EXHIBIT 10
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
GOODWIVES CENTER LIMITED PARTNERSHIP
AS SELLER
AND
UB DARIEN, INC.
AS PURCHASER
GOODWIVES SHOPPING CENTER, DARIEN, CONNECTICUT
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TABLE OF CONTENTS
1. Agreement to Purchase and Sell
2. Purchase Price
3. Closing Date
4. Acknowledgment of Inspection
5. Title/Survey
6. Seller's Representations
7. Purchaser's Representations and Warranties
8. Brokerage Commissions
9. Seller's Closing Documents
10. Purchaser's Closing Documents
11. Conditions Precedent
12. Prorations, Closing Costs and Adjustments
13. Assignment
14. Environmental Matters
15. Notices
16. Miscellaneous
EXHIBIT A DESCRIPTION OF PROPERTY
EXHIBIT B PERMITTED EXCEPTIONS
EXHIBIT C RENT ROLL
EXHIBIT D ASSIGNMENT AND ASSUMPTION OF LEASES, CONTRACTS AND SECURITY
DEPOSITS
EXHIBIT E ATTORNMENT LETTER
EXHIBIT F FORM III
EXHIBIT G PURCHASER'S HAZARDOUS MATERIALS INDEMNIFICATION AGREEMENT
EXHIBIT H ENVIRONMENTAL DISCLOSURE SCHEDULES
EXHIBIT I TENANTS' ESTOPPELS
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of September
9, 1998, by and between GOODWIVES CENTER LIMITED PARTNERSHIP, a Connecticut
limited partnership with a mailing address c/o Cushman & Xxxxxxxxx, 00 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, ("Seller") and UB DARIEN, INC., a
Connecticut corporation, with a mailing address at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, ("Purchaser").
R E C I T A L S:
A. Seller is the fee simple owner of that certain real and personal
property commonly known as the Goodwives Shopping Center, located in the Town of
Darien, Fairfield County, Connecticut.
B. Subject to the terms, provisions and conditions of this Agreement,
Purchaser is willing to acquire and Seller is willing to sell the Property (as
hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Agreement to Purchase and Sell.
a. Seller hereby agrees to sell to Purchaser, and Purchaser hereby agrees
to acquire from Seller, subject to the terms, provisions and conditions of this
Agreement, the land more particularly described on Exhibit A attached hereto,
together with (i) all buildings and other improvements situated thereon and
commonly known as the Goodwives Shopping Center, (ii) all easements, rights of
way, reservations, privileges, appurtenances, and other estates and rights of
Seller pertaining to such land and buildings, (iii) all right, title and
interest of Seller in and to the fixtures, machinery, equipment, apparatus,
supplies and other articles of personal property attached or appurtenant to such
land or buildings, or used in connection with the ownership, operation,
management or maintenance of such land or buildings (the "Personal Property"),
(iv) all right, title and interest of Seller, if any, in and to the trade name
of the buildings and/or the Shopping Center, (v) all right, title and interest
of Seller under all leases, licenses, concessionaire agreements or other
occupancy agreements and tenancies, written or oral, affecting said land and
buildings (the "Leases"), as described in Exhibit D and (vi) Seller's interest
in all contracts, agreements,
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warranties and guaranties (the "Contracts") described in Exhibit D attached
hereto, (viii) Seller's interest in all building permits, certificates of
occupancy and other certificates, permits, licenses and approvals, if any; and
(viii) all right, title and interest of Seller in and to all security deposits
and other monies deposited by tenants or other occupants under the Leases, with
interest thereon (the "Security Deposits") all collectively referred to as the
"Property". Assignment of Seller's interest in Contracts shall not create any
warranty or guaranty from Seller to Purchaser except as set forth in paragraph 6
below but shall only constitute an assignment of Seller's rights, if any, in
said Contracts.
2. Purchase Price.
Purchaser agrees to pay a purchase price of Twenty-One Million Two Hundred
Ninety Eight Thousand Nine Hundred and no/100 Dollars ($21,298,900.00) (the
"Purchase Price") for the Property. The Purchase Price, plus or minus
pro-rations, credits and adjustments, if any, as hereinafter provided, shall be
payable at the Closing (as hereinafter defined) to a bank account designated by
Seller through a wire transfer of immediately available funds.
3. Closing Date. The transaction contemplated by this Agreement shall be
closed (the "Closing") on September 9, 1998 (such date, the "Closing Date"). The
Closing shall be held at the offices of Seller's counsel, 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000 or such other place as mutually agreed between the
parties.
