EXHIBIT NO. 10.129
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") made this 23rd day
of January, 1998 between RMC Development Company, LLC, a limited liability
company organized under the laws of the State of New York, having an address c/o
Xxxxxx Xxxxxx Company, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Seller")
and CALI STAMFORD REALTY ASSOCIATES L.P., a limited partnership organized under
the laws of the State of Connecticut, having an address c/o Xxxx-Xxxx Realty
Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Purchaser).
RECITALS
A. Seller is the owner of certain property more particularly described
below and located in Stamford, Connecticut.
B. Seller has agreed to sell to Purchaser, and Purchaser has agreed to
purchase from Seller, such property and certain other assets, all as more
particularly set forth below, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, do hereby agree as follows:
1. SUBJECT OF CONVEYANCE.
1.1 Seller hereby agrees to sell and convey, and Purchaser
hereby agrees to purchase, subject to all terms and conditions set forth in this
Agreement:
(a) that certain plot, piece or parcel of land
situate, lying and being in the City of Stamford, County of Fairfield, and State
of Connecticut, and being more particularly described on Schedule 1.1(a) (the
"Land"), and the improvements, if any, located on the Land (the "Improvements");
(b) all rights, privileges, grants and easements
appurtenant to Seller's interest in the Land and Improvements,
including without limitation, all of Seller's right, title and interest in and
to all land lying in the bed of any public street, road or alley, all mineral
and water rights and all easements, licenses, covenants and rights-of -way or
other appurtenances used in connection with the beneficial use and enjoyment of
the Land and Improvements (the Land and Improvements and all such rights,
privileges, easements, grants and appurtenances are sometimes referred to herein
as the "Real Property");
(c) all leases and other agreements with respect
to the use and occupancy of the Real Property, together with all amendments and
modifications thereto and any guaranties provided thereunder (individually, a
"Lease", and collectively, the "Leases"), and rents, additional rents,
reimbursements, profits, income, receipts, and the amount, if any, deposited
(the "Security Deposit") under any Lease in the nature of security for the
performance of the obligations of the tenant or user (individually a "Tenant",
and collectively, the "Tenants") under the Leases; and
(d) any approvals, permits and agreements,
including but not limited to environmental permits, subdivision approvals,
development agreements, site plans and approvals, relating to the development of
the Real Property (collectively, the "Intangible Property"); and
(e) all other rights, privileges and
appurtenances owned by Seller, if any, and in any way related to the rights and
interests described above in this Section.
The Real Property, the Leases, the Intangible Property and all
other property interests being conveyed hereunder are hereinafter collectively
referred to as the "Property".
2. PURCHASE PRICE AND TERMS OF PAYMENT.
2.1 The purchase price for the Property is One
Million Three Hundred Thirteen Thousand ($1,313,000) Dollars (the "Purchase
Price"), payable on the Closing Date (as defined in Section 10) by the wiring of
federal funds to Seller, subject to adjustment as provided herein. At the
request of Seller given the business day prior to the Closing Date, Purchaser
agrees to provide to Seller bank or certified checks up to the amount due under
this Section 2.1 on account of sums due in order for Seller to perform its
obligations hereunder.
3. Deleted prior to execution.
4. TITLE MATTERS TO WHICH THIS SALE IS SUBJECT.
4.1 The Property is to be contributed to Purchaser subject to
the following (collectively, the "Permitted Encumbrances"):
(a) The lien of real estate taxes, personal
property taxes, water charges, and sewer charges provided same
are not due and payable, but subject to adjustment as provided
herein;
(b) The rights of Tenants, as tenants only;
(c) Those restrictions, covenants, agreements,
easements, matters and things affecting title to the Real Property and more
particularly described in Schedule 4.1(c) annexed hereto and by this reference
made a part hereof;
(d) Any and all laws, statutes, ordinances,
codes, rules, regulations, requirements, or executive mandates affecting the
Property as of the date hereof except for engineering or institutional controls,
including without limitation, a deed notice or declaration of environmental
restrictions, a groundwater classification exception area or well restriction
area affecting the Property; and
(e) The state of facts shown on the survey, if
any, described on Schedule 4.1(c), and any other state of facts which a recent
and accurate survey of the Real Property would actually show, provided same does
not impair the use of the Real Property as intended by Purchaser and does not
render title uninsurable at standard rates.
4.2 Purchaser shall cause any title company licensed to do
business in the State of Connecticut (the "Title Company") to prepare a title
insurance search and commitment for an owner's title insurance policy for the
Real Property (the "Title Commitments") and shall cause a copy of same to be
delivered to counsel for Seller. If any defects, objections or exceptions in the
title to the Real Property appear in the Title Commitments (other than the
Permitted Encumbrances) which Purchaser is not required to accept under the
terms of this Agreement, Seller agrees to use good faith efforts to cure same
prior to Closing (as defined in Section 10) and in any event to cure, at its
expense, (i) judgments against Seller, (ii) mortgages and other
liens which can be satisfied by payment of a liquidated amount and (iii)
defects, objections or exceptions which can be removed by payments not to exceed
three (3%) percent of the Purchase Price in the aggregate. Seller, in its
discretion, may adjourn the Closing for up to sixty (60) days in order to
eliminate unacceptable defects, objections or exceptions. If, after complying
with the foregoing requirements, Seller is unable to eliminate all unacceptable
defects, objections or exceptions in accordance with the terms of this Agreement
on or before such adjourned date for the Closing, Purchaser shall elect either
(w) to terminate this Agreement by notice given to the Seller, in which event
the provisions of Section 4.7 shall apply, or (x) to accept title subject to
such unacceptable defects, objections or exceptions and receive no credit
against or reduction of the Purchase Price. Seller agrees and covenants that it
shall not voluntarily place any defects, objections or exceptions to title to
any of the Real Property from and after the date of the first issuance of the
Title Commitment for said Property.
