Exhibit 2.1
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and entered
into as of this 16th day of November, 2001 (the "Contract Date") by and between
FIRST INDUSTRIAL, L.P., a Delaware limited partnership ("Seller"), and
TECHNOLOGY FLAVORS & FRAGRANCES, INC., a Delaware corporation ("Purchaser").
1. SALE
Seller agrees to sell and convey to Purchaser, and Purchaser agrees to
purchase from Seller, for the purchase price set forth below and on the terms
and conditions set forth in this Agreement, all of the following:
(a) that certain tract or parcel of land, together with all rights,
easements and interests appurtenant thereto including, but not limited to, any
streets or other public ways adjacent to said tract or parcel and any water or
mineral rights owned by, or leased to, Seller, which is described on Exhibit A
attached hereto and made a part hereof (the "Land");
(b) all of the buildings, structures, fixtures and other improvements
located on the Land, including, but not limited to, the building commonly known
by the street address 00 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx, and all other
on-site structures, systems, and utilities associated with the building (all
such improvements being referred to herein as the "Improvements");
(c) all of Seller's right, title and interest in and to all tangible
personal property upon the Land or within the Improvements, including, without
limitation, heating, ventilation and air conditioning systems and equipment,
appliances, furniture, tools and supplies, owned by Seller and used by Seller in
connection with the ownership and operation of the Land and the Improvements
(the "Personal Property");
(d) all of Seller's right, title and interest in and to all assignable
contracts and agreements to which Seller is party relating to the upkeep,
repair, maintenance, leasing or operation of any or all of the Land,
Improvements and the Personal Property, and all comparable contracts, agreements
or arrangements into which Seller enters prior to Closing pursuant to this
Agreement (collectively, the "Contracts"), except that Purchaser shall not
assume and accept at Closing those Contracts which constitute Rejected Contracts
(as hereinafter defined); and
(e) to the extent transferable, all of Seller's right, title and interest
(if any) in and to all intangible assets of any nature relating to any or all of
the Land, the Improvements and the Personal Property, including, but not limited
to, (i) all guaranties and warranties issued with respect to the Personal
Property or the Improvements; (ii) all plans and specifications, drawings and
prints describing the Improvements; (iii) trademarks or trade names associated
with the Improvements; and (iv) all licenses, permits, approvals, certificates
of occupancy, dedications, subdivision maps and entitlements now or hereafter
issued, approved or granted by any governmental authority in connection with the
Land or the Improvements (collectively, the "Intangibles").
The Land, the Improvements, the Personal Property, the Contracts and the
Intangibles are hereinafter referred to collectively as the "Property."
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2. PURCHASE PRICE
The total purchase price to be paid to Seller by Purchaser for the Property
shall be ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00)
[the "Purchase Price"], plus or minus prorations as hereinafter provided.
3. CLOSING
The purchase and sale contemplated herein shall be consummated at a closing
("Closing") to take place by mail or at the offices of the Title Company
(defined below). The Closing shall occur within thirty (30) days after the
Approval Date (as hereinafter defined), or as otherwise agreed by the parties
(the "Closing Date").
4. DEPOSIT
Not later than two (2) business days after the execution and delivery of
this Agreement by Purchaser and Seller, Purchaser shall deposit, as its xxxxxxx
money deposit, the sum of Seventy-Five Thousand and No/100 Dollars ($75,000.00)
(the "Xxxxxxx Money") in an escrow with the Title Company (the "Escrow")
pursuant to escrow instructions in the form attached hereto as Exhibit B. The
Xxxxxxx Money and all interest earned thereon are herein collectively referred
to as the "Deposit." Except as otherwise expressly set forth herein, the Deposit
shall be applied against the Purchase Price at Closing.
5. SELLER'S DELIVERIES
Prior to the execution of this Agreement, Seller has, to Seller's
knowledge, delivered or made available to Purchaser in the Long Island office of
First Industrial Realty Trust, Inc., a Maryland corporation and an affiliate of
Seller ("FR"), all of the documents and agreements described on Exhibit C
attached hereto and made a part hereof that are in Seller's possession or
reasonable control (the "Documents"), except for the Documents described in item
(c) on Exhibit C which have been delivered or made available to Purchaser only
to the extent such Documents are in Seller's actual possession. Seller shall
continue to make available to Purchaser or its agents for inspection in the Long
Island office of FR, all, to Seller's knowledge, of the Documents in Seller's
possession or reasonable control, except for the Documents described in item (c)
on Exhibit C which shall only be made available to Purchaser to the extent such
Documents are in Seller's actual possession. The Documents that are furnished or
made available to Purchaser pursuant to this Section 5 are being furnished or
made available to Purchaser for information purposes only and without any
representation or warranty by Seller with respect thereto, express or implied,
except as may otherwise be expressly set forth in this Section 5 or Section 8.1
below, in either case as limited by Section 8.2 below. Seller hereby represents
and warrants to Purchaser that, to Seller's knowledge, Seller has not failed to
deliver or make available true and complete copies of any Documents in Seller's
possession or reasonable control (except for the Documents described in item (c)
on Exhibit C which have been delivered or made available to Purchaser only to
the extent such Documents are in Seller's actual possession) which contain
information that would have a material adverse impact on (i) Purchaser's ability
to use and operate the Property as it is currently being used and operated and
(ii) the value of the Property.
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6. INSPECTION PERIOD
6.1. Basic Project Inspection. At all times prior to Closing, Purchaser and
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Purchaser's employees, third party consultants, lenders, engineers, accountants
and attorneys (collectively, the "Purchaser's Representatives") shall be
entitled to make investigations with regard to the environmental condition of
the Land and the Improvements and the compliance by the Land and the
Improvements with all applicable laws, ordinances, rules and regulations.
Purchaser shall provide not less than two (2) business days' prior notice to
Seller before conducting any investigations, study, test to or at the Land and
the Improvements. Notwithstanding anything contained herein to the contrary,
Purchaser shall not have the right to terminate this Agreement on account of
such studies and investigations and does not have the benefit of a so called
"due diligence" period.
6.2. Purchaser's Undertaking. Purchaser shall not conduct (or cause to be
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conducted) any physically intrusive investigation, examination or study of the
Land or the Improvements (any such investigation, examination or study, an
"Intrusive Investigation") as part of its inspections or otherwise without
obtaining the prior written consent of Seller. In the event Purchaser desires to
conduct (or cause to be conducted) any Intrusive Investigation of the Land or
the Improvements, such as sampling of soils, other media, building materials, or
the other comparable investigation, Purchaser will provide a written scope of
work to Seller describing exactly what procedures Purchaser desires to perform.
