AGREEMENT FOR
PURCHASE AND SALE OF REAL ESTATE
by and between
BAYER CORPORATION
an Indiana corporation
Seller
and
XXXX-XXXX REALTY ACQUISITION CORPORATION
a Delaware corporation
Purchaser
Dated: March 31, 1998
* * * * *
The mailing, delivery or negotiation of this Agreement by Seller or its agent or
attorney shall not be deemed an offer by Seller to enter into any transaction or
to enter into any other relationship with Purchaser, whether on the terms
contained herein or on other terms. This Agreement shall not be binding upon
Seller, nor shall Seller have any obligations or liabilities or Purchaser any
rights with respect thereto, or with respect to the Property, unless and until
Seller has executed and delivered this Agreement. Until such execution and
delivery of this Agreement, Seller may terminate all negotiations and discussion
of the subject matter hereof, without cause and for any reason or no reason,
without recourse or liability.
* * * * *
TABLE OF CONTENTS
Page
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Section 1. Purchase and Sale; Certain Defined Terms...................1
Section 2. Closing....................................................2
Section 3. Price......................................................4
Section 4. Conditions Precedent.......................................4
Section 5. Contingencies..............................................5
Section 6. Access Prior to Closing....................................8
Section 7. Obligations of Seller......................................8
Section 8. Obligations of Purchaser..................................10
Section 9. Termination...............................................10
Section 10. Representations and Warranties............................11
Section 11. Costs Connected with Conveyances..........................15
Section 12. Apportionments............................................16
Section 13. Default...................................................17
Section 14. Assessments...............................................17
Section 15. Title.....................................................17
Section 16. Condemnation..............................................18
Section 17. Indemnification...........................................19
Section 18. Assignment................................................20
Section 19. "AS IS" Condition.........................................20
Section 20. Intentionally Omitted.....................................21
Section 21. Entire Agreement..........................................21
Section 22. Binding Effect............................................21
Section 23. No Modification...........................................21
Section 24. Notices...................................................21
Section 25. Captions; Gender..........................................23
Section 26. Counterparts..............................................24
Section 27. Governing Law.............................................24
Section 28. Singular and Plural Usage.................................24
Section 29. Escrow Agent..............................................24
Section 30. Risk of Loss..............................................26
Section 31. Publication. Confidentiality..............................26
LIST OF EXHIBITS
Exhibit A - Legal Description of Property
Exhibit B - Permitted Encumbrances
Exhibit C - Existing Contract
Exhibit D - Title Exclusions
Exhibit E - List of Environmental Documents
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE (hereinafter
referred to as "this Agreement") is entered into and effective as of this _____
day of March, 1998, by and between BAYER CORPORATION, an Indiana corporation,
having an office at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, Xxx Xxxxxx
(hereinafter referred to as "Seller") and XXXX-XXXX REALTY ACQUISITION
CORPORATION, a Delaware corporation, having an office at 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Purchaser").
("Purchaser" and "Seller" are hereinafter referred to collectively as the
"parties".)
W I T N E S S E T H:
WHEREAS, Seller owns, in fee simple, that certain parcel of land at
One Ramland Road, designated as Lot 24 in Block 1, on the official tax map of
the Town of Orangetown, Rockland County, New York, on which there is situated an
approximately 232,339 square foot office building including certain improvements
and fixtures located thereon and adjacent parking area(s), which parcel is more
particularly described on Exhibit A attached hereto together with all rights,
easements and appurtenances pertaining thereto (the "Property");
WHEREAS, Purchaser desires to acquire the Property, subject to the
conditions hereinafter stated, and Seller desires to convey the Property to
Purchaser upon the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements contained in this Agreement, the parties hereby
covenant and agree as follows:
Section 1. Purchase and Sale; Certain Defined Terms.
1.1. Subject to the terms and conditions set forth in this Agreement,
Seller shall sell and convey the Property to Purchaser, and Purchaser shall
purchase from Seller a fee simple estate in the Property, together with all
rights, easements and appurtenances belonging thereunto, and all of Seller's and
the record owner's right, title and interest in and to any and all streets or
public ways adjacent thereto, before or after vacation thereof.
1.2. As used in this Agreement, the following capitalized terms shall have
the meaning indicated below:
1.2.1. "Effective Date" means the date on which this Agreement has
been fully executed by the parties and an original counterpart has been
delivered to the parties.
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1.2.2. "Section" means a numbered part of this Agreement captioned
as a "Section" and all paragraphs and subparagraphs included within the
referenced Section; the term "paragraph" means a numbered paragraph which is
included within a Section of this Agreement and all subparagraphs included
within the referenced paragraph; and the term "subparagraph" means a numbered
subparagraph which is included within a paragraph of this Agreement.
1.3 As used in this Agreement, the following capitalized terms shall have
the meaning indicated in the paragraph indicated below:
"Contaminants" - paragraph 10.4.
"Closing" - paragraph 2.1.
"Closing Date" - paragraph 2.1.
"Deposit" - subparagraph 3.2.1.
"Discharge" - paragraph 10.4.
"Environmental Documents" - paragraph 10.4.
"Environmental Laws" - paragraph 10.4.
"Escrow Agent" - subparagraph 3.2.1.
"Governmental Authorities" - paragraph 10.1.13.
"Investigation Period" - paragraph 5.1.
"Investigation Termination Date" - paragraph 5.1.
"Permitted Encumbrances" - paragraph 15.1.
"Purchase Price" - paragraph 3.1.
"Reports" - paragraph 10.4.
"Tank Laws" - paragraph 10.4.
"Underground Storage Tanks" - paragraph 10.4
Section 2. Closing.
2.1. Provided that all conditions precedent to closing, as set forth in
Section 4, have been satisfied or waived as provided for herein, the closing of
title to the Property (the "Closing") shall take place within fifteen (15) days
following the Inspection Termination Date, as hereinafter defined (the "Closing
Date").
2.2. Notwithstanding the Closing Date specified in this Section 2,
provided any contingencies of Seller's have been complied with or waived in
writing by Seller and Purchaser, Purchaser may elect to accelerate the Closing
Date for the Property on five (5) business days prior notice to Seller.
2.3. The Closing shall take place at the offices of Pryor, Cashman,
Xxxxxxx & Xxxxx ("Purchaser's Counsel"), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or
such other location as may be mutually agreed to by the parties.
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Section 3. Price.
3.1. The purchase price for the Property (the "Purchase Price") shall be
the sum of SEVEN MILLION DOLLARS ($7,000,000.00) (the "Purchase Price").
3.2. Purchaser shall pay the Purchase Price as follows:
3.2.1. The sum of Two Hundred Fifty Thousand Dollars ($250,000.00)
(the "Deposit") shall be paid by Purchaser on the Effective Date and shall be
held in escrow in an interest-bearing Xxxxxxx Xxxxx Government Fund trust
account by Seller's Counsel (the "Escrow Agent"), until the Closing Date or
sooner termination of this Agreement, with all interest earned thereon following
the Deposit.
3.2.2. In the event this Agreement is terminated by Purchaser on or
before the Inspection Termination Date, as defined in subparagraph 5.1.,
pursuant to the provisions of subparagraphs 5.1 or 5.2 or for any of the other
reasons recited in paragraph 9.1, the Deposit and all interest earned thereon
shall be returned to Purchaser. If this Agreement is not terminated, upon the
closing of title hereunder, Seller will receive the Deposit and the interest
earned thereon, which interest will not be credited toward the Purchase Price.