4. Acknowledgment of Inspection.
a. Seller acknowledges having given, and Purchaser for itself and its
employees, consultants, agents and independent contractors acknowledge
having received, for a period prior to the Closing, the right and
permission:
i. To review originals and photocopies of the following documents:
(1) The Leases and all new leases and tenancies permitted
pursuant to this Agreement.
(2) The Contracts and all new contracts permitted pursuant to
this Agreement.
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(3) The Plans in possession of Seller.
(4) Operating Statements of the Property for the calendar years
1996 through 1997, showing in reasonable detail all income and
expenses of the Property for each such year, together with copies
of the real estate tax bills for the two (2) most recent tax
years, including the list of October 1, 1997.
(5) Photocopies of environmental reports generated by Seller's
environmental consultants related to the Property in Seller's
possession referenced herein in Exhibit H.
ii. To enter upon the Property at reasonable times for the purpose of
reviewing, conducting studies, inspections and tests, including,
without limitation, physical tests and inspections, and such
other tests and inspections as Purchaser deemed appropriate. The
Purchaser has not performed, or caused to be performed, any
"Phase II" type environmental assessment or sampling of soil,
surface water, groundwater, air, other media or improvements at
or in connection with the Property without obtaining the Seller's
prior written consent. The foregoing studies, inspections and
tests have been conducted at the sole cost and expense of
Purchaser. In conducting the studies, inspections and tests
contemplated hereby, Purchaser (i) has not interfere with the
existing uses of the Property by persons in possession thereof,
(ii) has afforded reasonable prior notice to Seller with respect
to the timing and scope of any physically intrusive tests or
inspections and (iii) has restored promptly any physical damage
caused by such studies, inspections or tests. Purchaser hereby
agrees to indemnify, defend and hold Seller free and harmless
from any loss, injury, damage, claim, lien, cost or expense,
including reasonable attorney's fees and costs, resulting from or
arising out of any such study, inspection or test, excluding the
specific findings of any such study, inspection or test.
b. Purchaser acknowledges that Purchaser has been granted access to and
has inspected the Property and has been afforded an opportunity to
review all of the documents listed in Section (a)(i) above and
Paragraph 5 and has
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otherwise satisfied itself as to all aspects of the Property and
Purchaser agrees and represents that Purchaser is purchasing and will
accept the Property "as-is" and "with all faults" without any
covenants, representations or warranties, express or implied,
including without limitation, those of merchantability, habitability
or fitness for any particular purpose other than those representations
as expressly set forth in this Agreement.
5. Title/Survey.
a. Purchaser has ordered a title insurance commitment (the "Commitment")
for the Property from Lawyers Title Insurance Corporation (the "Title
Company"), and has delivered a copy and updates thereto to Seller
promptly after receipt of same.
Purchaser has examined title to the Property and has agreed to accept
the Property subject to the exceptions set forth in Paragraph 5c
attached hereto.
b. Purchaser has had the Property surveyed by a licensed professional
engineer or surveyor (the "Survey") at its expense and accepts the
Survey subject to matters shown thereon.
c. Permitted Encumbrances. The Purchaser agrees to accept the Property
subject to: (i) building, building line and zoning restrictions and
regulations of the municipal authorities and amendments and additions
thereto in effect at the Closing Date; (ii) any state of facts that an
accurate survey or physical inspection of the Property may show; and
(iii) provided the same do not prohibit the maintenance of the
structures on the Property and the Title Company agrees to provide
affirmative coverage that such encroachments will not affect the use
of the Property for commercial purposes, (1) encroachments of xxxxxx,
areaways, steps, trim and cornices, if any; (2) covenants, easements
and restrictions of record affecting the Property; and (3)
encroachments of water or sewer lines under improvements; and (iv) the
items delineated in Exhibit B.
6. Seller's Representations.
Seller covenants, represents and warrants to Purchaser as of the date of
this Agreement and as of the Closing Date, which representations and
warranties unless otherwise noted, shall not survive the Closing, the
following:
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a. Seller (i) is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Connecticut; (ii)
has the authority and power to enter into this Agreement and to
consummate the transaction contemplated hereby; and (iii) has duly
authorized the execution, delivery and performances of this Agreement
and all required consents and approvals have been duly obtained.
b. Seller has not received any written notification of any pending or
threatened condemnation, requisition or similar proceeding affecting
the Property or any portion thereof.
c. No special taxes or assessments have been levied, assessed or imposed
on or against the Property or any part thereof that have not been
fully and finally paid, and neither Seller, nor any of its agents or
employees have received any written notice of threatened or pending
special taxes or assessments affecting the Property or any part
thereof.
