AGREEMENT OF SALE AND PURCHASE
by and between
NYLIFE Realty Partners I - General Partnership A,
as Seller
and
▇▇▇ ▇▇▇▇▇▇▇, Inc.,
as Purchaser
dated as of February 28, 1997
for the premises known as
CORNELL PLAZA
TABLE OF CONTENTS
AGREEMENT OF SALE AND PURCHASE 2
1. Agreement to Sell and Purchase 3
2. Purchase Price 5
3. The Closing 5
4. Purchaser's and Seller's Representations and Warranties 6
5. Condition of Title 17
6. Purchaser's Inspection of the Property 19
7. Adjustments and Apportionments 22
8. Covenants of Seller 24
9. Insurance, Damage - Destruction, Condemnation 27
10. Conditions Precedent to Closing 28
11. Provisions with Respect to the Closing 30
12. Brokerage 34
13. Certiorari 34
14. Notices 35
15. Defaults 37
16. Miscellaneous Provisions 38
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AGREEMENT OF SALE AND PURCHASE
AGREEMENT (herein "Agreement") dated as of February 28, 1997, by and
between NYLIFE Realty Partners I-General Partnership A, a Delaware general
partnership, having an address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(herein referred to as "Seller"), and ▇▇▇ ▇▇▇▇▇▇▇, Inc., a Delaware corporation,
having an address c/o ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (herein, together with any assignee of ▇▇▇ ▇▇▇▇▇▇▇, Inc., as
permitted pursuant to Section 16.10 of this Agreement, referred to as
"Purchaser").
WHEREAS, Seller is the owner of (a) fee simple title to the real property
located in the County of ▇▇▇▇▇▇▇▇, State of Ohio, and more particularly
described on EXHIBIT A annexed hereto and made a part hereof (herein referred to
as the "Land"), together with the improvements located on the Land, or on the
surface or subsurface thereof (herein referred to as the "Improvements"; the
Land and Improvements being herein collectively referred to as the "Real
Property"), (b) landlord's interest in and to all the leases, licenses,
franchises or other occupancy agreements or concessions, including parking, of
all or a portion of the Real Property as described in EXHIBIT B hereof (herein
referred to as the "Leases") and (c) all the personal property owned by Seller
located on the Real Property, used in the operation, leasing and management of
the Real Property, and used in connection therewith as more particularly
described in EXHIBIT C annexed hereto and
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made a part hereof (herein the "Personal Property"; the Real Property, the
Personal Property and Easement (hereinafter defined) being sometimes
collectively referred to herein as the "Property"); and
WHEREAS, Seller is the owner of all of the right, title and interest in and
to the Property and the Leases except as they are encumbered by the "Permitted
Exceptions" (as such term is hereinafter defined);
WHEREAS, Seller is the beneficiary of that easement reserved in the deed
dated October 16, 1978, filed for record November 3, 1978 and recorded in Deed
Book 4125, Page 358 of the ▇▇▇▇▇▇▇▇ County, Ohio Registered Land Records, and
granted in the Deeds dated May 29, 1984, filed for record June 7, 1984 and
recorded in Deed Book 4259, Page 1114 of the ▇▇▇▇▇▇▇▇ County, Ohio Registered
Land Records for sewer purposes over the land described in EXHIBIT A (the
"Easement");
WHEREAS, Purchaser wishes to purchase, and Seller wishes to sell, the
Property in accordance with the following terms, covenants and conditions.
NOW, THEREFORE, Seller and Purchaser for Ten ($10.00) Dollars and other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. AGREEMENT TO SELL AND PURCHASE
1.1. Purchaser acknowledges and agrees that the mailing, delivery and/or
negotiation of this Agreement by Seller, its
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agents or attorneys shall not be deemed an offer by Seller to enter into any
transaction or to enter into any other relationship, whether on the terms
contained herein or on any other terms. This Agreement shall not be binding upon
Seller, nor shall Seller have any obligations or liabilities hereunder or
Purchaser have any rights hereunder unless and until Seller has executed and
delivered a duplicate original copy of this Agreement executed by Seller to
Purchaser or Purchaser's attorney.
1.2. Subject to the terms and conditions of this Agreement, Seller agrees
to sell, assign and convey to Purchaser, and Purchaser agrees to purchase the
following, free and clear of all liens, claims, encumbrances and interests
(other than the Permitted Exceptions), for the "Purchase Price" (as such term is
hereinafter defined):
(a) The Real Property together with (i) all right, title and interest of
seller in and to any land lying in the bed of any highway, street, road,
sidewalk, alley or avenue, open or proposed, in front of, abutting or adjoining
the Property; and (ii) all the appurtenances, rights, privileges and easements
in any way pertaining thereto, including any strips and gores;
(b) All of Seller's right, title and interest in the Leases;
(c) All of Seller's right, title and interest in the Personal Property;
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(d) All of Seller's right, title and interest in the Easement.
2. PURCHASE PRICE
2.1. The purchase price will be SEVEN MILLION FIVE HUNDRED THOUSAND AND
00/100 ($7,500,000) DOLLARS, (herein the "Purchase Price") payable by Purchaser
as follows:
(a) One Hundred Thousand and 00/100 ($100,000) Dollars as an ▇▇▇▇▇▇▇ money
deposit (together with any interest earned thereon hereinafter referred to as
the "▇▇▇▇▇▇▇ Money Deposit") delivered to Lawyers Title Insurance Corporation,
as escrow agent pursuant to a separate escrow agreement, by cashier's check,
bank check or immediately available federal funds wired to Seller pursuant to
its directions on the day of delivery of this Agreement executed by Purchaser to
Seller; and
(b) Seven Million Four Hundred Thousand and 00/100 ($7,400,000) Dollars
(the "Cash Portion"), payable by Purchaser wiring immediately available federal
funds in the amount of the Cash Portion of the Purchase Price to Seller as
directed by Seller on the "Closing Date" as such term is hereinafter defined;
and
2.2. ▇▇▇▇▇▇▇ MONEY DEPOSIT. The ▇▇▇▇▇▇▇ Money Deposit is delivered to
Seller by Purchaser as security for Purchaser's performance pursuant to this
Agreement.
3. THE CLOSING
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3.1. The consummation of the transaction provided for in this Agreement
(the "Closing") shall take place on or before that date (the "Closing Date"),
which occurs fifteen (15) Business Days after the Inspection Termination Date
(hereinafter defined), at Seller's office or at such other time and place as the
parties shall mutually reasonably agree in writing. The term "Business Days" as
used in this Agreement shall mean all days except Saturdays, Sundays and all
other days on which the New York Stock Exchange is closed.
