EXHIBIT NO. 10.137
AGREEMENT dated this day of December, 1997, by and between 500 WEST
XXXXXX ASSOCIATES , a Connecticut partnership with offices at 00 Xxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Seller"); Cecio Properties Limited
Partnership, a Connecticut limited partnership with offices at 00 Xxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("CPLP"), and CALI REALTY ACQUISITION
CORPORATION, a Delaware corporation with offices at 00 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 ("Purchaser").
Seller and Purchaser hereby covenant and agree as follows:
Section 1
Sale of Premises
1.01 Seller shall sell, assign and convey to Purchaser, and Purchaser
shall purchase from Seller, at the price and upon the terms and conditions set
forth in this Agreement: (a) all right, title and interest of Seller as Tenant
pursuant to the terms, conditions and provisions of a certain lease a
description of which is annexed hereto as Schedule A attached hereto
("Leasehold") of a parcel of land (the "Land") described in Schedule A-1
attached hereto; (b) all buildings and improvements (the "Building" or
"Improvements") situated on the Land; (c) all the estate and rights of Seller,
if any, in and to the Land and Building, including without limitation, all of
Seller's right, title and interest in and to all land lying in the bed of any
public street, road or alley, all mineral and water rights and all easements,
licenses, covenants and rights-of -way or other appurtenances used in connection
with the beneficial use and enjoyment of the Land and Improvements and any
unpaid award for any taking by condemnation or any damage to the Land or
Improvements by reason of a change of grade of any street or highway; and (d)
all right, title and interest of Seller, if any, in and to the fixtures,
equipment and other personal property attached or appurtenant to the Building
(collectively, "Premises"). The Premises are located at or known as 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx.
1.02 The sale to Purchaser includes the following:
(a) all personal property (other than cash, cash equivalents,
receivables and other intangible assets, except for the Tradenames), fixtures,
equipment, inventory and fixtures owned by Seller and located on or at the
Premises, or used in connection with the Premises (the "Personal Property").
(b) all leases and other agreements with respect to the use and
occupancy of the Premises, together with all amendments and modifications
thereto and any guaranties provided thereunder (individually, a "Lease", and
collectively, the "Leases"), and rents, additional rents, reimbursements,
profits, income, receipts becoming due following Closing and the amount
deposited (the "Security Deposit") under any Lease in the nature of security for
the performance of the obligations of the tenant or user (individually a
"Tenant", and collectively, the "Tenants") under the Leases;
(c) all trademarks and tradenames used or useful in connection with the
Premises, including without limitation the name 000 Xxxx Xxxxxx Xxxxxx and any
other name by which the Premises is commonly known, and all goodwill, if any,
related to said names, all for which Purchaser shall have the sole and exclusive
rights (collectively, the "Tradenames");
(d) all permits, licenses, guaranties, approvals, certificates and
warranties relating to the Premises and the Personal Property (collectively,
the"Permits and Licenses"), all of Seller's right, title and interest in and to
those contracts and agreements for the servicing, maintenance and operation of
the Premises ("Service Contracts") and telephone numbers in use by Seller at any
of the Premises (together with the Permits and Licenses and the Service
Contracts, the "Intangible Property");
(e) all promotional material, marketing materials,
brochures, photographs (collectively,"Promotional Materials"), books, records,
tenant data, leasing material and forms, past and current rent rolls for the
past three years, files, statements, tax returns for the past three years,
market studies, keys, plans, specifications, reports, tests and other materials
of any kind owned by or in the possession of Seller which are or may be used by
Seller in the use and operation of the Premises or Personal Property
(collectively, and together with the Promotional Materials, the "Books and
Records"); and
(f) all other rights, privileges and appurtenances owned by Seller, if
any, and in any way related to the rights and interests described above in this
Section.
The Premises, the Personal Property, the Leases, the Tradenames, the
Intangible Property, the Books and Records and the other property interests
being conveyed hereunder are hereinafter collectively referred to as the
"Property". Notwithstanding the conveyance by Seller to Purchaser of the Books
and Records, Purchaser, following closing hereunder shall permit Seller to
inspect and copy all or portions of such Books
and Records in connection with the audit or examination by any
taxing authority of any of Seller's tax returns.
1.03 Seller shall convey and Purchaser shall accept the Property in
accordance with the terms of this contract, subject only to the matters set
forth in Schedule B attached hereto, inclusive of the NYL Mortgage (as
hereinafter defined), (collectively, "Permitted Exceptions").
1.04 Simultaneously with the Closing hereunder, Cecio Properties
Limited Partnership ("CPLP") shall convey to Purchaser fee simple title to the
Land in accordance with the terms and conditions of this agreement provided,
nevertheless, that Seller and CPLP shall, simultaneously upon closing hereunder,
terminate the Leasehold and upon such termination, the Premises shall be
conveyed by CPLP to Purchaser in accordance with the provisions of this
Agreement and CPLP shall thereupon be deemed the "Seller" for all purposes of
this Agreement. Notwithstanding the termination, both Seller and CPLP shall
proceed in accordance with the terms of this Agreement to effectuate its intent.
Section 2
Purchase Price, Acceptable Funds,
Existing Mortgages, and Escrow of Downpayment
2.01 The purchase price ("Purchase Price") to be paid by Purchaser to
Seller and CPLP (to be allocated between them pursuant to a separate agreement)
for the Premises is $18,025,000.00. The Purchase Price shall be paid as follows:
a) Upon the signing of this Agreement, by the delivery,
subject to collection, of the sum of $250,000.00 payable to
Pryor, Cashman, Xxxxxxx & Xxxxx ("Escrowee"), the receipt of
which is hereby acknowledged by Escrowee (such sum and all
interest accrued on all such sums shall become a part of and
referred
to as the "Deposit"); and
b) Upon closing of title in accordance with the terms hereof,
the balance of the Purchase Price shall be paid by Purchaser
to Seller as follows: (i) by Purchaser accepting all other
rights of Seller in and to the Premises, subject to a certain
mortgage (the "NYL
Mortgage") dated September 21, 1990, recorded in Book 2070 at
Page 142 of the Greenwich Land Records and (ii) by payment to
Seller, by unendorsed certified or official bank check payable
to Seller or, at Seller's option, by wire transfer to an
account designated by Seller, in an amount equal to the
difference between the unpaid balance of the Purchase Price
and the unpaid principal balance of the NYL Mortgage due at
the time of Closing; plus or minus prorations as provided
herein and any unpaid amounts due or owing under the NYL
Mortgage, other than the principal balance, both as of the
Closing Date.
2.02 (a) The sum payable pursuant to Section 2.01(a) hereof shall be paid to
Escrowee, to be held in escrow in a special bank account until the Closing or
sooner termination of this Agreement, and Escrowee shall pay over or apply such
proceeds in accordance with the terms of this section. Escrowee shall hold such
sums in an interest-bearing account and all such interest shall be paid to
Purchaser, unless the Deposit is to be paid to Seller as provided herein on
account of Purchaser's default, in which event the interest shall be paid to
Seller. The party receiving such interest shall pay any income taxes thereon. At
the Closing, such sums shall be paid by Escrowee to Seller. If for any reason
the Closing does not occur and either party makes a written demand upon Escrowee
for payment of such amount, Escrowee shall give written notice to the other
party of such demand. If Escrowee does not receive a written objection from the
other party to the proposed payment within ten (10) business days after the
giving of such notice, Escrowee is hereby authorized to make such payment. If
Escrowee does receive such written objection within such ten (10) day period,
Escrowee shall continue to hold such amount until otherwise directed by written
instructions from the parties to this Agreement or a final judgment of a court.
However, Escrowee shall have the right at any time to deposit the escrowed sums
and interest thereon, if any, with the clerk of the highest court of original
jurisdiction of the county in which the Land is located. Escrowee shall give
written notice of such deposit to Seller and Purchaser. Upon such deposit,
Escrowee shall be relieved and discharged of all further obligations and
responsibilities hereunder. In no event shall the firm of Pryor, Cashman,
Xxxxxxx & Xxxxx be disqualified from continuing to act as
Purchaser's attorney by virtue of having acted as Escrowee hereunder.
