Property shall be
the sum of FORTY MILLION SIXTY HUNDRED THOUSAND DOLLARS ($40,600,000.00).
The Purchase Price shall be paid by Purchaser to Seller at the
Closing as follows:
(a) The Xxxxxxx Money shall be paid by Escrow Agent to Seller at
Closing; and
(b) At Closing, the balance of the Purchase Price, after applying,
as partial payment of the Purchase Price, the Xxxxxxx Money, and subject to
prorations and other adjustments specified in this Agreement, shall be paid by
Purchaser in immediately available funds to an account or accounts designated by
Seller.
2.5 CLOSING. The consummation of the sale by Seller and purchase by
Purchaser of the Property (the "Closing") shall be held on or about sixty (60)
days subsequent to the date of this Agreement. The date of the Closing is
sometimes referred to as the "Closing Date". The transaction shall be closed
with the concurrent delivery of the documents of title and the payment of the
Purchase Price.
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ARTICLE 3 PURCHASER'S INSPECTION AND REVIEW RIGHTS
3.1 DUE DILIGENCE INSPECTIONS.
(a) From and after the Effective Date until the Closing Date, Seller
shall permit Purchaser and its authorized representatives to inspect the
Property, to perform due diligence and environmental investigations, at such
times during normal business hours as Seller shall reasonably designate. All
such inspections shall be nondestructive in nature, and specifically shall not
include any physically intrusive testing, PROVIDED, HOWEVER, that Purchaser
shall be entitled to obtain groundwater samples from any existing groundwater
monitoring xxxxx at the Property. All such inspections shall be performed in
such a manner to minimize any interference with the business of the tenants
under the Leases, and, in each case, in compliance with the rights and
obligations of Seller as landlord under the Leases. Purchaser agrees that
Purchaser shall make no contact with and shall not interview the tenants without
at least two (2) Business Days' advance written notice to Seller. All inspection
fees, appraisal fees, engineering fees and all other costs and expenses of any
kind incurred by Purchaser relating to the inspection of the Property shall be
solely Purchaser's expense. Seller reserves the right to have a representative
present at the time of making any such inspection and at the time of any such
interview with the tenant. Purchaser shall notify Seller not less than two (2)
Business Days in advance of making any such inspection.
(b) If the Closing is not consummated hereunder for any reason other
than Seller's default, Purchaser shall promptly deliver to Seller (if
contractually permitted to do so) copies of all reports, surveys and other
information furnished to Purchaser by third parties in connection with such
inspections. This Section 3.1(b) shall survive the termination of this
Agreement.
(c) To the extent that Purchaser or any of its representatives,
agents or contractors damages or disturbs the Property or any portion thereof,
Purchaser shall return the same to substantially the same condition which
existed immediately prior to such damage or disturbance. Purchaser hereby agrees
to and shall indemnify, defend and hold harmless Seller from and against any and
all expense, loss or damage which Seller may incur (including, without
limitation, reasonable attorney's fees actually incurred) as a result of any act
or omission of Purchaser or its representatives, agents or contractors
(collectively, "Purchaser's representatives") in connection with inspections of
the Property. Except for Purchaser's negligence, the foregoing indemnity shall
not include (x) any claims, demands, causes of action, losses, damages,
liabilities, costs or expenses (including without limitation attorneys' fees and
disbursements) that result from the discovery by Purchaser or Purchaser's
representatives of existing conditions on the Property, or (y) consequential,
indirect or special damages. Said indemnification agreement shall survive the
Closing, or earlier termination of this Agreement. Purchaser shall maintain and
shall ensure that Purchaser's consultants and contractors maintain commercial
general liability insurance in an amount not less than $2,000,000, combined
single limit, and in form and substance adequate to insure against all liability
of Purchaser and its consultants and contractors, respectively, and each of
their respective agents, employees and contractors, arising out of inspections
and testing of the Property or any part thereof made on Purchaser's behalf.
Purchaser agrees to provide to Seller a certificate of insurance with regard to
each applicable liability insurance policy prior to any entry upon the Property
by Purchaser or its consultants or contractors, as the case may be, pursuant to
this SECTION 3.1.
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3.2 CONDITION OF THE PROPERTY.
(a) Purchaser and Seller mutually acknowledge and agree that the
Property is being sold in an "AS IS, WHERE IS" condition and "WITH ALL FAULTS,"
known or unknown, contingent or existing, except as set forth in the
representations and warranties provided in this Agreement and the documents
executed and delivered in connection with the Closing (collectively, the
"Closing Documents"). Subject to the foregoing sentence, Purchaser has the sole
responsibility to fully inspect the Property, to investigate all matters
relevant thereto, including, without limitation, the condition of the Property,
and to reach its own, independent evaluation of any risks (environmental or
otherwise) or rewards associated with the ownership, leasing, management and
operation of the Property. Effective as of the Closing and except as expressly
set forth in this Agreement and/or the Closing Documents, Purchaser hereby
waives and releases Seller and its officers, directors, shareholders, partners,
agents, affiliates, employees and successors and assigns from and against any
and all claims, obligations and liabilities which Purchaser may have arising out
of or in connection with the Property. The foregoing release shall not be
applicable to Purchaser's right to implead or otherwise seek joinder of Seller
solely with respect to any claims brought against Purchaser by a third party
unaffiliated with Purchaser relating to personal injury or death that occurred
solely during Seller's period of ownership of the Property. Furthermore, this
release shall not applicable to any claims arising out of the express covenants,
representations, or warranties set forth in this Agreement that shall expressly
survive the Closing so long as the survival period is still in effect.
(b) Except as otherwise expressly provided in this Subsection
3.2(b), to the fullest extent permitted by law, Purchaser does hereby
unconditionally waive and release Seller and its officers, directors,
shareholders, partners, agents, affiliates and employees from any present or
future claims and liabilities of any nature arising from or relating to the
presence or alleged presence of Hazardous Materials in, on, at, from, under or
about the Property or any adjacent property, including, without limitation, any
claims under or on account of any Environmental Law, regardless of whether such
Hazardous Materials are located in, on, at, from, under or about the Property or
any adjacent property prior to or after the date hereof (collectively,
"Environmental Liabilities"); PROVIDED, HOWEVER, that the foregoing release as
it applies to Seller, its officers, directors, shareholders, partners, agents,
affiliates and employees, shall not release Seller from any Environmental
Liabilities of Seller relating to any Hazardous Materials which may be placed,
located or released on the Property by Seller after the date of Closing.
Notwithstanding the foregoing release, Seller shall indemnify, defend and hold
Purchaser and Purchaser's representatives, successors and assigns, and any of
Purchaser's mortgagees or holder of deed of trust affecting the Property
(collectively, "Indemnitees"), harmless for and against: (i) any present or
future claims and liabilities of any nature asserted by any third parties other
than Governmental Authorities arising from the presence of any Hazardous
Materials on, in, under, about or emanating from the Property to the extent that
the third-party claim seeks to recover for losses, damages or injuries due to
the release of Hazardous Materials that are, or which are later alleged by such
third party to be, the particular Hazardous Materials which Seller is legally
obligated to remediate pursuant to the ACO (PROVIDED, HOWEVER, that in the case
of Hazardous Materials that are later alleged by a third party to be the
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particular Hazardous Materials which Seller is legally obligated to remediate
pursuant to the ACO, Seller shall reimburse Purchaser for all reasonable
expenses incurred by Purchaser in the defense of such claim; and PROVIDED
FURTHER that under no circumstances shall Seller have any obligation to
indemnify, defend, or hold Purchaser harmless hereunder with respect to any
claims or liabilities to the extent that they involve Hazardous Materials that
Seller did not cause to be released), and (ii) any present or future claims and
liabilities of any nature asserted by any Governmental Authority arising from
Seller's breach of Seller's representations, warranties and/or covenants in
subsections 4.1(m), 4.3(c) and/or 4.3(e) hereof, PROVIDED, HOWEVER, that Seller
shall have no such obligation to indemnify, defend and/or hold any of the
Indemnitees harmless for any such claim or liabilities unless the following
conditions are true as of the time that Purchaser and/or any of Purchaser's
representatives assert any claim against Seller seeking to enforce such
obligation: (i) Purchaser and, as the case may be, Purchaser's representatives,
have at all times fully cooperated with Seller in all respects in Seller's
performance of the Environmental Work, including without limitation, complying
with all of Purchaser's obligations pursuant to Subsection 4.6 and the
Environmental Remediation Easement, attached hereto as Exhibit K-1; and (ii)
neither Purchaser, any of Purchaser's representatives, the other Indemnitees,
nor any third party acting at Purchaser's direction or request or with
information provided to such third party by Purchaser, has interfered with
Seller's exclusive and absolute right to control all negotiations with the State
of New York and its relevant agencies, or any other federal, state or local
governmental authority having jurisdiction pursuant to any Environmental Law
concerning any and all aspects of the Environmental Work ("Governmental
Authority"), either before or after Closing. For purposes of the foregoing
sentence, the terms "interfered with" shall mean any communication of any type
whatsoever with any Governmental Authority whose effect is to increase the cost
or scope of the Environmental Work, PROVIDED, HOWEVER, that it shall not include
any oral or written communication that: (i) Purchaser is required by law or
judicial process to provide to any Governmental Authority if Purchaser has first
given prior written notice to Seller of Purchaser's intention to communicate
such information describing in reasonable detail the information to be provided;
(ii) is otherwise necessary to provide on an emergent basis without such prior
notice in order to prevent an imminent and substantial endangerment to human
health, provided that in the case of the foregoing clause (ii), Purchaser has
notified Seller of such communication as soon as possible; (iii) Purchaser
engages in with any Governmental Authority after Seller has failed to provide
any response by the date required for such response for any required submission
by the NYSDEC and has further failed to cure any such non-response within thirty
(30) days of Seller's receipt of written notice by Purchaser of such failure
with reference to this Section 3.2(b), unless Seller has contested in good faith
its legal obligation to provide such submission or any action relating thereto;
or (iv) pertains to any Hazardous Materials present at, in, on or under the
Property that have not been excluded from coverage under the environmental
insurance to be obtained by Purchaser (which insurance shall be paid equally by
Seller and Purchaser and shall include each party as a named insured)
("Purchaser's Environmental Insurance"), containing substantially the same terms
and conditions as referenced in the quote attached hereto as Exhibit K-2.
