4/22/97
AGREEMENT OF SALE AND PURCHASE
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AGREEMENT (herein "Agreement") dated as of the Execution Date (as
hereinafter defined) by and between NYLIFE Realty Partners I-General
Partnership D, a Delaware general partnership, having an address at 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein referred to as "Seller"),
and Xxxxx-Xxxxxx Development Company, an Ohio corporation, having an
address at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (herein referred to
as "Purchaser").
WHEREAS, Seller is the owner of (a) fee simple title to the real
property located in the County of Franklin, State of Ohio, more
particularly described on Exhibit A annexed hereto and made a part hereof
(herein referred to as the "Land"), together with the improvements located
on the Land, or on the surface or subsurface thereof (herein referred to as
the "Improvements"; the Land and Improvements being herein collectively
referred to as the "Real Property"), (b) landlord's interest in and to all
the leases of all of the Real Property with Seller as "landlord" thereunder
described in Exhibit B hereof (herein referred to as the "Leases") and (c)
the right to use the name "Newmarket" and variations thereof, all the
personal property owned by Seller, located on the Real Property, used in
the operation, leasing and management of the Real Property, and more
particularly described in Exhibit C annexed hereto and made a part hereof
(herein the "Personal Property"; the Real Property and Personal Property
being sometimes collectively referred to herein as the "Property"); and
WHEREAS, Seller is the owner of all of the right, title and interest
in and to the Property and the Leases except as they are encumbered by the
"Permitted Encumbrances" (as such term is hereinafter defined);
WHEREAS, Seller is the beneficiary of that easement reserved by or
granted to New Market Columbus Venture created by Official Records Volume
5946, Page A01, Recorder's Office, Franklin County, Ohio (the "Easement");
WHEREAS, Purchaser wishes to purchase the Real Property, Personal
Property, and the Easement, in their "as-is", "where-is" condition, and
Seller wishes to sell the Real Property, Personal Property, and the
Easement, in their "as-is", "where-is" condition on the following terms and
conditions; and
WHEREAS, Seller wishes to sell and Purchaser wishes to purchase all of
Seller's right, title and interest in the Leases, on the following terms
and conditions.
NOW, THEREFORE, Seller and Purchaser for Ten ($10.00) Dollars and
other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Agreement to Sell and Purchase
1.01 Purchaser acknowledges and agrees that the mailing, delivery
and/or negotiation of this unsigned Agreement by Seller, its agents or
attorneys shall not be deemed an offer by Seller to enter into any
transaction or to enter into any other relationship, whether on the terms
contained herein or on any other terms. This Agreement shall not be
binding upon Seller, nor shall Seller have any obligations or liabilities
hereunder or Purchaser have any rights hereunder unless and until Seller
has executed and delivered a duplicate original copy of this Agreement
executed by Seller to Purchaser. Until such execution and delivery of this
Agreement, Seller or Purchaser may terminate all negotiations and
discussions of the subject matter hereof, with or without cause and for any
reason without recourse or liability.
1.02 Subject to the terms and conditions of this Agreement, Seller
agrees to sell to Purchaser for the "Purchase Price" (as such term is
hereinafter defined), and Purchaser agrees to purchase from Seller:
(a) The Real Property together with (i) all right, title and
interest of Seller in and to any land lying in the bed of any highway,
street, road, sidewalk, alley or avenue, open or proposed, in front of,
abutting or adjoining the Property; and (ii) all and singular the
appurtenances, rights, privileges and easements in any way pertaining
thereto, including any strips and gores; in its "as-is", "where-is"
condition;
(b) All of Seller's right, title and interest in the Leases:
(c) All of Seller's right, title and interest in the Personal
Property; in its "as-is", "where-is" condition, and
(d) All of Seller's right, title and interest in the Easement in
its "as-is", "where-is" condition.
2. Purchase Price
2.01 The purchase price will be Six Million Two Hundred Thousand
Dollars and No/100 Dollars ($6,200,000.00), (herein the "Purchase Price")
payable by Purchaser as follows:
(a) Fifty Thousand Dollars and No/100 Dollars ($50,000.00) as an
xxxxxxx money deposit (together with any interest earned thereon
hereinafter referred to as the "Xxxxxxx Money Deposit") delivered to the
title company described in Section 7.01 pursuant to a separate escrow
agreement, by cashier's check, bank check or immediately available federal
funds wired to Seller pursuant to its directions on the day of delivery of
this Agreement executed by Purchaser to Seller; and
(b) Six Million Two Hundred Thousand Dollars and No/100 Dollars
($6,200,000.00) less the amount of the Xxxxxxx Money Deposit and any
credits due Purchaser under this Agreement and any charges payable by
Seller under this Agreement (the "Cash Portion"), payable by Purchaser
wiring immediately available federal funds in the amount of the Cash
Portion of the Purchase Price to Seller as directed by Seller on the
"Closing Date" as such term is hereinafter defined; and
2.02 Xxxxxxx Money Deposit. (a) The Xxxxxxx Money Deposit shall be
held by the escrow agent.
(b) In the event that the sale fails to close by reason of
Purchaser's default under this Agreement, then and in such event Seller
shall be paid the Xxxxxxx Money Deposit as liquidated damages, and
Purchaser renounces, waives and relinquishes any claim or right of
whatsoever kind or nature, in law or equity, that it might have to a return
of said sum or any portion thereof, Purchaser acknowledging that but for
the provisions of this Section 2.02 (b), Seller would not enter into this
Agreement, and Purchaser shall thereupon be released from all further
obligations hereunder.