(b) The parties acknowledge that Escrowee is acting solely as
a stakeholder at their request and for their convenience, that Escrowee shall
not be deemed to be the agent of either of the parties, and that Escrowee shall
not be liable to either of the parties for any act or omission on its part
unless taken or suffered in bad faith, or involving gross negligence. Seller and
Purchaser shall jointly and severally indemnify and hold Escrowee harmless from
and against all costs, claims and expenses, including reasonable attorneys' fees
incurred in connection with the performance of Escrowee's duties hereunder,
except with respect to actions or omissions taken or suffered by Escrowee in bad
faith, or involving gross negligence on the part of Escrowee.
(c) Escrowee has acknowledged its agreement to these
provisions, and does in addition agree to submit itself to the jurisdiction of
the Superior Court of the State of Connecticut in any controversy relating to
the Deposit, by signing in the place indicated on the signature page of this
Agreement.
(d) In the event Purchaser fails to perform on the Closing
Date, Purchaser's sole liability and Seller's sole recourse shall be limited to
the amount of the Deposit. Seller agrees that retention of the Deposit
constitutes fixed and liquidated damages resulting from Purchaser's default, and
Seller waives any other claim, at law or in equity, either against Purchaser or
against any person, known or unknown, disclosed or undisclosed.
(e) (i) If, after complying with the terms of this Agreement,
Seller is unable to convey title in accordance with the terms of this Agreement,
Purchaser shall have the right to terminate this Agreement. In such event,
neither party shall have any further rights or obligations hereunder other than
those which are expressly stated herein to survive any such termination, the
Deposit shall be returned to Purchaser and Seller shall refund to Purchaser all
charges made for (a) examining the title to all of the Real Property, (b) any
appropriate additional municipal searches made in accordance with this
Agreement, and (c) survey and survey inspection charges, which refund obligation
shall survive said termination.
(ii) In the event of any default on the part
of the Seller, Purchaser shall have the right to terminate
this Agreement or commence an action seeking specific
performance.
(iii) In the event of a wilful default on the
part of the Seller, Purchaser shall be entitled to any and all
of its rights and remedies at law or in equity.
Section 3
The Closing
3.01 Except as otherwise provided in this Agreement, the closing of title
pursuant to this Agreement ("Closing") shall take place on the fifteenth (15th)
day next following the expiration of the Inspection Contingency Period (as
defined in Section 4.01), but in no event any later than January 30, 1998, at
10:00 A.M. (the actual date of the Closing being herein referred to as "Closing
Date") at the offices of Seller's attorney, Xxxxxxx Xxxxx Xxxxx & Xxxxxxxx LLC,
00 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000.
Section 4
Contingencies
4.01 Purchaser's obligations hereunder are contingent upon satisfaction of
the following condition not later than forty-five (45) days next following the
date of this Agreement (said forty-five (45) day period being referred to herein
as the "Inspection Contingency Period"): Satisfaction of Purchaser, in
Purchaser's sole discretion of the results of Purchaser's inspection and
assessment of the Premises, including without limitation, environmental, soil
tests and borings, groundwater tests and investigations, physical, structural,
sub-surface soil, zoning, regulatory and financial aspects of the Premises and
its present or proposed use and occupancy, and such other tests, investigations
or studies as Purchaser, in its sole discretion, determines is necessary. All
such inspections and assessments shall be conducted at Purchaser's sole cost and
expense. Seller, at no cost to Seller, shall cooperate with Purchaser in such
inspection of the Premises and shall permit Purchaser access to the Premises and
to Sellers' books and records relating to the Premises including, without
limitation environmental reports and studies. In addition, Seller will deliver
to Purchaser, promptly after request, true and complete copies of all test
borings, Environmental Documents (as defined in Section 5.23(d)), surveys, title
materials and engineering and architectural data and the like relating to the
Premises that are in Seller's possession or under its control. In the event
any additional similar materials or information come within Seller's possession
or control after the date of this Agreement, Seller shall promptly submit true
and complete copies of the same to Purchaser. All such rights of access shall be
exercised at reasonable times and upon reasonable prior notice to Seller and
shall be exercised in a manner which will not cause damage to the Premises nor
interfere in any material respect with the operation of any Building tenant, and
Purchaser shall repair and restore any portion of the surface of the Premises
disturbed by Purchaser, its agents or contractors during the conduct of any test
or study to substantially the same condition as existed prior to such
disturbance. Such right of access shall include, without limitation, the right
to perform studies, tests, borings, investigations and inspections for the
purposes described in Section 4. Provided that Purchaser shall first deliver to
Seller a detailed workplan showing the location of all borings studies,
investigations and testing to be performed by or on behalf of Purchaser, Seller
shall notify Purchaser of any dangerous conditions on the Premises, including,
without limitation, conditions which due to the nature of the borings, studies,
investigations, inspections or testing to be performed by or on behalf of
Purchaser may pose a dangerous condition to Purchaser or Purchaser's agents and
contractors. Such right of inspection and the exercise of such right shall not
constitute a waiver by Purchaser of the breach of any representation, warranty,
covenant or agreement of Seller which might, or should, have been disclosed by
such inspection.
4.02 Purchaser shall, prior to the expiration of the Inspection Contingency
Period, give written notice to Seller if Purchaser, decides to terminate this
Agreement for any reason. This Agreement shall be terminated if Purchaser shall
fail to give written notice ("Continuation Notice") to Seller not later than
5:00 p.m. of the last day of the Inspection Contingency Period, to Seller and to
Escrowee that Purchaser elects to continue the effectiveness of this Agreement,
and in the absence of such written notice, the Deposit shall be returned to
Purchaser and thereupon no party hereto shall have any further rights or
obligations hereunder but shall be released therefrom. In the event that
Purchaser shall so give to Seller such Continuation Notice, this Agreement shall
remain in full force and effect, and Purchaser shall have no further right to
terminate this Agreement pursuant to this Section 4. However, Purchaser shall
continue to have the rights of access and inspection set forth in this Section
4.
Section 5
Representations and Warranties of Seller
Seller makes the following representations and warranties, to Seller's best
knowledge and information, none of which shall survive Closing, except to the
extent provided in Section 5.24:
5.01 Seller is the sole owner of the Leasehold and, CPLP is the sole owner
of the Land, and subject only to the consent of the mortgagee under the NYL
Mortgage, each has full right, power and authority to enter into, and consummate
the transactions contemplated by this Agreement.
5.02 The information concerning the Leases and Tenants set forth in Schedule
C attached hereto ("Lease Abstracts") is accurate as of the date set forth
therein or, if no date is set forth therein, as of the date hereof, and there
are no Leases or Tenancies or subleases or subtenants of any space in the
Premises other than those set forth therein. Except as otherwise set forth in
the Lease Abstracts or elsewhere in this Agreement:
(a) all of the Leases are in full force and effect and none of
them has been modified, amended or extended;
(b) no renewal or extension options have been granted to
tenants except as provided for in the Leases;
(c) no tenant has an option to purchase the
Premises;
(d) the rents referred to in the Lease Abstracts are being
collected on a current basis and there are no arrearages in excess of one month;
(e) except as set forth in the Lease Abstracts, no tenant is
entitled to rental concessions, offsets, allowances or abatements for any period
subsequent to the scheduled Closing Date;
(f) Seller has not sent written notice to any tenant claiming
that such tenant is in default, which default remains uncured;
(g) no action or proceeding instituted against Seller by any
tenant of the Premises is presently pending in any court, except with respect to
claims involving personal
injury or property damage which are covered by insurance;
(h) there are no security deposits other than those set forth
in the Lease Abstracts;
(i) Schedule F sets forth all real estate brokerage
commissions which may be due and payable with respect to any renewal or
extension options in connection with the Tenancies ("Renewal Commissions") or
any tenant improvement work, credits, payments or allowances which are currently
due and owing upon a renewal or extension of a Lease;
(j) True, correct and complete copies of the Leases, and all subleases in
Seller's possession, have been provided to Purchaser. The Leases constitute all
of the Leases, tenancies or occupancies affecting the Premises on the date
hereof, and there are no agreements which confer upon any Tenant or any other
person or entity, any rights with respect to the Property; and
(k) No Tenant has sent a written notice of default to Seller, as Landlord,
which default remains uncured..