d. Other than the Leases set forth on the Rent Roll attached hereto as
Exhibit C which is true, accurate and complete, Seller has not entered
into any other Leases, lease amendments, lease guaranties, work letter
agreements, improvement agreements, subleases, assignments, licenses,
concessions or other agreements with respect to the leasing, use or
occupancy of the Property or any part thereof.
e. At the time of execution of this Agreement by Seller, all Leases shall
be in full force and effect in accordance with their respective terms
and no monthly rent has been paid more than one month in advance and
no security deposit or prepaid rent has been paid except as stated in
the Leases and except as noted on the Rent Roll attached hereto as
Exhibit C and made a part hereof. Seller has not received any notice
from any Tenant claiming there to be any existing material breach or
material default by Landlord under any Lease at the time of execution
of this Agreement by Seller. To the best of Seller's knowledge, no
event has occurred or condition exists which, with or without notice
or the passage of time, or both, would constitute a
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material breach or a material default by Landlord, or to Seller's
actual knowledge, by any Tenant, under the Leases, except as noted on
Exhibit C.
f. All leasing commissions with respect to the Leases have been paid in
full and no brokerage commission, finder's fee or similar compensation
shall be due or payable in connection with the exercise of any option
to renew or extend any Lease. This representation and warranty shall
survive the closing.
g. There is no action pending or to Seller's knowledge, threatened,
against Seller by any tenant under a Lease.
h. Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended, and the Income Tax
Regulations thereunder.
i. Seller has not:
i. Materially amended, modified or supplemented any Lease or
Contract or accepted a surrender of or voluntarily canceled any
such Lease or Contract or entered into any new Lease or Contract
relating to the Property, except those for which written notice
and a copy thereof has been delivered to Purchaser.
ii. Commenced any action or proceeding, including, without
limitation, a summary dispossess proceeding or non-payment
proceeding, against any tenant which is in default under its
Lease.
j. There are no permits, licenses, other than ordinary business licenses,
or consents required by any governmental authority in connection with
the use and occupancy of the Property that have not already been
obtained.
k. Neither Seller nor any entity controlled by or under common control
with Seller owns any real property adjacent to Goodwives Shopping
Center. Seller has not initiated any tax appeals which are pending and
to the best of Seller's knowledge, there are no pending tax appeals
having been brought by any Tenants of the Goodwives Shopping Center.
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7. Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller that Purchaser is a duly organized, validly existing
corporation in good standing under the laws of the State of Connecticut has
duly authorized the execution and performance of this Agreement, and such
execution and performance will not violate any terms of its organizational
documents.
8. Brokerage Commissions. Each party represents and warrants to the other that
it has not dealt with any entity or person other than Xxxxxxx & Xxxxxxxxx
of Connecticut, (the "Broker") who would be entitled to a brokerage
commission, finder's fee or other similar compensation in connection with
the transactions described herein payable by Seller from or in respect of
the Purchase Price. Each party agrees to indemnify, defend, protect and
hold forever harmless the other from and against any and all loss,
liability, cost, damage and reasonable expense, including, without
limitation, reasonable attorney's fees, which the other may incur, suffer
or sustain by reason of any other right, claim, demand or damage made or
asserted by any person or persons for the payment of a brokerage
commission, finder's fee or similar compensation on account of a breach of
this representation and warranty. Seller shall be responsible for payment
of the commission and other compensation, if any, payable to Xxxxxxx &
Wakefield in respect of the transaction contemplated hereby.
9. Seller's Closing Documents. On the Closing Date, Seller shall deliver to
Purchaser the following documents and instruments with respect to the
Property (collectively, "Seller's Closing Documents"), duly executed by
Seller.
a. A general warranty deed for the Property (the "Deed"), which shall be
in proper statutory form for recording, subject only to the Permitted
Exceptions, so as to convey to Purchaser fee simple title to the
Property as provided herein.
b. A xxxx of sale conveying the Personal Property.
c. An Assignment and Assumption of Leases, Contracts and Security
Deposits assigning to Purchaser the Leases, Security Deposits and
Contracts in effect as of Closing in the form of Exhibit D subject
only to the Permitted Exceptions, together with (1) the originals of
the Leases and Contracts (or certified copies) and (2) attornment
notices to tenants in a form attached hereto as Exhibit E.