Seller's duty to indemnify, defend and/or hold any of Indemnitees harmless in
this Section 3.2(b) shall expire as of: (A) in the case of any Environmental
Liabilities for which Seller becomes responsible under the ACO, the issuance by
the New York Department of Environmental Conservation ("NYSDEC") of either: (x)
a "Certificate of Completion", or equivalent documentation from the NYSDEC,
demonstrating that all required remediation activities have been completed to
the satisfaction of the NYSDEC (not including any required long-term monitoring
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which is provided for below in Section 3.2(b)); or (y) a "Certificate of
Construction Completion," if Seller has provided, in conjunction with such
certificate, a third-party liability transfer contract reasonably satisfactory
to Purchaser; or (B) in the case of any Environmental Liabilities for which
Seller otherwise becomes responsible, five (5) years from the date of Closing,
except that such indemnification shall continue for any Environmental
Liabilities discovered within 5 years of the date of closing until a Certificate
of Completion, Certificate of Construction Completion or a Notice of No Further
Action is issued by a Governmental Authority. Notwithstanding any expiration of
the indemnity as set forth above in the foregoing sentence, upon the issuance of
a Certificate of Completion or a Certificate of Construction Completion to
Seller whether under subsection (A) or (B), Seller's indemnity obligation under
this Section 3.2(b) shall continue with respect to any claims and liabilities of
any nature, including those asserted by any third parties, arising from Seller's
obligations under the ACO or other such requirement, if any, to perform ongoing
operations and maintenance activities and/or monitoring with respect to soil,
soil gas and/or groundwater at, on, in, under, or emanating from the Property.
(c) Notwithstanding anything in the foregoing subsection 3.2(b) to
the contrary, Seller shall have no duty to indemnify, defend and/or hold any of
Indemnitees harmless under Section 3.2(b) for any Environmental Liabilities
against Seller hereunder if insurance coverage for such Environmental
Liabilities is, or is reasonably expected to be, provided for under any of the
insurance policies held by Seller or Purchaser, more particularly referred to as
Xxxxxx Indemnity Insurance Company Policy No. 4YY-002213-00 and American
International Specialty Lines Insurance Company Policy No. PLS 2026574, and the
insurance policy that Seller is required to obtain hereunder containing
substantially the same coverage as described in the quote attached hereto as
Exhibit K-2 (collectively, the "Environmental Insurance"), if and for so long as
Purchaser and/or Seller are either "named insured," "first loss payee" and/or
"additional insured" under said Environmental Insurance until Purchaser and/or
Seller, whichever is first insured, as the case may be, have reasonably
exhausted efforts to recover under said insurance for such Environmental
Liabilities, PROVIDED, HOWEVER, that Seller shall in any event indemnify, defend
and/or hold any of Indemnitees harmless as provided under Section 3.2(b) above
if and when the limits of coverage provided under the Environmental Insurance
have been exhausted. The terms "reasonably exhausted efforts to recover under
said insurance" in the immediately foregoing sentence shall mean that Seller
and/or Purchaser as applicable have diligently provided notice of a claim for
coverage of said Environmental Liabilities to the carrier under the
Environmental Insurance within thirty (30) days of such claim arising, and has
pursued coverage for a period of one hundred eighty (180) days from the date the
environmental claim arose. At the close of the 180-day period from the date the
environmental claim arose as referenced in the foregoing sentence, if no carrier
has agreed to provide coverage for any claimed Environmental Liabilities,
whether or not subject to a reservation of rights, the indemnification
obligations of the Seller as set forth in Section 3.2(b) herein shall be in full
force and effect. Seller agrees that the statute of limitations applicable to
any claim of Purchaser shall be tolled during any period in which Purchaser
and/or Seller are seeking coverage under the Environmental Insurance. Further,
notwithstanding anything in the foregoing subsection 3.2(b) to the contrary, but
except as otherwise provided in the immediately following sentence for any
Purchaser Investigation (as defined below), Seller shall have no duty to
indemnify, defend and/or hold any of the Indemnitees harmless under Section
3.2(b) for any claims or liabilities arising in whole or in part from, but
Purchaser shall instead indemnify, defend and hold harmless Seller for: (i) any
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Environmental Liabilities arising from any negligence or exacerbation of any
existing environmental condition involving Hazardous Materials by Purchaser or
any Purchaser's tenants, contractors, agents, or invitees; and/or (ii) any
invasive investigation undertaken by Purchaser or any of its tenants,
contractors, agents or invitees at or near the Property. For purposes of this
Agreement, "invasive investigation" shall mean the installation of monitoring
xxxxx for soil and/or groundwater sampling and shall not include any activity
associated with routine maintenance of or visual inspection at the building or
buildings. Notwithstanding anything in the immediately foregoing sentence to the
contrary, Purchaser may perform an invasive investigation ("Purchaser's
Investigation") at or near the Property and shall be entitled to indemnification
from Seller pursuant to subsection 3.2(b) above for any Environmental
Liabilities relating to the discovery of any Hazardous Materials resulting from
such investigation and whose presence at or near the Property existed prior to
the date of Closing or whose release was otherwise caused by Seller if all of
the following conditions are true at the time that Purchaser seeks such
indemnification from Seller: (A) Purchaser has provided reasonable written
advance notice to Seller of its intention to perform such investigation and
Seller has not elected to perform the investigation itself at Seller's cost; (B)
Purchaser has demonstrated to Seller's reasonable satisfaction that the
investigation is necessary in order to permit Purchaser to perform property
maintenance (including landscaping), a building renovation or extension of the
building, which maintenance, renovation or extension Purchaser has demonstrated
to Seller's reasonable satisfaction is likely to be performed; (C) a written
workplan (the "Purchaser's Investigation Workplan") outlining the scope of such
investigation has been approved by Seller, which approval shall not be
unreasonably withheld or delayed; (D) the scope of the investigation as set
forth in the Purchaser's Investigation Workplan is strictly limited to the scope
of the property maintenance, building renovation or extension; and (E) the
investigation was performed in strict compliance with the Purchaser's
Investigation Workplan.
(d) Purchaser shall have the right, but not the obligation, to
assume control of the ACO Environmental Work, at Seller's expense if the
following conditions have been satisfied: (i) Seller has failed to provide any
response by the date required for such response for any submission required by
the NYSDEC and has further failed to cure any such non-response within the later
of (A) sixty (60) days of Seller's receipt of written notice by Purchaser of
such failure with reference to this Section 3.2(d), or (B) such longer period as
may be reasonably necessary in order to cure; (ii) Seller's failure to so
respond and cure concerns a matter of a material nature and reasonably would be
likely to result in an administrative or judicial proceeding initiated by the
NYSDEC against Seller seeking to enforce Seller's obligations under the ACO; and
(iii) Seller has not at any time during or prior to the preceding 60-day period
contested in good faith its legal obligation to provide such submission or any
action relating thereto. Notwithstanding anything in the foregoing sentence to
the contrary, in the event that Seller has contested in good faith its legal
obligation to provide the foregoing submission or any action relating thereto,
Purchaser shall be entitled to assume control of the ACO Work at Seller's
expense at such time that Seller's contest of its obligation to do so has been
finally and conclusively determined by a court of competent jurisdiction (or by
an administrative law judge if Seller has no right of judicial redress) against
Seller and Seller has exhausted all rights of appeal therefrom, provided that
all of the other foregoing conditions remain satisfied. Notwithstanding the
foregoing, under no circumstances shall Seller have any responsibility under
this Section 3.2(d) for: (i) any measures in excess of those strictly necessary
to comply with Environmental Laws; (ii) repair, replacement or upgrade of
equipment, or building, material, product or equipment decommissioning,
decontamination or disposal; or (iii) internal costs and overhead of the
Purchaser, including wages, salaries, or any other form of employee
compensation.
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(e) Notwithstanding anything in this Section 3.2 to the contrary, if
after the eighteen month anniversary date of the Closing Seller has not obtained
a Record of Decision ("ROD") signed by the NYSDEC for the ACO Environmental
Work: (i) Seller agrees that Purchaser and Seller shall jointly work together to
obtain the ROD; (ii) Seller and Purchaser shall consult with one another, and
shall cause each other's consultants to participate in such consultation,
regarding the nature or scope of the ACO Environmental Work (the "Purchaser
Consultation Matters"); (iii) with respect to any scheduled telephonic
conference call with Seller (or its consultants) and the NYSDEC involving the
Purchaser Consultation Matters, Seller shall include Purchaser on such
conference call, provided that Seller at all times shall have the exclusive
right to convey the mutually agreed upon positions of Seller and Purchaser to
the NYSDEC regarding any matters pertaining to the ACO Environmental Work; (iv)
with respect to any unscheduled telephonic call with Seller (or its consultants)
and the NYSDEC involving the Purchaser Consultation Matters, Seller agrees to
promptly inform Purchaser of all such communications by follow-up telephonic
discussion or e-mail correspondence; (v) Purchaser and Seller shall jointly have
the right to comment on any Deliverable prior to its submission to the NYSDEC;
and (vi) Seller shall not unreasonably refuse to make modifications to any
Deliverable in order to address Purchaser's comments. For purposes of this
Section 3.2(e), Purchaser and Seller agree that under no circumstances shall
Seller be required to perform any action beyond that which is required by law.
(f) In the event that Seller and Purchaser are unable to agree on:
(i) whether the conditions set forth in subsection 3.2(d) above for triggering
Purchaser's right to assume control of the ACO Environmental Work have been
satisfied; or (ii) whether, or to what extent, any Deliverable should be
modified in accordance with subsection 3.2(e) above, then in either such case,
Seller and Purchaser agree to submit the matter for arbitration with an
independent third party with expertise in the applicable matters in dispute (the
"Arbitrator"), which Arbitrator shall be mutually agreeable to both Seller and
Purchaser, and further agree that the decision of such Arbitrator shall be
conclusive in all respects as to such matter. Seller and Purchaser also agree
that in the event of an arbitration pursuant to the foregoing sentence, they
will each pay one-half of the arbitrator's fee, but shall otherwise be
responsible for their own counsel and/or expert witness fees.
(g) At Closing, Seller shall place the sum of $500,000 into an
escrow account, pursuant to an escrow agreement that Seller and Purchaser shall
jointly agree on, with Escrow Agent. Seller and Purchaser further agree that
such escrow agreement shall include, at a minimum: (i) a full release and
indemnity of Escrow Agent from and against any claims of any nature whatsoever
stemming from its role as Escrow Agent; (ii) a right of Seller to draw down
money from the escrow in order to pay for any costs incurred in connection with
the investigation or remediation of the ACO Environmental Work or the Non-ACO
Environmental Work and/or any interactions with any Governmental Authority in
connection with the same, except for attorneys fees; (iii) a termination
provision allowing Seller to receive all remaining amounts in the escrow upon
deliver to Purchaser of: (A) an executed contract with an environmental
engineering firm for the performance of the ACO Environmental Work as provided
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under an NYSDEC-signed ROD; or (B) a prepaid guaranteed remediation contract or
third-party risk transfer agreement with an environmental engineering firm
providing for the completion of the ACO Environmental Work. As of the date of
the termination of the escrow agreement, Seller shall provide Purchaser with a
letter indicating that Seller has not filed for bankruptcy.
3.3 TITLE AND SURVEY. Within two (2) Business Days after the Effective
Date, Purchaser shall order from the Title Company an update of preliminary
title commitment No. 07-7406-17848-Q with respect to the Property issued in
favor of Purchaser (the "Title Commitment"). Purchaser shall promptly deliver
copies of the Title Commitment to Seller. At any time following the Effective
Date, Purchaser may arrange, at its expense, for the preparation of one or more
updates of the Existing Survey (each and together, the "Survey"). Purchaser
shall promptly deliver copies of any such Survey to Seller. Purchaser shall have
until twenty (20) business days from the date of Purchaser's receipt of the
Title Commitment, to give written notice (the "Title Notice") to Seller of such
objections as Purchaser may have to any exceptions to title disclosed in the
Title Commitment. Seller shall have the right, but not the obligation (except as
to Monetary Objections), to attempt to remove, satisfy or otherwise cure any
exceptions to title to which the Purchaser so objects. Within ten (10) Business
Days after receipt of Purchaser's Title Notice, Seller shall give written notice
to Purchaser informing the Purchaser of Seller's election with respect to such
objections. If Seller fails to give written notice of election within such ten
(10) Business Day period, Seller shall be deemed to have elected not to attempt
to cure the objections (other than Monetary Objections). If Seller elects to
attempt to cure any objections, Seller shall be entitled to one or more
reasonable adjournments of the Closing (not to exceed sixty (60) days in the
aggregate) to attempt such cure, but, except for Monetary Objections, Seller
shall not be obligated to expend any sums, commence any suits or take any other
action to effect such cure. Except as to Monetary Objections, if Seller elects,
or is deemed to have elected, not to cure any exceptions to title to which
Purchaser has objected or if, after electing to attempt to cure, Seller
determines that it is unwilling or unable to remove, satisfy or otherwise cure
any such exceptions, Purchaser's sole remedy hereunder in such event shall be
either (i) to accept title to the Property subject to such exceptions as if
Purchaser had not objected thereto and without reduction of the Purchase Price,
or (ii) to terminate this Agreement within three (3) Business Days after receipt
of written notice from Seller either of Seller's election not to attempt to cure
any objection or of Seller's determination, having previously elected to attempt
to cure, that Seller is unable or unwilling to do so, whereupon Escrow Agent
shall return the Xxxxxxx Money to Purchaser and the parties shall have no
further obligations pursuant to this Agreement except those that expressly
survive a termination of this Agreement. Notwithstanding anything to the
contrary contained elsewhere in this Agreement, Seller shall be obligated to
cure or satisfy all Monetary Objections at or prior to Closing, and Seller may
use the proceeds of the Purchase Price at Closing for such purpose. From and
after the date hereof, Seller shall not cause the creation of any Lien (a "New
Lien") to encumber title to the Property, without Purchaser's written consent
thereto, which consent may be withheld in Purchaser's sole discretion.
Notwithstanding any other provision of this Agreement to the contrary, Seller
shall be obligated to remove or discharge of record, prior to Closing, any New
Lien caused by Seller which has not been consented to in writing by Purchaser.
In addition, notwithstanding anything to the contrary contained in this
Agreement, if any New Liens (whether caused by Seller or a third party) appear
on any update to the Title Commitment, Purchaser shall have the right to object
to same within twenty (20) Business Days of receipt of such update, and such
objections shall be considered objections to title for all purposes of this
Agreement and the provisions of this SECTION 3.3 shall apply to such objections.
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3.4 SERVICE CONTRACTS. Within ten (10) Business Days of Purchaser's
receipt of complete copies of the Service Contracts (but no earlier than ten
(10) Business Days after the Effective Date, Purchaser will designate in a
written notice to Seller which Service Contracts Purchaser will assume and which
Service Contracts will be terminated by Seller at Closing; PROVIDED, HOWEVER,
that Seller shall not be obligated to terminate, and Purchaser shall assume
Seller's obligations arising from and after Closing under, all Service Contracts
which cannot be terminated by Seller upon thirty (30) days (or less) prior
notice or which can be terminated by Seller only upon payment of a fee, premium,
penalty or other form of early termination compensation. Purchaser will assume
the obligations arising from and after the Closing Date under those Service
Contracts which Purchaser has designated will not be terminated. Seller, without
cost to Purchaser, shall terminate at Closing all Service Contracts that are not
so assumed, to the extent any relates to the Property. If Purchaser fails to
timely notify Seller in writing of any Service Contracts that Purchaser does not
desire to assume at Closing, Purchaser shall be deemed to have elected to assume
all such Service Contracts and to have waived its right to require Seller to
terminate such Service Contracts.
3.5 CONFIDENTIALITY. All information acquired by Purchaser or any of
its designated representatives (including by way of example, but not in
limitation, the officers, directors, shareholders and employees of Purchaser,
and Purchaser's engineers, consultants, counsel and potential lenders, and the
officers, directors, shareholders and employees of each of them) with respect to
the Property, whether delivered or otherwise made available by Seller or any
representatives of Seller or obtained by Purchaser as a result of its inspection
and investigation of the Property, examination of the books, records and files
of Seller in respect of the Property, or otherwise (collectively, the "Due
Diligence Material") shall be used solely for the purpose of determining whether
the Property is suitable for Purchaser's acquisition and ownership thereof and
for no other purpose whatsoever. Prior to Closing, the terms and conditions
which are contained in this Agreement and all Due Diligence Material which is
not (i) published as public knowledge, (ii) generally available in the public
domain or (iii) was known to Purchaser through a source other than the Due
Diligence Material shall be kept in strict confidence by Purchaser and shall not
be disclosed to any individual or entity other than to those representatives of
Purchaser and Purchaser's prospective and actual counsel, accountants,
professionals, consultants and lenders, who need to know the information for the
purpose of assisting Purchaser in evaluating the Property for Purchaser's
potential acquisition thereof; PROVIDED, HOWEVER, that Purchaser shall have the
right to disclose any such information if required by applicable law or as may
be necessary in connection with any court action or proceeding with respect to
this Agreement. Purchaser shall and hereby agrees to indemnify and hold Seller
harmless from and against any and all loss, liability, cost, damage or expense
that Seller may suffer or incur (including, without limitation, reasonable
attorneys' fees actually incurred) as a result of the unpermitted disclosure by
Purchaser or any of its prospective and actual counsel, accountants,
professionals, consultants and lenders of any of the Due Diligence Material to
any individual or entity other than a representative of Purchaser and
Purchaser's prospective and actual counsel, accountants, professionals,
consultants and lenders and/or the use of any Due Diligence Material for any
purpose other than as herein contemplated and permitted. The foregoing indemnity
shall not extend to disclosure of any Due Diligence Material (i) as may be
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required by applicable law, (ii) as may be necessary or advisable in connection
with any court action or proceeding with respect to this Agreement, (iii) that
is or becomes (x) published as public knowledge, or (y) generally available in
the public domain other than by virtue of a breach of Purchaser's covenant under
this SECTION 3.5 or (iv) that was known to Purchaser through a source other than
the Due Diligence Material. If Purchaser or Seller elect to terminate this
Agreement pursuant to any provision hereof permitting such termination, or if
the Closing contemplated hereunder fails to occur for any reason, Purchaser
will, at Seller's option, promptly either destroy or return to Seller all Due
Diligence Material in the possession of Purchaser and any of its
representatives, and destroy all copies, notes or abstracts or extracts thereof,
as well as all copies of any analyses, compilations, studies or other documents
prepared by Purchaser or for its use (whether in written or electronic form)
containing or reflecting any Due Diligence Material. In the event of a breach or
threatened breach by Purchaser or any of its representatives of this SECTION
3.5, Seller shall be entitled, in addition to other available remedies, to an
injunction restraining Purchaser or its representatives from disclosing, in
whole or in part, any of the Due Diligence Material and any of the terms and
conditions of this Agreement. Nothing contained herein shall be construed as
prohibiting or limiting Seller from pursuing any other available remedy, in law
or in equity, for such breach or threatened breach. The provisions of this
Section shall survive any termination of this Agreement.
ARTICLE 4 REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS
4.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes the
following representations and warranties to Purchaser:
(a) Organization, Authorization and Consents.
(i) Seller has the right, power and authority to enter into
this Agreement and to sell the Property in accordance with the terms and
provisions of this Agreement, to engage in the transaction contemplated in this
Agreement and to perform and observe all of the terms and provisions hereof.
(ii) Seller is a duly organized and validly existing limited
liability company under the laws of the State of Delaware.
(b) Action of Seller, Etc. Seller has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by Seller on or prior
to the Closing, this Agreement and such document shall constitute the valid and
binding obligation and agreement of Seller, enforceable against Seller in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by Seller, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon the Property or any portion
thereof pursuant to the terms of any indenture, deed to secure debt, mortgage,
deed of trust, note, evidence of indebtedness or any other agreement or
instrument by which Seller or the Property is bound.
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(d) Litigation. Except as disclosed on Exhibit "I" attached hereto,
Seller has not received written notice of any pending or threatened suit, action
or proceeding, which (i) if determined adversely to Seller, materially and
adversely affects the use or value of the Property, or (ii) questions the
validity of this Agreement or any action taken or to be taken pursuant hereto,
or (iii) involves condemnation or eminent domain proceedings involving the
Property or any portion thereof.
(e) Existing Leases. Seller represents that all rent due from
tenants of the Building is not in arrears on the date hereof. Other than the
Leases listed on Exhibit "G" attached hereto, Seller has not entered into any
contract or agreement with respect to the occupancy of the Property or any
portion or portions thereof which will be binding on Purchaser or the Property
after the Closing. The copy of the Leases heretofore delivered or made available
by Seller to Purchaser are a true, correct and complete copies thereof, and the
Leases have not been amended except as evidenced by amendments similarly
delivered and listed on Exhibit "G" attached hereto and constitute the entire
agreement between Seller and the tenant thereunder. To Seller's knowledge,
except as set forth in Exhibit "I" attached hereto, Seller has not given or
received any written notice of any party's default or failure to comply with the
terms and provisions of the Leases which remains uncured. Seller is the landlord
under each of the leases and has not assigned, mortgaged, pledged, sublet,
hypothecated or otherwise encumbered any of its rights or interests under any of
the leases in a manner which will survive the Closing. The security deposits
delivered by each tenant under Leases are as set forth in Exhibit "G". No tenant
has paid any rents more than one (1) month in advance. Except as set forth in
Exhibit "G", no tenant is entitled to any free rent, abatement of rent or
similar concession. Anything to the contrary contained in this sub-section (e)
notwithstanding, with regard to the License Agreement and Permit to Enter Upon
Premises, each dated June 26, 2003, between Seller and The Long Island Rail Road
Company listed on Exhibit G attached hereto, Seller is not landlord but rather
licensee, and Seller shall continue to be licensee thereunder, and said
instruments shall not be assigned to Purchaser.
(f) Leasing Commissions. There are no lease brokerage agreements,
leasing commission agreements or other agreements providing for payments of any
amounts for leasing activities or procuring tenants with respect to the Property
or any portion or portions thereof other than as disclosed in Exhibit "C"
attached hereto (the "Commission Agreements"), and all leasing commissions and
brokerage fees accrued or due and payable under the Commission Agreements with
respect to the Property as of the date hereof and at the Closing have been or
shall be paid in full. Except with respect to the Commission Agreements, there
are no leasing commissions or brokerage fees that will be payable after the
Closing in connection with Leases in effect as of the date hereof.