5.03 Schedule D annexed hereto and made a part hereof lists all insurance
policies presently affording coverage with respect to the Premises, and the
information contained therein is accurate as of the date hereof.
5.04 Schedule E annexed hereto and made a part hereof lists all service,
maintenance, supply and management contracts ("Service Contracts") and such
schedule lists all of such contracts affecting the Premises, and the information
set forth therein is accurate as of the date hereof.
5.05 There are no leased fixtures on the Premises unless otherwise indicated
in this Agreement.
5.06 Seller has performed all of the obligations and observed all of the
covenants required of the landlord under the Leases. All work, alterations,
improvements or installations required to be made for or on behalf of all
Tenants under the Leases have in all respects been carried out, performed and
complied with, and there is no agreement with any Tenant for the performance of
any work to be done in the future. No work has been performed at the Building
which would require an amendment to the certificate of occupancy for the
Building, and any and all work performed at the Property to the date hereof and
to the Closing Date has been and will be in accordance with the rules, laws and
regulations of all
applicable authorities. All bills and claims for labor performed and materials
furnished to or for the benefit of the Premises will be paid in full on the
Closing Date.
5.07 There are no contracts or agreements affecting the Premises or the
operation thereof, except the Service Contracts, the Leases and a management
contract with Cecio Management Company. True, accurate and complete copies of
the Service Contracts have been initialed by the parties. All of the Service
Contracts are and will on the Closing Date be unmodified and in full force and
effect without any default or claim of default by any of the parties thereto.
All sums presently due and payable by Seller under the Service Contracts have
been fully paid and all sums which become due and payable between the date
hereof and the Closing Date shall be fully paid on the Closing Date. All of the
Service Contracts may be terminated on not more than thirty (30) days notice
without the payment of any fee or penalty, except for the HVAC Maintenance
Contract (annual) and Fire System Contract (annual). The Management agreement
with Cecio Management Company will be terminated as a condition of Closing.
5.08 The Permits and Licenses include all certificates, licenses, permits
and authorizations, issued to Seller, including without limitation any Permits
and Licenses relating to any environmental matters, necessary to operate and
occupy the Building or legally required in operating and occupying buildings
similar to the Building, all of which Permits and Licenses are listed on
Schedule 5.08, along with the expiration date of same. Seller has not received
any notice that any of the Permits and Licenses are subject to, or in jeopardy
of, revocation or non-renewal. Seller is current in the payment of any fees
required to be paid for the Permits and Licenses. All Permits and Licenses are
in full force and effect, are transferable with the Premises, as the case may
be, without additional payment by Purchaser, and shall, upon closing, be
transferred to Purchaser by Seller.
5.09 There are no actions, suits, labor disputes, litigation or proceedings
currently pending or, to the knowledge of Seller, threatened against or related
to Seller or to all or any part of the Premises, the environmental condition
thereof, or the operation thereof, nor does Seller know of any basis for any
such action.
5.10 Except as referred to in Schedule 5.10, there are no outstanding
requirements or recommendations by (i) the insurance company(s) currently
insuring the Premises; (ii) any
board of fire underwriters or other body exercising similar functions, or (iii)
the holder of any mortgage encumbering any of the Premises, which require or
recommend any repairs or work to be done on the Premises, nor is there any
capital expenditure program currently in process or anticipated to be completed.
5.11 Except as referred to in Schedule 5.11, Seller has received no written
notice and has no knowledge of (i) any pending or contemplated annexation or
condemnation proceedings, or private purchase in lieu thereof, affecting or
which may affect the Premises, or any part thereof, (ii) any proposed or pending
proceeding to change or redefine the zoning classification of all or any part of
the Premises, (iii) any proposed or pending special assessments affecting the
Premises or any portion thereof, (iv) any penalties or interest due with respect
to real estate taxes assessed against the Premises and (v) any proposed
change(s) in any road or grades with respect to the roads providing a means of
ingress and egress to the Premises. Seller agrees to furnish Purchaser with a
copy of any such notice received within two (2) days after receipt.
5.12 Seller has provided Purchaser with all reports, including without
limitation, the Environmental Documents, in their possession or under their
control related to the physical condition of the Premises and upon request, will
make available to Purchaser for inspection and copying, all Books and Records
necessary for Purchaser to conduct its due diligence of the Premises.
5.13 Seller has no knowledge of any notices, suits, investigations or
judgments relating to any violations of any laws, ordinances or regulations
affecting the Premises, (including, without limitation, Environmental Laws [as
defined in Section 5.23(d)]) or any violations or conditions that may give rise
thereto, and has no reason to believe that any Governmental Authority (as
defined in Section 5.23(d)) contemplates the issuance thereof, and there are no
outstanding orders, judgments, injunctions, decrees, directives or writs of any
Governmental Authorities against or involving Seller or the Premises.
5.14 There are no employees of Seller working at or in connection with the
Premises. There are not any union agreements executed by Seller affecting the
Premises as of the date hereof, nor shall any such agreements affect the
Premises as of the Closing Date.
5.15 Annexed hereto as Schedule F is a schedule of all leasing commission
obligations affecting the Premises. The respective obligations of Seller and
Purchaser with respect to said commissions are set forth in Section 7.03.
5.16 Seller has not made a general assignment for the benefit of creditors,
filed any voluntary petition in bankruptcy nor suffered the filing of any
involuntary petition by its creditors, suffered the appointment of a receiver to
take possession of all, or substantially all, of its assets, nor suffered the
attachment or other judicial seizure of all, or substantially all, of such
assets, nor admitted in writing its inability to pay its debts as they come due
nor made an offer of settlement, extension or composition to its creditors
generally.
5.17 The Personal Property is now owned and will on the Closing Date be
owned by Seller free and clear of any conditional bills of sale, chattel
mortgages, security agreements or financing statements or other security
interests of any kind.
5.18 No portion of the Premises is located in a flood
plain.
5.19 Seller has delivered true, correct and complete copies of the NYL
Mortgage loan documents to Purchaser and is not in default thereunder. Any and
all payments due under the NYL Mortgage have been paid and are current.
5.20 Seller is a duly organized and validly existing general partnership
organized under the laws of the State of Connecticut, is duly authorized to
transact business in the State of Connecticut, CPLP is a duly organized and
validly existing limited partnership organized under the laws of the State of
Connecticut, and each has, subject to the provisions in Section 5.01, all
requisite power and authority to execute and deliver this Agreement and all
other documents and instruments to be executed and delivered by it hereunder,
and to perform its obligations hereunder and under such other documents and
instruments in order to sell the Premises in accordance with the terms and
conditions hereof. All necessary actions of the partners of Seller and CPLP to
confer such power and authority upon the persons executing this Agreement and
all documents which are contemplated by this Agreement on its behalf have been
taken.
5.21 This Agreement, when duly executed and delivered, will be the legal,
valid and binding obligation of Seller and CPLP enforceable in accordance with
the terms of this
Agreement. The performance by Seller and CPLP of their respective duties and
obligations under this Agreement and the documents and instruments to be
executed and delivered by them hereunder will not conflict with, or result in a
breach of, or default under, any provision of any of the organizational
documents of Seller or CPLP or any agreements, instruments, decrees, judgments,
injunctions, orders, writs, laws, rules or regulations, or any determination or
award of any court or arbitrator, to which Seller or CPLP is a party or by which
their respective assets are or may be bound. In the event that NYL does not give
such consent, either party, upon notice to the other prior to the Closing Date,
shall have the right to terminate this Agreement. Purchaser, nevertheless, has
the right to negate any such termination by Seller and proceed to Closing
hereunder, provided that Purchaser indemnifies and holds Seller, CPLP and their
respective partners, harmless from any and all loss or damage, including
reasonable attorney's fees, pursuant to the NYL Mortgage.