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d. Possession of the Property shall be delivered to Purchaser at Closing
together with all keys in the possession of Seller to all locks of the
Property, duly labeled and identified as Seller is reasonably able.
e. An affidavit certified by Seller, and such documents and instruments
in respect of Seller's authority to sell the Property including
resolutions, incumbency certificate and a certificate of good
standing/legal existence from the state of Seller's formation and any
entity signing any of Seller's Closing Documents as shall be
reasonably required by the Title Company.
f. A nonforeign affidavit sufficient for the purposes of establishing and
documenting the nonforeign affidavit exemption described in Section
1445 of the Internal Revenue Code (the "FIRPTA" Affidavit").
g. Completed conveyance tax returns for the Property in the form required
by the applicable governmental authority, such affidavit to be
executed by Seller as the Title Company shall reasonably require in
order to omit from the title policy all exceptions for judgments,
bankruptcies or other returns against persons or entities whose names
are the same or similar to Seller's name, any exception for Tenants in
possession except those specifically listed on Exhibit C attached
hereto and any exception for unrecorded mechanics' liens caused by
acts of the Seller. Seller shall not be required to execute any
affidavit concerning mechanics' liens arising as a result of acts of
Tenants in the Shopping Center.
h. Originals of any building plans and specifications, agreements,
documents and all correspondence relating thereto affecting the
Property, in Seller's possession.
i. Good and immediately available funds in the amount of all Security
Deposits, all sums due Purchaser under the apportionment provisions
herein and an amount equal to one-half the sums due to the Department
of Environmental Protection in connection with the Connecticut
Transfer Act filings and any other sums due from Seller to Purchaser
at Closing pursuant to the provisions of this Agreement.
10. Purchasers' Closing Documents.
On the Closing Date, the Purchaser shall deliver to the Seller the
following documents and instruments with respect
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to the Property (collectively, "Purchaser's Closing Documents"), duly
executed by the Purchaser.
a. Copies of any documents required to be prepared or filed with the
Connecticut Department of Environmental Protection pursuant to the
Connecticut Transfer Act, Connecticut General Statutes 22a-134 et
seq., signed by Purchaser, including, without limitation, an
Environmental Condition Assessment Form, a Form III designating the
Purchaser as a "certifying party" within the meaning of the
Connecticut Transfer Act to the extent such document is required to be
prepared pursuant to the Connecticut Transfer Act. Sample Form III is
attached hereto as Exhibit F. Purchaser shall be responsible to pay
all transfer and filing fees due the Department of Environmental
Protection under the Connecticut Transfer Act.
b. An Assumption of Leases and Security Deposits providing for the
assumption of all obligations of Landlord pursuant to said leases in
the form of Exhibit D attached hereto, subject only to the Permitted
Exceptions.
c. An affidavit signed by Purchaser and such other documents and
instruments in respect of Purchaser's authority to purchase the
Property including resolutions, encumbancy certificates and
certificates of good standing/legal existence for the state of
Purchaser's formation and any entity signing any of Purchaser's
Closing Documents as may reasonably be required by Seller.
d. Purchaser's Hazardous Materials Indemnification Agreement pursuant to
Article 17 in the form attached hereto as Exhibit G.
11. Conditions Precedent.
a. Seller. The obligations of Seller under this Agreement are subject to
satisfaction of all of the conditions set forth in this Article 11(a).
Seller may waive any or all of such conditions in whole or in part but
any such waiver shall be effective only if made in writing. After the
Closing, any such condition that has not been satisfied shall be
treated as having been waived in writing. No such waiver shall
constitute a waiver by Seller of any of its rights or remedies if
Purchaser defaults in the performance of any covenant or agreement to
be performed hereunder. If any condition
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set forth in this Article 11(a) is not fully satisfied or waived in
writing by Seller, this Agreement shall, at Seller's option,
terminate, but without releasing Purchaser from liability as limited
in this Agreement if Purchaser defaults in the performance of any such
covenant or agreement to be performed by Purchaser or if Purchaser
breaches any such representation or warranty made by Purchaser before
such termination.
(1) On the Closing Date, Purchaser shall not be in material default
in the performance of any covenant or agreement to be performed
by Purchaser under this Agreement.
(2) On the Closing Date, all representations and warranties made by
Purchaser in this Agreement shall be materially true and correct
as if made on and as of the Closing Date.
(3) On the Closing Date, no judicial or administrative suit, action,
investigation, inquiry or other proceeding by any person shall
have been instituted against Purchaser which challenges the
validity or legality of any of the transactions contemplated by
this Agreement.