Notwithstanding anything to the contrary contained herein, Purchaser shall be
responsible for the payment of all leasing commissions payable for (a) any new
leases entered into after the Effective Date that have been approved (or deemed
approved) by Purchaser, and (b) the renewal, expansion or extension of the
Leases existing as of the Effective Date and exercised or effected after the
Effective Date. The terms of the immediately preceding sentence shall survive
Closing.
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(g) Management Agreement. There is no agreement currently in effect
relating to the management of the Property by any third party management
company.
(h) Taxes and Assessments. Except as may be set forth on EXHIBIT "L"
attached hereto and made a part hereof, Seller has not filed, and has not
retained anyone to file, notices of protests against, or to commence action to
review, real property tax assessments against the Property. Seller shall retain
sole and absolute interest in proceedings against the City New York an its
agencies, including, but not limited to, the New York City Department of
Finance, New York City Tax Commission and New York City Law Department, which
relate to the protest or appeal of the assessment of real property for the years
set forth on EXHIBIT "L." As such, Seller shall have sole interest in and sole
authority to settle, pursue or initiate any proceedings for tax years listed on
EXHIBIT "L." Seller's authority stated above in this clause (h) shall survive
Closing. Notwithstanding the foregoing, any refund or savings in respect to such
proceeding shall belong to Seller only after deduction of all sums payable to
tenants under the Leases in respect thereof; provided that if any refund or
savings is in the form of a future tax credit, Purchaser shall deliver the
aggregate amount of such credit to Seller in cash, and Seller shall deliver any
applicable sums payable to tenants under the Leases in respect thereof.
(i) Compliance with Laws. EXHIBIT "H" attached hereto sets forth
true and complete copies of the most recent departmental searches obtained by
Seller. Purchaser shall accept title to the Property subject to all violations
of laws, orders, rules and regulations affecting the Property as of the Closing
Date. Anything to the contrary contained in the immediately preceding sentence
notwithstanding, for any violation issued against the Property before or after
the date of this Agreement, Seller shall be responsible to cure the subject
condition; provided that Seller shall not be responsible to cure any violations
which were caused by Purchaser or its tenants after the closing date of this
Agreement. To the extent Seller is responsible to cure violations as more
particularly provided for in the immediately preceding sentence, Seller shall
act promptly, it being understood that such curing of violations may not be
accomplished prior to Closing and to the extent such violations are not cured
prior to Closing Seller's obligation to act promptly to cure such violations
shall survive Closing. Purchaser agrees to cooperate with Seller at no
out-of-pocket cost to Purchaser in connection with Seller's obligations, if any,
set forth in this clause (i) which agreement to cooperate shall survive Closing.
(j) Other Agreements. To Seller's knowledge, except for the Leases,
the Service Contracts, the Commission Agreements and the Permitted Exceptions,
there are no leases, management agreements, brokerage agreements, leasing
agreements or other agreements or instruments in force or effect that grant to
any person or any entity (other than Seller) any right, title, interest or
benefit in and to all or any part of the Property or any rights relating to the
use, operation, management, maintenance or repair of all or any part of the
Property which will survive the Closing or be binding upon Purchaser other than
those which Purchaser has agreed in writing to assume (or is deemed to have
agreed to assume) or which are terminable upon thirty (30) days notice without
payment of premium or penalty. Seller has delivered true, correct and complete
copies of the Service Contracts and each Service Contract is in full force and
effect. To the best of Seller's knowledge, neither Seller nor any other party to
any Service Contract is in default in any material respect under any of the
Service Contracts.
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(k) Seller Not a Foreign Person. Seller is not a "foreign person"
which would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
(l) Intentionally Omitted.
(m) Environmental. To Seller's knowledge, or except as may be set
forth in the Existing Environmental Reports or other written Due Diligence
Material, (i) the Property complies in all material respects with Environmental
Laws; (ii) neither the Seller nor any other person has caused any material
Release of any Hazardous Material at the Property; (iii) Seller has not received
any written notification from any governmental authority alleging a material
violation of any Environmental Law by Seller with respect to the Property.
(n) No Bankruptcy. Seller has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by Seller's creditors, suffered the
appointment of a receiver to take possession of any of Seller's assets, suffered
the attachment or other judicial seizure of any of Seller's assets, admitted in
writing its inability to pay its debts as they come due or made an offer of
settlement, extension or composition to its creditors generally.
(o) Options. No person or entity (other than Purchaser) has any
option or other right to purchase or ground lease all or any portion of the
Property.
(p) Personalty. Seller is the owner of the Personal Property and the
Intangible Property and the same shall be transferred to Purchaser free and
clear of all liens and encumbrances.
(q) OFAC. (i) Neither Seller, nor any of Seller's owners, or any
officers, directors or employees, is named as a "Specially Designated National
and Blocked Person" as designated by the United States Department of the
Treasury's Office of foreign Assets Control or as a person, group, entity or
nation designated in Presidential Executive Order 13224 as a person who commits,
threatens to commit, or supports terrorism; (ii) Seller is not owned or
controlled, directly or indirectly, by the government of any country that is
subject to a United States Embargo; (iii) Seller is not acting, directly or
indirectly, for or on behalf of any person, group, entity or nation named by the
United States treasury Department as a "Specially Designated National and
Blocked Person", or for or on behalf of any person, group, entity or nation
designated in Presidential Executive Order 13224 as a person who commits,
threatens to commit, or supports terrorism; and (iv) Seller is not a person who
commits, threatens to commit, or supports terrorism; and (iv) Seller is not
engaged in the transaction contemplated hereby directly or indirectly on behalf
of, any such person, group, entity or nation.
Each of the representations and warranties is true and
accurate as of the date of execution of this Agreement by Seller, and will be
true and accurate as of the Closing Date, and will survive the Closing for a
period of one hundred eighty (180) days, PROVIDED, HOWEVER, that nothing in the
foregoing clause shall be construed so as to in any way limit the term of
Seller's indemnification obligation under Section 3.2 above. Except as otherwise
expressly provided in this Agreement or in any documents to be executed and
delivered by Seller to Purchaser at the Closing, Seller has not made, and
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Purchaser has not relied on, any information, promise, representation or
warranty, express or implied, regarding the Property, whether made by Seller, on
behalf of Seller, or otherwise, including, without limitation, the physical
condition of the Property, the financial condition of the tenants under the
Leases, title to or the boundaries of the Property, pest control matters, soil
conditions, the presence, existence or absence of hazardous wastes, toxic
substances or other environmental matters, compliance with building, health,
safety, land use and zoning laws, regulations and orders, structural and other
engineering characteristics, traffic patterns, market data, economic conditions
or projections, past or future economic performance of the tenants or the
Property, and any other information pertaining to the Property or the market and
physical environments in which the Property is located. Purchaser acknowledges
(i) that Purchaser has entered into this Agreement with the intention of making
and relying upon its own investigation or that of Purchaser's own consultants
and representatives with respect to the physical, environmental, economic and
legal condition of the Property and (ii) that Purchaser is not relying upon any
statements, representations or warranties of any kind, other than those
specifically set forth in this Agreement or in any document to be executed and
delivered by Seller to Purchaser at the Closing, made (or purported to be made)
by Seller or anyone acting or claiming to act on behalf of Seller. Purchaser
will inspect the Property and become fully familiar with the physical condition
thereof and, subject to the terms and conditions of this Agreement and the
Closing Documents, shall purchase the Property in its "as is, where is"
condition, "with all faults," on the Closing Date. The provisions of this
paragraph shall survive the Closing.
If prior to the Closing, Purchaser obtains knowledge in
writing of any inaccuracy or breach of any representation, warranty or covenant
of Seller contained in this Agreement (a "Purchaser Waived Breach") and
nonetheless proceeds with and consummates the Closing, then Purchaser and any
Purchaser-Related Entities shall be deemed to have waived and forever renounced
any right to assert a claim for indemnification under this ARTICLE 4 for, or any
other claim or cause of action under this Agreement, at law or in equity on
account of any such Purchaser Waived Breach.
4.2 KNOWLEDGE DEFINED. All references in this Agreement to the
"knowledge of Seller" or "to Seller's knowledge" shall refer only to the actual
knowledge of Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxx and Xxxx Xxxxxxxx, who have
been actively involved in the management of Seller's business in respect of the
Property. The term "knowledge of Seller" or "to Seller's knowledge" shall not be
construed, by imputation or otherwise, to refer to the knowledge of Seller, or
any affiliate of Seller, or to any other partner, beneficial owner, officer,
director, agent, manager, representative or employee of Seller, or any of their
respective affiliates, or to impose on either of the individuals named above any
duty to investigate the matter to which such actual knowledge, or the absence
thereof, pertains. There shall be no personal liability on the part of the
individuals named above arising out of any representations or warranties made
herein or otherwise.
4.3 COVENANTS AND AGREEMENTS OF SELLER.
(a) Leasing Arrangements. During the pendency of this Agreement,
Seller will not enter into any lease affecting the Property, or modify or amend
in any respect, or terminate, the existing Leases without Purchaser's prior
written consent in each instance, which consent may be withheld in Purchaser's
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sole discretion. Each request shall be accompanied by a copy of any proposed
modification or amendment of an existing Lease or of any new lease that Seller
wishes to execute between the Effective Date and the Closing Date, including,
without limitation, a description of any Tenant Inducement Costs and leasing
commissions associated with any proposed renewal or expansion of the existing
Leases or with any such new lease, as well as any additional information
regarding such proposed transaction as Purchaser may reasonably request. At
Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs or
leasing commissions actually incurred by Seller pursuant to a renewal or
expansion of the existing Leases after the Effective Date or new lease approved
by Purchaser hereunder, and Purchaser shall assume any such new lease and shall
assume the obligations of Seller thereunder, including the obligation to pay any
Tenant Inducement Costs and leasing commissions.
(b) New Contracts. During the pendency of this Agreement, Seller
will not enter into any contract, or modify, amend, renew or extend any existing
contract, that will be an obligation affecting the Property or any part thereof
subsequent to the Closing without Purchaser's prior written consent in each
instance, which consent shall be in Purchaser's sole discretion.
(c) Operation of Property. During the pendency of this Agreement,
Seller shall, at Seller's expense, continue to operate the Property in a good
and businesslike fashion consistent with Seller's past practices.
(d) Insurance. During the pendency of this Agreement, Seller shall,
at Seller's expense, continue to maintain the current insurance policies
covering the Improvements.