5.22 No representation or warranty made by Seller or CPLP contained in this
Agreement, and no statement contained in any document, certificate, Schedule or
Exhibit furnished or to be furnished by or on behalf of Seller to Purchaser or
any of its designees or affiliates pursuant to this Agreement contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary, in light of the circumstances under which it was or
will be made, in order to make the statements herein or therein not misleading
or necessary in order to fully and fairly provide the information required to be
provided in any such document, certificate, Schedule or Exhibit.
5.23 In addition to the foregoing, Seller hereby warrants and represents the
following with respect to environmental matters:
(a) Except as disclosed in any Environmental Document
delivered by Seller to Purchaser:
(i) there are no Contaminants (as defined in Section 5.23(d))
on, under, at, emanating from or affecting the Premises, except those in
compliance with all applicable Environmental Laws (as defined in Section
5.23(d));
(ii) neither Seller, or to its knowledge, any current or prior
occupant, nor, to its knowledge, any current or prior owner of the Premises has
received any Notice (as defined in Section 5.23(d)) or advice from any
Governmental Authority (as defined in Section 5.23(d)) or any other third
party with respect to Contaminants on, under, at, emanating from or affecting
the Premises, and, to Seller's knowledge, no Contaminants have been Discharged
(as defined in Section 5.23(d)) which would allow a Governmental Authority to
demand that a cleanup be undertaken;
(iii) no portion of the Premises has ever been used by Seller,
or to its knowledge, any current or former owner or current or former occupant
to generate, manufacture, refine, produce, treat, store, handle, dispose of,
transfer or process Contaminants, whether or not any of those parties has
received Notice or advice from any Governmental Authority or any other third
party with respect thereto;
(iv) Seller has not transported any Contaminants, nor to its
knowledge has any current or former occupant or current or former owner
transported Contaminants from the Premises to another location which was not
done in compliance with all applicable Environmental Laws;
(v) no ss.104(e) informational request has been received by
Seller issued pursuant to CERCLA (as defined in Section 5.23(e));
(vi) there is no asbestos or asbestos containing material in
any friable state or otherwise in violation of Environmental Laws on the
Premises;
(vii) all transformers and capacitators containing
polychlorinated biphenyls ("PCBs"), and all "PCB Items", as defined in 40 C.F.R.
ss.761.3, located on or affecting the Premises, are in compliance with all
Environmental Laws;
(viii) there are no above ground storage tanks or Underground
Storage Tanks (as defined in Section 5.23(e)) at the Premises, regardless of
whether such tanks are regulated tanks or not;
(ix) all pre-existing above ground storage tanks and
Underground Storage Tanks at the Premises have been removed and their contents
disposed of in accordance with and pursuant to Environmental Laws;
(x) the Premises has not been used as a solid waste facility
or a solid waste disposal area, including, without limitation, a sanitary
landfill facility, as defined in the Connecticut Solid Waste Management Act,
Conn. Gen. Stat. Xxx.
ss.22a-446d et seq.;
(xi) Seller, and, to Seller's knowledge, each occupant of the
Premises have all environmental certificates, licenses and permits ("Permit")
required to operate the Premises and there is no violation of any statute,
ordinance, rule, regulation, order, code, directive or requirement, including,
without limitation, Environmental Laws, with respect to any Permit, nor any
pending application for any Permit;
(xii) there are no federal or state liens as
referred to under CERCLA or Conn. Gen. Stat. Xxx. ss.22a-452a,
as amended, Pub. L. No. 97-218 or any other Environmental Laws
that have attached to the Premises;
(xiii) to Seller's knowledge, all current and prior owners of
the Premises have complied with the Transfer Act (as defined in Section
5.23(e));
(xiv) Seller has not, to its knowledge, engaged in any
activity on the Premises in violation of Environmental Laws;
(xv) the transfer of the Premises by Seller to Purchaser is
not subject to the Connecticut Transfer Act;
(xvi) there are no engineering or institutional controls at
the Premises, including without limitation, any deed notice, declaration of
environmental land use restriction, groundwater classification exception area,
well restriction area or other notice or use limitation pursuant to
Environmental Laws; and
(xviii) the Premises is not subject to any wetlands
regulations, administered by the United States of America, Army Corps of
Engineers, the Environmental Protection, the DEP or any other federal, state,
county or local Governmental
Authority (as defined in Action 5.23(d)).
(b) Contemporaneously with the execution of this Agreement,
and subsequently promptly upon receipt by Seller, or its representatives, Seller
shall deliver to Purchaser: (i) all Environmental Documents concerning the
Premises generated by or on behalf of predecessors in title or former occupants
of the Premises to the extent in Seller's possession or control; (ii) all
Environmental Documents concerning the Premises generated by or on behalf of
Seller, whether currently or hereafter existing; and (iii) all Environmental
Documents concerning the Premises generated by or on behalf of
current or future occupants of the Premises to the extent in Seller's possession
or control, whether currently or hereafter existing.
(c) Seller shall notify Purchaser in advance of all meetings
scheduled between Seller or Seller's representatives and DEP, and Purchaser, and
Purchaser's representatives shall have the right, without obligation, to attend
and participate in all such meetings.
(d) The following terms shall have the following meanings when
used in this Agreement:
(i) "Contaminants" shall include, without limitation, any
regulated substance (excepting therefrom small quantities of office cleaning
substances and office supplies), toxic substance, hazardous substance, hazardous
waste, pollution, pollutant or contaminant, as defined or referred to in the
"Tanks Laws" as defined below; the "Transfer Act" as defined below; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. ss.6901 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.9601 et seq. ("CERCLA"); the Water Pollution and Control
Act, 33 U.S.C. ss.1251 et seq.; together with any amendments thereto,
regulations promulgated thereunder and all substitutions thereof, as well as
words of similar purport or meaning referred to in any other applicable federal,
state, county or municipal environmental statute, ordinance, code, rule or
regulation, including, without limitation, radon, asbestos, polychlorinated
biphenyls, urea formaldehyde and petroleum products and petroleum based
derivatives. Where a statute, ordinance, code, rule or regulation defines any of
these terms more broadly than another, the broader definition shall apply.
(ii) "Discharge" shall mean the releasing, spilling, leaking,
leaching, disposing, pumping, pouring, emitting, emptying, treating or dumping
of Contaminants at, into, onto or migrating from or onto the Premises,
regardless of whether the result of an intentional or unintentional action or
omission.
(iii) "Environmental Documents" shall mean all environmental
documentation in the possession or under the control of Seller concerning the
Premises, or its environs, including without limitation, all sampling plans,
cleanup plans, preliminary assessment plans and reports, site investigation
plans and reports, remedial investigation plans
and reports, remedial action plans and reports, or the equivalent, sampling
results, sampling result reports, data, diagrams, charts, maps, analysis,
conclusions, quality assurance/quality control documentation, correspondence to
or from any Governmental Authority, submissions to any Governmental Authority
and directives, orders, approvals and disapprovals issued by any Governmental
Authority.
(iv) "Environmental Laws" shall mean each and every applicable
federal, state, county or municipal statute, ordinance, rule, regulation, order,
code, directive or requirement, together with all successor statutes,
ordinances, rules, regulations, orders, codes, directives or requirements, of
any Governmental Authority in any way related to Contaminants.
(v) "Governmental Authority" shall mean the federal, state,
county or municipal government, or any department, agency, bureau or other
similar type body obtaining authority therefrom, or created pursuant to any law.
(vi) "DEP" shall mean the Connecticut Department of
Environmental Protection or its successor.
(vii) "Notice" shall mean, in addition to its ordinary
meaning, any written communication of any nature, whether in the form of
correspondence, memoranda, order, directive or otherwise.