(4) Purchaser executes all documents required of it pursuant to
Paragraph 12a through d and Purchaser pays the balance of the
Purchase Price and all other amounts due from it under this
Agreement.
b. Purchaser. The obligations of Purchaser under this Agreement are
subject to satisfaction of all of the conditions set forth in this
Article 11(b). Purchaser may waive any or all of such conditions in
whole or in part but any such waiver shall be effective only if made
in writing. After the Closing, any such condition that has not been
satisfied shall be treated as having been waived in writing. No such
waiver shall constitute a waiver by Purchaser of any of its rights or
remedies if Seller defaults in the performance of any covenant or
agreement to be performed hereunder. If any condition set forth in
this Article 11(b) is not fully satisfied or waived in writing by
Purchaser, this Agreement shall, at Purchaser's option, terminate, but
without releasing Seller from liability as limited in this Agreement
if Seller defaults in the performance of any such covenant or
agreement to be performed by Seller or if Seller breaches any such
representation or warranty made by Seller before such termination.
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(1) On the Closing Date, Seller shall not be in material default in
the performance of any covenant or agreement to be performed by
Seller under this Agreement.
(2) On the Closing Date, no judicial or administrative suit, action,
investigation, inquiry or other proceeding by any person shall
have been instituted against Seller which challenges the validity
or legality of any of the transactions contemplated by this
Agreement.
(3) On the Closing Date, the Title Company shall have provided an
Owners Policy of Title Insurance or committed to issue same with
liability not less than the Purchase Price insuring Purchaser
that fee simple absolute title to the real property is vested in
Purchaser subject only to the Permitted Exceptions, in form and
substance reasonably satisfactory to Purchaser. Purchaser shall
diligently and in good faith apply for and pay for all premiums
to obtain such policy of title insurance.
(4) On the Closing Date, Purchaser shall have received estoppel
certificates substantially in the form of Exhibit I, attached
hereto and made a part hereof from (a) the following tenants:
Grand Union, People's Bank (both spaces), Rugged Bear, YMCA, Home
Hearth & Patio and King's Highway Pharmacy and (b) from at least
eight (8) other Tenants of the Goodwives Shopping Center, and (c)
Seller's estoppel with regard to the remainder of the tenants of
the Shopping Center. At closing, Seller shall provide a
certification to Purchaser regarding defaults under leases and
updating the status of the Rent Report concerning arrearages.
(5) Title to the Property shall be free of all Encumbrances other
than the Permitted Exceptions provided for herein and mechanics'
liens which may be filed in connection with the acts of Tenants
which shall not constitute an objection to title.
(6) Seller shall have executed (where applicable) and delivered the
Closing Documents to be executed and delivered by Seller and
delivered to Purchaser all other documents and items required of
Seller under this Agreement.
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(7) All of the representation and warranties of Seller contained in
this Agreement shall have been true and correct when made, and
shall be true and correct on the Closing Date with the same
effect as if made on and as of such, but which shall not survive
the Closing.
(8) Seller shall have performed, observed, and complied in all
material respects with all covenants, agreements, and conditions
required by this Agreement to be performed, observed, and
complied with on Seller's part prior to or as of the Closing
Date.
(9) Neither Seller nor Purchaser shall have received written notice
from the applicable governmental entity that there is an actual
pending or imminent change in the zoning of the Property which
would materially interfere with Purchaser's ability to operate a
retail Shopping Center at the Property.
(10) The physical condition of the Property shall be substantially the
same on the Closing as of the date hereof, reasonable wear and
tear, casualty and condemnation excepted.
(11) All other conditions to Purchaser's obligations which are
specifically set forth in this Agreement shall have been
fulfilled.
(12) In the event any of the above conditions are not met, Purchaser
may, at its sole election terminate the Agreement in which case
all of Seller's and Purchaser's obligations under this Agreement
shall terminate.
12. Prorations, Closing Costs and Adjustments.
With regard to the Property, Seller shall pay, at or prior to Closing, all
installments or amounts of items which are being apportioned under this
Section, the last date for the payment of which, without penalties or
interest, falls prior to Closing.
a. The following items shall be apportioned between Seller and Purchaser
according to the customs of Fairfield County, as of the day preceding
the Closing Date:
i. Real estate taxes, assessments and sewer use charges. Real
estate tax refunds and credits received after Closing which
are in whole or
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in part refundable to existing tenants pursuant to the terms
of the Leases shall, if received by the Seller, be promptly
remitted to the Purchaser after the Closing to the extent so
refundable to such tenants. The provisions hereof shall
survive the Closing.