4. PURCHASER'S AND SELLER'S REPRESENTATIONS AND WARRANTIES.
4.1. A. Seller represents and warrants to Purchaser that:
(a) Seller is a general partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware, whose general
partners are New York Life Insurance Company and NYLIFE Realty Income Partners
I, L.P., and has full power and authority to execute and deliver this Agreement
and consummate the transaction contemplated herein, has taken all actions
required to be taken to execute, deliver and perform this Agreement and
consummate the transaction contemplated herein, and is not insolvent; this
Agreement has been, and all the documents executed by Seller which are to be
delivered to Purchaser at the Closing will be, duly authorized, executed, and
delivered by Seller, is, and in the case of the documents to be delivered will
be, legal, valid, and binding obligations of Seller enforceable against Seller
in accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable
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bankruptcy, insolvency, moratorium and other principles relating to or limiting
the right of contracting parties generally), will be sufficient to convey title
(if they purport to do so), and does not, and in the case of the documents to be
delivered will not, violate any provisions of any agreement to which Seller is a
party or to which it is subject.
(b) To the best of Seller's knowledge, there are no material defects in the
physical condition of the Improvements which are not disclosed in Seller's
engineering reports which have been prepared by ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇ Company Inc.
dated March 8, 1988 or which would not be discovered by the sort of professional
engineering study typically conducted by prudent and sophisticated institutional
purchasers of properties similar to the Property.
(c) Seller has received no written notice from any governmental authority
advising Seller of a violation (or an alleged violation) of any applicable
building codes, environmental, zoning, subdivision and land use laws or other
federal, state or local laws and regulations.
(d) To the best of Seller's knowledge, the operating statements and income
and expense reports (the "Financial Statements") delivered to Purchaser for
calendar years 1994, 1995 and 1996 (1996 being from January through October
only) are true and correct in all material respects. The Financial Statements
fairly represent the results of operations of the Property as of the-end of
and for the period covered thereby.
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(e) To the best of Seller's knowledge, Seller has delivered to Purchaser
all items listed in EXHIBIT J which are in Seller's possession or control.
(f) The copies of the Leases and other agreements entered into by Seller
(or any prior owner) with the tenants, licensees, franchisees, or other parties
having any rights in all or a portion of the Property ("Tenants"), delivered to
Purchaser, a list of which is attached as EXHIBIT B. attached hereto and made a
part hereof, are true, correct and complete copies and are in full force and
effect, constitute the entire agreements with the Tenants relating to the
Property, have not been amended, modified or supplemented, except for such
amendments, modifications and supplements delivered to Purchaser, and there are
no other leases, licenses, franchises or other rights of occupancy affecting the
Real Property and, to the best of Seller's knowledge, are without default by any
party and without any right of setoff, except as expressly provided by the terms
of such Leases or as disclosed to Purchaser in writing at the time of delivery.
To the best of Seller's knowledge, (i) the Tenants are in possession of their
respective premises and (ii) Seller has no knowledge, and has received no
written notice, that any Tenant has filed, or is intending to file, for
bankruptcy.
(g) To the best of Seller's knowledge, (i) Seller has not received notice
that any Tenant has been overcharged for any pass-throughs or other payments due
under the Leases, (ii) there are no improvement costs or allowances due any
Tenant except as
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expressly set forth in the Leases and the rent roll annexed as EXHIBIT P hereto
and made a part hereof, it being agreed that Seller shall pay for the
improvement costs or allowances due ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ d/b/a Ciber, ▇▇▇▇▇▇ Homes
and Citizen's Mortgage, estimates of which amounts shall be credited to
Purchaser at the Closing (estimates are set forth on EXHIBIT L) and the
improvement costs or allowances due Benefits Network as of the Closing, if
already paid by Seller, shall be credited to Seller at the Closing, it being
further agreed that Seller shall deposit in an escrow account an amount of money
approximately equal to $248,695 to be used in connection with Hitachi's
anticipated relocation and lease extension after the Closing Date or as
otherwise set forth in an escrow agreement reasonably acceptable to both parties
to be entered at Closing generally in accordance with the terms and conditions
set forth on EXHIBIT S attached hereto and made a part hereof, (iii) no Tenant
is due any concessions including free rent which remains unexpired under the
Leases.
(h) Except for certain relocations and expansions of Tenants currently
being implemented by Seller at the Property, to the best of Seller's knowledge,
the information contained in the rent roll annexed hereto as EXHIBIT P and made
a part hereof is true, correct and complete in all material respects. The
information contained in the rent roll will be, to the best of Seller's
knowledge, true, correct and complete on the Closing Date.
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(i) As of the consummation of this purchase and sale transaction, there
will be no brokerage or leasing fees or commissions or other compensation due or
payable on an absolute or contingent basis to any person, firm, corporation, or
other entity, with respect to or on account of any of the Leases and no such
fees, commissions or other compensation shall, by reason of any existing
agreement, become due or payable after the Closing during the terms of any of
the Leases or with respect to any renewal or extension thereof or the leasing of
additional space by any Tenant (except as specified in EXHIBIT M attached
hereto, the payment of which will be the obligation of Purchaser).
(j) EXHIBIT N attached hereto is a schedule of all of the contracts in
connection with the maintenance and operation of the Property (the "Contracts"),
true, complete and correct copies of which will have been delivered to Purchaser
for Purchaser's approval prior to the Closing. To the best of Seller's
knowledge, the Contracts are in full force and effect, without default by any
party and without any claims made for the right of setoff, except as expressly
provided by the terms of such Contracts or as disclosed to Purchaser in writing
at the time of such delivery. The Contracts constitute the entire agreements
with such vendors relating to the Property, have not been amended, modified or
supplemented, except for such amendments, modifications and supplements
delivered to Purchaser, and there are no other agreements with any third parties
(excluding, however, the Leases and Permitted Exceptions) affecting the
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Property which will survive the Closing. All of the Contracts are terminable
upon not more than 30 days prior written notice and such notice of termination
of such Contracts will be delivered by Seller at the request of Purchaser at any
time after the Inspection Termination Date.
(k) All insurance policies held by Seller or its affiliates relating to or
affecting the Property are described in EXHIBIT O annexed hereto and hereby made
a part hereof (detailing deductibles and any self-insurance) and all of such
policies are in full force and effect with all premiums therefor prepaid in full
through the Closing Date. Seller has not received any written notice from any
insurance carrier or any of the Tenants of any defects or inadequacies in the
Property, or in any portion thereof, which would adversely affect the
insurability thereof or the cost of such insurance. Except as delivered to
Purchaser in writing, there are no pending insurance claims concerning the
Property.
(l) Seller has not received any written notice of any condemnation,
environmental, zoning or other land use regulation proceedings, either
instituted or planned to be instituted which would adversely impact the use and
operation of the Property for its intended purpose, nor has Seller received any
written notice of any assessments affecting the Property.
(m) As of the Closing, there will be no outstanding contracts made by
Seller for the construction or repair of any of the-Improvements which have not
been fully paid for, and Seller
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shall cause to be discharged all mechanics' or materialmen's liens arising from
any labor or materials furnished to the Property prior to the Closing, except
for such contracts as are set forth as EXHIBIT L, the remaining amounts owing
under which will be a credit to Purchaser at Closing and Seller shall indemnify
Purchaser for claims arising under such contracts at the Closing for the period
prior to Closing.
(n) Seller does not use, treat, store or dispose of, and, to the best of
Seller's knowledge, has not permitted anyone else to use, treat, store or
dispose of, whether temporarily or permanently, any Hazardous Materials (as
hereinafter defined) at, on or beneath the Property (other than the customary
and usual application, storage and use of chemicals for landscape maintenance,
janitorial services and pest control in the ordinary course of Seller's
business, and other than any office products (toner, cleaning supplies, etc.)
which may be used by Tenants, which may in each case constitute Hazardous
Materials but which Seller hereby represents have been used only in material
compliance with all Environmental Laws (as hereinafter defined)). Except as may
be set forth in a report prepared by PEI Associates Inc. dated March 9, 1988 (a
copy of which Seller previously delivered to Purchaser), Seller has no knowledge
of any underground storage tanks at or beneath the Property, and Seller has no
knowledge of the presence, use, treatment, storage, release or disposal of any
Hazardous Materials at, on or beneath the- Property which has created any
liability of owners or
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occupants of the Property under any federal, state or local law or regulation or
which would require reporting to a governmental agency. For the purpose of this
Agreement, "Hazardous Materials shall mean any material or substance that,
whether by its nature or use, is now defined as a hazardous waste, hazardous
substance, pollutant or contaminant under any Environmental Law or which is
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and which is now regulated under any
Environmental Law, or which is or contains petroleum, gasoline, diesel fuel or
another petroleum hydrocarbon product, or which is or contains urea formaldehyde
or asbestos. The term "Environmental Laws" shall collectively mean all present
laws, statutes, ordinances, rules, regulations, orders, codes, licenses,
permits, decrees, judgments, directives or the equivalent of or by any
Governmental Authority and relating to or addressing the protection of the
environment or human health. The term "Governmental Authority" shall mean the
Federal government, or any state or other political subdivision thereof, or any
agency, court or body of the Federal government, any state or other political
subdivision thereof, exercising executive, legislative, judicial, regulatory or
administrative functions.
(o) Except as set forth in EXHIBIT O attached hereto, against which Seller
shall indemnify Purchaser at Closing, there are no pending or, to the best of
Seller's knowledge, threatened legal proceeding or actions of any kind or
character adversely affecting the Property or Seller's interest therein.
Except as
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delivered to Purchaser, there are no litigation documents relating to any of the
matters set forth in EXHIBIT O.
(p) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and
Seller will furnish to Purchaser, prior to the Closing, an affidavit in the form
attached hereto as EXHIBIT I.
4.1. B. For purposes of this Agreement, "to the best of the Seller's
knowledge" shall be deemed to include any actual knowledge of ▇▇▇▇ ▇▇▇▇▇ or the
▇▇▇▇▇▇▇▇▇ Company, which has been property manager of the Property for at least
twenty-four (24) months. Seller hereby represents and warrants that except for
▇▇▇▇ ▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇▇ Company, there are no other persons or entities
with any material knowledge of the Property or its operation.
4.1. C. All of the representations of Seller set forth in this Agreement
shall be true upon the execution of this Agreement and, upon Closing, shall be
deemed to be made jointly and severally by each of the partners comprising
Seller, and all of the representations, warranties and agreements of Seller set
forth in this Agreement shall survive Closing for a period of one (1) year after
the Closing Date, it being agreed and understood that, so long as any action
based on a breach of representation and warranty for which there is a one (1)
year survival y is commenced within one (1) year of the date hereof, such ~.
commencement of such action shall be deemed to toll the
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expiration of such one (1) year survivalty period with respect to the matter
complained of.
41. D (a) Seller shall and hereby does, jointly and severally together
with its general partners, indemnify and hold harmless the Purchaser
and its partners, shareholders, officers, directors, affiliates and
agents from and against any costs, expenses (including without
limitation reasonable attorneys' fees, and the reasonable out-of-
pocket expenses of testifying and preparing for testimony and
responding to document and other information requests, and in
connection with the enforcement of any rights hereunder, whether or
not a party to such litigation), liabilities, judgments, fines,
amounts paid in settlement, losses, claims and damages, as incurred,
to the extent they relate to, arise out of or are the result of the
inaccuracy of any of the representations or warranties of Seller
contained in or made pursuant to this Agreement for the period of
survivability of such representations and warranties set forth herein.
4.2. A. Purchaser represents and warrants to Seller that:
(a) Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of Delaware.
(b) Purchaser has full power, right and authority to execute,
deliver and perform this Agreement and to make each of the promises,
covenants, representations and warranties made in this Agreement by it.
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(c) All acts and other proceedings required to be taken on the
part of Purchaser to authorize it to execute, deliver and perform this
Agreement and such other agreements and instruments as are required of
Purchaser hereunder have been duly and properly taken.
4.2. B. (a) All of the representations of Purchaser set forth in this
Agreement shall be true upon the execution of this Agreement and, upon Closing,
and all of the representations, warranties and agreements of Purchaser set forth
in this Agreement shall survive Closing for a period of one (1) year after the
Closing Date, it being agreed and understood that, so long as any action based
on a breach of representation and warranty for which there is a one (1) year
survivalty is commenced within one (1) year of the date hereof, such
commencement of such action shall be deemed to toll the expiration of such one
(1) year survivalty period with respect to the matter complained of.
4.2. C (a) Purchaser shall and hereby does, indemnify and hold harmless
Seller and its partners, shareholders, officers, directors, affiliates and
agents from and against any costs, expenses (including without limitation
reasonable attorneys' fees, and the reasonable out-of-pocket expenses of
testifying and preparing for testimony and responding to document and other
information requests, and in connection with the enforcement of any rights
hereunder, whether or not a party to such litigation), liabilities, judgments,
fines, amounts
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paid in settlement, losses, claims and damages, as incurred, to the extent they
relate to, arise out of or are the result of the inaccuracy of any of the
representations or warranties of Purchaser contained in or made pursuant to this
Agreement for the period of survivability of such representation and warranties
set forth herein.
5. CONDITION OF TITLE
5.1. Title to the Property conveyed hereunder shall be good, free and clear
of all liens, claims, encumbrances and interests (other than the Permitted
Exceptions set forth on EXHIBIT G) and insurable by a nationally recognized
title insurance company of Purchaser's choice (the "Title Company"), at regular
rates, subject only to such defects and exceptions to title which Purchaser has
not listed as Unacceptable Exceptions (as hereinafter defined) or in a notice to
Seller or otherwise those Unacceptable Exceptions which Purchaser waives and
agrees to take subject to in accordance with the terms of this Agreement (the
"Permitted Exceptions").
5.2. Purchaser has ordered title and survey. Within fifteen (15) days from
the receipt of title and survey, Purchaser shall notify Seller whether
Purchaser's survey and/or title search reveals any defects or other exceptions
to title which are unacceptable to Purchaser (the "Unacceptable Exceptions").
Seller shall notify Purchaser within five (5) Business Days after receipt of the
notice of such Unacceptable Exceptions whether Seller will attempt to remedy the
same. Should Seller choose to
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remedy the Unacceptable Exceptions, Seller shall have up to thirty (30) days
within which to take such action as Seller, Purchaser and Purchaser's title
insurance company deem appropriate to clear or remove said Unacceptable
Exceptions and the Closing shall be postponed for up to such thirty (30) days
(the "Adjourned Closing Date"). Notwithstanding the foregoing, Seller shall be
obligated to remove and cure, or bond over any Unacceptable Exceptions provided
that the removal and cure or the bonding of such exceptions does not exceed
$100,000 in the aggregate (collectively, "Seller Cure Exceptions"). If an
Unacceptable Exception is incapable of being cured within a thirty (30) day
period as set forth above, such thirty (30) day period may be extended by
Purchaser for so long as Seller continues to diligently pursue remedying the
Unacceptable Exception. If after the expiration of said thirty (30) day period,
and prior to the Adjourned Closing Date, a new defect to title is disclosed by
an updated endorsement to Purchaser's title report, the same rights and
obligations of the parties as set forth above shall be applicable.
5.3. In the event Seller is unable or unwilling to remove any Unacceptable
Exceptions which are not Seller Cure Exceptions in accordance with Section 5.2
above, Purchaser shall have the right to terminate this Agreement. In the event
Purchaser so terminates this Agreement, the ▇▇▇▇▇▇▇ Money Deposit shall be
returned to Purchaser, and upon the return thereof, all
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obligations of the parties hereto shall cease and terminate other than those
obligations arising under Article 12.
In addition, in lieu of satisfying any of the foregoing liens or
encumbrances affecting the Property, Seller may direct Purchaser to apply a
portion of the Purchase Price to the satisfaction of such liens and encumbrances
provided that Seller shall, at the Closing, deliver to the Title Company
instruments in recordable form which, in the opinion of the Title Company, will
be sufficient to satisfy and cause such liens or encumbrances to be removed of
record, together with the cost of recording or filing any such instruments.
Purchaser shall, if request is made at least five (5) Business Days prior to the
Closing Date, provide Seller, on the Closing Date, with separate unendorsed
certified or bank checks payable as directed by Seller, in an aggregate amount
not exceeding the Purchase Price, to facilitate the satisfaction of any such
liens or encumbrances.
6. PURCHASER'S INSPECTION OF THE PROPERTY.
6.1. Nothing contained in this Section 6 shall be construed to permit
Purchaser to enter into possession of the Property prior to the Closing.
Notwithstanding anything to the contrary contained herein, for the period
(herein the "Inspection Period") commencing on January 15, 1997 and ending on
March 7, 1997 (herein the "Inspection Termination Date"), Seller agrees that at
reasonable times during the Inspection Period on reasonable notice to Seller's
manager of the Property, Purchaser and its engineers, contractors, management,
insurance and environmental
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personnel or environmental contractor (collectively referred to herein as
"Purchaser's Inspectors') may enter upon the Real Property and make, at
Purchaser's sole cost, right and expense, reasonable inspections of the books
and records of Seller with respect to the Property or its ownership and
operation and the Real Property without however any interference or interruption
of the current tenancies of the Real Property, or in violation of the terms of
any Leases, provided however, that Purchaser shall at its sole cost and expense
cause the Real Property to be restored to its condition prior to any of
Purchaser's or Purchaser's Inspectors' inspections that altered the condition of
the Real Property Purchaser hereby indemnifies and saves Seller harmless from
and against any and all damages, costs, including, without limitation,
attorneys' fees and costs, injuries, and liabilities to the Property and/or any
persons or property of any person including, without limitation, tenants under
the Leases, their guests, employees and invitees, which may occur by reason of,
or in connection with any such inspections or other entry upon, or use of the
Property by Purchaser or Purchaser's Inspectors. Purchaser and Purchaser's
Inspectors may make the physical inspections described herein provided (a)
Purchaser notifies Seller or its manager of the Inspection of the Property in
advance, (b) Purchaser and/or Purchaser's Inspectors are accompanied by a
representative of Seller, who shall be made available to Purchaser after
reasonable notice to Seller or its manager of the Property of the proposed
inspection, and (c) such
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inspections do not unreasonably interfere with the operation, management and
leasing of the Property, and the tenants pursuant to the Leases. If Purchaser
intends to conduct invasive testing at the Property, Purchaser shall be required
to first obtain Seller's consent thereto, which shall not be unreasonably
withheld. If Purchaser desires to conduct an environmental "Phase II" study of
the Property, Purchaser shall be required to first obtain Seller's prior written
consent thereto, which shall be given in Seller's sole and absolute discretion.
If Seller does not consent to Purchaser's request to conduct either an
environmental "Phase II" study of the Property or such invasive testing as
Purchaser deems appropriate, Purchaser may terminate this Agreement and in
addition to Seller having returned to Purchaser the ▇▇▇▇▇▇▇ Money Deposit,
Seller shall reimburse Purchaser for its costs and expenses to the date of
termination up to the amount of $35,000. If on or prior to the Inspection
Termination Date Purchaser makes any objection to the condition of the Property,
Seller shall have no obligation to remove or cure any objection to the state of
the Property, and if Seller refuses or is unable to remove or cure such
objections, Purchaser's only remedy hereunder shall be (i) to complete the
Closing as provided herein with no reduction in the Purchase Price or (ii) to
terminate the Agreement and receive back the ▇▇▇▇▇▇▇ Money Deposit, and in such
event this Agreement shall be immediately terminated with neither party having
any rights against the other party hereunder other than those obligations
-21-
arising under Article 12. Nothing contained herein shall modify, qualify or
affect the representations and warranties made by Seller to Purchaser in this
Agreement. Once the Inspection Termination Date has occurred and Purchaser has
not terminated this Agreement, Purchaser shall continue to be entitled to the
inspection rights (including, without limitation, interviews with Tenants in the
presence of Seller) on the terms set forth herein through the Closing.
7. ADJUSTMENTS AND APPORTIONMENTS
7.1. At the Closing there shall be apportionments and adjustments between
Seller and Purchaser as of midnight preceding the Closing Date (where
appropriate, such adjustments shall be made on the basis of a year of 12 months,
30 days to the month, Seller to have the last day, unless otherwise provided) as
follows:
(a) Purchaser shall pay all special assessments for municipal
improvements to be made with respect to the Property which are confirmed of
record and become a lien after the Closing and so much of the property taxes
assessed for and becoming a lien during the calendar year in which the Closing
occurs and which shall be allocable to it on and after the Closing. Seller shall
pay the balance of such property taxes at Closing, using the present tax rate if
the applicable tax rate has not been set (i.e. the balance of the 1996 calendar
year taxes and the 1997 calendar year taxes prorated to the date of Closing). If
the Closing shall occur either before an assessment is made or a tax
-22-
rate is fixed for the tax period in which the Closing occurs, the apportionment
of any such property taxes based thereon shall be made at the Closing by
applying the tax rate for the preceding year to the latest assessed valuation,
but, promptly after the assessment and/or tax rate for the current year are
fixed, the apportionment thereof shall be recalculated and Seller or Purchaser,
as the case may be, shall promptly make an appropriate payment to the other
based on such recalculation.
(b) Special taxes or assessments, if any, upon the Property assessed
or becoming a lien prior to the Closing Date shall be paid by Seller in full on
or prior to the Closing Date.
(c) Fuel, electricity, water, sewer, gas, telephone and other utility
charges not payable directly to the utility companies by Tenants (such proration
to be based upon meter readings, where possible, within 2 days prior to the
Closing Date), rents and assigned deposits, if such deposits shall be assignable
(except such metered utility charges which Seller shall cause to be read on the
business day prior to the Closing Date and billed to Seller), Purchaser agreeing
to assume all liability for future utility payments.
(d) Security deposits.
(e) Pre-paid rentals for periods extending beyond the Closing Date,
common area maintenance charges, tax reimbursements, insurance
reimbursements, and other charges under the Leases. Rents more than thirty
(30) days in arrears, if any, shall not be adjusted, and the right to
collect the same shall be
-23-
assigned to Purchaser (provided that Purchaser shall subsequent to Closing,
remit any collections, applying any payment received from a Tenant formerly
delinquent first to the rentals due to Purchaser and the balance shall be
promptly remitted to Seller). On the Closing Date, adjustments for common area
charges, tax reimbursements, and insurance reimbursements payable with respect
to the period prior to Closing shall be made on the basis of the good faith
estimates of the parties, and final adjustment shall be made when precise
figures are determined but not later than February 15, 1998. Purchaser shall pay
to Seller after Closing any rents, reimbursements, common area charges, tax and
utility charges and other charges due Seller pursuant to the Lease only when and
to the extent they are received by Purchaser.
(f) The provisions of this Article 7 shall survive the Closing.
8. COVENANTS OF SELLER. (a) Between the date hereof and the Closing
Date, Seller shall:
(i) operate, manage and maintain the Property in a normal businesslike
manner consistent with current practice and keep on hand materials,
supplies, equipment, inventory and other personal property for the
efficient operation and management of the Property, all in a manner
consistent with current practice;
(ii) promptly deliver to the Purchaser a copy of any notice
(including, without limitation, a notice of
-24-
default) received from any Tenant or from any governmental authority having
jurisdiction over the Property;
(iii) promptly deliver notice to the Purchaser of, and, if the same
may materially adversely affect the Purchaser or the Property, defend at
Seller's expense, all actions, suits, claims and other proceedings
materially adversely affecting the Property, or the use, possession or
occupancy thereof;
(iv) maintain the existing certificates of occupancy and all existing
permits and licenses required for the lawful operation of the Property in
full force and effect, obtain certificates of occupancy for the premises of
the Tenants listed on Exhibit R attached hereto, and promptly deliver
notice to the Purchaser of any intention of Seller to seek any new permit,
license or certificate of occupancy;
(v) maintain all the Leases in full force and effect, timely make all
payments and observe and perform all obligations to be paid, observed or
performed by Seller, and promptly notify the Purchaser of any receipt or
delivery of any notice (including any notice of default) thereunder;
(vi) maintain all the Contracts in the ordinary course of Seller's
business (subject to Purchaser's right to direct Seller to cancel any
Contracts but only after the Inspection Termination Date), timely make all
payments and observe and perform all obligations to be paid, observed or
-25-
performed by Seller, and promptly notify the Purchaser of any receipt or
delivery of any notice (including any notice of default) thereunder;
(vii) maintain in full force and effect-all of the insurance policies
in connection with the Property; and
(viii) use reasonable efforts after the Inspection Termination Date to
obtain estoppel certificates from each Tenant at the Property in a form
acceptable to Purchaser (collectively, the "Tenant Estoppels").
(b) Between the Inspection Termination Date and the Closing Date,
Seller shall not, without Purchaser's prior written approval (which approval may
be withheld by Purchaser in its sole discretion):
(i) cancel, amend, modify and/or renew the terms of any Lease,
undertake capital improvements and repairs (except as may otherwise be
required by any Lease or by law, or in the event of emergency or other
exigent circumstance) or enter into new leases, tenancies and occupancy
agreements with respect to all or any portion of the Property;
(ii) enter into agreements (including, without limitation,
financing agreements) with respect to all or any portion of the Property.
(c) Between the date hereof and the Closing Date, Seller shall not
intentionally violate any material laws or regulations applicable to the
Property.
-26-
(d) In the event that Seller desires to attempt to procure Purchaser's
approval for an act or acts requiring such approval pursuant to Section 8.1(b)
above, Purchaser shall provide such approval or disapproval within three (3)
Business Days from receipt of request from Seller therefor, together with all
material information regarding the same, or it will be deemed approved.
9. INSURANCE, DAMAGE - DESTRUCTION, CONDEMNATION
9.1. If, prior to Closing, any portions of the Improvements are damaged or
destroyed ("Casualty"), or any portion of the property is taken in condemnation,
or notice thereof is received by Seller ("Condemnation"), then:
(a) in the event the estimated cost to repair or restore is ONE
HUNDRED THOUSAND ($100,000.00) DOLLARS or less, Purchaser shall be obligated to
purchase, and Seller shall be obligated to sell, the Property pursuant to this
Agreement and Seller will assign at the Closing all proceeds of insurance and/or
awards resulting from such damage, destruction or condemnation, it being agreed
and understood that any shortfall in insurance proceeds up to the amount of
$100,000 shall be paid by Seller promptly after being billed therefor, this
provision being intended to survive the Closing.
(b) In the event the estimated cost to repair or restore, as estimated
by Seller, is in excess of ONE HUNDRED THOUSAND ($100,000.00) DOLLARS, then
Seller at its sole absolute discretion may (i) elect to repair and restore, in
which event
-27-
the Closing Date will be extended to the date of completion of the repair or
restoration, but in no event for longer than six months, with no adjustment to
the Purchase Price or (ii) to notify Purchaser of its intention not to repair or
restore the Property and, subject to Purchaser's right in Section 9.1(c) below,
to terminate this Agreement, in which event the ▇▇▇▇▇▇▇ Money Deposit shall
promptly thereafter be returned to Purchaser and neither party shall have any
rights against the other party pursuant to this Agreement except for those set
forth in Article 12.
(c) In any event of Casualty or Condemnation under Section 9.1(b) for
which Seller elects not to repair or restore, Purchaser may elect by notice to
Seller within thirty (30) days of its receipt of the notice specified in Section
9.1(b) to proceed with Closing with no reduction in the Purchase Price and in
such event Seller shall assign to Purchaser all proceeds of the Condemnation
award and/or the insurance proceeds resulting from such Casualty and pay to
Purchaser any shortfall in insurance proceeds up to the amount of $100,000 upon
being billed therefor, this provision being intended to survive Closing.
10. CONDITIONS PRECEDENT TO CLOSING
10.1. The obligations of Purchaser to consummate the transactions
contemplated by this Agreement are subject to each of the following conditions,
any one or more of which may be waived in whole or in part by Purchaser:
-28-
(a) The representations and warranties set forth in Section 4.1 hereof
shall be true and correct in all material respects at and as of the Closing Date
with the same effect as though the same had been made on and as of said date,
and at the Closing, Seller shall deliver to Purchaser a certification to such
effect.
(b) The relocation and expansion of certain Tenants and modification
of certain Leases as more fully set forth on Exhibit S attached hereto and made
a part hereof have been completed and approved by Purchaser.
(c) Seller shall have complied with and performed all material
agreements and conditions required by this Agreement to be performed or complied
with prior to or as of the Closing Date.
(d) Purchaser shall have received the Tenant Estoppels from all
Tenants above 2,000 square feet of net rentable area prior to Closing (the
"Required Estoppels"). Seller shall have the option, but not the obligation, to
provide Purchaser with a certificate of Seller (a "Seller Certificate")
addressing, in the same manner as provided in an estoppel certificate acceptable
in form and substance to Purchaser, the items set forth in each Tenant Estoppel
Certificate comprising the Required Estoppels which Seller is required, but is
unable, to obtain, it being agreed and understood that the Seller Certificate
shall not cover a square footage greater than twenty percent (20%) of the net
rentable area at the Property, excluding the space leased to Chrysler, ▇▇▇▇▇▇
Homes, USA Mobile and Hitachi, unless otherwise
-29-
agreed to by Purchaser. Notwithstanding the above, Purchaser shall have the
option of terminating this Agreement if Seller is unable to deliver an estoppel
certificate in form and substance satisfactory to Purchaser for either Chrysler,
▇▇▇▇▇▇ Homes, USA Mobile or Hitachi.
(e) Purchaser may conduct interviews with any or all of the Tenants
with the Seller or an agent of Seller present.
11. PROVISIONS WITH RESPECT TO THE CLOSING
11.1. At the Closing:
(a) Seller shall pay all local transfer taxes, documentary stamps, and
the recording fees and taxes resulting from the transfer of the Property and in
connection with the recordation of the deed conveying the Real Property and
Easement (the "Deed") and the Assignment and Assumption Agreement.
(b) Seller shall pay the sales taxes, if any, for the Personal
Property.
(c) Seller shall pay for the cost of (i) the title policy, it being
agreed that Purchaser shall pay for any ordinary and customary required
endorsements, such as contiguity and access, (ii) the zoning report (the cost of
which zoning report shall not exceed $500), and (iii) the survey.
(d) Seller and Purchaser shall each pay fifty percent (50%) of escrow
fees of the Title Company, if any.
11.2. Seller and Purchaser shall each pay the costs of its own counsel for
representation in the sale and purchase of the Property pursuant to this
Agreement.
-30-
11.3. On the Closing Date, simultaneously with the delivery to Seller by
Purchaser of the Cash Portion of the Purchase Price Seller shall deliver to
Purchaser the following:
(a) The Deed in the form attached hereto as EXHIBIT E.
(b) The Assignment and Assumption Agreement of all of Seller's right
title and interest in the Leases and rents due thereunder, duly executed and
acknowledged by Seller, subject only to the Permitted Exceptions in the form
attached hereto as EXHIBIT F.
(c) Any other documents reasonably required to record the Deed or
customarily required in the state where the Property is located in connection
with transfers such as this transfer.
(d) A reaffirmation of the representations, warranties and
indemnities set forth in this Agreement to the extent set forth herein.
(e) The ▇▇▇▇ of Sale for the Personal Property conveying the Personal
Property without recourse, representation or warranty except as set forth in
this Agreement in the form attached hereto as EXHIBIT H.
(f) Secretary's Certificate of Seller and evidence reasonably
satisfactory to Purchaser of Seller's power and authority to enter into and
perform this transaction and the taking of partnership and/or corporate actions
to enter into and perform the transactions contemplated by this Agreement.
(g) Originals of the Leases.
-31-
(h) Originals of, if available, or, otherwise, copies of all
certificates of occupancy for every Tenant at the Property, all permits and
licenses, and, to the extent the same are assignable, all guaranties and
warranties with respect to the Property.
(i) Broker Releases from CB Commercial and the ▇▇▇▇▇ Corporation.
(j) Seller's FIRPTA Affidavit in the form of Exhibit I annexed hereto.
(k) All keys to the Real Property, except for those keys in tenants'
possession.
(l) To the extent not delivered prior to Closing and to the extent
available, all plans drawings and specifications for the Real Property in the
Seller's possession, if any.
(m) Mechanics' Lien Affidavit reasonably required by the Title
Company.
(n) Transfer of the Security Deposits described in Exhibit K annexed
hereto and made a part hereof.
(o) An Assignment of all of Seller's right, title and interest in and
to the Easement, if required.
(p) All customary affidavits, undertakings and indemnities reasonably
required by the Title Company.
(q) Required Estoppels.
(r) Notices to all of the Tenants executed by Seller notifying the
Tenants of the purchase and sale in the form attached hereto as EXHIBIT T.
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Delivery by Seller of all items relating to the operation, management and
leasing of the Real Property shall be made by leaving such items at the Real
Property provided Seller acknowledges receipt thereof.
11.4. On the Closing Date, Purchaser shall simultaneously with delivery to
Purchaser of the items described in Section 11.3 hereof:
(a) Wire to Seller as directed in writing by Seller the Cash Portion
of the Purchase Price as adjusted pursuant to Article 7.
(b) Deliver to Seller evidence of Purchaser's power and authority to
enter into the transaction contemplated by this Agreement and evidence of the
taking of all corporate actions hereunder to authorize this transaction.
(c) Deliver to Seller an original counterpart of the Assignment and
Assumption Agreement described in Section 11.3(b) hereof, executed and
acknowledged by Purchaser.
(d) Deliver to Seller for execution by Seller and delivery to Tenants
by Purchaser a notice to the Tenants of the purchase and sale in the form
attached hereto as EXHIBIT T.
(e) A reaffirmation of the representations, warranties and indemnities
set forth in this Agreement to the extent set forth herein.
(f) Deliver to Seller such other documents that are customary in the
state where the Property is located in connection with transfers such as this
transfer.
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12. BROKERAGE
12.1. Seller and Purchaser hereby warrant and represent to each other that
no brokers were involved in this matter or brought about this transaction except
for CB Commercial and the ▇▇▇▇▇ Organization, which brokers will be paid in full
at Closing by Seller.
12.2. Seller hereby indemnifies and holds Purchaser harmless against any
claims of any broker, agent or other person arising out of or in connection with
this transaction claiming through Seller. The warranties, indemnities and
agreements in this Article 12 shall survive the Closing for the full statutory
period permitted by law.
12.3. Purchaser hereby indemnifies and holds Seller harmless against any
claims of any broker, agent or other person arising out of or in connection with
this transaction claiming through Purchaser (except for CB Commercial and the
▇▇▇▇▇ corporation). The warranties, indemnities and agreements in this Article
12 shall survive the Closing for the full statutory period permitted by law.
13. CERTIORARI
13.1. Seller represents that there are no pending certiorari proceedings
with respect to all or a portion of the Property. Between the date of this
Agreement and the Closing, Seller may bring, with Purchaser's approval not to be
unreasonably withheld, all certiorari proceedings with respect to the reduction
of the tax assessment for calendar year 1996 and
-34-
earlier. Seller shall have the right to make any settlement for calendar years
prior to 1997, provided such settlement does not prejudice Purchaser, without
Purchaser's approval and Seller shall be entitled to retain all savings and
refunds obtained therefrom. Any settlement for calendar year 1997 shall require
Purchaser's approval, which shall not be unreasonably withheld or delayed.
Purchaser agrees to fully cooperate with Seller in any such certiorari
proceedings.
13.2. The net amount of any reduction, if any, for real estate taxes for
the current tax year, whether by way of refund, credit or other savings, shall
be apportioned between Seller and Purchaser pursuant to Article 7 hereof, after
the payment of attorneys' fees, reasonable experts' fees and other disbursements
and expenses reasonably incurred by Seller and Purchaser in connection with
obtaining same. Any amounts due Tenant pursuant Leases as a result of any such
reduction shall be apportioned between Purchaser and Seller as proceeds in
Article 7 hereof.
13.3. The provisions of this Article 13 shall survive the Closing.
14. NOTICES
14.1. All notices, demands or requests required or permitted by this
Agreement to be given by or to Seller or Purchaser (a) shall be in writing, and
(b) until otherwise specified in a written notice by the respective parties or
any of them, shall be sent to the parties at their following respective
addresses:
-35-
Seller:
With a copy to:
New York Life Insurance Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Greystone Realty Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President Purchaser:
Purchaser:
c/o Westmark Realty Advisors
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. (jtb)
Each such notice, demand or request shall be deemed to have been properly served
for all purposes if personally delivered or deposited into the United States
Mail registered or certified mail, and return receipt requested, or by Federal
Express or other similar overnight delivery service, postage prepaid, to its
addressee at its address as set forth hereinabove in this Section. Each such
notice, demand or request so mailed by Seller or Purchaser shall be deemed to
have been received by its addressee on the next business day after the day of
mailing.
-36-
15. DEFAULTS
15.1. If Seller willfully defaults in the performance of its obligations
under this Agreement, Purchaser shall have the right (i) to seek specific
performance of Seller's obligations under this Agreement or (ii) to terminate
this Agreement (and promptly receive a return of the ▇▇▇▇▇▇▇ Money Deposit) and
obtain damages at law as a result of such breach, which damages shall not exceed
the sum of $100,000, and, thereafter, this Agreement shall become null and void,
except for the provision of Article 12 hereof, and neither party to this
Agreement shall have any further rights or obligation with respect to each other
hereunder, except for the provision of Article 12 hereof, which shall survive
the termination of this Agreement. Notwithstanding the foregoing, Seller shall
have thirty (30) days after receiving written notice of any such willful default
within which to cure such willful default, it being agreed and understood that
if such willful default is the failure to close the transaction, then Seller
shall have the additional time permitted in Section 16.13 of this Agreement.
15.2. If Purchaser willfully defaults in the performance of its obligations
under this Agreement, Seller shall have the right, as Seller's sole and
exclusive remedy, to receive and keep the ▇▇▇▇▇▇▇ Money Deposit as and for
liquidated damages it being agreed and understood between the parties hereto,
that the actual damages, costs and expenses sustained by Seller in the event of
a willful default are difficult, if not impossible, to ascertain
-37-
and, following the payment of the ▇▇▇▇▇▇▇ Money Deposit to Seller, this
Agreement shall become null and void except for the provision of Article 12
hereof and neither party to this Agreement shall have any further rights or
obligations to each other hereunder, except for those provisions of Article 12
hereof, which shall survive the termination of this Agreement. Notwithstanding
the foregoing, Purchaser shall have thirty (30) days after receiving written
notice of any such willful default within which to cure such willful default, it
being agreed and understood that if such willful default is the failure to close
the transaction, then Purchaser shall have the additional time permitted in
Section 16.13 of this Agreement.
15.3. Notwithstanding anything to the contrary contained in this Article
15, Purchaser may terminate this Agreement on or prior to the Inspection
Termination Date, for any reason whatsoever, by providing written notice to
Seller to the effect thereof. In the event that Purchaser terminates this
Agreement pursuant to this Section 15.3, the ▇▇▇▇▇▇▇ Money Deposit shall
immediately be returned to Purchaser and all other terms and conditions of this
Agreement shall be null and void, except as set forth in Article 12 hereof.
16. Miscellaneous Provisions
16.1. This Agreement shall be governed by the laws of the State of Ohio.
16.2. The captions of this Agreement are inserted for convenience of
reference only and in no way define, describe or
-38-
limit the scope or intent of this Agreement or any of the provisions hereof.
16.3. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
16.4. All Sections, the terms of which provide for survival, shall be
deemed to have been remade at the Closing Date and shall survive the Closing
Date.
16.5. This Agreement may be executed in counterparts, each of which shall
be deemed an original.
16.6. This Agreement (including the exhibits attached hereto) contains the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior understandings and/or agreements, if any, with respect
thereto. This Agreement may not be modified, changed, or supplemented, nor may
any obligations hereunder be waived, except by written instrument signed by the
party to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto. The
provisions of this Section shall survive the Closing Date.
16.7. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
or of any other agreement or provision herein contained. No extension of time
for performance of any
-39-
obligations or acts shall be deemed an extension of the time for performance of
any other obligations or acts.
16.8. The parties each agree that neither this Agreement nor any memorandum
or notice thereof shall be recorded.
16.9. Westmark Realty Advisors hereby jointly and severally assumes the
obligations of Purchaser under this Agreement through Closing on the same basis
as set forth herein, including all limitation on such obligations as set forth
herein.
16.10. Purchaser's entire interest under this Agreement may be assigned or
transferred by Purchaser without the consent of Seller provided that (a)
Purchaser provides Seller with notice with respect to any such assignment or
transfer stating the address, contact and telephone number of any such assignee
or transferee and (b) the assignee or transferee of Purchaser must be an
affiliate of Purchaser or an institutional investor.
16.11. The possession of the Property described herein (subject to the
rights of the tenants pursuant to the Leases) shall be delivered to Purchaser at
Closing. Nothing contained in this Section 16.11 shall be construed to permit
Purchaser to enter into possession of the Property prior to the Closing.
16.12. CONFIDENTIALITY. Each of Seller and Purchaser agrees with the other
that it has no present intention of making any public announcement about the
purchase and sale transaction contemplated hereby or of any of the terms hereof,
including without limitation, the results of any inspection, test, survey, or
study conducted pursuant to this Agreement except as may be
-40-
required by any governmental authority or quasi-governmental authority or in
connection with the enforcement or exercise of rights and/or remedies under this
Agreement. If this Agreement is terminated for any reason other than Seller's
willful default, Purchaser shall promptly return to Seller all of the documents
and information theretofore delivered to Purchaser by Seller, including without
limitation the copies of Leases, title commitment, all documents relating
thereto, plus every report of findings obtained pursuant by Purchaser or
Purchaser's Inspectors pursuant to this Agreement. At any time prior to the
Closing Date, or at any time if this Agreement is terminated for any reason
other than Seller's willful default, Purchaser shall not deliver any of the
documents theretofore delivered to Purchaser by Seller or obtained by Purchaser
pursuant to this Agreement, or otherwise knowingly transmit any of the
information contained, in any such documents, to any third party except
Purchaser's counsel or other advisors, provided such individuals agree to be
bound to the same burdens or confidentiality and nondisclosure as Purchaser. The
covenants set forth in this Section 16.12 shall survive the termination of this
Agreement. Notwithstanding anything to the contrary contained in this Section
16.12, Purchaser's agreement to maintain confidentiality regarding the
transactions contemplated by this Agreement shall terminate at Closing.
16.13. Either party, upon at least 30 days notice to the other party given
after the expiration of the grace and cure
-41-
periods specified in Article 15 of this Agreement, may make time of the essence
with regard to the Closing of this transaction.
16.14. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument. The signature page of any counterpart
may be detached therefrom without impairing the legal effect of the signatures
thereon and attached to any other counterpart identical thereto except having
additional signature pages attached to it.
-42-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this 25th
day of February 1997.
SELLER:
NYLIFE Realty Partners I-General Partnership A
By: New York Life Insurance Company
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
-----------------------------------
By: NYLIFE Realty Income Partners I, L.P.
By: NYLIFE Realty Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: President
-----------------------------------
PURCHASER:
▇▇▇ ▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Authorized Signatory
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ACCEPTED AND AGREED TO:
WESTMARK REALTY ADVISORS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior Director
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-43-
SCHEDULE OF EXHIBITS*
EXHIBIT A LAND
EXHIBIT B SCHEDULE OF LEASES
EXHIBIT C PERSONAL PROPERTY
EXHIBIT D TAX BILLS
EXHIBIT E DEED
EXHIBIT F ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT G PERMITTED EXCEPTIONS
EXHIBIT H ▇▇▇▇ OF SALE
EXHIBIT I FIRPTA
EXHIBIT J DUE DILIGENCE DOCUMENTS
EXHIBIT K SECURITY DEPOSITS
EXHIBIT L OUTSTANDING CONTRACTS AND LABOR LIENS
EXHIBIT M BROKERAGE FEES AND COMMISSIONS
EXHIBIT N CONTRACTS
EXHIBIT O INSURANCE POLICIES
EXHIBIT P RENT ROLL
EXHIBIT Q PENDING LITIGATION MATTERS
EXHIBIT R OUTSTANDING CERTIFICATES OF OCCUPANCY
EXHIBIT S CERTAIN TENANT RELOCATIONS AND MODIFIED
LEASES
EXHIBIT T FORM OF LETTER TO TENANTS
* Exhibits are not included in this Form 10-K but will be furnished upon
written request.