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SALE AND PURCHASE AGREEMENT
between
AMPAL REALTY CORPORATION
as "Seller"
and
SECOND 800 LLC
as "Purchaser"
Date: As of November __, 2000
Premises:
--------
Xxxx 0 and Xxxx 0
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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Exhibit 10.i
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made as of the ____ day of November, 2000
(the "DATE OF THIS AGREEMENT") between AMPAL REALTY CORPORATION, a New York
corporation, with an office at c/o Ampal American-Israel Corporation, 1177
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 ("SELLER"), and SECOND 800 LLC,
a New York limited liability company, with an office at c/o Philips
International, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("PURCHASER").
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated:
SECTION 1.1. "AFFILIATE" means, with respect to any specified
Person, any other Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
specified Person. For purposes of this definition, the term "controls"
(including, with correlative meanings, the terms "controlled by" and "under
common control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through ownership of voting stock, by contract or otherwise.
SECTION 1.2. "BOARD OF MANAGERS" shall mean the Board of
Managers of the Condominium.
SECTION 1.3. "BUILDING" means the building commonly known as
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
SECTION 1.4. "BUSINESS DAY" means any day other than a
Saturday, Sunday or day on which the banks in New York, New York are authorized
or obligated by law to be closed.
SECTION 1.5. "CASH BALANCE" has the meaning given in Section
3.1.
SECTION 1.6. "CERCLA" means the Comprehensive Environmental,
Response, Compensation and Liability Act, 42 U.S.C. Sections 9601 and 9657
et seq., as amended.
SECTION 1.7. "CLOSING" has the meaning given in Section 7.1.
SECTION 1.8. "CLOSING DATE" has the meaning given in Section
7.1.
SECTION 1.9. "COMMON CHARGES" shall mean the General Common
Charges, Unit Expenses (as such terms are defined in the Declaration) and/or any
other sums assessed against the Units or payable by the owner of the Units
pursuant to the Condominium Documents.
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SECTION 1.10. "COMMON ELEMENTS" has the meaning given to such
term in the Declaration.
SECTION 1.11. "CONDOMINIUM" means the condominium regime
created by the Declaration and known as 000 Xxxxxx Xxxxxx Condominium.
SECTION 1.12. "CONDOMINIUM DOCUMENTS" means, collectively, the
Declaration and the By-Laws of the Condominium, as the same may be amended from
time to time.
SECTION 1.13. "CONFIDENTIAL INFORMATION" has the meaning given
in Section 21.1.
SECTION 1.14. "CONTRACTS" means collectively, (a) the Existing
Contracts which are in effect on the Closing Date and (b) the New Contracts
which are in effect on the Closing Date.
SECTION 1.15. "DECLARATION" means the Declaration establishing
a plan for condominium ownership of the Building and the Land under Article 9-B
of the Real Property Law of the State of New York, dated December 12, 1996 and
recorded January 31, 1997 in the Office of the Register of the City of New York,
County of New York in Reel 2418, Page 25, as amended by that certain First
Amendment to Declaration recorded in the Office of the Register of the City of
New York, County of New York in Reel 2588, Page 2104.
SECTION 1.16. "DEPOSITORY BANK" has the meaning given in
Section 3.1.
SECTION 1.17. "DOLLARS" OR "$" means lawful currency of the
United States of America, and all sums payable by either party to the other
pursuant to this Agreement shall be paid in Dollars.
SECTION 1.18. "DUE DILIGENCE EXPIRATION DATE" has the meaning
given in Section 12.1.
SECTION 1.19. "DUE DILIGENCE PERIOD" has the meaning given in
Section 12.1.
SECTION 1.20. "ELEPHANTX LEASE" means that certain lease dated
as of November 22, 1999 between Seller and Elephantx Dot Com LLC with respect to
space located in Unit 2.
SECTION 1.21. "ESCROW AGENT" means Xxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx LLP.
SECTION 1.22. "EXISTING CONTRACTS" means the service
contracts, maintenance contracts, brokerage agreements, union contracts,
management contracts, concession agreements, agency agreements and other written
contracts or agreements affecting the Units or the operation
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thereof which are in effect on the date hereof and which are listed on Exhibit D
annexed hereto and made a part hereof.
SECTION 1.23. "EXISTING LEASES" means the leases, licenses and
occupancy agreements (including all material modifications and amendments
thereto) affecting the Units which are in effect on the date hereof and which
are listed on Exhibit B annexed hereto and made a part hereof.
SECTION 1.24. "FIRST MORTGAGE" has the meaning given in
Section 3.1.
SECTION 1.25. "FIXED RENT" has the meaning given in Section
4.1.
SECTION 1.26. "GOVERNMENT" means the Government of Israel.
SECTION 1.27. "GOVERNMENTAL AUTHORITY" means the United
States, the State, County and City of New York, and any political subdivision,
agency, authority, department, court, commission, board, bureau or
instrumentality of any of the foregoing asserting jurisdiction over any of the
parties hereto or over the Units.
SECTION 1.28. "HAZARDOUS SUBSTANCES" means (a) those
substances included within the definitions of any one or more of the terms
"hazardous substances," "hazardous materials," "toxic substances," and
"hazardous waste" in CERCLA, RCRA and the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Sections 1801 et seq., and in the regulations
promulgated pursuant to such laws; (b) such other substances, materials and
wastes as are regulated under applicable local, state or federal environmental
laws or regulations, or which are classified as hazardous or toxic under
federal, state or local environmental laws or regulations; and/or (c) any
materials, wastes or substances that are (i) petroleum; (ii) friable asbestos;
(iii) polychlorinated biphenyls; (iv) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, as amended, 13 U.S.C.
Sections 1321 et seq. (33 U.S.C. Section 1321) or designated as "toxic
pollutants" pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section
1317); (v) flammable explosives; or (vi) radioactive materials. Hazardous
Substances shall not include materials or substances (x) lawfully sold by
tenants of the Units in the ordinary course of business or (y) customarily used
in the day-to-day operation and maintenance of the Units, such as cleaning
fluids and similar substances and materials.
SECTION 1.29. "LAND" means the parcel or parcels of land
described on Exhibit A annexed hereto and made a part hereof upon which the
Building is situate.
SECTION 1.30. "LEASES" means collectively, (a) the Existing
Leases which are in effect on the Closing Date and (b) the New Leases which are
in effect on the Closing Date.
SECTION 1.31. "LIQUIDATED SUM AMOUNT" means an amount equal to
Five Hundred Thousand and 00/100 ($500,000) Dollars.
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SECTION 1.32. "LIQUIDATED SUM TITLE EXCEPTION" means a Title
Exception that arises after the date hereof, but on or prior to the Closing
Date, which can be discharged solely by the payment of a liquidated sum of
money; provided, however, that the term "Liquidated Sum Title Exception" as used
in this Agreement shall not include the following: (a) any Voluntary Title
Exceptions; (b) any Title Exceptions that are approved, waived or deemed to have
been approved or waived by Purchaser or that are created in accordance with the
provisions of this Agreement; or (c) any Permitted Exceptions.
SECTION 1.33. "LOCAL LAW 5 VIOLATIONS" means Violations
relating to Local Law 5 and/or conditions relating thereto.
SECTION 1.34. "MAJOR CASUALTY" has the meaning given in
Section 15.1.
SECTION 1.35. "NEW CONTRACTS" means all new service contracts,
maintenance contracts, brokerage agreements, union contracts, management
contracts, concession agreements, agency agreements and other written contracts
or agreements affecting the Units or the operation thereof which are entered
into by Seller after the date hereof in accordance with the provisions of this
Agreement.
SECTION 1.36. "NEW LEASES" means all new leases, licenses and
occupancy agreements affecting the Units which are entered into by Seller after
the date hereof in accordance with the provisions of this Agreement.
SECTION 1.37. "NO-ACTION LETTER" has the meaning given in
Section 2.2.
SECTION 1.38. "NOTE" has the meaning given in Section 3.1.
SECTION 1.39. "NOTE AMOUNT" has the meaning given in Section
3.1.
SECTION 1.40. "OUTSIDE CLOSING DATE" has the meaning given in
Section 7.2.
SECTION 1.41. "OVERAGE RENT" has the meaning given in Section
4.2.
SECTION 1.42. "PERMITS" means any transferable governmental
licenses, permits, approvals and certificates which are in effect on the Closing
Date and are required or used in connection with the ownership or operation of
the Units.
SECTION 1.43. "PERMITTED EXCEPTIONS" has the meaning given in
Section 5.1.
SECTION 1.44. "PERMITTED INSPECTIONS" has the meaning given in
Section 12.1.
SECTION 1.45. "PERSON" means an individual, corporation,
limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
subdivision thereof.
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SECTION 1.46. "PERSONAL PROPERTY" means all equipment,
furniture, fittings, fixtures and articles of personal property affixed or
attached to, installed or placed in or upon and used for or useable in any
present or future enjoyment, occupancy or operation of the Units which is owned
by Seller.
SECTION 1.47. "POST-CONTRACT LEASE COSTS" has the meaning
given in Section 11.6.
SECTION 1.48. "PURCHASE MONEY MORTGAGE" has the meaning given
in Section 3.1.
SECTION 1.49. "PURCHASE PRICE" has the meaning given in
Section 3.1.
SECTION 1.50. "PURCHASER'S ADVERSE CHANGES" has the meaning
given in Section 10.4(a).
SECTION 1.51. "PURCHASER'S REPRESENTATION CERTIFICATE" has the
meaning given in Section 10.4(a).
SECTION 1.52. "RCRA" means the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. Sections 6901 et seq.
SECTION 1.53. "RELATED PARTIES" has the meaning given in
Section 22.1.
SECTION 1.54. "RESTORATION COSTS" has the meaning given in
Section 15.1.
SECTION 1.55. "SELLER LIQUIDATED SUM TITLE EXCEPTION NOTICE"
has the meaning given in Section 5.7.
SECTION 1.56. "SELLER'S ADVERSE CHANGES" has the meaning given
in Section 10.4(b).
SECTION 1.57. "SELLER'S REPRESENTATION CERTIFICATE" has the
meaning given in Section 10.4(b).
SECTION 1.58. "SURVIVAL PERIOD" has the meaning given in
Section 18.3.
SECTION 1.59. "TENANT ESTOPPEL CERTIFICATE" has the meaning
given in Section 11.7.
SECTION 1.60. "TERMINATION NOTICE" has the meaning given in
Section 12.1.
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SECTION 1.61. "TITLE EXCEPTION(S)" means any lien,
encumbrance, security interest, charge, reservation, lease, tenancy, easement,
right-of-way, encroachment, restrictive covenant, condition or limitation
affecting title to the Units.
SECTION 1.62. "TITLE INSURER" means any reputable title
insurance company authorized to conduct business in New York.
SECTION 1.63. "TO THE ACTUAL KNOWLEDGE OF SELLER" or words of
similar import means that Seller has actual knowledge of the information or
matter in question; it being understood that the use of such words is not
intended, and shall not be construed, to (x) imply any covenant that Seller
conduct, or have conducted, any inquiry or investigation of any kind or nature
or (y) impute to Seller the knowledge of any other Person, including, without
limitation, any managing or leasing agent or asset manager of the Units (other
than an Affiliate of Seller), any past owner of the Units or any past or present
tenant of any portion of the Units.
SECTION 1.64. "UNIT 1" means that certain condominium unit
designated and described as Unit 1 in the Declaration.
SECTION 1.65. "UNIT 2" means that certain condominium unit
designated and described as Unit 2 in the Declaration.
SECTION 1.66. "UNIT 3" means that certain condominium unit
designated and described as Unit 3 in the Declaration.
SECTION 1.67. "UNITS" means, collectively, those certain
condominium units designated and described as Unit 1 and Unit 2 in the
Declaration and identified as Block 1335, Lots 1001 and 1002 on the Tax Map of
the Borough of Manhattan, City of New York, together with an undivided 6.3%
interest in the Common Elements appurtenant to Unit 1 and an undivided 49.8%
interest in the Common Elements appurtenant to Xxxx 0, and all of Seller's
right, title and interest in, to and under the Personal Property, the Contracts,
the Leases, and the Permits.
SECTION 1.68. "VIOLATIONS" means all violations of law, notes
or notices of violations of law or governmental ordinances, orders or
requirements noted in or issued by the New York City Department of Housing and
Buildings, Fire, Labor, Health, Air Resource, Emergency Repair, Highway, or any
other governmental authority, including, without limitation, Local Law 5
Violations, and (ii) liens which may attach pursuant to any of the foregoing, in
each case whether such violations, notes, notices, orders, requirements or
liens, or the conditions giving rise thereto, existed or were noted or issued
prior to the date of this Agreement, or now or hereafter exist or come into
being.
SECTION 1.69. "VOLUNTARY TITLE EXCEPTION" means a Title
Exception that is knowingly and intentionally created by Seller after the date
hereof, but on or prior to the Closing Date, through the execution by Seller of
one or more instruments creating or granting such Title
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Exception; provided, however, that the term "Voluntary Title Exception" as used
in this Agreement shall not include the following: (a) any Permitted Exceptions;
(b) any Leases or any Title Exceptions created pursuant to a Lease by the tenant
thereunder or which, pursuant to any Lease or otherwise, are to be discharged by
a tenant or occupant of the Units; (c) any Title Exceptions that are approved or
waived by Purchaser or that are created in accordance with the provisions of
this Agreement; (d) any mechanic's or materialman's liens; or (e) any federal
tax liens.
ARTICLE II
SALE OF UNITS
SECTION 2.1. SALE AND PURCHASE OF UNITS. Seller agrees to sell
and convey, and Purchaser agrees to purchase, the Units, subject to the terms,
conditions and provisions of this Agreement. The parties agree that the Units
shall be conveyed together, and that Purchaser shall in no event be entitled to
purchase one of the Units and not the other.
SECTION 2.2. CONDITIONS TO THE SALE OF THE UNITS.
Notwithstanding anything to the contrary contained in this Agreement, Seller's
obligation to sell the Units to Purchaser is expressly conditioned as follows:
(a) The parties agree that in connection with Section
8(c) of the Declaration, between the date hereof and the Closing, Seller shall
submit an application requesting an exemption under Article 23-A of the General
Business Law of the State of New York by a rule or action of the New York State
Attorney General, or for a no-action letter, no jurisdiction letter or similar
advice to be issued by the New York State Department of Law in connection with
the sale of the Units by Seller to Purchaser (any such exemption or advice being
herein called the "NO-ACTION LETTER").
(i) Seller's obligations under this Agreement
shall be subject to Seller's obtaining such No-Action Letter on or prior to the
Closing Date. Seller shall notify Purchaser of its application for a No-Action
Letter, and Purchaser shall reasonably cooperate with Seller in connection
therewith, including (without limitation) the execution by Purchaser of such
affidavits or documents reasonably requested or required in connection with such
application. If Seller does not receive such No-Action Letter on or prior to the
Closing Date, then, at the election of either party, this Agreement shall
terminate, except that neither party shall have the right to terminate pursuant
to this provision if Seller's counsel provides its written opinion that the
transfer complies with the requirements of the New York General Business Law and
the Declaration. In the event of termination pursuant to this subsection (i),
Purchaser shall be entitled to the return of the Cash Deposit (together with any
interest earned thereon), and neither party hereto shall have any further
obligations or liabilities to the other with respect to the Units (or under this
Agreement), except for those which expressly survive the termination of this
Agreement.
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(ii) If Seller does not receive a No-Action
Letter on or prior to the Closing Date but the transaction closes pursuant to
this Agreement, then the deed for the Units executed and delivered by Seller to
Purchaser at the Closing shall include a covenant whereby Purchaser agrees to be
bound by the transfer restrictions set forth in Section 8(c) of the Declaration.
ARTICLE III
PURCHASE PRICE
SECTION 3.1. PAYMENT OF PURCHASE PRICE.