In the event the Agreement is terminated, the Deposit and all interest accrued
thereon will be forwarded by the Escrow Agent to the party set forth in the
Agreement as being entitled to same. Purchaser represents that its tax
identification number, for purposes of reporting the interest earnings is
00-0000000. Seller represents that its tax identification number for purposes of
reporting the interest earnings is 00-0000000.
3.2.3. The balance of the Purchase Price in the amount of Six
Million Seven Hundred Fifty Thousand Dollars ($6,750,000.00), subject to
adjustment pursuant to the terms of this Agreement, shall be payable to Seller
at Closing by a wire transfer of immediately available funds through the Federal
Reserve System to a bank account designated in writing by Seller. Seller shall
provide Purchaser with wire transfer instructions, no fewer than three (3)
business days prior to Closing.
Section 4. Conditions Precedent.
4.1. The following are conditions precedent to the obligations of
Purchaser to close title to the Property hereunder:
4.1.1. All representations and warranties of Seller contained herein
shall be true, accurate and correct on the Closing Date.
4.1.2. All of the obligations of Seller under this Agreement to be
performed from and after the Effective Date through the Closing Date shall have
been performed by Seller.
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4.1.3. The title company is prepared to issue to Purchaser a title
policy for title which is insurable at standard rates (without special premium)
by the title company without exception other than the standard pre-printed title
exclusions from coverage as set forth on Exhibit D attached hereto, the
Permitted Encumbrances and/or such other conditions as are acceptable to
Purchaser.
4.1.4. Seller shall have delivered to Purchaser all of the documents
provided herein for said delivery.
4.1.5. There shall not be any sewer moratorium affecting the
Property.
4.1.6. The contingencies set forth in Section 5 shall have been
satisfied within the time period specified therein or the same have been waived
pursuant to the terms thereof.
4.2. The following are conditions precedent to the obligations of Seller
to close title to the Property hereunder:
4.2.1. All representations and warranties of Purchaser contained
herein shall be true, accurate and correct on the Closing Date.
4.2.2. All of the obligations of Purchaser under this Agreement to
be performed from and after the Effective Date through the Closing Date shall
have been performed by Purchaser.
Section 5. Contingencies.
5.1. From the Effective Date through and including the thirtieth (30th)
day after the same ("the Inspection Period"), Purchaser may conduct, at
Purchaser's expense, an investigation of the Property in order to determine that
same is in all respects satisfactory to Purchaser in its sole discretion. During
the Inspection Period, Purchaser's investigation may also include, but not be
limited to, an examination of: (i) the quality of the soil and groundwater on or
beneath the Property including the performance of percolation tests and borings,
(ii) surveys, architectural, engineering, subdivision, access and financial
matters, market analysis, development and market feasibility studies or such
other studies as Purchaser, in its sole discretion, determines is necessary or
desirable in connection with the Property and may inspect the physical and
financial conditions of the Property, including, but not limited to, any service
contracts, leases, engineering and environmental reports, development approval
agreements, permits and approvals, which inspection shall be satisfactory to
Purchaser in its sole discretion; (iii) the existence of any storage tanks on,
beneath or within the Property; and (iv) the nature and extent of wetlands,
floodplains, steep slopes or other environmentally sensitive areas on the
Property. Purchaser's ability to conduct any sampling during the Inspection
Period is specifically conditioned upon the following: (a) Purchaser provides
Seller with a sampling plan before engaging in any sampling, (b) Seller approves
the sampling plan which approval will not be unreasonably withheld or delayed,
and (c) Purchaser provides Seller with an
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opportunity to split samples and reasonable prior notice of any sampling
proposed so that Seller may have a representative of Seller present at the
sampling. Purchaser's ability to enter the Property for any purposes prior to
Closing is specifically conditioned upon the following: (a) Purchaser hereby
agrees that any such entry onto the Property shall not materially interfere with
the use of the Premises by Seller and Purchaser agrees to restore the condition
of the Property as near as reasonably possible to that existing prior to such
entry and inspections and agrees to repair any damage caused as a result of such
entry and/or inspections, and (b) Purchaser further agrees and acknowledges that
Purchaser shall keep the results of all its inspections and any written material
provided to it by or on behalf of Seller in strict confidence and shall not
disclose any aspect thereof to any third party other than to those persons who
are employees of Purchaser or consultants retained by Purchaser or have a need
to know such information in order to perform necessary work in connection with
said purchase; provided, however, that Purchaser shall advise such persons of
the aforementioned confidentiality restrictions and obtain their agreement to
abide by the same unless such disclosure shall occur after the Closing in which
event the confidentiality restrictions shall no longer apply. Notwithstanding
the above, Purchaser shall have the right to disclose any information which is
discovered as a result of Purchaser's due diligence or which is provided to
Purchaser by or on behalf of Seller if such disclosure is specifically required
to be made by Purchaser pursuant to law.
As hereinbefore stated, Purchaser shall have a period of thirty (30) days
from the Effective Date in order to conduct all of the investigations which it
desires in accordance with this paragraph 5.1. The thirtieth (30th) day after
the Effective Date shall be the "Inspection Termination Date." Time shall be of
the essence as to this thirty day period and the Inspection Termination Date. If
prior to the Inspection Termination Date, Purchaser determines, in its sole
discretion, that the results of any investigation, examination, tests, borings,
inspection or study are in any way unsatisfactory to Purchaser, then Purchaser
shall have the right to terminate this Agreement by notice in writing to Seller
provided on or before the Inspection Termination Date and given in accordance
with Section 24. Upon such timely given notice of termination, this Agreement
shall be deemed terminated the Deposit and all interest earned thereon shall be
promptly returned to Purchaser and promptly thereafter Purchaser shall deliver
to Seller all copies of the Reports, as hereinafter defined,. If Purchaser does
not give notice of termination as provided herein, then its right to terminate
under this Section 5 for any matter disclosed or which could have been disclosed
by its inspections shall expire at 11:59 p.m. on the Inspection Termination
Date.
5.2. During the Inspection Period, Seller shall, upon Purchaser's request,
provide Purchaser and Purchaser's representatives with access to the Property at
reasonable times, during Seller's business hours and in a manner so as not to
disrupt Seller's business at the Property, in order to perform such inspections
of the Property relating to: (i) such studies, tests, borings, investigations
and inspections described in Section 5.1; (ii) the structural integrity of the
building(s) on the Property; (iii) the mechanical, engineering and HVAC systems
associated with the building(s) on the Property; and (iv) such other inspections
and investigations of zoning, violations and searches as Purchaser in its
discretion deems necessary or desirable to determine whether it will purchase
the Property. Seller shall cooperate with Purchaser in facilitating its due
diligence of the
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Property and shall obtain, and use commercially reasonable efforts to obtain and
provide, any consents that may be necessary in order for Purchaser to perform
the same. Notwithstanding the foregoing, Purchaser shall be obligated to obtain
any permits or approvals from Governmental Authorities, if the same are required
due to the nature of Purchaser's investigation. In addition, Seller will (a)
deliver to Purchaser, promptly after request, copies of the "Final Report Phase
I Environmental Assessment of Agfa Division, Miles, Inc. Xxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx" prepared by Xxxxx and Xxx Environmental Services, Inc.