Seller may withhold its consent to any Intrusive Investigation of the Land or
the Improvements in its sole discretion. Purchaser and Purchaser's
Representatives shall, in performing its investigations, studies and
examinations, comply with the agreed upon procedures and with any and all laws,
ordinances, rules, and regulations applicable to any or all of such procedures,
the Land and the Improvements. Neither Purchaser nor Purchaser's Representatives
shall report the results of its investigations to any governmental or
quasi-governmental authority under any circumstances without obtaining Seller's
express written consent, which consent may be withheld in Seller's sole
discretion. Purchaser shall provide Seller with copies of any and all final,
third party reports prepared on behalf of Purchaser as part of its inspections
promptly after Purchaser's receipt of such reports. Purchaser and Purchaser's
Representatives shall: (a) maintain comprehensive general liability (occurrence)
insurance in an amount of not less than $1,000,000 covering any accident arising
in connection with the presence of Purchaser and Purchaser's Representatives at
the Land and the Improvements and the performance of any investigations,
examinations or studies thereon, and shall deliver a certificate of insurance
(in form and substance reasonably satisfactory to Seller), naming Seller as an
additional insured thereunder, verifying the existence of such coverage to
Seller prior to entry upon the Land or the Improvements; and (b) promptly pay
when due any third party costs associated with its investigations. Purchaser
shall, at Purchaser's sole cost, repair any damage to the Land or the
Improvements resulting from its investigations, studies and examinations, and,
to the extent Purchaser or Purchaser's Representatives alter, modify, disturb or
change the condition of the Land or the Improvements as part of such
investigations, studies and examinations, Purchaser shall, at Purchaser's sole
cost, restore the Land and the Improvements to the condition in which the same
were found before such alteration, modification, disturbance or change.
Purchaser hereby indemnifies, protects, defends and holds Seller, Seller's
affiliates, their respective partners, shareholders, officers and directors, and
all of their respective successors and assigns (collectively, the "Seller
Indemnified Parties") harmless
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from and against any and all losses, damages, claims, causes of action,
judgments, damages, costs and expenses (including reasonable attorneys' fees and
court costs) (collectively, "Losses") that Seller or any Seller Indemnified
Party suffers or incurs as a result of, or in connection with Purchaser's
investigations, studies and examinations or any Freezer Investigations (as
hereinafter defined). Purchaser's undertakings pursuant to this Section 6.2
shall indefinitely survive a termination of this Agreement or the Closing and
shall not be merged into any instrument of conveyance delivered at Closing.
6.3. Confidentiality. Purchaser agrees to maintain in confidence the
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information and terms contained in the Evaluation Materials (defined below) and
this Agreement (collectively, the "Transaction Information"). Purchaser shall
not, under any circumstances, disclose all or any portion of the Transaction
Information to any person or entity and shall maintain the Transaction
Information in the strictest confidence; provided, however, that Purchaser may
disclose the Transaction Information: (a) to Purchaser's Representatives to the
extent that Purchaser's Representatives reasonably need to know such Transaction
Information in order to assist, and perform services on behalf of, Purchaser;
(b) to the extent required by any applicable statute, law, regulation or
governmental authority; and (c) in connection with any litigation that may arise
between the parties in connection with the transactions contemplated by this
Agreement. Purchaser shall advise Purchaser's Representatives of the provisions
of this Section 6.3 and cause such parties to maintain the Transaction
Information as confidential information and otherwise comply with the terms of
this Section 6.3. For purposes of this Agreement, the term "Evaluation
Materials" shall mean the Documents and any other materials or information
delivered or made available by Seller or its agents to Purchaser or Purchaser's
Representatives together with (i) all analyses, compilations, studies or other
documents prepared by (or on behalf of) Purchaser, which contain or otherwise
reflect such information or materials and (ii) the results of any studies,
analysis or investigation of the Property undertaken by or on behalf of
Purchaser. Purchaser agrees that the Evaluation Materials shall be used solely
for purposes of evaluating the acquisition and potential ownership and operation
of the Property. Notwithstanding anything contained herein to the contrary, it
is understood and agreed that money damages would not be a sufficient remedy for
any breach of this Section 6.3 by Purchaser or Purchaser's Representatives and
that Seller shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach of this Section 6.3 by
Purchaser or Purchaser's Representatives. Purchaser further agrees to waive any
requirement for the security or posting of any bond in connection with such
remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of
this Section 6.3 but shall be in addition to all other remedies available at law
or in equity to Seller. In the event this Agreement is terminated for any reason
whatsoever, Purchaser shall promptly (and in any event within three (3) business
days after the effective date of termination) return to Seller the Documents and
any and all copies of the Documents and destroy any and all other Evaluation
Materials. The undertakings of Purchaser pursuant to this Section 6.3 shall
survive the termination of this Agreement.
6.4. Financing Contingency. It shall be a condition precedent to
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Purchaser's obligation to proceed to Closing that Purchaser obtains the
commitment of the Town of Babylon Industrial Development Authority (the "XXX")
for the financing necessary to acquire and improve the Property detailed in the
application attached hereto as Exhibit F on or prior to sixty (60) days after
the Contract Date (such date, the "Approval Date") (the foregoing contingency,
the
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"Financing Contingency"). The Financing Contingency shall not be satisfied
unless and until the adoption by the XXX of an Inducement Resolution evidencing
the intention of the FDA to provide the financial assistance with respect to the
Property detailed in the application attached hereto as Exhibit F. Purchaser
shall use its diligent and good faith efforts to satisfy the Financing
Contingency by obtaining a binding commitment in the form of such a resolution
from the XXX as soon as reasonably practicable after the Contract Date. Without
limitation of the foregoing, Purchaser shall submit a completed application for
a commitment, together with all required supporting documentation, to the XXX
not later than thirty-five (35) days after the Contract Date (such date, the
"Application Deadline") and provide evidence of such applications to Seller on
or prior to the Application Deadline. The failure by Purchaser to timely comply
with the requirements of the preceding sentence shall constitute a default by
Purchaser hereunder. If the Financing Contingency is not satisfied in
Purchaser's sole discretion on or prior to the Approval Date despite Purchaser's
diligent and good faith efforts, Purchaser may terminate this Agreement by
written notice to Seller (the "Financing Termination Notice"), delivered not
later than the Approval Date, whereupon the Deposit shall be returned to
Purchaser and neither party shall have any further liabilities or obligations
hereunder except for those liabilities and obligations that expressly survive a
termination of this Agreement. If Purchaser fails to timely deliver a Financing
Termination Notice to Seller prior to the Approval Date, Purchaser shall be
automatically deemed to have forever waived its right to terminate this
Agreement on the basis of the Financing Contingency, except as hereinafter
provided. Provided that Purchaser has diligently and in good faith attempted to
satisfy the Financing Contingency on or prior to the Approval Date but has been
unable to satisfy the Financing Contingency on or prior to the Approval Date,
Purchaser shall have two (2) options (each an "Extension Option") to extend the
Approval Date for an additional period of fifteen (15) days for all relevant
purposes by delivering Seller written notice of such election on or prior to the
Approval Date (as the same may have been previously extended). In the event
Purchaser fails to timely exercise an Extension Option by delivery of written
notice to Seller on or prior to the Approval Date (as the same may have been
previously extended), Purchaser shall be deemed to have permanently and
irrevocably waived any remaining Extension Options. Purchaser shall have no
right to exercise any Extension Option if the Financing Contingency has been
previously satisfied.