(a) Subject to the provisions of Section 3.1(b)
below, the purchase price (the "PURCHASE PRICE") for the Units is THIRTY THREE
MILLION ($33,000,000) DOLLARS, payable by Purchaser as follows:
(i) Two Million Four Hundred Seventy Five
Thousand ($2,475,000) Dollars on the signing of this Agreement (the
"CASH DEPOSIT"), either (i) by wire transfer of immediately available
federal funds to a branch of The Boston Safe Deposit and Trust Company
d/b/a Mellon, located in Boston, Massachusetts (the "DEPOSITORY BANK"),
Account of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, Attorney
Trust Account, Account Number 229121, ABA Number 000000000, or (ii) by
Purchaser's unendorsed check, subject to collection, drawn to the order
of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, as Escrow Agent,
the receipt of which is hereby acknowledged by Escrow Agent. The Cash
Deposit shall be increased upon the Due Diligence Expiration Date in
accordance with Section 12.1 hereof. The Cash Deposit shall be held and
disbursed in accordance with the provisions set forth in Section 3.2
below. The parties hereby agree that the Cash Deposit shall be held at
the Depository Bank, and the parties have acknowledged the same to
Escrow Agent in a separate writing simultaneously with the execution of
this Agreement;
(ii) Twenty Eight Million Seven Hundred Thousand
($28,700,000) Dollars (the "CASH BALANCE") at the Closing, to be paid
by Purchaser to Seller pursuant to the provisions of Section 3.1(c);
and
(iii) One Million ($1,000,000) Dollars (the
"NOTE AMOUNT") by Purchaser's execution and delivery to Seller at the
Closing of a note (the "NOTE") secured by a purchase money mortgage
(the "PURCHASE MONEY MORTGAGE"), stating an annual interest rate equal
to 14% compounded monthly, interest to accrue to maturity, and maturing
on the date which is five (5) years from the Closing Date. The Purchase
Money Mortgage shall be deemed a Permitted Exception. Purchaser shall
pay the recording taxes due in connection with the recording of the
Purchase Money Mortgage. If forms of the Note and the Purchase Money
Mortgage are not attached to this Agreement as Exhibit L and Exhibit M,
respectively, then such
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documents shall be drawn by Seller's counsel and shall generally be on
the New York Board of Title Underwriter's printed forms for such
instruments, but shall provide that (A) the Purchase Money Mortgage may
be subordinate to a first mortgage (the "FIRST MORTGAGE") of no more
than 85% of the Purchase Price, given to an institutional lender or
independent third party, (B) it shall be an event of default under the
Purchase Money Mortgage if there exists a default under the First
Mortgage, (C) after an event of default under the Purchase Money
Mortgage, the default rate of interest shall be the lesser of (x) 5%
more than the stated interest rate of the Note, and (y) the highest
interest rate permitted by law, (D) the mortgagor under the Purchase
Money Mortgage shall be obligated to pay the costs and expenses of
enforcement and collection (including, without limitation, attorneys'
fees and disbursements) of the mortgagee, and (E) the Purchase Money
Mortgage shall only be prepayable in whole upon the payment of a fee
calculated on a yield maintenance basis, including the payment of the
Purchase Money Mortgage on an involuntary basis or in foreclosure.
Notwithstanding the preceding provision of this subsection (iii), if
Purchaser's lender in connection with the Closing will not permit a
subordinate mortgage, then the Note will be secured by a personal
unconditional guarantee of Xxxxxx Xxxxxxxx, in reasonable form, to be
drafted by Seller's counsel.
(b) Notwithstanding anything to the contrary
contained in this Article 3, Seller may, at its sole option, upon notice given
to Purchaser not less than forty-five (45) days prior to the date scheduled for
the Closing, elect to require the Note Amount to be paid in cash at the Closing,
in which event (i) the Cash Balance shall be Twenty Nine Million Seven Hundred
Thousand and 00/100 ($29,700,000) Dollars, which amount shall be paid in
accordance with Section 3.1(c) hereof, and (ii) there shall be no Note or
Purchase Money Mortgage.
(c) The Cash Balance as determined in accordance with
Sections 3.1(a) and 3.1(b) above (i.e., either $28,700,000 or $29,700,000) shall
be paid at Closing by wire transfer of immediately available federal funds
transferred to one or more bank accounts designated by Seller, provided that
Seller shall have the right, to be exercised by written notice given to
Purchaser at least two (2) Business Days prior to the Closing, to require
Purchaser to pay a portion of the Cash Balance by one or more separate
unendorsed official bank or certified checks, each to be drawn on the New York
office of a member bank of the New York Clearinghouse Association, and each to
be payable to the unendorsed order of Seller or Seller's designee. If Seller
elects to cause Purchaser to pay a portion of the Cash Balance by one or more
unendorsed official bank or certified check(s) as aforesaid, then Seller's
exercise notice shall set forth (i) the portion of the Cash Balance to be so
paid, (ii) the number of official bank checks to be drawn and (iii) the payee(s)
thereof. With respect to the portion of the Cash Balance to be paid by wire
transfer, Seller, at least two (2) Business Days prior to the Closing, shall
notify Purchaser in writing of the designated bank account(s) and the wiring
instructions therefor.
SECTION 3.2. ESCROW OF CASH DEPOSIT.
(a) The Cash Deposit shall be delivered to Escrow
Agent in accordance with the provisions of Section 3.1 hereof, and shall be held
by Escrow Agent until the Closing or sooner termination of this Agreement.
Escrow Agent shall pay over or apply the Cash
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Deposit in accordance with the terms of this Section 3.2. Any interest earned on
the Cash Deposit shall be paid to the same party entitled to the Cash Deposit
hereunder (as and when such party is entitled to the Cash Deposit), and the
party receiving such interest shall pay any income taxes thereon. For purposes
thereof, the tax identification number of Seller is 00-0000000. Purchaser has
advised Seller that Purchaser's tax identification number is being applied for,
and that in any event, Escrow Agent shall have no obligation to deliver any
portion of the Cash Deposit, including any interest, to Purchaser pursuant to
the terms of this Agreement unless and until Purchaser has delivered its tax
identification number to Escrow Agent.
(b) At the Closing, the Cash Deposit and the interest
thereon, if any, shall be paid by Escrow Agent to Seller. Interest earned on the
Cash Deposit shall not be credited against the Cash Balance.
(c) If for any reason the Closing does not occur,
then Escrow Agent shall continue to hold the Cash Deposit and the interest
thereon, if any, until otherwise directed by joint written instructions from
Seller and Purchaser or a final judgment of a court having jurisdiction. Escrow
Agent, however, shall have the right at any time to deposit the Cash Deposit and
the interest thereon with the clerk of any federal or state court sitting in the
State of New York. Escrow Agent shall give written notice of such deposit to
Seller and Purchaser. Upon such deposit, Escrow Agent shall be relieved and
discharged of all further obligations and responsibilities hereunder.
(d) The parties acknowledge that Escrow Agent (i) is
acting solely as a stakeholder at their request and for their convenience, (ii)
shall not be deemed to be the agent of either of the parties and (iii) shall not
be liable to either of the parties for any act or omission on its part unless
taken or suffered in bad faith, willful disregard of this Agreement or involving
gross negligence. Seller and Purchaser shall jointly and severally indemnify and
hold Escrow Agent harmless from and against all costs, claims and expenses,
including reasonable attorneys' fees and disbursements, incurred in connection
with the performance of Escrow Agent's duties hereunder, except with respect to
actions or omissions taken or suffered by Escrow Agent in bad faith, willful
disregard of this Agreement or involving gross negligence on the part of Escrow
Agent.
(e) Escrow Agent shall endeavor to invest the Cash
Deposit in an interest bearing money market account in the Depository Bank.
Escrow Agent shall not be liable for any losses suffered in connection with any
such investment and shall have no obligation to obtain the best, or otherwise
seek to maximize, the rate of interest earned on any such investment. Any fees
or charges in connection with such investment shall be paid out of the amounts
held in escrow before any other payments shall be required to be made from such
amounts.
(f) Upon any delivery of the Cash Deposit as provided
in Section 3.2(b) or 3.2(c) above, Escrow Agent shall be relieved of all
liability, responsibility or obligation with respect to or arising out of the
escrow or under this Agreement. Escrow Agent shall not be
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bound by any modification to this Section 3.2 unless Escrow Agent shall have
agreed to such modification in writing.
(g) Escrow Agent shall be entitled to rely or act
upon any notice, instrument or document believed by Escrow Agent to be genuine
and to be executed and delivered by the proper person, and shall have no
obligation to verify any statements contained in any notice, instrument or
document or the accuracy or due authorization of the execution of any notice,
instrument or document.
(h) Escrow Agent shall be entitled to retain
attorneys of its choice, including itself, in connection with this escrow, and
Escrow Agent may continue to represent Seller in connection with this Agreement,
or any dispute which may arise hereunder or otherwise.
(i) Escrow Agent has acknowledged agreement to the
foregoing provisions of this Section 3.2 by signing in the place indicated on
the signature page of this Agreement.
ARTICLE IV
ADJUSTMENTS
The following are to be adjusted and prorated between Seller
and Purchaser as of 11:59 p.m. on the day preceding the Closing Date, based upon
a 365 day year, and the net amount thereof shall be added to (if such net amount
is in Seller's favor) or deducted from (if such net amount is in Purchaser's
favor) the Cash Balance:
SECTION 4.1. FIXED RENT.
(a) Fixed rent (collectively, "FIXED RENT") paid or
payable by tenants in connection with their occupancy shall be adjusted and
prorated on an if, as and when collected basis. Any Fixed Rent collected by
Purchaser or Seller after the Closing from any tenant who owes Fixed Rent for
periods prior to the Closing, shall be applied (i) first, in payment of Fixed
Rent owed by such tenant for the month next preceding the month in which the
Closing Date occurs, (ii) second, in payment of Fixed Rent owed by such tenant
for the month in which the Closing Date occurs, (iii) third, in payment of Fixed
Rent owed by such tenant for the period (if any) after the month in which the
Closing Date occurs through the end of the month in which such amount is
collected and (iv) fourth, after Fixed Rent for all current periods have been
paid in full, in payment of Fixed Rent owed by such tenant for the period prior
to the month preceding the month in which the Closing Date occurs. Each such
amount, less any costs of collection (including reasonable counsel fees)
reasonably allocable thereto, shall be adjusted and prorated as provided above,
and the party who receives such amount shall promptly pay over to the other
party the portion thereof to which it is so entitled. In furtherance and not in
limitation of the preceding sentence, with respect to any tenant which has paid
all Fixed Rent for periods through the Closing, if, prior to the Closing, Seller
shall receive any prepaid Fixed Rent from such tenant attributable to a period
following the Closing, at the Closing, Seller shall pay over to Purchaser
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the amount of such prepaid Fixed Rent.
(b) Purchaser shall xxxx tenants who owe Fixed Rent
for periods prior to the Closing on a monthly basis for a period of six (6)
consecutive months following the Closing Date in the same manner that Purchaser
bills tenants for Fixed Rent subsequent to the Closing; provided, however, that
Purchaser shall have no obligation to commence any actions or proceedings to
collect any such past due Fixed Rent. Notwithstanding the foregoing, if
Purchaser shall be unable to collect such past due Fixed Rent, Seller shall have
the right, upon prior written notice to Purchaser, to pursue tenants to collect
such delinquencies (including, without limitation, the prosecution of one or
more lawsuits), but Seller shall not be entitled to evict (by summary
proceedings or otherwise) any such tenants. Any payment by a tenant in an amount
less than the full amount of Fixed Rent and Overage Rent then due and payable by
such tenant shall be applied first to Fixed Rent (in the order of priority as to
time periods as is set forth in Section 4.1(a) above) to the extent of all such
Fixed Rent then due and payable by such tenant, and thereafter to Overage Rent
(in the order of priority as to time periods as is set forth in Section 4.2
below).
(c) Seller and Purchaser acknowledge that the
Consideration Payment and the Expansion Consideration Payment, as such terms are
defined in the Elephantx Lease, are not considered rent, prepaid rent or free
rent thereunder, but constitute amounts payable to Seller. Seller represents
that the Consideration Payment has been paid as of the date hereof, and the
Expansion Consideration Payment is currently due and owing to Seller and will be
made to Seller on or prior to the Closing. Seller and Purchaser expressly agree
that neither the Consideration Payment nor the Expansion Consideration Payment
shall be adjusted, that Seller is entitled to retain the full amounts thereof,
whether any portion of such amounts are paid prior to or following the Closing,
and that Purchaser shall have no right to any portion of the same.
SECTION 4.2. OVERAGE RENT.
(a) With respect to any Lease that provides for (i)
the payment of additional rent based upon a percentage of the tenant's business
during a specified annual or other period (sometimes referred to as "percentage
rent"), (ii) so-called common area maintenance or "cam" charges or (iii)
so-called "escalation rent" or additional rent based upon, among other things,
increases in real estate taxes or operating expenses or labor costs or cost of
living or xxxxxx'x wages or otherwise (such percentage rent, cam charges,
escalation rent and additional rent being collectively called "OVERAGE RENT"),
such Overage Rent shall be adjusted and prorated on an if, as and when collected
basis.
(b) As to any Overage Rent in respect of an
accounting period that shall have expired prior to the Closing but which shall
be paid after the Closing, Purchaser agrees that it will pay the entire amount
over to Seller upon receipt thereof, less any costs of collection (including
reasonable counsel fees) reasonably allocable thereto. Purchaser agrees that it
shall (i) promptly render bills for any Overage Rent in respect of an accounting
period that shall have expired prior to the Closing but which shall be paid
after the Closing, (ii) xxxx tenants such
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Overage Rent attributable to an accounting period that shall have expired prior
to the Closing on a monthly basis for a period of six (6) consecutive months
thereafter and (iii) xxxx tenants to collect Overage Rent in the same manner
that Purchaser bills tenants for Fixed Rent subsequent to the Closing; provided,
however, that Purchaser shall have no obligation to commence any actions or
proceedings to collect any such Overage Rent. Notwithstanding the foregoing, if
Purchaser shall be unable to collect such Overage Rent, Seller shall have the
right, upon prior written notice to Purchaser, to pursue tenants to collect such
delinquencies (including, without limitation, the prosecution of one or more
lawsuits), but Seller shall not be entitled to evict (by summary proceedings or
otherwise) any such tenants. Seller shall furnish to Purchaser all information
relating to the period prior to the Closing that is reasonably necessary for the
billing of such Overage Rent, and Purchaser will deliver to Seller, concurrently
with the delivery to tenants, copies of all statements relating to Overage Rent
for a period prior to the Closing. Purchaser shall xxxx tenants for Overage Rent
for accounting periods prior to the Closing in accordance with and on the basis
of such information furnished by Seller, which information shall be true and
accurate to the best of Seller's knowledge.
(c) Overage Rent in respect of the accounting period
in which the Closing occurs shall be apportioned between Seller and Purchaser as
of 11:59 p.m. of the day preceding the Closing Date, with Seller receiving the
proportion of such Overage Rent (less a like portion of any costs and expenses
(including reasonable counsel fees) incurred in the collection of such Overage
Rent) that the portion of such accounting period prior to the Closing Date bears
to the entire such accounting period, and Purchaser receiving the proportion of
such Overage Rent (less a like portion of any costs and expenses (including
reasonable counsel fees) incurred in the collection of such Overage Rent) that
the portion of such accounting period from and after the Closing Date bears to
the entire such accounting period. If, prior to the Closing, Seller shall
receive any installments of Overage Rent attributable to Overage Rent for
periods from and after the Closing Date, such sum shall be apportioned at the
Closing. If, after the Closing, Purchaser shall receive any installments of
Overage Rent attributable to Overage Rent for periods prior to the Closing, such
sum (less any costs and expenses (including reasonable counsel fees) incurred by
Purchaser in the collection of such Overage Rent) shall be paid by Purchaser to
Seller promptly after Purchaser receives payment thereof.
(d) Any payment by a tenant on account of Overage
Rent (to the extent not applied against Fixed Rent due and payable by such
tenant in accordance with Section 4.1(b) above) shall be applied to Overage Rent
then due and payable in the following order of priority, (i) first, in payment
of Overage Rent for the accounting period preceding the accounting period in
which the Closing Date occurs and (ii) second, in payment of Overage Rent for
the accounting period in which the Closing Date occurs, in the chronological
order in which such payments are due for such accounting period pursuant to the
applicable lease.
(e) To the extent that any portion of Overage Rent is
required to be paid monthly by tenants on account of estimated amounts for any
calendar year (or, if applicable, any lease year or tax year or any other
applicable accounting period), and at the end of such calendar year (or lease
year, tax year or other applicable accounting period, as the case may be),
15
such estimated amounts are to be recalculated based upon the actual expenses,
taxes and other relevant factors for that calendar (lease or tax) year or other
applicable accounting period, with the appropriate adjustments being made with
such tenants, then such portion of the Overage Rent shall be prorated between
Seller and Purchaser at the Closing based on such estimated payments (i.e., with
Seller entitled to retain all monthly or other periodic installments of such
amounts paid with respect to periods prior to the calendar month or other
applicable installment period in which the Closing occurs, Seller to pay to
Purchaser at the Closing all monthly or other periodic installments of such
amounts theretofore received by Seller with respect to periods following the
calendar month or other applicable installment period in which the Closing
occurs and Seller and Purchaser to apportion as of the Closing Date all monthly
or other periodic installments of such amounts with respect to the calendar
month or other applicable installment period in which the Closing occurs). At
the time(s) of final calculation and collection from (or refund to) each tenant
of the amounts in reconciliation of actual Overage Rent for a period for which
estimated amounts paid by such tenant have been prorated, there shall be a
re-proration between Seller and Purchaser. If, with respect to any tenant, the
recalculated Overage Rent exceeds the estimated amount paid by such tenant, (i)
the portion of the excess actually received by Purchaser shall be paid by
Purchaser to Seller, if the accounting period for which such recalculation was
made expired prior to the Closing and (ii) such excess shall be apportioned
between Seller and Purchaser as of the Closing Date (on the basis described in
the first sentence of Section 4.2(c) above), if the Closing occurred during the
accounting period for which such recalculation was made, with Purchaser paying
to Seller the portion of such excess which Seller is so entitled to receive. If,
with respect to any tenant, the recalculated Overage Rent is less than the
estimated amount paid by such tenant, (1) the entire shortfall shall be paid by
Seller to Purchaser (or, at Seller's option, directly to the tenant in
question), if the accounting period for which such recalculation was made
expired prior to the Closing and (2) such shortfall shall be apportioned between
Seller and Purchaser as of the Closing Date (on the basis described in the first
sentence of Section 4.2(c) above), if the Closing occurred during the accounting
period for which such recalculation was made, with Seller paying to Purchaser
(or, at Seller's option, directly to the tenant in question) the portion of such
shortfall so allocable to Seller.