(e) Environmental. Except as to any such requirements which Seller
has contested in good faith, Seller shall diligently comply with all legal
requirements pursuant to the Administrative Consent Order between Seller and the
NYSDEC dated March 30, 1998 (the "ACO") and shall obtain and deliver to
Purchaser such documentation as may be provided by the State of New York and any
of its relevant agencies demonstrating that the requirements of the ACO have
been satisfied (the "ACO Environmental Work"). For purposes of the foregoing
sentence, the terms "diligently comply with all legal requirements" shall be
deemed to include compliance with any deadlines that the NYSDEC shall impose for
the delivery of any remedial plan or investigation report to the NYSDEC, except
to the extent that Seller's failure to so comply was caused by Purchaser, any of
Purchaser's Representatives, or any force majeure event. Seller shall further
perform such remedial actions with regard to any Hazardous Materials that are
present in soils or groundwater at, on, in, under or emanating from the Property
as of the date of Closing, to the extent that Seller becomes legally required to
do so as a result of any claim by any Governmental Authority or third party
against Seller, subject to Seller's right to contest that it is required to do
so pursuant to Environmental Laws (the "Non-ACO Environmental Work"), PROVIDED,
HOWEVER, that Seller shall have no obligation hereunder to perform such remedial
actions with respect to: (i) any Hazardous Materials discovered as a result of
any investigation (other than Purchaser's Investigation to the extent that such
investigation complies with all of the requirements, conditions and limitations
set forth in Section 3.2(c) for Seller's duty to indemnify, defend and hold
harmless Indemnitees for Environmental Liabilities arising from Purchaser's
Investigation) performed by Purchaser or any of Purchaser's tenants,
contractors, agents, or invitees; and/or (ii) any Environmental Liability
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arising from Purchaser's or any of Purchaser's tenants', contractors', agents',
or invitees' negligence or exacerbation of any Hazardous Materials present at,
on, under or near the Property prior to Closing. (The ACO Environmental Work and
the Non-ACO Environmental Work shall hereinafter be referred to as the
"Environmental Work.") In performing the Environmental Work, Seller shall: (i)
keep Purchaser reasonably apprised of its remedial work activities and shall
provide Purchaser or Purchaser's designated representative with draft copies of
any workplans, reports or schedules ("Deliverables") required by any
Governmental Authority for its review and comment prior to their submission to
any Governmental Authority and any responses to said documents from any
Governmental Authority, PROVIDED, HOWEVER, that in the case of any such
documents required to be submitted to any Governmental Authority, Seller shall
have no obligation to accept any of Purchaser's comments, except as otherwise
provided in Section 3.2(e) hereof, and (ii) take such measures as are necessary
to avoid disruption to the business operations of Purchaser's tenants at the
Property, PROVIDED, HOWEVER, that Seller shall have no obligation to do so to
the extent that the cost of any measures necessary to avoid such disruptions
exceed the then fair market rent for the tenant's space plus any other
reasonable business losses incurred by the tenant for which Purchaser is held
responsible under the terms of the applicable lease; PROVIDED, FURTHER HOWEVER,
that if Seller's performance of Environmental Work is directly responsible for
Purchaser's incurring liability to tenants of the Property for any substantial
disruption of said tenants' businesses, Seller shall reimburse Purchaser for the
actual costs incurred by Purchaser, provided that Seller shall have the right to
defend Purchaser against any related claims by tenants and Purchaser agrees to
cooperate fully with Seller in connection with any such defense. Seller further
agrees that it shall be solely responsible for the payment of, and hereby
covenants to pay as necessary to invoke coverage for any claim covered
thereunder, all deductible amounts pursuant to that insurance policy currently
held by Seller, known more particularly as Xxxxxx Indemnity Insurance Company
Policy No. 4YY-002213-00 and American International Specialty Lines Insurance
Company Policy No. PLS 2026574, and shall further cause the carrier on the
latter policy to name Purchaser as an additional insured on such policy. There
foregoing covenants shall survive the Closing until such time as Seller's
indemnification obligations expire in accordance with Section 3.2(b). Further,
it shall be a precondition that prior to seeking any judicial remedy with
respect to Seller's actual or alleged breach of any of the foregoing covenants
in this Section 4.3(e), Purchaser shall first provide Seller with written notice
of such breach and provide Seller with thirty (30) days in which to cure such
breach. Seller shall further compensate Purchaser for the fair market rental
value of any otherwise leaseable space that is rendered unleaseable due to the
Seller's performance of the Environmental Work, during the period that such
space is so rendered unleaseable.
4.4 TENANT ESTOPPEL CERTIFICATE. Seller shall endeavor in good faith
(but without obligation to incur any cost or expense) to obtain and deliver to
Purchaser, at least two (2) Business Days prior to Closing, written Tenant
Estoppel Certificates in substantially the form attached hereto as EXHIBIT "K"
signed by the tenants under the Leases; and in no event shall the inability or
failure of Seller to obtain and deliver said Tenant Estoppel Certificates
(Seller having used its good faith efforts as set forth above as to the tenants
under Leases) be a default of Seller hereunder. Seller authorizes Purchaser to
contact tenants in order to obtain Tenant Estoppel Certificates. With respect to
each Tenant from which Seller fails to obtain a Tenant Estoppel Certificate,
Seller shall deliver at least two (2) Business Days prior to Closing, a written
seller estoppel executed by Seller certifying to matters set forth in the form
of Seller Estoppel Certificate attached hereto as EXHIBIT "K." After Seller
delivers any such seller estoppel to Purchaser, Seller shall have the right
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prior to Closing to substitute the subject Tenant Estoppel Certificate executed
by the subject tenant. Any seller estoppel shall provide that such seller
estoppel shall expire on the first anniversary of said seller estoppel.
4.5 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
(a) Organization, Authorization and Consents. Purchaser is a duly
organized and validly existing limited liability company under the laws of the
State of Delaware. Purchaser has the right, power and authority to enter into
this Agreement and to purchase the Property in accordance with the terms and
conditions of this Agreement, to engage in the transactions contemplated in this
Agreement and to perform and observe the terms and provisions hereof.
(b) Action of Purchaser, Etc. Purchaser has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by Purchaser
on or prior to the Closing, this Agreement and such document shall constitute
the valid and binding obligation and agreement of Purchaser, enforceable against
Purchaser in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by Purchaser, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under the terms of any
indenture, deed to secure debt, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument by which Purchaser is bound.
(d) Litigation. To Purchaser's knowledge, Purchaser has received no
written notice that any action or proceeding is pending or threatened, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
(e) No Bankruptcy. Purchaser has not made a general assignment for
the benefit of creditors, filed any voluntary petition in bankruptcy or suffered
the filing of an involuntary petition by Purchaser's creditors, suffered the
appointment of a receiver to take possession of any of Purchaser's assets,
suffered the attachment or other judicial seizure of any of Purchaser's assets,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.
(f) OFAC. (i) Neither Purchaser, nor any of Purchaser's owners, or
any officers, directors or employees, is named as a "Specially Designated
National and Blocked Person" as designated by the United States Department of
the Treasury's Office of Foreign Assets Control or as a person, group, entity or
nation designated in Presidential Executive Order 13224 as a person who commits,
threatens to commit, or supports terrorism; (ii) Purchaser is not owned or
controlled, directly or indirectly, by the government of any country that is
subject to a United States Embargo; (iii) Purchaser is not acting, directly or
indirectly, for or on behalf of any person, group, entity or nation named by the
United States Treasury Department as a "Specially Designated National and
Blocked Person", or for or on behalf of any person, group, entity or nation
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designated in Presidential Executive Order 13224 as a person who commits,
threatens to commit, or supports terrorism; and (iv) Purchaser is not engaged in
the transaction contemplated hereby directly or indirectly on behalf of, or
facilitating the transaction contemplated hereby directly or indirectly on
behalf of, any such person, group, entity or nation.
4.6 COVENANT OF PURCHASER TO COMPLY WITH ENVIRONMENTAL REMEDIATION
EASEMENT.
Purchaser acknowledges the presence of Hazardous Materials on,
under or in the Property, as disclosed in the documents provided to Purchaser in
the Existing Environmental Reports and Due Diligence Materials, and that Seller
is presently performing the ACO Environmental Work under the supervision of the
New York Department of Environmental Conservation and the New York Department of
Health. Purchaser agrees to cooperate with Seller in all respects concerning its
ongoing performance of the Environmental Work and grants to Seller an easement
for purposes of completing the Environmental Work, as more particularly set
forth in the Environmental Remediation Easement attached hereto as Exhibit K-1,
provided that nothing in this Section 4.6 shall obligate Purchaser to incur any
cost in connection with Seller's performance of the Environmental Work.
Purchaser's covenant in this SECTION 4.6 shall survive Closing.
ARTICLE 5 CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS
5.1 SELLER'S CLOSING DELIVERIES. For and in consideration of, and as a
condition precedent to Purchaser's delivery to Seller of the Purchase Price,
Seller shall obtain or execute and deliver to Purchaser at Closing the following
documents, all of which shall be duly executed, acknowledged and notarized where
required:
(a) Deed. A Bargain and Sale Deed Without Covenants Against
Grantor's Acts from Seller with respect to the Land and Improvements (the
"Deed"), subject only to the Permitted Exceptions, and executed and acknowledged
by Seller. The legal description of the Land set forth in the Deed shall be
based upon and conform to the legal description attached hereto as Exhibit "A".
