EXHIBTI 10.1
SALE-PURCHASE AGREEMENT
* * * *
XXXXX XXXXXXXX U.S.A., INC.,
AS SELLER
AND
00 XXXX 00XX XXXXXX REALTY, LLC
AS PURCHASER
* * * *
PREMISES:
00 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX
AS OF AUGUST 24, 2005
SALE-PURCHASE AGREEMENT
THIS SALE-PURCHASE AGREEMENT (this "AGREEMENT"), made as of the date set
forth on the cover page hereof between XXXXX XXXXXXXX U.S.A., INC., a Delaware
corporation having an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("SELLER"), and 00 Xxxx 00xx Xxxxxx Realty, LLC, a New York limited liability
company, having an address c/o Crown Acquisitions Inc., 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 10018("Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Property (hereinafter defined) on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the mutual receipt and legal sufficiency of which the
parties hereto hereby acknowledge, Seller and Purchaser hereby agree as follows:
1. SALE-PURCHASE. Subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees
to purchase and acquire from Seller, the following:
A. THE LAND. The fee estate in and to that certain plot, piece and
parcel of land located in The City of New York, County of New York and State of
New York, as described on EXHIBIT "A" attached hereto and made a part hereof
(the "LAND"), together with all of Seller's right, title and interest, if any,
in and to any land lying in the bed of any street, road or avenue, opened or
proposed, public or private, in front of or adjoining the Land, to the center
line thereof, and all right, title and interest, if any, of Seller in and to any
award made or to be made in lieu thereof and in and to any unpaid award for
damage to the Land by reason of change of grade of any street, subject, however,
to the Permitted Exceptions (hereinafter defined);
B. IMPROVEMENTS. All of Seller's right, title, and interest in and
to the buildings and other improvements built on or attached to the Land (the
"IMPROVEMENTS"), subject, however, to the Permitted Exceptions (the Land and the
Improvements being collectively referred to herein as the "REAL ESTATE");
C. FIXTURES. All of Seller's right, title, and interest in and to
the fixtures built on or attached to the Real Estate (the "FIXTURES"), subject,
however, to (i) the Permitted Exceptions and (ii) the Seller Retained Property
(defined below);
D. PERSONAL PROPERTY. All of Seller's right, title, and interest in
and to the equipment, furniture, machinery, furnishings, tools, spare parts,
supplies, computer equipment, fire alarm systems and other articles of personal
property owned by or hereafter acquired by Seller and located on the Real Estate
and used solely in connection with the ownership, maintenance, use, and
operation of the Real Estate (the "PERSONAL PROPERTY"), except for the items of
Personal Property set forth on EXHIBIT "B" attached hereto and made a part
hereof (the "SELLER RETAINED PROPERTY") (the Fixtures and the Personal Property
being collectively referred to
herein as the "ADDITIONAL PROPERTY"); it being agreed that no portion of the
Purchase Price (as hereinafter defined) is attributable to the Additional
Property;
E. OTHER PROPERTY. All of Seller's right, title and interest, if
any, in and to all easements, rights of way, privileges, servitudes,
appurtenances and other rights, if any, running with Seller's interest in the
Real Estate, subject, however, to the Permitted Exceptions;
F. CONTRACT RIGHTS. All of Seller's right, title and interest in and
to (i) any assignable guaranties, warranties, certificates, rights and
privileges relating to the Improvements or the Additional Property, to the
extent in effect on the Closing Date, (ii) any assignable licenses and permits
relating to the Improvements or the Additional Property, to the extent in effect
on the Closing Date, (iii) any deposits made by Seller (or Seller's
predecessors-in-interest) with utility companies relating to the Improvements or
the Additional Property, to the extent apportionment is made therefor under
SECTION 6 hereof, and (iv) any plans or specifications relating to the
Improvements or the Additional Property, to the extent in Seller's possession or
control on the Closing Date (the items described in clauses (i), (ii), (iii) and
(iv) above being collectively referred to herein as the "CONTRACT RIGHTS"); and
G. THIRD-PARTY CONTRACTS. All right, title and interest of Seller
and/or Seller's agents in and to any service and maintenance contracts (but
excluding all collective bargaining and union agreements) relating to the Real
Estate or the Additional Property as listed on EXHIBIT "C" attached hereto and
made a part hereof, (such third-party brokerage agreements and service and
maintenance contracts relating to the Real Estate or the Additional Property
together with any new contracts entered into under SECTION 13B hereof are
collectively referred to herein as "THIRD-PARTY CONTRACTS"), but only to the
extent such contracts or agreements are in effect on the Closing Date or have
not been terminated as provided in this Agreement (the items described in
clauses A through I of this SECTION 1 being collectively referred to herein as
the "PROPERTY").
2. PURCHASE PRICE.
A. Subject to adjustment as hereinafter provided, the purchase price
for the Property is Fifty Three Million and No/100 Dollars ($53,000,000.00),
legal currency of the United States of America (the "PURCHASE PRICE"), payable
as follows: (i) an amount equal to Two Million Six Hundred Fifty Thousand and
No/100 Dollars ($2,650,000), legal currency of the United States of America (the
"DOWNPAYMENT"), on the date hereof, payable by wire transfer of immediately
available federal funds to the attorney escrow account or of Xxxxxx LLP, as
escrow agent ("ESCROW AGENT"), to be held by Escrow Agent pursuant to and in
accordance with the provisions of that certain Escrow Agreement, dated as of the
date hereof (the "ESCROW AGREEMENT") among Seller, Purchaser and Escrow Agent;
(ii) an amount equal to Two Million Six Hundred Fifty Thousand and No/100
Dollars ($2,650,000), legal currency of the United States of America (the
"Additional Downpayment"), on or before the second Business day following the
last day of the Due Diligence Period (hereinafter defined) payable as set forth
in subparagraph (i) above; and (iii) the balance of the Purchase Price by wire
transfer of immediately available federal funds, legal currency of the United
States of America, to the account or accounts designated by Seller on the
Closing Date.
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B. Seller and Purchaser agree that the value of the Personal
Property is DE MINIMIS and that no portion of the Purchase Price shall be
allocated to the Personal Property to be conveyed by Seller to Purchaser.
C. In the event Purchaser sells the Property prior to the date which
is three hundred sixty five (365) days after the date of Closing to an entity
which is not affiliated with Purchaser or Purchaser's primary investors (and for
purposes hereof, a sale shall be deemed to have occurred if and only if a deed
to the Property whenever same shall actually be recorded, based upon a contract
of sale entered into within such 365-day period), then concurrently therewith,
Purchaser shall pay to Seller a sum equal to the product of twenty percent
(20%), multiplied by the positive difference between (i) the net sales price
actually received by Purchaser in connection with the sale and (ii) the Purchase
Price. The net sales price shall take into account, only bona fide brokerage
commissions.
3. PERMITTED EXCEPTIONS. Subject to the terms of SECTION 9 hereof, the
Real Estate and the Fixtures shall be sold, and title thereto conveyed, subject
only to the matters set forth on EXHIBIT "D" attached hereto and made a part
hereof (collectively, the "PERMITTED EXCEPTIONS").
4. Closing; Due Diligence Period.
A. Subject to the provisions of this SECTION 4, the consummation of
the sale transaction contemplated hereby (the "CLOSING") shall take place on
October 31, 2005. The Closing shall take place at the offices of Xxxxxx LLP, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or the office of Purchaser's lender or its
counsel, provided such office shall be located in Manhattan (the date upon which
the Closing occurs being referred to herein as the "CLOSING DATE"). Purchaser
shall have the right, at its sole option, to extend the Closing Date for one (1)
additional thirty (30) day period by providing written notice thereof to Seller
not less than three (3) days prior to the originally scheduled Closing Date. If
Purchaser elects to extend the Closing Date, Purchaser shall, simultaneously
with giving each such written notice, deliver the additional sum of One Million
and No/100 Dollars ($1,000,000) to the Escrow Agent, to become a part of the
Downpayment.
B. From the date hereof until the date that is ten (10) Business
days after the later of the date hereof or the date that Seller advises
Purchaser in writing that it has obtained Board Approval (hereafter defined),
time being of the essence with respect to such date (such date being hereinafter
referred to as the "DUE DILIGENCE OUTSIDE DATE" and the period from the date of
this Agreement until and including the Due Diligence Outside Date being
hereinafter referred to as the "DUE DILIGENCE PERIOD"), Purchaser, at
Purchaser's sole cost and expense, shall have the right, subject to the rights
of Seller, Seller's affiliates and any Tenants, at reasonable times and on
reasonable prior notice to Seller, (i) to enter upon the Property to make
reasonable engineering tests and physical inspections and Seller shall
reasonably cooperate with Purchaser, or its agents, in arranging such tests and
inspections, and (ii) to inspect all Records (defined below); PROVIDED, HOWEVER,
that Purchaser prior to entering upon the Property shall first obtain and
maintain such commercial general liability insurance as provided below and shall
indemnify and hold harmless Seller as provided in SECTION 4D of this Agreement.
Within two (2) days after the date hereof, Seller shall deliver to Purchaser
true and complete copies of the materials described on EXHIBIT "E" attached
hereto (the "RECORDS"). If Purchaser does not terminate this
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Agreement pursuant to SECTION 4E hereof, its rights granted pursuant to the
preceding sentence of this SECTION 4B shall survive the Due Diligence Outside
Date and continue until the first to occur of (x) the Closing and (y) the
termination of this Agreement. All tests and studies to be performed by or on
behalf of Purchaser shall be undertaken in a manner (A) to minimize interference
with the use and operation of the Property by Seller and its Tenants and (B)
which is commercially reasonable and does not pose a material risk of damage or
injury to persons or the Property.