ii. Minimum rents, percentage rents, common area maintenance and
tax charges, additional rents, and all other sums and
charges payable by the tenants under the Leases or by
licensees, concessionaires and other persons occupying any
part of the Property. Accrued but unpaid rents described
herein and collected by Purchaser shall be paid to Seller
post-closing pursuant to Paragraph 12(e). This covenant
shall survive the Closing.
iii. Fuel and other utilities (including, without limitation,
electricity, water and gas); except that no apportionment
shall be made for any such items as are furnished and
charged by the applicable utility company directly to
Tenants.
iv. Personal property taxes, if any.
v. Such other items as are customarily adjusted in connection
with commercial real estate transactions of this type in
Fairfield County.
vi. Security Deposits. Purchaser shall receive a credit at
closing in the amount of all unapplied security deposits
held by Seller. Purchaser shall and does hereby agree to
hold harmless, indemnify and defend Seller against any
obligation to return the security deposits for which
Purchaser has received a credit as aforesaid. Seller shall
and does hereby agree to hold harmless, indemnify and defend
Purchaser against any obligation to refund security deposits
or other items of prepaid rent or additional rent such as
common area maintenance charges, real estate taxes and
percentage rent for the Leases for which Purchaser has not
received a credit as aforesaid. The provisions hereof shall
survive the Closing.
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b. Seller shall pay the conveyance taxes applicable to the transfer of
the Property and any recording fees applicable to recording discharges
or releases of lien. Purchaser shall pay any fees to record the deed.
c. Seller shall pay all unpaid commissions, fees and other charges due to
real estate brokers or other persons with respect to any Lease
executed prior to the Closing, including any amendment of any Lease
executed prior to the Closing Date but becoming effective after the
Closing Date. Purchaser shall be responsible for commissions, fees, or
other charges due to real estate brokers or other persons with respect
to new Leases executed after the Closing Date.
d. If the Closing occurs before a new real property or other applicable
tax rate or charge of a governmental entity is fixed for the Property,
then the apportionment of such tax or charge at the Closing shall be
based upon the tax rate for the immediately preceding fiscal period
applied to the latest assessed valuation. Promptly after the next tax
rate has been fixed, the apportionment of such tax or charge made at
the Closing shall be recomputed.
e. With regard to the Property, if any tenant under a Lease is in arrears
in the payment of rent, additional rent, or other charges, payments
received from such tenant after the Closing shall be applied in the
following order of priority (unless the item was represented by Seller
herein to have been paid);
(1) to the month in which the Closing occurred;
(2) then to the month preceding the month in which the Closing
occurred;
(3) then to the month following the month in which the Closing
occurred with respect to which rent is due at the time of
receipt; and
(4) then to the period prior to the month preceding the month in
which the Closing occurred. This procedure for alternating
allocation of base rent or minimum guaranteed rent shall continue
until all such arrearages at the time of Closing have been paid
to Seller. After the Closing, upon ten (10) day's prior written
notice to Purchaser, Seller may bring, in Seller's name and
expense, an action against any Tenant under a Lease to collect
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rent, additional rent or other payments due Seller for a period
prior to the Closing together with the cost of collection
thereof, but in no event shall Seller seek any remedy other than
collection of funds from the particular Tenant (and Seller shall
not be entitled to seek a termination of the Lease or eviction of
the Tenant); and provided further that Seller shall indemnify
Purchaser for any costs resulting from such action and/or
Seller's dealings with a particular Tenant with respect to the
controversy involved. Said costs shall not include non-payment of
rent by Tenant to Purchaser. Seller shall furnish Purchaser
(within five (5) business days after issuing or receiving the
same) copies of all papers served by Seller, the Tenant, or any
other party to the particular action.
f. In this Section, "additional rents" means percentage rent, escalation
charges for real estate taxes, parking charges and/or tax and labor,
operating expenses and maintenance escalation rents or charges,
cost-of-living increases, common area maintenance charges, or other
charges of a similar nature payable under the Leases. With regard to
the Property, if any additional rents are collected by Seller after
the Closing which are attributable in whole or in part to any period
subsequent to the Closing, then Seller shall pay to Purchaser,
Purchaser's share thereof, determined under subsection "e" above, less
a proportionate share of the costs for collection thereof. With regard
to the Property, if any additional rents are collected by Purchaser
after the Closing which are attributable in whole or in part to any
period prior to the Closing Date, then Purchaser shall pay to Seller,
Seller's share thereof, determined under subsection e above, less a
proportionate share of costs for collection thereof.
g. If there are water meters on the Property, Seller shall furnish to
Purchaser meter readings to a date not more than ten (10) days prior
to the Closing, and the unfixed meter charges for the intervening time
to the Closing shall be apportioned on the basis of such meter
readings. Upon the taking of subsequent actual readings, such
apportionments shall be readjusted, and Seller or Purchaser, as the
case may be, will promptly deliver, to the other the amount determined
to be so due upon such readjustments.
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h. The apportionment of utility charges shall be made upon the basis of
charges shown on the latest available bills for such utilities. The
charges shown on such available bills for periods prior to the Closing
shall be paid by Seller, and for the period from the date of each such
last available utility xxxx to the Closing an apportionment shall be
made based on the amount charged for the period covered by such last
available xxxx. Notwithstanding the foregoing Seller, with respect to
the Property, will use its best efforts to cause the utility company
to read its meters or fix its charges to the Closing, in which event
Seller shall pay such charges, when billed, to the Closing, and
Purchaser shall pay such charges from and after the Closing. At the
time of Closing, Seller shall notify all such public utilities in
writing (with copies to Purchaser) of the applicable transfer of
service.
i. If any item covered by this Paragraph 12 cannot be apportioned because
the same has not been (or cannot be) fully ascertained on the Closing,
or if any error has been made with respect to any apportionment, then
such item shall be apportioned (or corrected, as applicable) as soon
as the same is fully ascertained.
j. After the date hereof, Seller may withdraw, settle or otherwise
compromise any currently filed and proceeding protest or reduction
proceeding affecting real estate taxes assessed against the Property
for any fiscal period preceding the year in which the Closing occurs
or in which the Closing is to occur; provided however, not for any
subsequent fiscal period without the prior written consent of
Purchaser. Real estate tax refunds and credits received after the
Closing which are attributable to the fiscal year during which the
Closing occurs shall be apportioned between Seller and Purchaser,
after deducting the costs of collection thereof, pursuant to this
Section. Purchaser agrees to refund to tenants any amounts due them
from any refunds and credits received by Purchaser and attributable to
any period prior to Closing. Seller similarly agrees to refund to
Tenants any amounts due for any refunds or credits received by Seller
and attributable to any period after Closing.
k. If, as of the Closing, the Property shall be (or shall have become)
subject to a special or local assessment or charge of any kind
(whether or not yet a lien), then Seller shall pay all installments
thereof due and payable prior to the Closing; provided, however, any
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installment thereof for a period which includes the Closing shall be
apportioned at the Closing in the same manner as for taxes under
Subsection a above.
l. In the event either Seller or Purchaser shall owe the other any money
as a result of the terms of this Paragraph 12 (whether at Closing or
thereafter), then the party owing such money shall pay the other party
such money as soon as the amount is determined. Prepaid or unpaid
amounts under the Leases or Contracts, which shall be assigned to and
assumed by Purchaser, shall be apportioned as provided herein.
m. None of the insurance policies relating to the Property will be
assigned to Purchaser. Accordingly, there will be no proration for
insurance premiums.
This Article 12 of this Agreement, and all rights and duties of the parties
hereunder, shall survive the Closing.
13. Purchaser shall not have the right to assign its interest in this Agreement
without obtaining the prior written consent of Seller, and any attempted
assignment by Purchaser in violation of this sentence shall be null and
void and of no force and effect. Notwithstanding the foregoing, without the
prior written consent of Seller, Purchaser shall have the right to assign
this Agreement and its rights and obligations hereunder to a wholly owned
subsidiary of Purchaser provided however that no such assignment shall
relieve the Purchaser of any obligation hereunder or under any agreement
contemplated hereby.
14. Environmental Matters
The Purchaser shall execute at the time of Closing the Hazardous Materials
Indemnity Agreement in the form attached hereto as Exhibit G which is
incorporated herein and made a part hereof.
15. Notices. Any notice regarding this Agreement or any transaction or other
matter arising in connection herewith shall be in writing and be served
upon the party to which it is directed at the following addresses:
If to Seller: Goodwives Center Limited Partnership
c/o Cushman & Xxxxxxxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. XxXxxxx,Xx.
Facsimile: 212/841-7535
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with a copy to: Xxxxxxx, Xxxxxxx & Vardamis
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: 203/861-6755
If to Purchaser. UB Darien, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Vice President,
Retail Management
Facsimile: 203/861-6755
with a copy to: Urstadt Xxxxxx Properties Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: 203/861-6755
Any notice may be served personally or may be sent by certified mail, return
receipt requested or by Airborne, UPS, Federal Express or similar overnight
express service or by facsimile. If served personally, a notice shall be deemed
to have been given upon delivery, or attempted delivery, if delivery is refused.