(c) In the event that the sale fails to close because of
Seller's inability to convey title as provided herein, Purchaser's sole
right and remedy against Seller shall be to terminate this Agreement. In
the event Purchaser so terminates the Agreement, the Xxxxxxx Money Deposit
shall be returned to Purchaser, and upon the return thereof, all the
obligations of the parties shall cease and terminate. In the event of a
willful default by Purchaser hereunder the Seller's sole and only remedy
shall be to retain the xxxxxxx monies as liquidated damages. In the event
of a willful default by Seller hereunder, Purchaser shall have the right
(i) to seek specific performance of Seller's obligations under this
Agreement or (ii) to terminate this Agreement (and promptly receive a
return of the Xxxxxxx Money Deposit) and obtain damages at law as a result
of such breach, which damages shall not exceed the sum of $50,000 and,
thereafter, this Agreement shall become null and void, except for the
provisions of Article 11 hereof, and neither party to this Agreement shall
have any further rights or obligations with respect to each other
hereunder, except for the provisions of Article 11 hereof, which shall
survive the termination of this Agreement.
3. The Closing
3.01 The consummation of the transaction provided for in this
Agreement (the "Closing") shall take place on or before that date which
occurs fifteen days after the Inspection Termination Date, time being of
the essence, (the "Closing Date") at a time selected by Purchaser, and at
the office of the escrow agent, Buyer's counsel or lender's counsel, or at
such other time and place as the parties shall mutually reasonably agree in
writing. Seller and Purchaser agree to utilize the title company issuing
the title commitment described in this Agreement in an escrow closing of
this transaction.
4. Purchaser's and Seller's Representations and Warranties-
Assumption of
Risk.
4.01 Purchaser and Seller jointly and singularly represent and
warrant to each other that:
(a) Purchaser and Seller for themselves, respectively, have full
power, in accordance with law, to enter into this Agreement and to carry
out the transactions provided for herein. Neither the execution and
delivery of this Agreement nor the consummation of the sale provided for
herein will constitute a violation or breach by Purchaser or Seller of any
provision of any agreement or other instrument to which Purchaser or Seller
is a party or to which Purchaser or Seller may be subject although not a
party, or will result in or constitute a violation or breach of any
judgment, order, writ, injunction or decree issued against Purchaser or
Seller.
(b) Purchaser represents and acknowledges that it is experienced
in the ownership and operation of properties similar to the property. On
or before the Closing Date as provided in Article 6 hereof, Purchaser will
have inspected, examined, and investigated ("herein "Inspection") the
Property and the uses thereof, and reviewed the Leases to the extent deemed
necessary by Purchaser, in order to enable Purchaser to evaluate the
condition of the Property and all aspects of the Property including,
without limitation the environmental condition of the Property.
4.02 In connection with its purchase of the Property, Purchaser is
relying solely upon its or "Purchaser's Inspectors" (as such term is
hereinafter defined) Inspection of the Property and not upon any
statements, representations or warranties, written, oral, express or
implied which Seller or any of Seller's officers, agents, attorneys,
contractors, affiliates or representatives ("Seller's Related Parties") may
have made or may make (or purportedly have made or may make) other than any
representation or warranty expressly set forth in this Agreement.
4.03 As a material part of the consideration for this Agreement,
except as to any representation or warranty made by Seller in this
Agreement, Purchaser shall accept the Real Property, the Personal Property,
and the Easement on the Closing Date in their "as-is", "where-is" condition
and with all faults, and the Real Property, Personal Property, Easements,
and Leases without representations or warranties of any kind, express or
implied or arising by operation of law. Without limiting the generality of
the foregoing, in connection with the sale of the Property to Purchaser,
Seller and Seller's Related Parties have not made any, and specifically
disclaim and Purchaser accepts such disclaimer, all representations,
guaranties or warranties, express or implied, arising by operation of law,
of or relating to the Property, including without limitation, of or
relating to (a) the use, actual income or potential income, expenses,
operation, characteristics or condition of the Leases and Property or any
portions thereof, including without limitation, warranties of suitability,
liability, merchantability, tenantability, design or fitness for any
specific or a particular purpose or good and workmanlike construction, (b)
the nature, manner, construction, condition, state of repair or lack of
repair of any Improvements whether or not obvious, visible or apparent, (c)
the nature or quality of construction, structural design or engineering of
the Property, (d) the environmental condition of the Property and the
presence or absence of or contamination by Hazardous Materials, or the
compliance of the Property with regulations or laws pertaining to health or
the environment, or (e) the soil conditions, drainage, flooding
characteristics, utilities or other conditions existing in, on, under or
about the Property.