If and to the extent that any of the Permitted Exceptions requires the
recitation or incorporation in any deed of any provisions of such Permitted
Exception, the Deed shall conform to such requirements;
(b) Seller Lease. Two (2) counterparts of a lease agreement (the
"Seller Lease") between Purchaser, as landlord, and Standard Motor Products,
Inc., as tenant, in substantially the form attached hereto as Schedule 5,
executed by Seller;
(c) Assignment and Assumption of Leases. Two (2) counterparts of an
assignment and assumption of the Leases and, to the extent required elsewhere in
this Agreement, the obligations of Seller under the Commission Agreements in the
form attached hereto as Schedule 1 (the "Assignment and Assumption of Lease"),
executed by Seller;
(d) Assignment and Assumption of Service Contracts. Two (2)
counterparts of an assignment and assumption of Service Contracts in the form
attached hereto as SCHEDULE 2 (the "Assignment and Assumption of Service
Contracts"), executed by Seller;
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(e) Xxxx of Sale. A xxxx of sale from Seller for the Personal and
Intangible Property of Seller in the form attached hereto as SCHEDULE 3 (the
"Xxxx of Sale"), without warranty as to the title or condition of the Personal
and Intangible Property, executed by Seller;
(f) Seller's Affidavit. An owner's affidavit from Seller in a form
reasonably requested by the Title Company and acceptable to Seller;
(g) RPT Return. The Real Property Transfer Tax Return pursuant to
Chapter 46, Title II of the New York City Administrative Code (the "RPT
Return"), together with bank or cashiers' checks from Seller, made payable to
the appropriate governmental authority in the required amount(s) (unless Seller
authorizes the Title Company and the Title Company agrees to deduct and pay such
expenses out of monies payable to Seller);
(h) NYS Tax Affidavit. The New York State Department of Taxation and
Finance Combined Real Estate Transfer Tax Return, Credit Line Mortgage
Certificate and Certification of Exemption from the Payment of Estimated
Personal Income Tax (TP-584) (7/03) and Real Property Transfer Tax Report
(RP-5217NYC) (collectively, the "NYS Tax Affidavit"), or any successor form
thereto required to be filed with respect to the New York State Real Estate
Transfer Tax, together with bank or cashiers' checks from Seller, made payable
to the appropriate governmental authority in the required amount(s) (unless
Seller authorizes the Title Company and the Title Company agrees to deduct and
pay such expenses out of monies payable to Seller);
(i) FIRPTA Certificate. A FIRPTA Certificate from Seller in the form
attached hereto as SCHEDULE 4, or in such other form as applicable laws may
require;
(j) Evidence of Authority. Such documentation as may reasonably be
required by the Title Company to establish that this Agreement, the transactions
contemplated herein, and the execution and delivery of the documents required
hereunder, are duly authorized, executed and delivered on behalf of Seller;
(k) Settlement Statement. A settlement statement setting forth the
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement;
(l) Surveys and Plans. Such surveys, site plans, plans and
specifications, and other matters relating to the Property as are in the
possession or control of Seller to the extent not theretofore delivered to
Purchaser;
(m) Certificates of Occupancy. To the extent the same are in the
possession or control of Seller, original or photocopies of certificates of
occupancy for all space within the Improvements located on the Property;
(n) Leases and Contracts. To the extent the same is in the
possession or control of Seller, original executed counterparts of the Leases
and the Service Contracts;
(o) Tenant Estoppel Certificate. Tenant Estoppel Certificates or
seller estoppel certificates, as applicable, as required by Section 4.4;
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(p) Notice of Sale to Tenant. Seller will join with Purchaser in
executing a notice, in form and content reasonably satisfactory to Seller and
Purchaser (the "Tenant Notice of Sale"), which Purchaser shall send to the
tenants under the Leases informing the tenants of the sale of the Property and
of the assignment to and assumption by Purchaser of Seller's interest in the
Leases and directing that all rent and other sums payable for periods after the
Closing under the Leases shall be paid as set forth in said notice;
(q) Notices of Sale to Service Contractors and Leasing Agents.
Seller will join with Purchaser in executing notices, in form and content
reasonably satisfactory to Seller and Purchaser (the "Other Notices of Sale"),
which Purchaser shall send to each service provider and leasing agent under the
Service Contracts assumed by Purchaser at Closing informing such service
provider of the sale of the Property and of the assignment to and assumption by
Purchaser of Seller's obligations under the Service Contracts arising after the
Closing Date and directing that all future statements or invoices for services
under such Service Contracts for periods after the Closing be directed to Seller
or Purchaser as set forth in said notices;
(r) Keys and Records. All of the keys to any door or lock on the
Property and the original tenant files, plans and specifications of the Property
excluding keys for space continuing to be occupied by Seller, and other
non-confidential books and records relating to the Property in the possession of
Seller;
(s) Seller Certificate. A certificate of Seller confirming the
continued accuracy of the representations and warranties made by Seller in this
Agreement or updating and correcting any changes to such representations and
warranties, it being agreed that any update to or change of the representations
and warranties will not be a Seller default if any such representations and
warranties (which were true when made) have become untrue due to any reason
other than an act or omission to act of Seller which violates the terms of this
Agreement which certificate shall survive the Closing for one hundred eighty
(180) days; and
(t) Other Documents. Such other documents as shall be reasonably
requested by the Title Company to effectuate the purposes and intent of this
Agreement, including as may be required by the Title Company in connection with
the issuance to Purchaser of an owner's policy, provided that such affidavits do
not impose on Seller any material liabilities not assumed by it under this
Agreement (it being agreed that an affidavit in customary form which is required
to limit the standard pre-printed exception for tenants in possession to their
rights as tenants only under written leases and to eliminate the standard
exception for inchoate mechanics' liens for work performed by Seller at Seller's
expense will not be deemed to impose material liabilities on Seller).
(u) Environmental Insurance. A fully executed insurance policy
containing substantially the same terms and conditions as described in the quote
provided in Exhibit K-2 attached hereto.
5.2 PURCHASER'S CLOSING DELIVERIES. Purchaser shall obtain or execute
and deliver to Seller at Closing the following documents, all of which shall be
duly executed, acknowledged and notarized where required:
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(a) Assignment and Assumption of Lease. Two (2) counterparts of the
Assignment and Assumption of Lease, executed by Purchaser;
(b) Assignment and Assumption of Service Contracts. Two (2)
counterparts of the Assignment and Assumption of Service Contracts, executed by
Purchaser;
(c) Notice of Sale to Tenant. The Tenant Notice of Sale, executed by
Purchaser, as contemplated in SECTION 5.1(P) hereof;
(d) Notices of Sale to Service Contractors and Leasing Agents. The
Other Notices of Sale to service providers as contemplated in SECTION 5.1(Q)
hereof;
(e) Settlement Statement A settlement statement setting forth the
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement;
(f) Evidence of Authority. A copy of resolutions of the members of
Purchaser, certified by the managing member of Purchaser to be in force and
unmodified as of the date and time of Closing and authorizing the purchase
contemplated herein and the execution and delivery of the documents required
hereunder and designating the signatures of the persons who are to execute and
deliver all such documents;
(g) Seller Lease. Two (2) counterparts of the Seller Lease, executed
by Purchaser;
(h) Transfer Documents. The RPT Return and NYS Tax Affidavit.
(i) Environmental Insurance. A fully executed insurance policy
containing substantially the same terms and conditions as described in the quote
provided in Exhibit K-2 attached hereto.
(j) Other Documents. Such other documents as shall be reasonably
requested by Seller's counsel to effectuate the purposes and intent of this
Agreement.
5.3 CLOSING COSTS. Seller shall pay the attorneys' fees of Seller, the
brokerage commission due Broker pursuant to Section 10.1 of this Agreement, the
cost of the documentary stamps or transfer taxes imposed upon the conveyance of
the Property, all fees and recording charges for releasing liens (other than the
Permitted Exceptions) which Seller has an obligation or elects to remove,
including prepayment premiums or penalties, if any, and all other costs and
expenses incurred by Seller in closing and consummating the purchase and sale of
the Property pursuant hereto. Purchaser shall pay the costs of obtaining the
Survey, the cost of recording the Deed, the cost of all title examination fees
and expenses and title insurance premiums payable with respect to the owner's
title insurance policy issued by the Title Company to Purchaser, the cost of all
endorsements to Purchaser's owner's title insurance policy, the costs of issuing
and title insurance premiums for any mortgagee title insurance policy obtained
by Purchaser, the costs of the Survey, all other recording fees on all
instruments to be recorded in connection with these transactions, the attorneys'
fees of Purchaser, and all other costs and expenses incurred by Purchaser in the
performance of Purchaser's due diligence inspection of the Property (including
without limitation appraisal costs, environmental audit and assessment costs,
and engineering review costs) and in closing and consummating the purchase and
sale of the Property pursuant hereto.
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5.4 PRORATIONS AND CREDITS. The following items in this SECTION 5.4
shall be adjusted and prorated between Seller and Purchaser as of 11:59 P.M. on
the day preceding the Closing, based upon the actual number of days in the
applicable month or year:
(a) Taxes. All general real estate taxes imposed by any governmental
authority ("Taxes") for the tax year in which the Closing occurs shall be
prorated between Purchaser and Seller with respect to the Property as of the
Closing. If the Closing occurs prior to the receipt by Seller of the tax xxxx
for the Property for applicable tax period in which the Closing occurs, Taxes
with respect to the Property shall be prorated for such calendar year or other
applicable tax period based upon the prior year's tax xxxx.
(b) Reproration of Taxes. Within thirty (30) days of receipt of
final bills for Taxes, the party receiving said final tax bills shall furnish
copies of the same to the other party and shall prepare and present to such
other party a calculation of the reproration of such Taxes based upon the actual
amount of such Taxes for the year. The parties shall make the appropriate
adjusting payment between them within thirty (30) days after presentment to
Seller of Purchaser's calculation and appropriate back-up information. The
provisions of this SECTION 5.4(B) shall survive the Closing for a period of one
(1) year after the Closing Date.
(c) Rents, Income and Other Expenses. Rents and any other amounts
paid to Seller by the tenants under the Leases (and any new lease entered into
in accordance with the terms of this Agreement) shall be prorated as of the
Closing Date and be adjusted against the Purchase Price on the basis of an
updated Rent Roll certified by Seller and dated as of the Closing, a draft of
which shall be prepared by Seller and delivered to Purchaser for Purchaser's
review and approval prior to Closing. Seller and Purchaser shall prorate all
rents, additional rent, common area maintenance charges, operating expense
contributions, tenant reimbursements and escalations, and all other payments
under the Leases (and any such new lease) received as of the Closing Date so
that at Closing Seller will receive monthly basic rent payments through the day
prior to the Closing Date and so that Seller will receive reimbursement for all
expenses paid by Seller through the day prior to the Closing Date for which
Seller is entitled to reimbursement under the Leases (and any such new lease)
(including, without limitation, Taxes) (such expenses shall be reasonably
estimated if not ascertainable as the Closing Date and then shall be re-adjusted
as provided in (f) below when actual amounts are determined), and so that the
excess, if any, is credited to Purchaser. Purchaser agrees to pay to Seller,
upon receipt, any rents or other payments by the tenants under the Leases that
apply to periods prior to Closing but which are received by Purchaser after
Closing; PROVIDED, HOWEVER, that any rents or other payments by any such tenant
received by Purchaser after Closing shall be applied first to the calendar month
during which the Closing Date occurs, then to any current amounts then owed to
Purchaser by such tenant and then to Seller for the calendar month immediately
preceding the calendar month during which the Closing Date occurs, with the
balance, if any, paid over to Seller to the extent of delinquencies existing on
the date of Closing to which Seller is entitled. It is understood and agreed
that except as provided for in the immediately preceding sentence Purchaser
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shall not be legally responsible to Seller for the collection of any rents or
other charges payable with respect to the Leases or any portion thereof which
are delinquent or past due as of the Closing Date; but Purchaser agrees that
Purchaser shall send monthly notices for a period of three (3) consecutive
months in an effort to collect any rents and charges not collected as of the
Closing Date. Seller hereby retains its right to pursue the tenants under the
Leases for sums due Seller for periods attributable to Seller's ownership of the
Property. The provisions of this Section 5.4(c) shall survive the Closing.
(d) Tenant Inducement Costs. Subject to the penultimate sentence of
this subsection (d), Seller shall pay all such Tenant Inducement Costs and
leasing commissions payable under the Lease with respect to all periods prior to
the Closing Date. If said amounts have not been paid in full on or before
Closing, Purchaser shall receive a credit against the Purchase Price in the
aggregate amount of all such Tenant Inducement Costs and leasing commissions
remaining unpaid at Closing, and Purchaser shall assume the obligation to pay
amounts payable after Closing up to the amount of such credit received at
Closing. Except as may be specifically provided to the contrary elsewhere in
this Agreement, Purchaser shall be responsible for the payment of all Tenant
Inducement Costs and leasing commissions (i) as a result of any renewals or
extensions or expansions of the existing Leases entered into after the Effective
Date hereof with the approval of Purchaser as set forth in this Agreement, and
(ii) under any new leases approved or deemed approved by Purchaser in accordance
with SECTION 4.3(A). The provisions of this SECTION 5.4(D) shall survive the
Closing.