(the "Phase I Report"), (b) deliver or make available to Purchaser any
Environmental Documents, as hereinafter defined, in the actual possession or
control of Seller and (c) respond to reasonable inquiries from Purchaser
relating to the Property. In the event any additional materials relating to the
environmental condition of the Property come within Seller's possession or
control after the date of this Agreement, Seller shall promptly submit complete
copies of same to Purchaser. Purchaser acknowledges that, with respect to
Seller's delivery of the aforementioned report and any other documentation
provided or made available to Purchaser, Seller is not warranting nor
representing as to the accuracy or completeness of the information contained
therein nor as to Purchaser's ability to rely upon the accuracy or completeness
of the same.
As hereinbefore stated, Purchaser shall have a period of thirty (30) days
from the Effective Date in order to conduct all of the inspections and/or
investigations which it desires in accordance with this paragraph 5.2. Such
right of inspection and the exercise of such right shall not constitute a waiver
by Purchaser of the breach of any representation, warranty, covenant or
agreement of Seller as specifically set forth elsewhere in this Agreement. Time
shall be of the essence as to this thirty (30) day period and the Inspection
Termination Date. If prior to the Inspection Termination Date, Purchaser
determines that the results of the inspections referenced herein are in any way
unsatisfactory to Purchaser in its sole discretion, then Purchaser shall have
the right to terminate this Agreement by notice in writing to Seller provided on
or before the Inspection Termination Date and given in accordance with Section
24, which notice shall be followed promptly by Purchaser's delivery to Seller of
copies of all Reports and Purchaser shall also promptly return to Seller all
Environmental Documents provided by Seller to Purchaser. Upon such timely given
notice of termination, this Agreement shall be deemed terminated and the Deposit
and all interest earned thereon shall be returned to Purchaser and this
Agreement shall be null and void and the parties hereto shall be relieved of all
further obligations hereunder except as otherwise provided herein. If Purchaser
does not give notice of termination as provided herein, then its right to
terminate pursuant to this Section 5 for any reason or for any matter disclosed
or which could have been disclosed by its inspection shall expire at 11:59 p.m.
on the Inspection Termination Date.
Section 6. Access Prior to Closing.
Purchaser and Purchaser's agents, employees, representatives, contractors
and consultants shall have the right to enter the Property at any reasonable
time for the purpose of (i) inspecting the Property, conducting any and all of
the investigation(s) and testing as are permitted hereunder, or (ii) making
surveys or other measurements required in order to facilitate its inspection of
the
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Property. Purchaser agrees that the access provided herein is contingent upon
Purchaser first obtaining public liability insurance, including worker's
compensation insurance, with a limit of at least $1,000,000.00 covering its
liability hereunder listing Seller as a certificate holder and the
certificate(s) of such insurance shall be delivered to Seller prior to such
entry.
Section 7. Obligations of Seller.
7.1. Upon the Effective Date, Seller shall have the following obligations:
7.1.1. Seller shall give Purchaser prompt Notice, as hereinafter
defined, (within three (3) business days after its receipt of Notice of same) of
(i) any rezoning or threatened rezoning of the Property; (ii) actual or
threatened taking or condemnation of all or any portion of the Property; (iii)
any actual or threatened enforcement action by any governmental agency or
authority relating to the use, condition or environmental quality of the
Property; or (iv) the commencement of any action by any party seeking relief
which would result in the imposition of a lien on the Property, including,
without limitation, an action to foreclose any mortgage on the Property.
7.1.2. Seller shall not, from the Effective Date until the closing
of title or earlier termination of this Agreement, further mortgage, convey, or
encumber, or perform any act which would result in an encumbrance on the
Property.
7.1.3. Seller shall not, from the Effective Date until the closing
of title or earlier termination of this Agreement: (i) enter into any leases or
agreements which would extend beyond the Closing Date; or (ii) allow occupancy
or use of any portion of the Property under any license or other agreement
without the prior written consent of Purchaser.
7.1.4. Seller shall continue to maintain the Property in its
condition as of the Effective Date through the Closing, subject to reasonable
wear and tear.
7.1.5. Seller shall promptly notify Purchaser of, and promptly
deliver to Purchaser, a 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. All capitalized terms not
previously defined shall have the meanings as hereinafter provided.
7.2. At the Closing, Seller shall have the following obligations:
7.2.1. Seller shall execute, acknowledge and deliver to Purchaser a
bargain and sale deed, with covenants against grantor's acts, in sufficient and
recordable form to convey title to the Property in accordance with the terms of
this Agreement. Such deed shall contain a metes and bounds description of the
Property which, if Purchaser elects to obtain a survey, shall be prepared at
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Purchaser's expense by Purchaser's surveyor. Said survey and metes and bounds
description shall be certified to the parties by the surveyor and shall be
provided to Seller at least five (5) business days prior to the Closing Date. In
no event shall the deed contain a notification pursuant to New York
Environmental Conservation Law ("ECL") ss.27-0918 or the regulations promulgated
thereunder, or any other Environmental Law.
7.2.2. Seller shall execute, acknowledge and deliver to Purchaser an
affidavit of title in such form required by Purchaser's title insurer to insure
title to the Property in accordance with the terms of this Agreement, and such
other documents as are reasonably required by Purchaser's title insurer and
which are customarily required in similar commercial transactions in New York to
insure title to the Property in accordance with the terms of this Agreement.
7.2.3. Seller shall deliver to Purchaser copies of the current real
estate tax bills.
7.2.4. Seller shall execute, acknowledge and deliver to Purchaser
affidavits in form reasonably satisfactory to Purchaser's attorney for the
purpose of complying with the Foreign Investment in Real Property Tax Act.
7.2.5. Seller shall execute a closing statement reflecting the
payment and disbursement of the Purchase Price in accordance with this
Agreement.
7.2.6. Seller shall deliver to Purchaser discharges, in sufficient
and recordable form, for all liens and/or mortgages affecting the Property or a
pay-off letter from the financial institution holding such lien or mortgage in
form and substance reasonably satisfactory to Purchaser's title insurance
company.
7.2.7. Seller shall execute, acknowledge and delivery a New York
State TP 584 Tax Form and an Equalization Form (if the same are required by
law).
Section 8. Obligations of Purchaser.
8.1 At the Closing, Purchaser shall have the following obligations:
8.1.1 Purchaser shall deliver to Seller the portion of the Purchase
Price required under subparagraph 3.2.3. after application of a portion thereof,
if any, necessary for the release, satisfaction and cancellation of the
aforementioned liens or mortgages, if any, on the Property.
8.1.2. Purchaser shall execute a closing statement reflecting the
payment and disbursement of the Purchase Price in accordance with this
Agreement.
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Section 9. Termination.
9.1. Purchaser shall have the right to terminate this Agreement upon
written notice to Seller given in accordance with Section 24 hereof under any of
the following circumstances:
9.1.1. If any of the conditions precedent set forth in paragraph 4.1
shall not have been satisfied as of the Closing Date or if the contingencies set
forth in Section 5 have not been satisfied or waived pursuant to the terms
hereof.
9.1.2. If Seller shall be unable to convey title in accordance with
Section 15.