C. Prior to entering upon the Property and thereafter through the
Closing, Purchaser shall maintain or cause to be maintained, at Purchaser's
expense, a policy of comprehensive general public liability insurance, with a
broad form contractual liability endorsement and with a combined single limit of
not less than $2,000,000 per occurrence for bodily injury and property damage,
automobile liability coverage including owned and hired vehicles with a combined
single limit of $2,000,000 per occurrence for bodily injury and property damage,
insuring Purchaser and Seller as additional insureds, against any injuries or
damages to persons or property that may result from or are related to (i)
Purchaser's or its directors, officers, employees, affiliates, partners,
members, brokers, agents, or other representatives, including, without
limitation, attorneys, accountants, contractors, consultants, engineers and
financial advisors (collectively, "PURCHASER'S REPRESENTATIVES") entry upon the
Property, (ii) any investigations or other activities conducted thereon by
Purchaser or Purchaser's Representatives, and/or (iii) any and all other
activities undertaken by Purchaser and/or Purchaser's Representatives, all of
which shall be provided by an insurance company reasonably acceptable to Seller.
Purchaser shall deliver a certificate of insurance for such insurance policy to
Seller prior to the first entry by Purchaser or Purchaser's Representatives on
the Property.
D. Purchaser shall indemnify, defend and hold harmless Seller and
Seller's partners, and their respective principals, officers, directors,
employees, agents, contractors, Tenants and subtenants from and against any and
all loss, cost, expense, damage, claim and liability (including, without
limitation, reasonable attorneys' fees and disbursements), actually suffered or
incurred by Seller or any of such other entities or persons and arising out of
or in connection with (i) Purchaser's or Purchaser's Representatives entry upon
the Property, (ii) any investigations or other activities conducted thereon by
Purchaser or Purchaser's Representatives, and/or (iii) any and all other
activities undertaken by Purchaser and/or Purchaser's Representatives under this
Section 4. The provisions of this SECTION 4D shall survive the Closing or any
termination of this Agreement.
E. Notwithstanding any other provision set forth herein, Purchaser
may elect to terminate this Agreement for any reason or no reason during the Due
Diligence Period and have the Downpayment (to the extent delivered, and together
with all interest earned thereon) returned to Purchaser. If Purchaser elects to
terminate this Agreement pursuant to this SECTION 4E, Purchaser shall deliver a
written notice (a "TERMINATION NOTICE") to Seller and Escrow Agent on or before
the Due Diligence Outside Date, (which Termination Notice may be delivered by
facsimile). If Purchaser's Termination Notice is not received on or before the
expiration of the Due Diligence Outside Date, Purchaser shall be deemed to have
elected not to terminate this Agreement. In the event that Purchaser shall
deliver a Termination Notice to Seller and Escrow Agent terminating this
Agreement on or before the expiration of the Due Diligence Outside Date, except
as otherwise expressly provided herein, all parties shall be
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relieved of any further obligations or liabilities hereunder (other than
Purchaser's indemnities under SECTIONS 4D AND 22A hereof) and Escrow Agent shall
return to Purchaser the Downpayment (together with all interest earned thereon)
F. Subject to the terms of this Section 4F, it is agreed that after
the Closing Seller shall have the right to continue to occupy the entire
Property (the "Premises") for a period of time up to and including June 30, 2006
(such period of time that Seller actually remains in occupancy shall hereinafter
be referred to as the "Post Closing Occupancy Period"). The terms of the Post
Closing Occupancy Period shall be as follows:
(i) TERM: The term of the Post Closing Occupancy Period shall
be from and after the Closing through and including June 30, 2006, except that
Seller shall have the right, on at least thirty (30) days prior written notice
to Purchaser, to designate an earlier date upon which the Post Closing Occupancy
Period shall expire. Upon expiration of the Post Closing Occupancy Period,
Seller shall deliver possession of the Property to Purchaser, vacant, free of
all claims of occupancy and broom clean, reasonable wear and tear excepted.
(ii) RENT: Seller shall not be obligated to pay any rent
during the Post Closing Occupancy Period.
(iii) EXPENSES: During the Post Closing Occupancy Period,
Seller shall pay one hundred percent (100%) of the cost of operating the
Property, including, without limitations, all utility charges, including but not
limited to electricity, fuel and water and sewer charges, real estate taxes,
insurance (as previously maintained), operating expenses and maintenance and
general repairs (including but not limited to cleaning costs, but, specifically
not including structural repairs unless the need for such repairs is caused by
Seller), and all other costs which would customarily be paid in New York City in
connection with the ownership, operation and maintenance of the Property or
which have been previously incurred by Seller in connection with its ownership
and management of the Property.
(iv) PARKING: Seller shall be entitled to all of the parking
spaces in the garage in the Property, free of charge during that Post-Closing
Occupancy Period.
(v) INDEMNITY/HOLDING OVER/ENTRY OF JUDGMENT: The Seller
shall fully indemnify, defend and hold the Purchaser harmless from and against
any and all losses, costs, damages and/or expenses incurred by the Purchaser as
a result of the Seller's continued occupancy of the Premises during the Post
Closing Occupancy Period, including, without limitation, all such loss, costs or
expense caused by any damage or injury to the Property or any persons or
personal property. Should the Seller fail to deliver possession of the Premises
to the Purchaser as required pursuant to Subsection (ii) above on or before June
30, 2006, TIME BEING OF THE ESSENCE in addition to the Seller's continued
obligation for the payment of all expenses as set forth in Subsection (iv)
above, the Seller shall be liable to the Purchaser for the sum of $600,000 per
month or any portion thereof for all periods of time after June 30, 2006 through
and including the date that the Seller fully and actually vacates the Premises
as required herein. At the time of the Closing, the Seller shall execute and
deliver to the Purchaser such confessions of judgment or such other documents,
agreements or stipulations as are necessary for Purchaser to enter a Judgment of
Possession against Seller and to obtain a Warrant of Eviction forthwith to
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ensure that Seller vacates the Premises on June 30, 2006. Additionally, Seller
shall continue to carry insurance on the Premises and name Purchaser, its
lenders, agents as additional insureds and Seller shall fully cooperate with
Purchaser's lenders in connection with any reasonable requests such lenders may
have with respect to modifying Seller's insurance policies.
(vi) SURVIVAL: The terms and conditions of this Section 4F
shall survive the Closing of title hereunder.
5. VIOLATIONS. Subject to the terms of this SECTION 5 all violations of
law or municipal ordinances, orders or requirements noted in or issued by the
departments of buildings, fire, labor, health or other federal, state, county,
city or other departments and governmental agencies having jurisdiction against
or affecting the Property (collectively, the "VIOLATIONS"), noted against the
Property at any time prior to Closing shall be complied with by Seller, at its
sole cost and expense, on or before the Closing Date, or, at Seller's sole
option, at the Closing, Purchaser shall receive a credit against the Purchase
Price payable by Purchaser pursuant to SECTION 2 hereof in an amount equal to
the reasonable cost of cure for those Existing Violations which have not been
cured on or before the Closing Date. Notwithstanding the foregoing, if the
reasonable cost of curing such Violations exceeds $500,000 and Seller, in its
sole and absolute discretion, elects not to (x) cure, at its sole cost and
expense, such Violations to the extent the cost of cure such Violations exceeds
$500,000, or (y) allow Purchaser a credit against the Purchase Price in an
amount equal to the cost of cure for all of those Violations which have not been
cured on or before the Closing Date, then Purchaser shall have the right to
terminate this Agreement by notice to Seller on or before the Closing Date;
PROVIDED, HOWEVER, Seller shall have thirty (30) days from and after receipt of
such notice of termination by Purchaser in which to elect, in Seller's sole and
absolute discretion, to cure, at its sole cost and expense, all Violations on or
before the Closing Date or, at Seller's sole option, allow Purchaser a credit
against the Purchase Price payable by Purchaser pursuant to SECTION 2 hereof in
an amount equal to the reasonable cost of cure for all of those Violations which
have not been cured on or before the Closing Date, in which event Purchaser's
termination notice shall be null and void and Seller and Purchaser shall proceed
with the Closing. If Seller elects not to cure such Violations or allow
Purchaser such a credit against the Purchase Price and proceed with the Closing,
the provisions of SECTION 10 hereof shall apply. Provided that Purchaser does
not have the right to terminate this Agreement as aforesaid or elects not to
exercise such right to terminate this Agreement, any Violations shall be the
sole responsibility of Purchaser and Purchaser shall accept title to the
Property subject to such Violations without any additional abatement of the
Purchase Price. In furtherance of the foregoing, it is understood that in the
event that (i) the cost to comply with the Violations exceeds $500,000, (ii)
Seller elects not to cure such Violations and (iii) Purchaser nevertheless
elects to proceed with the Closing, then Purchaser shall be entitled to a credit
against the Purchase Price in the amount of $500,000. If Seller and Purchaser
are unable to agree upon the reasonable cost of complying with such Violations,
then Seller, at its sole cost and expense, shall retain an independent engineer
(i.e., an engineer not affiliated with Seller or any of Seller's affiliates in
any way) that is reasonably designated by Seller and reasonably approved by
Purchaser (the "VIOLATIONS ENGINEER") to estimate such cost, and the credit to
be received by Purchaser under this SECTION 5 shall be an amount equal to the
Violations Engineer's final determination of such cost of compliance, which
determination shall be in writing. Notwithstanding anything contained herein to
the contrary, Seller shall be responsible to cure all Violations affecting the
Property through and including the Post Closing Occupancy Period. In
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the event Seller is unable to cure such Violations through the Post Closing
Occupancy Period then in such event Purchaser may require Seller to pay to
Purchaser the reasonable cost of curing such Violations, as determined by
Purchaser's professionals, including the costs of any and all work necessary to
be performed to cure the Violations and all fines, penalties and interest in
connection therewith.
6. APPORTIONMENTS.
A. Subject to the terms of this SECTION 6, the following items,
without duplication, are to be apportioned between Seller and Purchaser with
respect to the Property as of 11:59 p.m., New York City time, on the date
immediately prior to the Closing Date, and at the Closing the net amount thereof
shall either be (x) paid by Purchaser to Seller by wire transfer of immediately
available federal funds to a bank account designated by Seller, or (y) credited
by Seller against the Purchase Price:
(i) real property taxes and assessments (including, if
applicable, any business personal property assessment);
(ii) water rates and charges, except those required to be paid
by Tenants directly to the entity imposing same;
(iii) sewer taxes and rents;
(iv) fuel and all other utilities, including, without
limitation, taxes thereon;
(v) deposits on account with any utility company servicing
the Property, to the extent transferred to Purchaser;
(vi) deposits on account with any municipality having
jurisdiction over the Property, to the extent transferred to Purchaser;
(vii) annual permit, license and inspection fees, if any, on
the basis of the fiscal year for which levied, if the rights with respect
thereto are transferable to Purchaser;
(viii) charges under the Third-Party Contracts that are in
effect on the Closing Date, if any;
(ix) building related inventory in unopened packages (provided
Seller provides reasonable substantiation for the cost thereof and a detailed
list of all such items to the extent not previously included in operating
expenses); and
(x) all other items that reasonably require apportionment in
accordance with local custom and practice to effectuate the transactions
contemplated hereby.