6.5. Purchaser's Limited Termination Right. Purchaser and Seller
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acknowledge and agree that certain leaking and other water run off is occurring
in that portion of the Improvements containing Purchaser's freezer units (the
"Freezer Area"). Purchaser desires, and Seller has agreed to permit, an
investigation of the roof in the Freezer Area for the limited purpose of
determining the source and cause of the leaking and water run off (the "Freezer
Investigations"). Purchaser shall have a period expiring as of fifteen (15) days
after the Contract Date (the "Freezer Approval Date") to conduct and perform, at
Purchaser's sole cost, the Freezer Investigations, which Freezer Investigations
shall in all events involve turning off Purchaser's freezer units for a period
of at least five (5) days to ascertain whether such freezer units are the source
of the leaking and water run off and otherwise be subject to Seller's reasonable
approval. Purchaser shall not conduct any Freezer Investigations without a
representative of Seller present to supervise such investigations, which
representatives shall be made reasonably available for such purposes, and copies
of all information, data and reports obtained by Purchaser in connection with
such Freezer Investigations shall be provided to Seller. All Freezer
Investigations shall be performed subject to the terms, conditions and
limitations of Section 6.2
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hereof. If, on or prior to the Freezer Approval Date, Purchaser reasonably
determines that the results of the Freezer Investigations reveal that (i) the
source and cause of the leaking and water run off is a defect in the roof of the
Improvements and not Purchaser's freezer units; and (ii) Seller is responsible
pursuant to the Lease to repair the roof condition causing leaking and water run
off (any such condition, a "Roof Condition"), Purchaser may elect, in its
reasonable discretion, to provide written notice to Seller on or prior to the
Freezer Approval Date of its election to terminate this Agreement (a "Freezer
Termination Notice"), which Freezer Termination Notice shall describe, in
reasonable specificity and detail, the applicable Roof Condition and the cause
thereof, whereupon, except as hereinafter provided, the Deposit shall be
returned to Purchaser and neither party shall have any further liability or
obligation hereunder. If Purchaser fails to timely and properly deliver a
Freezer Termination Notice, Purchaser shall be deemed to have waived its right
to deliver a Freezer Termination Notice and terminate this Agreement on the
basis of any Roof Condition. If Purchaser has timely and properly elected to
terminate this Agreement on the basis of a Roof Condition, Seller may elect, in
its sole discretion, to prevent Purchaser from terminating this Agreement
provided that, on or prior to five (5) business days after the Freezer Approval
Date, Seller elects (in its sole discretion) to repair the Roof Condition. If
Seller elects, in its sole discretion, to repair any Roof Condition, Seller
shall, at Seller's cost, repair such Roof Condition on or prior to Closing.
Purchaser shall have no right to terminate this Agreement on the basis of the
leaking and water run off if the source or cause is identified to be Purchaser's
freeze units or Seller is not obligated to repair the Roof Condition pursuant to
the Lease.
7. TITLE AND SURVEY MATTERS
7.1. Conveyance of Title. At Closing, Seller agrees to deliver to Purchaser
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a Bargain and Sale Deed with Covenants Against Grantor's Acts ("Deed"), in
recordable form, conveying the Land and the Improvements to Purchaser, free and
clear of all liens, claims and encumbrances except for the following items (the
"Permitted Exceptions"): (1) taxes not yet due and payable; (2) those matters
that may be approved (or deemed approved) by Purchaser pursuant to Section 7.4
or Section 10.1; (3) those exceptions and other matters set forth on Schedule
7.1 attached hereto; (4) those matters disclosed by the Survey (as hereinafter
defined); (5) matters arising out of any act of Purchaser or Purchaser's
Representatives; and (6) local, state and federal laws, ordinances, rules and
regulations, including, but not limited to, zoning ordinances (those liens,
claims, encumbrances and matters referred to in items (1) and (3) - (6) above,
the "Existing Permitted Exceptions").
7.2. Title Commitment. Promptly after the receipt of the same (and in any
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events within ten (10) business days after the Contract Date), Purchaser shall
deliver to Seller a commitment (the "Title Commitment") issued by Madison Park
Title Agency (the "Title Company"), for an owner's title insurance policy with
respect to the Land (the "Title Policy"), in the full amount of the Purchase
Price, together with copies of all recorded documents evidencing title
exceptions raised in "Schedule B" of such Title Commitment. It shall be a
condition precedent to Purchaser's obligation to proceed to Closing that, at
Closing, the Title Company shall issue the Title Policy (or a "marked" Title
Commitment) insuring, in the full amount of the Purchase Price, Purchaser as the
fee simple owner of the Land and the Improvements, subject only to the Permitted
Exceptions. If the foregoing condition precedent fails for any reason other than
the actions or omissions of Purchaser, Purchaser may elect to either (i) proceed
to Closing and waive the
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failure of such condition or (ii) terminate this Agreement by delivery of
written notice to Seller on or prior to Closing, in which event (i) the Deposit
shall be returned to Purchaser, and (ii) neither party shall have any further
liabilities or obligations hereunder except for those liabilities and
obligations that expressly survive a termination of this Agreement.
7.3. Survey. Seller has delivered or made available to Purchaser a copy of
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an existing survey of the Land and the Improvements (the "Survey") together with
the Documents. Purchaser hereby agrees that all matters disclosed on such Survey
shall be deemed acceptable to Purchaser for any and all purposes hereunder. Any
updates of the Survey, including, but not limited to recertification thereof, or
any new survey (any such new or updated survey, an "Updated Survey") shall be
the sole responsibility of Purchaser.
7.4. Defects and Cure
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7.4.1. Purchaser's Defect Notices. Purchaser shall accept title
to the Land and the Improvements subject to all of the Existing Permitted
Exceptions. If the Updated Survey or the Title Commitment discloses exceptions
to title other than the Existing Permitted Exceptions (such exceptions to title
being referred to as the "Disclosed Exceptions"), then Purchaser shall have
until 5:00 p.m. (Chicago time) on the date that is five (5) business days prior
to the Approval Date, within which to notify Seller of any such Disclosed
Exceptions to which Purchaser reasonably objects (any such notice, a "Defect
Notice"). Any exceptions to title (other than the Existing Permitted Exceptions
and the Disclosed Exceptions) that arise between the effective date of the Title
Commitment or the Updated Survey, as the case may be, and the Closing are
referred to herein as "New Defects." Purchaser shall have five (5) business days
after its receipt of written notice or updated title evidence reflecting any New
Defects within which to notify Seller in writing of any such New Defects to
which Purchaser reasonably objects.