9.1.3. Pursuant to Section 16 or 30.
9.1.4. If any of Seller's representations under Section 10 are not
true, accurate and complete as of the Closing Date.
9.1.5. If Seller is in default of its obligations hereunder and if
the default is susceptible of cure, has not remedied the default after written
notice and a reasonable opportunity to cure not to exceed thirty (30) days.
9.2. Upon receipt by Seller of any written notice of termination of this
Agreement by Purchaser prior to the end of the Inspection Period or pursuant to
paragraph 9.1, Seller shall cause the return of the Deposit and all interest
earned thereon to Purchaser and this Agreement shall cease and terminate and be
null and void and of no further force and effect; provided, however, that if
Purchaser exercises the right to terminate this Agreement in accordance with
subparagraph 9.1.5 by reason of a default by Seller, then Purchaser shall
nonetheless be entitled to the remedies provided in paragraph 13.1.
9.3. If Purchaser is in default of its obligations hereunder and, if the
default is susceptible of cure, Purchaser has not remedied the default within
ten (10) days following written notice and Seller is ready, willing and able to
close, Seller shall have the right to terminate this Agreement upon written
notice to Purchaser given in accordance with Section 24 hereof.
9.4. Upon receipt by Purchaser of any written notice of termination of
this Agreement by Seller for any reason recited in paragraph 9.3, this Agreement
shall cease and terminate and be null and void and of no further force and
effect provided that (i) Purchaser's obligations to restore the Property and
repair any damages pursuant to Section 5 shall survive the Closing and (ii)
Seller shall nonetheless be entitled to the remedy provided in paragraph 13.2.
9.5. In the event that this Agreement is terminated by either party and
becomes null and void, such termination shall not relieve Purchaser of its
obligation to restore the Property and repair any damage to same pursuant to
Section 5 hereof nor shall such termination relieve Purchaser of its obligation
to indemnify Seller pursuant to the provisions of Section 17.
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Section 10. Representations and Warranties.
10.1. Seller represents and warrants the following:
10.1.1. Seller is an Indiana corporation, qualified to do business
in the State of New York, validly formed and having full power, authority and
legal right to enter into and perform this Agreement. The execution, delivery
and performance of this Agreement will not require approval or consent of any
trustee or holders of any indebtedness or obligations of Seller, and will not
contravene any law, governmental rule, regulation or order binding on Seller or
contravene the provisions of, or constitute a default under, or result in the
creation of any lien or encumbrance upon the property of Seller under any
indenture, mortgage, contract, or other agreement to which Seller is a party, or
by which it may be bound or affected.
10.1.2. Seller does not have knowledge of any pending or threatened
actions or proceedings before any court or administrative agency which will
materially adversely affect the ability of Seller to perform Seller's
obligations under this Agreement.
10.1.3. Seller does not have knowledge of any pending condemnation
or similar proceeding affecting the Property or any portion thereof.
10.1.4. Seller does not have knowledge of any notices, actions,
labor disputes, legal actions, suits, claims and demands or other legal or
administrative proceedings or judgments relating to any violations, currently
pending or threatened against the Property including those relating to the
environmental condition thereof, or the operation thereof, nor that any such
action, suit, proceeding or claim has been threatened or asserted against all or
any part of the Property, nor that there is any proceeding pending or presently
being prosecuted for the reduction of the assessed valuation of taxes or other
impositions payable in respect of any portion of the Property.
10.1.5. Seller has granted no leases or licenses, nor created any
tenancies, affecting the Property and there are no parties in possession of any
portion of the Property as trespassers or otherwise and there are no leasing
commission obligations affecting the Property.
10.1.6. Seller does not have knowledge of any pending or threatened
governmental or private proceedings which would impair or result in the
termination of access from the Property to abutting public highways, streets,
and roads.
10.1.7. Seller is not a "foreign person" as such term is defined
under Section 1445 (f)(3) of the United States Internal Revenue Code.
10.1.8. Seller has made no agreements to pay any commissions or
other compensation to any brokers or agents in connection with this Agreement
other than Team
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Resources, Inc. ("Broker") or as Broker shall direct, and has had no dealings
with any broker or agent with respect to the Property upon which any such broker
or agent would be entitled to a commission or other compensation. Seller shall
pay the Broker, or as Broker shall direct, a commission pursuant to a separate
agreement between Seller and Broker.
10.1.9. No one other than Purchaser has a contract, option or right
of first refusal to purchase the Property or any part thereof.
10.1.10. At the Closing, there will be no unpaid bills or claims
against Seller which may give rise to a lien against the Property. Seller does
not have knowledge of any work performed at the building which would require an
amendment to the certificate of occupancy (unless same was obtained), and any
work performed at the Property by Seller to the date hereof and the Closing Date
has been and will be in accordance with the rules, laws and regulations of all
applicable authorities. All bills and claims for labor performed and materials
furnished to or for the benefit of the Property will be paid in full on the
Closing Date.
10.1.11. There are no service contracts, union contracts, employment
agreements or other agreements affecting the Property or the operation thereof,
except as set forth on EXHIBIT "C".
10.1.12. Seller has provided or made available to Purchaser all
reports, including, without limitation, the Environmental Documents in Seller's
actual possession or under its control related to the physical condition of the
Property.
10.1.13. Seller has no knowledge of any notices, suits,
investigations or judgments relating to any violations including, without
limitation, Environmental Laws or any laws, ordinances or regulations affecting
the Property, and there are no outstanding orders, judgments, injunctions,
decrees or writ of any agency, board, bureau, 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") against or involving the
Property.
10.1.14. Seller has no knowledge of any federal or state liens as
referred to under CERCLA or the New York Navigation Law ss.181 a to 3, or any
other Environmental Laws, that have attached to the Property.
10.1.15. Seller has no knowledge of any confirmed or pending
assessment or special assessment for public improvements affecting the Property.
10.2.1. In addition to the provisions of Section 10.1., Seller hereby
warrants and represents, to the best of Seller's knowledge, without independent
inquiry or investigation having been undertaken by Seller:
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(a) Except as has been disclosed to Purchaser in the documents set
forth on Exhibit E attached hereto and made a part hereof, which were provided
to or made available to Purchaser pursuant to this Agreement:
(i) there are no Contaminants on, under, at or emanating from the
Property, except those in compliance with all applicable Environmental Laws;
(ii) no Contaminants have been Discharged onto the Property by
Seller or during Seller's ownership of the Property in violation of any
Environmental Law which would allow a Governmental Authority to require that a
cleanup be undertaken;
(iii) no ss.104(e) informational request has been received by Seller
issued pursuant to CERCLA with respect to the Property;
(iv) there are no above ground storage tanks or Underground Storage
Tanks, as hereinafter defined, at the Property and there were no such tanks at
the Property, regardless of whether such tanks are regulated or not;
(v) the Property has not been used as a solid waste management
facility as defined in the ECL ss.27-0701 et seq.
10.2.2. Contemporaneously with the execution of this Agreement, and
subsequently promptly upon receipt by Seller or Seller's representatives, Seller
shall deliver or make available to Purchaser: (i) all Environmental Documents
concerning the Property generated by or on behalf of Seller, whether currently
existing or hereafter existing; (ii) all existing maps, diagrams and other
documentation to the extent in Seller's actual possession or under its control
relating to the physical lay-out and structural aspects of the Property.