Seller shall provide a draft apportionment statement to Purchaser for
Purchaser's review and approval not less than five (5) business days prior to
the Closing Date. Seller and Purchaser shall adjust any apportionments made
under this SECTION 6 after the Closing to account for errors or
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incorrect estimates made as of the Closing Date (it being agreed that the
parties' aforesaid agreement to make such adjustments shall survive the Closing
for a period of twelve (12) months). Within twenty (20) days after the date
hereof, Buyer shall notify Seller in writing of those Third-Party Contracts that
Buyer elects not to assume ("REJECTED CONTRACTS"). Seller shall terminate all
Rejected Contracts, effective as of the Closing Date.
B. GOVERNMENTAL CHARGES. Apportionment of real property taxes, water
rates and charges, sewer taxes and rents and other similar items shall be made
on the basis of the fiscal year for which assessed. If the Closing Date occurs
before the real property taxes, water rates and charges, sewer taxes and rents
or similar items with respect to the Property are finally fixed for the fiscal
year in which the Closing occurs, then the apportionments thereof made at the
Closing shall be made on the basis of the real property taxes, water rates and
charges, sewer taxes and rents or other similar items, as the case may be, for
the preceding fiscal year applied to the latest assessed valuation. After the
real property taxes, water rates and charges, sewer taxes and rents or similar
items, as the case may be, are finally fixed for the fiscal year in which the
Closing occurs, Seller and Purchaser shall make a recalculation of the
apportionment thereof based on the amounts finally fixed for the fiscal year in
which the Closing occurs, and Seller or Purchaser, as the case may be, shall
make an appropriate payment to the other party based on such recalculation.
Seller or its representatives shall have the right (x) at any time before the
Closing, to institute tax reduction or other proceedings to reduce the assessed
valuation of the Real Estate with respect to the period ending at the end of the
fiscal year in which the Closing occurs, or (y) to continue, after the Closing,
any such proceedings commenced by Seller prior to the Closing, provided that
such proceeding shall not be finally settled by Seller without the prior consent
of Purchaser, which consent shall not be unreasonably withheld. If Purchaser, at
any time following the Closing, institutes tax reduction or other proceedings
not previously instituted by Seller to reduce the assessed valuation of the Real
Estate with respect to the period ending at the end of the fiscal year in which
the Closing occurs, then such proceeding shall not be finally settled by
Purchaser without the prior consent of Seller, which consent shall not be
unreasonably withheld. If any refund of any real property tax, water rates and
charges, sewer taxes and rents or similar items is issued after the Closing Date
for any period that includes the period prior to the Closing Date, then such
refund shall be applied as follows: first, to the cost incurred in obtaining
such refund; second, to any amount required to be refunded to the Tenants in
accordance with the terms of the Space Leases, to the extent applicable; and,
third, the balance of such refund, if any, shall be apportioned between Seller
and Purchaser as of the Closing Date.
C. WATER METERS. If there are any meters measuring water consumption
at the Real Estate (other than meters measuring water consumption for which a
Tenant is obligated to pay the charges therefor directly to the utility
company), Seller shall attempt to obtain meter readings to a date that is no
more than thirty (30) days before the Closing, and, if such readings are
obtained, the unfixed water rates and charges and sewer taxes and rents, if any,
based thereon for the intervening time, shall be apportioned on the basis of
such readings, or if such readings are not obtained, the unfixed water rates and
charges and sewer taxes and rents, if any, shall be apportioned upon the last
meter readings.
D. PAYMENT OF CERTAIN ITEMS. The amount of any unpaid taxes,
assessments, water rates and charges, sewer taxes and rents and any other
similar items which Seller is
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obligated to pay and discharge with respect to the Real Estate, with interest
and penalties thereon through the date which is two (2) business days after the
Closing Date, may, at the option of Seller, be allowed to Purchaser out of the
Purchase Price, provided that official bills therefor with interest and
penalties thereon are furnished by Seller at the Closing. Without limiting the
foregoing, Seller is solely obligated to pay and discharge any of the aforesaid
taxes, assessments, water rates and charges, sewer taxes and rents and other
similar items affecting the Real Estate that are delinquent as of the Closing
Date, subject to apportionment as herein provided.
E. FUEL OIL. Fuel oil, if any, owned by Seller and located at the
Real Estate on the Closing Date shall be adjusted at the cost thereof to Seller
on a first in-first out basis. Seller shall arrange for the amount of fuel oil
to be determined in writing by the fuel company presently supplying fuel to the
Real Estate as of a date which is not more than five (5) business days prior to
the Closing Date, and such documentation shall be provided to Purchaser for
verification.
F. ASSESSMENTS. If, on the Closing Date, the Real Estate, or any
part thereof, is affected by any real property tax assessments, then Seller
shall pay such assessments; provided, however, that if such assessments are
payable in installments, then Seller shall pay such installments due prior to
the Closing Date, and Purchaser shall pay such installments due after the
Closing Date.
G. SURVIVAL. The provisions of this SECTION 6 shall survive the
Closing.
7. CLOSING DOCUMENTS.
A. At the Closing, Seller, at Seller's sole cost and expense, shall
deliver to Purchaser the following:
(i) a certificate of Seller certifying that the execution and
delivery of the documents by Seller set forth herein have been duly authorized
by all necessary action of Seller and that such documents have been duly
executed and delivered by Seller;
(ii) a bargain and sale deed without covenants against
grantor's acts (the "DEED"), in the form of EXHIBIT "F" attached hereto and made
a part hereof, duly executed and acknowledged by Seller, so as to convey to
Purchaser all of Seller's right, title and interest in and to the Real Estate,
subject only to the Permitted Exceptions;
(iii) tax returns in respect of the New York State Real Estate
Transfer Tax (the "TP-584 FORM") and the New York City Real Property Tax (the
"NYC-RPT"), to the extent required in connection with the consummation of the
transaction contemplated hereby, both duly executed by Seller;
(iv) a Real Property Transfer Tax Report (the "RP-5217NYC"),
to the extent required in connection with the consummation of the transaction
contemplated hereby, duly executed by Seller;
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(v) a "non-foreign person affidavit" that meets the
requirements of Section 1445(b)(2) of the Internal Revenue Code of 1986, as
amended (the "TAX CODE"), containing Seller's taxpayer identification number;
(vi) a xxxx of sale, in the form of EXHIBIT "G" attached
hereto and made a part hereof, duly executed by Seller, so as to convey to
Purchaser all of Seller's right, title and interest in and to the Personal
Property existing as of the Closing Date, free and clear of all liens and
encumbrances other than the Permitted Exceptions;
(vii) an Assignment and Assumption of Contract Rights and
Third-Party Contracts (the "ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND
THIRD-PARTY CONTRACTS"), in the form of EXHIBIT "H" attached hereto and made a
part hereof, duly executed by Seller and/or Seller's agent, as the case may be,
so as to assign to Purchaser or Purchaser's agents from and after the Closing
Date all of Seller's and/or Seller's agents right, title and interest in and to
the Contract Rights and Third-Party Contracts that are in effect on the Closing
Date;
(viii) a certificate, from Seller, restating on and as of the
Closing Date, the representations made by Seller in SECTION 11A hereof, (such
certificate being referred to herein as the "SELLER'S UPDATE CERTIFICATE");
(ix) to the extent in the possession of Seller or Seller's
agents, all keys or key cards and alarm codes to, and all combinations to, any
locks on, all entrance doors to, and any equipment and utility rooms located in,
the Improvements, appropriately tagged for identification;
(x) to the extent in the possession of Seller or Seller's
agents, any as-built plans and specifications, mechanical, electrical and
plumbing layouts and operating manuals, surveys and certificates of occupancy
relating to the Property;
(xi) a non-multiple dwelling affidavit;
(xii) in the event there are any existing mortgages on the
Property, Seller shall cause Seller's mortgagee(s), at Closing, to assign such
mortgage(s) to Purchaser's acquisition lender; and
(xiii) any other documentation reasonably required to consummate
the transactions contemplated by this Agreement.
(xiv) evidence of termination of all Rejected Contracts.
B. At the Closing, Purchaser, at Purchaser's sole cost and expense,
shall deliver to Seller the following:
(i) in accordance with and subject to adjustment as provided
in this Agreement, the balance of the Purchase Price;
(ii) Purchaser's organizational documents, resolutions and
consents, as applicable, certified by a general partner, managing member or
officer, as the case may be, of
10
Purchaser as true, correct and complete, which evidence and certify that the
execution and delivery by Purchaser of this Agreement and the documents set
forth herein have been duly authorized by all necessary action of Purchaser and
that this Agreement and such documents have been duly executed and delivered by
Purchaser;
(iii) The TP-584 Form, the NYC-RPT and the RP-5217NYC, to the
extent required in connection with the consummation of the transaction
contemplated hereby, each duly executed by Purchaser;
(iv) the Assignment and Assumption of Contract Rights and
Third-Party Contracts, duly executed by Purchaser;
(v) a certificate, from Purchaser, restating on and as of the
Closing Date the accuracy of the representations made by Purchaser in SECTION
11C hereof (such certificate being referred to herein as the "PURCHASER'S UPDATE
CERTIFICATE"); and
(vi) any other documentation reasonably required to consummate
the transactions contemplated by this Agreement.
C. At the Closing, Seller shall pay, to the extent applicable, the
State of New York Real Estate Transfer Tax and the New York City Real Property
Transfer Tax. The provisions of this SECTION 7C shall survive the Closing.
