PURCHASE AND SALE AGREEMENT
DATED AS OF DECEMBER 2, 2002
BY AND BETWEEN
STATE OF WISCONSIN INVESTMENT BOARD,
AN INDEPENDENT AGENCY OF THE STATE
OF WISCONSIN, AS SELLER
AND
URSTADT ▇▇▇▇▇▇ PROPERTIES INC., AS PURCHASER
FOR THE PURCHASE AND SALE OF
WESTCHESTER PAVILION
WHITE PLAINS, NEW YORK
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is made as of the
____ day of November, 2002, by and between STATE OF WISCONSIN INVESTMENT BOARD,
an independent agency of the State of Wisconsin ("Seller"), with its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and URSTADT ▇▇▇▇▇▇
PROPERTIES INC. ("Purchaser"), with its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S:
A. Seller is the owner of the fee simple interest in the land located
at the corner of Maple Avenue and South Broadway, White Plains, New York, which
land is more particularly described on Exhibit A attached hereto (the "Land"),
and all buildings, structures and improvements located thereon, commonly known
as Westchester Pavilion, including a fully enclosed "vertical power" center
containing approximately 173,569 rentable square feet and a 4-level parking
structure containing approximately 667 parking spaces (collectively the
"Improvements").
B. Seller is the owner of certain fixtures, equipment and personal
property more particularly described in Section 1.1(b) located on or in the Land
and Improvements; and
C. Seller has agreed to sell and Purchaser has agreed to purchase the
aforesaid Land, Improvements, Personal Property and other property hereinafter
described on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
ARTICLE 1
Property
Section 1.1 Purchase. Subject to the terms and conditions contained
herein and in reliance on the representations, warranties, covenants and
undertakings contained herein, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, free and clear of all liens, claims,
encumbrances, mortgages and deeds of trust, but subject only to "Permitted
Exceptions" (as hereinafter defined), the following (collectively the
"Property"):
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(a) the Land and Improvements, together with all of Seller's
right, title and interest in and to all tenements, hereditaments, privileges,
and appurtenances in any way belonging or appertaining thereto;
(b) all tangible personal property owned by Seller in
connection with the ownership, management, leasing, operation and maintenance of
the Land and Improvements (collectively the "Personal Property"), including, but
not limited to equipment, personal property, furniture, appliances, and all
heating, ventilating, incinerating, lighting, plumbing, electrical,
air-conditioning fixtures, hot water heaters, furnaces, heating controls,
motors, and boiler pressure systems and equipment owned by Seller and located in
or on the Land or Improvements and specifically including, without limitation,
the personal property identified on Exhibit B hereto;
(c) all right, title and interest of Seller to land, if any,
lying in the bed of any street, road, or avenue, open or proposed, at the foot
of, adjoining or below the Land and in and to any strips and gores adjoining the
Land;
(d) all of Seller's right, title and interest, as lessor, in
all "Leases" (as hereinafter defined), together with, and subject to the
provisions of Article 9 hereof, all rents and other sums to become due, under
each such Lease, and all lease security deposits and guarantees;
(e) subject to the provisions of Section 7.2 hereof, all of
the Seller's right, title and interest in and to all Service Contracts;
(f) all of Seller's right, title and interest in and to all
plans and specifications relating to the construction, improvement and build-out
of the Improvements, all drawings, surveys, maps, engineering reports and other
technical descriptions and test results relating to the Land, Improvements and
Personal Property and all unexpired warranties and guarantees, if any, in
Seller's possession relating to the construction, improvement, or equipping of
the Land or Improvements;
(g) all of Seller's books and records relating to the leasing,
operation and maintenance, construction and development of the Land and
Improvements ("Books and Records");
(h) all of Seller's right, title and interest in and to any
intangible property and rights, including names under or by which the Land
and/or Improvements have been operated, and all goodwill in any way associated
with the Land and/or Improvements, all service marks and logos used in
connection therewith and all claims and indemnities relating to the Land,
Improvements and/or Personal Property;
(i) all deposits with public and quasi-public utility
companies; and
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(j) all licenses, permits, certificates of occupancy,
franchises, approvals, authorizations and consents now and/or hereafter issued
by any federal, state, county or municipal authority relating to the Property
identified in clauses (a) through (i) above, running to, or in favor of, the
Seller or the Property identified in clauses (a) through (i) above.
ARTICLE 2
PURCHASE AND SALE; PURCHASE PRICE
Section 2.1 Purchase Price. The purchase price for the Property shall
be the sum of Forty One Million and 00/100 Dollars ($41,000,000.00) (the
"Purchase Price"), plus or minus prorations as hereinafter provided, and shall
be payable (i) by payment of $250,000.00 ("First Deposit") paid into escrow with
the Title Company as Escrow Agent with the execution and delivery hereof (ii)
$500,000.00 paid into escrow on the termination of the Inspection Period
(together with the First Deposit the "▇▇▇▇▇▇▇ Money") and (iii) the balance to
be paid as set forth in Section 2.2 below, and distributable as set forth on
Exhibit C.
Section 2.2 Payment of Purchase Price. Provided the conditions to
"Closing" (as hereinafter defined) set forth herein have been satisfied or
waived by Purchaser and subject to the provisions of Section 2.1 hereof and
Exhibit C hereto, the Purchase Price, net of ▇▇▇▇▇▇▇ Money, (including interest
thereon), prorations and adjustments as provided in Article 9 hereof, shall be
paid on the Closing Date by wire transfer of immediately collectible funds,
first, if and to the extent necessary, to Lawyers Title Insurance Corporation of
New York (the "Title Company") and then to an account or accounts specified by
Seller, against delivery of instruments of transfer and other Closing Documents
(as hereinafter defined) as specified in Section 5.3 hereof. The ▇▇▇▇▇▇▇ Money
shall be held in an interest bearing account pursuant to the terms of a separate
escrow agreement among Seller and Purchaser and the Title Company.
ARTICLE 3
DUE DILIGENCE
Section 3.1 Title. Within five days from the date hereof, Purchaser
shall order and use its best efforts to obtain, at Purchaser's sole cost and
expense, a commitment (the "Title Commitment") from the Title Company to issue
to Purchaser at Closing a current ALTA Owner's Title Policy Form in the amount
of the Purchase Price naming the Purchaser as proposed insured and containing
the following endorsements:
A. Extended Coverage deleting all standard printed exceptions;
B. Access;
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C. Contiguity;
D. Owner's Comprehensive;
E. Survey;
Said Title Commitment will disclose certain specific exceptions to
which the Property will be conveyed at the Closing (such permitted exceptions
being collectively referred to herein as "Permitted Exceptions"). The Permitted
Exceptions are more specifically described in Exhibit D attached hereto.
Purchaser, in its sole discretion, shall be entitled to object to any exceptions
to title disclosed in the Title Commitment (including those set forth on Exhibit
D), or matters affecting title reflected on the Survey by a written notice of
objections delivered to Seller within five (5) business days after the date of
delivery of the Title Commitment and the Survey. If Purchaser fails to deliver
to Seller said notice of objections within such five (5) business day period,
Purchaser shall be deemed to have waived objection to any exceptions which
Seller is not otherwise required to remove under this Agreement, and thereafter
all such exceptions shall be deemed to be Permitted Exceptions (as hereinafter
defined). On or before a date which is five (5) days after the receipt of
Purchaser's notice of objections, Seller may, but shall not be obligated to,
obtain, as applicable, the issuance of an endorsement to the Title Commitment or
a revision to the Survey removing such exceptions or, if acceptable to
Purchaser, affirmative title insurance protection for such exceptions
satisfactory to Purchaser in Purchaser's reasonable discretion or deliver to
Purchaser written affirmation from Seller (which shall be deemed to be a cure
hereunder) that Seller shall cause certain items referenced in Purchaser's
notice to be removed from the Title Commitment or endorsed over, with an
endorsement reasonably satisfactory to Purchaser, on or before the Closing.
Section 3.2 Survey. Seller has ordered and will use its best efforts to
obtain a current ALTA Survey prepared by a surveyor licensed in the State of New
York certified in favor of Purchaser, the Title Company and such other persons
or entities as Purchaser shall designate depicting the Land and Improvements,
and meeting the Minimum Standard Detail Requirements jointly established by the
American Land Title Association and American Congress on Surveying and Mapping
in 1999, meeting the accuracy requirements for an "Urban Survey" and showing the
location of all the Improvements and easements upon the Land or appurtenant
thereto (identified by the Recorder's Document Number), that there are no
encroachments from or upon adjoining property or upon any easements located on
the Land (or if any such encroachments exist, identifying and locating same) and
containing relevant items from Table A of the Minimum Standard Detail
Requirements. The legal description on the ALTA Survey shall coincide exactly
with the legal description on the Title Commitment. The cost of the ALTA Survey
described above shall be paid by Seller at or prior to Closing..
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Section 3.3 Searches. Purchaser may, at Purchaser's option and at
Purchaser's sole cost and expense, obtain on or before the Closing Date, Uniform
Commercial Code financing statement, tax lien, franchise tax, pending litigation
and judgment searches dated not earlier than ten (10) days' prior to Closing
showing Seller's interest in any personal property included as part of the
Property to be free and clear of all liens, security interests and adverse
claims other than those to be released at closing.
Section 3.4 Inspection. During the period ending at 5:00 p.m. Eastern
Standard Time on the date which is fourteen (14) days after execution and
delivery of this Agreement by both Seller and Purchaser (said period being
referred to as the "Inspection Period"), Purchaser and the agents, engineers,
employees, contractors and surveyors retained by Purchaser may enter upon the
Property, at any reasonable time and upon reasonable prior notice to Seller
(which notice shall be not less than 48 hours with respect to tenanted portions
of the Property), to inspect the Property, including a review of leases located
at the Property, and to conduct and prepare such studies, tests and surveys as
Purchaser may deem reasonably necessary and appropriate. Purchaser shall not
perform any intrusive testing, including, without limitation, drilling and any
Phase II environmental inspections, without Seller's prior written consent, such
consent to be given in the sole and absolute discretion of Seller.
In the event that Purchaser is not satisfied for any or no reason with
the results of its inspections and examinations in its sole and absolute
discretion, then and in such event, Purchaser shall have the right, on or before
the expiration of the Inspection Period ("Inspection Period Expiration Date"),
to terminate this Agreement upon written notice to Seller and the ▇▇▇▇▇▇▇ Money
shall be returned to Purchaser and thereafter, neither party shall have any
rights against the other with respect to the terms and provisions of this
Agreement except those which are specifically stated to survive the termination
of this agreement. In the event that Purchaser does not terminate this Agreement
on or before the Inspection Period Expiration Date in accordance with the terms
and provisions of this paragraph, then and in such event it shall be deemed to
have approved the results of its "Due Diligence" examination during the
Inspection Period, if any, conducted in accordance with the terms and provisions
of this paragraph.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 3.4 by Purchaser shall be at Purchaser's sole cost and
expense and Purchaser shall restore the Property to the condition existing prior
to the performance of such tests or investigations by or on behalf of Purchaser.
Purchaser shall defend, indemnify and hold Seller and any advisor, affiliate,
parent of Seller, and all shareholders, employees, officers and directors of
Seller or Seller's advisor, affiliate or parent (hereinafter collectively
referred to as "Affiliate of Seller") harmless from any and all liability, cost
and expense (including without limitation, reasonable attorney's fees, court
costs and costs of appeal) suffered or incurred by Seller or Affiliates of
Seller for injury to persons or property caused by Purchaser's investigations
and inspection of the Property excluding any diminution of the value of the
Property due to the discovery of Hazardous Materials. Purchaser shall undertake
its obligation to defend set forth in the preceding sentence using attorneys
selected by Seller, in Seller's sole discretion.
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Prior to commencing any such tests, studies and investigations,
Purchaser shall furnish to Seller a certificate of insurance evidencing
comprehensive general public liability insurance in the amount of $3,000,000
insuring the person, firm or entity performing such tests, studies and
investigations and listing Seller and Purchaser as additional insureds
thereunder.
Seller will deliver to Purchaser the following within one (1) Business
Day after the execution of this Agreement (to the extent not previously
furnished and to the extent in Seller's possession):
3.4.1 Three-year historical operating statements of the Property;
3.4.2 Real estate tax bills for years 2001-2002;
3.4.3 Copy of current rent roll for the Property;
3.4.4 Copies of any Service Contract;
3.4.5 Property employee listing and salaries;
3.4.6 Current Aged Delinquency Reports;
3.4.7 Schedule of Outstanding Security Deposits; and
3.4.8 Copy of each lease for space on the Property currently in effect;
3.4.9 Copy of 2001 CAM and Tax Billing;
3.4.10 Three (3) year Tenant Ledgers;
3.4.11 Building Plans & Specifications;
3.4.12 Three (3) years historical sales reports for all Tenants which are
required to report sales pursuant to their Leases.
Section 3.5 As Is. Except as specifically set forth otherwise in this
Agreement, Purchaser acknowledges and agrees that it will be purchasing the
Property and the Personal Property based solely upon its inspections and
investigations of the Property and the Personal Property, and that Purchaser
will be purchasing the Property and the Personal Property "AS IS" and "WITH ALL
FAULTS", based upon the condition of the Property and the Personal Property as
of the date of this Agreement, wear and tear and loss by fire or other casualty
or condemnation excepted. Without limiting the foregoing, Purchaser acknowledges
that, except as may otherwise be specifically set forth elsewhere in this
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Agreement, neither Seller nor its consultants, brokers or agents have made any
representations or warranties of any kind upon which Purchaser is relying as to
any matters concerning the Property or the Personal Property, including, but not
limited to, the condition of the land or any improvements comprising the
Property, the existence or non-existence of "Hazardous Materials" (as
hereinafter defined), economic projections or market studies concerning the
Property, any development rights, taxes, bonds, covenants, conditions and
restrictions affecting the Property, water or water rights, topography,
drainage, soil, subsoil of the Property, the utilities serving the Property or
any zoning or building laws, rules or regulations or "Environmental Laws"
(hereinafter defined) affecting the Property. Except as may otherwise be
specifically set forth in this Agreement, Seller makes no representation or
warranty that the Property complies with Title III of the Americans with
Disabilities Act or any fire code or building code. Except as may otherwise be
specifically set forth in this Agreement or as agreed by Seller in this
Agreement or in any other Closing document executed by Seller, Purchaser hereby
releases Seller and the Affiliates of Seller from any and all liability in
connection with any claims which Purchaser may have against Seller or the
Affiliates of Seller relating to the existence of asbestos or Hazardous
Materials on the Property, and Purchaser hereby agrees not to assert any claims
for contribution, cost recovery or otherwise, against Seller or the Affiliates
of Seller, relating directly or indirectly to the existence of asbestos or
Hazardous Materials on, or environmental conditions of, the Property, whether
known or unknown. As used herein, "Environmental Laws" means all federal, state
and local statutes, codes, regulations, rules, ordinances, orders, standards,
permits, licenses, policies and requirements (including consent decrees,
judicial decisions and administrative orders) relating to the protection,
preservation, remediation or conservation of the environment or worker health or
safety, all as amended or reauthorized, or as hereafter amended or reauthorized,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. ss. 9601 etseq., the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss. 6901
etseq., the Emergency Planning and Community Right-to-Know Act ("Right-to-Know
Act"), 42 U.S.C. ss. 11001 etseq., the Clean Air Act ("CAA""), 42 U.S.C. ss. t
("Clean Water Act"), 33 U.S.C. ss. 1251 etseq., the Toxic Substances Control Act
("TSCA"), 15 U.S.C. ss. 2601 etseq., the Safe Drinking Water Act ("Safe Drinking
Water Act"), 42 U.S.C. ss. 300f etseq., the Atomic Energy Act ("AEA"), 42 U.S.C.
ss. 2011 etseq., the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. ss.
651 etseq., and the Hazardous Materials Transportation Act (the "Transportation
Act"), 49 U.S.C. ss. 1802 etseq. As used herein, "Hazardous Materials" means:
(1) "hazardous substances," as defined by CERCLA; (2) "hazardous wastes", as
defined by RCRA; (3) any radioactive material including, without limitation, any
source, special nuclear or by-product material, as defined by AEA; (4) asbestos
in any form or condition; (5) polychlorinated biphenyls; and (6) any other
material, substance or waste to which liability or standards of conduct may be
imposed under any Environmental Laws. Notwithstanding anything contained herein
to the contrary, the terms of this Section 3.3 shall survive the Closing and the
delivery of the Deed and termination of this Agreement.
Purchaser's Initials /s/WLB Seller's Initials /s/RHS.
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Section 3.6 Financial Information.Seller has provided to Purchaser
certain unaudited historical financial information regarding the Property
relating to certain periods of time in which Seller owned the Property. Seller
and Purchaser hereby acknowledge that such information has been provided to
Purchaser at Purchaser's request solely as illustrative material. Except as
otherwise specifically set forth in this Agreement, Seller makes no
representation or warranty that Purchaser will achieve similar financial or
other results with respect to the operations of the Property, it being
acknowledged by Purchaser that Seller's operation of the Property and
allocations of revenues or expenses may be vastly different than Purchaser may
be able to attain. Purchaser acknowledges that it is a sophisticated and
experienced purchaser of real estate and further that Purchaser has relied upon
its own investigation and inquiry with respect to the operation of the Property
and except as specifically set forth herein releases Seller and the Affiliates
of Seller from any liability with respect to such historical information.
Notwithstanding anything contained herein to the contrary, the terms of this
Section 3.6 shall survive the Closing and the delivery of the Deed and
termination of this Agreement.
Notwithstanding Section 3.6, Seller hereby covenants that on the
Closing Date, Seller shall enter into an agreement with Purchaser pursuant to
which Seller shall covenant and agree with Purchaser that upon Purchaser's
written request, for a period of three (3) years after the Closing, Seller shall
make the Books and Records of the Seller relating to the Property available to
the Purchaser, for inspection, copying and audit by the Purchaser's designated
accountants. Seller acknowledges that applicable securities laws may require the
Purchaser to file audited financial statements relating to operations at the
Property for a three-year period and hereby consents to the Purchaser engaging
the Seller's auditors to assist the Purchaser in the preparation of all or a
portion of such audited financial information relating to Property operations,
and to otherwise cooperate (at no cost to Seller) with the Purchaser in
preparing such financial statements and will make all Books and Records relating
to the Property available to Purchaser's auditors. Seller's obligations
hereunder shall survive the Closing. This provision shall survive the Closing
without time limitation.
Purchaser's Initials /s/ WLB Seller's Initials /s/ RHS.
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ARTICLE 4
CONDITIONS PRECEDENT TO CLOSING
Section 4.1 Conditions to Closing. Without limitation of other
conditions set forth herein, Purchaser's obligation to consummate the
transactions contemplated by this Agreement is subject to satisfaction of all of
the conditions set forth in this Article 4. Purchaser may waive any or all of
such conditions in whole or in part. All conditions shall, upon closing, be
deemed satisfied or waived except as otherwise set forth in writing. No such
waiver shall constitute a waiver by Purchaser of any of its rights or remedies
except as to the matter or condition waived. Satisfaction or waiver of any such
conditions shall not waive any representation, warranty or indemnity made by
Seller except to the extent Purchaser shall have closed the transaction which is
the subject of this Agreement with actual knowledge of any breach of any
representation or warranty of Seller herein. If any condition set forth in this
Article 4 is not fully satisfied or waived, then Purchaser shall have the right
to terminate this Agreement, and in such event, the ▇▇▇▇▇▇▇ Money shall be
returned to Purchaser and Seller and Purchaser shall have no further rights,
obligations or liability hereunder provided Purchaser shall be permitted to
pursue any rights or remedies Purchaser may have at law or in equity in the
event any condition within the reasonable control of Seller is not satisfied as
a result of a breach or default by Seller hereunder. The conditions are as
follows:
(a) title to the Property shall be in the condition required
by Article 3 hereof;
(b) Purchaser and its counsel shall have approved each of the
Closing Documents required to be delivered, or caused to be delivered, by Seller
pursuant to Section 5.3 hereof;
(c) Seller shall have timely performed each and every covenant
and agreement to be performed by Seller hereunder;
(d) on the Closing Date, all representations and warranties
made by Seller in this Agreement shall be true and correct in all material
respects as if made on and as of the Closing Date;
(e) on or before the Closing Date, Purchaser shall have
received an estoppel letter from each of The Sports Authority, Inc., Toys `R'
Us, Office Max, Borders Books, McDonald's, Outback Steakhouse, and ▇▇▇▇▇ K
Corporation (d/b/a Educational Warehouse) and, in the form and attached hereto
as Exhibit I (collectively the "Tenant Estoppel Letters");
(f) no tenant shall have commenced any bankruptcy, insolvency or other
proceedings seeking the benefit of any laws for the protection from creditors
and no involuntary petition in any such proceeding shall have been filed against
any tenant.
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(g) there shall have been no (i) taking of all or any part of the Property
by any public authority (condemnation) or (ii) casualty to all or any part of
the Property and (iii) the Property shall be substantially and materially in the
same condition as at the Inspection Period Expiration Date.
ARTICLE 5
CLOSING
Section 5.1 Closing. Provided all conditions precedent set forth in
Article 4 have been satisfied or deemed satisfied, the consummation of the
transaction contemplated hereunder (referred to herein as "Closing") shall take
place at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ on December 16, 2002
("Closing Date"), or at such other time or place as may be mutually agreeable to
the parties hereto.
Section 5.2 Closing Escrow. The consummation of the transaction
contemplated hereunder shall take place in escrow with the Title Company
pursuant to a written escrow agreement among the attorneys for Purchaser,
Seller, and the Title Company containing terms and conditions not inconsistent
with the terms and conditions of this Agreement (which shall in all events be
controlling) and mutually satisfactory to Purchaser and Seller, or shall take
place through a so-called "New York" style closing. The cost of any escrow
services in connection with the Closing provided by the Title Company, including
any costs attributable to a New York Style closing, shall be borne by Purchaser.
If, prior to closing, a date-down to the Title Commitment discloses any new
exception to title which are not Permitted Exceptions ("Unpermitted
Exceptions"), Seller shall have the right, but not the obligation, within ten
(10) days from the date of the date-down to the Title Commitment to bond over,
cure and/or have any Unpermitted Exceptions removed from the Title Commitment or
to have the Title Insurer commit to insure against loss or damage that may be
occasioned by such Unpermitted Exceptions by affirmative coverage reasonably
satisfactory to Purchaser. Subject to the following sentence, the time of
Closing shall be delayed, if necessary, to give effect to said aforementioned
time periods. If Seller does not elect to or fails to cure or have said
Unpermitted Exception removed or have the Title Insurer commit to insure as
specified above within said ten (10) day period, Purchaser may terminate this
Agreement upon notice to Seller within five (5) days after the expiration of
said ten (10) day period. Absent notice from Purchaser to Seller in accordance
with the preceding sentence, Purchaser shall be deemed to have elected to take
title subject to said Unpermitted Exception. If Purchaser terminates this
Agreement in accordance with the terms of this Section 5.2, this Agreement shall
become null and void without further action of the parties and all ▇▇▇▇▇▇▇ Money
theretofore deposited into the escrow by Purchaser together with any interest
accrued thereon, shall be returned to Purchaser, and neither party shall have
any further liability to the other, except for Purchaser's obligation to
indemnify Seller and restore the Property under Article 3 and the mutual
indemnities set forth in Articles 8 and 10.
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Section 5.3 Closing Documents. At the Closing, Seller shall execute
and/or deliver or cause to be executed and/or delivered, to Purchaser and, where
applicable, the Title Company, the following (collectively the "Closing
Documents"):
(a) an ALTA Owner's Policy of Title Insurance in form and
content and containing the endorsements required by Article 3 and with such
reinsurance as Purchaser may request;
(b) a duly executed and acknowledged Bargain and Sale Deed
with covenants against grantor's acts (the "Deed") in the form attached hereto
as Exhibit E, conveying good and marketable fee simple title to the Land,
Improvements and all easements and other rights appurtenant thereto, to
Purchaser, subject only to the Permitted Exceptions;
(c) a duly executed and acknowledged Assignment of Leases in
the form attached hereto as Exhibit F assigning all of Seller's interest in the
Leases and lease security deposits to Purchaser;
(d) a duly executed Warranty ▇▇▇▇ of Sale in the form attached
hereto as Exhibit G conveying all of Seller's right, title and interest in the
personal property included as part of the Property to Purchaser;
(e) a warranty assignment of the Service Contracts, licenses,
permits, certificates, warranties, guaranties and all of the remaining Property
in the form of Exhibit H attached hereto;
(f) appropriate Transfer Tax Returns;
(g) such other documents and instruments as are required to
transfer Seller's interest in the Property to Purchaser;
(h) originals of the Leases and Service Contracts;
(i) all books, records, warranties, guaranties, invoices,
lease files, credit reports, financial statements, governmental notices and
other documents related to the construction, operation, management, use,
maintenance or leasing of the Property (or copies if originals are not
available);
(j) all plans and specifications in Seller's possession,
including as-built plans and specifications, if available, relating to the
construction and build-out of the Improvements;
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(k) originals (or copies if such originals do not exist) of
all building permits, licenses, certificates of occupancy (for the Improvements
and for each of the tenant premises leased and occupied pursuant to a Lease) and
franchises relating to the Property;
(l) Uniform Commercial Code Financing Statement, tax lien and
judgment searches as required by Section 3.3 hereof, together with an affidavit
in form and substance reasonably satisfactory to Purchaser that no additional
financing statements have been filed or recorded with respect to the Property
since the date of said search;
(m) a termination of all Service Contracts identified in any
notice to Seller pursuant to Section 7.2 hereof;
(n) any affidavit or document required by the Title Company or
the Recorder of Deeds;
(o) notices to tenants in form and content satisfactory to
Purchaser notifying such tenants of the sale of the Property;
(p) notices to the other party to each Service Contract
assigned to Purchaser, in form and content reasonably satisfactory to Purchaser;
(q) the Tenant Estoppel Letters referred to in Section 4.1(e)
hereof;
(r) non-foreign affidavit; and
(s) all satisfactions, releases and termination statements
required to release and terminate all mortgages, financing statements, mechanic
liens and other security instruments affecting the Property.
Section 5.4 Purchaser's Deliveries. At the Closing, Purchaser will
deliver to Seller or the Title Company the portion of the Purchase Price due at
Closing in accordance with Article 2 hereof.
Section 5.5 Joint Deliveries. At Closing, Seller and Purchaser shall
jointly deliver to each other: (a) a closing and proration statement, and (b)
state, county and local transfer tax declarations, if applicable. Seller shall
pay all applicable transfer taxes.
Section 5.6 Possession. At Closing, Seller shall deliver sole and
exclusive possession of the Property, subject only to the Leases, Service
Contracts assigned to Purchaser and Permitted Exceptions.
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Section 5.7 PURCHASER'S DEFAULT. ALL ▇▇▇▇▇▇▇ MONEY DEPOSITED INTO THE
ESCROW IS TO SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND
UNDERTAKINGS UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF THE PURCHASER
UNDER THE PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE ▇▇▇▇▇▇▇
MONEY AND THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER
REMEDY, EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE
PROPERTY AS SET FORTH IN SECTION 3.4 HEREOF. THE PARTIES HAVE AGREED THAT
SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR
INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE ▇▇▇▇▇▇▇ MONEY HAS BEEN AGREED
UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S
DAMAGES.
Purchaser's Initials /s/ WLB Seller's Initials /s/RHS
Section 5.8 SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF
SELLER'S DEFAULT, PURCHASER MAY ELECT ONE OF THE FOLLOWING REMEDIES: (1) THE
RETURN OF ALL ▇▇▇▇▇▇▇ MONEY TOGETHER WITH ANY INTEREST ACCRUED THEREON, IN WHICH
EVENT THIS AGREEMENT SHALL THEN BECOME NULL AND VOID AND OF NO EFFECT AND THE
PARTIES SHALL HAVE NO FURTHER LIABILITY TO EACH OTHER AT LAW OR IN EQUITY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH MORE FULLY IN SECTION 3.4 AND PURCHASER'S AND SELLER'S RESPECTIVE
OBLIGATIONS TO INDEMNIFY EACH OTHER PURSUANT TO ARTICLE 8 AND ARTICLE 10 OR (2)
TO ▇▇▇ FOR SPECIFIC PERFORMANCE. IF A COURT OF COMPETENT JURISDICTION FINDS THAT
SELLER IS IN MATERIAL DEFAULT UNDER THIS CONTRACT AND PURCHASER IS NOT IN
MATERIAL DEFAULT UNDER THIS CONTRACT BUT DOES NOT GRANT PURCHASER THE REMEDY OF
SPECIFIC PERFORMANCE, THEN SELLER WILL REFUND PURCHASER'S ▇▇▇▇▇▇▇ MONEY TOGETHER
WITH ANY INTEREST ACCRUED THEREON, IN WHICH EVENT THIS AGREEMENT SHALL THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN SECTION
3.4 AND PURCHASER'S AND SELLER'S RESPECTIVE OBLIGATIONS TO INDEMNIFY EACH OTHER
PURSUANT TO ARTICLE 8 AND ARTICLE 10.
Purchaser's Initials /s/ WLB Seller's Initials /s/RHS
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Section 6.1 Knowledge. Any reference herein to Seller's knowledge or
notice of any matter or thing shall only mean such knowledge or notice that has
actually been received by ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ (the "Seller's Representative"), and
any representation or warranty of the Seller is based upon those matters of
which the Seller's Representative has actual knowledge. Any knowledge or notice
given, had or received by any of Seller's agents, servants or employees shall
not be imputed to Seller, the general partner or limited partners of Seller, the
subpartners of the general partner or limited partners of Seller or Seller's
Representative.
Section 6.2 Seller's Representations. Subject to the limitations set
forth in Section 6.1, Seller hereby makes the following representations and
warranties, which representations and warranties are made to Seller's knowledge:
(i) except as set forth on Schedule 5 attached hereto, Seller has no knowledge
of any pending or threatened litigation, claim, cause of action or
administrative proceeding concerning the Property; (ii) the rent roll attached
hereto as Schedule 1 which Seller will update as of the Closing Date (and which
is subject to approval by Purchaser in the event of material changes) is
accurate as of the date set forth thereon; (iii) the leases listed on the rent
roll attached hereto as Schedule 1 (or on the updated rent roll furnished at
Closing which update shall be subject to Purchaser's approval if materially
changed) and the Service Contracts listed on Schedule 2 comprise all leases,
service, maintenance, repair, management, supply and other contracts relating to
the Property which would be binding on Purchaser subsequent to the Closing; (iv)
Seller has not received any written notice from any governmental authority that
alleges that the Property is not in compliance with Environmental Laws; (v) the
operating statements furnished to Purchaser are accurate in all material
respects; and (vi) Seller has no knowledge of, and Seller has not received
written notice from any governmental authority having jurisdiction, that the
Property is not in compliance with any existing laws, regulations or ordinances
of any applicable federal, state, city or other governmental authorities that
have not previously been corrected. Except as specifically disclosed to
Purchaser in writing or on Schedule 1, Seller has no knowledge of any breaches
or defaults existing under the Leases, and no event has occurred which, after
the passage of time or the giving of notice, would constitute a breach or
default under the Leases or give any Tenant any offset rights or claims under
the Leases. These representations and warranties shall survive the Closing for a
period of six (6) months.
Section 6.3. Power and Authority of Seller. Seller does hereby
represent and warrant to and with Purchaser as follows:
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(a) Power and Authority. Seller is duly organized and existing
under the laws of the state of its organization. Seller's liability for any
breach or misrepresentation of these representations and warranties shall not
exceed, and shall be capped at, $500,000.00. Seller has full right, power and
authority to enter into this Agreement and all documents to be executed by
Seller pursuant hereto and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and all documents to be executed by
Seller pursuant hereto and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action.
(b) Conflict. To the best of Seller's knowledge, neither the
execution of this Agreement and all documents to be executed by Seller pursuant
hereto nor the consummation of the transactions contemplated hereby or thereby
will be in violation of any judgment, order, permit, writ, injunction or decree
of any court, commission, bureau or agency, or any law, rule, regulation,
ordinance or code to which Seller or the Property or by which Seller or the
Property is bound, or constitute a breach or default under any agreement or
other obligation to which Seller is a party or which Seller or the Property may
be bound.
Section 6.4 Purchaser's Representations. Purchaser does hereby
represent and warrant to and with Seller as follows:
---------------------------
(a) Power and Authority. Purchaser is duly organized and
existing under the laws of the state of its organization. Purchaser's liability
for any breach or misrepresentation of these representations and warranties
shall not exceed, and shall be capped at, $500,000.00. Purchaser has full right,
power and authority to enter into this Agreement and all documents to be
executed by Purchaser pursuant hereto and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and all
documents to be executed by Purchaser pursuant hereto and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary action.
(b) Conflict. Neither the execution of this Agreement and all
documents to be executed by Purchaser pursuant hereto nor the consummation of
the transactions contemplated hereby or thereby will be in violation of any
judgment, order, permit, writ, injunction or decree of any court, commission,
bureau or agency, or any law, rule, regulation, ordinance or code to which
Purchaser or the Property or by which Purchaser or the Property is bound, or
constitute a breach or default under any agreement or other obligation to which
Purchaser is a party or which Purchaser or the Property may be bound.
(c) Conflicts Prohibited. Purchaser is a publicly traded
corporation listed on the New York Stock Exchange. Except for possible ownership
of publicly traded shares of the Purchaser, the Purchaser represents, warrants,
and covenants that, to the best of its knowledge, no trustee or employee of the
State of Wisconsin Investment Board (SWIB) identified on Exhibit J, either
15
directly or indirectly (a) currently holds, except as may be specifically set
forth below, a personal interest in the Purchaser or any of its affiliates
(together, the "Entity") or the Entity's property or securities, or (b) will, in
connection with the investment(s) made pursuant to this Agreement, receive (i) a
personal interest in the Entity, the Property, or the Entity's property or
securities or (ii) anything of substantial economic value for his or her private
benefit from the Entity or anyone acting on its behalf.
ARTICLE 7
SELLER'S COVENANTS
Section 7.1 Seller's Covenants. Seller covenants and agrees with
Purchaser that from and after the date hereof up to Closing or earlier
termination of this Agreement, the Seller shall conduct the business involving
the Property as follows, and during such period will:
(a) refrain from transferring any of the Property or creating
on the Property any easements, liens, mortgages, encumbrances or other interests
that will be in force and effect after the Closing;
(b) not, without obtaining the prior written consent of
Purchaser, extend, renew, terminate, replace, amend or enter into any new
Service Contract with respect to the Property which will survive Closing or
otherwise affect the use operation or enjoyment of the Property after Closing,
unless any such Service Contract by its terms is cancelable by the owner of the
Property without penalty or premium and within thirty (30) days after giving
notice thereof;
(c) not, without obtaining the prior written consent of
Purchaser, extend, renew, terminate, replace or amend any of the Leases
identified on the Lease Schedule or enter into any new Lease;
(d) fully and faithfully perform all of the landlord's
covenants, agreements and obligations under the Leases and otherwise continue to
meet all obligations with respect to the Property, including all contractual
obligations under the Service Contracts and all obligations under the licenses,
permits and approvals with respect to the Property;
(e) maintain in full force and effect the policies of
insurance identified in Schedule 4 hereto and cause to be maintained the
insurance policies required to be maintained by all parties under the Service
Contracts and Leases;
(f) deliver or cause to be delivered to Purchaser, promptly
upon receipt thereof by Seller, copies of all notices received or given by
Seller alleging any violation of any applicable law, rule, regulation or code,
any default under at Lease, Service Contract or insurance policy and report to
Purchaser, from time to time, the status of any alleged violation or default;
16
(g) promptly comply with all notices of violation or alleged
violation by the Seller or any tenants of the Seller on the Property of all
state, county, city or municipal laws, ordinances, codes, regulations, orders or
requirements of departments of housing, buildings, fire, labor, health, or
departments of other governmental authorities having jurisdiction over or
affecting the Property or the use or operation thereof; and
(h) continue to operate and manage the Property in the
ordinary course of business and in a first-class manner; maintain the Property
in good repair and working order; keep on hand sufficient materials, supplies,
equipment and other personal property for the efficient operation and management
of the Property in the ordinary course of business and in a first-class manner.
Section 7.2 Termination of Service Contracts. Purchaser may elect by
notice to Seller prior to the Inspection Period Expiration Date, to have any or
all of the Service Contracts terminated by Seller, and Seller agrees to
terminate said Service Contracts, effective as of the Closing Date or such later
date provided in any such Service Contract.
Section 7.3 Leasing Commissions. Seller shall pay all leasing
commissions and tenant costs (including, without limitation, tenant improvement
costs, moving costs, design costs incurred by the tenant, lease buyout costs and
similar tenant inducement costs) which are obligations, current or future, as of
the Closing Date in connection with leases (and renewals, extensions or
expansions thereof provided for in such leases) entered into prior to the
Closing Date and in connection with any renewals, extensions or expansions
thereof provided for in such leases even if same are exercised after the Closing
Date. All leasing commissions and tenant costs with respect to leases entered
into on or after the Closing Date (and renewals, extensions or expansions
thereof) shall be the responsibility of Purchaser.
ARTICLE 8
INDEMNIFICATION
Section 8.1 Seller's Indemnification. Subject to the provisions of
Section 8.2, Seller hereby agree to protect, defend, indemnify and hold
Purchaser harmless from and against any and all liabilities, obligations,
losses, costs, damage or expense, including attorneys' fees and court costs,
Purchaser may incur or suffer on account of or in connection with:
(a) any breach of any representation or warranty of Seller
contained herein or contained in any document or instrument executed by Seller
in connection herewith;
(b) the default by Seller of any of its post-closing
obligations;
17
(c) any claim or demand by any tenant under a Lease for a
breach or default by the landlord under the Lease or other obligation owed to
such tenant based on an obligation or liability that accrued prior to the
Closing Date; and
(d) any breach, default or violation of CERCLA or Related
Legislation relating to the Property as of, or prior to, the Closing Date.
Section 8.2 Certain Limitations. Seller shall not be released from, nor
shall Purchaser be deemed to have waived its rights under, the indemnifications
contained in this Section by virtue of Purchaser's inspections and
investigations of the Property unless, except as otherwise set forth in writing,
Purchaser had actual knowledge of the fact, condition or circumstance giving
rise to such claim for indemnification at the time of closing. In the event
Purchaser elects to consummate this transaction notwithstanding having acquired
actual knowledge that a representation and warranty of Seller was false or
materially misleading (it being understood that Purchaser shall have no
obligation to do so), Purchaser shall be deemed to have accepted such fact,
circumstance or condition of which it has actual knowledge and, except as
otherwise set forth in writing, Purchaser shall have no claim against Seller
with respect thereto. Purchaser shall be deemed to have actual knowledge of any
fact, circumstance or condition of which any agent, or employee of Purchaser had
actual knowledge. Notwithstanding the foregoing, Purchaser shall be deemed to
have actual knowledge of any matter disclosed in a tenant estoppel certificate.
Section 8.3 Purchaser's Indemnifications. Purchaser hereby agrees to
protect, defend, indemnify and hold Seller harmless from and against any and all
liabilities, obligations, losses, costs, damage or expense, including attorneys'
fees and court costs, Seller may incur or suffer on account of or in connection
with:
(a) any breach of any representation or warranty of Purchaser
contained herein or in any documents to be executed by Purchaser pursuant
hereto; and
(b) the default by Purchaser of any of its post-closing
obligations.
ARTICLE 9
CLOSING ADJUSTMENTS AND CLOSING COSTS
Section 9.1 Prorations. As hereinafter more particularly described,
certain of the items described in this Section shall be prorated between the
parties on a per diem basis (on the basis of actual calendar days and a 365-day
year) so that, subject to the more particular provisions set forth below,
Seller's pro rata share of credits and charges for all days preceding the
18
applicable proration date shall be allocated to Seller and credits and charges
for the applicable proration date and all days thereafter shall be allocated to
Purchaser. In connection with the prorations and allocations provided for
herein, Purchaser and Seller shall jointly prepare a proration schedule in
reasonable detail showing each item prorated or adjusted.
Section 9.2 Rent. Current and prepaid base rent (collectively "Fixed
Rent") and Percentage Rent, if any, shall be prorated as of midnight of the day
immediately preceding the Closing Date. Some or all of the Leases provide for
reimbursement of certain expenses of owning, operating, maintaining and managing
the Land and Improvements ("Operating Expense") and for real estate taxes
("Taxes"). Some or all of the Leases provide for a determination of the tenant's
share of Operating Expenses and Taxes on an annual basis provided that estimated
payments thereof are paid periodically during the course of the year with the
final adjustment to be made after the close of the year once Operating Expenses
and Taxes have been finally determined. The amounts due from tenants for such
items, including estimated payments, shall be prorated at Closing in the same
manner that Fixed Rents are prorated as provided above. Seller shall not receive
a credit at Closing for any payments of rental obligations (including tax and
expense contributions) not paid on the Closing Date from tenants under the terms
of the Leases. Payments of rental obligations (including tax and expense
contributions) received by Purchaser after Closing shall be applied first, for
rent and other lease obligations (including tax and expense contributions) due
or accrued from tenants from and after the Closing Date and when such rents and
other lease obligations (including tax and expense contributions) have been paid
in full, the balance shall be promptly remitted by Purchaser to Seller to the
extent of any delinquent rents due Seller.
Section 9.3 Taxes. Current real estate taxes not yet due and owing as
of the Closing Date shall be prorated as of midnight of the day immediately
preceding the Closing Date based upon the tax year of the applicable tax
authority so that the portion of current taxes allocable to the period from the
beginning of such tax year through the Closing Date shall be the responsibility
of Seller and the portion of the current taxes allocable to the portion of such
tax year from the Closing Date to the end of such tax year shall be the
responsibility of Purchaser. If the amount of the current general taxes is not
then ascertainable, the adjustment thereof shall be based on one hundred percent
(100%) of the most recently ascertainable tax ▇▇▇▇. Seller and Purchaser do
hereby further agree with regard to the proration for real estate taxes, to
reprorate said real estate taxes forthwith upon Purchaser's receipt of the
actual tax ▇▇▇▇(s) for the tax year or tax years in question. This covenant
shall survive the Closing of this transaction until such reproration is
effected.
Section 9.4 Operating Expenses. Seller shall be responsible for payment
of all Operating Expenses through midnight of the day immediately preceding the
Closing Date and shall be entitled to retain all reimbursements collected from
tenants on account of Operating Expenses and Taxes with respect to the period
through midnight of the day preceding the Closing Date. Purchaser shall be
19
responsible for the payment of Operating Expenses and Taxes attributable to the
Property and accruing on and after the Closing Date. Purchaser shall be entitled
to retain, for its own account, all reimbursements collected from tenants on
account of Operating Expenses and Taxes accruing with respect to the period
occurring on or after the Closing Date. As part of the final proration referred
to in Section 9.8 hereof there shall be a computation of the total Operating
Expenses and Taxes for the year in which the Closing occurs for which Seller is
responsible pursuant to the terms hereof and for which Purchaser is responsible
pursuant to the terms hereof and a computation of the reimbursements on account
of Operating Expenses and Taxes received, whether by Seller or Purchaser, from
tenants and appropriate adjustment shall be made between the parties to
effectuate the provisions of this Article 9.
Section 9.5 Security Deposits. All cash security deposits made by
tenants of the Property shall be credited to Purchaser at Closing, and all
non-cash security deposits, if any, shall be delivered to Purchaser at Closing.
Section 9.6 Closing Costs. Seller shall pay all costs and expenses
required to be paid in order for Seller to comply with its covenants, agreements
and obligations hereunder. Purchaser shall bear and pay all title insurance
premiums and charges, including the premiums for the extended coverage and other
endorsements described in Article 3 hereof. The cost of the survey shall be paid
as provided in Section 3.2 hereof. Seller shall pay all escrow fees. All state,
county and City of White Plains transfer taxes on the sale contemplated
hereunder shall be paid by Seller. Purchaser shall pay all recording fees for
the deed and assignments, and all fees or charges associated with Purchaser's
financing, if any.
Section 9.7 Other Items. All other items which are customarily prorated
in transactions similar to the transaction contemplated hereby and which were
not heretofore dealt with, will be prorated as of the Closing Date. Seller shall
receive a credit in respect of a refundable gas utility deposit to that extent
that such deposit has been assigned to the Purchaser and the utility company has
been notified and has consented to such assignments.
Section 9.8 Reproration. To the extent practicable, all prorations
shall be made at Closing. To the extent any such prorations cannot be made at
the Closing, the same shall be adjusted and completed after the Closing as and
when complete information becomes available. Seller and Purchaser agree to
cooperate and to use their best efforts to complete such prorations no later
than thirty (30) days after the complete information becomes available. Seller
and Purchaser shall use their best efforts prior to the Closing to prepare a
schedule of prorations covering current monthly rent, prepaid rent and security
deposits, and real property taxes and assessments so that such prorations can be
made at the Closing. All adjustments made pursuant to this Article 9 shall be
paid in cash or as a credit against the Purchase Price at Closing. The
provisions of Article 9 shall survive the Closing.
20
ARTICLE 10
BROKER
Purchaser and Seller each represent and warrant to the other that
neither has employed any real estate agent, broker, finder or adviser (other
than Granite Partners, L.L.C., the broker for the transaction and Seller's
employment of Clarion Partners ("CP") as its adviser in connection with this
transaction. Seller agrees to and does hereby indemnify, defend and forever hold
Purchaser harmless from all loss, damage, cost, or expense (including attorney's
fees) that Purchaser may suffer as a result of any claim or action brought by
any other agent, broker, finder or adviser acting or allegedly acting on behalf
of Seller in connection with this transaction. Purchaser agrees to and does
hereby indemnify, defend and hold forever Seller harmless from all loss, damage,
cost or expense (including reasonable attorneys' fees) that Seller may suffer as
a result of any claim or action brought by any agent, broker, finder or adviser
acting or allegedly acting on behalf of Purchaser in connection with this
transaction. This indemnity shall survive the Closing without limitation as to
time.
ARTICLE 11
SURVIVAL
All agreements, representations and warranties, and indemnities by the
respective parties contain herein are intended to and shall remain true and
correct as of the Closing, shall be deemed to be material, and subject to the
provisions of this Agreement shall survive the delivery of the Deed and the
transfer of title pursuant thereto. Any covenants and conditions herein that
must be operative after delivery of the Deed to be effective shall be so
operative and shall not be deemed to have been merged into the Deed.
ARTICLE 12
MISCELLANEOUS
Section 12.1 All notices to be given hereunder shall be personally
delivered or sent by certified mail, return receipt requested or by Federal
Express (or equivalent reputable overnight courier) or by facsimile (provided
notice is also given by overnight courier) to the parties at the following
addresses (or to such other or further addresses as the parties may hereafter
designate by like notice similarly sent):
21
TO SELLER: State of Wisconsin Investment Board
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to: Clarion Partners
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO PURCHASER: Urstadt ▇▇▇▇▇▇ Properties Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Willing ▇. ▇▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Urstadt ▇▇▇▇▇▇ Properties Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
All notices sent in the manner provided above shall be deemed effective upon
receipt or refusal to accept.
Section 12.2 This Agreement and the Exhibits attached hereto embody the
entire agreement between the parties in connection with this transaction and
there are no oral or parole agreements, representations, or inducements existing
22
between the parties relating to this transaction which are not expressly set
forth herein and covered hereby. This Agreement may not be modified except by a
written agreement signed by all of the parties. Neither this Agreement nor a
memorandum thereof shall be recorded and the act of recording by Purchaser shall
be an act of default hereunder by Purchaser.
Section 12.3 No written waiver by any party at any time of any breach
of any provision of this Agreement shall be deemed a waiver of a breach of any
other provision herein or a consent to any subsequent breach of the same or any
other provision. If any action by any party shall require the consent or
approval of another party, such consent or approval of such action on any one
occasion shall not be deemed a consent to or approval of such action on any
subsequent occasion or a consent to or approval of any other action on the same
or any subsequent occasion.
Section 12.4 The captions, section numbers and article numbers
appearing in this Agreement are inserted only as a matter of convenience and do
not define, limit, construe, or describe the scope of intent of such sections or
articles of this Agreement nor in any way affect this Agreement.
Section 12.5 This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument.
Section 12.6 This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York.
Section 12.7 The Purchaser shall not have the right to assign its
interest in this Agreement without the prior written consent of the Seller.
However, Purchaser shall have the right, power and authority to assign all or
any portion of this Agreement and its rights hereunder, without Seller's
consent, to any "affiliate" of Purchaser; provided, however, that no such
assignment or delegation shall relieve Purchaser of its obligations or
liabilities under this Agreement unless Purchaser's assignee assumes all
obligations of Purchaser under this Agreement at Closing. An "affiliate" of
Purchaser shall be an entity controlled by, under common control with or
controlling Purchaser or Purchaser's owner. Any other assignment or transfer of,
or attempt to assign or transfer, Purchaser's interest in this Agreement shall
be an act of default hereunder by Purchaser.
Section 12.8 Whenever under the terms and provisions of this Agreement,
the time for performance of a condition or the giving of a notice falls upon a
Saturday, Sunday or holiday, such time for performance or for the giving of
notice shall be extended to the next business day.
Section 12.9 If there is any legal action or proceeding between Seller
and Purchaser arising from or based on this Agreement, the unsuccessful party to
such action or proceeding shall pay to the prevailing party all costs and
expenses, including reasonable attorneys' fees, incurred by such prevailing
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party in such action or proceeding and in any appeal in connection therewith,
and if such prevailing party recovers a judgment in any such action, proceeding
or appeal, such costs, expenses and attorneys' fees, shall be included in and as
part of such judgment.
Section 12.10 Except as otherwise herein expressly provided, this
Agreement is solely for the benefit of Purchaser and Seller and no other parties
shall have any right to rely hereon or be deemed to be a third party beneficiary
hereunder.
Section 12.11 Each of the parties hereto shall at any time and from
time to time after the Closing, execute and deliver such further instruments,
documents and certificates and do such further acts and things, as may be
required by law or which may be appropriate or reasonable in order to carry out
the intent and purposes of this Agreement, or to vest more fully in Purchaser
title to the Property.
Section 12.12 This Agreement does not, and is not intended to,
create a partnership or joint venture between Purchaser and Seller.
Section 12.13 None of the Affiliates or beneficiaries, shareholders,
partners, officers, directors, advisors, agents or employees, heirs, successors
or assigns of Seller or Purchaser shall have any personal liability of any kind
or nature nor shall Purchaser or Seller have the right to receive any judgment
in or otherwise recover against the assets of the aforesaid for or by reason of
any matter or thing whatsoever under, in connection with, arising out of or in
any way related to this Agreement and the transactions contemplated herein, and
Purchaser and Seller respectively hereby waives for itself and anyone who may
claim by, through or under Purchaser or Seller respectively any and all rights
to ▇▇▇ or recover on account of any such alleged personal liability or to
receive any judgment in or otherwise recover against the assets, the Affiliates
of Seller or Purchaser respectively, or beneficiaries, affiliates, shareholders,
partners, officers, agents or employees, heirs, successors or assigns of Seller
or Purchaser respectively.
Section 12.14 To the best of Purchaser's knowledge, the Purchaser
represents and warrants that neither the Purchaser nor any of its affiliates or
partners, members, directors and officers is or has been the subject of, or a
defendant in: (i) an enforcement action or prosecution (or settlement in lieu
thereof) brought by a governmental authority relating to a violation of
securities, tax, fiduciary or criminal laws, or (ii) a civil action (or
settlement in lieu thereof) brought by investors in a common investment vehicle
for violation of duties owed to the investors. The Purchaser covenants that it
will notify Seller within five days in the event any such action or prosecution
is initiated during the term of this investment.
Section 12.15 Time is of the essence of this Agreement.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereby have executed this Agreement the
day and year first above written.
SELLER:
STATE OF WISCONSIN INVESTMENT
BOARD, an independent agency of the
State of Wisconsin
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Managing Director
PURCHASER:
URSTADT ▇▇▇▇▇▇ PROPERTIES INC.
By: /s/ Willing ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇\msword\RPA\Purchase\Pavilion Final