4.3 It shall be a condition to Closing that Seller convey, and
that the Title Company insure, title to the Real Property in the amount of the
Purchase Price (at a standard rate for such insurance) in the name of Purchaser
or its designees, after delivery of the Deed (as defined in Section 10), by a
standard 1992 ALTA Owners Policy, with such ALTA endorsements as may be
available and as required by Purchaser, free and clear of all liens,
encumbrances and other matters, other than the Permitted Encumbrances (the
"Title Policy"). The Title Company shall provide affirmative insurance that any
(i) Permitted Encumbrances have not been violated, and that any future violation
thereof will not result in a forfeiture or reversion of title; (ii) Purchaser's
contemplated use of the Property will not violate the Permitted Encumbrances;
and (iii) the exception for taxes shall apply only to the current taxes not yet
due and payable. Seller shall provide such affidavits, including title
affidavits and survey affidavits of no change, and undertakings as the Title
Company insuring title to the Property may require. The words "insurable title"
and "insurable" as used in this Agreement are hereby defined to mean title which
is insurable at standard rates (without special premium) by the Title Company
without exception other than the Permitted Encumbrances, and standard printed
policy and survey exceptions.
4.4 Any unpaid taxes, water charges, sewer rents and
assessments, together with the interest and penalties thereon to a date not less
than seven (7) business days following the Closing Date (in each case subject to
any applicable apportionment), and any mortgages and other liens created by
Seller, which Seller is obligated to pay and discharge pursuant to the terms of
this Agreement, together with the cost of recording or filing of any instruments
necessary to discharge such liens and such judgments, shall be paid at the
Closing by Seller. Seller shall deliver to Purchaser, on the Closing Date,
instruments in recordable form sufficient to discharge any such mortgages or
other liens which Seller is obligated to pay and discharge pursuant to the terms
of this Agreement.
4.5 If the Title Commitments disclose judgments, bankruptcies
or other returns against other persons having names the same as or similar to
that of Seller, Seller, on request, shall deliver to the Title Company
affidavits showing that such judgments, bankruptcies or other returns are not
against Seller, or any affiliates. Upon request by Purchaser, Seller shall
deliver any affidavits and documentary evidence as are reasonably required by
the Title Company to eliminate the standard or general exceptions on the ALTA
form Owner's Policy.
4.6 Deleted prior to execution.
4.7 If Seller is unable to convey title in accordance with the
terms of this Agreement and Purchaser elects to terminate this Agreement, then
this Agreement shall terminate and except as provided in the following sentence,
neither party to this Agreement shall have any further rights or obligations
hereunder other than those which are expressly stated herein to survive any such
termination. Upon a termination of this Agreement by Purchaser, Seller shall
refund to Purchaser all charges made for (i) examining the title to all of the
Real Property, (ii) any appropriate additional municipal searches made in
accordance with this Agreement, and (iii) survey and survey inspection charges,
which refund obligation shall survive said termination.
4.8 Purchaser acknowledges that the property described as
Easement Area "2" on that certain map (filed November 29, 1983, SLR 11136)
described in the second recital of the Conservation Easement dated November 9,
1983 among Nabisco, Inc., the City of Stamford and the Environmental Protection
Board of the City of Stamford and recorded at Volume 2320, page 174 is being
conveyed to Purchaser, to be held by Purchaser as a nominee on behalf of Seller,
which nominee relationship is more particularly set forth in an agreement (the
"Nominee Agreement") to be executed by Seller and Purchaser at Closing, in a
form substantially in accordance with Section 26 of the Contribution and
Exchange Agreement between Xxxxxx Xxxxxx Company, LLC, Xxxxxx Xxxxxx-Eastview
North Company, L.P. and Cali Realty, L.P. and
Cali Realty Corporation dated January 24, 1997.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
5.1 In order to induce Purchaser to perform as required
hereunder, Seller hereby warrants and represents the following:
(a) Seller is a duly organized and validly existing
limited liability company organized under the laws of the State of New York, is
duly authorized to transact business and is in good standing in the State of
Connecticut, has all requisite power and authority to execute and deliver this
Agreement and all other documents and instruments to be executed and delivered
by it hereunder, and to perform its obligations hereunder and under such other
documents and instruments in order to sell the Property in accordance with the
terms and conditions hereof. All necessary actions of the members of Seller to
confer such power and authority upon the persons executing this Agreement and
all documents which are contemplated by this Agreement on its behalf have been
taken.
(b) This Agreement, when duly executed and delivered,
will be the legal, valid and binding obligation of Seller, enforceable in
accordance with the terms of this Agreement. The performance by Seller of its
duties and obligations under this Agreement and the documents and instruments to
be executed and delivered by it hereunder will not conflict with, or result in a
breach of, or default under, any provision of any of the organizational
documents of Seller or any agreements, instruments, decrees, judgments,
injunctions, orders, writs, laws, rules or regulations, or any determination or
award of any court or arbitrator, to which Seller is a party or by which its
assets are or may be bound.
(c) Annexed hereto as Schedule 5.1 (c) is a true,
complete and correct schedule of the only Lease for the Land. The Lease is a
valid and bona fide obligation of the landlord and to Seller's knowledge tenant
thereunder and is in full force and effect. No defaults exist thereunder and to
Seller's knowledge no condition exists which, with the passage of time or the
giving of notice or both, will become a default. The Lease constitutes the only
lease, tenancy or occupancy affecting the Real Property on the date hereof and
there are no agreements which confer upon
any Tenant or any other person or entity any rights with respect to the
Property.
(d) There are no service contracts, union contracts,
employment agreements or other agreements affecting the Property or the
operation thereof.