(f) Until such time as all amounts required to be
paid to Seller by Purchaser pursuant to Section 4.1 and this Section 4.2 shall
have been paid in full, Purchaser shall furnish to Seller not less frequently
than every sixty (60) days, a reasonably detailed accounting of such amounts
payable by Purchaser, which accounting shall be delivered to Seller on or prior
to the 15th day following the last day of each calendar month from and after the
calendar month in which the Closing occurs. Seller shall have the right from
time to time following the Closing, on prior notice to Purchaser, during
ordinary business hours on Business Days, to review Purchaser's rental records
with respect to the Units to ascertain the accuracy of such accountings.
SECTION 4.3. TAXES AND ASSESSMENTS. Real estate taxes shall be
adjusted and prorated on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessed valuation is fixed for the
Units, the apportionment of real estate taxes for the Units shall be upon the
basis of the tax rate for the preceding year applied to the most recently
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applicable assessed valuation of the Units, subject to further and final
adjustment when the tax rate and/or assessed valuation for the Units is fixed
for the year in which the Closing occurs. In the event that the Units or any
part thereof shall be or shall have been affected by an assessment or
assessments, whether or not the same become payable in annual installments,
Seller shall, at the Closing, be responsible for any installments due prior to
the Closing and Purchaser shall be responsible for any installments due on or
after the Closing.
SECTION 4.4. WATER AND SEWER CHARGES. Water rates, water meter
charges, sewer rents and vault charges, if any (other than any such charges,
rates or rents which are payable by tenants of the Units pursuant to such
tenants' leases), shall be adjusted and prorated on the basis of the fiscal
period for which assessed. If there be a water meter, or meters, with respect to
the Units, Seller agrees that it shall at the Closing furnish a reading of same
to a date not more than 30 days prior to the Closing and the unfixed meter
charges and the unfixed sewer rent thereon for the time intervening from the
date of the last reading shall be apportioned on the basis of such last reading,
and shall be appropriately readjusted after the Closing on the basis of the next
subsequent bills. Unmetered water charges shall be apportioned on the basis of
the charges therefor for the same period of the preceding calendar year, but
applying the current rate thereto. As to any unpaid water charges or sewer rents
payable by tenants, Purchaser shall close title and accept the delivery of the
deed for the Units subject to such unpaid charges and rents and any lien
resulting therefrom, without credit against the Purchase Price or any claim or
right of action against Seller.
SECTION 4.5. UTILITY CHARGES. Gas, steam, electricity and
other public utility charges (other than any such charges which are payable by
tenants of the Units pursuant to such tenants' leases) will be paid by Seller to
the utility company to the Closing Date. Seller shall arrange for a final
reading of all utility meters (covering gas, steam and electricity) as of the
Closing, except meters the charges of which are payable by tenants of the Units
pursuant to such tenants' leases. At the Closing, Seller and Purchaser shall
jointly execute a letter to each of such utility companies advising such utility
companies of the termination of Seller's responsibility for such charges for
utilities furnished to the Units as of the date of the Closing and commencement
of Purchaser's responsibilities therefor from and after such date. If a xxxx is
obtained from any such utility company as of the Closing, Seller shall pay such
xxxx on or before the Closing. If such xxxx shall not have been obtained on or
before the Closing, Seller shall, upon receipt of such xxxx, pay all such
utility charges as evidenced by such xxxx or bills pertaining to the period
prior to the Closing, and Purchaser shall pay all such utility charges
pertaining to the period thereafter. Any xxxx which shall be rendered which
shall cover a period both before and after the date of Closing shall be
apportioned between Purchaser and Seller as of the Closing.
SECTION 4.6. CONTRACTS. Charges, payments and deposits under
all Contracts, subject to the provisions of Sections 4.12 and 8.1(e) hereof.
SECTION 4.7. PERMITS. Charges, payments and deposits under all
Permits.
SECTION 4.8. FUEL. Fuel on hand, if any, based on an estimate
provided by Seller's fuel supplier, at Seller's cost valued at the price
therefor charged by such supplier including any applicable taxes.
17
SECTION 4.9. COMMON CHARGES AND ASSESSMENTS. Common Charges
and any other assessments of the Condominium applicable to the Units (including
any assessments payable by the owner of the Units with respect to work performed
in connection with Local Law 5 Violations). The parties agree that Purchaser
shall be responsible for all assessments or portions thereof which have not been
billed as of the Closing Date, and for portions of existing assessments not yet
payable as of the Closing Date which are applicable to the Units.
SECTION 4.10. MISCELLANEOUS REVENUES AND EXPENSES. Revenues
and expenses, if any, arising out of telephone booths, vending machines, or
other income-producing agreements.
SECTION 4.11. POST-CONTRACT LEASE COSTS. Any sums payable by
Seller pursuant to Section 11.6 below with respect to the transactions described
in said Section 11.6.
SECTION 4.12. OTHER. Any other item which, under the terms of
this Agreement, is to be apportioned at Closing.
If any such items are not determinable at the Closing, the adjustment shall be
made subsequent to the Closing when the charge is determined. Any errors or
omissions in computing adjustments at the Closing shall be promptly corrected,
provided that the party seeking to correct such error or omission shall have
notified the other party of such error or omission on or prior to the date that
is one (1) year following the Closing Date. The provisions of this Article IV
shall survive the Closing.
ARTICLE V
TITLE AND PERMITTED EXCEPTIONS
SECTION 5.1. PERMITTED EXCEPTIONS. The Units shall be sold and
are to be conveyed, and Purchaser agrees to purchase the Units, subject to (a)
those matters set forth on Exhibit E annexed hereto, (b) the Title Exceptions
that the Title Insurer or Chicago Title Insurance Company shall be willing to
omit as exceptions to coverage, (c) the Title Exceptions that are addressed by
affirmative insurance in that certain title report delivered by Purchaser and
issued by First American Title Insurance Company of New York dated September 6,
2000, as amended (e.g., with respect to encroachments, and as stated in Item 14
of Schedule B of said title report), (d) the standard exceptions and provisions
contained in the form of insuring agreement employed by the Title Insurer and
(e) any exceptions and matters that are approved or waived by Purchaser (the
liens, claims, encumbrances, exceptions and matters set forth in subclauses (a)
through (e) above with respect to the Units being collectively referred to as
the "PERMITTED EXCEPTIONS").
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SECTION 5.2. USE OF PURCHASE PRICE TO DISCHARGE TITLE. If, at
the Closing, there are any Title Exceptions which are not Permitted Exceptions
and which Seller is obligated by this Agreement or elects to pay and discharge,
Seller may use any portion of the Cash Balance to satisfy the same, provided
that Seller shall have delivered to Purchaser at the Closing instruments in
recordable form sufficient to satisfy and omit such Title Exceptions of record,
together with the cost of any applicable recording or filing fees. Purchaser, if
request is made within two (2) Business Days prior to the Closing, agrees to
provide at the Closing separate certified or cashier's checks as requested,
aggregating up to the amount of the Cash Balance, to facilitate the satisfaction
of any such Title Exceptions. The existence of any such liens or encumbrances
shall not be deemed objections to title if Seller shall comply with the
foregoing requirements. Any unpaid liens for taxes, water charges and
assessments applicable to the period prior to the Closing Date shall not be
objections to title, but the amount thereof plus any interest and penalties
thereon shall be deducted from the Cash Balance, subject to the provisions for
apportionment of taxes, water charges and assessments contained in Article IV of
this Agreement.
SECTION 5.3. INABILITY TO CONVEY. Except as expressly set
forth in Sections 5.5 and 5.6, nothing contained in this Agreement shall be
deemed to require Seller to take or bring any action or proceeding or any other
steps to remove any Title Exception or to expend any moneys therefor, nor shall
Purchaser have any right of action against Seller, at law or in equity, for
Seller's inability to convey title in accordance with the terms of this
Agreement.
SECTION 5.4. RIGHTS IN RESPECT OF INABILITY TO CONVEY. In the
event that Seller shall be unable to convey title to the Units, subject to the
Permitted Exceptions, and Purchaser shall not, prior to the Closing Date (as it
may have been adjourned in accordance with this Agreement), give notice to
Seller that Purchaser is willing to waive objection to each Title Exception
which is not a Permitted Exception and close this transaction without abatement
of the Purchase Price, credit or allowance of any kind or any claim or right of
action against Seller for damages or otherwise, Seller shall have the right, at
Seller's sole election, to either (1) take such action as Seller shall deem
advisable to discharge each such Title Exception which is not a Permitted
Exception or (2) terminate this Agreement. In the event Seller shall elect to
take action to discharge each such Title Exception which is not a Permitted
Exception, Seller shall be entitled to one or more adjournments of the Closing
Date for a period not to exceed ninety (90) days in the aggregate (inclusive of
any adjournments made by Seller pursuant to Sections 5.5 and 5.6 hereof), and
the Closing shall be adjourned to a date specified by Seller not beyond such
ninety (90) day period. If, for any reason whatsoever, Seller shall not have
succeeded in discharging each such Title Exception at the expiration of such
adjournment(s) and if Purchaser shall not, prior to the expiration of the last
of such adjournments, give notice to Seller that Purchaser is willing to waive
objection to each such Title Exception and to close this transaction without
abatement of the Purchase Price, credit or allowance of any kind or any claim or
right of action against Seller for damages or otherwise, this Agreement shall be
deemed to be terminated as of the last date to which the Closing Date was
adjourned by Seller pursuant to this Article V. Upon any termination of this
Agreement pursuant to this Section 5.4, (I) the Cash Deposit (together with any
interest earned thereon) shall be returned to Purchaser and (II) neither party
19
shall have any further rights or obligations hereunder other than those which
expressly survive the termination of this Agreement. No action taken by Seller
to discharge, or attempt to discharge, any purported Title Exception shall be an
admission that any such purported Title Exception is not a Permitted Exception.
The provisions of this Section 5.4 shall be subject to Seller's and Purchaser's
rights and obligations with respect to Voluntary Title Exceptions and Liquidated
Sum Title Exceptions as set forth in Sections 5.5 and 5.6 below, respectively.
SECTION 5.5. VOLUNTARY TITLE EXCEPTIONS. If, from time to time
prior to the Closing, Purchaser shall become aware of any Voluntary Title
Exceptions, then Purchaser shall promptly notify Seller thereof, which notice
shall describe in reasonable detail the Voluntary Title Exceptions(s). Seller
shall discharge all Voluntary Title Exceptions on or prior to Closing. Seller
shall be entitled to one or more adjournments of the Closing Date not to exceed
ninety (90) days in the aggregate (inclusive of any adjournments made by Seller
pursuant to Sections 5.4 and 5.6 hereof) to discharge Voluntary Title
Exceptions. If Seller shall not discharge all Voluntary Title Exceptions on or
prior to Closing, then same shall constitute a material default under this
Agreement on the part of Seller.
SECTION 5.6. LIQUIDATED SUM TITLE EXCEPTIONS. On or prior to
Closing, Seller shall discharge all Liquidated Sum Title Exceptions; provided,
however, that Seller's obligations under this Section 5.6 shall be subject to
and limited by the following provisions:
(a) Notwithstanding the foregoing provisions of this
Section 5.6, Seller shall have no obligation to expend more than the Liquidated
Sum Amount in the aggregate in order to cause all Liquidated Sum Title
Exceptions to be discharged. Seller shall be entitled to one or more
adjournments of the Closing Date not to exceed ninety (90) days in the aggregate
(inclusive of any adjournments made by Seller pursuant to Sections 5.4 and 5.5
above) to discharge Liquidated Sum Title Exceptions.
(b) If, from time to time and at any time at or prior
to the Closing, Seller shall determine that the sum of (i) the cost to discharge
all then undischarged Liquidated Sum Title Exceptions, plus (ii) all amounts
expended by Seller on or prior to such date (but after the date of this
Agreement) to discharge any Liquidated Sum Title Exceptions shall exceed the
Liquidated Sum Amount, then Seller may (but shall not be obligated to) notify
Purchaser thereof (the "SELLER LIQUIDATED SUM TITLE EXCEPTION NOTICE"), which
notice shall describe in reasonable detail (x) the Liquidated Sum Title
Exceptions that are then in existence and have not been discharged and (y) the
amounts expended by Seller on or prior to such date (but after the date of this
Agreement) to discharge any Liquidated Sum Title Exceptions, together with
documentation reasonably evidencing the same. If Seller shall give a Seller
Liquidated Sum Title Exception Notice to Purchaser, then Purchaser shall have
the right, as and for its sole and exclusive remedy, to elect one of the
following two alternatives:
(i) Purchaser may elect to close otherwise in
accordance with this Agreement, notwithstanding the existence of such
Liquidated Sum Title Exceptions. If Purchaser so elects, then, subject
to Purchaser's rights with respect to
20
any Voluntary Title Exceptions as set forth in Section 5.5 above, (1)
Purchaser shall be deemed to have waived all of the Title Exceptions
(including, without limitation, the Liquidated Sum Title Exceptions)
that were not discharged on or prior to the Closing and the same shall
not be grounds for an objection to title, (2) Purchaser shall not have
any right of action against Seller for or in connection with such
undischarged Title Exceptions, at law or in equity and (3) Purchaser
shall receive a credit against the Purchase Price in an amount equal to
the lesser of (x) the aggregate amount needed to discharge such
undischarged Liquidated Sum Title Exceptions and (y) the excess of the
Liquidated Sum Amount over the amounts expended by Seller on or prior
to the Closing Date (but after the date of this Agreement) to discharge
any Liquidated Sum Title Exceptions; or
(ii) Purchaser, by written notice given to
Seller on or prior to the Closing Date (as so adjourned), may elect to
terminate this Agreement. If Purchaser shall fail to notify Seller of
such election on or prior to the Closing Date (as so adjourned), then
Purchaser shall irrevocably be deemed to have elected to proceed to
Closing as provided in clause (i) of this Section 5.6(b). If this
Agreement is terminated pursuant to this Section 5.6(b)(ii), then (I)
the Cash Deposit (together with any interest earned thereon) shall be
returned to Purchaser and (II) neither party shall have any further
rights or obligations hereunder other than those which expressly
survive the termination of this Agreement.
SECTION 5.7. VIOLATIONS. Seller shall have no responsibility
or obligation with respect to Violations, and Purchaser shall accept title to
the Units subject to all Violations existing as of the date hereof or which may
arise after the date hereof, without claim or offset, or abatement or reduction
of the Purchase Price.
SECTION 5.8. PURCHASER'S RIGHT TO ACCEPT TITLE.
Notwithstanding the foregoing provisions of this Article V, Purchaser may, by
notice given to Seller at any time prior to the Closing Date (as it may have
been adjourned by Seller pursuant to this Article V), elect to accept such title
as Seller can convey, notwithstanding the existence of any Title Exceptions
which are not Permitted Exceptions. In such event, this Agreement shall remain
in effect and the parties shall proceed to Closing but, except to the extent set
forth in Sections 5.5 and 5.6, Purchaser shall not be entitled to any abatement
of the Purchase Price, any credit or allowance of any kind or any claim or right
of action against Seller for damages or otherwise by reason of the existence of
any Title Exceptions which are not Permitted Exceptions.
SECTION 5.9. PURCHASER'S COOPERATION. Purchaser and Seller
shall cooperate with the Title Insurer in connection with obtaining title
insurance insuring title to the Units subject only to the Permitted Exceptions.
In furtherance and not in limitation of the foregoing, at or prior to the
Closing, Purchaser and Seller shall deliver to the Title Insurer such
affidavits, certificates and other instruments as are requested by the Title
Insurer and customarily furnished by sellers and purchasers of property in
connection with commercial transactions of this kind.
21
ARTICLE VI
CONDITION OF UNITS
SECTION 6.1. CONDITION OF UNITS. Purchaser is a sophisticated
investor and its valuation of, and decision to purchase, the Units is based upon
its own independent expert evaluations of such facts and materials deemed
relevant by Purchaser and its agents. Other than the representations and
warranties of Seller specifically set forth herein, Purchaser has not relied in
entering into this Agreement upon any oral or written information from Seller,
in any capacity, or any of its employees, affiliates, agents, consultants,
advisors or representatives, including, without limitation, any appraisals,
projections or evaluations of credit quality prepared by Seller or any of its
employees, affiliates, agents, consultants, advisors or representatives.
Purchaser further acknowledges that no employee, affiliate, agent, consultant,
advisor or representative of Seller has been authorized to make, and that
Purchaser has not relied upon, any statements or representations other than
those specifically contained in this Agreement. Without limiting the generality
of the foregoing, Purchaser acknowledges and agrees that, except as expressly
set forth in Section 10.2 hereof, Purchaser is purchasing the Units "as is" and
"where is" on the Closing Date (and subject to all Local Law 5 Violations), and,
except as expressly set forth in this Agreement, Seller is making no
representation or warranty, express or implied, and Purchaser has not relied on
any representation or warranty, express or implied, regarding the Units,
including, without limitation, any representation or warranty with respect to
(a) the business or financial condition of any tenant of the Units, (b) the
physical condition of the Personal Property or the Units or their fitness,
merchantability or suitability for any use or purpose, (c) the Leases, rents,
income or expenses of the Units, (d) the compliance or non-compliance with any
laws, codes, ordinances, rules or regulations of any Governmental Authority and
any violations thereof or (e) the current or future use of the Units, including,
but not limited to, the Units' use for commercial, office, retail, industrial or
other purposes. Except as specifically set forth in this Agreement, Seller is
not liable or bound in any manner by any verbal or written statements,
representations, real estate brokers' "set-ups," offering memorandum or
information pertaining to the Units furnished by any real estate broker,
advisor, consultant, agent, employee, representative or other Person. Purchaser
further acknowledges and agrees that the provisions of this Section 6.1 were a
material factor in the determination of the Purchase Price.