4.04 Purchaser hereby expressly assumes all risks, liabilities,
claims, damages and costs, and agrees that Seller shall not be liable for
any special, direct, indirect, consequential or other damages on and after
the Closing Date, resulting from or arising from the Leases or related to
the ownership, use, condition, location, maintenance, repair or operation
of the Property, regardless of when such occurred or may occur except
claims (a) relating to occurrences prior to the Closing Date or (b)
relating to any representation or warranty made by Seller in this Agreement
for both of which Seller shall indemnify Purchaser as expressly limited by
this Agreement. Purchaser acknowledges that any condition of the Property
which Purchaser discovers or desires to correct or improve prior to or
after the Closing Date shall be at Purchaser's sole expense if Purchaser
proceeds with this transaction. Purchaser expressly waives, to the extent
allowed by applicable law, all claims under any federal state, municipal or
local law regulation or rule that Purchaser might otherwise have against
Seller relating to the use, characteristics or condition of the Property,
except claims relating to any representation or warranty made by Seller in
this Agreement.
4.05 Seller represents (i) that the Leases are in full force and
effect and have not been modified or amended, except as set forth on
Exhibit B (ii) that there are no other agreements by and between Seller and
any tenants relating to the Leases, (iii) that Seller knows of no defaults
under the Leases either as to Seller's obligations thereunder or tenants';
and (iv) there is no Management and/or Leasing Agreement in effect for the
Property that cannot be canceled at Closing.
4.06 Seller represents that Exhibit "D" annexed hereto and made a
part hereof, consists of true copies of the most recent bills for each of
the real estate taxes and assessments affecting the Real Property.
4.07 Seller represents that to the best of its knowledge and belief
Seller has received no notice of zoning, environmental or municipal, local
or county violations, fire violations or work orders from any insurance
carrier and Seller represents and warrants that to the best of its
knowledge, it has not introduced any Hazardous Materials or other illegal
environmental condition on the Property except in amounts and in compliance
with all laws having jurisdiction.
4.08 Seller and Purchaser respectively warrant and represent that
this Agreement is a valid and binding agreement of Purchaser and Seller,
enforceable in accordance with its terms, and all instruments executed by
Purchaser and Seller pursuant to this Agreement will be valid and binding
agreements of the parties hereto.
5. Condition of Title.
5.01 Seller shall convey title to the Real Property to Purchaser by
a Limited Warranty Deed in the form annexed hereto as Exhibit E (herein the
"Deed"), assign all the right, title and interest of Seller in and to the
Leases and Security Deposits to Purchaser, and Purchaser shall assume all
the obligations and liabilities of Seller pursuant to the Leases by an
Assignment and Assumption Agreement in the form annexed hereto as Exhibit F
(the "Assignment and Assumption"), and sell all the Personal Property to
Purchaser with a Xxxx of Sale in the form annexed hereto as Exhibit H (the
"Xxxx of Sale"). Title to the Real Property shall be conveyed, and the
Personal Property sold and conveyed in their "as-is ," "where-is" condition
on the Closing Date, subject to the Leases and, upon Purchaser's approval
thereof, to the encumbrances set forth in Exhibit G annexed hereto and made
a part hereof (herein the Leases and said encumbrances referred to
collectively, as the "Permitted Encumbrances"). Seller's conveyance shall
be free and clear of all mortgages, mechanics and materialmen's liens, and
other judgments or liens securing the payment of money ("Liens") provided
that Seller is not required to remove and cure or bond over any such Liens
in excess of $100,000 in the aggregate. Seller shall have up to thirty (30)
days within which to take such action as Seller, Purchaser and Purchaser's
title insurance company deem appropriate to clear or remove said Liens and
the Closing shall be postponed for up to such thirty (30) days (the
"Adjourned Closing Date"). It a Lien is incapable of being cured within a
thirty (30) day period as set forth above, such thirty (30) day period may
be extended by Purchaser for so long as Seller continues to diligently
pursue remedying the Lien.
6. Purchaser's Inspection of the Property.
6.01 Nothing contained in this Section 6 shall be construed to
permit Purchaser to enter into possession of the Property prior to the
Closing. Notwithstanding anything to the contrary contained herein, for the
period (herein the "Inspection Period") commencing on March 21, 1997 and
ending on May 2, 1997 (herein the "Inspection Termination Date"), both
dates inclusive, Seller agrees that at reasonable times during the
Inspection Period on reasonable notice to Seller's manager of the Property,
Purchaser and its engineers, contractors, management, insurance and
environmental personal or environmental contractor (collectively referred
to herein as "Purchaser's Inspectors') may enter upon the Real Property and
make, at Purchaser's sole cost, right and expense, its due diligence with
respect to Real Property. Such due diligence shall include without
limitation review of the following documents if in Seller's possession: all
leases, soils, engineering and structural reports, environmental
assessments, title insurance policies, existing surveys, zoning evidence,
state, local and federal permits and licenses and financial statements and
any documents in Seller's possession pertaining to the operation of the
Property, which Seller agrees to provide to Purchaser within four (4)
business days after its acceptance hereof. Following reasonable notice to
Seller, Purchaser shall have the right to visit the site, and perform
additional tests or assessments and also contact any of the tenants to
discuss their leasing plans with respect to the Property.
Prior to conducting any Due Diligence at the Property, Purchaser shall
procure and thereafter maintain comprehensive general liability insurance
covering Purchaser and Seller against claims for bodily injury or death or
property damage occurring in, upon or about or resulting from the Property,
or any street, drive, sidewalk, curb or passageway adjacent thereto, in
standard form and in an amount of no less than $5,000,000 (combined single
limit), and issued by an insurance company with a rating of "a" or better
as established by Best's Rating Guide, which insurance shall include
blanket contractual liability coverage insuring contractual liability under
the indemnification paragraph set forth below (but such coverage or the
amount thereof shall in no way limit such indemnification). Prior to
conducting any Due Diligence at the Property, Purchaser shall deliver to
Seller original policies or certificates evidencing the required insurance
coverage.