(e) There are no actions, suits, labor disputes,
litigation or proceedings currently pending or, to the knowledge of Seller,
threatened against or related to Seller or to all or any part of the Property,
the environmental condition thereof, or the operation thereof, nor does Seller
know of any basis for any such action.
(f) Seller has received no written notice and has no
knowledge of (i) any pending or contemplated annexation or condemnation
proceedings, or private purchase in lieu thereof, affecting or which may affect
the Property, or any part thereof, (ii) any proposed or pending proceeding to
change or redefine the zoning classification of all or any part of the Property,
(iii) any proposed or pending special assessments affecting the Property or any
portion thereof, (iv) any penalties or interest due with respect to real estate
taxes assessed against the Property and (v) any proposed change(s) in any road
or grades with respect to the roads providing a means of ingress and egress to
the Property. Seller agrees to furnish Purchaser with a copy of any such notice
received within two (2) business days after receipt.
(g) Seller has provided Purchaser with all reports,
including without limitation, the Environmental Documents, in Seller's
possession or under its control related to the physical condition of the
Property.
(h) Seller has no knowledge of any notices, suits,
investigations or judgments relating to any violations of any laws, ordinances
or regulations (including without limitation, Environmental Laws [as defined in
Section 5.2(a)(ix)(D)] affecting the Property, or any violations or conditions
that may give rise thereto, and has no reason to believe that any agency, board,
bureau, commission, department, office or body of any municipal, county, state
or federal governmental unit, or any subdivision thereof, having, asserting or
acquiring jurisdiction over all or any part of the Property or the management,
operation, use or improvement thereof (collectively, the "Governmental
Authorities") contemplates the issuance thereof, and to Seller's knowledge there
are no outstanding orders, judgments, injunctions, decrees, directives or writs
of any Governmental Authorities against or
involving Seller or the Property.
(i) There are no employees working at or in
connection with the Property. There are no union agreements affecting the
Property as of the date hereof, nor shall any such agreements affect the
Property as of the Closing Date.
(j) The only obligation of Seller in the nature of a
leasing commission due with respect to the Lease is an undated agreement between
Colliers ABR, Inc. and Seller.
(k) Seller has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, suffered the
appointment of a receiver to take possession of all, or substantially all, of
such Seller's assets, suffered the attachment or other judicial seizure of all,
or substantially all, of such Seller's assets, admitted in writing its inability
to pay its debts as they come due or made an offer of settlement, extension or
composition to its creditors generally.
(l) There are to Seller's knowledge no engineering or
institutional controls at the Real Property, designed to address the Discharge
of Contaminants or required by Environmental Laws or Governmental Authorities at
the Real Property, including without limitation any deed notice, declaration of
environmental restriction, groundwater classification exception area, well
restriction area or other notice or use limitations pursuant to Environmental
Laws.
(m) Seller has no knowledge that any part of the Real
Property has been designated as wetlands under the Federal Water Pollution
Control Act, 33 U.S.C. ss.1251 et seq., the Inland Wetlands and Watercourses
Act, Conn. Gen. Stat. Xxx. ss.ss.22a-36 et seq. and the Tidal Wetlands Act,
Conn. Gen. Stat. Xxx. ss.ss.22A-28 et. seq., or any applicable local law or
regulation promulgated pursuant to any of the foregoing.
(n) There are no aboveground or underground storage
tanks or vessels which contain any Contaminants at the Real Property regardless
of whether such tanks or vessels are regulated tanks or vessels or not.
(o) Seller does not own or operate any property which
any Governmental Authority has demanded in writing, addressed to and received by
Seller or any of its affiliates, counsel or agents, be cleaned up and which has
not been cleaned up.
(p) No representation or warranty made by Seller
contained in this Agreement, and no statement contained in any document,
certificate, Schedule or Exhibit furnished or to be furnished by or on behalf of
Seller to Purchaser or any of its designees or affiliates pursuant to this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading or necessary in order to fully and
fairly provide the information required to be provided in any such document,
certificate, Schedule or Exhibit.
5.2 In addition to the provisions of Section 5.1, Seller
hereby warrants and represents the following with respect to environmental
matters:
Except as disclosed on Schedule 5.2(a):
(i) To Seller's knowledge, no Contaminants
have been Discharged which relate to the Real Property that would allow a
Governmental Authority to demand that a cleanup be undertaken.
(ii) To Seller's knowledge, no ss.104(e)
informational request has been received by Seller issued pursuant to CERCLA,
with respect to the Real Property.
(iii) To Seller's knowledge, all
pre-existing aboveground and underground storage tanks and vessels, if any, at
the Real Property have been removed and their contents disposed of in accordance
with and pursuant to all applicable Environmental Laws.
(iv) To Seller's knowledge, there is no
asbestos or asbestos containing material requiring remediation under
Environmental Laws on the Real Property.
(v) The transfer of the Property by Seller
to Purchaser is not subject to the Transfer Act.
(vi) To Seller's knowledge, Seller has all
material certificates, licenses and permits (the "Permits"), including, without
limitation, any environmental permits, required to operate the Real Property. To
Seller's knowledge, there is no violation of any Environmental Laws with respect
to any Permits, all Permits are in full force and effect, are transferable with
the Real Property without additional payment by Purchaser, and shall upon
Closing, be transferred to Purchaser by Seller.
(vii) The Real Property has not been used
during the period of Seller's ownership or, to the knowledge of Seller, been
previously used, as a solid waste facility or a solid waste disposal area,
including without limitation, a sanitary landfill facility, as defined in the
Connecticut Solid Waste Management Act, Conn. Gen. Stat. Xxx. ss.22a-446d et
seq.
(viii) Seller has not, and shall not
knowingly permit any person or entity to engage in any activity on the Real
Property in violation of Environmental Laws.