(viii) "Tank Laws" shall mean the Connecticut
Underground Petroleum Storage Act, Conn. Gen. Stat. Xxx. ss.22a-
449a et seq., and the federal underground storage tank law
(Subtitle I) of the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. ss.6901 et seq., together with any amendments
thereto, regulations promulgated thereunder, and all
substitutions thereof, and any successor legislation and
regulations.
(ix) "Underground Storage Tank" shall mean each and every
"underground storage tank", whether or not subject to the Tank Laws, as well as
the "monitoring system", the "leak detection system", the "discharge detection
system" and the "tank system" associated with the "underground storage tank", as
those terms are defined by the Tank Laws.
(x) "Transfer Act" shall mean the Connecticut
Transfer Act, Conn. Gen. Stat. Xxx. ss.22a-134 et seq., the
regulations promulgated thereunder and any amending and
successor legislation and regulations now or hereafter
existing.
5.24 All representations, warranties, covenants and agreements made by
Seller and CPLP in this Agreement shall survive the Closing Date for a period of
six (6) months, and, for such six month period, shall not be merged in the
delivery of the Deed. Seller and CPLP agree to indemnify and defend Purchaser,
and to hold Purchaser harmless, from and against any and all claims,
liabilities, losses, deficiencies and damages as well as reasonable expenses
(including attorney's, consulting and engineering fees), and interest and
penalties related thereto, incurred by Seller, by reason of or resulting from
any breach, inaccuracy, incompleteness or nonfulfillment of the representations,
warranties, covenants and agreements of Seller and CPLP contained in this
Agreement. Notwithstanding any contrary or consistent provision of this
Agreement, in no event shall the aggregate liability of Seller and CPLP arising
by virtue of any breach, inaccuracy, incompleteness or nonfulfillment of (a) the
representations, warranties, covenants and agreements contained in all portions
of this Agreement, except those set forth in Sections 5.23 and 8.16 exceed
$500,000.00 and (b) the representations, warranties, covenants and agreements
contained in Section 5.23 and 8.16 exceed $500,000.00; and in no event shall
Seller or CPLP have any liability of any nature whatsoever for any breach of
representation or warranty asserted by Purchaser if, prior to Closing, Purchaser
had actual knowledge of the matter giving rise to Purchaser's claims. For the
purposes of the preceding sentence, "actual knowledge" shall refer to the actual
knowledge of Purchaser's principal representative in this transaction, who
Purchaser represents to be Xxxxxx Xxxxxxxxx, and shall include but not be
limited to all information contained herein and in documents and materials
provided by Seller to such principal representative.
Section 6
Acknowledgments of Purchaser
Purchaser acknowledges that, subject to Purchaser's satisfaction of the
inspection contingency referred to in Section 4, and except as provided in this
Agreement, Purchaser shall accept the Premises "as is" and in their present
condition, subject to reasonable use, wear and tear, and, subject to the
provisions of Section 18, casualty loss occurring between the date of this
Agreement and the Closing Date. In entering into this Agreement, Purchaser has
not been induced by and has not relied on any representation or
statement, express or implied, made by Seller or any person representing or
purporting to represent Seller, except as specifically set forth in this
Agreement.
Section 7
Seller's Obligations as to Leases
7.01 Between the date of this Agreement and the Closing, Seller shall not,
without Purchaser's prior written consent: (a) amend, renew or extend any Lease
or Tenancy in any respect, unless required by law; or (b) terminate any Lease or
Tenancy except by reason of a default by the tenant thereunder.
7.02 Unless otherwise provided in a schedule attached to this Agreement,
between the date of this Agreement and the Closing, Seller shall not permit
occupancy of, or enter into any new lease for, space in the Building which is
presently vacant or which may hereafter become vacant. Seller shall not grant
any concessions, offsets, allowances or rent abatements for any period following
the Closing without Purchaser's prior written consent.
7.03 All leasing commissions due on account of the original term of all
Leases made before the date of this Agreement and extensions and renewals which
are presently effective (but not renewals or extensions of such leases which are
exercised after the Closing Date) shall be paid by Seller and Seller shall hold
Purchaser harmless with respect thereto. All leasing commissions on account of
extensions or renewals of Leases made after the Closing Date shall be paid by
Purchaser and Purchaser shall hold Seller harmless with respect thereto. All
tenant improvement obligations arising in respect to any lease terms currently
in effect shall be satisfied prior to the Closing Date. The provisions of this
Section shall survive the Closing.
Section 8
Covenants of Seller
Seller covenants that between the date of this Agreement and the Closing:
8.01 Seller shall not modify or amend any Service Contract or enter into any
new service contract unless the same is terminable without penalty by Seller or
its successor upon not more than 30 days' notice. Simultaneously upon Closing,
Seller will terminate any Service Contracts of which Purchaser advises
Seller to so terminate, and which are so terminable, in accordance with Section
5.01, at Seller's sole cost and expense. Seller shall terminate any management
agreements and/or contracts affecting the Premises.
8.02 Seller shall maintain in full force and effect until the Closing the
insurance policies described on Schedule D annexed hereto.
8.03 No fixtures, equipment or personal property included in this sale shall
be removed from the Premises.
8.04 Seller shall not withdraw, settle or otherwise compromise any protest
or reduction proceeding affecting real estate taxes assessed against the
Premises for any fiscal period in which the Closing is to occur or any
subsequent fiscal period or any prior period in which a settlement would affect
any future period, without the prior written consent of Purchaser, which consent
shall not be unreasonably withheld. Seller represents that there are no such
protests or proceedings currently pending. Real estate tax refunds and credits
received after the Closing Date which are attributable to the fiscal tax year
during which the Closing Date occurs shall be apportioned between Seller and
Purchaser, after deducting the reasonable expenses of collection thereof, which
obligation shall survive the Closing.
8.05 Seller shall allow Purchaser or Purchaser's representatives access to
the Premises, the Leases, Service Contracts, Books and Records and other
documents required to be delivered under this Agreement upon reasonable prior
notice at reasonable times, provided that all such rights of access shall be
exercised in a manner which will not cause damage to the Premises nor interfere
in a material manner with the operations of any Building tenant.
8.06 Seller will not defer taking any action or spending any of its funds or
otherwise manage the Premises differently due to the pending sale of the
Premises. Seller shall operate and maintain the Premises in the ordinary course
of business and shall use reasonable efforts to reasonably preserve for
Purchaser the relationships between Seller and Seller's tenants, suppliers,
managers, employees and others having a business relationship with Seller with
respect to the Premises.
8.07 Seller shall not enter into any agreement requiring Seller to do work
for any Tenant after the Closing Date without first obtaining the prior written
consent of Purchaser.
8.08 Seller shall not cause or permit the Premises, or any
interest therein, to be alienated, mortgaged, licensed,
encumbered or otherwise be transferred.
8.09 Seller will make all required payments under any the NYL Mortgage
within any applicable grace period, but without reimbursement by Purchaser
therefor except as provided in Section 12. Seller shall also comply with all
other terms, covenants, and conditions of any mortgage on the Premises.
8.10 Seller shall not apply any security deposits with respect to any Tenant
in occupancy on the Closing Date.
8.11 Seller shall permit Purchaser and its authorized representatives to
inspect the Books and Records of its operations at all reasonable times. All
Books and Records not conveyed to Purchaser hereunder shall be maintained for
Purchaser's inspection at Seller's address as set forth above.
8.12 Upon request of Purchaser at any time after the date hereof, Seller, at
no cost to Seller, shall assist Purchaser in its preparation of audited
financial statements, statements of income and expense, and such other
documentation as Purchaser may reasonably request, covering the period of
Seller's ownership of the Leasehold. If, to facilitate such audit or at
Purchaser's request, Seller requires the services of its independent accountant,
Purchaser shall be responsible for the costs thereof.
8.13 If prior to the Closing Date Seller shall have received from (i) any
insurance company which issued a policy with respect to the Property, (ii) any
board of fire underwriters or other body exercising similar functions, or (iii)
the holder of any mortgage, any notice requiring or recommending any repair work
to be done to the Property, Seller will do the same expeditiously and diligently
at its own cost and expense prior to the Closing Date.
8.14 All violations of statutes, ordinances, rules, regulations, orders,
codes, directives or requirements affecting the Property, whether or not such
violations are now noted in the records of or have been issued by any
Governmental Authorities shall be complied with by Seller prior to the Closing
and the Property shall be conveyed free of any such violations, including,
without limitation, violations of Environmental Laws.
8.15 Seller shall cause CPLP to convey to Purchaser, fee simple title to the
Land simultaneously with Seller's delivery of the Property to Purchaser in
accordance with the terms herein as set forth in Section 1.04, or, at
Purchaser's option, the Leasehold between CPLP and Seller shall be terminated in
accordance with Section 1.04.
8.16 Seller shall:
(i) Promptly notify Purchaser of, and promptly deliver to Purchaser, a
certified true and complete copy of any Notice Seller may receive, on or before
the Closing Date, from any Governmental Authority, concerning a violation of
Environmental Laws or Discharge of Contaminants;
(ii) At its own cost and expense, be responsible for the remediation of all
Contaminants existing on, under, at, emanating from or affecting the Property,
as of the date of Closing, in violation of Environmental Laws, regardless of the
date of discovery, notwithstanding anything to the contrary set forth herein. In
no event shall Seller's remediation involve any engineering or institutional
controls, including, without limitation, capping, a deed notice, a declaration
of environmental restrictions or other institutional control notice or a
groundwater classification exception area or well restriction area. Any such
remediation and associated activities shall be undertaken pursuant to a right of
access agreement reasonably acceptable to Purchaser
and
(iii) Contemporaneously with the execution and delivery of this Agreement,
and subsequently, promptly upon receipt by Seller or its representatives,
deliver to Purchaser a certified true and complete copy of all Environmental
Documents.
8.17 Notwithstanding any contrary or inconsistent provision contained in
this Agreement, if the aggregate cost of completing the work required pursuant
to Sections 8.13, 8.14 and 8.16 shall exceed $50,000.00 Seller, at its option
may elect to terminate this Agreement upon notice to Purchaser and Escrowee,
whereupon Escrowee shall immediately return to Purchaser the Deposit and all
interest accrued thereon and thereupon no party shall any further rights or
obligations hereunder. Upon receipt of Seller's notice, Purchaser shall have the
option, upon notice to Seller, to negate Seller's termination and, in such
event, at the Closing, Purchaser (a) shall accept the Property with no
requirement on Seller's part to perform or complete such work, and (b) shall
receive a credit against the Purchase Price in the amount of $50,000.
Section 9
Conditions to Closing
9.01 It shall be a condition to Purchaser's obligations pursuant to this
Agreement that New York Life Insurance Company shall consent to the sale by
Seller to Purchaser of the Premises subject to the NYL Mortgage and to the
entering into of an assumption agreement in form and substance annexed hereto as
Schedule 9.01.
9.02 Promptly upon the execution and exchange of this Agreement, Seller
shall notify The New York Life Insurance Company of the proposed conveyance to
Purchaser, and request the consent of The New York Life Insurance Company to
such conveyance, in accordance with the requirements of The NYL Mortgage. Seller
and Purchaser shall furnish The New York Life Insurance Company with such
information as may reasonably be required in connection with such request and
shall otherwise cooperate with The New York Life Insurance Company and with each
other in an effort expeditiously to procure such consent. If The New York Life
Insurance Company shall fail or refuse to grant such consent in writing before
the expiration of the Inspection Contingency Period, or shall require as a
condition of the granting of such consent (i) that additional consideration be
paid to The New York Life Insurance Company and neither Seller nor Purchaser is
willing to pay such additional consideration, (ii) that the terms of the NYL
Mortgage be changed and Purchaser is unwilling to accept such change, or (iii)
execution of an assumption agreement incorporating provisions which are not
consistent with those annexed hereto as Schedule 9.01, then Purchaser may
terminate this Agreement by giving written notice of such election to terminate
within five (5) business days next following the termination of the Inspection
Contingency Period.
9.03 Seller shall, at Seller's sole cost and expense, comply with the
Transfer Act with respect to the Premises prior to Closing.
9.04 The obligations of Purchaser to accept title to the Premises and to
perform the other covenants and obligations to be performed by Purchaser on the
Closing Date shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by Purchaser):
(a) The representations and warranties made by Seller herein
shall be true and correct in all respects with the same force and effect as
though such representations and warranties had been made on and as of the
Closing Date.
(b) Seller shall have performed all covenants and obligations
undertaken by Seller herein in all respects and complied with all conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
(c) The Title Company is unconditionally prepared to issue to
Purchaser a Title Policy meeting the requirements set forth in Section 13 hereof
for an "insurable title".
(d) Seller shall have delivered to Purchaser all of the
documents provided herein for said delivery.
(e) The Premises shall be in compliance with all Environmental
Laws.
9.05 (a) On or following the date hereof, Seller agrees to deliver to each
Tenant an estoppel certificate in the form annexed hereto as Schedule 9.05 for
Tenant's execution, completed to reflect the Tenant's particular Lease status.
Seller agrees to use reasonable efforts to obtain from all Tenants the estoppel
certificates in such form; provided, however, that if any Tenant shall refuse to
execute an estoppel letter in such form, Seller shall nevertheless be obligated
to obtain estoppel certificates in the form in which each Tenant is obligated to
deliver same as provided in its Lease. Seller agrees to deliver to Purchaser,
upon receipt, copies of all estoppel letters received by Tenants, in the form
received by Seller. The estoppel certificates required to be obtained pursuant
to this Section 9.05 are collectively referred to as the "Estoppel
Certificates".
(b) As a condition to Closing, Seller shall deliver (a) an Estoppel
Certificate from each Tenant which leases space at the Building in excess of
10,000 square feet or more in the aggregate and (b) Estoppel Certificates from
the remaining Tenants leasing at least seventy-five (75%) percent of the
aggregate remaining square footage of the Building.
(c) For an Estoppel Certificate to be deemed delivered for purposes of this
Agreement, it must certify that the Tenant's most recent rental payment under
its Lease was made not more than one (1) month prior to the month in which the
Closing occurs.
Section 10
Seller's Closing Obligations
At the Closing, Seller shall deliver the following to Purchaser:
10.01 (a) Evidence establishing to Purchaser's satisfaction that the
Leasehold has been terminated in accordance with Section 1.04, and (b) a Special
Warranty Deed, in recordable form executed by CPLP, and in proper form to assign
and convey to Purchaser all other right, title and interest of Seller in and to
the Premises, as required by this Agreement, together with checks for all
conveyance taxes payable in connection therewith.
10.02 All original Leases and a duly executed and acknowledged assignment to
Purchaser of said Leases, Security Deposits, and Intangible Property without
recourse or warranty, other than as set forth herein.
10.03 A schedule updating the Lease Abstracts and setting forth all arrears
in rents and all prepayments of rents and indicating that there has been no
adverse change in the income or expenses of the Premises between the execution
of this Agreement and the Closing.
10.04 A schedule of all cash security deposits and a check or credit to
Purchaser in the amount of such security deposits, including any interest
thereon which accrues to the benefit of tenants, held by Seller on the Closing
Date under the Lease together with other instruments of assignment, transfer and
consent as may be necessary to permit Purchaser to realize upon same.
10.05 All Service Contracts in Seller's possession which are in effect on
the Closing Date and which are assignable by Seller.
10.06 A duly executed and acknowledged assignment to Purchaser, without
recourse or warranty, other than as set forth herein of all of the interest of
Seller in those Service Contracts, and other documents to be delivered to
Purchaser at the Closing which are then in effect and are assignable by Seller.
10.07 To the extent they are then in Seller's possession and not posted at
the Premises, certificates, licenses, permits, authorizations and approvals
issued for or with respect to the Premises by governmental and
quasi-governmental authorities having jurisdiction.
10.08 Possession of the Premises in the condition required by this
Agreement, and keys therefor.
10.09 Any other documents expressly required by this Agreement to be
delivered by Seller or as may be reasonably required or appropriate to
effectuate the consummation of the transactions contemplated by this Agreement.
10.10 The Original Estoppel Certificates.
10.11 A letter to Tenants advising the Tenants of the sale hereunder and
directing that rent and other payments thereafter be sent to Purchaser or its
designee, as Purchaser shall so direct.
10.12 A certificate indicating that the representations and warranties of
Seller made in this Agreement are true and correct as of the Closing Date, or if
there have been any changes, a description thereof.
10.13 Affidavits and other instruments, including but not limited to all
organizational documents of Seller and Seller's general partner including
operating agreements, filed copies of partnership agreements and good standing
certificates, reasonably requested by Purchaser and the Title Company evidencing
the power and authority of Seller to enter into this Agreement and any documents
to be delivered hereunder, and the enforceability of same.
10.14 All proper instruments as shall be reasonably required for the
conveyance to Purchaser of all right, title and interest, if any, of Seller in
and to any award or payment made, or to be made, (i) for any taking in
condemnation, eminent domain or agreement in lieu thereof of land adjoining all
or any part of the Improvements, (ii) for damage to the Land or Improvements or
any part thereof by reason of change of grade or closing of any such street,
road, highway or avenue, and (iii) for any taking in condemnation or eminent
domain of any part of the Land or Improvements.
10.15 A certificate signed by an officer or partner of Seller to the effect
that Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), in
order to avoid the imposition of the withholding tax payment pursuant to Section
1445 of the Code.
10.16 All such transfer and other tax declarations and
returns and information returns, duly executed and sworn to by
Seller as may be required of Seller by law in connection with the conveyance of
the Premises to Purchaser, including but not limited to, Internal Revenue
Service forms.
10.17 A statement setting forth the Purchase Price with all adjustments and
proration shown thereon.
10.18 Any instruments reasonably required by Purchaser evidencing the
assignment of the Tradenames.
10.19 A computer diskette containing this Agreement and any closing or other
documents executed in connection with this transaction and prepared by Seller or
its counsel, in WordPerfect or Microsoft Word format.
10.20 An agreement in form annexed hereto as Schedule F-2 pursuant to which
Seller shall agree to and be responsible for all Renewal Commissions, the right
to which accrued prior to Closing.
Section 11
Purchaser's Closing Obligations
At the Closing, Purchaser shall:
11.01 Deliver to Seller funds in payment of the portion of the Purchase
Price payable at the Closing, in accordance with Section 2.01 and as adjusted
for apportionments under Section 12.
11.02 Execute and deliver to New York Life Insurance Company all documents
required by the New York Life Insurance Company in connection with its consents
of the conveyance of the Premises to Purchaser in accordance with the
requirements of the NYL Mortgage, provided such documents are in substantial
conformity with those which shall be fully negotiated and agreed to by and
between Purchaser and NYL during the Inspection Contingency Period.
11.03 Execute and deliver to Seller an agreement, in form annexed hereto as
Schedule F-1, pursuant to which Purchaser shall agree and be responsible for all
Renewal Commissions, the right to which shall accrue following Closing.
11.04 Execute and deliver to Seller an agreement, indemnifying and agreeing
to defend Seller against any claims made by tenants with respect to tenant's
security deposits to the extent paid or credited to Purchaser pursuant to
Section 10.04.
11.05 Execute and deliver to Seller any other documents expressly required
by this Agreement to be delivered by Purchaser.
Section 12
Apportionments
12.01 The following apportionments shall be made between the parties at the
Closing as of the close of business on the day prior to the Closing Date: (a)
real estate taxes on the basis of the fiscal period for which assessed; (b)
prepaid rents and Additional Rents (as defined in Section 12.03); (c) interest
on the NYL Mortgage; (d) value of fuel stored on the Premises, at the price then
charged by Seller's supplier, including any taxes with respect thereto on the
basis of a reading made within ten (10) days prior to the Closing by Seller's
supplier; (e) utility charges payable by Seller, including, without limitation,
electricity, water charges and sewer charges, on the basis of a meter reading
made within five (5) days prior to the Closing; and (f) prepaid charges under
transferrable Service Contracts.
12.02 If any tenant is in arrears in the payment of rent on the Closing
Date, rents received from such tenant after the Closing shall be applied in the
following order of priority: (a) first to the month in which the Closing
occurred; (b) then to any month or months following the month in which the
Closing occurred; and (c) then to the period prior to the month preceding the
month in which the Closing occurred. If rents or any portion thereof received by
Seller or Purchaser after the Closing are payable to the other party by reason
of this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees, costs and expenses of collection thereof, shall be
promptly paid to the other party, which obligation shall survive the Closing.
12.03. At the Closing, Seller shall deliver to Purchaser a list additional
rent, however characterized, under each Lease, including without limitation,
real estate taxes, electrical charges, utility costs and operating expenses
(collectively, "Additional Rents") billed to Tenants for the calendar year in
which the Closing occurs (both on a monthly basis and in the aggregate), the
basis for which the monthly amounts are being billed and the amounts incurred by
Seller on account of the components of Additional Rent for such calendar year.
Upon the reconciliation by Purchaser of the Additional Rents billed to Tenants,
and the amounts actually incurred for such calendar year, Seller and Purchaser
shall be liable for overpayments of Additional Rents, and shall be entitled to
payments from Tenants,
as the case may be, on a pro-rata basis based upon each party's period of
ownership during such calendar year.
12.04 Any errors in calculations or adjustments shall be corrected or
adjusted as soon as practicable after the Closing.
12.05 The provisions of this Section 12 shall survive the Closing Date.
Section 13
Objections to Title, Failure of Seller
or Purchaser to Perform and Vendee's Lien
13.01 Purchaser has ordered an examination of title and shall cause a copy
of the title report to be forwarded to Seller's attorney upon receipt.
13.02 If, upon the date for the delivery of the deed as hereinafter
provided, the Seller shall be unable to deliver or cause to be delivered good
and marketable title to said premises, subject only to the Permitted Exceptions,
then the Seller shall be allowed a reasonable postponement of closing not to
exceed thirty (30) days, within which to perfect title. If at the end of said
time the Seller is still unable to deliver or cause to be delivered a deed or
deeds conveying a good and marketable title to said Premises, subject only to
the Permitted Exceptions, then the Purchaser may elect to accept such title as
the Seller can convey, without modification of the Purchase Price, or may reject
such title, whereupon all sums paid on account hereof, together with any
expenses actually incurred by the Purchaser for survey costs and title insurance
costs shall be paid to the Purchaser without interest thereon. Upon such
payment, this Agreement shall terminate and the parties hereto shall be released
and discharged from all further claims and obligations.
13.03 If title to the Premises is subject to any lien or charge other than
the Permitted Encumbrances, Seller agrees to use good faith efforts to cause the
Premises to be subject only to the Permitted Encumbrances and in any event to
cure, at its expense, (i) judgments against Seller, (ii) mortgages (other than
the NYL Mortgage) or other liens which can be satisfied by payment of a
liquidated amount and (iii) defects, objections or exceptions which can be
removed by payments not to exceed one (1%) percent of the Purchase Price in the
aggregate. Seller agrees and covenants that it shall not voluntarily place any
defects, objections or exceptions to title to any of the Premises
from and after the date of the first issuance of the title
commitment for said Premises.
13.04 It shall be a condition to Closing that Seller convey, and that the
Title Company insure, title to the Premises in the amount of the Purchase Price
(at a standard rate for such insurance) in the name of Purchaser or its
designees, after delivery of the Deed, by a standard 1992 ALTA Owners Policy,
with ALTA endorsements Form 3.1, Form 8.1, Form 9 and any other endorsements as
required by Purchaser attached, free and clear of all liens, encumbrances and
other matters, other than the Permitted Encumbrances (the "Title Policy"). The
Title Company shall provide affirmative insurance that any (i) Permitted
Encumbrances have not been violated, and that any future violation thereof will
not result in a forfeiture or reversion of title; (ii) Purchaser's contemplated
use of the Premises will not violate the Permitted Encumbrances; and (iii) the
exception for taxes shall apply only to the current taxes not yet due and
payable. Seller shall provide such affidavits, including title affidavits and
survey affidavits of no change, and undertakings as the Title Company insuring
title to the Premises may reasonably require. The words "insurable title" and
"insurable" as used in this Agreement are hereby defined to mean title which is
insurable at standard rates (without special premium) by the Title Company
without exception other than the Permitted Encumbrances, provided that any
additional premium payable with respect to the aforesaid affirmative insurance
shall be Purchaser's obligation.