Any entry upon the Property shall be performed in a manner which is
not disruptive to the normal operation of the Property and shall be subject
to the rights of any tenants or occupants of the Property. All inspections
will be conducted at reasonable times and upon reasonable advance notice to
Seller. Purchaser shall exercise and cause its employees, agents,
consultants, contractors and advisors (each, a "Purchaser Consultant") to
exercise reasonable care at all times that Purchaser shall be present upon
the Property and in the performance of Due Diligence including, without
limitation, any Invasive Tests (as hereinafter defined). Seller shall have
the right to have a representative of Seller accompany Purchaser during any
Due Diligence at the Property and any tenant interviews. If Purchaser
desires to conduct any physical inspection or testing pertaining to the
Property other than visual examination including, without limitation,
sampling of soils, water, building materials or other media (any such
inspection or testing being referred to herein as "Invasive Tests"), at
least two (2) Business Days prior thereto, Purchaser shall deliver to
Seller a notice of Purchaser's desire to conduct such Invasive Tests and a
description of the exact procedures Purchaser desires to perform, and the
identity of each Purchaser Consultant who shall be conducting such Invasive
Tests. Purchaser shall not perform any Invasive Tests unless Seller shall
have given its prior written consent thereto.
Purchaser hereby agrees to indemnify, defend and hold Seller harmless
from all liability, loss, cost, claim, damage or expense (including,
without limitation, reasonable attorneys' fees and expenses), in any way
relating to Purchaser's acts or omissions occurring in connection with or
from the conduct of any Due Diligence by Purchaser, and its employees,
agents, consultants, contractors and advisors. The provisions of this
Paragraph shall survive the closing of any sale of the Property from Seller
to Purchaser (if so consummated) or the termination of any Sale and
Purchase Agreement entered into between Seller and Purchaser with respect
to the Property.
Purchaser agrees to return all Due Diligence materials to Seller in
the event Purchaser does not consummate the transaction. Additionally,
Purchaser agrees that information and documents provided by Seller is
confidential, and Purchaser will hold and treat it in strictest confidence
and will not directly or indirectly disclose or permit any of its
employees, agents, attorneys or any other party having access to the
information to disclose its contents (except to Purchaser's proposed lender
and/or Purchaser's Inspectors) without Seller's prior written authorization
and Purchaser will not use or permit to be used this information in any
fashion or manner detrimental to the interest of Seller.
The parties hereby acknowledge that time is of the essence, and that
all Due Diligence information shall be delivered promptly to Purchaser.
In the event Purchaser makes any objection to the condition of the
Property Seller shall have no obligation to remove or cure any objection to
the state of the Property and Purchaser's only remedy hereunder shall be
(i) to complete the Closing as provided herein with no reduction in the
Purchase Price or (ii) to terminate the Agreement and receive back the
Xxxxxxx Money Deposit, and in such event this Agreement shall be
immediately terminated with neither party having any rights against the
other party hereunder. Purchaser's failure to give notice of objections
prior to the Inspection Termination Date as provided herein shall
constitute a termination of this Agreement entitling Purchaser to a return
of the Xxxxxxx Money Deposit.
7. Title Commitment and Survey.
7.01 Seller shall, at its sole cost and expense, deliver to
Purchaser within five (5) days after the execution of this Agreement (a) an
ALTA "as-built" survey for the Real Property which meets ALTA/ACSM 1992
requirements, certified to Purchaser, its lender, if any, and the title
company (herein the "Survey") in form sufficient for the title company to
remove the preprinted survey exception and (b) from Chicago Title Insurance
Company, a commitment for owner's title insurance for the Real Property
(herein the "Owner's Title Commitment") with all preprinted exceptions
deleted.
Purchaser shall notify Seller within 15 days of receipt of the later
of the survey or the Owner's Title Commitment of any exceptions, defects or
objections to title, or conditions of the Real Property disclosed in the
survey and/or Owner's Title Commitment other than the Permitted
Encumbrances or the Leases (herein Purchaser's objections, to any such
exceptions, defects or objections being collectively referred to as
"Objections" or "Objection"). Purchaser's failure to give notice of
Objections within said fifteen day period, as provided herein shall
constitute an election by Purchaser to terminate this Agreement.
7.02 After receipt of notice of any Objections, Seller in its sole
discretion shall have the option to cure or not to cure any Objections and
Violations, except unpaid taxes and easements. If Seller does elect to
cure or remove the Objections but is unable after diligent efforts to
convey to Purchaser title in accordance with the provisions of this
Agreement, or to remove Violations, by the Closing Date, Seller shall be
entitled upon written notice delivered to Purchaser prior to the Closing
Date, to an adjournment of the Closing Date not to exceed 60 days to enable
Seller to remove any Objections or Violations and to convey such title or
fulfill such conditions and Seller shall proceed promptly and diligently to
remove or cure the Objections and/or Violations within said 60 days.
7.03 In the event Seller does not elect to remove or is unable to
remove or cure any Objection to title or Violation, which Objection or
Violation is reducible to a dollar amount, in lieu of paying directly the
cost of removing such Objection or Violation, Seller may offer Purchaser a
reduction of the Purchase Price equal to the cost of removing such
Objection or Violation, in which event Purchaser at its sole option may
elect to purchase the Property at the reduced Purchase Price in lieu of
Seller's removing the Objection or Violation, or to terminate this
Agreement and receive the Xxxxxxx Money Deposit.
7.04 Nothing contained in this Article 7 shall be deemed to require
Seller to bring any action or proceeding or to take any steps to remove any
Objections or Violations or to fulfill any condition or expend any moneys
therefor, nor shall Purchaser have any right of action against Seller if
Seller elects not to remove or cure an Objection or Violation.
7.05 Subject to Section 7.03 hereof, if Seller has not so elected to
remove Obligations or Violations and/or to adjourn the Closing Date or if
at the adjourned date Seller has not removed the Objections or Violation,
this Agreement shall be terminated, and Purchaser shall receive the Xxxxxxx
Money Deposit. If this Agreement is terminated pursuant to this Section
7.05, Seller shall promptly return the Xxxxxxx Money Deposit to Purchaser
and, thereafter, the parties shall be relieved of all further liability to
one another pursuant to this Agreement and neither party shall have any
rights against the other party hereunder.
7.06 Purchaser may at its sole option at any time accept such title
as Seller can convey, without reduction of the Purchase Price or any credit
or allowance on account thereof.
7.07 The Acceptance by Purchaser of the Deed, the Xxxx of Sale and
the Assignment and Assumption Agreement shall be deemed to be full
performance of and discharge of every agreement and obligation on Seller's
part to be performed hereunder, except for any representation, indemnity,
or warranty made by Seller in this Agreement, all of which shall survive
the Closing for a period of six months from the date of Closing, it being
agreed and understood that, so long as any action based on a breach of
representation or warranty for which there is a six (6) month survival
period is commenced within six (6) months of the Closing Date, such
commencement of such action shall be deemed to toll the expiration of such
six (6) month survival period with respect to the matter complained of.
8. Adjustments and Apportionments,
8.01 At the Closing there shall be apportionments and adjustments
between Seller and Purchaser as of midnight preceding the Closing Date,
Seller to have the last day, unless otherwise provided) as follows:
(a) Seller shall pay all current and/or delinquent real estate
tax bills relating to the Property, Purchaser shall assume and receive a
credit against the Purchase Price for all non-delinquent real estate taxes
which are a lien on the Property prorated through the day prior to the
Closing, using the present tax rate if the applicable tax rate has not been
set (i.e. the balance of the 1996 calendar year taxes and the 1997 calendar
year taxes prorated to the date of Closing).
(b) Seller shall pay special taxes or assessments, if any, upon
the Property assessed or becoming a lien prior to the Closing Date.
(c) Fuel, electricity, water, sewer, gas, telephone and other
utility charges not payable directly to the utility companies by tenants of
the Property (such proration to be based upon meter readings, where
possible, within 2 days prior to the Closing Date), rents and assigned
deposits, if such deposits shall be assignable (except such metered utility
charges which Seller shall cause to be read on the business day prior to
the Closing Date and billed to Seller), Purchaser agreeing to assume all
liability for future utility payments.
(d) Amounts payable and/or prepaid under service contracts, if
any, in Seller's possession.
(e) Pre-paid rentals for periods extending beyond the Closing
Date, prepaid common area maintenance charges, tax reimbursements,
insurance reimbursements, and other prepaid charges under the tenant leases
shall be paid or credited to Purchaser at closing. Rents and other charges
in arrears, if any, shall not be adjusted. and the right to collect the
same shall be assigned to Purchaser (provided that Purchaser shall,
subsequent to Closing, remit any collections, applying any payment received
from a tenant formerly delinquent first to the rentals and other charges
due to Purchaser and the balance shall be promptly remitted to Seller). On
the Closing Date, no adjustments shall be made for percentage rentals,
except for Lechters who pays percentage rentals in lieu of base rent,
payable by tenants on account of or with respect to sales during the period
prior to Closing. Adjustments for common area charges, tax reimbursements,
and insurance reimbursements payable with respect to the period prior to
Closing, shall be made on the basis of good faith estimates of the parties
and final adjustment shall be made when precise figures are determined.
Purchaser shall pay to Seller after Closing any rents, reimbursements,
common area charges, tax and utility charges and other charges due Seller
pursuant to the Lease only when and to the extent they are received by
Purchaser and only after all amounts due Purchaser have been received by
Purchaser.
9. Insurance, Damage- Destruction, Condemnation.
9.01 If, prior to Closing, any portions of the improvements located
on the Property are damaged or destroyed ("Casualty"), or any portion of
the property is taken in condemnation, or notice thereof is received by
Seller ("Condemnation"), then:
(a) In the event (i) the estimated cost to repair or restore as
reasonably estimated by Seller is ONE HUNDRED THOUSAND ($100,000.00)
DOLLARS or less, and (ii) Seller furnishes evidence that insurance proceeds
in such amount are payable to Seller in connection with such damage, and
(iii) such event does not give any Tenant the right to terminate its Lease,
Purchaser shall be obligated to purchase the Property pursuant to this
Agreement and Seller will assign at the Closing all proceeds of insurance
and/or awards resulting from such damage, destruction or condemnation.
(b) In the event (i) the estimated cost to repair or restore, as
reasonably estimated by Seller, is in excess of ONE HUNDRED THOUSAND
($100,000.00) DOLLARS, and (ii) Seller furnishes evidence that insurance
proceeds in such amount are payable to Seller in connection with such
damage, and (iii) such event does not give any Tenant the right to
terminate its Lease, then Purchaser at its sole absolute discretion may (i)
purchase the Property pursuant to this Agreement and Seller will assign at
the Closing all proceeds of insurance and/or awards, or (ii) to terminate
this Agreement, in which event Purchaser shall receive the Xxxxxxx Money
Deposit and neither party shall have any rights against the other party
pursuant to this Agreement.
(c) In any event of Casualty or Condemnation, resulting in any
Tenant's termination of its Lease, Purchaser may terminate this Agreement.
Purchaser's failure to notifv Seller of Purchaser's non-election to proceed
with the Closing, pursuant to 9.01(a), (b), or (c) within twenty (20) days
of the Casualty or receipt of Notice of the Condemnation shall be deemed
the election by the Purchaser to terminate this Agreement.
10. Provisions with Respect to the Closing.
10.01 At the Closing:
(a) Purchaser shall pay the recording fees and taxes for
recording the Deed and Assignment and Assumption Agreement.
(b) Purchaser shall deliver to Seller the Cash Portion of the
Purchase Price as provided in Section 2.01.
(c) Seller shall pay the sales taxes if any, for the Personal
Property.
(d) Seller shall pay all state and local transfer taxes.
(e) Seller shall pay for the cost of (i) the title policy in the
amount of the purchase price, it being agreed that Purchaser shall pay for
any required endorsements, (ii) the survey, and (iii) escrow fees of the
title company.
10.02 Seller and Purchaser shall each pay the costs of its own
counsel for representation in the sale and purchase of the Property
pursuant to this Agreement.
10.03 On the Closing Date, simultaneously with the delivery to Seller
by Purchaser of the Cash Portion of the Purchase Price, Seller shall
deliver to Purchaser the following:
(a) The Deed.
(b) The Assignment and Assumption Agreement without recourse,
covenant, representation and/or warranty, except as expressly set forth in
this Agreement, as limited herein, of all of Seller's right, title and
interest in the Leases and rents due thereunder, duly executed and
acknowledged by Seller, subject only to the Permitted Encumbrances.
(c) The Xxxx of Sale for the Personal Property conveying the
Personal Property without recourse, representation or warranty.
(d) Secretary's Certificate of Seller.
(e) Originals of the Leases.
(f) Any other documents reasonably required to record the Deed.
(g) Seller's FIRPTA Affidavit in the form of Exhibit I annexed
hereto.
(h) An Assignment and Assumption of Contracts in the form
annexed hereto as Exhibit J. of all contracts, without recourse,
representation or warranty, relating to the leasing maintenance and
operation of the Real Property, together with the originals of all
contracts assigned, if available.
(i) All keys to the Real Property.
(j) To the extent not delivered prior to Closing and to the
extent available, all plans drawings and specifications for the Real
Property in the Seller's possession.
(k) An assignment of all warranties currently in existence.
(l) Mechanics' Lien Affidavit reasonably required by the title
company.
(m) Transfer of the Security Deposit described in Exhibit K
annexed hereto and made a part hereof, without additional cost or charge to
Purchaser;
(n) As Assignment of all of Seller's right, title and interest
in and to the Easement, if required.
(o) Tenant estoppels in form as set forth in Exhibit L executed
by Powerhouse Gym; Comp. U.S.A., Media Play and tenants representing at
least 75% of the remaining leasable area along with Seller's estoppel for
any tenant not responding up to the 75% requirement. (Seller shall use its
best efforts to furnish Purchaser with copies of such estoppels prior to
closing.)
(p) A Closing Statement showing all closing adjustments.
Delivery by Seller of all items relating to the operation, management
and leasing of the Real Property shall be made by leaving such items at the
Real Property.
10.04 On the Closing Date, Purchaser shall simultaneously with
delivery to Purchaser of the items described in Section 10.03 hereof:
(a) Wire to Seller as directed in writing by Seller the Cash
Portion of the Purchase Price.
(b) Deliver to Seller an original counterpart of the Assignment
and Assumption of Leases, Rents and Security Deposits described in Section
10.03 (b) hereof, executed and acknowledged by Purchaser, whereby as of the
Closing Date Purchaser shall assume all of Seller's obligations pursuant to
the Leases.
(c) Deliver to Seller for execution by Seller and delivery to
Tenants by Purchaser a notice to tenants of the sale.
(d) Deliver to Seller a Closing Statement showing all closing
adjustments.
(e) Deliver to Seller, Purchaser's counterpart of the Assignment
and Assumption of Contracts delivered by Seller pursuant to Subsection
10.03 (i) hereof.
11. Brokerage.
11.01 Seller and Purchaser hereby warrant and represent to each other
that no brokers were involved in this matter or brought about this
transaction except for Xxxxxxxx, Click, Xxxxxx, Inc. - which broker will be
paid in full at Closing by Seller.