10.2.3. As used in this Section 10, "to the best of Seller's knowledge" or
"Seller does not have knowledge" shall be limited to the actual knowledge of Mr.
Xxxxxx Xxxxxxx who is the individual currently employed by Seller who is in a
position to have knowledge of the Property.
10.2.4. A document shall be considered to be in Seller's actual possession
or under its control if it is now, or was during the last ten (10) years, in the
possession or control of either Mr. Xxxxxx Xxxxxxx or Xx.
Xxxxxxx Xxxxxx.
10.2.5. To Seller's knowledge, there are no engineering or institutional
controls at the Property, including without limitation, any deed notice,
declaration of environmental restriction, groundwater classification exception
area or well restriction area.
10.3. All of the foregoing representations and warranties of Seller
are true, accurate and complete as of the Effective Date and shall be true,
accurate and complete as of the
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Closing Date and shall survive the Closing Date for a period of one year, and
any claim(s) brought thereon by Purchaser must be instituted within one (1) year
of the Closing Date.
10.4. The following terms shall have the following meaning when used
in this Agreement:
(i) "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 "Tank Laws" as
defined below; the ECL; the New York State Navigation Law; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. ss.6901 et seq. ("RCRA");
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 meaning referred to in any other applicable federal, state,
county or municipal environmental statute, ordinance, code, rule or regulation,
including, without limitation, radon, asbestos, polychlorinated biphenyls, urea
formaldehyde and petroleum products and petroleum based derivatives. Where a
statute, ordinance, code, rule or regulation defines any of these terms more
broadly than another, the broader definition shall apply.
(ii) "Discharge" shall mean the releasing, spilling, leaking,
leaching, disposing, pumping, pouring, emitting, emptying, treating or dumping
of Contaminants at, into, onto or migrating from the Property, regardless of
whether the result of an intentional or unintentional action or omission.
(iii) "Environmental Documents" shall mean all environmental
documentation in the actual possession or under the control of Seller relating
to the Property including, without limitation, all sampling plans, cleanup
plans, preliminary assessment plans and reports, site investigation plans and
reports, remedial investigation plans and reports, or the equivalent, sampling
results, sampling results reports, data, diagrams, charts, maps, analysis,
conclusions, quality assurance/quality control documentation, and directives and
orders issued by any Governmental Authority.
(iv) "Environmental Laws" shall mean each and every applicable
federal, state, county or municipal statute, ordinance, rule, regulation, order,
code, directive or requirement, together with all successor statutes,
ordinances, rules, regulations, orders, codes, directives or requirements, of
any Governmental Authority in any way related to Contaminants.
(v) "Reports" shall mean the results of all investigations performed
by third parties on behalf of Purchaser hereunder, including, without
limitation, all copies of reports, studies, surveys, plans and other
documentation resulting from Purchaser's investigation prepared by third parties
on behalf of Purchaser.
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(vi) "Tank Laws" shall mean the New York Bulk Storage Law, ECL
ss.17-1743, the New York Hazardous Substances Bulk Storage Act, ECL ss.40-0101
et seq., and the federal underground storage tank law (Subtitle I) of RCRA,
together with any amendments thereto, regulations promulgated thereunder, and
all substitutions thereof, and any successor legislation and regulations.
(vii) "Underground Storage Tanks" shall mean each and every
"underground storage tank" whether or not subject to the Tank Laws, as well as
the "monitoring systems", the "leak detection system", the "discharge protection
system" and the "tank system" associated with the "underground storage tank" as
those terms are defined by the Tank Laws.
10.4. Purchaser represents and warrants the following:
10.4.1. Purchaser is a corporation validly formed and having full
power, authority and legal right to enter into and perform this Agreement. The
execution, delivery and performance of this Agreement will not require approval
or consent of any trustee or holders of any indebtedness or obligations of
Purchaser, and will not contravene any law, governmental rule, regulation or
order binding on Purchaser or contravene the provisions of, or constitute a
default under, or result in the creation of any lien or encumbrance upon the
property of Purchaser under any indenture, mortgage, contract, or other
agreement to which Purchaser is a party, or by which it may be bound or
affected.
10.4.2. Purchaser does not have knowledge of any pending or
threatened actions or proceedings before any court or administrative agency
which will materially adversely affect the ability of Purchaser to perform its
obligations under this Agreement.
10.4.3. Purchaser has made no agreement to pay any commission or
other compensation to any brokers or agents in connection with this Agreement
and has not had dealings with any broker or agent, other than Broker and
Xxxxxxxxx Realty, Inc., with respect to the Property upon which any such broker
or agent would be entitled to a commission or other compensation.
Section 11. Costs Connected With Conveyances.
The costs of the conveyances described in this Agreement shall be paid in
accordance with the terms hereof and in accordance with the following schedule:
Broker's commission Seller
New York State Transfer Tax Seller
Cost of survey Purchaser
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Cost of title examination and
title insurance Purchaser
Attorneys' fees - Each party shall pay its own attorney's fees
Recording fees - deed Purchaser
Section 12. Apportionments.
The following shall be apportioned as of midnight on the date preceding
the Closing Date:
(i) Utility charges payable by Seller, including, without limitation,
electricity, water charges and sewer charges. If there are meters on the
Property, Seller will cause readings of all said meters to be performed not more
than five (5) days prior to the Closing Date.
(ii) Amounts payable under any service contracts other than those which
Purchaser has elected to assume.
(iii) 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 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. Seller
shall be responsible for the charges attributable to the Property to the Closing
Date.
(iv) The value of any heating fuel stored for use at any of the Property,
at Seller's most recent cost, including taxes, on the basis of a reading made
within ten (10) days prior to the Closing Date by Seller's supplier.
(v) 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.
(vi) Any errors in calculations or adjustments shall be corrected or
adjusted as soon as practicable after the Closing.
(vii) The provisions of this Section 12 shall survive the Closing Date.
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Section 13. Default.
13.1. Anything in this Agreement to the contrary notwithstanding, if
Seller fails to perform any obligation on its part to be performed pursuant to
the terms and conditions of this Agreement (except for the inability to convey
good and marketable title in accordance with Section 15 of this Agreement), then
following notice and the expiration of the applicable cure period as provided
for in paragraph 9.1.5., unless such obligation is waived by Purchaser, such
failure to perform shall constitute a default under this Agreement, and
Purchaser shall have available to it any and all rights and remedies that may be
provided under the laws of the State of New York. In the event Purchaser elects
not to seek specific performance then it shall terminate this Agreement pursuant
to Section 9 and, other than its rights to seek a money judgment against Seller
which shall specifically survive, this Agreement would terminate and be null and
void.
13.2. If Purchaser fails timely to close title to the Property (except as
a result of a termination by Purchaser pursuant to paragraph 9.1) pursuant to
the terms and conditions of this Agreement, or if Purchaser otherwise fails to
perform any of its obligations under this Agreement, then unless such obligation
is waived in writing by Seller, such failure shall constitute a default of this
Agreement, and Seller may terminate this Agreement pursuant to Section 9.