D. At the Closing, Purchaser shall pay any applicable (i) title
insurance costs and premiums, (ii) survey fees, (iii) recordation fees, and (iv)
escrow fees, if any.
8. INTENTIONALLY DELETED.
9. TITLE INSURANCE.
A. Seller has heretofore provided to Purchaser from Commonwealth
Land Title Insurance Company a title insurance report and commitment for a title
insurance policy (the "Initial Title Report") with respect to the interests in
the Real Estate to be conveyed by Seller to Purchaser hereunder. Purchaser may
order an update of the Initial Title Report and/or new title report and
commitment for title insurance from any reputable duly licensed title insurance
company or abstract company selected by Purchaser (the "Title Insurer") which
policy shall be in the form currently used by reputable title insurers in the
State of New York (such report and such commitment and any updates thereto
issued by the Title Insurer in connection with this Agreement being referred to
herein as the "COMMITMENT"). Purchaser shall, upon receipt, provide to Seller's
attorneys a copy of the Commitment and any update to the Commitment issued by
the Title Insurer on or prior to the Closing Date (an "UPDATE"), together with
copies of all Exceptions listed thereon that Purchaser has not previously
delivered copies of to Seller, promptly after Purchaser's receipt thereof.
Except as expressly provided in this Agreement, Seller shall have no obligation
to remove any Exception. If the Commitment or any Update discloses any Exception
that is not a Permitted Exception and to which Purchaser objects, then Purchaser
shall give a written notice (a "TITLE NOTICE") to Seller on or prior to the
fifth (5th) day after the date upon which Purchaser receives the Update first
containing such Exception (but in any event not later than the Closing), as
applicable, which notice shall identify any such
11
Exception. Any Exceptions contained in the Commitment or any Update not included
in a Title Notice timely given in accordance with the preceding sentence shall
be deemed Permitted Exceptions. If Seller elects not to eliminate any Exception
set forth in a Title Notice that is not a Permitted Exception and that Seller is
not obligated to remove pursuant to this SECTION 9, then Seller shall so notify
Purchaser within fifteen (15) days after Seller's receipt of such Title Notice
(but in any event not later than the Closing); provided, however, if Seller
fails to so notify Purchaser within such 15-day period, Seller shall be deemed
to have elected not to eliminate such Exception. Purchaser, within ten (10) days
after Seller's giving of such notice, or failure to give such notice, but in any
event not later than the Closing, shall either (i) elect to terminate this
Agreement by notice given to Seller, in which event the provisions of SECTION 10
hereof shall apply, or (ii) elect to accept title to the Property subject to
such Exception, without any abatement of the Purchase Price (it being understood
that if Purchaser elects, or is deemed to have elected, to proceed under this
clause (ii), then such Exception shall constitute a Permitted Exception for
purposes hereof). If Purchaser fails to make such election to terminate this
Agreement within such ten (10) day period, then Purchaser shall be deemed to
have elected clause (ii) above with the same force and effect as if Purchaser
had elected clause (ii) within such ten (10) day period.
B. Notwithstanding anything to the contrary contained in SECTION 9A
hereof, if the Commitment discloses judgments, bankruptcies or other returns
against other persons or entities having names the same as or similar to that of
Seller, then Seller, on request and to the extent applicable, shall deliver to
Purchaser or the Title Insurer affidavits (in a form reasonably requested by the
Title Insurer) to the effect that such judgments, bankruptcies or other returns
are not against Seller. In addition, if the Commitment or any Update discloses
any exception, lien, mortgage, security interest, claim, charge, reservation,
lease, tenancy, occupancy, easement, right of way, encroachment, restrictive
covenant, condition, limitation, judgment, lien (including mechanic's lien) or
other encumbrance affecting the Property (collectively, "EXCEPTIONS"), other
than the Permitted Exceptions, which in each case (a) may be eliminated solely
by delivery of an affidavit reasonably requested by the Title Insurer that can
be delivered by Seller or by reference to the title policy insuring Seller's
interest in the Property, (b) Seller willfully placed of record, (c) was created
as a result of an act or omission of Seller which constitutes a breach of a
covenant by Seller under this Agreement, or (d) may be satisfied by the payment
of a liquidated sum of money (an Exception meeting the criteria set forth in
clauses (a), (b), (c) or (d) being referred to as a "REMOVABLE EXCEPTION"),
then, in any such case, Seller shall take such action as is required on the part
of Seller to have such Exception removed by the Title Insurer.
C. Seller shall exercise due diligence in removing any Removable
Exceptions and any Exceptions that Seller elects to remove pursuant to this
SECTION 9; provided, however, that Seller shall be entitled to one (1) or more
adjournments of the Closing for a period of time not to exceed thirty (30) days
in the aggregate in order to remove any Removable Exceptions or any Exceptions
that Seller elects to remove pursuant to this SECTION 9. If Seller is unable to
remove, or cause the removal of, any Exception (which is not a Permitted
Exception or a Removable Exception), then Seller shall so notify Purchaser, and
Purchaser, within ten (10) days thereafter, but in any event not later than the
Closing, shall either (i) elect to terminate this Agreement by notice given to
Seller, in which event the provisions of SECTION 10 hereof shall apply, or (ii)
elect to accept title to the Property subject to such exception, without any
abatement of the Purchase Price (it being understood that if Purchaser elects,
or is deemed to have elected,
12
to proceed under this clause (ii), then such exception shall constitute a
Permitted Exception for purposes hereof). If Purchaser shall not make such
election to terminate this Agreement within such ten (10) day period, then
Purchaser shall be deemed to have elected clause (ii) above with the same force
and effect as if Purchaser had elected clause (ii) within such ten (10) day
period.
10. RETURN OF DOWN PAYMENT. Subject to Seller's obligations under SECTION
9 hereof, if Seller is unable to convey title to the Real Estate in accordance
with the terms of this Agreement and if Purchaser is entitled to and elects to
terminate this Agreement in accordance with SECTION 9 hereof, or if Purchaser
otherwise terminates this Agreement pursuant to any right to do so in accordance
with the provisions hereof (including, without limitation, SECTION 4E hereof),
then Seller shall cause Escrow Agent to refund to Purchaser the Downpayment
(together with all interest thereon, if any), whereupon this Agreement shall
terminate and neither party to this Agreement shall thereafter have any rights
or obligations hereunder, at law or in equity for damages or otherwise (other
than any such rights or such obligations which are expressly stated in this
Agreement to survive the termination hereof).
11. REPRESENTATIONS.
A. Subject to SECTION 11B hereof, Seller hereby represents and
warrants to Purchaser that:
(i) Seller is corporation, duly organized and validly
existing under the laws of the State of Delaware, and duly qualified to do
business in the State of New York. Seller's tax identification number is
------------;
(ii) Seller has the power and authority to own and operate the
Property and to execute and deliver, and perform Seller's obligations under,
this Agreement;
(iii) Seller's execution and delivery of this Agreement, and
the performance of Seller's obligations hereunder, have been authorized by all
necessary action on the part of Seller;
(iv) Seller shall immediately hereafter use its best efforts
to call a special meeting of its Board of Directors in order to obtain all
necessary consents for Seller to enter into this Agreement and perform its
obligations hereunder ("Board Approval") on or before the Due Diligence Outside
Date. In the event Seller does not obtain Board Approval on or before the Due
Diligence Outside Date and Purchaser elects to terminate the Agreement as a
result thereof then in such event Seller shall immediately reimburse Purchaser
for all of its out of pocket expenses incurred in connection with Purchaser's
due diligence efforts, relating title work, survey, and structural and
environmental inspections ("Purchaser's Expenses"). In the event Seller fails to
pay Purchaser's Expenses upon demand therefore then Seller shall be responsible
to pay Purchaser's reasonable attorney's fees in connection with any action
commenced to recover Purchaser's Expenses. This provision shall survive closing
and not be limited by any survival periods contained in this Agreement.
(v) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby by Seller do not
violate any provision of, or cause a default under, or result in the
acceleration of any obligation under, any agreement
13
which will be in effect on and after the Closing to which Seller is a party or
any law, statute, rule, ordinance, regulation or requirement by which Seller or
the properties, assets, business or operations of Seller may be bound or
affected, do not require the consent or approval of any court, administrative or
governmental authority and do not result in the creation or imposition of any
lien or equity of any kind whatsoever upon, or give to any other person any
interest or right (including any right of termination or cancellation) in or
with respect to, any agreement to which Seller is a party or the business or
operations of Seller or any of its properties or assets which in any such case
are material to the Property;
(vi) besides Seller and its subtenant/licensees, there are no
parties in possession of all or any portion of the Property, and there are no
leases, licenses or occupancy agreements of any kind which affect the Property
or which will be binding on Purchaser from and after the Closing, and all such
subtenants and licensees of Seller shall have fully vacated the Premises on or
before the end of the Post Closing Occupancy Period;
(vii) the copies of the Third-Party Contracts in hard copy form
initialed by Seller and Purchaser and heretofore delivered to Purchaser by or on
behalf of Seller are true, correct and complete, and represent all Third-Party
Contracts in effect as of the date hereof;
(viii) Seller is not a party to any pending action, suit,
condemnation or eminent domain proceeding, or other litigation or proceeding
with respect to the Property and Seller has no actual knowledge of the existence
or threat of any such action;
(ix) Neither Seller nor Seller's agents is or has committed to
become a party and/or signatory to any collective bargaining agreement or other
union agreement relating to the Real Estate or the Additional Property which
will be binding on Purchaser following the Closing, except for its housekeeping
and building maintenance contracts.
(x) During Seller's ownership of the Property, Seller has not
stored, disposed of or treated any hazardous wastes or hazardous materials at
the Property, except for such materials as are customarily used in the operation
of a commercial office building and in accordance with all applicable laws,
rules and regulations.