(ix) For purposes of this Agreement, the
following words shall have the respective meaning set forth below:
(A) "Contaminants" shall include,
without limitation, any regulated substance, toxic substance, hazardous
substance, hazardous waste, pollution, pollutant or contaminant, as defined or
referred to in the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
ss.6901 et seq.; the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. ss.9601 et seq. ("CERCLA"); the Water
Pollution and Control Act, 33 U.S.C. ss.1251 et seq.; together with any
amendments thereto, regulations promulgated thereunder and all substitutions
thereof, as well as words of similar purport or meaning referred to in any other
applicable federal, state, county or municipal environmental statute, ordinance,
rule or regulation, including, without limitation, asbestos, polychlorinated
biphenyls, urea formaldehyde and petroleum products and petroleum based
derivatives.
(B) "Discharge" shall mean the
releasing, spilling, leaking, leaching, disposing, pumping, pouring, emitting,
emptying, treating or dumping of Contaminants at, into, onto or from the
Property, regardless of whether the result of an intentional or unintentional
action or omission.
(C) "Environmental Documents" shall
mean all environmental documentation in the possession or under the control of
Seller concerning the Property, or its environs, including, without limitation,
all sampling plans, cleanup plans, preliminary assessment plans and reports,
site investigation plans and reports, remedial investigation plans and reports,
remedial action plans and reports, or the equivalent, sampling results, sampling
result reports, data, diagrams, charts, maps, analysis, conclusions, quality
assurance/quality control documentation, correspondence to or from any
Governmental Authority, submissions to any Governmental Authority and
directives, orders, approvals and disapprovals issued by any Governmental
Authority.
(D) "Environmental Laws" means each
and every applicable federal, state, county or municipal statute, ordinance,
rule, regulation, order, code, directive or requirement of any Governmental
Authority in any way related to Contaminants.
(E) "Transfer Act" shall mean the
Connecticut Transfer Act, Conn. Gen. Stat. Xxx. ss. 22a-134 et seq., the
Regulations promulgated thereunder and any amending and successor legislation.
5.3 All representations and warranties made by Seller in this
Agreement shall
survive the Closing Date for a period of one (1) year, and shall not be merged
in the delivery of the Deed. Seller agrees to indemnify and defend Purchaser,
and to hold Purchaser harmless, from and against any and all claims,
liabilities, losses, deficiencies and damages as well as reasonable expenses
(including attorney's, consulting and engineering fees), and interest and
penalties related thereto, incurred by Purchaser, by reason of or resulting from
any breach, inaccuracy, incompleteness or nonfulfillment of the representations,
warranties, covenants and agreements of Seller contained in this Agreement. In
no event shall Seller's liability on account of a failure of a representation or
warranty exceed $250,000 in the aggregate, unless same is as a result of the
gross negligence or willful misconduct of Seller. In addition, Purchaser shall
not be entitled to make a claim against Seller from and after the closing if any
senior executive officer of Purchaser or its affiliates (other than Xxx Xxxxx or
Xxxx Xxxxxx) had actual knowledge of the matter which is the subject of the
failure of such representation or warranty.
5.4 Purchaser acknowledges and agrees that, except as provided
in this Agreement, Seller has not made any representations or warranties of any
kind or character whatsoever, whether express or implied, with respect to the
Property and that, except as provided in this Agreement, the transfer of the
Property is on an "as is" condition. Purchaser acknowledges that it is not in a
significantly disparate bargaining position with respect to Seller in connection
with the transaction contemplated by this Agreement and that Purchaser was
represented by legal counsel in connection with this transaction.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
6.1 In order to induce Seller to perform as required
hereunder, Purchaser hereby warrants and represents the following:
(a) Purchaser is a duly organized and validly
existing limited partnership organized under the laws of the State of
Connecticut, has all requisite power and authority to execute and deliver this
Agreement and all other documents and instruments to be executed and delivered
by it hereunder, and to perform its obligations hereunder and under such other
documents and instruments in order to purchase the Property in accordance with
the terms and conditions hereof. All necessary actions of the Board of Directors
to confer such power and authority upon the persons executing this Agreement and
all documents which are contemplated by this Agreement on its behalf have been
taken.
(b) This Agreement, when duly executed and delivered,
will be the legal, valid and binding obligation of Purchaser, enforceable in
accordance with the terms of this Agreement. The performance by Purchaser of its
duties and obligations under this Agreement and the documents and instruments to
be executed and delivered by it hereunder will not conflict with, or result in a
breach of, or default under, any provision of any of the organizational
documents of Purchaser or any agreements, instruments, decrees, judgments,
injunctions, orders, writs, laws, rules or regulations, or any determination or
award of any court or arbitrator, to
which Purchaser is a party or by which its assets are or may be bound.
6.2 All representations and warranties made by Purchaser in
this Agreement shall survive the Closing Date for a period of one (1) year, and
shall not be merged in the delivery of the Deed. From and after the Closing,
Purchaser agrees to indemnify and defend Seller, and to hold Seller harmless,
from and against any and all claims, liabilities, losses, deficiencies and
damages as well as reasonable expenses (including attorney's, consulting and
engineering fees), and interest and penalties related thereto, incurred by
Seller, by reason of or resulting from any breach, inaccuracy, incompleteness or
nonfulfillment of the representations, warranties, covenants and agreements of
Purchaser contained in this Agreement.
6.3 Seller acknowledges that it is not in a significantly
disparate bargaining position with respect to Purchaser in connection with the
transaction contemplated by this Agreement and that Seller was represented by
legal counsel in connection with this transaction.
7. COVENANTS OF SELLER.
7.1 Seller covenants and agrees that between the date hereof
and the Closing Date it shall perform or observe the following:
(a) Seller will not defer taking any actions or
spending any of its funds, or otherwise manage the Property differently, due to
the pending sale of the Property.
(b) Seller, will not enter into any new leases with
respect to the Property, or renew or modify any Lease, or enter into any
agreement of any nature whatsoever with respect to the Property, without
Purchaser's prior written consent.