ARTICLE VII
CLOSING
SECTION 7.1. CLOSING DATE. The closing of the transactions
contemplated by this Agreement (the "CLOSING") shall be held at the offices of
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (or, if required by Purchaser's lender, at Purchaser's
lender's or Purchaser's lender's attorney's offices if the same are located in
Manhattan) at 10:00 a.m. on the first Business Day that is ninety (90)
22
days after the Due Diligence Expiration Date (such date, as it may be adjourned
pursuant to one or more of the provisions of this Agreement, being herein called
the "CLOSING DATE"). Subject only to any right of adjournment specifically and
expressly granted in this Agreement, TIME SHALL BE OF THE ESSENCE with respect
to Purchaser's obligations to close on the Closing Date.
SECTION 7.2. ADJOURNMENT. Notwithstanding the provisions of
Section 7.1 above,
(a) Seller shall have the right, upon two (2)
Business Days written notice to Purchaser, to adjourn the Closing to a date
specified in such notice, provided, however, that in no event shall Seller's
adjournment(s) serve to extend the Closing to a date which is later than one
hundred fifty (150) days after the date of this Agreement (provided, however,
that the provisions of this Section 7.2 shall not limit any time periods with
respect to adjournments otherwise granted to Seller hereunder).
(b) Purchaser shall have the right, upon two (2)
Business Days written notice to Seller, to adjourn the Closing for up to fifteen
(15) days to a date specified in such notice, provided, however, that in no
event shall Purchaser's adjournment(s) serve to extend the Closing to a date
which is later than one hundred twenty (120) days after the date of this
Agreement (the "OUTSIDE CLOSING DATE"), TIME BEING OF THE ESSENCE as to
Purchaser's obligations to close on or prior to the Outside Closing Date.
ARTICLE VIII
CLOSING DELIVERIES
SECTION 8.1. DOCUMENTS AND PAYMENTS TO BE DELIVERED AT THE
CLOSING. At the Closing:
(a) Purchaser shall deliver to Seller the Cash
Balance and any other amounts payable by Purchaser to Seller, at the Closing,
pursuant to this Agreement;
(b) Seller shall execute, acknowledge and deliver to
Purchaser a deed of the Units, in the form of Exhibit F attached hereto, in
proper form for recording (which deed shall include, if necessary, the language
required by Section 8(c)(ii) of the Declaration);
(c) Seller shall execute, acknowledge and deliver to
Purchaser a general xxxx of sale, in the form of Exhibit G attached hereto,
conveying to Purchaser all of Seller's right, title and interest in and to the
Personal Property;
(d) Seller and Purchaser shall each execute,
acknowledge and deliver an assignment and assumption, in the form of Exhibit H
attached hereto, which provides for the assignment by Seller, in accordance with
this Agreement, of all of Seller's right, title and interest as landlord in and
to the Leases and the assumption by Purchaser of all of Seller's obligations as
landlord under the Leases arising from and after the Closing Date;
23
(e) Seller and Purchaser shall each execute, acknowledge and
deliver an assignment and assumption, in the form of Exhibit I attached hereto,
which provides for the assignment by Seller, in accordance with this Agreement,
of all of Seller's right, title and interest as the owner of the Units in, to
and under the Contracts and the Permits, and the assumption by Purchaser of all
of Seller's obligations as the owner of the Units under such Contracts and
Permits, arising from and after the Closing Date;
(f) Seller shall deliver to Purchaser the portion of the
security deposits which are held in cash by Seller under the Leases and which
are unapplied as of the Closing Date (together with accrued interest thereon, if
any, less Seller's proportionate share of administrative fees, if any) by, at
Seller's option, (i) payment of the amount thereof to Purchaser, (ii) a credit
to Purchaser against the Cash Balance and/or (iii) assignment to Purchaser of
the bank accounts (or other security) in which same are held, which assignment
shall be in form reasonably acceptable to the depository bank and Seller and
Purchaser. With respect to those tenant security deposits which are held in the
form of letters of credit, Seller shall deliver to Purchaser such letters of
credit which are in Seller's possession as of the Closing Date, and shall
cooperate with Purchaser in executing and delivering such instruments as
Purchaser reasonably requests and which are reasonably necessary to transfer or
assign such letters of credit to Purchaser to the extent the same are
transferrable or assignable;
(g) Seller shall deliver to Purchaser executed
original counterparts or, to the extent executed original counterparts are not
in Seller's possession, copies of all Leases and Contracts in Seller's
possession;
(h) Seller shall execute and deliver to Purchaser a
certification of non- foreign status, in form required by the Internal Revenue
Code Section 1445 and the regulations issued thereunder. Seller understands that
such certification will be retained by Purchaser and will be made available to
the Internal Revenue Service on request;
(i) Purchaser and Seller shall jointly execute notice
letters, in the form of Exhibit J attached hereto, to the tenants under the
Leases;
(j) Purchaser shall deliver to Seller (i) a copy of
the operating agreement of Purchaser, certified as true and correct by the
managing member of Purchaser and (ii) a certified copy of such limited liability
company documents of Purchaser as are reasonably necessary to demonstrate that
the transactions contemplated hereby have been authorized by all necessary
organizational action of Purchaser;
(k) Seller and Purchaser shall each execute,
acknowledge and deliver a Real Property Transfer Tax Return pursuant to Chapter
46, Title II of the New York City Administrative Code;
(l) Seller and Purchaser shall each execute,
acknowledge and deliver a
24
New York State Real Estate Transfer Tax Return Credit Line Mortgage Certificate
(TP-584), or any successor form(s) then required to be filed with respect to the
payment of the New York State Real Estate Transfer Tax;
(m) Seller shall deliver to Purchaser the Tenant
Estoppel Certificates received by Seller;
(n) Seller shall deliver to Purchaser a statement by
the Condominium or its managing agent that the Common Charges and any
assessments then due and payable by Seller to the Condominium in respect of the
Units have been paid to the Closing Date;
(o) Seller shall deliver to the Title Insurer
evidence reasonably satisfactory to the Title Insurer that Seller (and the
individual(s) executing documents on behalf of Seller) are authorized to
consummate the transaction contemplated herein as of the Closing Date;
(p) Seller shall duly execute and deliver to
Purchaser the Seller's Representation Certificate referenced in Section 10.4(b)
hereof, and Purchaser shall duly execute and deliver to Seller the Purchaser's
Representation Certificate referenced in Section 10.4(a) hereof;
(q) Seller shall deliver to Purchaser resignations
from all members of the Board of Managers which were appointed by Seller;
(r) Seller shall deliver to Purchaser (i) a copy of
the certificate of incorporation of Seller, certified as true and correct by an
officer of Seller, and (ii) a certified copy of such corporate documents of
Seller as are reasonably necessary to demonstrate that the transactions
contemplated hereby have been authorized by all necessary corporate action of
Seller;
(s) Seller shall deliver to Purchaser copies of all
files in Seller's possession relating to tenants under Leases;
(t) Seller shall deliver to Purchaser all keys with
respect to the Units which are in Seller's possession;
(u) Purchaser shall deliver an executed Power of
Attorney to the Board of Managers if and as required under the Condominium
Documents;
(v) Unless Seller makes the election described in
Section 3.1(b) hereof, Purchaser shall execute and deliver the Note and the
Purchase Money Mortgage (or the personal guarantee described in Section 3.1(a),
if applicable) to Seller; and
(w) Seller shall execute and/or deliver such other
instruments or
25
documents which by the terms of this Agreement are to be delivered by Seller at
Closing, and Purchaser shall execute and/or deliver such other instruments or
documents which by the terms of this Agreement are to be delivered by Purchaser
at Closing.
ARTICLE IX
CONDITIONS TO CLOSING
SECTION 9.1. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.
Purchaser's obligation to purchase the Units is subject to the satisfaction of
the following conditions precedent, any or all of which may be waived by
Purchaser:
(a) This Agreement shall be in full force and effect
and there shall not then exist any event which would allow Purchaser to
terminate this Agreement pursuant to the express terms hereof; and
(b) Seller shall have complied, in all material
respects, with its obligations under Article VIII hereof.
(c) Seller shall have delivered to Purchaser Tenant
Estoppel Certificates which are delivered by tenants within 60 days prior to the
date originally scheduled for the Closing (i.e., not taking into account
adjournments of the Closing) from either (i) tenants under the Leases demising
an aggregate number of rentable square feet equal to at least seventy- five
(75%) percent of the aggregate number of rentable square feet contained in the
Unit as of the date of this Agreement, or (ii) seventy-five (75%) percent of the
tenants under the Existing Leases as of the date of this Agreement (in any event
including at least three of the following tenants: Secretariat of the
Commonwealth of Nations, Permanent Mission of Barbados, Kanan, Corbin, and LS,
Inc.), or (iii) tenants under Existing Leases, which Existing Leases account
for, in the aggregate, seventy-five (75%) percent of the total Fixed Rent
payable with respect to the Units as of the date hereof. If, as of the Closing,
Seller shall not have satisfied the condition set forth in the preceding
sentence, then Seller may, at its election, satisfy such condition by delivering
to Purchaser estoppel certificate(s) executed by Seller as the landlord under
any Lease for which a Tenant Estoppel Certificate has not been obtained to the
extent necessary to satisfy such condition, which estoppel certificate shall
state (i) whether such Existing Lease is unmodified and in full force and
effect, or if there have been modifications, whether the same is in full force
and effect as modified and stating the modifications, (ii) the amount of fixed
rent payable under such Existing Lease, and the dates to which such fixed rent
and any additional rent have been paid, and (iii) whether or not, to the best of
Seller's knowledge, there exists any default by the tenant under such Existing
Lease, and if so, specifying each such default.
SECTION 9.2. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE.
Seller's obligation to sell the Units is subject to the satisfaction of the
following conditions precedent, any or all of which may be waived by Seller:
26
(a) This Agreement shall be in full force and effect
and there shall not then exist any event which would allow Seller to terminate
this Agreement pursuant to the express terms hereof; and
(b) Purchaser shall have complied, in all material
respects, with its obligations under Article VIII hereof.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
SECTION 10.1. REPRESENTATIONS AND WARRANTIES BY SELLER AS TO
SELLER. Seller represents and warrants to Purchaser that, as of the date hereof:
(a) Authority; Binding on Seller; Enforceability.
Seller is duly organized, validly existing and in good standing in its
jurisdiction of incorporation. Seller has corporate powers adequate for the
making and performing of this Agreement, has taken all corporate action required
to execute, deliver and perform this Agreement and to make all of the provisions
of this Agreement the valid and enforceable obligations they purport to be and
has caused this Agreement to be executed by a duly authorized officer or
officers of Seller.
(b) Conflict with Existing Laws or Contracts. The
execution and delivery of this Agreement and all related documents and the
performance of its obligations hereunder and thereunder by Seller does not
conflict with any provision of any law or regulation to which Seller is subject,
conflict with or result in a breach of or constitute a default under any of the
terms, conditions or provisions of any agreement or instrument to which Seller
is a party or by which Seller is bound or any order or decree applicable to
Seller or result in the creation or imposition of any lien on any of its assets
or property, which would materially and adversely affect the ability of Seller
to perform its obligations under this Agreement; and Seller has obtained all
consents, approvals, authorizations or orders including those of any court or
governmental agency or body, if any, required for the execution, delivery and
performance by Seller of this Agreement.
(c) Legal Action Against Seller. Except as may be set
forth on Exhibit K, there is no action, suit or proceeding pending against
Seller in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the ability of
Seller to perform its obligations under this Agreement.
(d) Bankruptcy of Seller. Seller has not filed any
petition seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any law relating
to bankruptcy or insolvency, nor has any such petition been filed against
Seller. Seller is not insolvent and the consummation of the transac tions
contemplated by this Agreement shall not render Seller insolvent. No general
27
assignment of Seller's property has been made for the benefit of creditors, and
no receiver, master, liquidator or trustee has been appointed for Seller or any
of its property.
SECTION 10.2. REPRESENTATIONS AND WARRANTIES BY SELLER AS TO
THE UNITS. Seller represents and warrants to Purchaser that, as of the date
hereof:
(a) Owner. Seller is the owner of record title to the
Units, and has the right, power and authority to sell the Units pursuant to the
terms of this Agreement and the Declaration.
(b) Leases.
(i) There are no leases, licenses or other
occupancy agreements which are in effect as of the date hereof with
respect to the Units and under which Seller is the holder of the
landlord's interest, other than the Existing Leases, copies of which
have been initialed by both Seller and Purchaser. The information
provided on Exhibit B, including the security deposits held by Seller
under the Existing Leases, is true, correct and complete in all
material respects; provided, however, since Purchaser has reviewed each
of each of the Existing Leases, in the event that there is any
discrepancy between the information contained in Exhibit B and the
terms and provisions of any of the Existing Leases, the terms and
provisions of the Existing Leases shall be effective as against Seller
and Purchaser, and Seller shall not be deemed to have breached the
representation contained in this subclause (b)(i) by reason of such
discrepancy.
(ii) Except as otherwise noted on the arrearage
schedule attached as part of Exhibit B, (1) each of the Existing Leases
is in full force and effect, (2) no written notice of a material
default on the part of the tenant under any of the Existing Leases has
been sent by Seller, other than a default notice setting forth a
material default which, as of the date hereof, has been cured, (3) no
written notice of a material default on the part of the landlord under
any of the Existing Leases has been received by Seller, other than a
default notice setting forth a material default which, as of the date
hereof, has been cured, (4) no Fixed Rent payable under any Existing
Lease is more than thirty (30) days in arrears of the date that the
same is required to be paid under the terms of such Existing Lease and
(5) subject to the provisions of Section 11.6 below applicable to Post-
Contract Lease Costs, all decorating, alterations and other work
required to be performed by Seller pursuant to each Existing Lease
prior to the Closing Date, or any cost thereof to be reimbursed to any
such tenants, has been performed or reimbursed, or will be performed or
reimbursed by Seller, prior to the Closing Date.
(iii) Except as may be set forth in the Existing
Leases or the Declaration, (i) no tenant is entitled to any rent
concession, rebate, offset, allowance or free rent for any period
subsequent to the date hereof, and (ii) no person, firm or entity has
any rights to purchase or acquire all or any part of the Units,
including, without limitation, a right of first refusal.
28
(c) Brokerage. Subject to the provisions of Section
11.6 below applicable to Post-Contract Lease Costs, all brokerage commissions
already payable in connection with the Existing Leases have been or will be paid
in full prior to the Closing.
(d) Contracts.
(i) There are no service contracts, maintenance
contracts, brokerage agreements, union contracts, management contracts,
concession agreements, agency agreements or any other written contracts
or agreements by which Seller is bound and which affect solely the
Units (as opposed to the entire Condominium or all of the Units) on the
date hereof, except for (1) the Existing Contracts and (2) the Existing
Leases. Nothing contained in this Agreement shall be deemed to be a
representation, warranty or assurance that the Existing Contracts, or
any of them, will be in effect at the Closing; it being agreed that the
termination of any Existing Contract prior to the Closing shall not
affect Purchaser's obligations hereunder, which shall remain in full
force and effect notwithstanding such termination, and Seller expressly
reserves the right to terminate any of the Existing Contracts (or any
additional such agreements entered into between the date of this
Agreement and the Closing Date) at any time on or prior to the Closing
Date.
(ii) Except as otherwise noted on Exhibit D, (1)
each of the Existing Contracts is in full force and effect, (2) no
written notice of a material default on the part of the other party to
any of the Existing Contracts has been sent by Seller, other than a
default notice setting forth a material default which, as of the date
hereof, has been cured and (3) no written notice of a material default
on the part of Seller under any of the Existing Contracts has been
received by Seller, other than a default notice setting forth a
material default which, as of the date hereof, has been cured.
(e) Litigation. Except as set forth on Exhibit K
(which actions are covered by insurance and may affect either the Units or the
Condominium), to the actual knowledge of Seller, there are no actions, suits or
proceedings pending, or any order, injunction or decree outstanding, existing or
relating to the Units (as opposed to the Condominium), which has not been
disclosed in writing by Seller to Purchaser on or before the date hereof and
could have a material adverse effect upon the Units or title thereto.
(f) Condemnation. As of the date hereof, there are no
pending or, to Seller's actual knowledge, threatened condemnation or eminent
domain proceedings that would affect any part of the Units.
29
(g) Compliance with Laws; Permits. Other than Local
Law 5 Violations, or as disclosed in the public records on the date hereof, or
as disclosed in written notices which have been delivered to Purchaser, no
written notice has been received by Seller from any Governmental Authority to
the effect that (i) any zoning law, ordinance or regulation has been violated by
the current operation, occupancy or use of the Units which violation has not
been cured, (ii) any federal, state or municipal law, ordinance or regulation
has been violated by the current operation, occupancy or use of the Units which
violation has not been cured, or (iii) any Permits have not been issued and paid
for and are not in full force and effect, in each case, without which the
operation of the Units would be materially and adversely affected.
Notwithstanding the foregoing provisions of this Section 10.2(g), except to
represent and warrant that no notice of violation has been received, no
representation is made by Seller with respect to compliance with or any
violation of the Americans With Disabilities Act of 1991, 42 U.S.C.
Sections 12101 et seq. or the Energy Policy Act of 1992, 42 U.S.C.
Sections 13201 et seq.
(h) Environmental Matters. Except as may be set forth
in the public records on the date hereof, as the same may from time to time be
updated and/or continued, Seller has not received written notice from any
Governmental Authority that the Units are in violation of any applicable
federal, state or municipal law, ordinance or regulation regarding Hazardous
Substances in any material respect.
(i) Personal Property. The Personal Property is owned
by Seller free and clear of any lien or encumbrance other than the Permitted
Exceptions and any lien or encumbrance that shall be discharged at or prior to
Closing.
(j) Condominium. Seller (i) has not received written
notice from the Board of Managers claiming non-compliance by Seller with the
Declaration, the By-Laws of the Condominium, or any rules and regulations of the
Condominium, (ii) has no actual knowledge of any actual imposition by the Board
of Managers upon Seller of an obligation to contribute funds to a condominium
reserve fund, and (iii) has not received written notice of any future
assessments actually levied by the Condominium with respect to the Units.
(k) Condominium Documents. The Condominium Documents
are in full force and effect and have not been modified or amended except as set
forth herein.
(l) Insurance. Insurance currently maintained with
respect to the Units is set forth on Exhibit C attached hereto.
SECTION 10.3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller that, as of the date hereof:
(a) Authority; Binding on Purchaser; Enforceability.
Purchaser is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of New York, with limited liability
company powers adequate for the making and performing of this Agreement and for
carrying on the business now conducted or proposed to be
30
conducted by it. The managing member or manager of Purchaser is Xxxxxx Xxxxxxxx
or an entity of which Xxxxxx Xxxxxxxx is the managing member or manager, and
Xxxxxx Xxxxxxxx or an entity existing for the benefit of Xxxxxx Xxxxxxxx'x
immediate family is the owner of a majority of and the controlling interest in
the membership interests of Purchaser or the entity which is the managing member
or manager of Purchaser. Purchaser has taken all limited liability company
action required to execute, deliver and perform this Agreement and to make all
of the provisions of this Agreement the valid and enforceable obligations they
purport to be and has caused this Agreement to be executed by a duly authorized
officer. Purchaser is duly qualified and in good standing as a foreign limited
liability company in all jurisdictions where it is required so to be qualified,
except for failures to be so qualified that do not in the aggregate have any
material adverse effect on Purchaser and which will not affect the validity of
this Agreement.
(b) Conflict with Existing Laws or Contracts. The
execution and delivery of this Agreement and all related documents and the
performance of its obligations here under and thereunder by Purchaser do not
conflict with any provision of any law or regulation to which Purchaser is
subject, conflict with or result in a breach of or constitute a default under
any of the terms, conditions or provisions of any agreement or instrument to
which Purchaser is a party or by which Purchaser is bound or any order or decree
applicable to Purchaser, or result in the creation or imposition of any lien on
any of Purchaser's assets or property, which would materially and adversely
affect the ability of Purchaser to perform its obligations under this Agreement;
and Purchaser has obtained all consents, approvals, authorizations or orders of
any court or governmental agency or body, if any, required for the execution,
delivery and perfor xxxxx by Purchaser of this Agreement.
(c) Legal Action Against Purchaser. There are no
judgments, orders or decrees of any kind against Purchaser unpaid or unsatisfied
of record or any legal action, suit or other legal or administrative proceeding
pending, threatened or reasonably anticipated which could be filed before any
court or administrative agency which has, or is likely to have, any material
adverse effect on (i) the business or assets or the condition, financial or
otherwise, of Purchaser or (ii) the ability of Purchaser to perform its
obligations under this Agreement.
(d) Bankruptcy or Debt of Purchaser; Financial
Condition. Purchaser has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law relating to bankruptcy or insolvency, nor has
any such petition been filed against Purchaser. No general assignment of
Purchaser's property has been made for the benefit of creditors, and no
receiver, master, liquidator or trustee has been appointed for Purchaser or any
of its property. Purchaser is not insolvent and the consummation of the
transactions contemplated by this Agreement shall not render Purchaser
insolvent. Purchaser has now and will have as of the Closing Date sufficient
capital or net worth to meet its current obligations. Purchaser certifies that
any financial statements and any financial statements of Purchaser and/or any
Affiliate of Purchaser submitted to Seller have been prepared in accordance with
generally accepted accounting principles recognized by the American Institute of
Certified Public Accountants or the Financial Accounting Standards Board, or any
successors thereto, and are true and correct and that no
31
circumstances have occurred or come to its attention since the date of such
financial statements which would have a material adverse impact on the financial
condition of Purchaser or such Affiliate as indicated on any such financial
statements delivered to Seller.
(e) Sale Not Pursuant to Offering Plan. Purchaser is
represented by counsel in connection with the transaction contemplated by this
Agreement, is a sophisticated party with financial wherewithal to bear any risks
which may be associated with the transaction contemplated by this Agreement, and
has sufficient knowledge and experience in real estate and the law with respect
to transactions involving the purchase and sale of condominium interests.
Purchaser acknowledges that the sale of the Units to Purchaser is not a sale to
the public pursuant to an offering plan, and that Purchaser has had access to
all information with respect to the Units reasonably requested by Purchaser.
Purchaser recognizes that upon any resale of the Units by Purchaser, Purchaser
shall be subject to the terms and conditions contained in the Declaration
(including, without limitation, Section 8(c) thereof), and that it may be
necessary for Purchaser to comply with applicable state securities laws relating
to certain filing and disclosure requirements.
SECTION 10.4. CLOSING CERTIFICATES OF SELLER AND PURCHASER.
(a) Purchaser's Closing Certificate. At the Closing,
Purchaser shall execute and deliver to Seller an instrument in which Purchaser
shall remake the representations and warranties made by Purchaser pursuant to
Section 10.3 above as of the Closing Date; provided, however, that Purchaser, in
such instrument, may also (i) advise Seller of any events occurring between the
date hereof and the Closing Date which affect the accuracy of such
representations and warranties (as made as of the Closing Date) and (ii) correct
such representations and warranties (as made as of the date hereof) to reflect
any discovered inaccuracy therein (such instrument being herein called
"PURCHASER'S REPRESENTATION CERTIFICATE"). Any updated information set forth in
the Purchaser's Representation Certificate pursuant to the preceding subclause
(i) which has a material adverse effect on Seller, together with any correction
of any representation and warranty as set forth in the Purchaser's
Representation Certificate pursuant to the preceding subclause (ii) which has a
material adverse effect on Seller, are herein collectively called "PURCHASER'S
ADVERSE CHANGES."
(b) Seller's Closing Certificate. At the Closing,
Seller shall execute and deliver to Purchaser an instrument ("SELLER'S
REPRESENTATION CERTIFICATE") in which Seller shall remake the representations
and warranties made by Seller pursuant to Section 10.1 and, subject to the
following provisions of this Section 10.4(b), Section 10.2 above as of the
Closing Date; provided, however, that:
(i) the representations and warranties contained
in Section 10.2(b) of this Agreement shall be remade in the Seller's
Representation Certificate as to the New Leases only (i.e., not as to
the Existing Leases);
(ii) Seller shall not be obligated or deemed to
remake the representations and warranties contained in Section 10.2(c)
of this Agreement as of
32
the Closing Date (the treatment of brokerage commissions payable under
any New Leases being set forth in Section 11.6 hereof); and
(iii) the representations and warranties
contained in Section 10.2(d) of this Agreement shall be remade in the
Seller's Representation Certificate as to the New Contracts only (i.e.,
not as to the Existing Contracts).
Seller, in Seller's Representation Certificate, may also (A) advise Purchaser of
any events occurring between the date hereof and the Closing Date which affect
the accuracy of such representations and warranties (as made as of the Closing
Date), including, without limitation, those made pursuant to subclauses (i) and
(iii) above, and (B) correct such representations and warranties (as made as of
the date hereof) to reflect any discovered inaccuracy therein. Any updated
information set forth in the Seller's Representation Certificate pursuant to
subclause (A) of the preceding sentence which has a material adverse effect on
Purchaser, together with any correction of any representation and warranty as
set forth in the Seller's Representation Certificate pursuant to subclause (B)
of the preceding sentence which has a material adverse effect on Purchaser, are
herein collectively called "SELLER'S ADVERSE CHANGES."
SECTION 10.5. TENANT ESTOPPEL CERTIFICATES. If and to the
extent that a Tenant Estoppel Certificate is delivered by any tenant under a
Lease, and such Tenant Estoppel Certificate confirms any representations and
warranties made by Seller with respect to such Lease pursuant to Section 10.2(b)
hereof, then those representations and warranties made by Seller which are
confirmed by the Tenant Estoppel Certificate shall automatically become null and
void and shall not survive after the date of such Tenant Estoppel Certificate.
SECTION 10.6. SURVIVAL. The representations and warranties of
Seller set forth in Sections 10.2(b), (c), (d), (e), (f), (g), (h), (i), and
(j), and the representations and warranties of Purchaser set forth in Section
10.3, including, without limitation, any remake of such representations and
warranties in Seller's Representation Certificate and Purchaser's Representation
Certificate, as the case may be, shall survive the Closing for the Survival
Period (except for any earlier termination in accordance with Section 10.5).
ARTICLE XI
COVENANTS
SECTION 11.1. OPERATION OF UNITS. Between the date hereof and
the Closing Date, Seller shall continue to maintain the Units in the ordinary
course and substantially in accordance with the practices and procedures
customarily followed by Seller in the maintenance of the Units prior to the date
hereof; provided, however, that Seller shall have no obligation to make any
repairs or expenditures that are capital in nature. Purchaser recognizes that
Seller shall have the right to apply any security deposits held by Seller under
the Existing Leases in accordance with the terms of such Existing Leases. Seller
makes no representations with respect to the performance by tenants of their
obligations under the Existing Leases between the date
33
hereof and the Closing.
SECTION 11.2. INSURANCE. Between the date hereof and the
Closing Date, Seller shall either (a) maintain in full force and effect all
insurance policies owned by Seller and relating to fire or other casualty in
effect on the date hereof with respect to the Units or (b) replace such
insurance policies with other policies providing coverage equivalent thereto.
SECTION 11.3. MODIFICATION OF LEASES. Between the date hereof
and the Closing Date, Seller shall not materially modify or materially amend any
of the Existing Leases or New Leases without Purchaser's prior written consent
in each instance, which consent shall not be unreasonably withheld, provided,
however, that Seller shall have the right, without Purchaser's consent, to enter
into any modification or amendment of any Existing Lease or New Lease (x) that
is required pursuant to the existing terms (or any other terms as approved or
deemed approved by Purchaser in accordance with this Agreement) of any Existing
Lease or New Lease or that is entered into to effectuate or memorialize the
exercise of any right or option contained in any Existing Lease or New Lease, or
(y) if Purchaser shall default in any material respect under any representation,
warranty, covenant, agreement or other obligation of Purchaser set forth in this
Agreement. If required, Purchaser's consent shall be deemed granted if not
denied by notice (stating the grounds for denial with reasonable specificity)
given to Seller within seven (7) Business Days after Purchaser's receipt of a
written request for such consent by Seller, together with copies of any proposed
documents, and any other information reasonably requested by Purchaser and in
Seller's possession at that time in order for Purchaser to make its
determination.
SECTION 11.4. TERMINATION OF LEASES. Between the date hereof
and the Closing Date, Seller shall not cancel, accept the surrender of, or
terminate any of the Existing Leases or New Leases without Purchaser's prior
written consent in each instance, which consent shall not be unreasonably
withheld; provided, however, Seller shall have the right, without Purchaser's
consent, to cancel, accept the surrender of, or terminate an Existing Lease or
New Lease (a) if such cancellation, surrender or termination is predicated upon
a material default of the tenant thereunder, (b) if such cancellation, surrender
or termination is made by the tenant pursuant to the terms of such Existing
Lease or New Lease or (c) if Purchaser shall default in any material respect
under any representation, warranty, covenant, agreement or other obligation of
Purchaser set forth in this Agreement. If required, Purchaser's consent shall be
deemed granted if not denied by notice (stating the grounds for denial with
reasonable specificity) given to Seller within seven (7) Business Days after
request for such consent by Seller. Purchaser agrees that (i) no representation
or warranty has been made, and no responsibility is assumed, by Seller with
respect to the continued occupancy of any portion of the Units by any tenant,
and Seller does not guarantee or undertake to insure that any tenant will be in
occupancy at the Closing, (ii) prior to the Closing, Seller shall have the
right, but not the obligation, upon written notice to Purchaser, to enforce its
rights against any tenant(s), by summary proceedings or otherwise and (iii) the
dispossession or removal of any tenant(s) prior to the Closing predicated upon a
default by such tenant under its lease shall not be the basis for any claim by
Purchaser against Seller or affect any of Purchaser's covenants and obligations
under this Agreement.
SECTION 11.5. NEW LEASES. Between the date hereof and the
Closing Date, Seller
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shall not enter into any New Lease or renew or extend any Existing Lease (other
than renewals or extensions required pursuant to the terms of such Existing
Lease) without Purchaser's prior written consent in each instance, provided,
however, that (i) Purchaser shall not be entitled to withhold its consent if
such New Lease is at market rent and otherwise is on commercially reasonable
terms (and, in the exercise of reasonable judgment, the proposed tenant is of
reputable character and does not threaten the security of the Units), and (ii)
if, in violation of (i), Purchaser shall deny its consent to any such New Lease
and/or renewal or extension of an Existing Lease, Purchaser shall, (x) at the
time of and as a condition to such denial, add to the Cash Deposit the amount of
rent which would have been payable under the New Lease or renewal or extension
up to the Closing Date (such amount to be adjusted at the Closing if and when
the Closing Date may be adjourned) pursuant to the terms of such New Lease or
renewal or extension of an Existing Lease and (y) at the Closing, pay to Seller
the amount of such rent which would have been payable up to the Closing Date.
SECTION 11.6. PAYMENT OF POST-CONTRACT LEASE COSTS. Purchaser
shall pay and be solely responsible for the payment of (or, to extent paid by
Seller, shall reimburse Seller at the Closing for), all Post-Contract Lease
Costs paid or payable by the landlord in connection with (i) any New Lease or
any modification or amendment of any New Lease, (ii) any modification or
amendment of any Existing Lease executed after the date hereof, (iii) any
renewal options, extension options or expansion options which are exercised or
become effective between the date hereof and the Closing Date pursuant to the
terms of each respective Existing Lease and New Lease and (iv) any space leased
pursuant to rights of first refusal or first offer or similar rights which are
exercised between the date hereof and the Closing Date. For purposes of this
Agreement, "POST-CONTRACT LEASE COSTS" shall mean leasing and brokerage
commissions, any direct payments, work allowances and work letters paid or
granted to or for the benefit of the tenant under a lease and any free rent,
rent allowances or rent credits paid or granted to such tenant (and, in the case
of any such inducement not paid in cash, the dollar value thereof), advertising
expenses and legal fees and disbursements. The provisions of this Section 11.6
shall survive the Closing.
SECTION 11.7. ESTOPPEL CERTIFICATES. Seller shall request that
the tenant under each of the Existing Leases execute and deliver to Seller an
estoppel certificate (in a commercially reasonable form to be provided to Seller
by Purchaser prior to the Due Diligence Expiration Date, time being of the
essence as to the delivery of such form by Purchaser); provided, however, that
(i) if Purchaser fails to deliver the aforesaid form of estoppel certificate
prior to the Due Diligence Expiration Date, Seller shall be permitted to use
Seller's form of estoppel certificate, and (ii) if any tenant objects to the
form of such tenant estoppel certificate, and such tenant's Lease prescribes the
form or contents of an estoppel certificate to be delivered by the tenant
thereunder, then Seller may permit such tenant to execute and deliver an
estoppel certificate in substantially the form required pursuant to the
applicable Existing Lease. Each estoppel certificate so requested pursuant to
this Section 11.7 is herein referred to as a "TENANT ESTOPPEL CERTIFICATE."
SECTION 11.8. AMENDMENT OF CONDOMINIUM DOCUMENTS. Between the
date
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hereof and the Closing Date, Seller shall not amend or modify, or consent to any
amendment of modification of, the Condominium Documents without Purchaser's
prior written consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Purchaser hereby acknowledges that if Seller's
consent is not required to amend or modify the Condominium Documents, then the
Condominium Documents may be modified prior to the Closing Date, and such
modification(s) or amendment(s) shall not affect Purchaser's obligations under
this Agreement.
ARTICLE XII
INSPECTION
SECTION 12.1. DUE DILIGENCE PERIOD.
(a) The period beginning on the date of this Agreement and
ending on the date which is fourteen (14) days thereafter is herein referred to
as the "DUE DILIGENCE PERIOD." During the Due Diligence Period, upon reasonable
advance notice from Purchaser, Seller shall, from time to time, during regular
business hours, grant to Purchaser and/or its agents the right to undertake and
complete, at Purchaser's sole cost and expense, physical, structural,
environmental, and other inspections and evaluations of the Units (any such
inspections and evaluations, the "PERMITTED INSPECTIONS"). Purchaser shall
promptly deliver to Seller a complete copy of a written condition reports
prepared in connection with the Permitted Inspections.
(b) If any Permitted Inspections are performed, Purchaser
shall keep the Units in, or restore the Units to, their physical condition that
existed immediately prior to such Permitted Inspections. Purchaser's obligation
to repair and restore the Units in connection with any Permitted Inspections
shall survive the termination of this Agreement. Prior to any Permitted
Inspection, Purchaser shall obtain liability insurance covering bodily injury or
death or property damage occurring in, or about the Units which in no event
shall be for coverage in an amount less than $1,000,000 per occurrence, and
Purchaser shall deliver certificates of such insurance to Seller prior to any
Permitted Inspections.
(c) In connection with any Permitted Inspections, Purchaser
shall use reasonable efforts not to interfere in any material respect with the
normal operation, use, occupancy, management or maintenance of the Units and in
a manner that will not disrupt or interfere with the use and enjoyment of the
Units by the tenants and occupants thereof or their business operations.
Purchaser's rights under this Section 12.1 shall be subject to the rights of
tenants of the Units, and in no event shall Purchaser enter or cause to be
entered, any tenanted portion of the Units, or conduct or permit to be
conducted, any activities therein except in accordance with the terms of the
lease demising such portion of the Units.
(d) Purchaser and Seller agree that Seller may have a
representative present during any Permitted Inspections. All Permitted
Inspections shall be at Purchaser's sole cost and expense and, prior to the
Closing or any refund of the Cash Deposit to Purchaser pursuant to the terms of
this Agreement, Purchaser shall provide evidence to Sellers of the payment of
such inspections and tests, which, absent payment, could result in the filing of
a mechanic's lien
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against the Units. Purchaser agrees to keep the Units free and clear of any
mechanics liens which may arise as a result of any Permitted Inspections.
(e) Purchaser shall have the option to terminate this
Agreement for any reason by written notice to Seller (the "TERMINATION NOTICE")
no later than 5:00 p.m. on the last day of the Due Diligence Period (the "DUE
DILIGENCE EXPIRATION DATE"), time being of the essence. If Purchaser delivers
the Termination Notice, then this Agreement shall automatically terminate,
Seller shall return the Cash Deposit to Purchaser, and the parties shall have no
further obligations to each other under this Agreement (except for those
obligations which specifically survive the termination of this Agreement
pursuant to the terms hereof).
(f) Purchaser agrees to indemnify and hold Seller
harmless from and against any claim, suit or damage, including reasonable
attorneys' fees incurred in connection with or arising out of Purchaser's entry
and the Permitted Inspections. Such indemnity shall survive the Closing
hereunder or any termination of this Agreement.
(g) If Purchaser shall not deliver a Termination
Notice by 5:00 p.m. on the Due Diligence Expiration Date as aforesaid, then (i)
Purchaser shall have no further right to terminate this Agreement pursuant to
this Section 12.1, (ii) subject to the provisions of Article 5 hereof, Purchaser
shall take title to the Units at the Closing subject to any conditions or
findings which were discovered or could have been discovered by Purchaser during
the Due Diligence Period, and (iii) upon the Due Diligence Expiration Date,
Purchaser shall, as the Cash Deposit, pay to Seller the sum of Eight Hundred
Twenty Five Thousand and 00/100 ($825,000) Dollars, either by wire transfer of
immediately available federal funds to the Depository Bank, Account of Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, Attorney Trust Account, Account Number
229121, ABA Number 000000000, or by Purchaser's unendorsed check, subject to
collection, drawn to the order of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
LLP, as Escrow Agent, time being of the essence with respect to such payment.
Such additional amount payable on the Due Diligence Expiration Date by Purchaser
shall automatically be deemed part of the Cash Deposit for purposes of this
Agreement.
SECTION 12.2. FURTHER INSPECTION. Upon the expiration of the
Due Diligence Period, if this Agreement shall not have been terminated in
accordance with the provisions of Section 12.1, then Purchaser shall be deemed
to have confirmed to Seller that Purchaser has heretofore conducted a detailed
inspection of the Units (including, without limitation, the physical condition
and use, availability and adequacy of utilities, sewer treatment capabilities,
access, zoning, compliance with applicable laws, environmental conditions,
engineering and structural matters and title and survey matters), has made
multiple site visits to the Units and in certain instances consulted with third
party professionals in satisfying itself that the Units are appropriate for
Purchaser's acquisition. Purchaser shall have the right to inspect the Units
after the Due Diligence Period prior to the Closing during business hours on
Business Days, provided that (i) Purchaser shall give reasonable advance notice
to Seller, (ii) any such inspection shall not unreasonably impede the normal
day-to-day operation of the Units, (iii) Seller (or Seller's designee) shall
have the right to accompany Purchaser during Purchaser's inspection, and (iv)
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any such inspection shall be subject to other reasonable requirements of Seller.
Purchaser's right of inspection shall, however, be subject to the rights of
tenants of the Units.
ARTICLE XIII
TRANSACTION COSTS
SECTION 13.1. SELLER'S TRANSACTION COSTS. Seller, in addition
to its apportionments obligations hereunder, if any, also shall be responsible
for the cost of its legal counsel, advisors and the other professionals employed
by it in connection with the sale of the Units.
SECTION 13.2. PURCHASER'S TRANSACTION COSTS. Purchaser, in
addition to its apportionments (if any) and its other payment obligations
hereunder, shall be responsible for all costs and expenses associated with (a)
Purchaser's due diligence, (b) Purchaser's legal counsel, advisors, engineers,
consultants and the other professionals employed by it in connection with
Purchaser's due diligence and the purchase of the Units, (c) title reports or
abstracts issued by the Title Insurer, as well as all survey and search costs
and updates related thereto, (d) the policy premiums in respect of any fee title
insurance obtained by Purchaser and any mortgage title insurance required by
Purchaser's lender (if any), (e) the recording fees for the deed and (f) all
costs and expenses of obtaining any financing Purchaser may elect to obtain
(including any fees, financing costs, transfer taxes, mortgage taxes and
intangible taxes in connection therewith).
SECTION 13.3. TRANSFER TAXES. At the Closing, Seller shall pay
the New York City Real Property Transfer Tax and the New York State Real Estate
Transfer Tax payable as a result of the conveyance of title to the Units to
Purchaser pursuant to this Agreement.
ARTICLE XIV
BROKERAGE
SECTION 14.1. REPRESENTATIONS. Purchaser and Seller each
represents and warrants to the other that such party has not had any
conversations or dealings with any broker, finder or other similar party in
connection with the transactions contemplated hereby other than CB Xxxxxxx
Xxxxx, Inc. Purchaser and Seller shall indemnify, defend and hold the other
harmless from and against any and all claims, liabilities, losses, damages,
costs or expenses (including, without limitation, reasonable attorneys' fees and
expenses), arising out of a claim of a breach of the representation made by such
indemnifying party pursuant to the immediately preceding sentence. Seller shall
pay the commission owed to CB Xxxxxxx Xxxxx, Inc. pursuant to a separate
agreement. The provisions of this Article XIV shall survive the Closing or
termination of this Agreement.
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ARTICLE XV
CASUALTY AND CONDEMNATION
SECTION 15.1. CASUALTY.
(a) For purposes of this Article XV, the following
terms shall have the meanings indicated:
"MAJOR CASUALTY" means a fire in or other casualty to
the Units which causes damage or injury to the Units and results in
Restoration Costs in excess of an amount equal to $3,000,000.
"RESTORATION COSTS" means, as of any date with
respect to any fire or other casualty affecting the Units, the cost to
be incurred, from and after such date, to repair or restore (as
reasonably determined by an architect or engineer selected by Seller
and approved by Purchaser, which approval shall not be unreasonably
withheld, conditioned or delayed) the damage to the Units caused by
such fire or other casualty, exclusive of the cost of any such repair
or restoration for which Seller is not responsible.
(b) If, between the date hereof and the Closing,
there shall occur a fire or other casualty affecting the Units which is not a
Major Casualty, then Purchaser shall have no right to terminate this Agreement
and shall purchase the Units in its damaged condition without reduction of or
offset against the Purchase Price or any other claim against Seller. Seller
shall assign to Purchaser the right to receive any insurance proceeds payable to
Seller as a result of such fire or other casualty; provided, however, that
Seller shall be entitled to retain (to the extent theretofore paid to Seller),
and shall not be obligated to assign the right to receive (to the extent not
theretofore paid to Seller), an amount of such insurance proceeds equal to
Seller's expenses, if any, incurred in collecting such proceeds and repairing
the damage caused by fire or other casualty.
(c) If, between the date hereof and the Closing,
there shall occur a fire or other casualty affecting the Units which is a Major
Casualty, then Purchaser shall have the option, to be exercised by notice given
to Seller within twenty (20) days after the date of receipt of the estimate of
the Restoration Costs, to terminate this Agreement. If Purchaser shall so elect
to terminate this Agreement, then (i) Purchaser shall be entitled to the return
of the Cash Deposit (together with any interest earned thereon) and (ii) neither
party hereto shall have any further obligations or liabilities to the other with
respect to the Units (or under this Agreement), except for those which expressly
survive the termination of this Agreement. If Purchaser shall not elect to
terminate this Agreement as provided in this subclause (c), then this Agreement
shall remain in full force and effect with respect and the provisions of Section
15.1(b) above shall apply to such damage and any insurance proceeds payable in
connection therewith.
(d) In no event shall Seller have any obligation to
repair any damage or destruction to the Units, but Seller shall have the right
to do so and utilize insurance proceeds for such purpose.
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(e) Seller and Purchaser expressly intend that the
provisions of this Section 15.1, and not Section 5-1311 of the New York State
General Obligations Law, shall govern in the event of a fire or other casualty.
SECTION 15.2. CONDEMNATION.
(a) If, between the date hereof and the Closing, any
condemnation or eminent domain proceedings are initiated which would result in
the taking of all or any material portion of the Building or any portion of the
Units, then Purchaser may elect to terminate this Agreement by giving written
notice of its election to the other party within twenty (20) days after
receiving notice of such prospective taking. If Purchaser shall so elect to
terminate this Agreement, then (i) Purchaser shall be entitled to the return of
the Cash Deposit (together with any interest earned thereon) and (ii) neither
party hereto shall have any further obligations or liabilities to the other with
respect to the Units (or under this Agreement), except for those which expressly
survive the termination of this Agreement. If Purchaser does not elect to
terminate this Agreement, then the parties hereto shall proceed to the Closing
without reduction of or offset against the Purchase Price and Purchaser shall
have no other claim against Seller. In such event, all of Seller's right, title
and interest in and to any condemnation proceeds paid or payable in connection
therewith shall be assigned to Purchaser. In no event shall Seller have any
obligation to repair or restore the Units or any portion thereof, but Seller
shall have the right to do so and to utilize the condemnation proceeds for such
purpose.
(b) If, between the date hereof and the Closing, any
condemnation or eminent domain proceedings are initiated which would result in
the taking of less than a material portion of the Units, then neither Seller nor
Purchaser may terminate this Agreement and the parties shall proceed to the
Closing without reduction of or offset against the Purchase Price and Purchaser
shall have no other claim against Seller. In such event, all of Seller's right,
title and interest in and to any condemnation proceeds paid or payable in
connection therewith shall be assigned to Purchaser. In no event shall Seller
have any obligation to repair or restore the Units or any portion thereof, but
Seller shall have the right to do so and to utilize the condemnation proceeds
for such purpose.
ARTICLE XVI
ASSIGNMENT
SECTION 16.1. NO ASSIGNMENT BY PURCHASER. Neither this
Agreement nor any of the rights of Purchaser hereunder (nor the benefits of such
rights) may be assigned, transferred or encumbered without Seller's prior
written consent and any purported assignment, transfer or encumbrance without
Seller's prior written consent shall be void. Purchaser expressly covenants and
agrees that (a) if Purchaser is a corporation, a sale or transfer of more than
fifty (50%) percent (at any one time or, in the aggregate from time to time) of
the shares of any class of the issued and outstanding stock of Purchaser, its
successors or assigns, or the issuance of additional shares of any class of its
stock to the extent of more than fifty (50%) percent (at any one time or,
40
in the aggregate from time to time) of the number of shares of said class of
stock issued and outstanding on the date hereof, (b) if Purchaser is a
partnership, joint venture or limited liability company, a sale or transfer of
more than fifty (50%) percent (at any one time or, in the aggregate from time to
time) of the partnership, joint venture, membership or other unincorporated
association interests of Purchaser, its successors or assigns, or the issuance
of additional partnership, joint venture or member interests of any class to the
extent of more than fifty (50%) percent (at any one time or, in the aggregate
from time to time) of the amount of partnership, joint venture or member
interests issued on the date hereof shall, in any such case, constitute an
assignment of this Agreement. Notwithstanding the foregoing, if there shall be
any change in the composition of Purchaser, and after such change, Xxxxxx
Xxxxxxxx shall no longer be a principal of Purchaser, then such change of
composition shall constitute an assignment of this Agreement. Unless, in each
instance, the prior written consent of Seller has been obtained, any such
assignment shall constitute a material default under this Agreement and shall
entitle Seller to exercise all rights and remedies under this Agreement, at law
or equity, in the case of such a default.
SECTION 16.2. PERMITTED ASSIGNMENT TO AFFILIATE.
Notwithstanding the provisions of Section 16.1 above, subsequent to the Due
Diligence Expiration Date, the named Purchaser in this Agreement shall have the
one-time right to assign its rights and obligations under this Agreement to an
Affiliate of such named Purchaser effective on or prior to the Closing, provided
that (a) on or prior to the effective date of such assignment, the Purchaser
shall deliver to Seller a written assumption, in form reasonably satisfactory to
Seller and duly executed and acknowledged by the assignee, in which the assignee
agrees to assume all of Purchaser's covenants, agreements and obligations under
this Agreement, and (b) Xxxxxx Xxxxxxxx or an entity existing for the benefit of
Xxxxxx Xxxxxxxx'x immediate family shall be a principal owning not less then 50%
of the legal and beneficial interest of such assignee. Purchaser shall remain
fully liable for all of Purchaser's covenants, agreements and obligations under
this Agreement notwithstanding any such permitted assignment pursuant to this
Section 16.2.
ARTICLE XVII
TAX CERTIORARI PROCEEDINGS
SECTION 17.1. PROSECUTION AND SETTLEMENT OF PROCEEDINGS. If
any tax reduction proceedings in respect of the Units, relating to any fiscal
years ending prior to the fiscal year in which the Closing occurs, are pending
at the time of the Closing, Seller reserves and shall have the right to continue
to prosecute and/or settle the same. If any tax reduction proceedings in respect
of the Units, relating to the fiscal year in which the Closing occurs, are
pending at the time of Closing, then Seller reserves and shall have the right to
continue to prosecute and/or settle the same; provided, however, that Seller
shall not settle any such proceeding without Purchaser's prior written consent,
which consent shall not be unreasonably withheld or delayed. Purchaser shall
reasonably cooperate with Seller in connection with the prosecution of any such
tax reduction proceedings.
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SECTION 17.2. APPLICATION OF REFUNDS OR SAVINGS. Any refunds
or savings in the payment of taxes resulting from such tax reduction proceedings
applicable to the period prior to the date of the Closing shall belong to and be
the property of Seller, and any refunds or savings in the payment of taxes
applicable to the period from and after the date of the Closing shall belong to
and be the property of Purchaser; provided, however, that if any such refund
creates an obligation to reimburse any tenants under Leases for any rents or
additional rents paid or to be paid, that portion of such refund equal to the
amount of such required reimbursement (after deduction of allocable expenses as
may be provided in the Lease to such tenant) shall, at Seller's election, either
(a) be paid to Purchaser and Purchaser shall disburse the same to such tenants
or (b) be paid by Seller directly to the tenants entitled thereto. All
attorneys' fees and other expenses incurred in obtaining such refunds or savings
shall be apportioned between Seller and Purchaser in proportion to the gross
amount of such refunds or savings payable to Seller and Purchaser, respectively
(without regard to any amounts reimbursable to tenants).
SECTION 17.3. SURVIVAL. The provisions of this Article XVII
shall survive the Closing.
ARTICLE XVIII
DEFAULT; REMEDIES; SURVIVAL
SECTION 18.1. PURCHASER'S DEFAULT ON OR BEFORE CLOSING.
(a) If, on or prior to the Closing Date, (i)
Purchaser defaults in any of the covenants, agreements or obligations to be
performed by Purchaser under this Agreement on or as of the Closing Date (or at
the Closing), (ii) Seller shall become aware of an inaccuracy in any
representation or warranty made by Purchaser pursuant to Section 10.3 hereof (as
made as of the date hereof) which has a material adverse effect on Seller, (iii)
Seller shall become aware of an inaccuracy in any representation or warranty
made by Purchaser pursuant to Purchaser's Representation Certificate (as made as
of the Closing Date) which has a material adverse effect on Seller, (iv)
Purchaser's Representation Certificate shall set forth any Purchaser's Adverse
Changes or (v) Purchaser otherwise materially defaults hereunder and such other
material default is not cured by the earlier of (A) the Closing Date (as it may
have been adjourned in accordance with this Agreement) or (B) the date which is
ten (10) days after notice of such default from Seller to Purchaser, then, and
in any of such events, Seller may terminate this Agreement by written notice to
Purchaser, whereupon, as liquidated damages on account thereof, Purchaser shall
be liable to Seller for an amount equal to the amount of the Cash Deposit
(together with any interest earned thereon), and the Cash Deposit (together with
any interest earned thereon) shall be paid to Seller by Escrow Agent and
credited against Purchaser's liability. Upon any such termination of this
Agreement, neither party shall have any further rights or obligations hereunder
other than those which expressly survive the termination of this Agreement.
Seller and Purchaser agree that the damages that Seller will sustain as a result
of such termination will be substantial but will be difficult to ascertain, and
the aforesaid liquidated damages are a fair and
42
reasonable amount to be retained by Seller as agreed and liquidated damages in
light of Seller's removal of the Units from the market and the damages incurred
by Seller and shall not constitute a penalty or a forfeiture.
(b) If Seller, with knowledge of (i) a default in any
of the covenants, agreements or obligations to be performed by Purchaser under
this Agreement, (ii) a material inaccuracy in any representation or warranty of
Purchaser made in this Agreement or pursuant to Purchaser's Representation
Certificate and/or (iii) any Purchaser's Adverse Changes, elects to proceed to
Closing, then, upon the consummation of the Closing, Seller shall be deemed to
have waived any such default, material inaccuracy and/or Purchaser's Adverse
Changes and shall have no claim against Purchaser on account thereof.
SECTION 18.2. SELLER'S DEFAULT ON OR BEFORE CLOSING.
(a) If, on or prior to the Closing Date, (i) Seller
defaults in any of the covenants, agreements or obligations to be performed by
Seller under this Agreement on or as of the Closing Date (or at the Closing) or
(ii) Seller otherwise materially defaults hereunder and such other material
default is not cured by the earlier of (A) the Closing Date (as it may have been
adjourned in accordance with this Agreement) or (B) the date which is ten (10)
days after notice of such default from Purchaser to Seller, then, and in any of
such events, Purchaser, as its sole remedy therefor, may either (1) seek
specific performance of Seller's obligations hereunder, without abatement,
credit against or reduction of the Purchase Price or (2) terminate this
Agreement by written notice to Seller, whereupon the Cash Deposit (together with
any interest earned thereon) shall be returned to Purchaser; it being understood
and agreed that in no event shall Purchaser be entitled to monetary damages. If
Purchaser shall elect to so terminate this Agreement, then, upon such election,
Seller shall return the Cash Deposit to Purchaser, and neither party shall have
any further rights or obligations hereunder other than those which expressly
survive the termination of this Agreement. Except as expressly provided in this
Section 18.2, Purchaser waives any other right or remedy, at law or in equity,
which Purchaser may have or be entitled to as a result of any default by Seller.
The term "DEFAULT," as used herein, shall mean the failure to perform an
obligation or covenant, and shall not be deemed to include an inaccuracy in any
representation or warranty. Without limiting the generality of the foregoing, it
is understood and agreed that Sections 18.2(b) and (c) hereof set forth the
exclusive remedies of Purchaser for any claim which might arise out of any of
the provisions of Article X (and, accordingly, the provisions of Section 18.2(a)
shall not apply to any such claims).
(b) If, on or prior to the Closing Date, (i)
Purchaser shall become aware of an inaccuracy in any representation or warranty
made by Seller pursuant to Section 10.1 or 10.2 hereof (as made as of the date
hereof) which has a material adverse effect on Purchaser, (ii) Purchaser shall
become aware of an inaccuracy in any representation or warranty made by Seller
pursuant to Seller's Representation Certificate (as made as of the Closing Date)
which has a material adverse effect on Purchaser or (iii) Seller's
Representation Certificate shall set forth any Seller's Adverse Changes, then,
and in any of such events, Purchaser, as its sole remedy therefor, may either
(1) elect to proceed to the Closing, without abatement, credit against or
43
reduction of the Purchase Price or (2) terminate this Agreement by written
notice to Seller. If Seller receives a notice of termination from Purchaser,
then Seller may, at its option, either (x) adjourn the Closing for a reasonable
period of time not to exceed sixty (60) days with the intention of curing such
inaccuracy or Seller's Adverse Change so that such inaccuracy or Seller's
Adverse Change no longer has a material adverse effect on Purchaser, or (y)
reduce the Purchase Price in an amount compensating for the decrease in value of
the Units so that such inaccuracy or Seller's Adverse Change no longer has a
material adverse effect on Purchaser. In the event Seller makes an election
pursuant to clauses (x) or (y) of the preceding sentence, Purchaser's notice of
termination shall be deemed null and void and Purchaser shall proceed to the
Closing; if Seller elects not to take either action specified in clauses (x) or
(y) of the preceding sentence, or if Seller makes the election pursuant to
clause (x) above but is unable to cure such inaccuracy or Seller's Adverse
Change so that the same no longer has a material adverse effect on Purchaser,
then this Agreement shall terminate, and the Cash Deposit (together with any
interest earned thereon) shall be returned to Purchaser, it being understood and
agreed that in no event shall Purchaser be entitled to monetary damages. If this
Agreement shall terminate as provided in this Section 18.2(b), then, upon such
termination, neither party shall have any further rights or obligations
hereunder other than those which expressly survive the termination of this
Agreement. Without limiting the generality of this Section 18.2(b), in no event
shall the occurrence of any of the events or circumstances described in the
preceding subclauses (i), (ii) and (iii) of this Section 18.2(b) give rise to
any obligation of Seller to cure an inaccuracy in any representation or warranty
or otherwise make Seller liable for damages on account thereof.
(c) If Purchaser, with knowledge of (i) a default in
any of the covenants, agreements or obligations to be performed by Seller under
this Agreement, (ii) a material inaccuracy in any representation or warranty of
Seller made in this Agreement or pursuant to Seller's Representation Certificate
and/or (iii) any Seller's Adverse Changes, elects to proceed to Closing, then,
upon the consummation of the Closing, Purchaser shall be deemed to have waived
any such default, material inaccuracy and/or Seller's Adverse Changes and shall
have no claim against Seller on account thereof.
SECTION 18.3. NO SURVIVAL. (a) Except as otherwise expressly
provided in this Agreement, no provision of this Agreement (i.e., no
representation, warranty, covenant, agreement or other obligation set forth in
any provision of this Agreement, including, without limitation, any
representation or warranty set forth in Seller's Representation Certificate or
Purchaser's Representation Certificate) shall survive the Closing (and,
accordingly, no claim arising out of the same may be commenced after the
Closing), and the delivery and acceptance of the deed shall be deemed to be full
performance and discharge of each such representation, warranty, covenant,
agreement or other obligation.
(b) If, after the Closing, Seller shall first learn
of (i) an inaccuracy in any representation or warranty of Purchaser made
pursuant to Section 10.3 hereof (as made as of the date hereof) or pursuant to
Purchaser's Representation Certificate (as made as of the Closing Date) which,
in any case, has a material adverse effect on Seller and expressly survives the
44
Closing pursuant to this Agreement or (ii) a default in any of the covenants,
agreements or obligations to be performed by Purchaser under this Agreement
which expressly survives the Closing, then Seller shall have a claim for damages
on account thereof, provided that (1) any such claim not brought within three
(3) months after the Closing (such period, the "SURVIVAL PERIOD") shall be
deemed waived and (2) Seller hereby waives the right to collect or seek to
collect consequential or punitive damages.
(c) If, after the Closing, Purchaser shall first
learn of (i) an inaccuracy in any representation or warranty of Seller made
pursuant to Section 10.2 hereof which survive pursuant to Section 10.6 hereof
(as made as of the date hereof) or pursuant to Seller's Representation
Certificate (as made as of the Closing Date) which, in any case, has a material
adverse effect on Purchaser and expressly survives the Closing pursuant to this
Agreement or (ii) a default in any of the covenants, agreements or obligations
to be performed by Seller under this Agreement which expressly survives the
Closing, then Purchaser shall have a claim for damages on account thereof,
provided that (1) any such claim not brought within the Survival Period shall be
deemed waived and (2) Purchaser hereby waives the right to collect or seek to
collect consequential or punitive damages.
SECTION 18.4. DETERMINATION OF MATERIAL INACCURACY.
Notwithstanding any provision of this Agreement to the contrary, no inaccuracy
in any representation or warranty made by Seller pursuant to Section 10.2 hereof
or pursuant to Seller's Representation Certificate (to the extent making or
remaking any representation or warranty pursuant to Section 10.2), or any
Seller's Adverse Change (to the extent affecting any representation or warranty
made or remade pursuant to Section 10.2), shall be deemed to have a "material
adverse effect" on Purchaser unless Purchaser can reasonably demonstrate that
the decrease in the value of the Units resulting from such inaccuracy or
Seller's Adverse Change, as the case may be, is more than the sum of (i) Two
Hundred Fifty Thousand ($250,000) Dollars, plus (ii) all insurance proceeds, if
any, payable to Purchaser by reason or arising out of the circumstances giving
rise to such inaccuracy or Seller's Adverse Change. If any such inaccuracy in
any representation or warranty under Section 10.2 or in Seller's Representation
Certificate, or any Seller's Adverse Change, shall not have a material adverse
effect on Purchaser, as determined in accordance with this Section 18.4, then
Purchaser shall not be entitled to any right or remedy under this Agreement, at
law or equity as a result of such inaccuracy or Seller's Adverse Change,
including, without limitation, the right to terminate this Agreement if
Purchaser shall become aware of such inaccuracy or Seller's Adverse Change on or
before the Closing.
ARTICLE XIX
NOTICES
SECTION 19.1. NOTICES. All notices, demands, requests and
other communications required hereunder shall be in writing and shall be deemed
to have been given: (a) upon delivery, if personally delivered; (b) three (3)
days after deposit in the United States Mail when delivered, postage prepaid, by
certified or registered mail, return receipt requested; or (c) one (1) Business
45
Day after deposit with a nationally recognized overnight delivery service marked
for delivery on the next Business Day, addressed to the party for whom it is
intended at its address hereinafter set forth:
To Seller:
c/o Ampal American-Israel Corporation
1177 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Att: Xx. Xxx Xxxxxxxx
and
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxxx X. Xxxxx, Esq.
To Purchaser:
c/o Philips International, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xx. Xxxxxx Xxxxxxxx
with a copy to:
Kotite & Kotite LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxx Xxxxxx, Esq.
or at such other address in the United States of America as may be designated by
either of the parties in a written notice given in accordance with the
provisions of this Section. The attorney for any party may send notices on that
party's behalf. Any notice which is rejected, the acceptance of which is refused
or which is incapable or being delivered for any reason, shall be deemed
received as of the date of attempted delivery.
46
ARTICLE XX
MISCELLANEOUS
SECTION 20.1. GOVERNING LAW; JURISDICTION AND VENUE.
(a) This Agreement shall be governed by, and
construed in accordance with, the substantive laws of the State of New York,
without regard to conflict of law principles.
(b) For the purposes of any suit, action or
proceeding involving this Agreement, Purchaser and Seller hereby expressly
submit to the jurisdiction of all federal and state courts sitting in the State
of New York and consent that any order, process, notice of motion or other
application to or by any such court or a judge thereof may be served within or
without such court's jurisdiction by registered or certified mail, return
receipt requested, or by personal service, provided that a reasonable time for
appearance is allowed, and Purchaser and Seller agree that such courts shall
have the exclusive jurisdiction over any such suit, action or proceeding
commenced by either or both of said parties. In furtherance of such agreement,
each party agrees upon the request of the other party to discontinue (or agree
to the discontinuance of) any such suit, action or proceeding pending in any
other jurisdiction.
(c) Purchaser and Seller hereby irrevocably waive any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement brought in any
federal or state court sitting in the State of New York and hereby further
irrevocably waive any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
SECTION 20.2. FURTHER ASSURANCES. In addition to the
obligations required to be performed hereunder by Seller and Purchaser at or
prior to the Closing, each party, from and after the Closing, shall execute,
acknowledge and/or deliver such other instruments, as may reasonably be
requested in order to effectuate the purposes of this Agreement; provided,
however, that the foregoing provisions of this Section 20.2 shall not obligate
either party to execute, acknowledge or deliver any instrument which would or
might impose upon such party any additional liability or obligation (beyond that
imposed upon on it under the documents delivered by such party at the Closing
and the other provisions of this Agreement which survive the Closing).
SECTION 20.3. SUCCESSORS. All of the provisions of this
Agreement and of any of the documents and instruments executed in connection
herewith shall apply to and be binding upon, and inure to the benefit of Seller
and Purchaser, their successors and permitted assigns.
SECTION 20.4. NO THIRD PARTY BENEFICIARY. This Agreement and
each of the provisions hereof are solely for the benefit of Purchaser and Seller
and their permitted assigns. No provisions of this Agreement, or of any of the
documents and instruments executed in connection herewith, shall be construed as
creating in any person or entity other than Purchaser and Seller and their
permitted assigns any rights of any nature whatsoever.
SECTION 20.5. ENTIRE AGREEMENT. This Agreement, together with
the documents and instruments executed and delivered in connection herewith,
sets forth the entire agreement between Purchaser and Seller relating
47
to the transactions contemplated hereby and all other prior or contemporaneous
agreements, understandings, representations or statements, oral or written,
relating directly to the Units are superseded hereby.
SECTION 20.6. SEVERABILITY. If any provision in this Agreement
is found by a court of competent jurisdiction to be in violation of any
applicable law, and if such court should declare such provision of this
Agreement to be unlawful, void, illegal or unenforceable in any respect, the
remainder of this Agreement shall be construed as if such unlawful, void,
illegal or unenforceable provision were not contained herein, and the rights,
obligations and interests of the parties hereto under the remainder of this
Agreement shall continue in full force and effect undisturbed and unmodified in
any way.
SECTION 20.7. MODIFICATION. This Agreement and the terms
hereof may not be changed, waived, modified, supplemented, canceled, discharged
or terminated orally, but only by an instrument or instruments in writing
executed and delivered by Purchaser and Seller.
SECTION 20.8. WAIVER OF TRIAL BY JURY. EACH PARTY HEREBY
WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON,
UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE
DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE UNITS, OR ANY CLAIMS, DEFENSES,
RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.
SECTION 20.9. NO RECORDING. Neither this Agreement nor any
memorandum hereof shall be recorded. Each party hereby agrees to indemnify and
hold harmless the others for all liabilities, losses, damages, liens, suits,
claims, costs and expenses (including reasonable attorneys' fees) incurred by
the other by reason of a breach of the foregoing covenant.
SECTION 20.10. CAPTIONS; INTERPRETATION.
(a) The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this Agreement or any of the provisions hereof. All references to
"Articles" and "Sections" without reference to a document other than this
Agreement, are intended to designate articles and sections of this Agreement,
and the words "herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article or Section,
unless specifically designated otherwise.
(b) As used in this Agreement, the masculine shall
include the feminine and neuter, the singular shall include the plural and the
plural shall include the singular, as the context may require.
(c) The use of the term "including" shall mean in all
cases "including but not limited to" unless specifically designated otherwise.
48
(d) No rules of construction against the drafter of
this Agreement shall apply in any interpretation or enforcement of this
Agreement, any documents or certificates executed pursuant hereto, or any
provisions of any of the foregoing.
SECTION 20.11. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same original, and the execution of separate counterparts by Purchaser and
Seller shall bind Purchaser and Seller as if they had each executed the same
counterpart.
SECTION 20.12. NO WAIVER. Neither the failure of either party
to exercise any power given such party hereunder or to insist upon strict
compliance by the other party with its obligations hereunder, nor any custom or
practice of the parties at variance with the terms hereof shall constitute a
waiver of either party's right to demand exact compliance with the terms hereof.
SECTION 20.13. NO LIS PENDENS. Purchaser hereby waives its
right to file a notice of pendency against the Units except in connection with
an action for specific performance pursuant to Section 18.2 hereof, and any
attempt by Purchaser for file a notice of pendency in violation of this
provision shall be null and void.
SECTION 20.14. ATTORNEY'S FEES. In the event that either party
hereto shall commence litigation against the other in connection herewith, the
losing party in such action shall reimburse the attorneys' fees and
disbursements of the prevailing party in such action.
ARTICLE XXI
CONFIDENTIALITY
SECTION 21.1. CONFIDENTIALITY. Except to the extent directed
or required by a court of law, Purchaser shall keep this Agreement and the terms
hereof and any and all information, documents, or other materials pertaining to
the Units discovered by or made available to Purchaser (collectively, the
"CONFIDENTIAL INFORMATION") in strict confidence, and shall not make any of such
Confidential Information available to any third party other than Purchaser's
Affiliates, agents, consultants, attorneys or contractors (collectively, the
"RELATED PARTIES") who, in Purchaser's reasonable judgment, need to know such
information for the purpose of assisting in or evaluating the transaction
contemplated by this Agreement. If Purchaser makes the Confidential Information
available to any Related Party, Purchaser shall inform such Related Party of the
confidential nature of the Confidential Information, and shall direct the
Related Party to keep such Confidential Information strictly confidential in
accordance with the terms of this Agreement. Purchaser shall be responsible for
any violation of this Section 21.1 by any Related Party.
49
IN WITNESS WHEREOF, this Agreement has been entered into as of
the day and year first above written.
SELLER:
AMPAL REALTY CORPORATION
By: _____________________
Name:
Title:
PURCHASER:
SECOND 800 LLC
By:__________________________
Name:
Title:
AGREEMENT OF ESCROW AGENT:
The undersigned Escrow Agent hereby acknowledges receipt of the Cash Deposit and
agrees to hold same in escrow pursuant to the provisions of Section 3.2 of this
Agreement.
XXXXXXXX XXXXXXXXX XXXXXX
XXXXXXXX & XXXXXX LLP
By:______________________
Xxxxxxx X. Xxxxx, Partner
50
EXHIBIT A
LAND
51
EXHIBIT B
EXISTING LEASES
TENANT SPACE SECURITY DEPOSIT
-----------------------------------------------------------------------------------------
Permanent Mission of Barbados to the 2nd Floor none currently held
United Nations
Kanan, Corbin, Xxxxxxx & Xxxxx, Inc. 5th Floor $350,000 (letter of
credit)
Xxxxxxx & Xxxxxxx, LLP Portion of 3rd Floor $87,172 (letter of
credit)
Schaerf and Sealove Portion of 6th Floor $7,370.00 (cash)
Government of St. Lucia Portion of 9th Floor none currently held
The Permanent Mission of the Republic of Portion of 9th Floor none currently held
Zambia to the United Nations
The Secretariat of the Commonwealth of 4th Floor none currently held
Nations
The Government of the Republic of Ecuador Portion of 6th Floor $7,550.00 (cash)
LS, Inc. Portions of 6th and 7th none currently held
Floors
Jasar, Ltd. / Meg-Gin, Ltd. Portion of ground floor $13,866.92 (cash)
Elephantx Dot Com LLC Portion of 9th Floor none currently held
International Federation of Red Cross Portion of 3rd Floor $7,683.00 (cash)
and Red Crescent Societies
Empire Bluecross and Blueshield Portion of 3rd Floor none currently held
800 - 2nd Operating, Inc. Portion of ground floor $18,125 (cash)
and basement
Xxxxx N.Y.C., Inc. Portion of ground floor $102,000 (cash)
and basement
000 Xxxxxx Xxxxxx Xxxxxxxxxx Corp. Portion of ground floor $78,000 (cash)
and basement
See Attached Arrearage Schedule
52
EXHIBIT C
Insurance
(see attached)
53
EXHIBIT D
EXISTING CONTRACTS
1. Management, Leasing & Sales Agreement dated as of November 11, 1996
between Xxxx Management Services, Inc. and Ampal Realty Corporation
(month to month).
2. Management Agreement dated as of November 11, 1996 between Xxxx
Management Services, Inc. and Ampal Realty Corporation, as amended by
that certain Amendment to Management Agreement dated as of January 31,
1997 (month to month).
54
EXHIBIT E
PERMITTED EXCEPTIONS
1. Rights of tenants under the Leases as tenants only.
2. Any state of facts an accurate survey of the Building and the Units would
show provided that the same does not prohibit the current use of the
Units or require a forfeiture of title to the Units.
3. The Declaration and By-Laws of the Condominium and the terms thereof, as
the same may be amended from time to time.
4. All matters pertaining to Local Law 5 Violations including, without
limitation, any mechanics liens filed with respect thereto.
5. Terms, covenants and restrictions dated 5/29/1869 and recorded in Liber
1097, Cp 586 and Liber 1097, Cp 584.
6. Easement of Light and Air dated 9/27/55 and recorded 9/27/55 in Liber
4937, Cp 333, as modified by Correction to easement agreement dated
10/31/55 and recorded 12/19/55 in Liber 4945, Page 582, as set forth in
deed made by 000 Xxxx 00xx Xxxxxx Corp. to 000 Xxxxxx Xxxxxx Company
dated 12/22/71 and recorded 12/27/71 in Reel 226, Page 609.
7. Distinctive Sidewalk Improvement and Maintenance Agreement dated July 10,
1992 (or 1982) and recorded 10/30/82 in Reel 1915, page 1385, as modified
by Modification of Distinctive Sidewalk Improvement and Maintenance
Agreement dated as of 9/1/93 and recorded in Reel 2091, page 511, as
further modified by Modification to Distinctive Sidewalk Improvement
Maintenance Agreement dated 6/12/95 and recorded 4/25/96 in Reel 2317,
Page 339.
8. Sewer Agreement dated 9/1/1869 recorded 6/12/1869 in Liber 1095, Page 642
as repeated in Liber 1128, Page 294.
9. Sewer Agreement dated 9/1/1871 and recorded 9/15/1871 in Liber 1174, Page
514.
10. Drainage Agreement dated 7/14/1869 and recorded 8/2/1869 in Liber 1090,
Page 684.
11. Railroad consent dated 6/6/16 and recorded 6/28/16 in Section 5, Liber
200, Page 440.
12. Subordination, Non-Disturbance and Attornment agreement dated as of
1/18/85 and recorded 3/19/85 in Reel 887, Page 1783 with respect to
certain unrecorded leases.
13. Terms, covenants, conditions and agreements contained in various
unrecorded leases as evidenced by assignment of leases
55
made between Massachusetts Mutual Life Insurance Company and The
Travelers Insurance Company dated as of 12/27/84 and recorded 1/7/85 in
Reel 863, Page 596.
14. Matters affecting the Common Elements, any other Unit of the Condominium,
and easements and encumbrances entered into by the Board of Managers
pursuant to the Condominium Documents.
15. Covenants, conditions, restrictions and easements of record as of the
date of this Agreement, other than those specifically stated above,
provided that (i) the same are not violated by and/or do not prohibit the
current us of the Units and the structures located on the Land, and (ii)
violations thereof will not result in a forfeiture or reversion of title.
56
EXHIBIT F
CONDOMINIUM UNIT DEED
THIS INDENTURE, made as of the ___ day of ________, 2000 by
and between between AMPAL REALTY CORPORATION, a New York corporation, with an
office c/o Ampal American-Israel Corporation, 1177 Avenue of the Americas, Xxx
Xxxx, Xxx Xxxx 00000 ("GRANTOR"), and ____________________, a
____________________, with an office at c/o Philips International, Inc., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("GRANTEE").
W I T N E S S E T H:
That the Grantor, in consideration of Ten ($10.00) Dollars and other
valuable consideration paid by the Grantee, does hereby grant and release unto
the Grantee, and the heirs or successors and assigns of the Grantee, forever:
[Describe Units and Declaration]
TOGETHER with an undivided 6.3% interest in the Common Elements (as defined in
the Declaration) appurtenant to Unit 1 and an undivided 49.8% interest in the
Common Elements appurtenant to Unit 2;
TOGETHER with the appurtenances and all the estate and rights of the Grantors in
and to the Units;
TOGETHER with and subject to the rights, obligations, easements, restrictions
and other provisions of the Declaration and of the By-Laws (including the Rules
and Regulations) of the Condominium, as such Declaration and By-Laws may be
amended from time to time by instruments recorded in the Office of the Register
of the City of New York, New York County, all of which rights, obligations,
easements, restrictions and other provisions shall constitute covenants running
with the land and shall bind any and all persons having at any time any interest
herein and subject to any other matters of record as of the date hereof;
TO HAVE AND TO HOLD the same unto the Grantee and the heirs or successors and
assigns of the Grantee, forever.
GRANTEE by accepting delivery of this deed covenants and agrees to be bound by
and to comply with the provisions of the Declaration and the By-Laws of the
Condominium (including but not limited to the Rules and Regulations thereunder)
recorded simultaneously with and as a part of the Declaration, as the same may
be amended from time to time by instruments recorded in the Office of the
Register of the City of New York, New York County.
Subject to any restrictions contained in the Declaration and in the By-Laws, the
Units may be used for any legal purpose.
57
The Grantor, in compliance with Section 13 of the Lien Law of the State of New
York, covenants that the Grantor will receive the consideration for this
conveyance and will hold the right to receive such consideration as a trust fund
for the purpose of paying the cost of the improvement and will apply the same
first to the payment of the cost of the improvement before using any part of the
same for any other purpose.
IN WITNESS WHEREOF, the Grantor has duly executed this indenture as of
the day and year first above written.
GRANTOR:
AMPAL REALTY CORPORATION
By: _________________________
Name:
Title:
GRANTEE:
SECOND 800 LLC
By:__________________________
Name:
Title:
00
XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF _________ )
On the ____ day of ___________ in the year 2000 before me, the
undersigned, personally appeared ____________________________, personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
___________________________________
Signature and Office of individual
taking acknowledgment.
59
CONDOMINIUM UNIT DEED
AMPAL REALTY CORPORATION
TO
SECOND 800 LLC
000 XXXXXX XXXXXX CONDOMINIUM
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Xxxxxx: New York
Block: 1335
Lots: 1001 and 1002
60
EXHIBIT G
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS,
That, subject to the terms and conditions hereinafter set
forth, AMPAL REALTY CORPORATION, a New York corporation, with an office at c/o
Ampal American-Israel Corporation, 1177 Avenue of the Americas, Xxx Xxxx, Xxx
Xxxx 00000 ("SELLER"), for and in consideration of the sum of Ten Dollars
($10.00), lawful money of the United States, to it in hand paid, at or before
delivery of these presents by SECOND 800 LLC, a New York limited liability
company, with an office at c/o Philips International, Inc., 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("PURCHASER"), the receipt of which is hereby
acknowledged, has bargained and sold, and by these presents does grant and
convey unto Purchaser its successors and assigns all right, title and interest
of Seller in and to all of the equipment, furniture, fittings, fixtures and
articles of personal property which is owned by Seller and affixed or attached
to, installed or placed in or upon and used for or useable in any present or
future enjoyment, occupancy or operation of condominium Units 1 and 2 of the 000
Xxxxxx Xxxxxx Condominium (the "PERSONAL PROPERTY").
Seller grants and conveys the Personal Property unto Purchaser
without recourse and without representation or warranty of any kind, express or
implied (except to the extent and only for so long as any representation and
warranty from Seller, if any, regarding the Personal Property as is set forth in
the Sale and Purchase Agreement dated _________, 2000 between Seller and
Purchaser shall survive the closing of title thereunder, and subject to the
limitations contained therein). Notwithstanding the foregoing, Seller covenants
that it has not done or suffered anything whereby the said Personal Property has
been encumbered in any way whatever by such Seller.
TO HAVE AND TO HOLD the same unto Purchaser its successors and
assigns forever.
Seller has made no warranty that the Personal Property is
merchantable or fit for any particular purpose and the same is sold in an "as
is" "where is" condition. By acceptance of delivery of this Xxxx of Sale,
Purchaser affirms that it has not relied on Seller's skill or judgment to select
or furnish the Personal Property for any particular purpose, and that Seller
makes no warranty that the Personal Property is fit for any particular purpose
and that there are no representations or warranties, expressed, implied or
statutory.
This Xxxx of Sale shall be governed by and construed in
accordance with the laws of the State of New York.
61
IN WITNESS WHEREOF, Seller has caused this instrument to be
duly executed as of this ___ day of ________, 2000.
SELLER:
AMPAL REALTY CORPORATION
By: _____________________
Name:
Title:
62
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT"),
made as of the ___ day of _________, 2000, by and between AMPAL REALTY
CORPORATION, a New York corporation, with an office at c/o Ampal American-Israel
Corporation, 1177 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 ("ASSIGNOR"),
and SECOND 800 LLC, a New York limited liability company, with an office at c/o
Philips International Holding Corp., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("ASSIGNEE"), with reference to the following:
R E C I T A L S
Pursuant to that certain Sale and Purchase Agreement dated as
of __________, 2000 between Assignor and Assignee (the "AGREEMENT"), Assignor is
selling the Units (as such term is defined in the Agreement) to Assignee.
NOW THEREFORE, in consideration of the foregoing promises,
covenants and undertakings contained in this Assignment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
Assignor hereby assigns, transfers, sets-over, delivers and
conveys unto Assignee all of the rights, benefits and privileges of Assignor, as
landlord, under the leases (the "LEASES") described in Schedule A annexed hereto
and incorporated herein by this reference, arising from and after the date
hereof, including without limitation all rents, issues and profits arising
therefrom (subject to adjustment as set forth in the Agreement), TO HAVE AND TO
HOLD all and singular subject as aforesaid, unto Assignee. This conveyance is
made without any recourse and without representation or warranty of any kind,
express or implied (except to the extent and only for so long as any
representation and warranty, if any, regarding the Leases as is set forth in the
Agreement shall survive the closing of title thereunder, and subject to the
limitations contained therein).
Assignee assumes and agrees to discharge and perform all
duties, obligations and liabilities of the landlord under the Leases first
accruing from and after the date hereof for the duration of the respective terms
thereof. Without limiting the generality of the foregoing, the obligations and
liabilities assumed by Assignee hereunder shall include, but shall not be
limited to, the obligation to properly apply any security deposit or other
deposit under any of the Leases, to the extent such security deposit or other
deposit has been delivered by Assignor to Assignee or credited to Assignee
concurrently herewith.
63
This Assignment shall be binding upon, enforceable by and
shall inure to the benefit of the successors and assigns of the parties.
This Assignment may be signed in multiple counterparts which,
when taken together and signed by all parties and delivered to any other party
hereto, shall constitute a binding Assignment between the parties.
This Assignment shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this instrument as of the date first set forth above.
ASSIGNOR:
AMPAL REALTY CORPORATION
By: _________________________
Name:
Title:
ASSIGNEE:
SECOND 800 LLC
By:__________________________
Name:
Title:
64
SCHEDULE A
LEASES
65
EXHIBIT I
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PERMITS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PERMITS (this
"ASSIGNMENT") is made as of the ___ day of _________, 2000, by and between AMPAL
REALTY CORPORATION, a New York corporation, with an office at c/o Ampal
American- Israel Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("ASSIGNOR"), and SECOND 800 LLC, a New York limited liability company,
with an office at c/o Philips International Holding Corp., 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("ASSIGNEE"), with reference to the following:
R E C I T A L S
Pursuant to that certain Sale and Purchase Agreement dated as
of August ___, 2000 between Assignor and Assignee (the "AGREEMENT"), Assignor is
selling the Units (as such term is defined in the Agreement) to Assignee. All
capitalized terms not defined herein shall have the respective meaning ascribed
thereto in the Agreement.
NOW THEREFORE, in consideration of the foregoing promises,
covenants and undertakings contained in this Assignment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
A G R E E M E N T
1. The term "UNIT INTERESTS," as used herein, shall
mean, collectively, all of Assignor's right, title and interest in and to the
Contracts and the transferable Permits affecting the Units which are described
on Schedule A annexed hereto.
2. (a) Assignor hereby assigns, transfers, sets-over,
delivers and conveys to Assignee, without recourse and without representation or
warranty of any kind, express or implied, all of Assignor's right, title and
interest in and to the Unit Interests.
(b) Assignee hereby accepts the foregoing assignment
and agrees to assume, keep, perform and fulfill all of the terms, conditions and
obligations which are required to be kept, performed and fulfilled by Assignor
in connection with or arising out of the Unit Interests first accruing from and
after the date hereof.
3. This Assignment shall be binding upon, enforceable by
and shall inure to the benefit of the successors and assigns of the parties.
4. This Assignment may be signed in multiple
counterparts which, when
66
taken together and signed by all parties and delivered to any other party
hereto, shall constitute a binding Assignment between the parties.
5. This Assignment shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this instrument as of the date first set forth above.
ASSIGNOR:
AMPAL REALTY CORPORATION
By: ________________________
Name:
Title:
ASSIGNEE:
SECOND 800 LLC
By:__________________________
Name:
Title:
67
SCHEDULE A
Contracts and Permits
68
EXHIBIT J
AMPAL REALTY CORPORATION
c/o Ampal American-Israel Corporation
1177 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
________________, 2000
By Certified Mail --
Return Receipt Requested
To Tenants of Xxxx 0 and Xxxx 0
000 Xxxxxx Xxxxxx Xxxxxxxxxxx
Xxx Xxxx, Xxx Xxxx
Re: 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("the Premises")
Gentlemen:
Please be advised that effective as of the date of this letter
(1) Ampal Realty Corporation ("SELLER") has conveyed all of its right, title and
interest in and to the Premises, including its interest as landlord under your
lease, to SECOND 800 LLC ("PURCHASER"), and (2) Purchaser has assumed the
landlord's obligations under your lease. Any unapplied security deposit
(including interest thereon) held by Seller as landlord under your lease has
been assigned and delivered to Purchaser.
Accordingly, you are hereby notified that all future rent and
additional rent payments due under your lease affecting the above-referenced
premises, and any notices, inquiries or requests regarding such lease, should be
delivered to Purchaser c/o Philips International Holding Corp., 000 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 .
You are also hereby notified that, effective as of the date
hereof, all insurance policies maintained by you pursuant to your lease should
name Purchaser, [Property Manager], and [Mortgagee] as additional insureds.
69
Very truly yours,
AMPAL REALTY CORPORATION
By: _____________________
Name:
Title:
SECOND 800 LLC
By:__________________________
Name:
Title:
70
EXHIBIT K
LITIGATION
1. Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx v. Ampal Realty Corporation,
Supreme Court of the State of New York, County of New York, Index No.
118055/99
2. Order With Notice of Entry in connection with Xxxxxxx Xxxxx v. 800
Second Operating, Inc., d/b/a Churchs Pizza Hut, et al., Supreme Court
of the State of New York, County of Kings, Index Xx. 00000/00
0. Xxxxxxxx, Xxxxxxx x. Ampal Realty Corporation