(xi) Attached hereto as Exhibit K are copies of the most
recent temporary certificate(s) of occupancy for the Property. To Seller's
actual knowledge, all required certificates of occupancy, underwriters'
certificates, zoning, building, housing, safety, fire, health, environmental and
similar governmental approvals and all permits and licenses necessary to
maintain, operate and use the Property in the manner in which the same are
presently being maintained, operated and used have been issued and are valid and
in full force and effect. None of the foregoing is in the nature of a
conditional use permit, variance or other special approval. To Seller's actual
knowledge, all of the foregoing are, to the extent required, assignable and
transferable to Buyer without the consent or approval of any person or entity or
the payment of any fee or charge. Seller has not received any notice revoking
any certificate of occupancy for the improvements located at the Property and
Seller has no knowledge of any alterations performed or alteration applications
on file which would require an amendment of any certificate of occupancy. To the
best of Seller's actual knowledge, the use being made of the Property at
14
present is materially in conformity with the temporary certificate of occupancy
and the Board of Fire Underwriters certificate issued for the Property, if any.
(xii) Seller represents and warrants to Buyer that it has
received no notice, and has no knowledge, of any unconfirmed or pending
assessments against the Property.
B. The representations set forth in SECTION 11A hereof, as updated by
the Seller's Update Certificate, shall survive the Closing until the Outside
Date, where defined. Within fifteen (15) Business days after Purchaser's
actual discovery of any misrepresentation of Seller made under SECTION 11A
hereof, as updated by the Seller's Update Certificate (collectively, "SELLER
MISREPRESENTATIONS"), but in no event later than the Outside Date, Purchaser
shall give Seller written notice identifying such Seller Misrepresentation.
Notwithstanding anything herein to the contrary, Seller's liability for Seller
Misrepresentations shall not exceed an amount equal to five million Dollars
($5,000,000), in the aggregate. Purchaser shall not make any claim and is not
entitled to any damages or remedies against Seller with respect to any Seller
Misrepresentations, unless and until Purchaser's actual damages (but not
compensatory, consequential or punitive damages) resulting from all such claims
exceed an amount equal to Twenty Fifty Thousand and No/100 Dollars ($25,000), in
the aggregate. Notwithstanding the forgoing, Purchaser shall have the right to
make a claim against Seller prior to the resolution of any such claim under its
title insurance coverage or under any other remedies available to it solely for
the purpose of raising such claims against Seller prior to the Outside Date, it
being understood that Purchaser may not pursue such claims until final
resolution of any claims it may have under any title insurance coverage or as a
result of any other remedies available to it. Any claim by Purchaser with
respect to Seller Misrepresentations shall be effective and valid only if made
in writing against Seller on or prior to the Outside Date. Seller shall have a
reasonable period of time (not to exceed sixty (60) days) after receipt of
written notice of such a claim to cure any Seller Misrepresentation resulting in
such claim. If (x) Purchaser, at any time prior to the Closing, has actual
knowledge that any of the representations set forth in SECTION 11A hereof were
untrue in any material respect when made (or Purchaser is deemed to have
knowledge that any of the representations set forth in SECTION 11A hereof were
untrue in any material respect when made, as provided below), or (y) Purchaser,
at the Closing, has actual knowledge that any of the representations made by
Seller in the Seller's Update Certificate are untrue in any material respect (or
Purchaser is deemed to have knowledge that any of the representations set forth
in the Seller's Update Certificate are untrue in any material respect, as
provided below), then Purchaser's sole remedy for any such misrepresentation by
Seller shall be to terminate this Agreement by giving notice thereof to Seller
on or prior to the Closing Date, in which event the provisions of SECTION 10
hereof shall apply. If Purchaser fails to deliver such termination notice to
Seller on or prior to the Closing Date, then Purchaser shall proceed to Closing
in accordance with the terms hereof and Seller, after the Closing, shall have no
liability whatsoever to Purchaser with respect to any such misrepresentation of
which Purchaser has knowledge, or is deemed to have knowledge, as of the Closing
Date. As used herein the term Outside Date shall mean the date which is twelve
(12) months following the last day of the Post-Closing Occupancy Period.
C. Purchaser hereby represents and warrants to Seller that:
15
(i) Purchaser is a limited liability company duly organized
and validly existing under the laws of the State of New York. Purchaser's tax
identification number is __________;
(ii) Purchaser has the power and authority to conduct its
business and to execute and deliver, and perform Purchaser's obligations under,
this Agreement;
(iii) Purchaser's execution and delivery of this Agreement, and
the performance of Purchaser's obligations hereunder, have been authorized by
all necessary action on the part of Purchaser;
(iv) all necessary consents for Purchaser to enter into this
Agreement and perform its obligations hereunder have been obtained and there are
no pending actions or investigations the outcome of which could adversely affect
Purchaser's ability to perform Purchaser's obligations hereunder; and
(v) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby by Purchaser does
not violate any provision of, or cause a default under, or result in the
acceleration of any obligation under, any agreement to which Purchaser is a
party or any law, statute, rule, ordinance, regulation or requirement by which
Purchaser or the properties, assets, business or operations of Purchaser may be
bound or affected; do not require the consent or approval of any court,
administrative or governmental authority; and do not result in the creation or
imposition of any lien or equity of any kind whatsoever upon, or give to any
other person any interest or right (including any right of termination or
cancellation) in or with respect to, any agreement to which Purchaser is a party
or the business or operations of Purchaser or any of its properties or assets.
12. NO IMPLIED REPRESENTATIONS. Purchaser represents, warrants and agrees
(i) that Purchaser has examined and understands the operation and/or condition
of the Property, (ii) that Purchaser has made such examination of the operation,
income and expenses of the Property, as well as all other matters and documents
affecting or relating to this transaction, as Purchaser deemed necessary, and
(iii) that, except for the express representations and warranties of Seller set
forth in this Agreement, neither Seller nor its affiliates, or any employees,
agents, attorneys, partners, members, officers, directors, advisors or property
manager of Seller or its affiliates have made any verbal or written
representations, warranties or statements of any nature or kind whatsoever to
Purchaser, whether expressed or implied, and, in particular, but except as
expressly provided herein, no representations or warranties have been made with
respect to (a) the physical condition or operation of the Property (including,
without limitation, (I) the absence or presence of hazardous substances at, in
or adjacent to the Property, or (II) the compliance of the Property with
applicable legal or insurance requirements regarding hazardous substances), (b)
the revenues and expenses of the Property, (c) the zoning and other laws,
regulations and rules applicable to the Property or the compliance of the
Property therewith, (d) the Third- Party Contracts, and the Contract Rights, (e)
the occupancy of the Real Estate or any part thereof, (f) the quantity, quality
or condition of the Fixtures, or (g) any other matter or thing affecting or
related to the Property or the transactions contemplated hereby, except as and
solely to the extent expressly set forth in this Agreement. Purchaser agrees
that Seller shall not be bound in any manner whatsoever by any guarantees,
promises, projections, or other information pertaining to
16
the Property made, furnished or claimed to have been made or furnished by Seller
or any affiliates, employees, agents, attorneys, partners, members, officers,
directors, advisors or property manager of Seller or any broker, whether
verbally or in writing, except as expressly set forth in this Agreement.
Purchaser acknowledges and agrees that, except as otherwise expressly provided
in this Agreement, Purchaser agrees to take the Property on an "as is, where-is"
basis, with all faults, in substantially its present condition, subject to
ordinary use, wear and tear and natural deterioration and any Space Lease Action
(hereinafter defined) between the date hereof and the Closing and subject to
casualty and condemnation to the extent provided in this Agreement. Purchaser
hereby waives, to the extent permitted by law, any and all implied warranties.
13. OPERATION DURING THE CONTRACT PERIOD.
A. MAINTENANCE. Subject to this SECTION 13 and SECTION 14 hereof,
between the date hereof and the Closing (such period hereinafter referred to as
the "CONTRACT PERIOD"), Seller shall keep and maintain the Improvements and the
Additional Property in the manner currently maintained and operated by Seller
(excepting only ordinary wear and tear and natural deterioration). Seller shall
not enter into any Space Leases.
B. THIRD-PARTY CONTRACTS. Seller or its agents, during the Contract
Period, may enter into contracts with third-parties relating to the Real Estate
or the Additional Property to the extent reasonably necessary for the operation
of the Property during the Contract Period, provided that each such third-party
contract is terminable by Seller (or its agent) upon Closing.
C. PERSONAL PROPERTY. Subject to SECTION 1D hereof and to this
SECTION 13C, Seller, during the Contract Period, shall not remove from the
Property any item of Personal Property included in the sale, unless such item,
in each case, is replaced with a similar item of comparable utility and value.
D. CONTRACT RIGHTS. Seller, during the Contract Period, (i) shall
exercise all rights and comply with all obligations under the Contract Rights in
substantially the same manner as it generally did prior to the date hereof, and
(ii) shall not amend or modify any permits with respect to the Improvements and
the Additional Property.
E. INSURANCE. During the Contract Period, Seller shall maintain the
same insurance coverage with respect to the Property as it maintains on the date
hereof, to the extent that such insurance coverage remains available at
commercially reasonable rates.
F. EMPLOYEES. During the Contract Period, Seller shall not hire any
employees related to the operation of the Property.
G. FACADE WORK.: During the Contract Period, and prior to Closing,
Seller shall perform and complete the ongoing work pertaining to the facade of
the Property. Prior to Closing, Seller shall provide reasonable written evidence
to Purchaser that all of the facade work has been completed and paid for in full
and that applicable governmental authorities have confirmed in writing that such
work complies in all respects with applicable law.
17
H. PURCHASER'S MARKETING RIGHTS. During the Contract Period, the
Purchaser shall have the right to market space within the Property to let, but
may not place signs on or about the building in connection with such marketing
without the prior written consent of Seller, which consent may be withheld in
Seller's sole discretion, and shall have reasonable access to all portions of
the Property at all times on reasonable notice for the purpose of showing the
same to prospective lenders, tenants or other occupants.
I. CERTIFICATE OF OCCUPANCY. Until the end of the Post Closing
Occupancy Period, Seller shall take whatever action is reasonably necessary and
perform any work to the Property that Seller is currently aware is required to
obtain a permanent certificate of occupancy.