Purchaser acknowledges that such default under this Agreement would cause harm
to Seller that is incapable of accurate estimation. Therefore, in the event of
such default, Seller's damages shall be limited to the sum of the Deposit paid
or payable at the time of such default, which shall be retained by Seller or
paid over to Seller by Purchaser, as the case may be. Notwithstanding the
foregoing, nothing contained herein shall limit or restrict Seller's ability to
enforce the provisions of Section 9.5 hereof even following termination of this
Agreement.
Section 14. Assessments.
If the Property is affected by any special assessment or assessment for
public improvements prior to the Closing Date, which assessments are or may
become payable, in installments or otherwise, then for the purpose of this
Agreement the unpaid installments of any such assessments which are due during
the calendar year in which the Closing occurs shall be paid on a pro-rata basis
based upon each party's period of ownership during said calendar year.
Section 15. Title.
15.1. Title to the Property to be conveyed by Seller pursuant to this
Agreement shall be good and marketable title, insurable at regular rates by
Purchaser's title insurance company, and shall be conveyed by Seller to
Purchaser free and clear of all liens, encumbrances and rights of any nature
except those set forth on Exhibit B attached to this Agreement (the "Permitted
Encumbrances") and the exclusions set forth on Exhibit D attached to this
Agreement. Seller acknowledges that Matrix Corporation is the record owner of
the Property, and agrees to provide
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Purchaser's title company with such information and documentation as is
reasonably requested to evidence that Seller is the legal and beneficial owner
of the Property.
15.2. Purchaser shall, at its own expense, obtain a title search and
survey of the Property. Purchaser may notify Seller prior to the expiration of
the Evaluation Period of any objections it may have to title based on its title
search or survey. If Purchaser notifies Seller of objections to title, then
Seller shall have the right to cure such defects before the Closing Date. Seller
shall use commercially reasonable efforts to cure such defects provided such
efforts do not require that Seller expend any sums in doing so except as
specifically provided for hereafter with respect to mortgages, judgments, tax
liens and other liens pursuant to the terms hereof. If Seller elects not to cure
the defects because to do so would require the expenditure of money by Seller or
Seller cannot cure the defects within fifteen (15) days of the originally
anticipated Closing Date, or such subsequent date as is mutually agreed upon by
the parties, Purchaser shall have the option to: (i) elect to proceed with this
Agreement and waive its objection to the title defect; or (ii) terminate this
Agreement in accordance with Section 9. Anything in this Agreement to the
contrary notwithstanding, Seller shall be required to discharge mortgages,
judgments (subject to the provisions in the following sentence), tax liens and
other liens which are dischargeable by the payment of a sum certain at the
Closing up to an aggregate amount equal to the Purchase Price to be received by
Seller at the Closing and to provide at Closing documents in recordable and
sufficient form to discharge such liens and/or mortgages of record, or, if the
lien is held by a New Jersey, New York or national banking institution, a
current mortgage pay-off letter from such institution in form and substance
reasonably acceptable to the title company, together with the cost of recording
or filing such instrument. In the event a judgment is entered against Seller in
an amount which exceeds $500,000, Seller will not be obligated to pay-off said
judgment but shall: (i) offer to indemnify Purchaser's title company (without
Seller being required to post a bond but with a written indemnification in form
and substance acceptable to both Seller and the title company) in order for the
title company to omit such judgment as an exception to title or, if not
acceptable to Purchaser's title company, Seller shall (ii) offer to indemnify
Purchaser (without Seller being required to post a bond but with a written
indemnification in form and substance acceptable to both Seller and Purchaser)
in order for Purchaser to accept title subject to said judgment. In the event
neither Purchaser's title company nor Purchaser agree to accept said
indemnification, then Seller shall have the right to terminate this Agreement
upon written notice to Purchaser. In the event Seller elects not to cure title
defects raised by Purchaser or cannot cure the same, pursuant to the provisions
of this paragraph 15.2, and Purchaser or Seller exercises its right to terminate
this Agreement, again pursuant to the provisions of this paragraph 15.2., then
Seller agrees to reimburse Purchaser for reasonable costs incurred by Purchaser
in connection with its title search, survey and due diligence investigation(s)
and testing, including without limitation attorneys' fees, engineering fees and
environmental costs, but in no event shall said reimbursement exceed the sum of
Thirty Thousand Dollars ($30,000.00).
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Section 16. Condemnation.
In the event of an actual or threatened condemnation of any portion of the
Property which in Purchaser's reasonable judgment would materially interfere
with the use of the Property as commercial office space, Purchaser shall have
the option to elect to terminate this Agreement by serving written notice
thereof on Seller in accordance with Section 23 hereof, whereupon the Deposit
and all interest earned thereon shall be returned to Purchaser and neither party
shall thereafter have any further rights or obligations under this Agreement. If
Purchaser does not terminate this Agreement in accordance with this Section 16,
Seller shall allow Purchaser a credit against the Purchase Price at the Closing
equal to such portion of the condemnation awards or other compensation received,
as the same relate to the Property and not to Seller's personal property, before
the Closing Date and Seller shall assign to Purchaser all of Seller's right,
title and interest in any condemnation award or other compensation for such
condemnation or taking by eminent domain and the parties shall proceed to
Closing. Seller acknowledges that an actual or threatened condemnation would
materially interfere with Purchaser's use of the Property if such condemnation
would include the taking of any part of the building, any parking areas or any
areas necessary for access, ingress or egress to or from the building to the
parking areas and the street abutting the Property.
Section 17. Indemnification.
17.1. As used in this Section 17: (a) the verb "indemnify" means
indemnify, defend, save and hold harmless, and the noun "claims" means claims,
costs, expenses (including reasonable attorneys' fees and the reasonable fees of
engineering and other required experts or professional consultants), penalties,
obligations and liabilities of any nature; (b) "Environmental Claims" include
all losses, costs, damages, allegations, demands, claims (including without
limitation, claims for personal injury or real or personal property damage),
liabilities, expenses, judgments, orders or investigations or remediation
measures required by the governmental entities having jurisdiction over the
Property (including, but not limited to the cost of any remedial work performed
on the Property), that arise directly or indirectly from or in connection with
the operation or the condition of the Property prior to the Closing Date,
including but not limited to the presence, suspected presence, release or
suspected release of any Hazardous Substances of any kind, whether into the air,
soil, groundwater, pavement, structures, fixtures, equipment, tanks, containers
or other personalty at the Property or any other real property in which
Purchaser has or may acquire any interest; and (c) "Third-Party Environmental
Claims" shall mean any Environmental Claims which: (A) are asserted or commenced
by persons or entities, other than the Purchaser or a governmental entity and or
successor of Purchaser (B) relate to the Property or real property that is
adjacent to or in the vicinity of the Property.
17.2. Purchaser shall indemnify Seller with respect to any claims,
including but not limited to claims environmental in nature, due to the acts or
omissions of Purchaser or Purchaser's agents, employees, subcontractors and/or
invitees arising from entry onto the Property by Purchaser
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or Purchaser's agents, employees, subcontractors and invitees pursuant to
Section 6. Notwithstanding the foregoing, Purchaser shall not indemnify Seller
on account of any existing environmental conditions which are discovered as a
result of Purchaser's due diligence except to the extent the environmental
condition is exacerbated by any act or omission of Purchaser, its agents,
employees or invitees.
17.3. To the extent permitted by law, Purchaser hereby waives all
Environmental Claims it may have against Seller and releases Seller from same.
Notwithstanding the foregoing, Purchaser shall not be prohibited from impleading
Seller into any litigation with respect to any Third Party Environmental Claims
which arise directly or indirectly or in connection with Seller's prior use,
possession or occupancy of the Property prior to Closing or which arose during
Seller's ownership of the Property.
17.4. The parties agree to indemnify each other with respect to any claims
by any broker or other person, in connection with this Agreement, other than
Broker, where such claim is based solely upon the acts or alleged acts of the
indemnifying party.
17.5. Seller shall indemnify Purchaser with respect to any claims for a
commission in connection with the transaction contemplated by this Agreement by
Broker.
17.6. For the purposes of this Section 17 only, the term "Purchaser" shall
include Purchaser, Xxxx-Xxxx Realty Corporation, any Permitted Assignee, as
hereinafter defined, and such entity, if any, as Purchaser may
designate as its nominee pursuant to this Agreement.
17.7. The provisions of this Section 17 shall survive the delivery of the
deed at the Closing.
Section 18. Assignment.
This Agreement may not be assigned by Purchaser except to a directly or
indirectly wholly-owned subsidiary or subsidiaries of Xxxx-Xxxx Realty
Corporation, or to a partnership, corporation, limited liability company or
other entity in which Xxxx-Xxxx Realty Corporation and/or any such wholly-owned
subsidiary or subsidiaries owns, either directly or indirectly in the aggregate,
at least fifty (50%) percent of the profits, losses and cash flow thereof and
controls the management of the affairs of such entity (any such entity, a
"Permitted Assignee") and any other assignment or attempted assignment by
Purchaser without Seller's consent 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 specifically including those
which survive the Closing or termination of this Agreement.
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Section 19. "AS IS" Condition.
Purchaser represents that after the Inspection Period, Purchaser will have
made a thorough inspection of the Property and that after the Inspection Period,
Purchaser will be proceeding with this Agreement is entered into with full
knowledge as to its value, character, quality and condition. Notwithstanding the
foregoing, Purchaser retains its right to further inspect the Property pursuant
to the terms of Section 5 of this Agreement and all rights set forth therein.
Seller represents that water, sewer, electric and gas service are present at the
Property but Seller makes no representation as to the sufficiency of said
utilities to service the Property for the current use of Purchaser nor for any
intended use of Purchaser. Furthermore, Seller makes no representation as to
Purchaser's ability to use the Property for its intended use. It is therefore
understood and agreed by and between the parties to this Agreement that, except
as may otherwise be specifically provided for in this Agreement, the Property
shall be taken by Purchaser at closing of title in its condition as of the date
of this Agreement, normal wear and tear excepted. Except as may be expressly set
forth in Section 10, SELLER MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO THE PHYSICAL CONDITION OF THE PROPERTY, THE AVAILABILITY OF
UTILITIES NOR WITH RESPECT TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY.
Section 20. (Intentionally Omitted)
Section 21. Entire Agreement.
All understandings and agreements heretofore had between the parties
hereto with respect to the transaction contemplated by this Agreement are merged
in this Agreement, which embodies their entire agreement, and the same is
entered into after full investigation, neither party relying upon any statement
or representation not contained herein.
Section 22. Binding Effect.
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective heirs, executors, legal representatives,
administrators, successors and assigns.
Section 23. No Modification.
This Agreement may not be changed or terminated orally by either party; it
may be amended only by a writing which is executed by Purchaser and Seller. No
course of conduct or course of dealing by the parties shall be construed to
constitute a waiver, modification, or amendment of any provision of this
Agreement in the absence of a writing executed in accordance
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with this Section 23. The requirement set forth in this Section 23 that
amendments to this Agreement must be in writing shall not itself be waived or
amended by any oral agreement of the parties.
Section 24. Notices.
All notices and other communications hereunder shall be in writing
(including wire, telefax or similar writing) (a "Notice") and shall be sent,
delivered or mailed, addressed or telefaxed:
If given to Seller: Bayer Corporation
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000-0000
ATTN: Vice President and General Counsel
Telephone: (201) 440-0111 ext. 4706
Telefax: (000) 000-0000
with a copy to: Agfa Division
Bayer Corporation
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000-0000
ATTN: General Services and Facility
Telephone: (201) 440-0111 ext. 4711
Telefax: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Pitney, Xxxxxx, Xxxx & Xxxxx
MAIL TO: X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
DELIVER TO: 000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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If given to Purchaser: XXXX-XXXX REALTY ACQUISITION
CORPORATION
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
ATTN: Xx. Xxxxxx Xxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
and to: XXXX-XXXX REALTY ACQUISITION
CORPORATION
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
ATTN: Xx. Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
and to: XXXX-XXXX REALTY CORPORATION
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
ATTN: Xx. Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to: Pryor, Cashman, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Each such notice, request or other written communication shall be given (i) by
hand delivery, (ii) nationally recognized overnight courier service or (iii) by
telefax, receipt confirmed. Each such notice, request or communication shall be
effective (i) if delivered by hand or by nationally recognized overnight courier
service, when delivered by overnight delivery at the address specified in this
Section 24 (or in accordance with the latest unrevoked written direction from
such party) and (ii) if given by telefax, it shall be deemed given at the time
and on the date of machine transmittal provided same is sent prior to 4:00 p.m.
on a business day (if sent later, then notice shall be deemed given on the next
business day) and if the sending party receives a written send confirmation on
its machine and forwards a copy thereof by regular mail accompanied by such
notice or communication. 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.
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Section 25. Captions; Gender.
The section headings and table of contents set forth in this Agreement are
for the convenience of the parties only, do not form a part of this Agreement,
and are not to be considered a part of this Agreement for the purposes of
interpretation, or otherwise. All references herein to the neuter gender shall
be deemed to include the masculine and feminine genders, and all references
herein to the singular shall be deemed to include the plural, all as the context
may require.
Section 26. Counterparts.
This Agreement may be executed in counterparts, all of which shall be
deemed originals.
Section 27. Governing Law.
This Agreement shall be governed by and construed according to the laws of
the State of New York.
Section 28. Singular and Plural Usage.
If two or more persons or entities constitute either the seller or the
purchaser, the word "Seller" or the word "Purchaser", and pronouns referring
thereto, shall be construed in the singular or plural usage whenever the sense
of this Agreement so requires and the obligations of such persons and entities
hereunder shall be both joint and several.
Section 29. Escrow Agent.
29.1. The duties and obligations of Escrow Agent hereunder shall be
determined solely by the express provisions of this Agreement, and Escrow Agent
shall have no duties other than those expressly imposed hereby, nor shall Escrow
Agent be required to take any action other than in accordance with the terms
hereof. The duties of Escrow Agent hereunder are entirely ministerial, and
Escrow Agent shall have no responsibility for the content, validity or
genuineness of or otherwise in respect of any document or instrument delivered
to Escrow Agent hereunder. Escrow Agent shall not be liable, whether in acting
or failing to act, for any error in judgment or for any mistake in fact or in
law, or for any loss suffered by any of the parties hereto or herein referred
to, except for a loss resulting from willful malfeasance or bad faith on the
part of Escrow Agent in performing its duties hereunder. Escrow Agent may rely
conclusively upon, and shall be protected in acting or failing to act upon, any
agreement, notice, demand, document or instrument believed by Escrow Agent in
good faith to be genuine. Purchaser and Seller hereby jointly and severally
agree
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to indemnify Escrow Agent and hold it harmless from and against all loss, cost,
damage and expense (including, but not limited to, reasonable attorneys' fees
and disbursements) which Escrow Agent may incur arising out of or in connection
herewith, except for willful misfeasance or bad faith on the part of Escrow
Agent, as aforesaid.