(c) Seller shall not:
(i) Enter into any agreement requiring
Seller to do work for any Tenant after the Closing Date without first obtaining
the prior written consent of Purchaser; or
(ii) Cause or permit the Property, or any
interest therein, to be alienated, mortgaged, licensed, encumbered or otherwise
be transferred.
(d) Seller will make all required payments under any
mortgage affecting the Property within any applicable grace period, but without
reimbursement by Purchaser therefor. Seller shall also comply with all other
terms covenants, and conditions of any mortgage on the Property.
(e) Up to and including the Closing Date, Seller
agrees to maintain
and keep such hazard, liability and casualty insurance policies in full force
and effect in such amounts and covering such risks sufficiently to protect the
Property and to protect, to a reasonable and prudent extent, the owner of the
Property, in such amounts as are required so as not to be deemed a co-insurer,
and for actual replacement cost, against any loss, damage, claim or liability.
(f) All violations of statutes, ordinances, rules,
regulations, orders, codes, directives or requirements affecting the Property,
whether or not such violations are now noted in the records of or have been
issued by any Governmental Authorities shall be complied with by Seller prior to
the Closing and the Property shall be conveyed free of any such violations,
including, without limitation, violations of Environmental Laws. Notwithstanding
the foregoing, Seller shall not be obligated to cure any violations caused by
the actions of Purchaser, its employees and agents, and the employees and agents
of its affiliated companies.
(g) Seller shall:
(i) promptly notify Purchaser of, and
promptly deliver to Purchaser , a certified true and complete copy of any notice
Seller may receive, on or before the Closing Date, from any Governmental
Authority, concerning a violation of Environmental Laws or Discharge of
Contaminants.
(ii) contemporaneously with the signing and
delivery of this Agreement, and subsequently, promptly upon receipt by Seller or
its representatives, deliver to Purchaser a certified true and complete copy of
all Environmental Documents.
7.3 Seller represents that there are no proceedings now
pending for a reduction in the assessed valuation of the Property and none shall
be commenced by Seller.
8. LEASING COMMISSIONS AND
TENANT IMPROVEMENT OBLIGATIONS.
8.1 The leasing commissions of $212,303.39 due on account of
the execution of the Lease as required under the leasing commission agreement
described in Section 5.1(j) shall be paid by Seller. The further leasing
commissions due on account of Tenant's option to lease Additional Premises (as
defined in the Lease) as required under such leasing commission agreement shall
be paid by Purchaser. The provisions of this Section shall survive the Closing,
and shall not be subject to any limitation on liabilities or obligations.
9. Deleted prior to execution
10. CLOSING.
10.1 The consummation of the transactions contemplated
hereunder (the "Closing") shall take place at the offices of Pryor, Cashman,
Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on or about January
16, 1998 (the "Closing Date").
10.2 On the Closing Date, Seller, at its sole cost and
expense, will deliver or cause to be delivered to Purchaser the following
documents:
(a) Bargain and sale deed (the "Deed") with covenants
in proper statutory form for recording so as to convey to Purchaser good and
marketable title to the Land, free and clear of all liens and encumbrances,
except the Permitted Encumbrances.
(b) The original Lease and all other documents
pertaining thereto.
(c) A letter notifying the Tenant of the sale
hereunder and directing that rent and other payments thereafter be sent to
Purchaser or its designee, as Purchaser shall so direct.
(e) An executed and acknowledged Assignment and
Assumption of the Lease, in the form of Exhibit 10.2(e) annexed hereto.
(f) An executed and acknowledged Assignment of the
Intangible Property, if any.
(g) An affidavit, and such other document or
instruments required by the Title Company, executed by Seller certifying (i)
against any work done or supplies delivered to the Property which might be
grounds for a materialman's or mechanic's lien under or pursuant to the laws of
the State in which the Real Property is located, in form sufficient to enable
the Title Company to affirmatively insure Purchaser against any such lien, and
(ii) that the signatures on the Deed are sufficient to bind Seller and convey
the Property to Purchaser.
(h) Affidavits and other instruments, including but
not limited to all organizational documents of Seller including operating
agreements, filed copies of limited liability certificates, articles of
organization, and good standing certificates, reasonably requested by Purchaser
and the Title Company evidencing the power and authority of Seller to enter into
this Agreement and any documents to be delivered hereunder, and the
enforceability of same.
(i) Deleted prior to execution
(j) A certificate indicating that the representations
and warranties of Seller made in this Agreement are true and correct in all
material respects as of the Closing Date, or if there have been any changes, a
description thereof.
(k) All proper instruments as shall be reasonably
required for the conveyance to Purchaser of all right, title and interest, if
any, of Seller in and to any award or payment made, or to be made, (i) for any
taking in condemnation, eminent domain or agreement in lieu thereof, of land
adjoining all or any part of the Improvements, (ii) for damage to the Land or
Improvements or any part thereof by reason of change of grade or closing of any
such street, road, highway or avenue, and (iii) for any taking in condemnation
or eminent domain of any part of the Land or Improvements.
(l) A certificate signed by an officer, manager or
member of Seller to the effect that Seller is not a "foreign person" as that
term is defined in Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), in order to avoid the imposition of the withholding tax
payment pursuant to Section 1445 of the Code.
(m) All such transfer and other tax declarations and
returns and information returns, duly executed and sworn to by Seller as may be
required of Seller by law in connection with the conveyance of the Property to
Purchaser, including but not limited to, Internal Revenue Service forms.
(n) A statement setting forth the Purchase Price with
all adjustments and prorations shown thereon.
(o) Evidence of compliance with the Transfer Act or
the affidavit described in Section 12.2(e).
(p) Such other documents as may be reasonably
required or appropriate to effectuate the consummation of the transactions
contemplated by this Agreement.