13.05 Any unpaid taxes, water charges, sewer rents and assessments, together
with the interest and penalties thereon to a date not less than seven (7)
business days following the Closing Date (in each case subject to any applicable
apportionment), and any mortgages or other liens created by Seller, which Seller
is obligated to pay and discharge pursuant to the terms of this Agreement,
together with the cost of recording or filing of any instruments necessary to
discharge such liens and such judgments, shall be paid at the Closing by Seller.
Seller shall deliver to Purchaser, on the Closing Date, instruments in
recordable form sufficient to discharge any such mortgages or other liens which
Seller is obligated to pay and discharge pursuant to the terms of this
Agreement.
13.06 If the Title Commitments disclose judgments, bankruptcies or other
returns against other persons having names the same as or similar to that of
Seller, Seller, on request, shall deliver to the Title Company affidavits
showing that such judgments, bankruptcies or other returns are not against
Seller, or any affiliates. Upon request by Purchaser, Seller shall
deliver any affidavits and documentary evidence as are reasonably required by
the Title Company to eliminate the standard or general exceptions on the ALTA
form Owner's Policy.
13.07 If, on the Closing Date, the Premises or any part thereof shall be or
shall have been affected by an assessment or assessments which are or may become
payable in annual install ments, of which the first installment is either then a
charge or lien or has been paid, then for the purposes of this Agreement all the
unpaid installments of any such assessment, including those which are to become
due and payable after the Closing Date, shall be deemed to be due and payable
and to be liens upon the Premises and shall be paid and discharged by Seller on
the Closing Date.
Section 14
Broker
14.01 Purchaser represents and warrants to Seller that it has dealt with no
real estate broker other than Gladstone Properties in connection with this
Agreement and no other broker brought this transaction to Purchaser's attention.
Seller shall be responsible for all commissions payable to said broker, pursuant
to a separate agreement. Seller represents to Purchaser that no other broker has
an exclusive listing or brokerage agreement with respect to the sale to
Purchaser of the Leasehold, the Premises or the Land. Seller and Purchaser shall
indemnify and defend each other against any costs, claims or expenses, including
attorneys' fees, arising out of the breach, as judicially determined, on their
respective parts of any of their respective representations, warranties or
agreements contained in this paragraph. The representations and obligations
under this paragraph shall survive the Closing or, if the Closing does not
occur, the termination of this Agreement.
Section 15
Notices
All notices under this Agreement shall be in writing and shall be delivered
personally or shall be sent by prepaid registered or certified mail, addressed
as set forth on the first page of this Agreement, or as Seller or Purchaser
shall otherwise have given notice.
Section 16
Miscellaneous Provisions
16.01 This Agreement and the Schedules annexed hereto embodies and
constitutes the entire understanding between the parties with respect to the
transaction contemplated herein, and all prior agreements, understandings,
representations and statements, oral or written, are merged into this Agreement.
Neither this Agreement nor any provision hereof may be waived, modified,
amended, discharged or terminated except by an instrument signed by the party
against whom the enforcement of such waiver, modification, amendment, discharge
or termination is sought, and then only to the extent set forth in such
instrument.
16.02 This contract shall be governed by, and construed in accordance with,
the law of the State of Connecticut.
16.03 The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
16.04 This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns, subject
nevertheless to the provisions of Section 17.
16.05 This Agreement shall not be binding or effective until properly
executed and delivered by both Seller and Purchaser.
16.06 As used in this Agreement, the masculine shall include the feminine
and neuter, the singular shall include the plural and the plural shall include
the singular, as the context may require.
16.07 Purchaser shall not record this Agreement, or any notice hereof. If
Purchaser shall record or attempt to record this Agreement or any notice hereof,
this Agreement shall immediately thereupon terminate and be of no further force
or effect, and Seller shall retain the Downpayment as and for liquidated damages
arising from Purchaser's said default.
16.08 This Agreement may be executed by the parties hereto in counterparts,
all of which together shall constitute a single Agreement.
16.09 Each party shall, from time to time, execute,
acknowledge and deliver such further instruments, and perform such additional
acts, as the other party may reasonably request in order to effectuate the
intent of this Agreement. Nothing contained in this Agreement shall be deemed to
create any rights or obligations of partnership, joint venture or similar
association between Seller and Purchaser. This Agreement shall be given a fair
and reasonable construction in accordance with the intentions of the parties
hereto, and without regard to or aid of canons requiring construction against
Seller, Purchaser or the party whose counsel drafted this Agreement.
16.10 All references herein to any section, schedule or exhibit shall be to
the sections of this Agreement and to the schedules and exhibits annexed hereto
unless the context clearly dictates otherwise. All of the schedules and exhibits
annexed hereto are, by this reference, incorporated herein.
16.11 In the event of any litigation or alternative dispute resolution
between Seller and Purchaser in connection with this Agreement or the
transaction contemplated herein, the non-prevailing party in such litigation or
alternative dispute resolution shall be responsible for payment of all expenses
and reasonable attorneys' fees incurred by the prevailing party.
Section 17
Assignment
In the event of any assignment by Purchaser of this Agreement or Purchaser's
rights hereunder, (a) Purchaser shall, immediately upon such assignment, deliver
to Seller an executed counterpart of the instrument of assignment which shall
include the name and address of the assignee; and (b) Purchaser shall be and
remain jointly and severally liable with such assignee for the performance of
Purchaser's obligations hereunder.
Purchaser shall have the absolute right to assign this Agreement to an
affiliate of Purchaser.
Section 18
Casualty Loss
18.01 If any time prior to the Closing Date any portion of the Property is
destroyed or damaged as a result of fire or any casualty (a "Casualty"), Seller
shall promptly give written notice ("Casualty Notice") thereof to Purchaser
along with Seller's estimate, given in good faith, of the cost to repair as a
result of the Casualty (the "Repair Cost"). If the Repair Cost
is in excess of $50,000.00, then within ten (10) days after the receipt of the
Casualty Notice, Purchaser shall have the right, at its sole option, of
terminating this Agreement by written notice to Seller given within ten (10)
days after receipt of the Casualty Notice. If Purchaser does not terminate this
Agreement, the proceeds of any insurance with respect to the Property paid
between the date of this Agreement and the Closing Date plus the amount of
Seller's deductible shall be paid to Purchaser at Closing, and all unpaid claims
and rights in connection with losses to the Property shall be assigned to
Purchaser at Closing and Purchaser shall accept the Property with no requirement
on Seller's part to repair or replace any such casualty loss.
18.2 Seller shall cause all temporary repairs to be made to the Property as
shall be required to prevent further deterioration and damage to the Property
prior to the Closing date; provided, however, that any such repairs shall first
be approved by Purchaser. Seller shall have the right to be reimbursed from the
proceeds of any insurance with respect to the Property paid between the date of
this Agreement and the Closing Date for the cost of all repairs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Seller:
500 WEST XXXXXX ASSOCIATES
By:
A General Partner
By:
A Managing Partner
CECIO PROPERTIES LIMITED PARTNERSHIP
By:
A General Partner
By:
A General Partner
By:
A General Partner
By:
A General Partner
By:
A General Partner
By:
A General Partner
Purchaser:
CALI REALTY ACQUISITION CORPORATION
By:
President
Agreement by Escrowee
The undersigned hereby agrees to act as Escrowee pursuant to the provisions of
Section 2 of the foregoing Agreement.
PRYOR, CASHMAN, XXXXXXX &
XXXXX
By:
