EXHIBIT 10.14
AGREEMENT TO ENTER LEASE OF REAL PROPERTY
Landmark at Eastview, Tarrytown, New York
This Agreement to Enter Lease of Real Property (this "Agreement") is
made as of the 21st day of June, 2004 (the "Effective Date") between Eastview
Holdings LLC, a Delaware limited liability company ("Eastview"), and Xxxxxxxx
Property Advisors, Inc., a California corporation ("BPA").
RECITALS:
A. Eastview's Subject Land. Eastview owns fee simple title to the
following lands (collectively, the "Subject Land"):
(1) Greenburgh Core Campus. The land in the township of
Greenburgh, New York, shown as Lot 2 on the Preliminary Greenburgh Subdivision
Site Plan prepared by Xxxx Xxxxx Consulting last dated April 13, 2004 (the
"Greenburgh Subdivision Plan"), which subdivision plan is attached hereto as
EXHIBIT A-1 and made a part hereof. Eastview has submitted the Greenburgh
Subdivision Plan to the appropriate governmental authorities in the township of
Greenburgh in order to establish said property, in accordance with applicable
laws, as consisting exclusively of separate legally subdivided lands distinct
from the lands described in clauses (2) and (3) below. The approval of said plan
subject to and in accordance with Paragraph 6.1.1 hereof sometimes is referred
to herein as the "Greenburgh Map Event". Said land, as the boundaries thereof
may be adjusted in connection with the Greenburgh Map Event, sometimes is
referred to herein as the "Greenburgh Core Campus".
(2) MSG Parcel. The land in the township of Greenburgh, New
York, shown as Lot 1 on the Greenburgh Subdivision Plan. Said land, as the
boundaries thereof may be adjusted in connection with the Greenburgh Map Event,
sometimes is referred to herein as the "MSG Parcel".
(3) Residential Parcel. The land in the township of
Greenburgh, New York shown as Lot 3 on the Greenburgh Subdivision Plan. Said
land is to be zoned for residential development. Said land, as the boundaries
thereof may be adjusted in connection with the Greenburgh Map Event, sometimes
is referred to herein as the "Residential Parcel".
(4) Mount Pleasant Core Campus. The land in the township of
Mount Pleasant, New York, shown as Lot 1 on the Mount Pleasant Full Development
Plan (Option B), prepared by Xxxx Xxxxx Consulting dated June 8, 2004 (the
"Mount Pleasant Subdivision Plan"), which subdivision plan is attached hereto as
EXHIBIT A-2 and made a part hereof (the "Mount Pleasant Core Campus"). Eastview
intends to submit the Mount Pleasant Subdivision Plan and related application
materials to the appropriate governmental authorities in the Township of Mount
Pleasant in order to:
(i) establish said property, in accordance
with the applicable laws, as consisting exclusively
of separate legally subdivided lands distinct from
the lands described in clause (5) and clause (6)
below (or subsets of land consisting exclusively of
distinct legal parcels which together comprise such
groupings of land), and
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(ii) cause the delineation and mitigation of
certain wetlands substantially in accordance with the
delineation of such wetlands as depicted on EXHIBIT
A-2 and issuance of a related wetlands permit, and
(iii) obtain site plan approval to permit
demolition of a certain existing parking lot area
located on the Retail Parcel as depicted on EXHIBIT
A-2, the demolition of sundry buildings on the Mount
Pleasant Core Campus, and the construction of a new
parking area on the Mount Pleasant Core Campus as
generally shown in the area designated on EXHIBIT A-2
and to permit other immaterial site adjustments in
accordance with Section 6.1.1 as may be required
during the review process in Mount Pleasant. The
approval of said plan in accordance with Paragraph
6.1.2 hereof sometimes is referred to herein as the
"Mount Pleasant Map Event", and the Mount Pleasant
Map Event and the Greenburgh Map Event sometimes are
referred to herein collectively as the "Map Events".
(5) Home Depot Parcel. The land in the township of Mount
Pleasant, New York shown as Lot 2 on the Mount Pleasant Subdivision Plan, which
Land is already zoned for retail development and has site plan approval. Said
land, as the boundaries thereof may be adjusted in connection with the Mount
Pleasant Map Event, sometimes is referred to herein as the "Home Depot Parcel".
(6) Retail Parcel. The land in the township of Mount Pleasant,
New York shown as Lot 3 on the Mount Pleasant Subdivision Plan, which land is
already zoned for retail development. Said land, as the boundaries thereof may
be adjusted in connection with the Mount Pleasant Map Event, sometimes is
referred to herein as the "Retail Parcel".
B. Purpose. Eastview desires to lease to BPA and BPA desires to lease
from Eastview, together with the right to purchase, the Greenburgh Core Campus
and the Mount Pleasant Core Campus (collectively, the "Leased Land"), all in
accordance with and subject to the terms of this Agreement. If the Lease Closing
occurs prior to the Greenburgh Map Event, then the Leased Land located in
Greenburgh, for purposes of defining the demised premises under the Ground
Lease, shall mean the Greenburgh Core Campus as depicted on EXHIBIT A-1 hereto.
If the Lease Closing occurs prior to the Mount Pleasant Map Event, then the
Leased Land located in Mount Pleasant for purposes of defining the demised
premises under the Ground Lease, shall mean the Mount Pleasant Core Campus as
depicted on EXHIBIT A-2 hereto.
C. Purchase of Leased Land by BPA. The parties further desire to
provide for the pursuit by Eastview of the Greenburgh Map Event and the
conveyance of the Greenburgh Core Campus to BPA upon the occurrence of the
Greenburgh Map Event and pursuit by Eastview of the Mount Pleasant Map Event and
the conveyance of the Mount Pleasant Core Campus to BPA upon the occurrence of
the Mount Pleasant Map Event, in accordance with the terms hereof and the Ground
Lease.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
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ARTICLE 1. LEASE CLOSING PROPERTY.
Subject to the terms and conditions of this Agreement, Eastview agrees
to lease pursuant to a ground lease, the principal terms of which are attached
hereto and made a part hereof as EXHIBIT B-1 (the "Ground Lease"), and purchase
and assign, pursuant to a xxxx of sale and Xxxx of Sale and Assignment of
Related Property Rights, a form of which is attached hereto and made a part
hereof as EXHIBIT B-2 (the "Xxxx of Sale and Xxxx of Sale and Assignment of
Related Property Rights"), to be executed at Lease Closing in favor of BPA, and
BPA agrees to lease, sell or take by assignment, as applicable, from Eastview,
the following property:
1.1.1 BPA shall lease from Eastview and Eastview shall
lease to BPA, the Leased Land all and singular the
rights, benefits, privileges, easements, tenements,
hereditaments, and appurtenances thereon or in
anywise appertaining to the Leased Land only:
1.1.2 Eastview shall sell and BPA shall purchase, all
buildings, improvements and fixtures (other than
fixtures owned by tenants pursuant to the Leases (as
defined below) located on the Leased Land only (the
"Improvements");
1.1.3 Eastview shall make an absolute assignment and BPA
shall take an absolute assignment of, the landlord's
interest in the "Leases," being all leases and
subleases of space or other occupancy agreements
affecting the Improvements, including without
limitation: (i) the leases and subleases affecting
the Greenburgh Core Campus or the Mount Pleasant Core
Campus existing as of the date hereof, as listed on
EXHIBIT D attached hereto and made a part hereof;
(ii) leases or other occupancy agreements pertaining
to any portion of the Leased Land which may be made
by Eastview after the date hereof and before Closing
(as defined below) as permitted by this Agreement,
and (iii) any and all related guaranties and security
received by landlord in connection therewith.
1.1.4 Eastview shall sell and BPA shall purchase the
"Personal Property," being all right, title and
interest of Eastview in and to all tangible personal
property, actually owned by Eastview now or hereafter
used exclusively in connection with the operation,
ownership, maintenance, management, occupancy or
improvement of the Leased Land including without
limitation: equipment; machinery; furniture; art
work; furnishings; office equipment and supplies
stored onsite, but excluding cash and deposits, bonds
or other security.
1.1.5 Eastview shall sell and BPA shall purchase the
"Intangible Property," being all, right, title and
interest of Eastview, if any, in and to all
intangible personal property now or hereafter used
exclusively in connection with the operation,
ownership, maintenance, management, or occupancy of
the Leased Land, including without limitation and all
subject to the terms and conditions thereof: the name
"Landmark at Eastview"; the plans and specifications
for the Improvements; warranties, indemnities,
applications, permits, approvals and licenses (to the
extent assignable and applicable in any way to the
above referenced
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Leased Land, Improvements or the Personal Property);
and insurance proceeds and condemnation awards or
claims thereto to the extent provided be assigned to
BPA hereunder.
1.2 Ground Lease. Eastview and BPA shall use commercially reasonable
efforts to agree upon a form of Ground Lease in form and substance reasonably
satisfactory to both parties based upon the principal terms set forth in Exhibit
B-1 attached hereto and made a part hereof and demising the Leased Land.
Eastview and BPA shall diligently negotiate in good faith in an effort to agree
upon such final form of the Ground Lease to be executed and delivered at the
Lease Closing. In the event the parties are unable to agree upon the form of the
Ground Lease on or prior to 12:00 P.M., New York, New York time on June 23,
2004, the Xxxxxxx Money shall be paid to BPA, and neither party shall have any
further rights or obligations under this Agreement, except for such rights and
obligations as expressly survive termination of this Agreement.
ARTICLE 2. INITIAL RENT INSTALLMENT
2.1 Initial Rent Installment. The initial rent installment to be paid
to Eastview by BPA for the Leased Land shall be NINETY EIGHT MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($98,500,000) (the "Initial Rent"), subject
to adjustment as provided in Section 2.1.1 below. The Initial Rent, as adjusted
for prorations and other adjustments as provided herein, shall be paid in cash
in the manner provided herein.
2.1.1 (a) At Lease Closing, the Escrow Agent (as defined
below) shall retain in escrow in an interest bearing
account a portion of the Initial Rent equal to ONE
MILLION AND NO/100 DOLLARS ($1,000,000.00) as a
holdback ("Holdback Amount"), to be released on the
terms and conditions set forth below, in connection
with Eastview's efforts to achieve the Map Events. At
such time as both Map Events occur, Eastview shall be
entitled to receive the Holdback Amount; provided
however, that (subject to Section 2.1.1(b) and
2.1.1(c) below) if both Map Events do not occur on or
before the date which is two years after the Lease
Closing (the "Outside Date"), the Holdback Amount,
with accrued interest thereon, shall be paid to BPA
as a reduction of the Initial Rent. Eastview shall be
entitled to receive the Holdback Amount, with accrued
interest thereon, from the Escrow Agent upon
unilateral written demand therefor received from
Eastview, together with reasonable evidence of the
satisfaction of the condition for release of the
Holdback Amount to Eastview under the terms hereof.
(b) The parties agree that Eastview shall not be
charged with any delay in the processing and/or
approval of the Map Events and/or anything required
to be done by Eastview or others in order to
accomplish the same if such delay is caused by or due
to or results from delays or limitations imposed by
any governmental authority with jurisdiction over the
activity at issue (in each instance, "Force Majeure
Delay"); it being understood and agreed that the
Outside Date for the occurrence of the Map Events
shall be extended by one (1) day for each day that
the processing and/or approval of either of
Eastview's applications is delayed by reason of a
Force Majeure Delay, so long as Eastview
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continues to pursue the map events with reasonable
commercially diligence. The term "Force Majeure
Delay" shall include delays to the extent reasonably
attributable to the issuance, by the governing
authority or agency in connection with Eastview's
application for approval of the Mount Pleasant
Subdivision Plan, of a "positive declaration" in
connection with its SEQR review, in the event of such
a "positive declaration," the parties shall proceed
with a common application for site plan approval for
their respective parcels covered by the Mount
Pleasant Subdivision Plan and the parties shall act
diligently and cooperate in good faith to achieve
such site plan approvals and the Mount Pleasant Map
Event, including, without limitation, submitting any
required studies, reports and investigations,
responding to comments and requests for additional
information and attending conferences, hearings and
meetings as needed. BPA agrees that Eastview shall be
the lead party in the pursuit of the approval of such
common application and each party shall bear its own
costs thereof to the extent attributable to such
party's specific property and shall equitably share
the costs associated therewith which are general in
nature.
2.1.2 The parties hereby acknowledge and agree that BPA has
received a credit in the amount of $1,500,000 against
the amount of rent originally agreed to be paid to
Eastview by BPA and that the amount of Initial Rent
to be received by Eastview reflects such credit on
account of certain repairs, replacements and capital
improvements that BPA believes need to be performed
at the Leased Land, including, without limitation,
repairs and capital improvements to the central plant
and powerhouse equipment and to certain parking
areas. BPA acknowledges and agrees that it has made a
full and complete study and investigation of the
capital or other improvements at the Leased Land and
that, subject to Sections 5.2 and 5.3 hereof,
Eastview shall have no responsibility whatsoever with
regard to the condition of such capital or other
improvements or the cost of repair or replacement
thereof.