(e) Security Deposits. Purchaser shall receive at Closing a credit
for all security deposits transferred and assigned to Purchaser at Closing in
connection with the Leases and any new lease approved or deemed approved by
Purchaser in accordance with SECTION 4.3(A) hereof, together with an inventory
of such security deposits certified by Seller at Closing.
(f) Operating Expenses; Year End Reconciliation. Personal property
taxes, installment payments of special assessment liens, vault charges, sewer
charges, utility charges, and normally prorated operating expenses actually paid
or payable by Seller as of the Closing Date shall be prorated as of the Closing
Date and adjusted against the Purchase Price, provided that within ninety (90)
days after the Closing, Purchaser and Seller will make a further adjustment for
such expenses which may have accrued or been incurred prior to the Closing Date,
but which were not paid as of the Closing Date. In addition, within ninety (90)
days after the close of the fiscal year used in calculating pass-throughs to the
tenants of operating expenses and/or common area maintenance costs under the
Leases (where such fiscal year includes the Closing Date), Seller and Purchaser
shall re-prorate on a fair and equitable basis all rents and income prorated
pursuant to this SECTION 5.4 as well as all expenses prorated pursuant to this
SECTION 5.4. All prorations of rent and other income shall be made based on the
cumulative amounts collected from the tenants under the Leases in such fiscal
year and applied first to actual expense amounts paid by Seller prior to the
Closing Date and then to Purchaser for actual expense amounts paid by Purchaser
from and after the Closing Date. The provisions of this SECTION 5.4(F) shall
survive the Closing.
(g) Other Costs and Expenses; Survival. All other costs and expenses
customarily prorated for in similar transactions (including without limitation
the cost of oil in the tank(s) on the Property) shall be apportioned in
accordance with the Customs in Respect to Title Closings of the Real Estate
Board of New York, Inc. The provisions of this Section 5.4 shall survive the
Closing for twelve (12) months.
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ARTICLE 6 CONDITIONS TO CLOSING
6.1 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The obligations of
Purchaser hereunder to consummate the transaction contemplated hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing (or at such earlier time
as may be provided below), any of which may be waived by Purchaser in its sole
discretion at or prior to the Closing Date:
(a) Seller shall have performed, in all material respects, all
covenants, agreements and undertakings of Seller contained in this Agreement;
(b) All representations and warranties of Seller as set forth in
this Agreement shall be true and correct in all material respects as of the date
of the Closing; and
(c) In the event any condition in clauses (a) and (b) of this
SECTION 6.1 has not been satisfied (or otherwise waived by Purchaser) prior to
or on the Closing Date (as the same may be extended or postponed as provided in
this Agreement), Purchaser shall have the right, in its sole discretion, to
terminate this Agreement by written notice to Seller given prior to the Closing,
whereupon (i) Escrow Agent shall return the Xxxxxxx Money to Purchaser; and (ii)
except for those provisions of this Agreement which by their express terms
survive the termination of this Agreement, no party hereto shall have any other
or further rights or obligations under this Agreement.
6.2 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligations of
Seller hereunder to consummate the transactions contemplated hereunder shall in
all respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing (or at such earlier time
as may be provided below), any of which may be waived by Seller in Seller's sole
discretion by written notice to Purchaser at or prior to the Closing Date:
(a) Purchaser shall have paid and Seller shall have received the
Purchase Price, as adjusted pursuant to the terms and conditions of this
Agreement, which Purchase Price shall be payable in the amount and in the manner
provided for in this Agreement;
(b) Purchaser shall have performed, in all material respects, all
covenants, agreements and undertakings of Purchaser contained in this Agreement;
and
(c) All representations and warranties of Purchaser as set forth in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement.
ARTICLE 7 CASUALTY AND CONDEMNATION
7.1 CASUALTY. Risk of loss up to and including the Closing Date shall
be borne by Seller. In the event of any immaterial damage or destruction to the
Property or any portion thereof, Seller and Purchaser shall proceed to close
under this Agreement, and Purchaser will receive (and Seller will assign to
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Purchaser at the Closing Seller's rights under insurance policies to receive)
any insurance proceeds (including any rent loss insurance applicable to any
period on and after the Closing Date) due Seller as a result of such damage or
destruction (less any amounts reasonably expended for restoration or collection
of proceeds) and assume responsibility for such repair, and Purchaser shall
receive a credit at Closing for any deductible amount under said insurance
policies. For purposes of this Agreement, the term "immaterial damage or
destruction" shall mean such instances of damage or destruction of the Property:
(i) which can be repaired or restored at a cost of $500,000.00 or less; and (ii)
which can be restored and repaired within one hundred eighty (180) days from the
date of such damage or destruction.
In the event of any material damage or destruction to the
Property or any portion thereof, Purchaser may, at its option, by notice to
Seller given within the earlier of twenty (20) days after Purchaser is notified
by Seller of such damage or destruction, or the Closing Date, but in no event
less than twenty (20) days after Purchaser is notified by Seller of such damage
or destruction (and if necessary the Closing Date shall be extended to give
Purchaser the full 20-day period to make such election): (i) terminate this
Agreement, whereupon Escrow Agent shall immediately return the Xxxxxxx Money to
Purchaser, or (ii) proceed to close under this Agreement, receive (and Seller
will assign to Purchaser at the Closing the rights of Seller under insurance
policies to receive) any insurance proceeds (including any rent loss insurance
applicable to the period on or after the Closing Date) due Seller as a result of
such damage or destruction (less any amounts reasonably expended for
restoration), and assume responsibility for such repair, and Purchaser shall
receive a credit at Closing for any deductible amount under said insurance
policies. If Purchaser fails to deliver to Seller notice of its election within
the period set forth above, Purchaser will conclusively be deemed to have
elected to proceed with the Closing as provided in clause (ii) of the preceding
sentence. If Purchaser elects or is deemed to have elected clause (ii) above,
Seller will cooperate with Purchaser after the Closing to assist Purchaser in
obtaining the insurance proceeds from the insurers of Seller. For purposes of
this Agreement "material damage or destruction" shall mean all instances of
damage or destruction that are not immaterial, as defined herein.
7.2 CONDEMNATION. If, prior to the Closing, all or any part of the
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received written notice that any condemnation
action or proceeding with respect to the Property is contemplated by a body
having the power of eminent domain (collectively, a "Taking"), Seller shall give
Purchaser immediate written notice of such Taking. In the event of any
immaterial Taking with respect to the Property or any portion thereof, Seller
and Purchaser shall proceed to close under this Agreement. For purposes of this
Agreement, the term "immaterial Taking" shall mean such instances of Taking of
the Property: (i) which do not result in a taking of any portion of the building
structure of the building occupied by tenants on the Property; (ii) which do not
result in a decrease in the number of parking spaces at the Property (taking
into account the number of additional parking spaces that can be provided within
180 days of such Taking); and (iii) which are not so extensive as to allow the
tenants under the Leases to terminate the Leases or xxxxx or reduce rent payable
thereunder.
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In the event of any material Taking of the Property or any
portion thereof, Purchaser may, at its option, by written notice to Seller given
within thirty (30) days after receipt of such notice from Seller, elect to
terminate this Agreement, or Purchaser may choose to proceed to close. If
Purchaser chooses to terminate this Agreement in accordance with this SECTION
7.2, then the Xxxxxxx Money shall be returned immediately to Purchaser by Escrow
Agent and the rights, duties, obligations, and liabilities of the parties
hereunder shall immediately terminate and be of no further force and effect,
except for those provisions of this Agreement which by their express terms
survive the termination of this Agreement. For purposes of this Agreement
"material Taking " shall mean all instances of a Taking that are not immaterial,
as defined herein.
If Purchaser does not elect to, or has no right to, terminate
this Agreement in accordance herewith on account of a Taking, this Agreement
shall remain in full force and effect and the sale of the Property contemplated
by this Agreement, less any interest taken by eminent domain or condemnation, or
sale in lieu thereof, shall be effected with no further adjustment and without
reduction of the Purchase Price, and at the Closing, Seller shall assign,
transfer, and set over to Purchaser all of the right, title, and interest of
Seller in and to any awards applicable to the Property that have been or that
may thereafter be made for such taking. At such time as all or a part of the
Property is subjected to a bona fide threat of condemnation and Purchaser shall
not have elected to terminate this Agreement as provided in this SECTION 7.2,
(i) Purchaser shall thereafter be permitted to participate in the proceedings as
if Purchaser were a party to the action, and (ii) Seller shall not settle or
agree to any award or payment pursuant to condemnation, eminent domain, or sale
in lieu thereof without obtaining Purchaser's prior written consent thereto in
each case.
7.3 SURVIVAL. The provisions of this Article 7 shall survive Closing.
ARTICLE 8 DEFAULT AND REMEDIES
8.1 PURCHASER'S DEFAULT. If Purchaser fails to consummate this
transaction for any reason other than the default of Seller, failure of a
condition to Purchaser's obligation to close, or the exercise by Purchaser of an
express right of termination granted herein, Seller shall be entitled, as its
sole remedy hereunder, to terminate this Agreement and to receive and retain the
Xxxxxxx Money as full liquidated damages for such default of Purchaser, the
parties hereto acknowledging that it is impossible to estimate more precisely
the damages which might be suffered by Seller upon Purchaser's default, and that
said Xxxxxxx Money is a reasonable estimate of the probable loss of Seller in
the event of default by Purchaser. The retention by Seller of said Xxxxxxx Money
is intended not as a penalty, but as full liquidated damages. The right to
retain the Xxxxxxx Money as full liquidated damages is the sole and exclusive
remedy of Seller in the event of default hereunder by Purchaser, and Seller
hereby waives and releases any right to (and hereby covenant that it shall not)
xxx the Purchaser: (a) for specific performance of this Agreement, or (b) to
recover actual damages in excess of the Xxxxxxx Money. The foregoing liquidated
damages provision shall not apply to or limit Purchaser's liability for
Purchaser's obligations under SECTIONS 3.1(B), 3.1(C), 3.5 and 10.1 of this
Agreement. Purchaser hereby waives and releases any right to (and hereby
covenants that it shall not) xxx Seller or seek or claim a refund of said
Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount
and exceeds the actual damages of Seller or that its retention by Seller
constitutes a penalty and not agreed upon and reasonable liquidated damages.
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8.2 SELLER'S DEFAULT. If Seller fails to perform any of its material
obligations under this Agreement for any reason other than Purchaser's default
or the permitted termination of this Agreement by Seller or Purchaser as
expressly provided herein Purchaser shall be entitled, as its sole remedy,
either (a) to receive the return of the Xxxxxxx Money from Escrow Agent and
payment by Seller of Purchaser's Reimbursable Due Diligence Expenses (as defined
below), which return and payment shall operate to terminate this Agreement and
release Seller from any and all liability hereunder except provisions that
expressly survive a termination of this Agreement, or (b) to enforce specific
performance of the obligation of Seller to execute and deliver the documents
required to convey the Property to Purchaser in accordance with this Agreement;
it being specifically understood and agreed that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder; provided that Purchaser shall not be entitled to such remedies if
Purchaser waives any default of Seller and the Closing occurs. Purchaser
expressly waives its rights to seek damages in the event of the default of
Seller hereunder. Purchaser shall be deemed to have elected to terminate this
Agreement and to receive a return of the Xxxxxxx Money from Escrow Agent if
Purchaser fails to file suit for specific performance against Seller in a court
having jurisdiction, on or before ninety (90) days following the date upon which
the Closing was to have occurred. "Reimbursable Due Diligence Expenses" shall
mean all costs and expenses (including reasonable attorneys' fees) in an amount
not to exceed TWO HUNDRED THOUSAND DOLLARS ($200,000) incurred by Purchaser in
connection with the negotiation and preparation of this Agreement, Purchaser's
due diligence investigations of the Property and its operations and the
enforcement of this Agreement. If Seller fails to deliver all Tenant Estoppel
Certificates (but delivers Seller Estoppel Certificates in lieu thereof),
Purchaser shall not be entitled to receive the Reimbursable Due Diligence
Expenses in connection with such failure to deliver on the part of the Seller.
8.3 SURVIVAL. The provisions of this Article 8 shall survive the
termination of this Agreement.
ARTICLE 9 ASSIGNMENT
9.1 ASSIGNMENT. Subject to the next following sentence, this Agreement
and all rights and obligations hereunder shall not be assignable by any party
without the written consent of the other. Notwithstanding the foregoing to the
contrary, this Agreement and all of Purchaser's rights hereunder may be
transferred and assigned to any entity controlled by Purchaser. Any assignee or
transferee under any such assignment or transfer by Purchaser as to which the
written consent of Seller has been given or as to which the consent of Seller is
not required hereunder shall expressly assume all of Purchaser's duties,
liabilities and obligations under this Agreement (whether arising or accruing
prior to or after the assignment or transfer) by written instrument delivered to
Seller as a condition to the effectiveness of such assignment or transfer. No
assignment or transfer shall relieve the original Purchaser of any duties or
obligations hereunder, and the written assignment and assumption agreement shall
expressly so provide. For purposes of this SECTION 9.1, the term "control" shall
mean the ownership of at least fifty percent (50%) of the applicable entity.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement is not intended and shall not
be construed to create any rights in or to be enforceable in any part by any
other persons.
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ARTICLE 10 BROKERAGE COMMISSIONS
10.1 BROKER. Upon the Closing, and only in the event the Closing occurs, Seller
shall pay a brokerage commission to Xxxxxxx-Xxxxx Company of New York, Inc.
("Broker"), pursuant to a separate agreement between Seller and Broker. Broker
is representing Seller in this transaction. Seller shall and does hereby
indemnify and hold Purchaser harmless from and against any and all liability,
loss, cost, damage, and expense, including reasonable attorneys' fees actually
incurred and costs of litigation, Purchaser shall ever suffer or incur because
of any claim by any agent, salesman, or broker, whether or not meritorious, for
any fee, commission or other compensation with regard to this Agreement or the
sale and purchase of the Property contemplated hereby, and arising out of any
acts or agreements of Seller, including any claim asserted by Broker. Likewise,
Purchaser shall and does hereby indemnify and hold Seller free and harmless from
and against any and all liability, loss, cost, damage, and expense, including
reasonable attorneys' fees actually incurred and costs of litigation, Seller
shall ever suffer or incur because of any claim by any agent, salesman, or
broker, whether or not meritorious, for any fee, commission or other
compensation with respect to this Agreement or the sale and purchase of the
Property contemplated hereby and arising out of the acts or agreements of
Purchaser. This Section 10.1 shall survive the Closing until the expiration of
any applicable statute of limitations and shall survive any earlier termination
of this Agreement.
ARTICLE 11 MISCELLANEOUS
11.1 NOTICES. Wherever any notice or other communication is required or
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, hand, facsimile, or sent by U.S.
registered or certified mail, return receipt requested, postage prepaid, to the
addresses or facsimile numbers set out below or at such other addresses as are
specified by written notice delivered in accordance herewith:
PURCHASER: c/o X.X. Xxxxxx Investment Management Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: 000-000-0000
with a copy to: c/o RD Investments, LLC
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
and c/o X.X. Xxxxxx Investment Management Inc.
X.X. Xxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
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and Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
SELLER Standard Motor Products, Inc.
00-00 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Treasurer
Facsimile: (000) 000-0000
with a copy to: Standard Motor Products, Inc.
00-00 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx,
VP General Counsel and Secretary
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) Business Day following
the postmark date of such notice or other communication, (ii) sent by overnight
courier or by hand shall be deemed effectively given or received upon receipt,
and (iii) sent by facsimile shall be deemed effectively given or received on the
day of such electronic transmission of such notice and confirmation of such
transmission if transmitted and confirmed prior to 5:00 p.m. local New York, New
York time on a Business Day and otherwise shall be deemed effectively given or
received on the first Business Day after the day of transmission of such notice
and confirmation of such transmission. Refusal to accept delivery shall be
deemed delivered.
11.2 POSSESSION. Full and exclusive possession of the Property, subject
to the Permitted Exceptions and the rights of the tenants under the Leases,
shall be delivered by Seller to Purchaser on the Closing Date.
11.3 TIME PERIODS. If the time period by which any right, option, or
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled Business Day.
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11.4 PUBLICITY. The parties agree that, prior to Closing, and except
for disclosures required by law or governmental regulations applicable to such
party, no party shall, with respect to this Agreement and the transactions
contemplated hereby, contact or conduct negotiations with public officials, make
any public announcements or issue press releases regarding this Agreement or the
transactions contemplated hereby to any third party without the prior written
consent of the other party hereto. No party shall record this Agreement or any
notice hereof.
11.5 DISCHARGE OF OBLIGATIONS. The acceptance by Purchaser of the Deed
hereunder shall be deemed to constitute the full performance and discharge of
each and every warranty and representation made by Seller and Purchaser herein
and every agreement and obligation on the part of Seller and Purchaser to be
performed pursuant to the terms of this Agreement, except those warranties,
representations, covenants and agreements which are specifically provided in
this Agreement to survive Closing.
11.6 SEVERABILITY. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
11.7 CONSTRUCTION. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that this
Agreement may have been prepared by counsel for one of the parties, it being
mutually acknowledged and agreed that Seller and Purchaser and their respective
counsel have contributed substantially and materially to the preparation and
negotiation of this Agreement. Accordingly, the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any exhibits or
amendments hereto.
11.8 SALE NOTIFICATION LETTERS. Promptly following the Closing,
Purchaser shall deliver the Tenant Notice of Sale to the tenants under the
Leases, and the Other Notices of Sale to each service provider, the obligations
under whose respective Service Contracts Purchaser has assumed at Closing.
11.9 GENERAL PROVISIONS. No failure of either party to exercise any
power given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon Seller or
Purchaser unless such amendment is in writing and executed by Seller and
Purchaser. The provisions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, legal
representatives, successors, and permitted assigns. On the date of Closing,
Seller shall assign its rights and obligations hereunder to its affiliate,
Standard Motor Products, Inc., and Standard Motor Products, Inc. hereby agrees
to assume all rights, interests and obligations of this Agreement. The headings
inserted at the beginning of each paragraph are for convenience only, and do not
add to or subtract from the meaning of the contents of each paragraph. This
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Agreement shall be construed, interpreted and enforced under the laws of the
State of New York. Except as otherwise provided herein, all rights, powers, and
privileges conferred hereunder upon the parties shall be cumulative but not
restrictive to those given by law. All personal pronouns used in this Agreement,
whether used in the masculine, feminine, or neuter gender shall include all
genders, and all references herein to the singular shall include the plural and
vice versa.
11.10 ATTORNEY'S FEES. If Purchaser or Seller brings an action at law
or equity against the other in order to enforce the provisions of this Agreement
or as a result of an alleged default under this Agreement, the prevailing party
in such action shall be entitled to recover court costs and reasonable
attorney's fees actually incurred from the other.
11.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute one and the
same original. To facilitate the execution and delivery of this Agreement, the
parties may execute and exchange counterparts of the signature pages by
facsimile, and the signature page of either party to any counterpart may be
appended to any other counterpart.
11.12 EFFECTIVE AGREEMENT. The submission of this Agreement for
examination is not intended to nor shall constitute an offer to sell, or a
reservation of, or option or proposal of any kind for the purchase of the
Property. In no event shall any draft of this Agreement create any obligation or
liability, it being understood that this Agreement shall be effective and
binding only when a counterpart of this Agreement has been executed and
delivered by each party hereto.
11.13 CERTIORARI. Seller shall retain sole and absolute interest in
proceedings against The City New York and its agencies, including, but not
limited to, the New York City Department of Finance, New York City Tax
Commission and New York City Law Department, which relate to the protest or
appeal of the assessment of real property for tax years prior to the tax year in
which the Closing occurs. As such, seller shall have sole interest in and sole
authority to settle, pursue or initiate any proceedings for tax years commencing
prior to the sale of the property. Said authority shall survive the sale of the
property.
11.14 DEFEASANCE. Seller and Purchaser acknowledge that the mortgage
(the "Mortgage") presently encumbering the Property shall be defeased in
connection with the closing of the Sale. Seller and Purchaser agree to cooperate
with each other in order to attempt to effect a "New York style" defeasance of
the Mortgage and assignment of the Mortgage to Purchaser's lender. Purchaser's
obligation to cooperate with Seller's defeasance of the Mortgage shall remain in
effect notwithstanding any failure to effect the assignment of the Mortgage to
Purchaser's lender. Such cooperation on the part of Purchaser shall include,
without limitation, Purchaser's causing its lender to fund Purchaser's loan one
(1) business day prior to the actual closing of the Sale and for Purchaser to
deposit the amount Purchase Price with an escrow agent (presumably the Title
Company). The escrow agent shall be directed to invest the money in a manner
reasonably acceptable to both Seller and Purchaser and Purchaser shall be
entitled to the earnings thereon. Purchaser acknowledges that Purchaser shall
incur costs due to and in connection with such early funding of Purchaser's
loan.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day, month and year first above written.
SELLER:
SMP REAL ESTATE LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
PURCHASER:
EX II NORTHERN BOULEVARD ACQUISITION LLC,
a Delaware limited liability company
By: Excelsior, LLC, a Delaware limited
liability company, its sole member
By: X. X. Xxxxxx Investment Management Inc.,
its manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
STANDARD MOTOR PRODUCTS, INC.,
a New York corporation
(with respect to Section 11.9)
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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