If sent by certified mail, a notice shall be deemed to have been given on the
second business day following the date deposited with the United States Postal
Service, postage prepaid. If sent by overnight express service, a notice shall
be deemed to have been given one (1) business day after pickup by such overnight
service. If sent via facsimile, a notice shall be deemed to have been given on
confirmation of receipt. The address at which notice is to be given to either
party may be changed by giving notice to the other party as provided above.
16. Miscellaneous
a. Entire Agreement. The Recitals set forth at the beginning of this
Agreement and the Exhibits attached hereto are incorporated in and
made a part of this Agreement by this reference. This Agreement is the
entire agreement between the parties with respect to the subject
matter hereof, and no alteration, modification or interpretation
hereof shall be binding unless in writing and signed by Seller and
Purchaser.
b. Severability. If any provision of this Agreement or application to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to
such person or circumstances, other than those as to
20
which it is so determined invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be valid and shall
be enforced to the fullest extent permitted by law.
c. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Connecticut.
d. Waivers. No waiver of any provision of this Agreement or any breach of
this Agreement shall be effective unless such waiver is in writing and
signed by the waiving party and any such waiver shall not be deemed a
waiver of any other provision of this Agreement or any other or
subsequent breach of this Agreement.
e. Successors Bound. This Agreement shall be binding upon and inure to
the benefit of Purchaser and Seller and their respective heirs,
executors, administrators, personal representatives, successors and
assigns.
f. Captions. The captions in this Agreement are inserted only as a matter
of convenience and for reference and in no way define, limit or
describe the scope of this Agreement or the scope or content of any of
its provisions.
g. Attorney's Fees. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and costs.
h. No Partnership or Joint Venture. Nothing contained in this Agreement
shall be construed to create a partnership or joint venture
relationship among Seller and Purchaser.
i. Recordation. Purchaser and Seller agree not to record this Agreement
or any memorandum hereof.
j. Survival. Except as otherwise expressly provided herein, the
provisions of this Agreement shall not survive the Closing.
k. Construction. This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party
causing this Agreement or any part hereof to be drafted.
l. Definitions. "Books and records" means all books, records and Tenant
lists for the Property, together with any and all surveys,
environmental studies, and budgets received or prepared by or for
Seller in connection with the ownership, operation, maintenance
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and/or management of the Property, excepting, however, all
correspondence of Seller pertaining to intra-corporate dealings or
other proprietary matters which are not necessary to assist or enable
Purchaser in exercising rights with respect to the Property.
"Development Rights" means all rights of the owner to the air space above
the Property, all zoning entitlements, development rights and appurtenances
(including, but not limited to, all entitlements based upon so-called
unused floor-area ratios) accruing to the Property (and/or Seller with
respect to the Property) under, or by reason of, any applicable zoning
ordinance or other laws and all choses in action.
"Encumbrances" means any and all liens, mortgages, deeds of trust, security
agreements, security interests, claims, options, rights of purchaser or
first refusal, encroachments, rights-of-way, operating agreements,
covenants, reservations, orders, decrees, judgments, licenses, agreements,
charges, conditions, restrictions, rights of others or other encumbrances
affecting title to a property. Encumbrances shall not include any of the
enumerated items herein filed by way of any act or omission by any Tenant's
occupying the Shopping Center including but not limited to mechanics' liens
of Tenants.
"Licenses and Permits" means all building and other permits, certificates,
licenses, franchises, authorizations and approvals granted by any
governmental entity necessary or useful in connection with the Property
and/or the operation of the improvements thereon or any part thereof
including those issued or granted with respect to any construction or
renovation work currently being undertaken at the Property.
"Plans" means all architectural, electrical, mechanical, plumbing and other
plans and specifications produced in connection with the construction,
repair and maintenance of the Property (including all revisions and
supplements thereto) and all appraisals, reports and analyses of engineers
and other consultants, operating manuals and other documents pertaining to
the physical operation of the Property.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
SELLER
GOODWIVES CENTER LIMITED PARTNERSHIP
BY: DD&D REALTY CORP.,
ITS GENERAL PARTNER
By:
-------------------------------
Xxxxxx X. XxXxxxx, Xx.
Its President
PURCHASER
UB DARIEN, INC.
By:
-------------------------------
Willing X. Xxxxxx
Its President
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