7.4.2. Seller's Response Notices. Seller shall be obligated to cure
and remove (or procure title insurance over) all of the following classes of New
Defects and Disclosed Exceptions ("Mandatory Cure Items"), if any: (i) the liens
of any mortgage, trust deed or deed of trust evidencing an indebtedness owed by
Seller; (ii) tax liens for delinquent ad valorem real estate taxes; (iii)
mechanics liens pursuant to a written agreement either between (x) the claimant
(the "Contract Claimant") and Seller or its employees, officers or managing
agents (the "Seller Parties") or (y) the Contract Claimant and any other
contractor, materialman or supplier with which Seller or the Seller Parties have
a written agreement; and (iv) broker's liens pursuant to a written agreement
between the broker and Seller or any Seller Parties. Seller may elect, in its
sole discretion, to cure and remove any Disclosed Exception or New Defect
identified by Purchaser in a Defect Notice by delivering written notice to
Purchaser (a "Seller's Response Notice") indicating that Seller has elected to
cure and remove any such matters (any such matters that Seller elects to cure
and remove, "Seller Cure Items") not later than the sooner to occur of (i) five
(5) business days after Seller's receipt of the applicable Defect Notice; or
(ii) Closing. Seller shall have until Closing to cure and remove (or procure
title insurance over) any Seller Cure Items, and, Seller may delay Closing by up
to ten (10) business days in order to cure and remove (or procure title
insurance over) any such Seller Cure Items. If Seller fails to provide a
Seller's Response Notice, Seller shall be deemed to have delivered a Seller's
Response Notice electing not to cure and remove any New Defects or Disclosed
Exceptions identified by Purchaser in the
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applicable Defect Notice. If Seller elects (or is deemed to elect) not to cure
and remove any Disclosed Exceptions or New Defects, Purchaser may elect, in its
sole discretion and as its sole remedy hereunder, at law or in equity, by
delivery of written notice to Seller not later than the first to occur of (i)
the date that is five (5) business days after Purchaser's receipt (or deemed
receipt) of a Seller's Response Notice; or (ii) Closing, to either (a) proceed
to Closing and accept title to the Land and the Improvements, subject to those
Disclosed Exceptions or New Defects, as the case may be, that Seller has refused
(or is deemed to have refused) to cure or remove, without deduction or offset
against the Purchase Price or (b) terminate this Agreement, in which event the
Deposit shall be returned to Purchaser and neither party shall have any further
liabilities or obligations pursuant to this Agreement except those liabilities
or obligations that expressly survive termination of this Agreement. If
Purchaser fails to timely notify Seller of its election pursuant to the
preceding sentence, Purchaser shall be deemed to have elected alternative (a).
7.4.3. Title Cure Provisions. If, on or prior to Closing, Seller
fails to cure and remove (or procure title insurance over) each Disclosed
Exception or New Defect (other than Mandatory Cure Items), as the case may be,
that Seller agreed to cure (pursuant to a Seller's Response Notice), Purchaser
may, at its option and as its sole remedy hereunder, at law or in equity, either
(i) terminate this Agreement by written notice to Seller on or prior to Closing,
in which event (a) the Deposit shall be returned to Purchaser and (b) this
Agreement, without further action of the parties, shall become null and void and
neither party shall have any further liabilities or obligations under this
Agreement except for those liabilities or obligations which expressly survive
termination of this Agreement; or (ii) elect to consummate the Closing and
accept title to the Land and Improvements subject to all those Disclosed
Exceptions or New Defects that Seller has failed to cure or remove (in which
event, all such exceptions to title shall be deemed Permitted Exceptions),
without deduction or offset against the Purchase Price. If Purchaser fails to
make either such election, Purchaser shall be deemed to have elected option
(ii). If Seller fails to cure and remove (whether by endorsement or otherwise)
any Mandatory Cure Items on or prior to Closing, Purchaser may, at its option
and by delivery of written notice to Seller on or prior to Closing, either (A)
terminate this Agreement, in which event (x) the Deposit shall be returned to
Purchaser and (y) this Agreement, without further action of the parties, shall
become null and void and neither party shall have any further liabilities or
obligations under this Agreement except for those liabilities and obligations
which expressly survive a termination of this Agreement, or (B) proceed to close
with title to the Land and Improvements as it then is with the right to deduct
from the Purchase Price the liquidated amount reasonably necessary to cure and
remove (by endorsement or otherwise), as mutually and reasonably determined by
Purchaser and Seller, those Mandatory Cure Items that Seller fails to cure and
remove.
8. SELLER'S REPRESENTATIONS
8.1. Seller's Representations. Seller represents and warrants to Purchaser
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that the following matters are true as of the Contract Date, in all material
respects, except as may otherwise be provided in the Documents.
8.1.1. Due Authorization; Conflict. Seller is a limited
partnership, duly organized, validly existing and in good standing under the
laws of the State of Delaware. Seller
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has full power to execute, deliver and carry out the terms and provisions of
this Agreement and each of the other agreements, instruments and documents
herein required to be made or delivered by Seller pursuant hereto, and has
taken, or will take prior to Closing, all necessary action to authorize the
execution, delivery and performance of this Agreement and such other agreements,
instruments and documents. The individuals executing this Agreement and all
other agreements, instruments and documents herein required to be made or
delivered by Seller pursuant hereto on behalf of Seller are and shall be duly
authorized to sign the same on Seller's behalf and to bind Seller thereto. The
execution and delivery of, and consummation of the transactions contemplated by,
this Agreement are not prohibited by, and will not conflict with, constitute
grounds for termination of, or result in the breach of, any of the agreements or
instruments to which Seller is now party or by which it is bound, or any order,
rule or regulation of any court or other governmental agency or official.
8.1.2. Enforceability. This Agreement has been, and each and all of
the other agreements, instruments and documents herein required to be made by
Seller pursuant hereto have been, or on the Closing Date will have been,
executed by or on behalf of Seller, and when so executed, are and shall be
legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights of creditors generally and, as to enforceability, the general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).
8.2. Limitations. The representations and warranties of Seller to Purchaser
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contained in Section 8.1 hereof shall not survive the Closing Date and shall
merge into the Deed. As used herein, the term "to Seller's knowledge" shall
mean, and be limited to, the actual knowledge of Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxxxx without inquiry or investigation.
9. PURCHASER'S COVENANTS AND REPRESENTATIONS
Effective as of the execution of this Agreement, Purchaser hereby covenants
with Seller, and represents and warrants to Seller, as follows:
9.1. 1031 Exchange. Purchaser recognizes and understands that this
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transaction may be part of a contemplated "like kind" exchange for Seller under
(S) 1031 of the Internal Revenue Code (the "Exchange"). As such, Purchaser
agrees to cooperate with Seller in effectuating the Exchange, which cooperation
may include the execution of documents, reasonable delays of the Closing (which
delays shall not exceed thirty (30) days) and the taking of other reasonable
action, as is necessary in the opinion of Seller, to accomplish the Exchange;
provided, however, that Purchaser shall not be required to assume any additional
expense or liability in connection with, or as part of its cooperation with, the
Exchange. The covenant contained in this Section 9.1 shall survive the Closing
and shall not be merged into any instrument of conveyance delivered at Closing.
9.2. Due Authorization. Purchaser is a corporation duly organized, validly
-----------------
existing and in good standing under the laws of the State of Delaware. Purchaser
has full power to execute, deliver and carry out the terms and provisions of
this Agreement and each of the other agreements, instruments and documents
herein required to be made or delivered by Purchaser
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pursuant hereto, and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement and such other agreements,
instruments and documents. The individuals executing this Agreement and all
other agreements, instruments and documents herein required to be made or
delivered by Purchaser pursuant hereto on behalf of Purchaser are and shall be
duly authorized to sign the same on Purchaser's behalf and to bind Purchaser
thereto.
9.3. Enforceability. This Agreement has been, and each and all of the other
--------------
agreements, instruments and documents herein required to be made by Purchaser
pursuant hereto have been, or on the Closing Date will have been, executed by
Purchaser or on behalf of Purchaser, and when so executed, are and shall be
legal, valid, and binding obligations of Purchaser enforceable against Purchaser
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting the
rights of creditors generally and, as to enforceability, the general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).
9.4. No Conflict. The execution and delivery of, and consummation of the
-----------
transactions contemplated by this Agreement is not prohibited by, and will not
conflict with, constitute grounds for termination of, or result in the breach of
any of the agreements or instruments to which Purchaser is now party or by which
it is bound, or any order, rule or regulation of any court or other governmental
agency or official.
9.5. Environmental Testing and Cleaning. Purchaser hereby covenants and
----------------------------------
agrees, at Purchaser's cost, to clean-up, remediate, remove and otherwise
satisfy the testing and other requirements imposed by the County of Suffolk
Department of Health (the "Department") pursuant to (i) that certain letter
dated July 11, 2001 from the Department to Xxxxxx X. Denterman and X. Xxx; (ii)
that certain notice dated July, 1998 from the Department to Purchaser; (iii)
that certain memorandum to file from Xxxx Xxxxxxxxxx dated August 3, 2001; and
(iv) any follow up notices, demands and requirements by the Department in
connection with the environmental condition detailed in the correspondence
described in items (i)-(iii) above (the "Environmental Condition") if and to the
extent Purchaser is required by the terms of the Lease (as hereinafter defined).
Without limitation of the foregoing, Purchaser shall otherwise promptly and
completely comply with its obligations pursuant to the Lease with respect to the
Environmental Condition.
10. ACTIONS AFTER THE CONTRACT DATE.
The parties covenant to do the following through the Closing Date:
10.1. Title. From and after the Approval Date, Seller shall not make any
-----
change to the condition of title to either or both of the Land and the
Improvements that would change the condition of title approved or deemed
approved by Purchaser pursuant to Section 7.4, except as required by law or by
Section 7.4, or with Purchaser's advance written consent, which consent may be
withheld in Purchaser's reasonable discretion. From and after the Approval Date,
Seller shall not sell, or assign or create any right, title or interest in, any
or all of the Land, the Improvements and any part of either of them, or create
any lien, encumbrance or charge thereon, without the prior written consent of
Purchaser, which consent may be withheld in Purchaser's reasonable discretion.
-11-
11. PROPERTY SOLD "AS IS".
11.1. Except as is otherwise expressly provided in this Agreement, Seller
hereby specifically disclaims any warranty (oral or written) concerning: (i) the
nature and condition of the Property and the suitability thereof for any and all
activities and uses that Purchaser elects to conduct thereon; (ii) the manner,
construction, condition and state of repair or lack of repair of the
Improvements; (iii) the compliance of the Land and the Improvements or their
operation with any laws, rules, ordinances or regulations of any government or
other body; and (iv) any other matter whatsoever except as- expressly set forth
in this Agreement. EXCEPT AS IS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON A STRICTLY "AS IS"
"WHERE IS" BASIS AS OF THE CLOSING DATE, AND SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING,
BUT IN NO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION,
HABITABILITY, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OF THE PROPERTY, ANY IMPROVEMENTS LOCATED THEREON OR ANY SOIL CONDITIONS RELATED
THERETO.
11.2. PURCHASER SPECIFICALLY ACKNOWLEDGES THAT PURCHASER IS NOT RELYING ON
(AND SELLER HEREBY DISCLAIMS AND RENOUNCES) ANY REPRESENTATIONS OR WARRANTIES
MADE BY OR ON BEHALF OF SELLER OF ANY KIND OR NATURE WHATSOEVER, EXCEPT FOR
THOSE PARTICULAR REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS
AGREEMENT. FURTHER, PURCHASER, FOR PURCHASER AND PURCHASER'S SUCCESSORS AND
ASSIGNS, HEREBY RELEASES SELLER FROM, AND WAIVES, ANY AND ALL CLAIMS AND
LIABILITIES AGAINST SELLER FOR, RELATED TO, OR IN CONNECTION WITH, ANY
ENVIRONMENTAL OR PHYSICAL CONDITION AT THE PROPERTY (OR THE PRESENCE OF ANY
MATTER OR SUBSTANCE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY),
INCLUDING, BUT NOT LIMITED TO, CLAIMS AND/OR LIABILITIES RELATING TO (IN ANY
MANNER WHATSOEVER) ANY HAZARDOUS, TOXIC OR DANGEROUS MATERIALS OR SUBSTANCES
LOCATED IN, AT, ABOUT OR UNDER THE PROPERTY, OR FOR ANY AND ALL CLAIMS OR CAUSES
OF ACTION (ACTUAL OR THREATENED) BASED UPON, IN CONNECTION WITH, OR ARISING OUT
OF, CERCLA, AS AMENDED BY XXXX, AND AS MAY BE FURTHER AMENDED FROM TIME TO TIME,
RCRA, OR ANY OTHER CLAIM OR CAUSE OF ACTION (INCLUDING ANY FEDERAL OR STATE
BASED STATUTORY, REGULATORY OR COMMON LAW CAUSE OF ACTION) RELATED TO
ENVIRONMENTAL MATTERS OR LIABILITY WITH RESPECT TO, OR AFFECTING, THE PROPERTY.
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT
PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED
TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS
NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE
EXISTENCE OR NONEXISTENCE OF, OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO,
ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE LAND OR THE
IMPROVEMENTS, AND WILL RELY
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SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY, OR ON BEHALF OF,
SELLER, ITS AGENTS AND EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS AND WARRANTIES OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS
AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF
ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLER, AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND
ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING
THE PROPERTY. PURCHASER AGREES THAT, SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL
OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE
REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEANUP, REMOVAL OR REMEDIATION SHALL
BE THE RESPONSIBILITY OF, AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE
OF, PURCHASER.
11.3. PURCHASER ACKNOWLEDGES AND AGREES THAT THE WAIVERS, RELEASES AND
OTHER PROVISIONS CONTAINED IN THIS SECTION 11 WERE A MATERIAL FACTOR IN SELLER'S
ACCEPTANCE OF THE PURCHASE PRICE AND THAT SELLER IS UNWILLING TO SELL THE
PROPERTY TO PURCHASER UNLESS SELLER IS RELEASED AS EXPRESSLY SET FORTH ABOVE.
PURCHASER, WITH PURCHASER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND
WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT
THEREOF. THE TERMS AND CONDITIONS OF THIS SECTION 11 WILL EXPRESSLY SURVIVE THE
CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS, AND WILL
BE INCORPORATED INTO THE DEED.
12. SELLER'S CLOSING DELIVERIES.
At Closing (or such other times as may be specified below), Seller shall deliver
or cause to be delivered to Purchaser the following:
12.1. Deed. A Deed, executed by Seller, and in recordable form, conveying
----
the Land and Improvements to Purchaser, subject to the Permitted Exceptions.
12.2. Lease Termination Agreement. Two (2) duly executed Termination
---------------------------
Agreements (the "Termination Agreement") pursuant to which Seller, as landlord,
and Purchaser, as tenant,
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terminate that certain Industrial Building Lease (the "Lease") by and between
Seller (or its predecessor-in-interest) and Purchaser.
12.3. Assignment of Contracts. Two (2) duly executed counterparts of an
Assignment and Assumption of Contracts and Intangibles (an "Assignment of
Contracts") in the form attached hereto as Exhibit D.
12.4. Xxxx of Sale. Two (2) duly executed originals of a Xxxx of Sale (the
"Xxxx of Sale") in the form attached hereto as Exhibit E.
12.5. Keys. Keys to all locks located in the Improvements.
12.6. Affidavit of Title. An affidavit of title (or comparable "no lien"
statement), in form and substance reasonably acceptable to the Title Company.
12.7. Closing Statement. Two (2) duly executed counterparts of a closing
statement (the "Closing Statement") conforming to the proration and other
relevant provisions of this Agreement, which Closing Statement shall be in a
form mutually and reasonably agreed upon by Seller and Purchaser.
12.8. Entity Transfer Certificate. Entity Transfer Certification confirming
that Seller is a "United States Person" within the meaning of Section 1445 of
the Internal Revenue Code of 1986, as amended.
12.9. Evidence of Authority. Such evidence of Seller's authority to convey
the Property as the Title Company shall reasonably require.
13. PURCHASER'S CLOSING DELIVERIES
At Closing (or at such other times as may be specified below), Purchaser
shall deliver or cause to be delivered to Seller the following:
13.1. Closing Statement. Two (2) Closing Statements executed in counterpart
-----------------
by Purchaser.
13.2. Termination Agreement. Two (2) Termination Agreements executed in
---------------------
counterpart by Purchaser.
13.3. Assignment of Contracts. Two (2) Assignment of Contracts executed in
-----------------------
counterpart by Purchaser.
14. PRORATIONS AND ADJUSTMENTS
Prorations shall be made as of the Closing Date as if Purchaser were in
title for the entire Closing Date provided that no later than 11:00 a.m. Central
Time on the Closing Date, the Purchase Price, plus or minus the prorations and
other adjustments hereunder, shall be received by the Title Company from
Purchaser for disbursement to Seller by Federal Reserve wire
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transfer of immediately available funds to an account designated by Seller. If
the net proceeds of the Purchase Price payable to Seller (after adjustments and
prorations) are not sent by Federal Reserve wire transfer in immediately
available funds and received by the Title Company from Purchaser for
disbursement to Seller on or prior to 11:00 a.m. Central Time on the Closing
Date, prorations shall be made as of the Closing Date as if Seller remained in
title as of the entire Closing Date, except that, to the extent such delay
results from Seller's failure to provide deliveries or default, prorations shall
be made pursuant to the preceding sentence. The following shall be prorated and
adjusted between Seller and Purchaser:
14.1. Security Deposits. The amount of all cash security and any other cash
-----------------
tenant deposits actually held by Seller, and interest due thereon, if any, shall
be credited to Purchaser. 96514 3
14.2. Utilities and Operating Expenses. Any operating expenses that are not
--------------------------------
paid by Purchaser, as Additional Rent or otherwise, shall be prorated between
Purchaser and Seller, with Seller receiving a credit for any operating expenses
paid by Seller and related to the period from and after Closing.
14.3. Contracts. Amounts paid or payable under the Contracts other than any
---------
Rejected Contracts shall be prorated.
14.4. Base Rent. Base or. fixed rent, estimated payments and expenses and
---------
other amounts of additional rent due under the Lease other than taxes and
assessments (collectively, "Rents") for the calendar month in which the Closing
occurs ("Closing Month") shall be prorated at Closing, which Rents shall be
prorated using the total number of days during such Calendar Month. If Purchaser
has paid Rents for the Closing Month, Seller shall provide a credit to Purchaser
for that portion of the Closing Month occurring from and after the Closing Date.
If Purchaser has not paid Rents for the Closing Month, Purchaser shall provide a
credit to Seller for that portion of the Closing Month occurring prior to the
Closing Date. Notwithstanding the foregoing, Purchaser shall provide a credit to
Seller at Closing for the entire amount of any and all unpaid Rents for the term
of the Lease occurring prior to the Closing Month. Purchaser shall not be
entitled to any credit on account of that portion of additional rental amounts
that is payable on account of general real estate taxes, personal property and
ad valorem taxes that is allocable to the period from and after Closing.
14.5. Any installment of assessments, general or special, or any general
real estate taxes, personal property and ad valorem taxes payable during the
term of the Lease prior to Closing that have been paid by Seller and not
reimbursed by Purchaser to Seller pursuant to the Lease shall be credited to
Seller by Purchaser at Closing. Purchaser shall be responsible for any such
installments of assessments or any general real estate taxes, personal property
and ad valorem taxes due and payable after Closing.
15. CLOSING EXPENSES
Seller shall only pay for: any transfer taxes and one-half of the cost of
any escrows hereunder. Purchaser shall pay for one-half of any escrow costs
hereunder, the cost of recording the Deed, the basic premium for the Title
Policy, the cost of "extended form coverage" and any
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endorsements to the Title Policy, the cost of any Updated Survey, and any
mortgage or recording taxes.
16. DESTRUCTION, LOSS OR DIMINUTION OF PROPERTY
If, prior to Closing, all or any portion of any or all of the Land and the
Improvements is damaged by fire or other natural casualty (collectively
"Damage"), or is taken or made subject to condemnation, eminent domain or other
governmental acquisition proceedings (collectively "Eminent Domain"), then:
16.1. If the aggregate cost of repair or replacement or the value of the
Eminent Domain (collectively, "repair and/or replacement") is $100,000 or less,
in the opinion of Purchaser's and Seller's respective engineering consultants,
Purchaser shall close and take the Property as diminished by such events, with
an assignment by Seller of (a) any casualty insurance proceeds (together with a
credit from Seller to Purchaser of the full amount of any deductible not paid
directly by Seller) or (b) condemnation proceeds, and in the case of either (a)
or (b), less any amounts reasonably incurred by Seller to repair the Property
and collect the insurance proceeds or condemnation award.
16.2. If the aggregate cost of repair and/or replacement is greater than
$100,000, in the opinion of Purchaser's and Seller's respective engineering
consultants, then Purchaser, at its sole option, may elect either to (i)
terminate this Agreement by written notice to Seller delivered within ten (10)
days after Purchaser is notified of such Damage or Eminent Domain, in which
event the Deposit shall be returned to Purchaser and neither party shall have
any further liability to the other hereunder, except for those liabilities that
expressly survive a termination of this Agreement; or (ii) proceed to close and
take the Property as diminished by such events, together with an assignment of
the proceeds of Seller's casualty insurance (together with a credit from Seller
to Purchaser of the full amount of any deductible not paid directly by Seller)
for all Damage (or condemnation awards for any Eminent Domain), less any amounts
reasonably incurred by Seller to repair the Property and collect the insurance
proceeds or condemnation award.
16.3. In the event of a dispute between Seller and Purchaser with respect
to the cost of repair and/or replacement with respect to the matters set forth
in this Section 16, an engineer designated by Seller and an engineer designated
by Purchaser shall select an independent engineer licensed to practice in the
jurisdiction where the Property is located who shall resolve such dispute. All
fees, costs and expenses of such third engineer so selected shall be shared
equally by Purchaser and Seller.
17. DEFAULT
17.1. Default by Seller. If Seller is in material default under any of the
-----------------
covenants and agreements of Seller hereunder, Purchaser may either (i) terminate
Purchaser's obligations under this Agreement by written notice to Seller, in
which event (a) the Deposit shall be returned to Purchaser and (b) upon
Purchaser's receipt of the Deposit, this Agreement shall terminate and neither
party shall have any further liability hereunder except for those liabilities
that expressly survive a termination of this Agreement; or (ii) Purchaser may
file an action for specific
-16-
performance. Purchaser shall have no other remedy for any default by Seller. A
default by Seller hereunder shall not constitute a default pursuant to the Lease
unless the actions or omissions giving rise to such default would otherwise
constitute a default by Seller pursuant to the Lease.
17.2. Default by Purchaser. In the event Purchaser defaults in its
--------------------
obligations to close the purchase of the Property, or in the event Purchaser
otherwise defaults hereunder, then (i) Seller shall be entitled to (and shall)
receive the Deposit as fixed and liquidated damages, this Agreement shall
terminate and neither party shall have any further liability hereunder, except
for those liabilities which expressly survive the termination of this Agreement
and (ii) Purchaser shall immediately direct the Title Company, in writing, to
pay the Deposit to Seller. Seller shall have no other remedy for any default by
Purchaser, including any right to damages. PURCHASER AND SELLER ACKNOWLEDGE AND
AGREE THAT: (1) THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF AND BEARS
A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS
INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND
THE FAILURE OF CLOSING TO HAVE OCCURRED DUE TO A DEFAULT OF PURCHASER UNDER THIS
AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A
RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER
UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE;
(3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF
THE DEPOSIT IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER
UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE DEPOSIT SHALL BE AND CONSTITUTE
VALID LIQUIDATED DAMAGES. In the event Purchaser advises Seller, or Seller
otherwise becomes aware that Purchaser is unable or unwilling to proceed to
Closing on or prior to the Closing Date, Seller shall be entitled to immediately
collect the Deposit and shall not be obligated to proceed to Closing and present
the Deed and the other conveyance documents as a condition to collecting the
Deposit. All of the foregoing shall be without limitation upon the rights and
remedies of Seller hereunder, at law or in equity, in the event of a default by
Purchaser pursuant to Sections 6.1, 6.2, 6.3, 19 or 22 or any covenant,
agreement, indemnity, representation or warranty of Purchaser that survives the
Closing or the termination of this Agreement. A default by Purchaser hereunder
shall not constitute a default by Purchaser pursuant to the Lease unless the
actions or omissions giving rise to such default would otherwise constitute a
default by Purchaser pursuant to the Lease.
18. SUCCESSORS AND ASSIGNS
Neither party shall assign this Agreement without the prior written consent
of the other, except that Seller may assign its interest in and obligations
under this Agreement to a so-called "Qualified Intermediary" in order to
accomplish the Exchange. Notwithstanding the foregoing, Purchaser may assign all
of its rights, title, liability, interest and obligation pursuant to this
Agreement to one or more entities affiliated with Purchaser provided that (i) no
such assignment shall act to release Purchaser hereunder and (ii) Purchaser
provides Seller with a copy of a written assignment agreement between Purchaser
and its affiliate, which instrument shall be in form reasonably acceptable to
Seller.
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19. LITIGATION
In the event of litigation between the parties with respect to the
Property, this Agreement, the performance of their respective obligations
hereunder or the effect of a termination under this Agreement, the losing party
shall pay all costs and expenses incurred by the prevailing party in connection
with such litigation, including, but not limited to, reasonable attorneys' fees
of counsel selected by the prevailing party. Notwithstanding any provision of
this Agreement to the contrary, the obligations of the parties under this
Section 19 shall survive termination of this Agreement or the Closing and the
delivery of any conveyance documentation.
20. NOTICES
Any notice, demand or request which may be permitted, required or desired to be
given in connection therewith shall be given in writing and directed to Seller
and Purchaser as follows: Seller: First Industrial, L.P. 00 Xxxxx 00 Xxxx Xxxxx
000 Xxxx Xxxxx, Xxx Xxxxxx 00000 Attn: Xxxxxx Xxxxxxx Facsimile: (000) 000-0000
With a copy to its attorneys: Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 X. Xxxxxx Xxxxx 00xx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Attn: Xxxx X. Xxxxxxxx,
Esq. Facsimile: (000) 000-0000 Purchaser: Technology Flavors & Fragrances, Inc.
00 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx, Xxx Xxxx 00000-0000 Attn: Xxxxxx Xxxxx, Vice
President Facsimile: (000) 000-0000 With a copy to its attorneys: Xxxx Xxxxx &
Xxxxx 000 0xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000 Notices shall be deemed properly delivered and
received: (i) when and if personally delivered; or (ii) one (1) business day
after deposit with Federal Express or other comparable commercial overnight
courier; or (iii) the same day when sent by confirmed facsimile before 5:00 p.m.
(Central Time). Notices may be delivered on behalf of the parties by their
respective attorneys.
21. BENEFIT
This Agreement is for the benefit only of the parties hereto and no other
person or entity shall be entitled to rely hereon, receive any benefit herefrom
or enforce against any party hereto any provision hereof.
22. BROKERAGE
Each party hereto represents and warrants to the other that it has dealt
with no brokers or finders in connection with this transaction, except for
Xxxxxx & Xxxxxxx ("Broker"). Seller shall pay any brokers' commission due to
Broker pursuant to the terms of a separate agreement between Seller and Broker.
Seller hereby indemnifies, protects, defends and holds Purchaser and the
Purchaser's Indemnified Parties harmless from and against all Losses suffered or
incurred by any or all of Purchaser and the Purchaser's Indemnified Parties
resulting from the claims of any broker, finder or other such party (including
Broker) in connection with the transactions contemplated by this Agreement
claiming by, through or under the acts or agreements of Seller. Purchaser hereby
indemnifies, protects, defends and holds Seller and the Seller Indemnified
Parties harmless from and against all Losses suffered or incurred by any or all
of Seller and the Seller Indemnified Parties resulting from the claims of any
broker, finder or other such party (excluding Broker) in connection with the
transactions contemplated by this Agreement claiming
-18-
by, through or under the acts or agreements of Purchaser. The obligations of the
parties pursuant to this Section 22 shall survive any termination of this
Agreement.
23. MISCELLANEOUS
23.1. Entire Agreement. This Agreement constitutes the entire understanding
----------------
between the parties with respect to the transaction contemplated herein, and all
prior or contemporaneous oral agreements, understandings, representations and
statements, and all prior written agreements, understandings, letters of intent
and proposals are merged into this Agreement. Neither this Agreement nor any
provisions hereof may be waived, modified, amended, discharged or terminated
except by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
23.2. Time of the Essence. Time is of the essence of this Agreement. If any
-------------------
date herein set forth for the performance of any obligations by Seller or
Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or legal holiday. As used herein, the term
"legal holiday" means any state or federal holiday for which financial
institutions or post offices are generally closed in the State of New Jersey for
observance thereof.
23.3. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New Jersey.
23.4. Partial Invalidity. The provisions hereof shall be deemed independent
------------------
and severable, and the invalidity or partial invalidity or enforceability of any
one provision shall not affect the validity of enforceability of any other
provision hereof.
23.5. No Recording. Neither this Agreement nor any memorandum thereof shall
------------
be recorded and the act of recording by Purchaser shall be deemed a default by
Purchaser hereunder.
23.6. Counterparts; Facsimile. This Agreement may be executed in multiple
-----------------------
counterparts and shall be valid and binding with the same force and effect as if
all parties had executed the same Agreement. A fully executed facsimile copy of
this Agreement shall be effective as an original.
23.7. Construction of Agreement. In construing this Agreement, all headings
-------------------------
and titles are for the convenience of the parties only and shall not be
considered a part of this Agreement. Whenever required by the context, the
singular shall include the plural and the masculine shall include the feminine
and vice versa. This Agreement shall not be construed as if prepared by one of
the parties, but rather according to its fair meaning as a whole, as if both
parties had prepared it. All Exhibits attached hereto are incorporated in this
Agreement by reference thereto.
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23.8. No Oral Modification or Waiver. This Agreement may not be changed or
------------------------------
amended orally, but only by an agreement in writing. No waiver shall be
effective hereunder unless given in writing, and waiver shall not be inferred
from any conduct of either party.
23.9. Survival. Only those covenants, agreements, undertakings and
--------
representations and warranties of Seller that expressly survive Closing pursuant
to the terms of the Agreement shall survive Closing and the delivery of any
conveyance documentation for the period herein set forth and all of the other
covenants, agreements, undertakings and representations and warranties of Seller
contained herein shall not survive Closing and shall merge into the conveyance
documentation delivered at Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Purchase and Sale on the date first above written.
SELLER:
FIRST INDUSTRIAL, L.P., a Delaware limited
partnership
By: ____________________________
First Industrial Realty Trust, Inc., a
Maryland Corporation And Its Sole General
Partner
PURCHASER:
TECHNOLOGY FLAVORS & FRAGRANCES, INC.,
a Delaware corporation
By: __________________________
Name: ________________________
Its: ________________________
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SCHEDULE OF EXHIBITS
--------------------
A Legal Description of the Land
B Xxxxxxx Money Escrow Instructions
C Documents
D Assignment and Assumption of Contracts and Intangibles
E Xxxx of Sale
F Financing Application
Schedule 7.1
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
-----------------------------
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Incorporated Village of Amityville, Town of Babylon, County of Suffolk and State
of New York, known as and by Lots 13, 14 and 15 and the southerly 25 feet of 16
on a certain map entitled, "Map of Amityville Industrial Site", situate in the
Village of Amityville, Town of Babylon, Suffolk County, N.Y., which map was
filed in the Office of the. Clerk of the County of Suffolk on April 12, 1954 as
Map No. 2186, said lots and part of lot, when taken together are more
particularly bounded and described as follows:
BEGINNING at a point on the easterly side of Edison Street, distant 272.21 feet
northerly when measured along the easterly side of Edison Street from the
extreme northerly end of the arc of a curve connecting the said easterly side of
Edison Street with the northerly side of Edison Street East;
RUNNING THENCE South 86 degrees 11 minutes 40 seconds East, 200 feet to the
westerly side of XxXxxxxx Street;
THENCE South 8 degrees 55 minutes 10 seconds West along the westerly side of
XxXxxxxx Street, 280 feet to the extreme northerly end of the arc of a curve
connecting the said westerly side of XxXxxxxx Street with the northerly side of
Edison Street East;
THENCE southerly and westerly along the arc of said last mentioned curve bearing
to the right having a radius of 20.00 feet, a distance of 30.54 feet to the
northerly side of Edison Street East;
THENCE North 83 degrees 36 minutes 17 seconds West along the northerly side of
Edison Street East 91.96 feet;
THENCE North 86 degrees 11 minutes 40 second West along the northerly side of
Edison Street East 66.70 feet to the extreme end of the arc of a curve
connecting the said northerly side of Edison Street East with the easterly side
of Edison Street;
THENCE westerly and northerly along the arc of last mentioned curve bearing to
the right having a radius of 20.00 feet, a distance of 33.20 feet to the said
easterly side of Edison Street;
THENCE North 8 degrees 55 minutes 10 seconds East along the easterly side of
Edison Street 272.21 feet to the point or place of BEGINNING.
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