10.3 On the Closing Date, Purchaser, at its sole cost and
expense, will deliver or cause to be delivered to Seller the following
documents:
The balance of the Purchase Price, net of adjustments
and prorations.
(b) An executed and acknowledged Assignment and
Assumption of the Lease in the form of Exhibit 10.2 (e) annexed hereto.
(c) A certificate indicating that the representations
and warranties of Purchaser made in this Agreement are true and correct as of
the Closing Date, or if there have been any changes, a description thereof.
(d) Such other documents as may be reasonably
required or appropriate to effectuate the consummation of the transactions
contemplated by this Agreement.
10.4 Seller shall pay all state or county documentary stamps
or transfer taxes and recording fees and charges necessary or required in order
for the Deed to be recorded in the appropriate county register's or recorder's
office. Purchaser shall pay all title insurance premiums and examination fees
and the costs of its due diligence investigations, except as may specifically be
provided for herein. Each party shall be responsible for its own attorney's fees
and one-half (1/2) of any reasonable escrow fees. The provisions of this Section
10.4 shall survive the Closing.
10.5 The Closing shall be consummated without compliance with
bulk sales laws. If by reason of any applicable bulk sales law, any claims are
asserted by creditors of Seller related to periods prior to the Closing, such
claims shall be the responsibility of Seller, and Seller shall indemnify, defend
and hold harmless Purchaser (and their respective directors, officers,
employees, affiliates, successors and assigns) from and against all losses or
liabilities, if any, based upon, arising out of or otherwise in respect of the
failure to comply with such bulk sales laws.
ADJUSTMENTS.
11.1 The following items with respect to the Property are to
be apportioned as of midnight on the date preceding the Closing:
(i) Real estate taxes due and payable for the
calendar year. If the Closing Date shall occur before the tax rate is fixed, the
apportionment of real estate taxes shall be upon the basis of the tax rate for
the preceding year applied to the latest assessed valuation. If subsequent to
the Closing Date, real estate taxes (by reason of change in either assessment or
rate or for any other reason) for the Real Property should be determined to be
higher or lower than those that are apportioned, a new computation shall be
made, and Seller agrees to pay Purchaser any increase shown by such
recomputation and vice versa.
11.2 Except as otherwise provided in this Agreement, the
adjustments shall be made in accordance with the customs in respect to title
closings in the State of New York.
11.3 Any errors in calculations or adjustments shall be
corrected or adjusted as soon as practicable after the Closing.
11.4 The provisions of this Section 11 shall survive the
Closing Date.
12. CONDITIONS PRECEDENT TO CLOSING.
12.1 The obligations of Seller to deliver title to the
Property and to perform the other covenants and obligations to be performed by
Seller on the Closing Date shall be subject to the following conditions (all or
any of which may be waived, in whole or in part, by Seller):
(a) The representations and warranties made by
Purchaser herein shall be true and correct in all material respects with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date.
(b) Purchaser shall have delivered to Seller all of
the documents provided herein for said delivery.
12.2 The obligations of Purchaser to accept title to the
Property and to perform the other covenants and obligations to be performed by
Purchaser on the Closing Date shall be subject to the following conditions (all
or any of which may be waived, in whole or in part, by Purchaser):
(a) The representations and warranties made by Seller
herein shall be true and correct in all material respects with the same force
and effect as though such representations and warranties had been made on and as
of the Closing Date.
(b) Seller shall have performed all covenants and
obligations undertaken by Seller herein in all respects and complied with all
conditions required by this Agreement to be performed or complied with by it on
or before the Closing Date.
(c) The Title Company is unconditionally prepared to
issue to Purchaser a Title Policy meeting the requirements set forth in Section
4 hereof for an "insurable title".
(d) Seller shall have delivered to Purchaser all of
the documents provided herein for said delivery.
(e) The Real Property shall be in compliance with the
Transfer Act. Seller shall, at Seller's sole cost and expense, make all
submissions to, provide all information to and comply with all requirements of
the Connecticut Department of Environmental Protection or its successor. In the
event that the Real Property is not an establishment subject to the Transfer
Act, prior to the Closing, Seller shall, at its sole cost and expense, provide
to Purchaser an affidavit of an officer, member or manager of Seller stating
that the Real Property is not an establishment which is subject to the
provisions of the Transfer Act.
(f) There shall not be any sewer moratorium affecting
the Property.
13. ASSIGNMENT.
13.1 This Agreement may not be assigned by Purchaser except to
a directly or indirectly wholly-owned subsidiary or subsidiaries of Purchaser,
or to a partnership in which any such wholly-owned subsidiary or subsidiaries
owns, either directly or indirectly, at least seventy-five (75%) percent of the
profits, losses and cash flow thereof and controls the management of the affairs
of such partnership (any such entity, a "Permitted Assignee") and any other
assignment or attempted assignment by Purchaser shall constitute a default by
Purchaser hereunder and shall be deemed null and void and of no force and
effect. In addition, at Closing, Purchaser shall have the right to cause Seller
to direct the Deed and other closing instruments to such party as Purchaser
shall direct. No assignment or direction of the closing instruments shall
relieve Purchaser from Purchaser's obligations under this Agreement.
14. BROKER.
14.1 Purchaser and Seller represent that they have not dealt
with any brokers, finders or salesmen, in connection with this transaction, and
agree to indemnify, defend and hold each other harmless from and against any and
all loss, cost, damage, liability or expense, including reasonable attorneys'
fees, which either party may sustain, incur or be exposed to by reason of any
claim for fees or commissions made through the other party. The provisions of
this Section shall survive the Closing or other termination of this Agreement.