2.2 Deposit of Xxxxxxx Money. Prior to 5:00 P.M., New York, New York
time on the Effective Date BPA shall deposit $500,000 in cash (such amount,
including any interest earned thereon, the "Xxxxxxx Money") with Escrow Agent in
an interest bearing account. The Escrow Agent shall hold and disburse the
Xxxxxxx Money in accordance with the escrow provisions in EXHIBIT E. At Lease
Closing, the Xxxxxxx Money shall be delivered to Eastview and shall be paid to
Eastview and applied towards the payment of the Initial Rent. The Xxxxxxx Money
shall be promptly returned to BPA upon any termination of this Agreement other
than by reason of BPA's default. Eastview and BPA agree that neither of them
shall deliver any supplemental escrow instructions to the Escrow Agent calling
for disbursement of the Xxxxxxx Money except in accordance with EXHIBIT E.
Provided such supplemental escrow instructions are not in conflict with this
Agreement as it may be amended in writing from time to time, Eastview and BPA
agree to execute such supplemental escrow instructions as may be appropriate to
enable Escrow Agent to comply with the terms of this Agreement.
2.3 Title Company and Escrow Agent. The escrow agent ("Escrow Agent")
is: Chicago Title Insurance Company, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000,
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Attn: Xxxxxx Xxxxxxx, Esq., Phone: 000-000-0000; Facsimile: (000) 000-0000. The
title company ("Title Company") is Chicago Title Insurance Company.
2.4 Lease Closing Date. The "Lease Closing Date" shall mean August 25,
2004; provided, that the Lease Closing Date shall be subject to adjustment in
accordance with this Paragraph 2.4 (including, without limitation, Eastview's
right to adjust the Lease Closing Date to the 9th day of the month under Section
2.4.3 below):
2.4.1 The parties acknowledge that BPA is in the process of
pursuing a public offering and related financings
("BPA's IPO") of approximately $450,000,000 in debt
and equity. While BPA can not assure the timing of
the public offering, BPA anticipates that the public
offering will close in August of 2004. By "close" the
parties mean that BPA has raised at least
$450,000,000 in gross proceeds as described above. If
BPA's IPO does not close on or prior to August 11,
2004, then BPA shall have the right to extend the
Lease Closing Date to a date selected by BPA that is
up to sixty (60) days after the previously identified
Lease Closing Date by delivering, at least ten (10)
business days (a business day meaning any day of the
year other than any Saturday or Sunday or any other
day on which banks located in New York, New York
generally are closed for business) prior to the
previous Lease Closing Date: (1) to Eastview and
Escrow Agent, a written election to such effect
setting forth the Lease Closing Date, and (2) to
Escrow Agent cash in the amount of $500,000, which
amount (together with interest thereon) shall be
added to and thereafter shall be treated as part of
the Xxxxxxx Money. BPA shall indemnify, defend and
hold Eastview harmless from any claims, damages,
liabilities, losses, costs, causes of action or other
litigation (including reasonable attorneys' fees and
disbursements) arising out of or resulting from BPA's
IPO, except if any such matters arise out of any
breach by Eastview of any of its representations and
warranties contained herein but subject to the
limitations on the recovery for a breach of any such
representations or warranties contained in this
Agreement.
2.4.2 From and after the closing of the IPO, BPA at all
times shall have the right, subject to Paragraph
2.4.3 below, to accelerate the Lease Closing Date by
written notice to Eastview and Escrow Agent
establishing a Lease Closing Date on a date earlier
than that previously identified (provided that the
accelerated Lease Closing Date shall be no earlier
than the 10th day immediately following the delivery
of such written notice).
2.4.3 BPA shall use reasonable good faith efforts to cause
the Lease Closing Date to occur on the 9th day of a
month but in the event that BPA is not able to cause
the Lease Closing Date to occur on the 9th day of a
month, Eastview shall have the right to adjourn the
Lease Closing Date until the following month such
that the Lease Closing Date will occur on the 9th day
of such month. In the event that BPA elects an
extended Lease Closing Date that will not occur on
the 9th day of a month, Eastview shall notify BPA in
writing within 3 business days after BPA's
notification of the extended Lease Closing Date of
Eastview's desire to adjourn the
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Lease Closing Date to a date, selected by Eastview,
occurring on the 9th day of the immediately following
month.
If the Lease Closing (as defined below) does not occur on or prior to the Lease
Closing Date (as the same may be extended in accordance with the foregoing
provisions of this Paragraph 2.4) as a result of a breach by BPA (including
without limitation a failure by BPA to close its IPO by said date, should such a
failure preclude BPA from performing its obligations to consummate the Lease
Closing on the Lease Closing Date), then Eastview shall have the right to
terminate this Agreement at the close of business on the Lease Closing Date,
upon written notice to BPA. In such event (but subject to Paragraph 3.2 hereof),
the Xxxxxxx Money shall be paid to Eastview as its sole and exclusive remedy and
neither party hereto shall have any further rights or obligations under this
Agreement except for such rights and obligations as expressly survive expiration
or earlier termination of this Agreement.
ARTICLE 3. INSPECTION
3.1 Eastview's Delivery of Specified Documents. Eastview shall provide
or make available to BPA at the Leased Land or at Eastview's office to BPA the
information and documents set forth on EXHIBIT F attached hereto and made a part
hereof (the "Property Information") within five (5) business days following the
Effective Date. Eastview agrees to cooperate with BPA and make copies, at BPA's
expense, of such documentation as BPA may reasonably request during the course
of BPA's review of the Property Information. The terms Operating Statements,
Commission Schedule and Service Contracts are defined in EXHIBIT F. Eastview
shall have the continuing obligation prior to Lease Closing to provide BPA with
any document described above and coming into Eastview's or its property
manager's possession or produced by or for Eastview after the initial delivery
of the Property Information. Under no circumstances shall BPA be entitled to
review any appraisals relating to the Leased Land, any internal financial audits
relating to the Leased Land or any other confidential internal documents or
privileged information prepared in connection with litigation or potential
litigation, or any other prior purchasers.
3.2 Due Diligence. BPA shall have through the expiration of the "Due
Diligence Period" (as hereinafter defined) in which to examine, inspect, and
investigate the Leased Land and the Property Information and, in BPA's sole and
absolute judgment and discretion, to determine, for any reason or no reason,
whether the Leased Land is satisfactory to BPA to proceed with this transaction.
Eastview shall use commercially reasonable efforts to cooperate fully with BPA
during its due diligence review. For purposes of this Agreement, the "Due
Diligence Period" shall mean the period commencing on the Effective Date and
expiring at 6:00 p.m. New York time on August 11, 2004; provided, however, that
BPA may terminate the Due Diligence Period at any time by written notice to such
effect to Eastview and Escrow Agent. BPA may terminate this Agreement pursuant
to this Paragraph 3.2 by giving written notice of termination to Eastview on or
before the last day of the Due Diligence Period. This Agreement shall continue
in full force and effect and BPA's right to terminate hereunder shall be deemed
waived if BPA does not give the written notice of termination described in the
preceding sentence. Upon such timely termination, the Xxxxxxx Money shall be
refunded to BPA immediately upon request, and all further rights and obligations
of the parties under this Agreement shall terminate except for those that
expressly survive expiration or earlier termination of this Agreement. If BPA
does not terminate this Agreement upon the expiration of the Due Diligence
Period pursuant to this Paragraph 3.2, then the Xxxxxxx Money shall be applied
at Closing against the Initial Rent payable by BPA, or in the event the Closing
does not occur, then as more particularly set forth in this Agreement. In the
event that BPA elects to
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terminate this Agreement pursuant to the terms of this Paragraph 3.2, or in the
event that this Agreement is terminated for any reason other than a material
default by Eastview, BPA agrees to promptly return to Eastview, upon receipt of
written request by Eastview, all copies and originals of all Property
Information provided to BPA by or on behalf of Eastview and all copies of such
items made by BPA or its representatives.
3.3 Access. Upon reasonable notice to Eastview, BPA and BPA's agents,
employees and representative shall have reasonable access to the Leased Land and
all Property Information that is in Eastview's or its property manager's
possession or control for the purpose of conducting surveys, architectural,
engineering, zoning, and environmental reviews, reports and studies and any
other like items reasonably required by BPA. BPA shall not conduct any invasive
or other physical sampling or testing of soil, groundwater, building materials,
or stored products or wastes at the Leased Land. All access shall be subject to
any rights of tenants, and restrictions in the Leases. BPA shall have no
authority to allow any liens to be placed against the Leased Land, and BPA shall
keep the Leased Land free and clear of any liens and will indemnify, defend, and
hold Eastview harmless from all claims asserted against Eastview as a result of
BPA's (or its agent's, employee's or representative's) entry onto the Leased
Land, including reasonable attorneys' fees incurred in connection with any
claim. BPA is not obligated under this indemnity with respect to liability
arising by reason of any existing condition of the Leased Land disclosed by
BPA's investigation. BPA's duty to indemnify, defend, and hold Eastview
harmless, and BPA's restoration obligations, in this Paragraph 3.3 shall survive
expiration or earlier termination of this Agreement, and shall not be limited by
any liquidated damage provision in this Agreement. If any inspection disturbs
the Leased Land, BPA shall restore the Leased Land to its condition before any
such inspection. Prior to Lease Closing, BPA and its agents, employees, and
representatives shall have a continuing right of reasonable access to the Leased
Land and any office where the Property Information is kept, upon reasonable
prior notice, for the purpose of examining and making copies of all Property
Information in Eastview's or its property manager's possession or control. Prior
to entry onto the Leased Land during the Due Diligence Period by BPA or its
agents. employees or representatives, BPA shall deliver to Eastview a
certificate of insurance (prepared on an insurance certificate form known as
"XXXXX 28") from an insurance company reasonably satisfactory to Eastview,
naming Eastview, iStar Financial Inc., LCOR Asset Management Limited Partnership
(and such other parties designated by Eastview) as an additional insured, which
certificate shall evidence a policy of general liability insurance written on an
occurrence basis utilizing standard unmodified coverage forms, including a
contractual liability endorsement, contractor's protective liability, property
damage and personal injury coverage providing for a total combined single limit
for bodily injury and property damage of $6,000,000.00, with a deductible of no
more than $25,000.00, employer's liability in the amount of $500,000.00 (each
accident) and the statutory limit for worker's compensation insurance. During
the Due Diligence Period, BPA may conduct tenant interviews of the five (5)
major tenants on the Leased Land; i.e., Regeneron, Emisphere, Aton, ACS and
Crompton (collectively, the "Major Tenants"), at which Eastview shall be
present, in accordance with a tenant interview schedule to which the parties
shall reasonably agree. BPA shall have the right to conduct a "walk-through" of
the Property before the Closing upon appropriate notice to Eastview and to
tenants as permitted under the Leases. In the course of its investigations, BPA
may make inquiries to third parties (other than tenants and subtenants),
including, without limitation, contractors, property managers, parties to
Service Contracts and municipal, local and other government officials and
representatives, and Eastview consents to such inquiries; provided, however,
that all communications to tenants/subtenants, government officials (when
related to environmental matters), and property management personnel shall be
coordinated exclusively through Eastview and shall not be inconsistent with the
intent of the Agreement. At
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Eastview's request and at no cost to Eastview, BPA shall provide to Eastview
copies of all reports and documents relating to the reviews performed by BPA or
BPA's agents, employees or representatives at the Leased Land. During the Due
Diligence Period, Eastview shall provide to BPA's auditors, at BPA's sole cost
and expense, access to the Property Information to allow BPA's auditors to
prepare audited financial statements for the Leased Land as required by the
Securities and Exchange Commission. At BPA's request, Eastview shall provide to
such auditors, a representation letter appropriate for a privately held company
(in form and substance reasonably acceptable to Eastview and Eastview's
accountants) with respect to the Property Information examined by such auditors
in connection with such audited financial statements. BPA agrees that BPA's
auditors are the only persons entitled to rely on the representation letter and
the representation letter shall only be addressed to BPA's auditors. Neither the
representation letter nor any information furnished by Eastview to BPA's
auditors shall confer any rights upon, or create any liability to BPA beyond the
express terms of this Agreement including, without limitation, Paragraphs 10.3
and 10.5. Notwithstanding the foregoing, Eastview is not obligated to provide or
release any Property Information to BPA's auditors other than such information
described and permitted to be disclosed, or Property Information needed to
support or prepare information described and permitted to be disclosed, pursuant
to Sections 11.9 or 11.15 hereof.
3.4 Tenant Estoppels. Eastview shall request estoppel certificates from
tenants (and subtenants) under all Leases in the form of EXHIBIT G attached
hereto and made a part hereof (the "Tenant Estoppels"), duly executed by the
tenants and subtenants, and deliver the same to BPA no later than 5 business
days prior to the expiration of the Due Diligence Period. Eastview shall use
commercially reasonably efforts to deliver the form for the Tenant Estoppels to
all tenants and subtenants no later than 15 days after the Effective Date. In no
event shall it be deemed to be an obligation of Eastview under this Agreement to
obtain executed Tenant Estoppels from such tenants. The execution by a tenant of
a form of estoppel which conforms to the requirements of such tenant's lease
rather than the form attached as Exhibit G shall nevertheless constitute an
acceptable Tenant Estoppel. Eastview shall provide BPA with copies of the Tenant
Estoppels in the form attached hereto as EXHIBIT G concurrently with the
delivery of the Tenant Estoppels to tenants.
3.5 Service Contracts; Property Management and Leasing Agreements;
Property Employees. During the Due Diligence Period, BPA shall notify Eastview
as to which Service Contracts, property management and leasing agreements BPA
will assume and which Service Contracts Eastview shall terminate at the Lease
Closing to the extent terminable. BPA shall assume the obligations arising from
and after the Lease Closing Date under those Service Contracts, property
management and leasing agreements which BPA elects to assume. Eastview shall
terminate at the Lease Closing all Service Contracts that are not so assumed by
BPA, to the extent terminable and subject to and in accordance with the
termination provisions thereof.
ARTICLE 4. TITLE AND SURVEY REVIEW
4.1 Delivery of Title Commitment and Survey. At BPA's option, BPA shall
cause Xxxx Xxxxx Consulting to provide to BPA within 45 days after the Effective
Date an updated ALTA-ACSM Urban survey of the Subject Land that clearly depicts
the location of the Subject Land, all potential portions of Leased Land (and all
separate legal lots contained therein) and all proposed easements benefiting and
burdening the Subject Land, if any, and contains a certification to BPA (and
such other parties as BPA may designate) reasonably satisfactory to BPA (the
"Survey"). Within 10 business days after the Effective Date (or as soon
thereafter as
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practicable), BPA shall cause the Title Company to deliver to BPA, at BPA's sole
cost and expense, a current, effective commitment for title insurance for the
Leased Land, together with copies of all documents referenced as exceptions
therein (collectively, the "Title Commitment") issued by the Title Company. The
Title Commitment, the documents referred to therein, and the Survey are referred
to herein collectively as the "Title Documents".
4.2 Title Review and Cure. During the Due Diligence Period, BPA shall
review title to and the condition of Leased Land as disclosed by the Title
Documents. At the Lease Closing, whether or not BPA makes any objection with
respect thereto, Eastview shall remove by payment, bonding or otherwise: (a) any
liens or encumbrances which have been voluntarily recorded or otherwise placed
by Eastview on the Leased Land following the Effective Date, unless otherwise
permitted by this Agreement, or (b) any mechanics' or materialmens' liens for
work performed on behalf of Eastview, ((a) and (b) collectively, "Required
Removal Exceptions"). Mechanics' or materialmen's liens filed for work or
material for which tenants engaged a contractor or materialman shall not be
deemed a Required Removal Exception. If BPA desires to object to any exceptions
to title set forth in the Title Commitment or state of facts shown on the Survey
other than the Permitted Exceptions (defined below) (collectively, "Defects"),
BPA shall provide to Eastview 10 business days prior to the expiration of the
Due Diligence Period, a written notice (a "Defect Notice") of all Defects that
BPA requires to be removed or resolved. Within 5 business days after delivery of
a Defect Notice to Eastview, Eastview shall notify BPA in writing (a) that
Eastview intends to cure the Defects on or prior to Closing or (b) that Eastview
does not intend to cure the Defects. If Eastview fails to notify BPA, Eastview
shall be deemed to have given notice under clause (b) above. If Eastview gives
or is deemed to have given notice pursuant to clause (b) above, BPA shall have 5
business days from the date of receipt of such notice, to notify Eastview that
BPA (x) will nevertheless proceed towards the Lease Closing under this Agreement
and take title to the Leased Land subject to the Defects or (y) terminate this
Agreement and receive a refund of the Xxxxxxx Money, with no party hereto having
any further rights or obligations under this Agreement, except for such rights
and obligations that expressly survive the expiration or earlier termination
hereof. If BPA fails to notify Eastview, BPA shall be deemed to have given
notice under clause (y) above. If after the expiration of the Due Diligence
Period, the Title Company updates the Title Commitment, or the surveyor revises
the Survey, to add or modify exceptions, or to add or modify the conditions to
obtaining any endorsement requested by BPA during the Due Diligence Period, then
BPA may terminate this Agreement and receive a refund of the Xxxxxxx Money if
Eastview does not make provision for the removal or modification of such
exceptions or provision of such endorsement reasonably satisfactory to BPA after
notification to Eastview by BPA thereof. In such case, the Lease Closing Date
shall be extended for up to 10 days in order for BPA and Eastview to determine
if such exception or endorsement issue can be resolved to BPA's reasonable
satisfaction, for Eastview to resolve such exception or ensure the applicable
endorsement can be provided, or to give BPA the opportunity to terminate this
Agreement and receive a refund of the Xxxxxxx Money if the exception is not
removed or the endorsement provided, provided, however that if such exception or
condition is not reasonably capable of cure despite diligent efforts to do so
during such 10 day period, then Eastview shall have an additional time period as
is necessary to resolve such exception or condition but in no event in excess of
30 days after the date on which Eastview is notified by BPA of such unacceptable
exception or condition. If any exception arises upon update of the Title
Commitment after the expiration of the Due Diligence Period that is a Required
Removal Exception, Eastview shall have such Required Removal Exception removed
from the Title Commitment prior to Closing.
4.3 Permitted Exceptions and Endorsements. "Permitted Exceptions" means
(i) those title exceptions listed on Schedule 5 hereto, (ii) Defects on the
Title Commitment or
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shown on the Survey accepted or deemed approved at the expiration of the Due
Diligence Period by BPA pursuant to this Agreement (but in no event shall
Permitted Exceptions include Required Removal Exceptions), (iii) any other
matters affecting title to the Leased Land and Improvements as of the end of the
Due Diligence Period, or which would be shown on a survey thereof as of the end
of the Due Diligence Period, which are not objected to as of the end of the Due
Diligence Period, (iv) real estate taxes not yet due and payable, and (v)
tenants in possession as tenants under the Leases permitted by this Agreement.
"BPA's Endorsements" shall mean, to the extent such endorsements are available
under the laws of the state in which Leased Land is located for an interest in a
leasehold estate: (1) contiguity; (2) survey (land same as survey) (3)
leasehold; (4) option; (5) standard New York; (6) deletion of arbitration and
(7) such other endorsements as BPA may require based on its review of the Title
Commitment and Survey.
4.4 ALTA Statement. Eastview shall execute at Closing an ALTA Statement
(Owner's Affidavit) and any other documents, undertakings or agreements
customarily required by the Title Company to enable it to issue to BPA the Title
Policy (as defined below) in accordance with the provisions of this Agreement
but in no event shall such documents, undertakings or agreements include an
Eastview indemnity or any other document which in Eastview's reasonable
discretion exposes Eastview to unreasonable liability, provided, however that
Eastview shall provide such documentation as is reasonably and customarily
required by the Title Company to enable the Title Company to issue to BPA a
Title Policy reasonably satisfactory to BPA..
4.5 Title and Survey Costs. BPA shall pay for the cost of the Survey,
including any revisions necessary to make the Survey conform to the requirements
of this Agreement, the standard premium for the Title Policy, including sales
tax, the cost of BPA's Endorsements, and the additional premium for any
requested extended coverage and Eastview shall have no direct or contingent
liability or otherwise to the Title Company for the issuance of such Title
Policy.
ARTICLE 5. OPERATIONS AND RISK OF LOSS
5.1 Ongoing Operations. From and after the Effective Date until the
Lease Closing or earlier termination of this Agreement:
5.1.1 Preservation of Business. Eastview shall in all
material respects cause the Leased Land to be
operated only in the ordinary and usual course of
business and consistent with past practice, shall
preserve intact the Leased Land, preserve the good
will and advantageous relationships of Eastview with
customers, suppliers, independent contractors,
employees and other persons or entities material to
the operation of its business, shall in all material
respects perform its obligations under Leases and
other agreements affecting the Leased Land and shall
not take any action or omission which would cause any
of the representations or warranties of Eastview
contained herein to become inaccurate in any material
respect or any of the covenants of Eastview to be
breached in any material respect.
5.1.2 Maintenance of Insurance. Eastview shall continue to
carry its existing insurance as described on SCHEDULE
1 through the Lease Closing Date, and shall not allow
any breach, default, termination or cancellation by
Eastview of such insurance policies or agreements to
occur or exist.
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5.1.3 New Contracts. From and after the Effective Date,
without BPA's prior written consent in each instance,
such consent not to be unreasonably withheld,
Eastview will not enter into or amend, terminate,
waive any default under, or grant concessions
regarding any contract or agreement that will be an
obligation affecting the Leased Land or binding on
BPA after the Lease Closing, except for such
contracts or agreements which are in the ordinary
course of business and terminable on not more than 30
days' notice.
5.1.4 Leasing Arrangements. Following the Due Diligence
Period, Eastview will not enter into any Lease, or
amend, terminate, waive any default under, grant
concessions regarding, or incur any obligation for
leasing commissions or otherwise in connection with
any Lease without BPA's prior written consent in each
instance, such consent not to be unreasonably
withheld. BPA shall approve or disapprove all of the
above mentioned within 3 business days after
Eastview's request or such approval. In the event BPA
fails to respond to Eastview with its approval or
disapproval within such 3 day period, then BPA shall
be deemed to have approved thereof. If BPA
disapproves any such Lease, Eastview shall be
entitled to a credit at the Lease Closing equal to
the rent and additional rent that would have been
payable under the proposed Lease through the Lease
Closing, less prorated brokerage commissions.
5.1.5 Third Party Agreements. From and after the Effective
Date, and continuing through the Lease Closing or the
termination of this Agreement, Eastview shall not
enter into agreements with third parties ("Third
Party Agreements") which would affect the Greenburgh
Core Campus or the Mount Pleasant Core Campus except
with prior written approval of BPA, such approval not
to be unreasonably withheld, except for any such
Third Party Agreements which are in the ordinary
course of business and terminable on not more than 30
days' notice. BPA shall approve or disapprove such
Third Party Agreements within 3 business days after
Eastview's request for approval thereof. In the event
that BPA fails to respond to Eastview with its
approval or dissaproval within such 3 day period,
then BPA shall be deemed to have approved such Third
Party Agreements.
5.1.6 Removal and Replacement of Tangible Personal
Property. Eastview will not remove any Tangible
Personal Property unless it is replaced with a
comparable item of equal quality and quantity as
existed as of the time of such removal.
5.1.7 Maintenance of Permits. Eastview shall maintain in
existence all material licenses, permits and
approvals, if any, in its name necessary or
reasonably appropriate to the ownership, operation or
improvement of the Leased Land.
5.1.8 Notices. Eastview shall promptly deliver to BPA
copies of any material notices received by it or
given by it after the Effective Date and prior to the
Lease Closing Date under any Leases, Service
Contracts, property
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management or leasing agreements or any other
contracts, agreements, permits, licenses or the like
affecting the Leased Land or the operation or use
thereof.
5.1.9 Notification of Subsequent Events. If, prior to
Closing, Eastview becomes aware of any event or
change in circumstances after the Effective Date,
which would have a material adverse affect on the
value of the Leased Land, BPA's contemplated use,
operation or development of the Leased Land
(including, without limitation, any default by
Eastview hereunder or a tenant under any of the
Leases) or would cause any representation or warranty
contained herein to be false or misleading in any
material respect, Eastview shall promptly notify BPA
in writing of such event or change in circumstances.
5.1.10 Existing Mortgage. Eastview covenants and agrees to
comply with the terms of the documents evidencing or
securing any existing mortgage securing a loan
encumbering the Leased Land.
5.2 Damage. All risk of loss with respect to the Leased Land shall
remain with Eastview until the Lease Closing, when full risk of loss with
respect to Leased Land shall pass to BPA. Eastview shall give BPA written notice
of any damage to the Leased Land, describing such damage, whether such damage is
covered by insurance and the estimated cost of repairing such damage within 3
business days after the occurrence thereof. If the cost to repair any such
damage is less than or equal to $3,000,000 ("Immaterial Damage"), then Eastview
shall credit BPA at Lease Closing in an amount equal to the applicable
deductible under Eastview's insurance policy that will insure the Immaterial
Damage and assign to BPA the right to collect all insurance proceeds payable
under such insurance policy. If the cost to repair such damage is greater than
$3,000,000 or a Major Tenant terminates its material Lease as permitted therein
as a result of such damage ("Material Damage"), BPA may elect by notice to
Eastview given within 10 business days after BPA is notified of such damage (and
the Closing shall be extended, if necessary, to give BPA such 10 day period to
respond to such notice) to proceed in the same manner as in the case of
Immaterial Damage or to terminate this Agreement, in which event the Xxxxxxx
Money shall be returned to BPA and the parties hereto shall have no further
rights or obligations under this Agreement except for such rights and
obligations as expressly survive the expiration or earlier termination hereof.
If Material Damage is not covered by Eastview's existing insurance, then
Eastview shall not be obligated to restore the Material Damage or to credit BPA
for the cost of restoration and BPA shall have the right to terminate this
Agreement and obtain a refund of the Xxxxxxx Money with the parties hereto
having no further rights or obligations under this Agreement, except for such
rights and obligations that expressly survive the expiration or earlier
termination of this Agreement. An affiliate of Eastview may be engaged as
Eastview's contractor so long as BPA approves the engagement of such contractor.
This Paragraph is intended to supplement and supercede New York General
Obligations Law Section 5-1311.
5.3 Condemnation. Eastview shall promptly give BPA written notice of
any eminent domain proceedings that are contemplated, threatened or instituted
with respect to the Leased Land within 5 business days after the occurrence or
Eastview's knowledge thereof. Eastview has notified BPA of (i) the study by New
York State Department of Transportation regarding the possible realignment or
alternate route for Route 9A including the 100C overpass along the southeast
boarder of the Leased Land and (ii) the Proposed Gas Line (as defined in
Paragraph 10.1.2 below.) By notice to Eastview given within 10 business days
after BPA receives notice of
13
proceedings in eminent domain that are contemplated, threatened or instituted by
any body having the power of eminent domain with respect to the Leased Land, BPA
may elect to terminate this Agreement or proceed under this Agreement, and if
necessary the Lease Closing Date shall be extended to give BPA the full 10
business day period to make such election. If BPA elects to proceed under this
Agreement, Eastview shall, at the Closing, assign to BPA its entire right, title
and interest in and to any condemnation award, and BPA shall have the right
prior to Lease Closing to negotiate and otherwise deal with the condemning
authority in respect of such matter.
ARTICLE 6. SUBDIVISION
6.1 Subdivisions. The parties hereto acknowledge and agree that (a)
Eastview has filed an application for subdivision of the Subject Land located in
Greenburgh in accordance with the Greenburgh Subdivision Plan in order to
establish each of the Greenburgh Core Campus, the MSG Parcel and the Residential
Parcel as a legally subdivided separate parcel, and (b) Eastview intends to
proceed with the subdivision of the Subject Land located in Mount Pleasant
substantially in accordance with the Mount Pleasant Subdivision Plan, which may
include, inter alia, variations in the lot lines thereof, in order to (i)
establish each of the Mount Pleasant Core Campus, the Home Depot Parcel and
Retail Parcel as a legally subdivided separate parcel, (ii) cause the
delineation and mitigation of certain wetlands substantially in accordance with
the delineation of such wetlands as depicted on EXHIBIT A-2 and issuance of a
related wetlands permit and (iii) obtain site plan approval to permit demolition
of a certain existing parking lot area located on the Retail Parcel as depicted
on EXHIBIT A-2, the demolition of sundry buildings on the Mount Pleasant Core
Campus, the construction of a new parking area on the Mount Pleasant Core Campus
as generally shown in the area designated on EXHIBIT A-2 and to permit other
immaterial site adjustments in accordance with Section 6.1.1 as may be required
during the review process in Mount Pleasant. In furtherance thereof, the parties
hereto hereby agree as follows:
6.1.1 Subdivision Approval Process.
(a) From and after the Effective Date, and subject to
the terms and conditions hereof, Eastview agrees to
use reasonable commercial efforts to obtain the
following:
(i) subdivision approval, from all required
governmental authorities, for the Subject Land
located in Greenburgh of a subdivision map
substantially in accordance with the Greenburgh
Subdivision Plan. Except as otherwise agreed by BPA,
which agreement shall not be unreasonably withheld,
such subdivision approval (A) shall not impose upon a
developer of the Greenburgh Core Campus any further
material conditions upon the development and use of
the Greenburgh Core Campus beyond any such conditions
presently applying thereto pursuant to the existing
Greenburgh Site Plan approval, and (B) shall not
change in any material respect any lot line on the
Greenburgh Subdivision Plan or make other material
variations, additions or changes thereto (such
approvals referred to herein as the "Greenburgh Map
Event"); and
(ii) subdivision approval, from all required
governmental authorities, for the Subject Land
located in Mount Pleasant of a
14
subdivision map substantially in accordance with the
Mount Pleasant Subdivision Plan. Except as otherwise
agreed by BPA, which agreement shall not be
unreasonably withheld, such subdivision approval (A)
shall be accompanied by the wetland permit
contemplated by Recital A(4)(ii) of this Agreement;
(B) shall include approval of the demolition and
parking lot relocation contemplated by Recital
A(4)(iii) of this Agreement; (C) shall not impose
upon the developer of the Mount Pleasant Core Campus
any material conditions to the development in use of
the Mount Pleasant Core Campus which are
disproportionate to those imposed upon the Home Depot
Parcel or the Retail Parcel, and (D) shall not change
in any material respect any lot line on the Mount
Pleasant Subdivision Plan or make other material
variations, additions or changes thereto (such
approvals referred to herein as the "Mount Pleasant
Map Event").
(b) BPA shall cooperate with Eastview in the pursuit
of the Greenburgh Map Event and the Mount Pleasant
Map Event, to the extent requested to do so,
including, without limitation, BPA's compliance with
the Greenburgh site plan approval. Eastview shall
bear all costs incurred in pursuing the Map Events,
except that (i) BPA shall bear any reasonable costs
incurred in cooperating with Eastview in the pursuit
of the Map Events as contemplated hereby, and (ii) in
the event of a "positive declaration" as described in
Section 2.1 of this Agreement, then the cost sharing
provisions of Section 2.1 shall apply. During the
course of Eastview's pursuit of the Map Events,
Eastview shall provide brief periodic reports (at
least as frequently as once every calendar month) to
BPA generally summarizing the progress being made by
Eastview in pursuing the Map Events, the nature of
any new circumstances reasonably anticipated to pose
as obstacles to the achievement of the Map Events,
and the anticipated schedule for achievement of the
Map Events. Eastview also shall endeavor to provide
BPA with advance notice of meetings with governmental
officials that may be pertinent to the pursuit of the
Map Events, and Eastview shall provide BPA with an
opportunity to participate in such meetings, to the
extent reasonably feasible to do so.
6.1.2 Certain Site Plans. Subject to Section 2.1.1(b)
hereof, until such time as the Mount Pleasant Map
Event occurs, Eastview agrees not to make any
applications for site plan approval with respect to
the Retail Parcel and BPA agrees not to make any
applications for site plan approval with respect to
the Mount Pleasant Core Campus.
6.1.3 Easements and Restrictions Related to Division of the
Subject Land. In furtherance of the contemplated Map
Events and separation of the Leased Land from the
remainder of the Subject Land, BPA and Eastview shall
negotiate in good faith mutually acceptable, in each
party's reasonable discretion, reciprocal and other
easements necessary and appropriate for BPA's
contemplated use, operation and development of the
Leased Land by BPA and Eastview's land by Eastview
(the "Easements"). Such easements shall contain
provisions
15
for location, sharing of expenses and maintenance
charges and customary indemnifications acceptable to
Eastview and BPA, in their reasonable discretion.
Eastview shall deliver to BPA a proposed list of
necessary and appropriate Easements as soon as
practicable after the Effective Date for BPA's
review, which may include easements for drainage,
wetlands mitigation, access and slopes. Eastview
shall use commercially reasonable efforts to deliver
to BPA prior to the expiration of the Due Diligence
Period, proposed forms of such easements, including
any reciprocal easement agreements, necessary for the
Leased Land. The Easements and restrictions entered
into subsequent to the Lease Closing shall include,
without limitation, the following: (a) Greenburgh
Core Campus water main agreements; (b) Mount Pleasant
water main agreements; and (c) Mount Pleasant
temporary parking agreements, which shall be subject
to the reasonable approval of both parties. With
regard to the Mount Pleasant temporary parking
agreement referred to above which is applicable to
the Retail Parcel, BPA agrees that it shall be
required to abandon the use of the parking area in
the Retail Parcel upon completion of construction of
BPA's contemplated parking improvements on the Mount
Pleasant Core Campus, but no later than twelve (12)
months (such time period being subject to delay
caused by or due to or resulting from delays or
limitations imposed by any governmental authority
with jurisdiction over the activity at issue (a "BPA
Force Majeure Delay")) following the Mount Pleasant
Map Event with the understanding that BPA shall act
diligently and cooperate with Eastview in an effort
to complete the construction of BPA's parking
improvements as expeditiously as possible. BPA shall
cooperate with Eastview in good faith to commence
work for the pursuit of any governmental approvals
necessary to construct such parking improvements
within 30 days after the occurrence of the Mount
Pleasant Map Event (such time period being subject to
BPA Force Majeure Delays). It is hereby understood
and agreed that the date for completion or
commencement of construction of the temporary parking
area described above shall be extended by one (1) day
for each day that such construction or commencement
is delayed by reason of a BPA Force Majeure Delay.
ARTICLE 7. CONDITIONS PRECEDENT; DEFAULT AND REMEDIES
7.1 Conditions to the Lease Closing. In addition to all other
conditions and obligations set forth herein, the obligation of Eastview, on the
one hand, and BPA, on the other hand, to consummate the transactions
contemplated with respect to the Leased Land and the Lease Closing shall be
contingent upon the following:
7.1.1 Representations. The other party's representations
and warranties contained herein shall be true and
correct in all material respects as of the date of
this Agreement and the Lease Closing Date (except, in
the case of Eastview, Eastview's representation and
warranty contained in Section 10.1.13 shall not be
remade as of the Lease Closing Date); and each party
shall deliver to the other party a certificate
stating that its representations and warranties
contained herein are true and correct as of the Lease
Closing Date or updating any representations and
16
warranties to the extent necessary (except as
aforesaid), provided, however that any update to such
party's representations and warranties pursuant to
this Agreement does not disclose new facts that are
material and adverse in relation to the applicable
original representation and warranty; provided,
however that to the extent BPA actually knows at or
prior to Lease Closing that any of Eastview's
representations or warranties are inaccurate, untrue
or incorrect in any way, such representations and
warranties shall be deemed modified to reflect BPA's
knowledge (for purposes of this proviso, BPA shall be
deemed to have actual knowledge of any fact or matter
relating to any such representation or warranty if
any of Landamerica Assessment Corporation, Integrated
Project Services, Xxxx Xxxxx Consulting or such other
surveyor commissioned by BPA to provide the Survey
has knowledge of such fact or matter relating to any
such representation or warranty).
7.1.2 Performance. As of the Lease Closing Date, the other
party shall have performed its obligations hereunder
in all material respects and all documentation and
deliveries to be made by the other party at Lease
Closing have been tendered (including, without
limitation, payment by BPA and receipt by Eastview of
the entire Initial Rent as provided herein);
7.1.3 Default. As a condition to BPA's obligation to close,
as of the Lease Closing Date, Eastview shall not be
in default in any material respect under any
agreement to be assigned to, or obligation to be
assumed by, BPA under this Agreement, including,
without limitation, the Leases;
7.1.4 Physical Condition. As a condition benefiting BPA
only, the physical condition of Leased Land shall be
substantially the same in all material respects on
the date of the expiration of the Due Diligence
Period as on the Lease Closing Date, reasonable wear
and tear excepted, unless the alteration of said
physical condition is the result of a casualty loss
or proceeding in eminent domain, in which case the
provisions of Paragraphs 5.2 and 5.3 shall govern;
7.1.5 Lease Condition. As a condition benefiting BPA only,
(1) Eastview shall have obtained and delivered to BPA
as of the Lease Closing Date, Tenant Estoppels,
substantially in the form required pursuant to
Paragraph 3.4 from each of the Major Tenants matching
the rent, term and other information in the Rent Roll
in all material respects included in the initial
delivery of Property Information;
7.1.6 Title. As a condition benefiting BPA only, upon
payment of the premium by BPA, at Lease Closing, the
Title Company shall issue or irrevocably commit to
issue to BPA a Leasehold Policy of title insurance
(Revised 10-13-70 and 10-17-84), with extended
coverage (i.e., with ALTA General Exceptions
deleted), dated as of the date and time of the
recording of the memorandum of Lease vesting
leasehold title in BPA, in the amount of the Initial
Rent, in the Leased Land, subject only to the
Permitted Exceptions (and containing no further
exceptions aside from
17
those approved or deemed approved by BPA at the
expiration of the Due Diligence Period), and
containing BPA's Endorsements to the extent
obtainable (the "Leasehold Title Policy").
7.1.7 No Bankruptcy Proceeding. As a condition benefiting
BPA only, Eastview shall not have commenced nor
allowed to have commenced nor shall any proceeding
have been commenced against Eastview under the
federal bankruptcy code or any similar state law
regarding relief of debtors.
7.1.8 Change in Zoning Classification, Site Plans and Other
Entitlements. As a condition benefiting BPA only,
there shall not have been any change in the zoning
classification of the Leased Land, the site plans for
the Leased Land, any other entitlements with respect
to the Leased Land or any of the conditions
applicable to the use and development of the Leased
Land which, in the aggregate, would impair in any
material respect (a) the operation of the
Improvements currently located at the Leased Land in
the manner currently operated as of the Effective
Date, (b) the development of the Greenburgh Core
Campus as depicted on EXHIBIT A-1 hereto with
approximately 320,000 additional square feet of
building improvements (and related parking
improvements), which may be used for Biotechology
Uses, and (c) the development of the Mount Pleasant
Core Campus with approximately 144,000 additional
square feet of building improvements (and related
parking improvements), which may be used for
Biotechology Uses, in accordance with applicable
zoning laws in effect as of the Effective Date.
7.1.9 Other Condition. Any other condition set forth in
this Agreement to such party's obligation to close
shall have been satisfied in all material respects by
the applicable date.
7.2 BPA's Defaults; Eastview's Remedies.
7.2.1 In the event that BPA breaches any of its obligations
under this Agreement, which breach is not cured
within five (5) business days after BPA's receipt of
notice of such default from Eastview (it being
understood and agreed that the Lease Closing Date
shall be extended to allow BPA the entire cure period
to remedy such breach, provided, however, that such
cure period shall not apply for a breach of the
obligation to close by the Lease Closing Date),
Eastview's sole remedy shall be to terminate this
Agreement and retain the Xxxxxxx Money as liquidated
damages, and not as a penalty. BPA AND EASTVIEW AGREE
THAT IT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL
TO QUANTIFY THE ACTUAL DAMAGES TO EASTVIEW IN THE
EVENT OF A BREACH BY BPA, THAT THE AMOUNT OF ALL
XXXXXXX MONEY IS A REASONABLE ESTIMATE OF SUCH ACTUAL
DAMAGES, AND THAT EASTVIEW'S EXCLUSIVE REMEDY IN THE
EVENT OF A BREACH BY BPA SHALL BE TO RETAIN ALL
XXXXXXX MONEY AND ANY EARNINGS THEREON AS LIQUIDATED
DAMAGES. Notwithstanding the foregoing, this
liquidated damages provision does not limit BPA's
obligations of restoration and
18
indemnity under Sections 3.3, 11.9 and 11.20 hereof,
which obligations expressly survive termination of
this Agreement for any reason, including default by
BPA.
7.2.2 After Lease Closing, in the event of a breach by BPA
of its obligations under this Agreement that survive
Lease Closing, Eastview may exercise any rights and
remedies available at law or in equity.
7.3 Eastview's Defaults; BPA's Remedies.
7.3.1 In the event of a breach of a representation,
warranty or covenant contained in this Agreement
prior to Lease Closing, which breach is not cured
within 5 business days after Eastview's receipt of
notice of such breach from BPA (it being understood
and agreed that the Lease Closing Date shall be
extended to allow Eastview the entire cure period to
remedy such breach, provided, however that such cure
period shall not apply to any covenant related to
closing by the Lease Closing Date), BPA may elect one
of the following remedies: (a) terminate this
Agreement and receive a refund of the Xxxxxxx Money;
or (b) BPA may choose to proceed towards Lease
Closing. In the event that BPA proceeds towards Lease
Closing despite a known Eastview breach of a
representation, warranty or covenant contained in
this Agreement, such breach shall be deemed waived by
BPA.
7.3.2 In the event of a breach by Eastview of any of its
other obligations under this Agreement, which breach
is not cured within five (5) business days after
Eastview's receipt of notice of such default from BPA
(it being understood and agreed that the Lease
Closing Date shall be extended to allow Eastview the
entire cure period to remedy such breach, provided,
however, that such cure period shall not apply for a
breach of the obligation to close by the Lease
Closing Date), BPA may elect only one of the
following two remedies: (a) terminate this Agreement
and receive a refund of the Xxxxxxx Money; or (b)
enforce specific performance of this Agreement
against Eastview, including the right to recover
reasonable attorneys' fees.
7.3.3 Subject to Sections 10.3 and 10.5, after Lease
Closing, in the event of a breach by Eastview of its
obligations under this Agreement that survive Lease
Closing (other than obligations under the Ground
Lease) or the discovery after Lease Closing by BPA of
a breach of an obligation, representation or warranty
by Eastview prior to or as of Lease Closing, BPA may
exercise any rights and remedies available at law or
in equity.
ARTICLE 8. CLOSING
8.1 Lease Closing and Escrow. The consummation of the transactions
contemplated herein ("Lease Closing") shall occur on the Lease Closing Date at
the offices of the Escrow Agent or such other location as BPA and Eastview may
agree. Lease Closing shall occur through a customary escrow with the Escrow
Agent. Funds shall be deposited into and held by Escrow Agent in a closing
escrow account with a bank satisfactory to BPA and Eastview. Upon satisfaction
or completion of all closing conditions and deliveries, the parties shall direct
the
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Escrow Agent to immediately record and deliver the closing documents to the
appropriate parties and make disbursements according to the closing statements
executed by Eastview and BPA and delivered to each other and to Escrow Agent on
or prior to the Lease Closing Date. Eastview and BPA agree to execute
supplemental escrow instructions as may be necessary and appropriate to enable
Escrow Agent to comply with the terms of this Agreement and effectuate Lease
Closing, provided that such supplemental escrow instructions are not in conflict
with this Agreement as it may be amended in writing from time to time.
8.2 Eastview's Deliveries in Escrow. On or before 12:00 PM New York
time on the Lease Closing Date, Eastview shall deliver in escrow to the Escrow
Agent the following:
8.2.1 Certificate. A certificate from Eastview that
contains an updated list of the Leases and Service
Contracts, property management and leasing agreements
to be assumed, each of which Eastview shall certify
to be true and correct in all material respects as of
Lease Closing;
8.2.2 Notice to Tenants. A notice to each tenant in the
form of EXHIBIT I attached hereto;
8.2.3 State Law Disclosures. Such disclosures and reports
as are required by applicable state and local law in
connection with the conveyance of a long term
leasehold interest in real property;
8.2.4 FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Eastview stating that Eastview
is not a "foreign person" within the meaning of such
act;
8.2.5 Tenant Estoppels. Estoppel certificates satisfying
the conditions in Paragraphs 7.1.5 and 3.4;
8.2.6 Terminations. Evidence of terminations, effective no
later than Lease Closing, of those Service Agreements
which BPA has elected not to assume, including any
leasing and management agreements affecting Leased
Land in accordance with Section 3.5;
8.2.7 Property Information. Originals, to the extent
reasonably available, or copies of all of the
Property Information in Eastview's or its managing
agent's possession or control;
8.2.8 Authority. Evidence of the existence, organization
and authority of Eastview and of the authority of the
persons executing documents on behalf of Eastview
reasonably satisfactory to the Escrow Agent, the
Title Company and BPA;
8.2.9 Transfer Tax Forms. Completed and executed transfer
tax forms, returns, certificates, affidavits or other
required documentation in connection with payment of
state and local transfer tax and a certified check
payable or wire of immediately available federal
funds to the Escrow Agent for payment of the state
and local transfer taxes due in connection with Lease
Closing;
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8.2.10 Permits. Copies of all Permits necessary in
connection with BPA's use and ownership of the Leased
Land except to the extent posted at the Leased Land.
8.2.11 Easements and Restrictions. Easements and restrictive
covenants executed by Eastview in the forms required
pursuant to Paragraph 6.1.4 hereof.
8.2.12 Ground Lease and Xxxx of Sale and Assignment of
Related Property Rights. An executed Ground Lease and
Xxxx of Sale and Assignment of Related Property
Rights.
8.2.13 Other Deliveries. Any other Lease Closing deliveries
required to be made by or on behalf of Eastview
hereunder or reasonably required to effect Lease
Closing of this transaction consistent with this
Agreement.
8.3 BPA's Deliveries in Escrow. On or before 12:00 PM New York time on
the Lease Closing Date, BPA shall deliver in escrow to the Escrow Agent the
following:
8.3.1 Initial Rent. On or before the Lease Closing Date,
the Initial Rent, less the Xxxxxxx Money that is
applied to the Initial Rent, plus or minus applicable
prorations, deposited by BPA with the Escrow Agent in
immediate, same day federal funds wired for credit
into the Escrow Agent's escrow account;
8.3.2 State Law Disclosures. Such disclosures and reports
as are required by applicable state and local law in
connection with the conveyance of real property;
8.3.3 Authority. Evidence of the existence, organization
and authority of BPA and of the authority of the
persons executing documents on behalf of BPA
reasonably satisfactory to the Escrow Agent, the
Title Company and Eastview;
8.3.4 Transfer Tax Forms. Executed counterparts of transfer
tax forms, returns. certificates, affidavits or other
required documentation completed by Eastview in
connection with payment of state and local transfer
tax;
8.3.5 Ground Lease and Xxxx of Sale and Assignment of
Related Property Rights. Executed counterparts of the
Ground Lease and Xxxx of Sale and Assignment of
Related Property Rights.
8.3.6 Easements and Restrictions. Executed counterparts of
the Easements and restrictive covenants required
pursuant to Paragraph 6.1.5 hereof.
8.3.7 Other Deliveries. Any other Lease Closing deliveries
required to be made by or on behalf of BPA hereunder
or reasonably required to effect Lease Closing of
this transaction consistent with this Agreement.
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8.4 Closing Statements/Escrow Fees. Eastview and BPA shall deposit with
the Escrow Agent executed closing statements consistent with this Agreement and
in the form required, if any, by the Escrow Agent. The Escrow Agent's escrow fee
shall be divided equally between and paid by Eastview and BPA.
8.5 Sales, Transfer, and Documentary Taxes and Recording Fees. Eastview
shall pay all excise, transfer, deed or similar taxes imposed in connection with
the Lease Closing under applicable state or local law (including without
limitation any real estate excise tax). BPA further shall pay any sales tax
associated with the lease of any personal property. BPA and Eastview shall
reasonably allocate the Initial Rent between personal property and real property
if necessary or desired by either party. Eastview shall pay all recording costs
associated with the recordation of documentation required to be delivered at
Lease Closing or necessary to effectuate Lease Closing. BPA shall pay any
recording fees associated with any other documentation and any applicable
mortgage recording tax and intangible property tax.
8.6 Attorneys' Fees. Each party hereto shall pay its own attorneys'
fees incurred in connection with the preparation and negotiation of this
Agreement and in connection with Lease Closing, except as otherwise specifically
provided herein.
8.7 Possession. At the time of Lease Closing, Eastview shall deliver to
BPA possession of Leased Land, subject only to the Permitted Exceptions, and in
furtherance thereof shall deliver all keys, key cards, security codes and the
like necessary for the use and operation of Leased Land.
8.8 Delivery of Books and Records. At Lease Closing or within 2
business days thereafter, Eastview shall deliver to the offices of BPA or BPA's
property manager: the original Leases and Service Contracts, property management
and leasing agreements (to the extent assumed by BPA pursuant to the terms
hereof); copies or originals of all books and records of account, contracts,
copies of correspondence with tenants and suppliers, receipts for deposits,
unpaid bills and other papers or documents which pertain to Leased Land; all
permits, licenses and warranties; all advertising materials, booklets, keys and
other items, if any, used in the operation of Leased Land; and, if in Eastview's
or its property manager's possession or control, the original "as-built" plans
and specifications; all other available plans and specifications and all
operation manuals. Eastview shall reasonably cooperate with BPA after Lease
Closing to transfer to BPA any such information stored electronically.
ARTICLE 9. PRORATIONS AND ADJUSTMENTS
9.1 Prorations. On or before Lease Closing, Eastview shall provide to
BPA such information and verification reasonably necessary to support the
prorations and adjustments under this ARTICLE 9. The items in Paragraphs 9.1.1
through 9.1.5 shall be prorated between Eastview and BPA, based on the actual
number of days in the applicable period, as of the close of the day immediately
preceding the Lease Closing Date, the Lease Closing Date being a day of income
and expense to BPA:
9.1.1 Taxes and Assessments. BPA shall receive a credit for
any accrued but unpaid real estate taxes and
assessments (including, without limitation, any
assessments imposed by private covenant) applicable
to any period before the Lease Closing Date, even if
such taxes and assessments are not yet due and
payable. Eastview shall receive a credit for real
estate taxes paid and attributable to any period
after the Lease Closing Date.
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Special assessments shall be prorated for the
applicable period and BPA shall be responsible for
any such assessments becoming due and payable after
the Lease Closing Date. Real estate tax refunds and
credits received after the Lease Closing Date, shall
be apportioned between Eastview and BPA, after
deducting the expenses of collection thereof. BPA
shall have no such rights with respect to any tax
proceeding covering any fiscal year prior to the
fiscal year in which the Lease Closing occurs and any
tax savings or refund for any fiscal years prior to
the fiscal year in which the Lease Closing occurs
shall be the sole and absolute property of Eastview.
The provisions of this Paragraph 9.1.1 shall survive
the Lease Closing.
9.1.2 Income. BPA shall receive a credit for any rent,
Operating Expense Pass-throughs (as defined below),
and other income (and any applicable state or local
tax on rent) under Leases collected by Eastview
before Lease Closing that applies to any period after
Lease Closing. Uncollected rent and other uncollected
income, including Operating Expense Pass-throughs and
reimbursement of long lived repairs that may be
charged to tenants under the Leases, shall be
prorated at Lease Closing and Eastview shall receive
a credit for them to the extent allocable to the
period of time prior to Lease Closing.
Notwithstanding the foregoing, in the event that rent
referred to in the preceding sentence is paid by a
tenant that was delinquent in payment of rent under
its Lease at Lease Closing, then rents paid by such
tenant shall be allocated as follows: (a) first, to
Eastview for payment of any amounts due under such
Lease by such tenant for the calendar month
immediately preceding the month during which the
Lease Closing occurs, (b) second, to rents due for
the calendar month during which the Lease Closing
occurs to Eastview and BPA on a per diem basis, (c)
third, to BPA for payment of any amounts due under
such Lease by such tenant for the then current month,
and (d) fourth, to rents due to Eastview for any
period under such Lease preceding the then current
month.
9.1.3 Operating Expense Pass-throughs. Eastview, as
landlord under the Leases, is currently collecting
from tenants under the Leases additional rent to
cover taxes, insurance, utilities, maintenance and
other operating costs and expenses (collectively,
"Operating Expense Pass-throughs") incurred by
Eastview in connection with the ownership, operation,
maintenance and management of Leased Land under the
Leases. BPA shall be responsible to reconcile the
calendar year 2004 Operating Expense Pass-throughs
and shall retain all 2004 tenant payments associated
with such costs, subject to the prorations in
Paragraph 9.1.2. Eastview shall cooperate with BPA in
the reconciliation process. If a tenant under a Lease
has a right to conduct an audit of rent, additional
rent or other amounts paid by it under its Lease for
the period prior to Lease Closing and such tenant
requests the performance of such audit, Eastview
shall cooperate with BPA, to perform such audit. If
such audit discloses that such tenant overpaid any
amount of rent, additional rent, or any other amount
paid by it under its Lease for any period prior to
Lease Closing, then Eastview shall reimburse such
tenant for any such
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amounts overpaid applicable to the period prior to
the Lease Closing, or reimburse BPA if BPA shall have
paid such amounts to such tenant or if such tenant is
entitled to a credit against current rent or
additional rent due under the Lease in satisfaction
of such amounts overpaid, provided, however, that
Eastview shall have the right to review the results
of such audit.
9.1.4 Service Contracts. Eastview or BPA, as the case may
be, shall receive a credit for regular charges under
Service Contracts assumed by BPA pursuant to this
Agreement paid and applicable to BPA's period of
ownership or payable and applicable to Eastview's
period of ownership, respectively.
9.1.5 Utilities. Eastview shall cause the meters, if any,
for utilities to be read the day on which the Lease
Closing Date, occurs and to pay the bills rendered on
the basis of such readings. If any such meter reading
for any utility is not then available, then
adjustment therefor shall be made on the basis of the
most recently issued bills therefor which are based
on meter readings no earlier than 30 days before the
Lease Closing Date; and such adjustment shall be
reconciled and refunds made by BPA or Eastview, as
applicable, when the next utility bills are received.
9.2 Leasing Costs. Leasing commissions, tenant improvement costs,
tenant allowances, unexpired free rent periods, moving expenses and other
out-of-pocket expenses that are the obligation of Eastview or landlord under the
Leases ("Leasing Costs") shall be the responsibility of Eastview; provided
however, with respect to Leasing Costs related to the renewal or expansion of a
Lease as the result of the exercise of such right after the Effective Date, BPA
shall be responsible for the payment of Leasing Costs to the extent that they
are expressly identified in the Commission Schedule or provided for under the
applicable Lease and further provided, however that with respect to Leasing
Costs that accrue after the Lease Closing under the terms of the relevant lease,
BPA shall be responsible for the payment of such Leasing Costs other than
obligations for unexpended tenant improvement allowances that are capable of
being drawn upon by tenants under the express terms and conditions of the Leases
as of the Lease Closing Date. Eastview shall credit BPA at Lease Closing for the
amount of unexpended tenant improvement allowances under the relevant Leases
that are capable of being drawn upon by tenants under the express terms and
conditions of the Leases as of the Lease Closing Date.
9.3 Security Deposits. All tenant security deposits shall be
transferred or credited to BPA at Lease Closing. As of Lease Closing, BPA shall
assume Eastview's obligations related to tenant security deposits, but only to
the extent they are properly credited and transferred to BPA. In the case of any
security deposits held by Eastview in the form of letters of credit, such
letters of credit and the beneficial interest therein, to the extent permitted
by the terms thereof, shall be transferred to BPA at Lease Closing and Eastview
shall execute and deliver, and use commercially reasonable efforts to cause any
applicable tenant(s) to execute and deliver, to BPA such documents as are
reasonably necessary to cause such transfer to BPA at Lease Closing. In the case
of any such letters of credit which provide by their terms that the beneficial
interest is not transferable, Eastview shall endeavor to cause the applicable
tenant(s) to replace or amend such letters of credit with letters of credit in
which BPA is the beneficiary and in any event shall deliver all letters of
credit to BPA at Lease Closing. In the event that Eastview is unable to obtain a
replacement or amendment letter of credit as described in the preceding
24
sentence, then after Lease Closing, BPA may enforce its rights under the
applicable Leases to obtain a reissued or amended letter of credit for the
benefit of BPA and Eastview shall co-operate with BPA in such efforts, including
executing and delivering such documents as are necessary to cause the amendment
or reissuance of the letters of credit in favor of BPA.
9.4 Utility Deposits. Eastview shall receive a credit for the amount of
deposits, if any, with utility companies that are transferable and that are
assigned to BPA at Lease Closing.
9.5 Leasing Commissions. Eastview and BPA each represent and warrant to
the other that they have not dealt with any real estate broker, sales person or
finder in connection with this transaction. In the event of any claim for
broker's or finder's fees or commissions in connection with the negotiation,
execution or consummation of this Agreement or the transactions contemplated
hereby, each party shall indemnify and hold harmless the other party from and
against any such claim based upon any statement, representation or agreement of
such party.
9.6 Pre-Closing Expenses. Except as otherwise specifically provided in
this Agreement or in any other written agreement that may be entered into
between Eastview and BPA, Eastview has paid or will pay in full, prior to Lease
Closing, all bills and invoices for labor, goods, material and services of any
kind relating to Leased Land and utility charges (except if and to the extent
such utility charges are billed directly to Tenants), relating to the period
prior to Lease Closing. Except for those Leasing Costs that are the
responsibility of BPA pursuant to Paragraph 9.2 or any other costs assumed by
BPA, any alterations, installations, decorations and other work required to be
performed by Eastview under any and all agreements affecting Leased Land
(including, but not limited to, Leases) have been or will, by Lease Closing, be
completed and paid for in full or reasonable provision for their completion
(including establishment of reserves or funds for payment thereof by Eastview
reasonably satisfactory to BPA) shall have been made by Eastview.
9.7 Eastview Remedies Against Tenants After Lease Closing. From and
after the Lease Closing Date, Eastview shall have the right to bring actions or
claims for damages against tenants under the Leases for amounts due and owing to
Eastview, provided, however that in no event shall Eastview have the right to
bring any claim or action seeking dispossession of such tenant from its premises
demised pursuant to the applicable Lease.
ARTICLE 10. REPRESENTATIONS AND WARRANTIES
10.1 Eastview's Representations and Warranties. As a material
inducement to BPA to execute this Agreement and consummate this transaction,
Eastview represents and warrants to BPA that:
10.1.1 Organization and Authority. Eastview has been duly
organized, is validly existing, and is in good
standing as a Delaware limited liability company.
Eastview is in good standing and is qualified to do
business in the state in which the Leased Land is
located. Subject to the express terms hereof,
Eastview has the full power and authority to own and
operate the Subject Land and has obtained any and all
consents required to enter into this Agreement and
all other documents contemplated under this Agreement
and to consummate or cause to be consummated the
transactions contemplated hereby. This Agreement has
been, and all of the documents to be delivered by
Eastview at
25
Lease Closing will be, authorized and properly
executed and constitute, or will constitute, as
appropriate, the legal, valid and binding obligations
of Eastview, enforceable in accordance with their
terms.
10.1.2 Conflicts and Pending Actions or Proceedings. There
is no agreement, contract, instrument, permit or
license (including, without limitation, Eastview's
organizational documents) to which Eastview is a
party or, to Eastview's Actual Knowledge, binding on
Eastview which is in conflict with this Agreement
(including, without limitation the Ground Lease and
Article 6 hereof), or which challenges or impairs
Eastview's ability to execute or perform its
obligations under this Agreement (including, without
limitation, the Map Events). There is not now pending
or, to Eastview's Actual Knowledge, threatened in
writing, any action, suit or proceeding before any
court or governmental agency or body against Eastview
or against or with respect to the Leased Land that
would prevent Eastview from performing its
obligations hereunder or which challenges or impairs
Eastview's ability to execute or perform its
obligations under this Agreement (including, without
limitation, the Map Events). Except for (i) the study
by New York State Department of Transportation
regarding the possible realignment or alternate route
for Route 9A including the 100C overpass along the
southeast border of the Leased Land (the "Proposed 9A
Relocation") and (ii) the Proposed Gas Line, Eastview
has not received any written notice of any pending
condemnation, eminent domain or similar proceeding
affecting all or any portion of the Leased Land. To
Eastview's Actual Knowledge, the New York State
Department of Transportation is still in its study
phase and to Eastview's Actual Knowledge, no final
determination has been made regarding the Proposed 9A
Relocation. To Eastview's Actual Knowledge, no final
determination has been made regarding the
installation of the Proposed Gas Line. The term
"Proposed Gas Line" shall mean the proposed
installation of a gas line by Millennium Pipeline
Company L.P. and for which approval of such gas line
by Federal Energy Regulatory Agency has been
requested and which project has been assigned Docket
No. CP98-150-000. To Eastview's Actual Knowledge, the
execution and delivery of this Agreement and, subject
to obtaining the Map Events, the consummation of the
transactions contemplated hereby will not violate any
judgment, writ, order, injunction, decree, permit,
license, regulation or ruling of any court or
governmental authority.
10.1.3 Leases and Rent Roll. As of the date hereof, the
Leases identified in EXHIBIT D are the only leases,
or other occupancy agreements affecting the Leased
Land to which Eastview is a party. The documents
constituting the Leases that are delivered to BPA
pursuant to Paragraph 2.1 are true, correct and
complete copies of all of the Leases affecting the
Leased Land, including any and all material
amendments or supplements thereto, and guaranties,
letters of credit or other security in connection
therewith. To Eastview's Actual Knowledge, the
subleases identified on EXHIBIT D are the only
subleases affecting the Leased Land.
26
10.1.4 Service Contracts; Operating Statements. SCHEDULE 3
attached hereto and made a part hereof, contains a
true, correct and complete list of all of the Service
Contracts, property management and leasing agreements
affecting the Leased Land, and all of such Service
Contracts, property management and leasing agreements
are in full force and effect. The documents
constituting the Service Contracts, property
management and leasing agreements that are delivered
to BPA are true, correct and complete copies of all
of the Service Contracts, property management and
leasing agreements affecting the Leased Land. Neither
Eastview nor, to Eastview's Actual Knowledge, any
other party is in default under any Service Contract,
property management or leasing agreement. The
Operating Statements to be delivered to BPA pursuant
to this Agreement will show all items of income and
expense (operating and capital) incurred in
connection with Eastview's ownership, operation, and
management of the Leased Land for the periods
indicated and will be true, correct, and complete in
all material respects.
10.1.5 Permits. To Eastview's Actual Knowledge, SCHEDULE 4
attached hereto and made a part hereof lists the
material permits necessary for the use and operation
of the Leased Land, and Eastview does not have Actual
Knowledge of and has not received written notice of
any intention on the part of the issuing authority to
cancel, suspend or modify any of such permits or to
take any action or institute any proceedings to
effect such a cancellation, suspension or
modification.
10.1.6 Legal Compliance. To Eastview's Actual Knowledge,
Eastview has all approvals, consents, waivers,
licenses, permits and certificates necessary for the
use and operation of the Leased Land in all material
respects, including, without limitation, all
certificates of occupancy necessary for the lawful
occupancy of the Leased Land, as currently occupied.
Eastview does not have Actual Knowledge of and has
received no written notice that the Leased Land or
the use or operation thereof violates any federal,
state or municipal law, code, statute, ordinance,
regulation or requirement (including, without
limitation, any of the foregoing relating to fire,
zoning, building or environmental regulation) or any
covenants or restrictions encumbering the Leased
Land, in each case, in any material respect.
10.1.7 Environmental. To Eastview's Actual Knowledge and
except as otherwise described in any environmental
report provided to BPA,
(1) Eastview nor any tenant, other occupant or any
other person, has during the period of Eastview's ownership
used the Leased Land or any part thereof for the release,
generation, treatment, storage, handling or disposal of any
Hazardous Materials, in violation of any Environmental Laws in
any material respect;
27
(2) Eastview has not received written notice of any
inquiry, investigation or pending or threatened action
regarding, (i) any release or threatened release originating
during the period of Eastview's ownership of any Hazardous
Materials at any location at the Leased Land or (ii) any
violation originating during the period of Eastview's
ownership of any Environmental Law including the conditions of
any Permit required under any Environmental Law; and
(3) there are no underground storage tanks located on
the Leased Land.
The term "Environmental Laws" includes, without limitation,
the Resource Conservation and Recovery Act and the Comprehensive Environmental
Response Compensation and Liability Act and other federal laws governing the
environment, pollution and the protection of human health and as in effect on
the Date of this Agreement, together with their implementing regulations,
guidelines, rules or orders as of the Date of this Agreement, and all state,
regional, county, municipal and other local statutory or common laws,
regulations, ordinances, rules or orders that are equivalent or similar to the
federal laws recited above or that purport to regulate Hazardous Materials. The
term "Hazardous Materials" includes petroleum, including crude oil or any
fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas or such synthetic
gas), friable asbestos-containing material, urea formaldehyde foam and any
substance, material, waste, pollutant or contaminant listed or defined as
hazardous or toxic under any Environmental Law.
10.1.8 Withholding Obligation. Eastview's lease of the
Leased Land is not subject to any federal, state or
local withholding obligation of BPA under the tax
laws applicable to Eastview or Leased Land.
10.1.9 Foreign Person. Eastview is not a foreign person
within the meaning of Section 1445 of the United
States Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
10.1.10 ERISA. Eastview is not and is not acting on behalf of
an "employee benefit plan" within the meaning of
Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended, a "plan" within the
meaning of Section 4975 of the Internal Revenue Code
of 1986, as amended or an entity deemed to hold "plan
assets" within the meaning of 29 C.F.R. Section
2510.3 101 of any such employee benefit plan or
plans.
10.1.11 Bankruptcy. To Eastview's Actual Knowledge, there are
no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorships
or voluntary or involuntary proceedings in bankruptcy
or actions pursuant to any other debtor relief laws
contemplated by Eastview or pending against Eastview
and regarding the Leased Land.
10.1.12 Litigation and Proceedings. Eastview does not have
Actual Knowledge of and has received no written
notice of any material claims, causes of action or
other litigation or proceedings with respect to the
ownership or operation of the Leased Land or any part
thereof (including material disputes with tenants,
mortgagees, governmental authorities, utilities,
28
contractors, adjoining land owners and suppliers of
goods or services), except possible claims for
workers' compensation, personal injury or property
damage as are covered by insurance.
10.1.13 Change in Zoning Classification, Site Plans and Other
Entitlements. To Eastview's Actual Knowledge, there
has not been any change in the zoning classification
of the Leased Land, the site plans for the Leased
Land, any other entitlements with respect to the
Leased Land or any of the conditions applicable to
the use and development of the Leased Land which, in
the aggregate, would impair in any material respect
(a) the operation of the Improvements currently
located at the Leased Land in the manner currently
operated as of the Effective Date, (b) the
development of the Greenburgh Core Campus as depicted
on EXHIBIT A-1 hereto with approximately 320,000
additional square feet of building improvements (and
related parking improvements), which may be used for
Biotechology Uses, and (c) the development of the
Mount Pleasant Core Campus in accordance with
applicable zoning laws in effect as of the Effective
Date. As noted in Sections 10.3 and 7.1.1 hereof, the
representation and warranty contained in this Section
10.1.13 will not be deemed remade at Lease Closing.
In the event that Eastview receives notices from
governmental authorities from time to time, which
notices would render any representation or warranty
contained herein inaccurate after receipt of such
notice, Eastview shall provide BPA with a copy of
such notice promptly after receipt thereof.
10.1.14 Utilities. To Eastview's Actual Knowledge, all public
utilities for the use, operation and development of
the Leased Land, existing and as currently used as of
the Effective Date are located in a public right of
way abutting the Leased Land and all such utilities
are connected so as to serve the Leased Land without
passing over or through other property except for
land or easement areas available to serve the Leased
Land or the utility companies serving the Leased Land
without cost to Eastview (or after the Lease Closing,
BPA).
10.2 BPA's Representations and Warranties. As a material inducement to
Eastview to execute this Agreement and consummate this transaction, BPA
represents and warrants to Eastview that:
10.2.1 Organization and Authority. BPA has been duly
organized and is validly existing as a California
corporation, in good standing in the State of
California, and will be qualified to do business in
the state in which the Real Property is located on
the Lease Closing Date. BPA has the full right and
authority and has obtained any and all consents
required to enter into this Agreement and to
consummate or cause to be consummated the
transactions contemplated hereby. This Agreement has
been, and all of the documents to be delivered by BPA
at Lease Closing will be, authorized and properly
executed and constitutes, or will constitute, as
appropriate, the valid and binding obligation of BPA,
enforceable in accordance with their terms.
29
10.2.2 Conflicts and Pending Action. To BPA's knowledge,
there is no agreement to which BPA is a party or to
BPA's knowledge binding on BPA which is in conflict
with this Agreement. There is no action or proceeding
pending or, to BPA's knowledge, threatened against
BPA which challenges or impairs BPA's ability to
execute or perform its obligations under this
Agreement.
10.2.3 "As-Is" Purchase. As of the expiration of the Due
Diligence Period, BPA will have:
(a) examined and inspected the Leased Land and will know and
be satisfied with the physical condition, quality, quantity and state
of repair of the Leased Land in all respects including, without
limitation, the physical condition of the central plant and powerhouse
equipment, and parking areas as referenced in Paragraph 2.1.2 above,
and by proceeding with this transaction following the expiration of the
Due Diligence Period shall be deemed to have determined that the same
is satisfactory to BPA except for issues that arise between the end of
the Due Diligence Period and Lease Closing Date, provided, however,
that nothing contained herein shall be construed to be deemed to
relieve Eastview of its obligations and liability with respect to
Eastview's Warranties but subject to the limitations on Eastview's
liability with respect to Eastview's Warranties (as the same may be
modified in accordance with Section 7.1.1 hereof) contained in this
Agreement.
(b) reviewed the Property Information and all instruments,
records and documents which BPA deems appropriate or advisable to
review in connection with this transaction, and BPA, by proceeding with
this transaction following the expiration of the Due Diligence Period,
shall be deemed to have determined that the same and the information
and data contained therein and evidenced thereby are satisfactory to
BPA, provided, however, that nothing contained herein shall be
construed to be deemed to relieve Eastview of its obligations and
liability with respect to Eastview's Warranties but subject to the
limitations on Eastview's liability with respect to Eastview's
Warranties ( as the same may be modified in accordance with Section
7.1.1 hereof) contained in this Agreement;
(c) reviewed all applicable laws, ordinances, rules and
governmental regulations (including, but not limited to, those relating
to building, zoning and land use) affecting the development, use,
occupancy or enjoyment of the Leased Land, and BPA, by proceeding with
this transaction following the expiration of the Due Diligence Period,
shall be deemed to have determined that the same are satisfactory to
BPA; and at its own cost and expense, made its own independent
investigation respecting the Leased Land and all other aspects of this
transaction, and shall have relied thereon and on the advice of its
consultants in entering into this Agreement, and BPA, by proceeding
with this transaction following the expiration of the Due Diligence
Period, shall be deemed to have determined that the same are
satisfactory to BPA, provided, however, that nothing contained herein
shall be construed to be deemed to relieve Eastview of its obligations
and liability with respect to Eastview's Warranties but subject to the
limitations on Eastview's liability with respect to Eastview's
Warranties (as the same may be modified in accordance with Section
7.1.1 hereof) contained in this Agreement.
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SALE IS MADE AND WILL BE
MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF FITNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR HABITABILITY BY EASTVIEW. AS A MATERIAL PART OF THE CONSIDERATION
FOR THIS AGREEMENT EXCEPT FOR EASTVIEW'S REPRESENTATIONS AND WARRANTIES IN
PARAGRAPH 10.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE
TRANSFER DOCUMENTS DELIVERED AT THE CLOSE OF ESCROW (COLLECTIVELY, "EASTVIEW'S
WARRANTIES"). BPA AGREES TO ACCEPT THE LEASED LAND ON AN "AS IS" AND "WHERE IS"
BASIS WITH ALL LATENT AND PATENT DEFECTS AND WITHOUT ANY REPRESENTATIONS OR
WARRANTIES, ALL OF WHICH EASTVIEW HEREBY DISCLAIMS, EXCEPT FOR EASTVIEW'S
WARRANTIES. NO WARRANTY OR REPRESENTATION IS MADE BY EASTVIEW AS TO THE ABSENCE
OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS,
FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION,
THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT EXCEPT FOR EASTVIEW'S
WARRANTIES. BPA ACKNOWLEDGES THAT BPA HAS ENTERED INTO THIS AGREEMENT WITH THE
INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL,
ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE LEASED LAND
AND THAT BPA IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY
REPRESENTATIONS AND WARRANTIES (EITHER EXPRESS OR IMPLIED) MADE BY EASTVIEW OR
ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON EASTVIEW'S BEHALF
CONCERNING THE LEASED LAND EXCEPT FOR EASTVIEW'S WARRANTIES.
WITH RESPECT TO THE FOLLOWING, BPA FURTHER ACKNOWLEDGES AND AGREES THAT EASTVIEW
SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT
EASTVIEW HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION
PREPARED BY ANY ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE LEASED
LAND OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT
LIMITATION, THE DUE DILIGENCE ITEMS) DELIVERED TO BPA PURSUANT TO BPA'S REVIEW
OF THE CONDITION OF THE LEASED LAND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR
IN EASTVIEW'S WARRANTIES; OR
3. THE CONTENT OR ACCURACY OF ANY MARKETING ANALYSIS OR OTHER
INFORMATION GIVEN TO BPA BY EASTVIEW OR REVIEWED BY BPA WITH RESPECT TO THE
LEASED LAND.
BPA IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE
OF ESCROW, FAMILIAR WITH THE LEASED LAND AND ITS SUITABILITY FOR BPA'S INTENDED
USE. THE PROVISIONS OF THIS PARAGRAPH 10.2.3 SHALL SURVIVE INDEFINITELY ANY
CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE
DOCUMENTS EXECUTED AT CLOSE OF ESCROW.
BPA OR ANYONE CLAIMING BY, THROUGH OR UNDER BPA, HEREBY FULLY AND IRREVOCABLY
RELEASES EASTVIEW AND EASTVIEW'S AGENTS AND
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REPRESENTATIVES FROM ANY AND ALL CLAIMS THAT IT MAY NOW HAVE OR HEREAFTER
ACQUIRE AGAINST EASTVIEW AND EASTVIEW'S AGENTS OR REPRESENTATIVES FOR ANY COST,
LOSS, LIABILITY, DAMAGE, EXPENSE, ACTION OR CAUSE OF ACTION, WHETHER FORESEEN OR
UNFORESEEN, ARISING FROM OR RELATED TO THE PRESENCE OF ENVIRONMENTALLY
HAZARDOUS, TOXIC OR DANGEROUS SUBSTANCES, OR ANY OTHER CONDITIONS (WHETHER
PATENT, LATENT OR OTHERWISE) AFFECTING THE LEASED LAND INCLUDING, WITHOUT
LIMITATION, ANY RIGHTS THAT BPA SHALL HAVE AT ANY TIME TO RECOVER RESPONSE
COSTS, CONTRIBUTIONS OR DAMAGES UNDER THE ENVIRONMENTAL LAWS, EXCEPT FOR CLAIMS
AGAINST EASTVIEW BASED UPON ANY OBLIGATIONS AND LIABILITIES OF EASTVIEW
EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING EASTVIEW'S WARRANTIES. BPA
FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND
EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND PROVISIONS, INCLUDING, BUT
NOT LIMITED TO, THOSE RELATING TO UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND
CAUSES OF ACTION.
10.3 Survival of Representations and Warranties. The representations
and warranties set forth in this ARTICLE 10 are made as of the Effective Date
and are remade as of the Lease Closing Date (except for the representations and
warranties of Eastview contained in Section 10.1.13 hereof, which shall not be
deemed to be remade as of the Lease Closing Date) and shall not be deemed to be
merged into or waived by the instruments of Lease Closing, but shall survive for
a period of 270 days following Lease Closing Date and thereafter be deemed
terminated unless a suit is filed thereupon in a court of competent jurisdiction
by BPA on or before such 270th day. Anything contained in this Agreement to the
contrary notwithstanding, if (x) BPA has actual knowledge of any inaccuracy in
any representation or warranty of Eastview, whether as a result of notice from
Eastview or BPA's own investigations or inquiries, or (y) the Property
Information or any other material provided or made available to BPA by Eastview
or received by BPA from any third party (including, without limitation, any
Tenant Estoppels or any report provided to BPA by any contractor or consultant
engaged by BPA in connection with BPA's investigation of the Leased Land) is in
any way inconsistent with any representation or warranty of Eastview and,
notwithstanding the foregoing, BPA nonetheless proceeds with the Lease Closing,
then Eastview's representations and warranties shall be deemed qualified and
amended to the full extent of BPA's knowledge of such inconsistent information
prior to the Lease Closing, BPA shall be deemed to have accepted and approved
Eastview's representations and warranties as so qualified and amended, and BPA
shall have no right or remedy, and Eastview shall have no obligation or
liability, on account thereof.
10.4 Actual Knowledge. "Actual Knowledge" of Eastview shall mean the
actual, personal knowledge of Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxxxx and
Xxxx Xxxxxx with no imputation of knowledge and duty of investigation or
inquiry.
10.5 Limitation on Claims. Notwithstanding anything in this Agreement
to the contrary, Eastview shall have no liability to BPA for any claim,
liability, obligation, demand or cause of action against Eastview for any breach
or default of any representation, warranty or covenant contained in this
Agreement (a "BPA Claim") unless all BPA Claims collectively aggregate more than
One Hundred Thousand and No/100 Dollars ($100,000.00), in which event the full
amount of such valid BPA Claims shall be actionable, subject to the next
sentence. The maximum aggregate liability of Eastview on account of BPA Claims
in this Article 10 shall not exceed One Million and No/100 Dollars
($1,000,000.00). BPA agrees to first seek recovery under any applicable
insurance policies, service contracts, warranties, guaranties and Leases prior
to seeking recovery from Eastview. Eastview shall not be liable to BPA to the
extent any
32
BPA Claim is satisfied from such insurance policies, service contracts,
warranties, guaranties or Leases and BPA hereby waives any and all rights of
subrogation with respect thereto. As a specifically bargained for allocation of
risk and liability, BPA hereby expressly waives and releases any and all rights
and remedies BPA may have on account of any breach or default of any Eastview
representation, warranty or covenant contained in this Agreement to the extent
(i) the valid BPA Claims for all such breaches and defaults do not collectively
aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00); (ii)
the aggregate liability of Eastview on account of all such BPA Claims exceeds
One Million and No/100 Dollars ($1,000,000.00); or (iii) the BPA Claim is
satisfied from such insurance policies, service contracts, warranties,
guaranties, or Leases.
10.6 Exculpation. The managers, members, and any officers, directors
and controlling persons of Eastview shall have no liability to BPA or any other
person in any way related to this Agreement or the transactions contemplated by
this Agreement including, without limitation, the provisions in Paragraphs 3.3,
10.1, 11.9 and 11.15. The managers, members, and any officers, directors and
controlling persons of BPA shall have no liability to Eastview or any other
person in any way related to this Agreement or the transactions contemplated by
this Agreement.
ARTICLE 11. MISCELLANEOUS
11.1 Parties Bound; Assignment. Neither party may assign this Agreement
without the prior written consent of the other, and any such prohibited
assignment shall be void; provided, however, that upon 5 days prior written
notice to Eastview, BPA may assign this Agreement without Eastview's consent to
the legal entity that is or will be the issuer in BPA's IPO or to a subsidiary
wholly owned, directly or indirectly, by BPA. BPA shall not be relieved of its
obligations hereunder in the event of any such assignment and the issuer in
BPA's IPO or such subsidiary, as the case may be, must assume and remake for
itself all the representations and warranties contained in Paragraph 10.2 above
upon such assignment. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the respective legal representatives,
successors, assigns, heirs, and devisees of the parties.
11.2 Headings. The article and paragraph headings of this Agreement are
for convenience only and in no way limit or enlarge the scope or meaning of the
language hereof.
11.3 Expenses. Except as otherwise expressly provided herein, each
party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereunder, including all legal and accounting fees and
disbursements.
11.4 Invalidity and Waiver. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed to
be a waiver of such party's right to enforce against the other party the same or
any other such term or provision in the future.
11.5 Governing Law. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
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11.6 Survival. Except as specifically provided herein to the contrary,
the provisions of this Agreement and the obligations of the parties not fully
performed at Lease Closing shall survive Lease Closing for nine months and shall
not be deemed to be merged into or waived by the instruments of Lease Closing.
Any claim for performance of an obligation after Lease Closing shall be barred
and shall lapse unless a claim is made in writing, with a description of the
claim made, on or before the first anniversary of Lease Closing.
11.7 No Third Party Beneficiary. This Agreement is not intended to give
or confer any benefits, rights, privileges, claims, actions, or remedies to any
person or entity as a third party beneficiary, decree, or otherwise.
11.8 Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Subject Land, including, without limitation, the
letter of intent dated May 24, 2004, between BPA and Eastview. This Agreement
may be amended or supplemented only in writing by a non-electronic instrument
executed by the party against whom enforcement is sought. For the avoidance of
doubt, copies of signed instruments that are electronically transmitted by email
or facsimile constitute a writing for this purpose.
11.9 Press Releases and Disclosures. Neither Eastview nor BPA will
release or cause or permit to be released any press notices, or publicity (oral
or written) or advertising promotion relating to, or otherwise announce or
disclose or cause or permit to be announced or disclosed, in any manner
whatsoever, the terms, conditions or substance of this Agreement without first
obtaining the written consent of the other party except those disclosures that
are required by securities law(s), including the Securities Act of 1933, or
contractual obligation (in which case notice shall be timely provided to the
other party of such requirement and disclosure). Subject to the terms and
conditions in the Confidentiality Agreement between BPA and Eastview dated May
10, 2004, the foregoing shall not preclude either party from discussing the
substance or any relevant details of such transactions with any of its
attorneys, accountants, professional consultants, lenders, partners, investors,
or any prospective lender, partner or investor, as the case may be, or prevent
either party hereto, from complying with laws, rules, regulations and court
orders, including without limitation, governmental, regulatory, disclosure, tax
and reporting requirements, or from Eastview making disclosures in the ordinary
course of its due diligence inspections and contacts with third parties related
thereto. Notwithstanding the foregoing, (a) BPA shall have the right in
connection with BPA's IPO to make full and fair disclosures to prospective
investors and their advisors that are required in connection with securities
offerings by companies whose primary business is the development, ownership and
leasing of real properties including without limitation all real property and
financial information required by Form S-11 under the Securities Act of 1933 and
any other Securities and Exchange Commission filings required in connection with
BPA's IPO, any corresponding regulations of the Securities and Exchange
Commission and any comments by the Securities and Exchange Commission with
respect to its review of any such registration statement or filngs, (e.g.,
disclosure as to the condition of such properties and any present or prospective
improvements thereon, the vacancy experiences at such company's properties
(including in this case the vacancy experiences of space within the Greenburgh
Core Campus or the Mount Pleasant Core Campus), the tenants at such company's
properties, information regarding the credit worthiness of such tenants, the
relative space leased by such tenants, the durations (including extension or
expansion options) of the various leases, the rents and expense contributions
required under the leases, and other terms of the pertinent leases that
reasonably could be considered to be material to a decision to invest in a
company whose business it is to own property leased to such tenants), and (b)
any party to this transaction (and each employee, agent or representative
34
of the foregoing) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transaction and all materials
of any kind (including opinions or other tax analyses) that are provided to them
relating to such tax treatment and tax structure except to the extent
maintaining such confidentiality is necessary to comply with any applicable
federal or state securities laws. The authorization in the preceding sentence is
not intended to permit disclosure of any other information unrelated to the tax
treatment and tax structure of the transaction including (without limitation)
(i) any portion of the transaction documents or related materials to the extent
not related to the tax treatment or tax structure of the transaction, (ii) the
existence or status of any negotiations unrelated to the tax issues, or (iii)
any other term or detail not relevant to the tax treatment or the tax structure
of the transaction.
11.10 Attorneys' Fees. Should either party employ attorneys to enforce
any of the provisions hereof, the non-prevailing party agrees to pay the
prevailing party all reasonable costs, charges, and expenses, including
reasonable attorneys' fees, expended or incurred by the prevailing party in
connection therewith.
11.11 Notices. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in EXHIBIT
J. Any such notices shall be either (i) sent by overnight delivery using a
nationally recognized overnight courier, in which case notice shall be deemed
delivered one business day after deposit with such courier, (ii) sent by
facsimile, in which case notice shall be deemed delivered upon transmission of
such notice with confirmed receipt by the sender's machine, or (iii) sent by
personal delivery, in which case notice shall be deemed delivered upon receipt
or refusal of delivery. A party's address may be changed by written notice to
the other party; provided, however, that no notice of a change of address shall
be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice. The attorney for a party
has the authority to send notices on behalf of such party.
11.12 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
11.13 Remedies Cumulative. Except as expressly provided to the contrary
in this Agreement, the remedies provided in this Agreement shall be cumulative
and shall not preclude the assertion or exercise of any other rights or remedies
available by law, in equity or otherwise.
11.14 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Subject Land is located, in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday, or legal holiday. The last day
of any period of time described herein and the time during any day by which an
event must occur shall be deemed to end at 6 p.m., New York time.
11.15 Future Financial and SEC Requirements. Upon BPA's request, for a
period of two years after Lease Closing, Eastview shall make the books and
records of the Leased Land available to BPA for inspection, copying and audit by
BPA's designated accountants, and at BPA's expense. From and after the Effective
Date, Eastview shall provide BPA, but without
35
third-party expense to Eastview, with copies of, or access to, such factual
information as may be reasonably requested by BPA, and in the possession or
control of Eastview, to enable BPA to comply with applicable filing requirements
of the Securities and Exchange Commission ("SEC"). BPA or its designated
independent or other accountants may audit the operating statements of the
Leased Land, and Eastview shall supply such documentation in its possession or
control as BPA or its accountants may reasonably request in order to complete
such audit and shall provide to BPA's auditors a representation letter
appropriate for a privately held company from Eastview or its representative
reasonably satisfactory to Eastview and its auditors and reasonably satisfactory
to BPA's auditors in connection with such audit. BPA agrees that BPA's auditors
are the only persons entitled to rely on the representation letter and the
representation letter shall only be addressed to BPA's auditors. Neither the
representation letter nor any information furnished by Eastview to BPA's
auditors shall confer any rights upon, or create any liability to BPA beyond the
express terms of this Agreement including, without limitation, Paragraphs 10.3
and 10.5.
11.16 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile or
electronic PDF counterparts of the signature pages.
11.17 Section 1031 Exchange. Eastview may consummate the purchase of
Leased Land as part of a so-called like kind exchange (the "Exchange") pursuant
to Section 1031 of the Internal Revenue Code of 1986, as amended (the "Code"),
provided that: (i) Lease Closing shall not be delayed or affected by reason of
the Exchange nor shall the consummation or accomplishment of the Exchange be a
condition precedent or condition subsequent to Eastview's obligations under this
Agreement; (ii) Eastview shall effect the Exchange through an assignment of this
Agreement, or its rights under this Agreement, to a qualified intermediary;
(iii) BPA shall not be required to take an assignment of the purchase agreement
for the relinquished property or be required to acquire or hold title to any
real property for purposes of consummating the Exchange; and (iv) Eastview shall
pay any additional costs or liabilities that would not otherwise have been
incurred by BPA had Eastview not consummated its purchase through the Exchange.
BPA shall not by this agreement or acquiescence to the Exchange have its rights
under this Agreement affected or diminished in any manner or be responsible for
compliance with or be deemed to have warranted to BPA that the Exchange in fact
complies with Section 1031 of the Code.
11.18 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed or delivered by either party
at Lease Closing, each party agrees to perform, execute and deliver, on or after
Lease Closing any further actions, documents, and will obtain such consents, as
may be reasonably necessary or as may be reasonably requested to fully
effectuate the purposes, terms and conditions of this Agreement or to further
perfect the conveyance, transfer and assignment of Leased Land to BPA.
11.19 Waiver of Jury Trial. BPA AND EASTVIEW DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE DOCUMENTS DELIVERED BY BPA OR EASTVIEW AT CLOSING, OR ANY COURSE
OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ANY
ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER TO THIS
AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND
OR CANCEL
36
THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS AGREEMENT WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR EASTVIEW TO ENTER INTO AND ACCEPT THIS AGREEMENT AND THE
DOCUMENTS DELIVERED BY BPA AT CLOSING AND SHALL SURVIVE THE CLOSING OR
TERMINATION OF THIS AGREEMENT.
11.20 Memorandum of Agreement. BPA shall not record this Agreement nor
any memorandum of this Agreement in the land records for Westchester County and
any recording in violation of this Paragraph 11.20 shall constitute a material
default on the part of BPA hereunder.
11.21 TIME OF THE ESSENCE. TIME SHALL BE OF THE ESSENCE WITH RESPECT TO
THE PARTIES' OBLIGATIONS UNDER THIS AGREEMENT.
[Signature Page Follows]
37
SIGNATURE PAGE TO
AGREEMENT TO ENTER LEASE OF REAL PROPERTY
BY AND BETWEEN
EASTVIEW HOLDINGS LLC
AND
XXXXXXXX PROPERTY ADVISORS, INC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
Effective Date.
EASTVIEW: BPA:
EASTVIEW HOLDINGS LLC XXXXXXXX PROPERTY ADVISORS, INC.
By /s/ XXXXX X. XXXXX By /S/ XXXX X. GOLD
___________________________ _____________________________
Name: Xxxxx X. Xxxxx Xxxx X. Gold
Title: Senior Vice President Chairman, President and Chief Executive
Officer
38
Escrow Agent has executed this Agreement in order to confirm that Escrow Agent
shall act as escrowee with respect to and hold in escrow the Xxxxxxx Money and
the interest earned thereon, and shall disburse the Xxxxxxx Money and the
interest earned thereon, pursuant to the provisions of EXHIBIT E hereof.
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By /s/ XXXXX XXXXXXX
__________________________________
Name: Xxxxx Xxxxxxx
____________________________
Title: VP and Chief Commercial Counsel
___________________________
Dated: June 21, 2004
___________________________
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