29.2. Escrow Agent is acting as a stakeholder only with respect to the
Deposit. If there is any dispute as to whether Escrow Agent is obligated to
deliver the Deposit or as to whom said Deposit is to be delivered, Escrow Agent
shall continue to hold the same until receipt by Escrow Agent of an
authorization in writing, signed by all the parties having any interest in such
dispute, directing the disposition of the Deposit. In the absence of such
authorization, Escrow Agent may hold the Deposit until the final determination
of the rights of the parties in an appropriate judicial proceeding. If such
written authorization is not given, or proceedings for such determination are
not begun within thirty (30) days after the date set forth herein for the
Closing (as the same may have been changed by agreement of the parties) and
diligently continued, Escrow Agent may, but is not required to, bring an
appropriate action or proceeding for leave to deposit the Deposit in a court of
competent jurisdiction pending such determination. Escrow Agent shall be
reimbursed for all costs and expenses of such action or proceeding including,
without limitation, reasonable attorneys' fees and disbursements, by the party
determined not to be entitled to the Deposit, or if the Deposit is shared
between the parties hereto, such costs of Escrow Agent shall be shared pro rata,
between Seller and Purchaser, based upon the amount of Deposit received by each.
Upon making delivery of the Deposit in the manner provided in this Agreement,
Escrow Agent shall have no further liability hereunder.
29.3. Upon the filing of a written demand for the Deposit by Purchaser or
Seller, the Escrow Agent shall promptly mail a copy thereof to the other party.
The other party shall have the right to object to the delivery of the Deposit by
filing written notice of such objection with the Escrow Agent at any time within
five (5) business days after the mailing of such copy to it, but not thereafter.
Such notice shall set forth the basis for objecting to the delivery of the
Deposit. Upon receipt of such notice, the Escrow Agent shall promptly mail a
copy thereof to the party who filed the written demand.
29.4. Escrow Agent may resign at any time by giving two (2) business days'
written notice to Seller and Purchaser. In the event of such resignation, Escrow
Agent shall deliver the Deposit to another escrow agent designated by Seller and
Purchaser to serve hereunder who shall be a practicing attorney or to a court of
competent jurisdiction, whereupon Escrow Agent shall be discharged from its
duties and obligations hereunder. The new escrow agent, if any, shall execute
and deliver to each of Seller and Purchaser as written notice acknowledging that
such new escrow agent is subject to and shall comply with the terms hereof as
fully and completely and with the same legal force and effect as if new escrow
agent had been originally named as the "Escrow Agent" hereunder.
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29.5. Any notice, demand or other communication to Escrow Agent hereunder
shall be in writing and sent by certified mail, return receipt requested, with
all postage and fees prepaid, addressed in accordance with Section 24 or to such
address as shall be specified by Escrow Agent by written notice to Seller and
Purchaser.
29.6. Escrow Agent shall have the right to represent Seller in any dispute
between Seller and Purchaser with respect to the Deposit, this Agreement or
otherwise.
Section 30. Risk of Loss.
The risk of loss or damage to the Property by fire or otherwise shall
remain with the Seller up to the Closing Date. In the event that the Property
shall suffer damage, other than reasonable wear and tear, Seller may repair such
damage or shall allow Purchaser to take an agreed upon reduction in the Purchase
Price to reflect the reasonable cost of repairs, or, in Seller's discretion,
Seller shall assign to Purchaser any and all rights to insurance proceeds with
respect to the Property for any such loss or damage by fire or otherwise and, in
such event, shall allow Purchaser a credit at Closing in the amount of Seller's
deductible under its insurance, and shall cooperate with Purchaser, as
reasonably necessary, to pursue claims to such proceeds. Notwithstanding the
above, if the reasonable cost of repairs is in excess of $200,000.00, Purchaser
shall have the right to terminate this Agreement upon written notice to Seller
within twenty-one (21) days of its receipt of notice of said loss or damage and,
in the event Purchaser terminates pursuant to the provisions hereof, the Deposit
and accrued interest shall be returned to Purchaser and this Agreement shall be
null and void and of no further force and effect except as may be specifically
provided herein.
Section 31. Publication. Confidentiality.
31.1. After the Deposit has been paid by Purchaser hereunder, Purchaser
shall have the right to make such public announcements or filings with respect
to the proposed transaction as Purchaser may deem reasonably prudent except that
Purchaser shall not make public the Purchase Price until after the Closing
hereof. Purchaser shall not issue any such announcement prior to the Closing
without the prior approval of Seller as to the text of the announcement, which
approval shall not 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.
31.2. Without the prior written consent of the other party, until
Purchaser shall make a public announcement as provided in Section 31.1, 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 any 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
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information necessary, and unless such disclosure is to a governmental entity or
subdivision thereof, the disclosing party shall also 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 31.2., the same shall constitute a default by the
disclosing party and the non-disclosing party shall be entitled to terminate
this Agreement pursuant to the provisions herein on fourteen (14) days prior
written notice. Unless the Closing occurs prior to the expiration of the
fourteen (14) day period, this Agreement shall then be deemed terminated and
null and void.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals or caused these presents to be signed by their proper corporate officers
and caused their proper corporate seal to be hereto affixed, the day and year
first above written.
ATTEST: SELLER:
BAYER CORPORATION,
an Indiana corporation
By: By:
---------------------------- -------------------------------
Name: Name:
Title: Title:
Date Signed by Seller:
---------------
ATTEST: PURCHASER:
XXXX-XXXX REALTY ACQUISITION
CORPORATION
a Delaware corporation
By: By:
---------------------------- -------------------------------
Name: Name:
Title: Title:
Date Signed by Purchaser:
---------
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ALL that certain tract or parcel of land and premises, hereinafter
particularly described, situate, lying and being in the _______________ of
Orangeburg, of ________________ County and State of New York.
EXHIBIT B
PERMITTED ENCUMBRANCES
(a) Outstanding rights in any road, street, path or right of way
abutting the Property.
(b) Zoning and building regulations, ordinances or requirements
adopted by any government or municipal authority having jurisdiction thereof and
amendments and additions thereto now in force and effect which relate to the
Property, provided same are not presently violated.
(c) Any state of facts as an accurate survey of the Property would
disclose, provided same does not prevent Purchaser from obtaining good and
marketable title to the Property.
(d) 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.
(e) Easements and restrictions of record provided same are not
presently violated, provided same will not interfere with the use and occupancy
of the Property for commercial purposes, provided same does not require the
payment of money, and provided no portion of the building is situated on an
easement area.
(f) Any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates affecting the Property as of
the date hereof, provided same are not currently violated.
EXHIBIT C
EXISTING CONTRACTS
1. Contract with security company (copy of contract being obtained and more
specifics will be provided).
EXHIBIT D
TITLE EXCLUSIONS
EXHIBIT E
LIST OF ENVIRONMENTAL DOCUMENTS