14. CASUALTY AND CONDEMNATION. If, prior to the Closing Date, (i) any
portion of the Real Estate is damaged or destroyed by fire or other casualty and
the reasonable cost to repair same exceeds an amount equal to Two Million and
No/100 Dollars ($2,000,000), (ii) a portion of the Real Estate is taken by
eminent domain (or is the subject of a pending or contemplated taking which has
not been consummated) and the remaining portion of the Real Estate cannot be
reasonably expected to be operated in a manner that yields substantially the
same economic return on Purchaser's investment as the Real Estate immediately
prior to such taking or (iii) at least five percent (5%) of the gross area of
the Improvements is taken by eminent domain (or is the subject of a pending or
contemplated taking which has not been consummated), then Seller shall notify
Purchaser of such fact and Purchaser shall have the option to terminate this
Agreement upon notice to Seller given not later than ten (10) business days
after Seller gives such notice to Purchaser. If this Agreement is terminated
pursuant to this SECTION 14, then neither party shall thereafter have any rights
or obligations hereunder (other than any such rights or such obligations that
are expressly stated herein to survive the termination hereof), except that
Seller shall cause Escrow Agent to pay the Downpayment (together with all
interest thereon, if any) to Purchaser. If Purchaser does not elect to terminate
this Agreement or has no right to terminate this Agreement pursuant to this
SECTION 14, then (v) Purchaser shall accept so much of the Real Estate as
remains after such casualty or taking in its "as-is" condition with no abatement
of the Purchase Price, (w) at the Closing, Seller shall assign and turn over to
Purchaser, and Purchaser shall be entitled to receive and keep, all of Seller's
interest in and to (I) all insurance proceeds for such casualty (including any
rent loss insurance to the extent assignable), and (II) all awards for such
taking by eminent domain, less, in either case, costs incurred by Seller to
collect the same and the portion thereof that Seller uses to make repairs to the
Real Estate or the Additional Property, (x) at the Closing, Seller shall assign
to Purchaser all of Seller's rights under, and Purchaser shall assume Seller's
obligations thereafter arising under, the contracts to which Seller is a party
with respect to any such repair or restoration of the Real Property or the
Additional Property after any such casualty or taking, (y) Seller shall pay to
Purchaser the deductible under Seller's insurance policies in connection with a
casualty, and (z) Seller shall not adjust and/or settle with any insurance
company or governmental authority without the consent of Purchaser, not to be
unreasonably withheld.
15. INTENTIONALLY DELETED.
16. LIMITATION ON SELLER'S PERSONAL LIABILITY. A. Purchaser agrees that
it shall not look to Seller's directors, officers, employees, shareholders,
members, partners, affiliates or agents, to enforce Purchaser's rights
hereunder, and that none of the directors, officers, employees,
18
shareholders, members, partners, affiliates or agents of Seller shall have any
personal obligation or liability hereunder, and that Purchaser shall not seek to
assert any claim or enforce any of Purchaser's rights hereunder against any
directors, officers, employees, shareholders, members, partners, affiliates or
agents of Seller or against any other person, partnership, limited liability
company, corporation or trust, as principal of Seller, whether disclosed or
undisclosed.
B. Seller agrees that it shall not look to Purchaser's directors,
officers, employees, shareholders, members, partners, affiliates or agents, to
enforce Seller's rights hereunder, and that none of the directors, officers,
employees, shareholders, members, partners, affiliates or agents of Purchaser
shall have any personal obligation or liability hereunder, and that Seller shall
not seek to assert any claim or enforce any of Seller's rights hereunder against
any directors, officers, employees, shareholders, members, partners, affiliates
or agents of Purchaser or against any other person, partnership, limited
liability company, corporation or trust, as principal of Purchaser, whether
disclosed or undisclosed.
C. The provisions of this SECTION 16 shall survive the Closing.
17. SELLER'S DEFAULT. If Seller defaults in the performance of Seller's
material obligations hereunder (of which default Purchaser shall notify Seller
and give Seller a reasonable period of time to cure, not to exceed thirty (30)
calendar days), then Purchaser, as Purchaser's sole remedy, may either (i)
terminate this Agreement by giving notice thereof to Seller and upon the giving
of such notice this Agreement shall terminate and thereafter neither party shall
have any further rights or obligations hereunder at law or in equity, for
damages or otherwise (other than any such rights or such obligations that are
expressly stated herein to survive the termination hereof), except that, subject
to the terms of the Escrow Agreement, Escrow Agent shall deliver the Downpayment
(together with all interest thereon, if any) to Purchaser, or (ii) bring an
action against Seller to seek specific performance of Seller's material
obligations hereunder. The terms of this SECTION 17 shall survive the
termination of this Agreement.
18. PURCHASER'S DEFAULT. If Purchaser defaults in its obligation to close
in accordance with this Agreement, then, Seller's sole remedy shall be to
terminate this Agreement by giving notice thereof to Purchaser, and, upon the
giving of such notice, this Agreement shall terminate and neither party shall
thereafter have any rights or obligations hereunder (other than any such rights
or such obligations that are expressly stated in this Agreement to survive the
termination thereof), except that, subject to the terms of the Escrow Agreement,
Escrow Agent shall deliver the Downpayment (together with all interest thereon,
if any) to Seller, as liquidated damages and as Seller's sole and absolute
remedy. If Purchaser defaults in the performance of any of Purchaser's other
obligations hereunder (of which default Seller shall notify Purchaser and give
Purchaser a reasonable period of time to cure, not to exceed fifteen (15)
calendar days), then Purchaser shall be liable to Seller for Seller's actual
damages (but not compensatory, consequential or punitive damages) as a result of
such default. The terms of this SECTION 18 shall survive the termination of this
Agreement.
19. CONDITIONS PRECEDENT.
A. Subject to the terms of this Agreement, Purchaser shall have no
obligation to consummate the transaction contemplated hereby at the Closing
unless (I) all of Seller's
19
representations as set forth in SECTION 11A hereof, as the same may be updated
by Seller's Update Certificate, are true and correct in all material respects on
the Closing Date, (II) the Seller's Update Certificate indicates that Seller's
representations as set forth in SECTION 11A hereof are true and correct in all
material respects on and as of the Closing Date without being modified as of the
Closing Date to reflect changed facts or circumstances, (III) Seller has
performed in all material respects the material obligations on Seller's part to
be performed hereunder on or prior to the Closing Date, and (IV) any other
conditions precedent set forth herein to Purchaser's obligation to consummate
the transaction contemplated hereby have been satisfied in all material respects
(it being understood that Purchaser shall have the right to waive any such
conditions precedent to Purchaser's obligation to consummate the transaction
contemplated hereby). In addition, subject to the terms of this Agreement,
Purchaser shall have no obligation to consummate the transaction contemplated
hereby at the Closing in the event that (I) Seller's Update Certificate
indicates a material variance in any factual matter from Seller's
representations as set forth in SECTION 11A and (II) such variance is the result
of the failure by Seller to comply with its obligations hereunder. If Purchaser
elects to proceed to the Closing with actual knowledge (as such term is used in
SECTION 11B hereof) of (i) a default in any of the covenants, agreements or
obligations to be performed by Seller under this Agreement, and/or (ii) an
inaccuracy in or untruthfulness of any representation or warranty of Seller made
in this Agreement, then, upon the consummation of the Closing, Purchaser shall
be deemed to have waived any such default and/or inaccuracy and shall have no
claim against Seller on account thereof.
B. Subject to the terms of this Agreement, Seller shall have no
obligation to consummate the transaction contemplated hereby at the Closing
unless (i) all of Purchaser's representations as set forth herein are true and
correct in all material respects when made, (ii) Purchaser has performed all of
the obligations on Purchaser's part to be performed on or prior to the Closing
Date, (iii) the Purchaser's Update Certificate indicates that Purchaser's
representations as set forth in SECTION 11C hereof are true and correct as of
the Closing Date without being modified as of the Closing Date to reflect
changed facts or circumstances, and (iv) any other conditions precedent set
forth herein to Seller's obligation to consummate the transaction contemplated
hereby have been satisfied (it being understood that Purchaser shall have the
right to waive any such conditions precedent to Seller's obligation to
consummate the transaction contemplated hereby). If Seller elects to proceed to
the Closing with actual knowledge of (i) a default in any of the covenants,
agreements or obligations to be performed by Purchaser under this Agreement,
and/or (ii) an inaccuracy in or untruthfulness of any representation or warranty
of Purchaser made in this Agreement, then, upon the consummation of the Closing,
Seller shall be deemed to have waived any such default and/or inaccuracy and
shall have no claim against Purchaser on account thereof.
20. NOTICES. All notices, demands or requests made pursuant to, under or
by virtue this Agreement (in each case, a "NOTICE") must be in writing and sent
to the party to which the Notice is being made by certified or registered mail,
return receipt requested, commercial overnight delivery service, facsimile
transmission with a confirmation of receipt or delivered by hand with receipt
acknowledged in writing as follows:
20
To Seller:
Xxxxx Xxxxxxxx U.S.A., Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Facsimile No. (000) 000-0000
with a copy to:
Xxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No. (000) 000-0000
To Purchaser:
00 Xxxx 00xx Xxxxxx Realty, LLC
c/o Crown Acquisitions, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
Facsimile No. (000) 000-0000
with a copy to:
Xxxxxxx & Masyr, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile No. (000) 000-0000
All Notices (i) shall be deemed given upon (x) the date which is three (3)
business days after the date the same is deposited with the United States Postal
Service, in the case of Notices delivered by registered or certified mail, or
(y) the date of delivery of such Notice or refusal to accept delivery of such
Notice, in the case of notices given by commercial overnight delivery service,
facsimile transmission or hand delivery, and (ii) may be given either by a party
hereto or by such party's attorney set forth above.
ASSIGNMENT OF AGREEMENT. Purchaser shall have the right to assign this
Agreement to an entity to be formed in which Xxxxxxx Xxxxx and/or his affiliates
shall be a principal. Purchaser shall not otherwise assign its rights under this
Agreement or delegate Purchaser's duties hereunder, without the prior written
consent of Seller, which consent may be withheld, delayed and conditioned by
Seller in its reasonable discretion.
21
21. BROKER.
A. Purchaser represents and warrants to Seller that Purchaser dealt
with no broker, finder or salesperson in connection with this Agreement other
than CBRE Xxxxxxx Xxxxx ("PURCHASER'S BROKER"). Seller represents and warrants
to Purchaser that Seller dealt with no broker, finder or salesperson in
connection with this Agreement other than Purchaser's Broker. Purchaser shall be
solely responsible for the payment of any commissions owed to Purchaser's Broker
and Seller shall have no responsibility therefor.
B. Purchaser shall indemnify Seller, and hold Seller harmless, from
and against, any and all losses, damages, liabilities, costs and expenses
(including without limitation, reasonable attorneys' fees and disbursements)
incurred by Seller to the extent arising out of a claim for commission or other
compensation made by a broker, finder or other person (other than Purchaser's
Broker) with whom Purchaser dealt in connection herewith.
C. Seller shall indemnify Purchaser, and hold Purchaser harmless,
from and against, any and all losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by Purchaser to the extent arising out of a claim for commission or
other compensation made by a broker, finder or other person (other than
Purchaser's Broker) with whom Seller dealt in connection herewith.
D. The provisions of this SECTION 22 shall survive the Closing.
22. LIKE-KIND EXCHANGE.
A. Purchaser, at the request of Seller, agrees to cooperate
reasonably with Seller so that Seller may dispose of the Real Estate in a
transaction intended to qualify in whole or in part as a tax-deferred exchange
pursuant to Section 1031 of the Tax Code. In order to implement such exchange,
(i) Seller, upon written notice to Purchaser, shall assign its rights, but not
its obligations, under this Agreement to a third party designated by Seller to
act as a qualified intermediary (as such phrase is defined in applicable
regulations issued under the Tax Code), (ii) Purchaser shall, and hereby agrees
to, acknowledge such assignment and make all payments due hereunder to or as may
be directed by such intermediary and (iii) at Closing, Seller shall convey the
Real Estate directly to Purchaser; provided, however, that (w) Purchaser's
cooperation shall be limited to the actions specifically contemplated by the
preceding sentence; (x) none of Purchaser's rights or obligations hereunder
shall be affected or modified in any way, nor shall any time periods contained
herein be affected in any way; (y) Purchaser shall have no responsibility or
liability to Seller or any other person for the qualification of Seller's
purported exchange transaction under Section 1031 of the Tax Code other than as
a result of Purchaser's failure to perform the actions specifically contemplated
by the preceding sentence and (z) Purchaser shall not be required to incur any
additional expense (unless reimbursed by Seller) or liability (other than to a
DE MINIMIS extent) as a result of such cooperation, exchange or assignment.
Seller hereby agrees to and shall save, defend, indemnify and hold Purchaser
harmless from and against any and all liability incurred by Purchaser as a
result of any such cooperation, exchange or assignment.
22
B. Seller, at the request of Purchaser, agrees to cooperate
reasonably with Purchaser so that Purchaser may acquire the Real Estate as
"replacement property" in a transaction intended to qualify in whole or in part
as a tax-deferred exchange pursuant to Section 1031 of the Tax Code. In order to
implement such exchange, (i) Purchaser, upon written notice to Seller, shall
assign its rights, but not its obligations, under this Agreement to a third
party designated by Purchaser to act as a qualified intermediary, (ii) Seller
shall, and hereby agrees to, acknowledge such assignment and to accept payment
of all or a portion of the Purchase Price from the intermediary and (iii) at
Closing, Seller shall convey the Real Estate directly to Purchaser; PROVIDED,
HOWEVER, that (w) Seller's cooperation shall be limited to the actions
specifically contemplated by the preceding sentence, (x) none of Seller's rights
or obligations hereunder shall be affected or modified in any way, nor shall any
time periods contained herein be affected in any way; (y) Seller shall have no
responsibility or liability to Purchaser or any other person for the
qualification of Purchaser's purported exchange transaction under Section 1031
of the Tax Code, other than solely as a result of Seller's failure to perform
the actions specifically contemplated by the preceding sentence and (z) Seller
shall not be required to incur any additional expense (unless reimbursed by
Purchaser) or liability (other than to a DE MINIMIS extent) as a result of such
cooperation, exchange or assignment. Purchaser hereby agrees to and shall save,
defend, indemnify and hold Seller harmless from and against any and all
liability incurred by Seller as a result of any such cooperation, exchange or
assignment.
C. The provisions of this SECTION 23 shall survive the Closing.
23. Intentionally Deleted.
24. ENTIRE AGREEMENT. This Agreement contains all of the terms agreed upon
between the parties with respect to the subject matter hereof, and all
agreements heretofore had or made between the parties hereto are merged in this
Agreement which alone fully and completely expresses the agreement of said
parties.
25. AMENDMENTS. This Agreement may not be changed, modified or terminated,
except by an instrument executed by all of the parties hereto.
26. NO WAIVER. No waiver by either party of any failure or refusal to
comply with its obligations under this Agreement shall be deemed a waiver of any
other or subsequent failure or refusal to so comply.
27. SUCCESSORS AND ASSIGNS. The stipulations aforesaid shall inure to the
benefit of, and shall bind, the heirs, executors, administrators, successors and
permitted assigns of the respective parties.
28. PARTIAL INVALIDITY. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
23
29. SECTION HEADINGS. The headings of the various Sections of this
Agreement have been inserted only for the purposes of convenience, and are not
part of this Agreement and shall not be deemed in any manner to modify, explain
or restrict any of the provisions of this Agreement.
30. GOVERNING LAW. This Agreement shall be governed by, interpreted under
and construed and enforced in accordance with, the laws of the State of New
York.
31. CONFIDENTIALITY. Except as may be required by law or in connection
with any court or administrative proceeding or by any applicable regulation,
including, without limitation, state or federal securities laws or requirements
of the New York Stock Exchange, the Securities and Exchange Commission, rating
agencies or similar agencies or bodies, Purchaser shall not issue or cause the
publication of any press release or other public announcement, or cause, permit
or suffer any other disclosure which sets forth the terms of the transactions
contemplated hereby to any party other than Purchaser's partners, prospective
partners, members, prospective members, directors, officers, employees, counsel,
advisors, accountants, lenders or prospective lenders, investors or prospective
investors, without first obtaining the written consent of Seller. This paragraph
shall terminate as of the Closing Date.
32. COUNTERPARTS. This Agreement may be executed in counterparts, it being
understood that all such counterparts (including counterparts executed by
facsimile), taken together, shall constitute one and the same agreement.
33. GUARANTY. As a material inducement to Purchaser to enter into this
Agreement, by executing this Agreement where indicated below, Xxxxx Xxxxxxxx
Corporation (the "Guarantor") hereby unconditionally guaranties the performance
and payment of all of Seller's obligations and liabilities hereunder. This
Guaranty is an absolute and unconditional guaranty of payment and performance
and not of collection, and at all times the Guarantor's obligations hereunder
shall be absolute, irrevocable and unconditional in all respects. The
liabilities of the Guarantor hereunder are co-extensive with that of the Seller,
and upon any default of the Seller under this Agreement, or failure to pay or
perform any amount or action required to be paid or performed by Seller
hereunder, Purchaser may, at its option, proceed directly and at once, without
notice, against the Guarantor to collect and recover the full amount of the
liabilities guarantied hereunder or any portion thereof, without proceeding
against the Seller or any other person. Additionally, to the extent that
Purchaser commences an action against the Seller or Guarantor to enforce its
rights under this Agreement then in such event Guarantor shall be responsible to
pay Purchaser's attorneys fees in connection therewith.
34. ASSIGNMENT OF MORTGAGE. Seller shall request that its existing
mortgagee assign its mortgage to Purchaser's lender or take such other action
with respect thereto if such assignment or action will allow Purchaser to save
mortgage tax or other similar tax or cost in connection with the recording of
its new mortgage. Seller shall take all action that is reasonably necessary in
connection therewith and fully cooperate with Purchaser and its lender so that
Seller's mortgagee assigns its mortgage to Purchaser's lender or takes such
other action if such assignment or action will allow Purchaser to save mortgage
tax or other costs similar thereto. Seller makes no representation as to whether
its mortgages are assignable to Purchaser or are otherwise valid.
24
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
SELLER:
XXXXX XXXXXXXX U.S.A., INC., Seller
By: /s/ Xxxxxx Xxxxxx
------------------------------
Title: Secretary
PURCHASER:
00 XXXX 00XX XXXXXX REALTY, LLC
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Title: Managing Member
GUARANTOR:
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Title: Chief Operating Officer
25
EXHIBIT "A"
LAND
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
Said premises being known as Block 841 Xxx 00.
00
XXXXXXX "X"
LIST OF ITEMS OF PERSONAL PROPERTY EXCLUDED FROM SALE OF PROPERTY
All security cameras, card readers and other security devices.
27
EXHIBIT "C"
LIST OF THIRD-PARTY CONTRACTS
SERVICE AND MAINTENANCE.
28
EXHIBIT "D"
PERMITTED EXCEPTIONS
1. With respect to Seller or any predecessor in title, liens securing
any unpaid franchise or income taxes, provided the Title Insurer shall agree at
the closing to issue to Purchaser a policy of title insurance insuring Purchaser
against the collection of such liens out of the Real Estate and shall further
agree at the Closing to omit such liens as exceptions to any title insurance
policy which may be issued to Purchaser's lender.
2. Taxes, tax liens, tax sales, water rates, sewer rents and assessments
set forth in Schedule herein.
3. Rights of tenant in possession pursuant to Sale-Purchase Agreement.
4. Any state of facts an accurate Survey may show.
5. Covenants, conditions, easements, agreements of records, etc., as
follows:
a. License Agreement, as to encroachments, etc. made between Acou
Holding Corp. and Engineers Club, dated 11/6/67 and recorded 11/15/67
in Record Liber 243 Page 247. (Exhibit A - to follow).
29
EXHIBIT "E"
RECORDS
1. Survey, plat, site plan
2. Temporary Certificate of Occupancy
3. Licenses/Other Permits
4. Unexpired warranties
5. R/E tax bills (3-yrs.)
6. Utility bills (1-yr.)
7. Service contracts
8. Seller's title policy and back-up
9. Any Environmental or Physical Condition Reports in possession
10. Personal Property Schedule
30
EXHIBIT "F"
FORM OF DEED
31
Bargain and Sale Deed
Without Covenants Against Grantor's Acts
XXXXX XXXXXXXX U.S.A., INC.
As Grantor
TO
---------------------------------------------
As Grantee
Address: 00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
Recorded at Request of and
Return by Mail to:
-------------------------------
-------------------------------
Attention: ____________________
32
THIS INDENTURE, made the _____ day of ________________, 2003 between XXXXX
XXXXXXXX U.S.A., INC., a Delaware corporation, whose address is, party of the
first part, and ________________________________,
________________________________, whose address is
________________________________, party of the second part,
WITNESSETH, that the party of the first part, in consideration of ten dollars
and other valuable consideration paid by the party of the second part, does
hereby grant and release unto the party of the second part, the heirs or
successors and assigns of the party of the second part forever,
ALL right, title and interest of the first part in and to the buildings and
improvements (the "Premises") located on all that certain plot, piece or parcel
of land, situate, lying and being in the City of New York, County of New York
and State of New York, being more particularly described on SCHEDULE A attached
hereto and made a part hereof.
TOGETHER with all right, title and interest, if any, of the party of the first
part, in and to any streets and roads abutting the above described premises to
the center lines thereof; TOGETHER with the appurtenances and all the estate and
rights of the party of the first part in and to said premises; TO HAVE AND TO
HOLD the premises herein granted unto the party of the second part, the heirs or
successors and assigns of the party of the second part forever. This conveyance
is made subject to all easements, agreements, restrictions and other matters of
record.
AND the party of the first part, in compliance with Section 13 of the Lien Law,
covenants that the party of the first part will receive the consideration for
this conveyance and will hold the right to receive such consideration as a trust
fund to be applied first for the purpose of paying the cost of the improvement
and will apply the same first to the payment of the cost of the improvement
before using any part of the total of the same for any other purpose.
BEING and intended to be the same Premises conveyed by deed from
________________, dated _________________, and recorded _____________ in Reel
____, page ___.
SAID Premises now being known as and by the street number 00 X. 00xx Xxxxxx
(Block 841, Lot 20).
The word "party" shall be construed as if it read "parties" whenever the sense
of this indenture so requires.
33
IN WITNESS WHEREOF, the party of the first part has duly executed this deed the
day and year first above written.
XXXXX XXXXXXXX U.S.A., INC., Grantor
By: ______________________
Title: ______________________
34
ACKNOWLEDGMENT
STATE OF _______________ )
) s.s.:
COUNTY OF ____________ )
On the ____ day of ____________ in the year 2005, before me, the undersigned, a
Notary Public in and for said state, personally appeared ____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
-------------------------
Notary Public
35
SCHEDULE A
Land
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
Said premises being known as Xxxxx 000 Xxx 00.
36
EXHIBIT "G"
FORM OF XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, XXXXX XXXXXXXX U.S.A., INC., a
Delaware corporation ("Seller"), for and in consideration of the sum of Ten
($10.00) Dollars and other good and valuable consideration in hand paid by
[PURCHASER], a _____________ ("Purchaser"), the receipt and sufficiency of which
is hereby acknowledged, hereby gives, grants, bargains and conveys unto the
Purchaser, its successors and assigns forever, all of the right, title and
interest of the Seller in and to all machinery, equipment and other articles of
personal property located at, and used in connection with the operation and
maintenance of, the premises known as 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except for the items set forth on SCHEDULE A attached hereto and made a part
hereof.
TO HAVE AND TO HOLD the same unto Purchaser, its successors and
assigns forever.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Xxxx of Sale as of the ____ day of ____________, 2005.
XXXXX XXXXXXXX U.S.A., INC., Seller
By: ______________________
Title: ______________________
37
SCHEDULE A TO XXXX OF SALE
ITEMS EXCLUDED FROM SALE
38
EXHIBIT "H"
FORM OF ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND THIRD-PARTY CONTRACTS
ASSIGNMENT AND ASSUMPTION
OF CONTRACT RIGHTS AND THIRD-PARTY CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND THIRD-PARTY
CONTRACTS, dated as of the ___ day of ______________, 2003, made by XXXXX
XXXXXXXX U.S.A., INC., a Delaware corporation having an office at 00 X. 00xx
Xxxxxx, Xxx Xxxx XX 00000 (hereinafter referred to as "ASSIGNOR"), and
[PURCHASER], a _______________, having an office at [PURCHASER'S
ADDRESS] (hereinafter referred to as the "ASSIGNEE").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to a Sale-Purchase Agreement (the "AGREEMENT"), dated
as of _____________, 2005, between Assignor and Assignee, Assignor agreed to
sell to Assignee, and Assignee agreed to purchase from Assignor, certain
property, on the terms and subject to the conditions set forth therein; and
WHEREAS, the Agreement contemplates that at the closing of the
transaction contemplated thereby, (i) Assignor will assign to Assignee all of
Assignor's right, title and interest in and to the Contract Rights and the
Third-Party Contracts (as such terms are defined in the Agreement) in effect on
the date when such closing occurs, and delegate to Assignee all of Assignor's
duties arising thereunder to the extent accruing from and after the date of such
the Closing, and (ii) Assignee will accept such assignment and assume such
duties; and
WHEREAS, the closing of the transaction contemplated by the Agreement is
occurring as of the date hereof.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the mutual receipt and legal sufficiency of which the
parties hereto hereby acknowledge, Assignor and Assignee hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Agreement.
2. ASSIGNMENT. Assignor hereby assigns to Assignee all of Assignor's right,
title and interest in and to (i) the Contract Rights and Third-Party
Contracts that, in either case, are in effect on the date hereof, as
described on SCHEDULE A attached hereto and made a part hereof, and (ii)
delegates to Assignee all of Assignor's duties to the extent accruing
under such Contract Rights and Third-Party Contracts from and after the
date hereof. This Assignment and Assumption is made without any
representation or warranty, express or implied, by, or recourse against,
Assignor of any kind whatsoever, except to the extent expressly set
forth in the Agreement.
39
3. ASSUMPTION. Assignee hereby accepts the assignment, and assumes the
duties, described in Section 2 hereof.
4. INDEMNITY. Assignee hereby indemnifies Assignor and Assignor's
directors, officers, employees, shareholders, members, partners or
agents, and holds Assignor and Assignor's directors, officers,
employees, shareholders, members, partners or agents harmless, from and
against, any and all losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and
disbursements) arising out of or in connection with the Contract Rights
and Third-Party Contracts described on SCHEDULE A attached hereto to the
extent accruing during the period from and after the date hereof.
5. INDEMNITY. Assignor hereby indemnifies Assignee and Assignee's
directors, officers, employees, shareholders, members, partners or
agents, and holds Assignee and Assignee's directors, officers,
employees, shareholders, members, partners or agents harmless, from and
against, any and all losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and
disbursements) arising out of or in connection with the Contract Rights
and Third-Party Contracts described on SCHEDULE A attached hereto to the
extent accruing during the period prior to the date hereof.
6. SUCCESSORS AND ASSIGNS. The terms and conditions of this Assignment and
Assumption shall be binding upon and inure to the benefit of the parties
and their respective successors and assigns.
7. COUNTERPARTS. This Assignment and Assumption may be executed in any
number of counterparts, each of which shall be any original, but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed and
delivered this Assignment and Assumption as of the day and year first above
written.
XXXXX XXXXXXXX U.S.A., INC., Assignor
By: ______________________
Title: ______________________
[PURCHASER], Assignee
By: _______________________________
Name:
Title:
40
[Schedule A of Assignment and Assumption of
Contract Rights and Third-Party Contracts]
SCHEDULE A
LIST OF CONTRACT RIGHTS AND THIRD-PARTY CONTRACTS
[to be inserted]
41
EXHIBIT "I"
LIST OF EXISTING VIOLATIONS
42
EXHIBIT "J"
LIST OF EMPLOYEES
43
EXHIBIT "K"
CERTIFICATES OF OCCUPANCY
44
TABLE OF CONTENTS
SECTION
1. SALE-PURCHASE.......................................................1
2. PURCHASE PRICE......................................................2
3. PERMITTED EXCEPTIONS................................................3
4. CLOSING; DUE DILIGENCE PERIOD.......................................3
5. VIOLATIONS..........................................................6
6. APPORTIONMENTS......................................................7
7. CLOSING DOCUMENTS...................................................9
8. INTENTIONALLY DELETED..............................................11
9. TITLE INSURANCE....................................................11
10. RETURN OF DOWN PAYMENT.............................................13
11. REPRESENTATIONS....................................................13
12. NO IMPLIED REPRESENTATIONS.........................................16
13. OPERATION DURING THE CONTRACT PERIOD...............................17
14. CASUALTY AND CONDEMNATION..........................................18
15. INTENTIONALLY DELETED..............................................18
16. LIMITATION ON SELLER'S PERSONAL LIABILITY..........................18
17. SELLER'S DEFAULT...................................................19
18. PURCHASER'S DEFAULT................................................19
19. CONDITIONS PRECEDENT...............................................19
20. NOTICES............................................................20
21. BROKER.............................................................22
22. LIKE-KIND EXCHANGE.................................................22
23. INTENTIONALLY DELETED..............................................23
24. ENTIRE AGREEMENT...................................................23
25. AMENDMENTS.........................................................23
26. NO WAIVER..........................................................23
27. SUCCESSORS AND ASSIGNS.............................................23
28. PARTIAL INVALIDITY.................................................23
29. SECTION HEADINGS...................................................24
30. GOVERNING LAW......................................................24
31. CONFIDENTIALITY....................................................24
32. COUNTERPARTS.......................................................24
33. GUARANTY...........................................................24
34. ASSIGNMENT OF MORTGAGE.............................................24
EXHIBITS:
A. Land
B. List of Items of Personal Property Excluded from Sale of Property
C. List of Third-Party Contracts
D. Permitted Exceptions
E. Records
F. Form of Deed
G. Form of Xxxx of Sale for the Personal Property
H. Form of Assignment and Assumption of Contract Rights and Third-Party
Contracts
I. List of Existing Violations
J. Employees
K. Certificates of Occupancy