11.02 Seller hereby indemnifies and holds Purchaser harmless against
any claims of any broker, agent or other person arising out of or in
connection with this transaction based on such broker's having dealt with
Seller. The warranties, indemnities and agreements in this Article 11 shall
survive the Closing.
11.03 Purchaser hereby indemnifies and holds Seller harmless against
any claims of any broker (other than the broker identified in 11.01), agent
or other person arising out of or in connection with this transaction based
on such broker's having dealt with Purchaser. The warranties, indemnities
and agreements in this Article 11 shall survive the Closing.
12. Certiorari.
12.01 All certiorari proceedings, if any, pending on the Closing Date
or which may be brought by Seller after the Closing Date, with respect to
the reduction of the tax assessment for fiscal tax year 1996 and earlier,
may, at Seller's election be continued or brought by Seller. Seller shall
have the right to make any settlement for fiscal tax years prior to 1997
thereof, without Purchaser's approval and Seller shall be entitled to
retain all savings and refunds obtained therefrom. Any certiorari for
fiscal tax year 1997 may be brought by either Seller or Purchaser but only
(as to Seller) with the approval of Purchaser and any settlement for fiscal
tax year 1997 shall require Purchaser's approval, which shall not be
unreasonably withheld or delayed. Purchaser and Seller agree to fully
cooperate with the other in any such certiorari proceedings.
12.02 The net amount of any reduction, if any, in the 1997 real
estate taxes, whether by way of refund, credit or other savings, shall be
apportioned between Seller and Purchaser pursuant to Article 8 hereof,
after the payment of attorneys' fees, reasonable experts' fees and other
disbursements and expenses reasonably incurred by Seller and Purchaser in
connection with obtaining same. Any amounts due Tenant pursuant to the
Leases as a result of any such reduction shall be apportioned between
Purchaser and Seller as proceeds in Article 8 hereof. Seller shall be
responsible for all Tenant refunds due Tenants as a result of any reduction
for fiscal tax year 1996 or earlier.
12.03 The provisions of this Article 12 shall survive the Closing.
13. Notices.
13.01 All notices, deliveries and other communications given under or
pursuant to this Agreement shall be in writing and shall be sent by express
overnight mail, registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
Seller: New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Associate General Counsel
With a Greystone Realty Corporation
copy to: 000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx Xxxxxx
Senior Vice President
Purchaser: Xxxxx-Xxxxxx Development Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
With a Xxxxxx X. Xxxxxxxx, Esquire
copy to: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
and to the attention of such other person, of which Seller or Purchaser
shall have given notice as herein provided. Any such notice, delivery or
other communication shall be deemed to have been sufficiently given for all
purposes hereof on the date shown in the receipt for the overnight express
mail or the registered or certified mail return receipt requested.
14. Miscellaneous Provisions.
14.01 This Agreement shall be governed by the laws of the State of
Ohio.
14.02 The captions of this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent
of this Agreement or any of the provisions hereof.
14.03 Neither Purchaser nor Seller shall issue any press release or
other information or give any publicity of any kind to the general public,
related to or concerning this Agreement, the purposes thereof and/or in the
case of the Purchaser the Property, without the prior written consent of
the other.
14.04 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
14.05 All Sections, the terms of which provide for survival, shall be
deemed to have been remade at the Closing Date and shall survive the
Closing Date.
14.06 This Agreement may be executed in counterparts, each of which
shall be deemed an original.
14.07 This Agreement (including the exhibits attached hereto)
contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior understandings and/or
agreements, if any, with respect thereto. This Agreement may not be
modified, changed, or supplemented, nor may any obligations hereunder be
waived, except by written instrument signed by the party to be charged or
by its agent duly authorized in writing or as otherwise expressly permitted
herein. The parties do not intend to confer any benefit hereunder on any
person, firm or corporation other than the parties hereto. The provisions
of this Section shall survive the Closing Date.
14.08 No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof or of any other agreement or provision herein contained. No
extension of time for performance of any obligations or acts shall be
deemed an extension of the time for performance of any other obligations or
acts.
14.09 The parties each agree that neither this Agreement nor any
memorandum or notice thereof shall be recorded.
14.10 Purchaser may assign its rights under this Agreement to any
entity that is owned in whole or in part by Purchaser, or any entity
affiliated with Purchaser or to a partnership or limited liability company
of which Purchaser or an affiliate of Purchaser is a general partner so
long as Purchaser remains liable under this Agreement.
14.11 The possession of the Property described herein (subject to the
rights of the tenants pursuant to the Leases) shall be delivered to
Purchaser on Closing. Nothing contained in this Section 14.11 shall be
construed to permit Purchaser to enter into possession of the Property
prior to the Closing.
14.12 Seller represents that it has received only those security
deposits described on Exhibit K annexed hereto.
14.13 Seller warrants and represents that it has not assigned any of
its right, title and interest in or to the Leases.
14.14 Wherever used in this Agreement the term, "Environmental Laws"
shall mean the Comprehensive Environmental Response Compensation and
Liability Act as amended, 42 U.S.C. Section 9601, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; any so-
called "Superfund" or "Superlien" law or any other federal, state, local
and foreign laws or regulations, codes, plans, orders, decrees, judgments,
injunctions, notices or demand letters issued, promulgated or entered
thereunder relating to pollution or protection of the environment,
(collectively "Environmental Laws") including, without limitation.
Environmental Laws relating to reclamation of land and waterways and
Environmental Laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment (including
without limitation, ambient air, surface water, ground water, land surface
or subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes or otherwise relating to worker health and safety or
public health and safety, in each case material to the ownership or
operation of the Property. In the event Purchaser's Phase I Study of the
Property, ("Study") reveals any violation of or non-compliance with
Environmental Laws, Purchaser shall notify Seller within fifteen (15) days
of receipt of the written Study of any such violations and Seller shall
have the right but not the obligation to cause such violations to be cured
or removed. Failure to notify Seller of such violations within said ten
day period shall be deemed to be a waiver of Purchaser's objections to such
violations. In the event Seller decides not to cure or have the violations
removed Purchaser may terminate this Agreement by notice to Seller and in
such event this Agreement shall be terminated with Purchaser receiving back
the Xxxxxxx Money Deposit. In the event such removal or cure can not be
affected before July 17,1997, time being of the essence, this Agreement may
be terminated by either Seller or Purchaser and in the event of such
termination Purchaser shall receive back its Xxxxxxx Money Deposit. In the
event the Study requires a Phase II Study of the Property and Purchaser
elects to obtain same rather than to terminate this Agreement, then the
Closing Date shall be extended if required by the length of time necessary
for such study.
14.15 Operation, Leasing, Management. Nothing contained in this
Agreement shall be construed to prevent Seller form continuing to operate,
lease and manage the Property or portions thereof in its current manner,
provided leasing shall be subject to Purchaser's consent which shall not be
unreasonably withheld, delayed or conditioned. Purchaser shall respond to
Seller's notice for consent within five (5) business days of receiving
notice, or consent will be deemed to have been given. Purchaser shall be
required to pay brokerage commission and tenant improvements allowance for
any new lease, renewal, expansion, holdover or sublease which takes effect
after the Effective Date of this Agreement, provided such lease, renewal,
expansion, holdover or sublease, is not in effect as of the date of this
Agreement and has been reviewed and approved by Purchaser pursuant to this
Section 14.15. Seller shall pay at closing all lease commissions relating
to any lease, sublease, or other occupancy agreement executed prior to the
date of this Agreement.
14.16 Confidentiality. Each of Seller and Purchaser agrees with the
other that it has no present intention of making any public announcement
about the purchase and sale transaction contemplated hereby or of any of
the terms hereof, including without limitation, the results of any
inspection, test, survey, or study conducted pursuant to this Agreement.
If this Agreement is terminated for any reason, Purchaser shall promptly
return to Seller all of the documents and information theretofore delivered
to Purchaser by Seller, including without limitation the copies of Leases.
title Commitment, all documents relating thereto, plus every report of
findings obtained pursuant by Purchaser or Purchaser's Inspectors pursuant
to this Agreement. At any time prior to the Closing Date, or at any time
if this Agreement is terminated, Purchaser shall not deliver any of the
documents theretofore delivered to Purchaser by Seller or obtained by
Purchaser pursuant to this Agreement, or otherwise knowingly transmit any
of the information contained, in any such documents, to any third party
except Purchaser's counsel, lender, or other advisors, provided such
individuals agree to be bound to the same burdens or confidentiality and
nondisclosure as Purchaser. The covenants set forth in this Section 14.16
shall survive the termination or closing of this Agreement.
14.17 All states and time periods for performance recited and given
in this agreement shall be deemed to be and shall be time of the essence.
14.18 Seller agrees that neither Seller, its affiliates, nor any
other party acting on its behalf shall negotiate, solicit, furnish
information to, or enter into or conduct any discussions with any other
prospective purchasers of the Property, or any portion thereof, between the
Execution Date and any termination of this Agreement in accordance with its
terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 29th day of April, 1997 (herein the "Execution Date").
SELLER:
NYLIFE Realty Partners I-General Partnership D
By: New York Life Insurance Company,
a general partner
By: Greystone Realty Corporation,
as authorized agent
By: /s/ Xxxx Xxxxx Xxxxxx
--------------------------
Name: XXXX-XXXXX XXXXXX
-------------------------
Title: SENIOR VICE PRESIDENT
------------------------
By: NYLIFE Realty Income Partners I, L.P.,
a general partner
By: NYLIFE Realty Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: XXXXX X. XXXXXXX
------------------------
Title: President
------------------------
PURCHASER:
Xxxxx-Xxxxxx Development Company,
an Ohio corporation
By: /s/ Don. X. Xxxxx III
-------------------------------
Name: Xxx X. Xxxxx III
-----------------------------
Title: President
----------------------------
The following list sets forth exhibits omitted from this Exhibit 2.1
in accordance with Item 601(b)(2) of Regulation S-K. The Registrant hereby
agrees to furnish supplementally a copy of any omitted exhibit to the
Commission upon request.
Exhibit A Land Description
Exhibit B Schedule of Leases
Exhibit C Inventory of Personal Property
Exhibit D Tax Bills
Exhibit E Limited Warranty Deed
Exhibit F Assignment and Assumption of Lessor's Interest in Leases
Exhibit G Permitted Encumbrances
Exhibit H Xxxx of Sale
Exhibit I FIRPTA
Exhibit J Assignment and Assumption of Contracts and Other
Intangibles
Exhibit K Security Deposits
Exhibit L Estoppel