15. Deleted prior to execution.
16. CONDEMNATION.
16.1 In the event that prior to Closing, Seller shall become
aware of the institution or threatened institution of any proceedings, judicial,
administrative or otherwise, by eminent domain or otherwise, which propose to
affect a material portion of the Property, Seller shall give notice (a
"Condemnation Notice") to Purchaser promptly thereafter. Within fifteen (15)
days following receipt of the Condemnation Notice, Purchaser shall have the
right and option to terminate this Agreement by giving Seller written notice
thereof. Any damage to or destruction of a Property as a result of a taking by
eminent domain shall be deemed "material" for purposes of this Section if the
estimate of the damage, which estimate shall be performed by an insurance
adjuster and Purchaser's architect, shall exceed three (3%) percent of the
Purchase Price. Should Purchaser so terminate this Agreement in accordance with
this Section, neither party shall have any further liability or obligations to
the other. In the event Purchaser shall not elect to cancel this Agreement,
Seller shall assign all proceeds of such taking to Purchaser, same shall be
Purchaser's sole property, and Purchaser shall have the sole right to settle any
claim in connection with the Property.
17. PUBLICATION; CONFIDENTIALITY.
17.1 Purchaser shall have the right to make such public
announcements or filings with respect to the acquisition as Purchaser may deem
reasonably prudent. Purchaser shall not issue any such announcement without the
prior approval of Seller as to the text of the announcement, not to be
unreasonably withheld or delayed; provided, however, that Purchaser
shall be entitled to make such filings or announcements upon advice of counsel
as may be necessary or required.
17.2 Without the prior written consent of the other party,
until Purchaser shall make a public announcement as provided in Section 17.1,
neither Purchaser nor Seller shall disclose, and Seller and Purchaser will
direct their respective representatives, employees, agents and consultants not
to disclose, to any person or entity the fact that Purchaser and Seller have
entered into an agreement to acquire the Property or any of the terms,
conditions or other facts with respect to this Agreement. Notwithstanding the
foregoing, either party may disclose those terms and conditions which are
required to be disclosed pursuant to law or in order to comply with this
Agreement; provided, however, that the disclosing party shall use its best
efforts to limit the disclosure to the information necessary, shall advise any
party to whom disclosure is made that said terms and conditions are subject to a
confidentiality requirement and shall obtain the agreement of said party to keep
any information disclosed to it as confidential. In the event of a breach of the
provisions of this Section 17.2, either party shall be entitled to all of its
rights and remedies at law or in equity.
18. REMEDIES
18.1 In the event Purchaser fails to perform on the Closing
Date, Purchaser's sole liability and Seller's sole recourse shall be limited to
the amount of the Deposit. Seller agrees that retention of the Deposit
constitutes fixed and liquidated damages resulting from Purchaser's default, and
Seller waives any other claim, at law or in equity, either against Purchaser or
against any person, known or unknown, disclosed or undisclosed.
18.2 (a) If, after complying with the terms of this Agreement,
Seller shall be unable to convey the Property in accordance with the terms of
this Agreement, the sole obligation and liability of Seller shall be to perform
in accordance with Section 4.7, following which this Agreement shall be deemed
canceled and the parties hereto shall be released of all obligations and
liabilities under this Agreement, except those that are expressly stated to
survive the cancellation or termination of this Agreement.
(b) In the event of any default on the part of Seller
or Seller's failure to comply with any representation, warranty or agreement in
any material respect, Purchaser shall be entitled to terminate this Agreement
upon notice to Seller, in which event neither party shall thereafter have any
further obligations under this Agreement; to commence an action against Seller
seeking specific performance of Seller's obligations under this Agreement; to
pursue all of its remedies at law or in equity; or to do any or all of the
above.
18.3 The acceptance of the Deed by Purchaser shall be deemed a
full performance and discharge of every agreement and obligation of Seller to be
performed under this Agreement, except those, if any, which are specifically
stated in this Agreement to survive
the Closing or those which, by their terms, cannot be performed or complied with
until after the Closing.
18.4 The provisions of this Section 18 shall survive the
Closing or earlier termination of this Agreement.
19. NOTICE.
19.1 All notices, demands, requests, or other writings (a
"Notice") in this Agreement provided to be given or made or sent, or which may
be given or made or sent, by either party hereto to the other, shall be in
writing and shall be delivered by depositing the same with any nationally
recognized overnight delivery service with all transmittal fees prepaid,
properly addressed, and sent to the following addresses:
If to Purchaser: Cali Stamford Realty Associates L.P.
c/o Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: Xxxxxx X. Xxxxxx, Esq.
Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
If to Seller: RMC Development Company LLC
c/o Xxxxxx Xxxxxx Company
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxx
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
with a copy to: RMC Development Company LLC
c/o Xxxxxx Xxxxxx Company
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxx, Esq.
(000) 000-0000 (tele.)
(000) 000-0000 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by overnight
delivery service as aforesaid shall be deemed received and effective on the
first business day following such dispatch. Notices may be given by counsel for
the parties described above, and such Notices shall be deemed given by said
party, for all purposes hereunder.
19.2 Any Notice which, pursuant to this Agreement, requires a
response within a certain number of days or gives the other party certain rights
if said party responds within a certain number of days, shall set forth such
requirement or right in order for the Notice to be effective.
20. MISCELLANEOUS
20.1 If any instrument or deposit is necessary in order to
obviate a defect in or objection or exception to title, the following shall
apply: (i) any such instrument shall be in such form and shall contain such
terms and conditions as may be required by the Title Company to omit any defect,
objection or exception to title, (ii) any such deposit shall be made with the
Title Company, and (iii) Seller agrees to execute, acknowledge and deliver any
such instrument and to make any such deposit.
20.2 This Agreement (a) constitutes the entire agreement
between the parties and incorporates, (b) supersedes all prior negotiations and
discussions between the parties, (c) cannot be amended, waived or terminated
orally, but only by an agreement in writing signed by the party to be charged,
(d) shall be interpreted and governed by the laws of the State of New York and
(e) shall be binding upon the parties hereto and their respective successors and
assigns.
20.3 The caption headings in this Agreement are for
convenience only and are not intended to be part of this Agreement and shall not
be construed to modify, explain or alter any of the terms, covenants or
conditions herein contained. If any term, covenant or condition of this
Agreement is held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.
20.4 Each party shall, from time to time, execute, acknowledge
and deliver such further instruments, and perform such additional acts, as the
other party may reasonably request in order to effectuate the intent of this
Agreement. Nothing contained in this Agreement shall be deemed to create any
rights or obligations of partnership, joint venture or similar association
between Seller and Purchaser. This Agreement shall be given a fair and
reasonable construction in accordance with the intentions of the parties hereto,
and without regard to or aid of canons requiring construction against Seller,
Purchaser or the party whose counsel drafted this Agreement.
20.5 This Agreement shall not be effective or binding until
such time as it has been executed and delivered by all parties hereto. This
Agreement may be executed by the parties hereto in counterparts, all of which
together shall constitute a single Agreement.
20.6 All references herein to any section, schedule or exhibit
shall be to the sections of this Agreement and to the schedules and exhibits
annexed hereto unless the context clearly dictates otherwise. All of the
schedules and exhibits annexed hereto are, by this reference, incorporated
herein.
20.7 In the event of any litigation or alternative dispute
resolution between Seller and Purchaser in connection with this Agreement or the
transaction contemplated herein, the non-prevailing party in such litigation or
alternative dispute resolution shall be responsible for payment of all expenses
and reasonable attorneys' fees incurred by the prevailing party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Seller:
RMC DEVELOPMENT COMPANY, LLC
By:
Name:
Title:
Purchaser:
CALI STAMFORD REALTY ASSOCIATES L.P.
BY: CALI SUB XII
By:
Name:
Title:
Exhibits
Exhibit 10.2(e) Assignment and Assumption of the Lease
Schedules
Schedule 1.1(a) The Land
Schedule 4.1(c) Permitted Encumbrances
Schedule 5.1(c) Lease for the Land
Schedule 5.2(a) Exceptions to Environmental Representations
Exhibit 10.2(e)
000 Xxxx Xxxxxx
Xxxxxxxx, XX
ASSIGNMENT AND ASSUMPTION OF THE LEASE
THIS ASSIGNMENT AND ASSUMPTION OF THE LEASE (this "Agreement")
is made as of January ___, 1998, by and between RMC DEVELOPMENT COMPANY, LLC
("Assignor"), a limited liability company organized under the laws of the State
of New York, having an address at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000,
and CALI STAMFORD REALTY ASSOCIATES L.P., a limited partnership organized under
the laws of the State of Connecticut, its successors and assigns ("Assignee")
having an address at c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Assignor entered into that certain lease dated as of July 21,
1997, with Davidoff of Geneva (Ct), Inc. (the "Lease") affecting the property
commonly known as 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx (the "Property"),
further described in Exhibit A attached hereto;
WHEREAS, Assignor and Assignee entered into that certain Purchase and
Sale Agreement, dated January ___, 1998 (the "Sale Agreement");
WHEREAS, pursuant to the Sale Agreement, Assignor has agreed to assign
to Assignee all of the Assignor's right, title and interest in and to the Lease;
and
WHEREAS, Assignor desires to assign all of Assignor's right, title and
interest in and to the Lease to Assignee and Assignee desires to accept the
assignment of such right, title and interest in and to the Lease and assume all
of Assignor's rights thereunder.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and for other good and valuable consideration the parties
hereto mutually agree as follows:
Assignor hereby assigns, transfers, sets over and conveys to Assignee,
its successors and assigns, all of Assignor's right, title and interest in and
to (i) the Lease and (ii) any and all guarantees, security deposits, letters of
credit, notes, instruments, and other tenant impounds
relating thereto (collectively defined as the "Lease Security Deposits").
Assignee hereby accepts the Assignment and agrees to assume, fulfill, perform
and discharge all the various commitments, obligations and liabilities of
Assignor under and by virtue of the Lease, accruing or obligated to be performed
from and after the date hereof, including the return of security deposits,
letters of credit and other Tenant impounds in accordance with the terms of the
Lease.
Assignee hereby indemnifies and agrees to hold harmless Assignor from
and against any and all claims, liabilities, losses, damages, causes of action,
costs and expenses (including without limitation, court costs through all
appeals and reasonable attorneys' fees and disbursements) incurred in connection
with or arising under (i) the obligations of the landlord under the Lease from
and after the date hereof and (ii) the failure of Assignee to properly maintain
any of the Lease Security Deposits in accordance with terms of the Lease.
Assignor hereby indemnifies and agrees to hold harmless Assignee from
and against any and all claims, liabilities, losses, damages, causes of action,
costs and expenses (including, without limitation, court costs through all
appeals and reasonable attorneys' fees and disbursements incurred in connection
with claims arising with respect to (i) the obligations of the landlord under
the Lease which accrued prior to the date hereof; and (ii) the failure of
Assignor to deliver to Assignee the Lease Security Deposits.
This Agreement is made without representation, warranty (express or
implied) or recourse of any kind, except as provided herein or as set forth in
the Sale Agreement.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement shall
be governed by, and construed under, the laws of the State of New York.
IN WITNESS WHEREOF, Assignor and Assignee do hereby execute and deliver
this Agreement as of the date and year first above written.
ASSIGNOR:
RMC DEVELOPMENT COMPANY, LLC,
a New York limited liability company
By:
Name:
Title:
ASSIGNEE:
CALI STAMFORD REALTY
ASSOCIATES L.P.,
a Connecticut limited partnership
By: Cali Sub XII, Inc.,
its general partner
By:
Name:
Title:
