PURCHASE AND SALE AGREEMENT
ROCKLAND WAREHOUSE CENTER CORPORATION,
SELLER,
AND
▇▇▇▇▇▇▇▇ REALTY LLC,
BUYER
DATED: JANUARY 28, 2003
PROPERTY: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), dated as of January 28,
2003 (the "Effective Date"), is between ROCKLAND WAREHOUSE CENTER CORPORATION, a
Delaware corporation, with an address in care of Clarion Partners, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇, Fax No.
▇▇▇.▇▇▇.▇▇▇▇ ("Seller") and ▇▇▇▇▇▇▇▇ REALTY LLC, a Delaware limited liability
company, with an address of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Fax No. ▇▇▇.▇▇▇.▇▇▇▇ ("Buyer").
In consideration of the mutual undertakings and covenants herein
contained, the receipt and sufficiency of which are hereby mutually
acknowledged, Seller and Buyer hereby covenant and agree as follows:
ARTICLE I
SALE OF PROPERTY
l.1 Agreement to Buy and to Sell; Property. Seller shall sell to Buyer, and
Buyer shall purchase from Seller, at the price and upon the terms and conditions
set forth in this Agreement, (a) the real estate known as:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
as more particularly described in Schedule A attached hereto including all
right, title and interest of Seller in and to any alleys, strips or gores
abutting or adjoining such real estate (the "Land"), together with the buildings
and improvements located on the Land (together, the "Building"); (b) the
fixtures, equipment and other personal property owned by Seller and located in
or used exclusively in connection with the Building, including the property
specifically described in Schedule B hereto (the "Personal Property"); and (c)
the landlord's interest in the Leases (as defined in Section 6.2) (the foregoing
collectively being referred to herein as the "Property").
1.2 Title. Seller shall convey and Buyer shall accept fee simple title to the
Property in accordance with the terms of this Agreement, subject only to the
following (the "Permitted Exceptions"):
(a) the matters noted as incidents of or exceptions to title as set
forth in Schedule A-1 attached hereto;
(b) title and survey matters not objected to under Section 3.4;
(c) the Leases; and
(d) local, state and Federal laws, ordinances, rules and regulations.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price ("Purchase Price") for the Property
is Forty-Five Million Two Hundred Fifty Thousand Dollars ($45,250,000.00), to be
paid by Buyer to Seller as follows:
(a) Deposit. Buyer shall, contemporaneously with the mutual execution
of this Agreement by Buyer and Seller, post a deposit hereunder (the "Deposit")
in the amount of Four Million Five Hundred Thousand Dollars ($4,500,000.00) by
paying said sum in cash to LandAmerica Financial Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Escrow Agent"). The
Deposit shall be held subject to the terms of this Agreement by Escrow Agent in
escrow as ▇▇▇▇▇▇▇ money for the proper performance of this Agreement on the part
of Buyer. Interest earned on the Deposit shall be considered part of the
Deposit. The Deposit shall be applied against the Purchase Price at the Closing,
or, in the event of the earlier termination of this Agreement, shall be disposed
of as provided in Section 2.3 hereof.
(b) Payment at Closing. At Closing, the Deposit shall be applied
against the Purchase Price with the remainder of the Purchase Price payable in
full at Closing in cash.
2.2 Payment of Monies. All monies payable under this Agreement, unless
otherwise specified in this Agreement, shall be paid in U.S. dollars by wire
transfer of immediately available funds.
2.3 Escrow Terms. (a) If for any reason the Closing does not occur and
either party makes a written demand upon Escrow Agent for delivery of the
Deposit, Escrow Agent shall give written notice to the other party of such
demand. If Escrow Agent does not receive a written objection from the other
party to the proposed payment within two (2) business days after the giving of
such notice, Escrow Agent is hereby authorized to make such delivery or payment.
If Escrow Agent does receive such written objection within such two (2) day
period, or if for any other reason Escrow Agent in good faith shall elect not to
make such payment, Escrow Agent shall continue to hold the Deposit until it
shall have received joint written instructions from the parties to this
Agreement or an order from a court of competent jurisdiction. Escrow Agent shall
in addition have the right at any time to tender the Deposit to the clerk of the
District Court of the jurisdiction in which the Property is located. Escrow
Agent shall give written notice of such deposit to Seller and Buyer. Upon such
deposit Escrow Agent shall be relieved and discharged of all further obligations
and responsibilities hereunder.
(b) The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that Escrow Agent shall
not be deemed to be the agent of either of the parties, and that Escrow Agent
shall not be liable to either of the parties for any act or omission on its part
unless taken or suffered in bad faith, in willful disregard of this Agreement or
involving gross negligence. Seller and Buyer shall jointly and severally
indemnify and hold Escrow Agent harmless from and against all costs, claims and
expenses, including reasonable attorneys' fees, incurred in connection with the
performance of Escrow Agent's duties hereunder, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith, in willful
disregard of this Agreement or involving gross negligence on the part of Escrow
Agent.
(c) Escrow Agent has acknowledged agreement to these provisions by
signing in the place indicated on the signature page of this Agreement.
(d) Escrow Agent is hereby designated as the "real estate reporting
person" for purposes of Section 6045 of Title 26 of the United States Code and
Treasury Regulation 1.6045-4 and any instructions or settlement statement
prepared by Escrow Agent shall so provide. Upon the consummation of the
transaction contemplated by this Agreement, Escrow Agent shall file a Form 1099
information return and send the statement to Seller as required under the
aforementioned statute and regulation. Seller and Buyer shall promptly furnish
their federal tax identification numbers to Escrow Agent and shall otherwise
reasonably cooperate with Escrow Agent in connection with Escrow Agent's duties
as real estate reporting person.
ARTICLE III
BUYER'S DUE DILIGENCE REVIEW
3.1 Delivery of Title Materials. Seller has delivered to Buyer a copy of
Seller's existing title policy for the Property.
3.2 Survey. Buyer may, at Buyer's expense, employ a reputable surveyor or
surveying firm, licensed by the state in which the Property is located, to
prepare and deliver to Buyer a survey of the Property. Any and all matters that
would be shown on such a survey of the Property, prepared in accordance with
applicable ALTA survey standards, are referred to herein as "Survey Matters".
3.3 Examination of Title. Buyer has had the opportunity to have prepared
and to review a title commitment dated November 8, 2002 (Report No. CR021711)
(the "Title Commitment") for the Property prepared by Commonwealth Land Title
Insurance Company (the "Title Company"), the exceptions to title disclosed in
the Title Commitment, all Survey Matters and all other aspects of Seller's title
to the Property.
3.4 Amendments to Title Commitment. Buyer shall have the right to object to
any title exceptions first raised by the Title Company in any amendments to the
Title Commitment by giving written notice to Seller of the title exceptions to
which Buyer is objecting on or before the earlier of (a) the date and time for
Closing and (b) three (3) days after the issuance of any such amendment. If
Buyer does not object to any title exception first raised in any such amendment
to the Title Commitment by giving timely written notice as herein provided, such
exception shall be a Permitted Exception. In the event Buyer gives timely
written notice of objection to any title exception first set forth in any such
amendment as herein provided, the provisions of Section 9.1 shall apply with
respect thereto as if set forth herein in full.
3.5 Property Inspection. Buyer has had, and shall continue to have through
the Closing Date, the right to make non-invasive physical inspections of the
Property and to examine at such place or places at the Property or in the
offices of the property manager, any operating files maintained by Seller or its
property manager in connection with the leasing, maintenance and/or management
of the Property, including, without limitation, the leases, lease files,
operating agreements, service contracts, commission agreements, insurance
policies, bills, invoices, receipts and other general records relating to the
income and expenses of the Property, correspondence, surveys, plans and
specifications, warranties for services and materials provided to the Property,
engineering reports and environmental audits, but excluding materials not
directly related to the leasing, maintenance and/or management of the Property
such as Seller's internal memoranda, financial projections, budgets, appraisals,
accounting and tax records and similar proprietary or confidential information.
Buyer understands and agrees that any on-site inspections of the Property and
any tenant discussions shall be conducted upon at least forty-eight (48) hours'
prior written notice to Seller and in the presence of Seller or its
representative. After its inspections are completed, Buyer shall restore the
Property, at Buyer's sole cost and expense, substantially to its condition
immediately prior to Buyer's inspections. Prior to Buyer or any other party
entering the Property in the exercise of the access rights hereunder, Buyer
shall deliver to Seller a certificate of comprehensive public liability
insurance naming Seller and its property manager as additional insureds and
evidencing coverage with such insurers and limits (which shall not be less than
$2,000,000) as shall be reasonably satisfactory to Seller. Buyer agrees to
indemnify and hold Seller harmless from any claim for liabilities, costs,
expenses (including reasonable attorneys' fees actually incurred) losses,
damages or injuries arising out of or resulting from the inspection of the
Property by Buyer or its agents. Notwithstanding anything to the contrary in
this Agreement, such obligation to indemnify and hold harmless Seller and the
other obligations of Buyer under this Section 3.5 shall survive Closing or any
termination of this Agreement. All inspections shall occur at reasonable times
agreed upon by Seller and Buyer and shall be conducted so as not to interfere
with use of the Property by Seller or its tenants. Buyer may not, however,
perform any invasive or destructive testing at the Property without having
received the prior written consent of Seller, which shall be at Seller's sole
discretion, in each instance.
In connection with its investigation of the Property, Buyer has had the
opportunity to inspect the Property in a non-invasive manner, and at Buyer's
sole expense, for the presence of any Hazardous Substances, and at Seller's
request shall furnish to Seller copies of any reports received by Buyer in
connection with any such inspection. As used herein, "Hazardous Substances"
means all hazardous or toxic materials, substances, pollutants, contaminants, or
wastes currently identified as a hazardous substance or waste in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Superfund Amendments and Reauthorization Act, the Resource Conservation and
Recovery Act, each as amended, or any other Federal, state or local legislation
or ordinances applicable to the Property. Buyer hereby assumes full
responsibility for such inspections and irrevocably waives any claim against
Seller arising from, and releases Seller from any liability or responsibility
for, the presence of Hazardous Substances on the Property. At Seller's request,
Buyer shall also furnish to Seller copies of any other reports received by Buyer
relating to any other inspections of the Property conducted on Buyer's behalf,
including any engineering or architectural reports analyzing compliance of the
Property with applicable laws, codes, ordinances and regulations governing
structures and access thereto by disabled persons. The provisions of this
Section 3.5 shall survive the termination of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof as follows:
4.1 Leases. To Seller's knowledge, Schedule C attached lists all leases,
licenses or other rental agreements or occupancy agreements (written or verbal),
including all amendments thereto, which grant any possessory interest in and to
any space situated on or in the Property or that otherwise give rights with
regard to use of the Property. To Seller's knowledge, none of the tenants under
the Leases are in default in their Lease obligations. In the event any estoppel
certificate delivered to Buyer at or prior to Closing with respect to any Lease
contains any information inconsistent with Seller's representation made in this
Section 4.1, then the estoppel certificate shall control and Seller shall have
no liability for any claim based on a breach of representation regarding such
information. Seller does not represent or warrant that any particular Lease will
be in force or effect at Closing or that the tenants under the Leases will have
performed their obligations thereunder. The termination of any Lease prior to
Closing by reason of the tenant's default shall not affect the obligations of
Buyer under this Agreement or entitle Buyer to any abatement of or credit
against the Purchase Price or give rise to any claim on the part of Buyer.
Seller has delivered to Buyer a true, correct and complete copy of each of the
Leases.
4.2 Service and Management Contracts. To Seller's knowledge, Schedule D
attached hereto lists all service, maintenance, supply, leasing brokerage and
management contracts (collectively, the "Service Contracts") affecting the
Property, and the information set forth therein is accurate and complete in all
material respects as of the date hereof. To Seller's knowledge, there are no
brokerage commissions presently due and owing. Seller has delivered to Buyer a
true, correct and complete copy of each of the Service Contracts.
4.3 Ability to Perform. Seller has full power to execute, deliver and carry
out the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
The person signing this Agreement on behalf of Seller is authorized to do so.
4.4 No Litigation. To Seller's knowledge, Seller has received no written
notice of litigation affecting the Property or Seller's ability to fulfill all
of its obligations under this Agreement nor, to Seller's knowledge, has any such
action been threatened in writing other than as has been disclosed by Seller to
Buyer relating to an offer to purchase the Property from ▇▇▇▇▇▇▇▇▇▇ Properties.
Seller has not entered into a written purchase and sale agreement to sell the
Property to any other party.
4.5 No Impediments. There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Seller
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
4.6 9/11 Dealings. To Seller's knowledge, neither Seller nor any of its
affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors,
representatives or agents, is a person or entity with whom U.S. persons or
entities are restricted from doing business under regulations of the Office of
Foreign Asset Control ("OFAC") of the Department of the Treasury (including
those named on OFAC's Specially Designated and Blocked Persons List) or under
any statute, executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action.
4.7 Environmental. To Seller's knowledge, which knowledge is based solely
on a review of that certain "Phase I Environmental Site Assessment for the
Property located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇", prepared by
Environmental Profiles, Inc., dated November 27, 2001, the Property has not been
used for the storage or distribution of Hazardous Substances, other than use by
tenants in connection with ordinary warehousing and office. In the event that it
is necessary for Seller to obtain approval for the transfer of title from the
New York State Department of Environmental Protection, Seller shall obtain such
approval at its sole expense.
4.8 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in this Article IV, as
updated by the certificate of Seller to be delivered to Buyer at Closing in
accordance with Section 7.2(k) hereof, shall survive Closing for a period of six
(6) months. No claim for a breach of any representation or warranty of Seller
shall be actionable or payable if the breach in question results from or is
based on a condition, state of facts or other matter which was known to Buyer as
of the Closing Date, and unless written notice containing a description of the
specific nature of such breach shall have been given by Buyer to Seller prior to
the expiration of said six-month period and an action shall have been commenced
by Buyer against Seller within eight (8) months after Closing. Notwithstanding
the foregoing, if Buyer knew at Closing that a representation or warranty
contained in this Article IV was not true at Closing and Buyer nonetheless
elected to proceed with the Closing, Buyer shall not have any right to make a
claim hereunder for a breach of such representation or warranty. Notwithstanding
anything herein to the contrary, Seller shall in no event have any liability for
breach of any representation, warranty, indemnity or covenant herein or in any
closing document in excess of $500,000 in the aggregate.
As used in this Article IV, the term "Seller's knowledge" or any similar
phrase shall mean the actual, not constructive or implied, knowledge of ▇▇▇▇▇▇▇
▇'▇▇▇▇▇, without any further obligation on such person's part to make any
independent investigation of the matters being represented and warranted, or to
make any further inquiry of any other persons, or to search or examine any
files, records, books or correspondence. The foregoing individuals are acting
for and on behalf of Seller and are in no manner expressly or impliedly making
any of these representations in their individual capacity, and Buyer hereby
waives any right to ▇▇▇ or to seek any judgment or claim against them on an
individual basis.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
5.1 No Prohibited Transaction. Buyer is not acquiring the Property with the
assets of an employee benefit plan (as defined in Section 3(3) of ERISA).
5.2 No Party In Interest. To Buyer's knowledge, Buyer is not a "party in
interest" within the meaning of Section 3(3) of ERISA with respect to the
beneficial owner of Seller, which is the United Mine Workers of America 1974
Pension Trust.
5.3 Ability To Perform. Buyer has the full right, power and authority to
purchase the Property as provided in this Agreement and to carry out Buyer's
obligations hereunder, and all requisite action necessary to authorize Buyer to
enter into this Agreement and to carry out its obligations hereunder have been
taken. The person signing this Agreement on behalf of Buyer is authorized to do
so.
5.4 9/11 Dealings. To Buyer's knowledge, neither Buyer nor any of its
affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors,
representatives or agents, is a person or entity with whom U.S. persons or
entities are restricted from doing business under regulations of the OFAC
(including those named on OFAC's Specially Designated and Blocked Person List)
or under any statute, executive order (including the September 24, 2001
Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action.
5.5 No Impediments. There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending against Buyer which, if
adversely determined, could individually or in the aggregate materially
interfere with the consummation of the transactions contemplated by this
Agreement.
5.6 Survival of Buyer's Representations and Warranties. The representations and
warranties of Buyer set forth in Sections 5.1 and 5.2 hereof shall survive
Closing and shall be continuing representations and warranties without
limitation. All other representations and warranties of Buyer shall survive
Closing for a period of six (6) months and no claim for a breach of any such
other representation or warranty of Buyer shall be actionable or payable unless
written notice containing a description of the specific nature of such breach
shall have been given by Seller to Buyer prior to the expiration of said
six-month period and an action shall have been commenced by Seller against Buyer
within eight (8) months after Closing.
ARTICLE VI
OBLIGATIONS OF SELLER PRIOR TO CLOSING
Seller covenants that between the date of this Agreement and the Closing:
6.1 No Lease Amendments. Seller shall not amend, renew, extend or terminate any
Lease in any respect without Buyer's consent which Buyer may grant or withhold
in its sole discretion.
6.2 New Leases. Seller shall not enter into any new Lease without Buyer's
consent which Buyer may grant or withhold in its sole discretion. The Leases
presently in effect, as amended in compliance with Section 6.1, together with
any new Leases entered into in compliance with this Section 6.2, are called the
"Leases".
6.3 Continuation of Service Contracts. Seller shall not modify or amend any
service contract or enter into any new service contract respecting the Property
unless the same is terminable without penalty by the then owner of the Property
upon not more than 30 days notice.
6.4 Maintenance of Insurance. Seller shall maintain replacement cost insurance
against fire and all other hazards covered by standard All-Risk coverage with
the coverages Seller presently has in place. Except as otherwise provided in
Section 9.2, the risk of loss in and to the Property shall remain vested in the
Seller until the Buyer accepts and records the Deed.
6.5 Tenant Estoppels. Seller shall deliver to each tenant at the Property a
tenant estoppel certificates substantially in the form of Exhibit 4 attached
hereto or as may be otherwise required in a tenant lease. Receipt of executed
tenant estoppel certificates from each tenant other than Dress Barn, Inc. (the
"Tenant Estoppel Certificates") shall be a condition to Buyer's obligation to
purchase the Property. In no event shall Seller be obligated to deliver updates
to any of the Tenant Estoppel Certificates. Buyer agrees not to unreasonably
object to or withhold Buyer's consent to any material alternate estoppel form or
changes made by any tenant to the form attached hereto. Seller shall deliver the
Tenant Estoppel Certificates to Buyer no later than four (4) business days prior
to the Closing Date.
6.6 Voluntary Encumbrances. Seller shall not voluntarily encumber the Property
with any lien, easement or other recorded document, without Buyer's prior
written consent.
ARTICLE VII
THE CLOSING
7.1 Closing. Except as otherwise provided in this Agreement, the consummation of
the transactions contemplated by this Agreement (the "Closing") shall take place
four (4) business days after receipt by Buyer of the Tenant Estoppel
Certificates (the actual date of the Closing being herein referred to as the
"Closing Date") pursuant to an escrow arranged with the Escrow Agent. At the
Closing Buyer and Seller shall perform their respective obligations as set forth
in Sections 7.2 and 7.4 hereof, the performance of such obligations being
concurrent conditions. In addition, Buyer and Seller shall execute such transfer
statements and returns, closing statements, acknowledgments and other
ministerial instruments and take such further actions as may be reasonably
necessary to complete the transactions contemplated by this Agreement. The
recordation and filing of documents and instruments with registries of deeds and
other government instrumentalities in New York shall be attended to by the
Escrow Agent.
7.2 Seller's Closing Obligations. At the Closing, Seller shall deliver the
following to Buyer:
(a) A bargain and sale deed with covenant against grantor's acts (the
"Deed"), substantially in the form of Exhibit 1, conveying the Land and
Buildings to Buyer, subject only to the Permitted Exceptions.
(b) A ▇▇▇▇ of sale (the "▇▇▇▇ of Sale"), substantially in the form of
Exhibit 2, transferring title to the Personal Property, if any, to Buyer without
warranty of title or use and without warranty, express or implied, as to
merchantability or fitness for any purpose.
(c) An assignment of the Leases (the "Assignment of Leases"),
substantially in the form of Exhibit 3, to Buyer by which Buyer shall assume all
obligations of the landlord under the Leases, including the obligation to pay
any brokerage commissions, leasing fees, tenant concessions or other costs
associated with the Leases which become due and payable on or after the Closing,
and shall indemnify Seller from and against claims arising under the Leases with
respect to time periods from and after the Closing, including claims made by
tenants with respect to security deposits to the extent such deposits have been
paid, credited or assigned to Buyer. Notwithstanding the foregoing, (a) Seller
shall pay, on or before Closing, any outstanding brokerage commissions owed in
connection with the present term of the Leases, and (b) Seller shall be
responsible for any unpaid tenant improvement allowances owed to Xerox
Corporation or Par Pharmaceutical, Inc., and any unperformed landlord work
obligations required to be performed for such tenants, which funds, if not paid
prior to Closing, shall be escrowed at Closing or credited against the Purchase
Price.
(d) Original copies, where available, of the due diligence materials
made available to Buyer under Section 3.5 hereof.
(e) Original copies of all Leases, and appropriate instruments of
transfer or assignment with respect to any lease security which is other than
cash.
(f) An assignment (the "Assignment"), substantially in the form of
Exhibit 5, of all Service Contracts to be assigned to the Buyer and any then
effective assignable guaranties and warranties relating to the Property or any
of its components.
(g) Such affidavits and indemnities as the Title Insurer may reasonably
require in order to omit from its title insurance policy all exceptions for
parties in possession (other than tenants under Leases and other Permitted
Exceptions) and mechanic's liens.
(h) Sufficient original letters (the "Tenant Notice Letters"), executed
by Seller, advising the tenants under the Leases of the sale of the Property to
Buyer and directing that all rents and other payments thereafter becoming due
under the Leases be sent to Buyer or as Buyer may direct.
(i) A certificate executed by Seller to the effect that all of the
representations and warranties set forth in Sections 4.1 through 4.7 remain true
and correct as of the Closing Date except to the extent the same may have
changed in accordance with the terms and conditions of this Agreement. Such
certificate shall expressly state that it is made subject to the limitations of
survival and rights with respect thereof set forth in Section 4.8 of this
Agreement. If Seller discovers that any of the representations or warranties
made by Seller in Sections 4.1 through 4.7 of this Agreement were not on the
date hereof or are not on the Closing Date true and correct in all material
respects, Seller shall include such state of facts in such certificate as shall
be necessary or appropriate to make such representations and warranties true and
correct in all material respects as of the date hereof and as of the Closing
Date. If, as a result of any disclosures made in such certificate or for facts
otherwise made known to Buyer, the warranties and representations set forth in
this Agreement were not on the date hereof or are not on the Closing Date true
and correct in all material respects for any reason other than the occurrence of
an event expressly permitted hereunder, the Buyer's sole remedy shall be either
to (a) close without adjustment of the Purchase Price and without the right to
make any claim against Seller or (b) terminate this Agreement in which event the
Deposit shall be returned to Buyer and neither party shall have any further
rights or obligations hereunder except to the extent that any rights or
obligations set forth herein expressly survive termination of this Agreement.
(j) Evidence reasonably acceptable to Buyer and the Title Insurer as to
the due authorization of the delivery of the Deed and other documents required
by this Agreement to be executed by Seller, including a corporate resolution
authorizing the sale.
(k) An affidavit duly executed by Seller stating that Seller is not a
"foreign person" as defined in the Federal Foreign Investment in Real Property
Tax Act of 1980 and the 1984 Tax Reform Act.
(l) Any other documents required by this Agreement to be executed or
delivered by Buyer, including a customary title affidavit regarding mechanic's
liens and parties in possession.
(m) If not previously delivered to Buyer, copies of certificates of
occupancy for each tenant at the Property.
7.3 Possession. At the time of Closing, Seller shall deliver full possession of
the Property, subject only to the rights of parties under the Leases and the
Permitted Exceptions.
7.4 Buyer's Closing Obligations. At the Closing, Buyer shall:
(a) Deliver the Purchase Price to Seller as adjusted for apportionments
under Article VIII, by 12 p.m. eastern time on the Closing Date.
(b) Cause the Deed to be recorded.
(c) Countersign and deliver to Seller the Assignment of Leases and the
Contract Assignment.
(d) A certificate executed by Buyer to the effect that all of the
representations and warranties set forth in Sections 5.1 through 5.5 remain true
and correct as of the Closing Date. If Buyer discovers that any of the
representations or warranties made by Buyer in Sections 5.1 through 5.5 of this
Agreement were not on the date hereof or are not on the Closing Date true and
correct in all material respects, Buyer shall include such state of facts in
such certificate as shall be necessary or appropriate to make such
representations and warranties true and correct in all material respects as of
the date hereof and as of the Closing Date. If, as a result of any disclosures
made in such certificate or for facts otherwise made known to Seller, the
warranties and representations set forth in this Agreement were not on the date
hereof or are not on the Closing Date true and correct in all material respects
for any reason other than the occurrence of an event expressly permitted
hereunder, the Seller's sole remedy shall be either to (a) close without
adjustment of the Purchase Price and without the right to make any claim against
Buyer or (b) terminate this Agreement in which event the Deposit shall be
returned to Buyer and neither party shall have any further rights or obligations
hereunder except to the extent that any rights or obligations set forth herein
expressly survive termination of this Agreement.
(e) Execute and, promptly following the Closing, cause to be delivered
the Tenant Notice Letters.
(f) Provide evidence reasonably acceptable to Seller and the Title
Insurer as to the due authorization of the delivery of the documents required by
this Agreement to be executed by Buyer.
(g) Deliver any other documents required by this Agreement to be
executed or delivered by Buyer.
7.5 Expenses. Buyer shall pay all costs and expenses associated with its due
diligence review, its own counsel fees, any fees and other amounts charged by
parties providing debt or equity financing to Buyer or by counsel to such
parties, all recording fees, all title insurance premiums and costs, any survey
costs, one half of the Escrow Agent's fee and such other closing costs as are
customarily paid by a buyer in the jurisdiction where the Property is located.
Seller shall pay its own counsel fees, all transfer taxes, one half of the
Escrow Agent's fee and such other closing costs as are customarily paid by a
seller in the jurisdiction where the Property is located.
7.6 Use of Proceeds to Clear Title. Any unpaid taxes, assessments, water charges
and sewer rents, together with the interest and penalties thereon to the Closing
Date, and any other liens and encumbrances which Seller is obligated to pay and
discharge, may be paid out of the proceeds of the monies payable at the Closing.
ARTICLE VIII
APPORTIONMENTS AND ADJUSTMENTS TO PURCHASE PRICE
8.1 Apportionments. The following apportionments, calculated as of the close of
business on the day prior to the Closing Date, shall be made between the parties
at the Closing:
(a) Base rents received by Seller prior to the Closing Date which are
allocable to periods prior to and including the Closing Date shall be retained
by Seller. Buyer shall receive a credit for the per diem value of rents received
by Seller prior to the Closing Date which are allocable to periods after the
Closing Date. Rents which are in arrears at Closing shall be applied and
apportioned, if, as and when collected (net of reasonable third-party collection
costs, if any), in the order in which they accrued.
(b) If any tenants are required to pay percentage rent, escalation
charges for real estate taxes, operating expenses, cost-of-living adjustments or
other charges of a similar nature ("Additional Rent") and any Additional Rent is
collected by Buyer or Seller which is attributable in whole or in part to any
period during which the respective party did not own the Property, such party
shall promptly pay to the other party the other party's proportionate share
thereof, less a proportionate share of any reasonable attorney's fees, costs and
expenses of collection thereof, which obligation shall survive the Closing.
Additional rents shall be apportioned in the order in which they accrued.
(c) Cash security deposits made by tenants under Leases shall be
retained by Seller, with Buyer to receive a credit for the amount thereof.
Security deposits consisting of letters of credit or other property shall be
transferred to Buyer upon delivery of a receipt therefor. In the event a letter
of credit cannot be transferred and a new letter of credit must be issued,
Seller shall reasonably cooperate with Buyer to obtain the same at the time of
Closing.
(d) Prepaid and accrued operating expenses including real estate and
personal property taxes, water charges, sewer rents and vault charges shall be
apportioned on a per diem basis between Buyer and Seller using the most recent
assessment, invoice, meter reading or billing. If the Closing shall occur before
the current tax rate or valuation is fixed, the apportionment of taxes at the
Closing shall be upon the basis of the tax rate for the preceding period applied
to the latest assessed valuation. Promptly after the new rate and valuation are
fixed, the apportionment of taxes shall be recomputed. If any errors or
omissions are made regarding adjustments and prorations as set forth above, the
parties shall make the appropriate corrections promptly upon the discovery
thereof, provided the same are discovered within 12 months after the Closing
Date. Any error or omission not discovered within that period shall not
thereafter be subject to adjustment. Any net debit or credit resulting from such
recomputation shall be paid promptly in cash. The provisions of this Section 8.1
shall survive the Closing.
ARTICLE IX
FAILURE TO PERFORM
9.1 Defective Title or Condition.
(a) If Seller is unable to give title or to make conveyance, to deliver
possession of the Property, or if on the Closing Date the Property does not
conform with the provisions hereof, Buyer, as its sole and exclusive remedy, may
elect by written notice given to Seller at or before the Closing Date either (a)
to accept such title as Seller can deliver to the Property in its then condition
and to pay the full Purchase Price therefor or (b) to declare Seller to be in
default under this Agreement upon which Escrow Agent shall return the Deposit to
Buyer and this Agreement shall be null and void and without further force or
effect or (c) to seek specific performance of Seller's obligations under this
Agreement. If Buyer does not give Seller notice and commence a suit for specific
performance within sixty (60) days of the scheduled Closing Date, Buyer shall be
deemed to have waived its right to seek specific performance hereunder.
Notwithstanding the foregoing, if Seller is unable to close as provided for
herein at or before the Closing Date, at Seller's election, (i) Seller may
extend the Closing Date for up to sixty (60) days in order to be able to convey
the Property as provided for herein or (ii) if Seller is unable to close (either
at the initial or extended Closing Date) as a result of litigation affecting its
ability to close or related title matters, Seller may terminate this Agreement
without incurring any liability to Buyer, upon which Escrow Agent shall return
the Deposit to Buyer and this Agreement shall be null and void and without
further force or effect. Notwithstanding the foregoing, in the instance that
Seller settles the litigation which resulted in Seller terminating this
Agreement within six (6) months of the termination, Seller shall promptly
provide Buyer with notice of such settlement (the "Settlement Notice") and Buyer
shall have the opportunity to purchase the Property on the terms and conditions
set forth in this Agreement. Buyer shall have five (5) business days from
receipt of the Settlement Notice to notify Seller in writing that it is electing
to purchase the Property and to reinstate this Agreement, which response shall
be accompanied by proof of the reposting of the Deposit with the Escrow Agent;
provided, however, that if Buyer does not timely notify Seller of its election
and post the Deposit with the Escrow Agent, Buyer shall be deemed to have waived
its right to reinstate this Agreement to purchase the Property.
(b) Notwithstanding anything to the contrary in this Agreement, Seller
shall be obligated to remove from title to the Property at Closing, and without
any extension of the Closing Date, any deeds of trust and mortgages that
encumber the Property as of the Closing (collectively, the "Liens"), and Buyer
agrees that Seller may use the proceeds of the Purchase Price for that purpose.
9.2 Casualty or Taking.
(a) If the Property shall have been damaged by fire or casualty insured
against, Seller shall, unless Seller has previously restored the Property to its
former condition, pay over or assign to Buyer, at the Closing, all amounts
recovered or recoverable on account of such insurance, less any amounts
reasonably expended by Seller for partial restoration; and
(b) If any portion of the Property shall have been taken by exercise of
the power of eminent domain, Seller shall pay over or assign to Buyer, at the
Closing, all awards recovered or recoverable on account of such taking, less any
amounts reasonably expended by Seller in obtaining such award.
9.3 Buyer's Default. The parties acknowledge that in the event of Buyer's
default hereunder it is impossible to compute exactly the damage that Seller
would suffer due to such failure. The parties have taken these facts into
account in setting the amount of the Deposit hereunder and agree that: (i) the
Deposit is the best estimate of the damage Seller would suffer; (ii) the Deposit
represents damage and not any penalty against Buyer; and (iii) if this Agreement
shall be terminated by Seller by reason of Buyer's default, the Escrow Agent,
subject to the provision of Section 2.3, shall pay the Deposit to Seller as its
full and liquidated damages in lieu of any additional recovery on account of
Buyer's default. Notwithstanding the foregoing, assuming the Closing occurs,
Seller nonetheless reserves the right to seek redress from Buyer for any breach
by Buyer of any of Buyer's other obligations under this Agreement, including
without implied limitation any breach of Buyer's representations and warranties.
ARTICLE X
BROKERAGE
10.1 Brokerage Fees. Seller and Buyer mutually represent and warrant that they
have not dealt with any brokers in connection with this purchase and sale other
than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Broker") and that neither Seller nor Buyer knows of any
broker other than Broker who has claimed or may have the right to claim a
commission in connection with this purchase and sale. The commission of the
Broker shall be paid by Seller pursuant to a separate written agreement between
Broker and Seller. Seller and Buyer shall indemnify and defend each other
against any costs, claims or expenses, including attorneys' fees, arising out of
the breach on their respective parts of any representations, warranties or
agreements contained in this Section. The representations and obligations under
this Section shall survive the Closing or, if the Closing does not occur, the
termination of this Agreement.
ARTICLE XI
NOTICES
11.1 Effective Notices. All notices under this Agreement shall be in writing and
shall be delivered personally or shall be sent by overnight mail, addressed as
set forth at the beginning of this Agreement or as Seller or Buyer shall
otherwise have given notice as herein provided. Notices shall be effective on
the earlier of (a) the date when so delivered if delivered personally, (b) one
business day after the date sent if sent by overnight mail or (c) by facsimile
transmission on the first business day on or after the date delivery is made as
confirmed. Copies of all such notices shall be sent, in the case of Seller, to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax No. ▇▇▇.▇▇▇.▇▇▇▇
and in the case of Buyer to:
▇▇▇▇▇▇▇▇ Realty LLC
c/o The Dress Barn, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.▇▇▇.▇▇▇.▇▇▇▇
And to: Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No. ▇▇▇.▇▇▇.▇▇▇▇
ARTICLE XII
DISCLAIMERS AND WAIVERS
12.1 No Reliance. Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller or its brokers or agents to
Buyer in connection with the transaction contemplated hereby. Buyer acknowledges
and agrees that all materials, data and information delivered by Seller to Buyer
in connection with the transaction contemplated hereby are provided to Buyer as
a convenience only and that any reliance on or use of such materials, data or
information by Buyer shall be at the sole risk of Buyer, except as otherwise
expressly stated herein. Without limiting the generality of the foregoing
provisions, Buyer acknowledges and agrees that (a) any environmental,
engineering or other report with respect to the Property which is delivered by
Seller to Buyer shall be for general informational purposes only, (b) Buyer
shall not have any right to rely on any such report delivered by Seller to
Buyer, but rather will rely on its own inspections and investigations of the
Property and reports commissioned by Buyer with respect thereto, and (c) neither
Seller, any affiliate of Seller nor the person or entity which prepared any such
report delivered by Seller to Buyer shall have any liability to Buyer for any
inaccuracy in or omission from any such report.
12.2 Disclaimers. Except as expressly set forth in this Agreement, it is
understood and agreed that Seller is not making and has not at any time made any
warranties or representations of any kind or character, express or implied, with
respect to the Property, including, but not limited to, any warranties or
representations as to habitability, merchantability, fitness for a particular
purpose, title (other than any limited warranty of title that may be set forth
in the Deed), zoning, tax consequences, latent or patent physical or
environmental condition, utilities, operating history or protections, valuation,
governmental approvals, the compliance of the Property with laws, the truth,
accuracy or completeness of the documents or any other information provided by
or on behalf of Seller to Buyer, or any other matter or thing regarding the
Property. Buyer acknowledges and agrees that at the Closing Seller shall sell
and convey to Buyer and Buyer shall accept the Property "as is, where is, with
all faults", except to the extent expressly provided otherwise in this
Agreement. Buyer has not relied and will not rely on, and Seller is not liable
for or bound by, any express or implied warranties, guaranties, statements,
representations or information pertaining to the Property or relating thereto
(including specifically, without limitation, property information packages
distributed with respect to the Property) made or furnished by Seller, the
manager of the property, or any real estate broker or agent representing or
purporting to represent Seller, to whomever made or given, directly or
indirectly, orally or in writing, unless specifically set forth in this
Agreement. Buyer represents to Seller that Buyer has conducted, or will conduct
prior to Closing, such investigations of the Property, including but not limited
to the physical and environmental condition thereof, as Buyer deems necessary to
satisfy itself as to the condition of the Property and the existence or
nonexistence or curative action to be taken with respect to any Hazardous
Substances on, in, under or discharged from the Property, and will rely solely
upon same and not upon any information provided by or on behalf of Seller or its
agents or employees with respect thereto. At the Closing, Buyer shall assume the
risk that adverse matters, including but not limited to, construction defects
and adverse physical and environmental conditions, may not have been revealed by
Buyer's investigations, and Buyer, upon Closing, shall be deemed to have waived,
relinquished and released Seller (and Seller's officers, directors,
shareholders, employees and agents) from and against any and all claims,
demands, causes of action (including causes of action in tort), losses, damages,
liabilities, costs and expenses (including attorneys' fees and court costs) of
any and every kind or character, known or unknown, which Buyer might have
asserted or alleged against Seller (and Seller's officers, directors,
shareholders, employees and agents) at any time by reason of or arising out of
any latent or patent construction defects or physical conditions, violations of
any applicable laws (including, without limitation, any environmental laws) and
any and all other acts, omissions, events, circumstances or matters regarding
the Property. Buyer agrees that should any cleanup, remediation or removal of
Hazardous Substances or other environmental conditions on the Property be
required after the Closing Date, such clean-up, removal or remediation shall be
the responsibility of and shall be performed at the sole cost and expense of
Buyer and that Buyer shall have no claim, including, without limitation, any
statutory claims or claims for contribution or joint liability, against Seller
(or Seller's officers, directors, shareholders, employees and agents).
12.3 Effect and Survival of Disclaimers. Seller and Buyer acknowledge that the
compensation to be paid to Seller for the Property takes into account that the
Property is being sold subject to the provisions of this Article XII. Seller and
Buyer agree that the provisions of this Article XII shall survive Closing.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 No Assignment. This Agreement and the rights of Buyer and Seller may
not be transferred or assigned in whole or in part to any other party, whether
by voluntary action or by judicial order.
13.2 Integration. This Agreement embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein, and all prior agreements, understandings, representations and
statements, oral or written, are merged into this agreement. Buyer, on behalf of
itself, its parents, subsidiaries, affiliates, partners, managers, officers,
directors, employees, shareholders, agents, advisors, representatives,
administrators, executors, heirs, and each of their respective predecessors,
successors and assigns and/or anyone claiming through, under or by reason of
their relationship to Buyer (individually and collectively, the "Buyer
Releasors"), hereby fully, unconditionally and forever releases, acquits and
discharges, Seller, and its parents, subsidiaries, affiliates, partners,
managers, officers, directors, employees, shareholders, agents, advisors,
representatives, administrators, executors, heirs, and each of their respective
predecessors, successors and assigns (individually and collectively, the "Seller
Releasees"), from and against any and all claims, demands, actions, causes of
action, suits, penalties, liabilities, judgments, damages, payments, charges,
fees, costs, expenses and other financial or other obligations of any kind or
nature whatsoever, whether known or unknown, fixed or contingent, asserted or
not asserted, in law, equity or otherwise, that the Buyer Releasors ever had,
now have or hereinafter can, shall or may have against the Seller Releasees for,
upon or by reason of any matter, cause, transaction, act, error or omission
arising from or relating to any claims by a third party regarding discussions
about the acquisition of the Property. Neither this Agreement nor any provision
hereof may be waived, modified, amended, discharged or terminated except by an
instrument signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument.
13.3 Confidentiality.
(a) All information (collectively, "Inspection Material") acquired by
Buyer or any employee, officer, director, shareholder, owner, affiliate, agent
or representative of a party (collectively, such party's "Representatives") with
respect to the Property, whether delivered by Seller or any of its
Representatives or obtained by Buyer as a result of its inspection of the
Property, examination of Seller's files or otherwise shall be used solely for
the purpose of determining whether or not the Property is suitable for Buyer's
purposes and for no other reason. All Inspection Material (other than those
materials in the possession of Dress Barn, Inc. as a result of their tenancy at
the Property) shall be kept in strict confidence and shall not be disclosed to
any individual or entity other than those Representatives of Buyer who need to
know the information for the purpose of assisting Buyer in making such
determination, it being understood and agreed by Buyer that such Representatives
shall be informed by Buyer of the confidential nature of the Inspection Material
and that Buyer shall cause them to treat such information confidentially.
Without limiting the foregoing, the Inspection Material will not be used by
Buyer in any way detrimental to the Seller or any tenant or occupant of the
Property and will be used solely for the purpose of evaluating a possible
acquisition of the Property by Buyer. Without the prior written consent of the
other party, Buyer and Seller will not, and will direct all of their respective
Representatives not to, disclose to any individual or entity either the fact
that discussions or negotiations are taking place concerning any possible
purchase of the Property or any of the terms, conditions or other facts with
respect thereto, including the status thereof.
(b) Buyer will indemnify and hold Seller harmless from and against any
and all loss, liability, cost, damage or expense Seller may suffer or incur as a
result of the disclosure of any Inspection Material to any individual or entity
other than an appropriate Representative of Buyer and/or the use of any
Inspection Material by Buyer or any Representative thereof for any purpose other
than as herein provided.
(c) If Buyer shall elect to terminate this Agreement pursuant to
Article III hereof or if the Closing shall fail to take place for any other
reason whatsoever (other than solely as a result of a default by Seller
hereunder), Buyer will, promptly following Seller's request therefor, return to
Seller all Inspection Material in the possession of Buyer or any of its
Representatives and destroy all copies, notes or extracts thereof as well as all
copies of any analyses, compilations, studies or other documents prepared by
Buyer or for its use (whether in written form or contained in database or other
similar form) containing or reflecting any Inspection Material. The delivery or
redelivery of the Inspection Material, as the case may be, to Seller shall not
relieve Buyer of its obligations hereunder.
(d) In the event of a breach or threatened breach by Buyer or its
Representatives of this Section 13.3, Seller shall be entitled to an injunction
restraining Buyer or its Representatives from disclosing, in whole or in part,
any Inspection Material. Nothing herein shall be construed as prohibiting Seller
from pursuing any other available remedy at law or in equity for such breach or
threatened breach. The provisions of this Section 13.3 shall not survive the
Closing, but shall continue in full force and effect notwithstanding the prior
termination of this Agreement pursuant to any right of termination granted
herein or otherwise.
13.4 Public Disclosure. Except as required by law, any public release or
disclosure of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Buyer and Seller and their respective counsel.
13.5 No Recording. Buyer agrees that neither this Agreement nor any memorandum
thereof may be recorded and that any such recordation shall, at Seller's
election, relieve Seller of any obligation to convey the Property to Buyer.
13.6 Captions. The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
13.7 Drafts. This Agreement shall not be binding or effective until properly
executed and delivered by both Seller and Buyer.
13.8 Number and Gender. As used in this Agreement, the masculine shall include
the feminine and neuter, the singular shall include the plural and the plural
shall include the singular, as the context may require.
13.9 Attachments. All attached schedules and exhibits are hereby
incorporated as integral parts of this Agreement.
13.10 Records. Buyer shall cooperate with Seller for a period of seven (7) years
after Closing by allowing Seller and its agents or representatives access, upon
reasonable advance notice (which notice shall identify the nature of the
information sought by Seller), at all reasonable times to examine and make
copies of any and all instruments, files and records transferred to Buyer in
connection with this Agreement, which right shall survive the Closing.
13.11 Further Assurances. Each party agrees that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the purposes of this
Agreement. Without limiting the generality of the foregoing, Buyer shall, if
requested by Seller, execute acknowledgments of receipt with respect to any
materials delivered by Seller to Buyer with respect to the Property. The
provisions of this Section 13.11 shall survive Closing.
13.12 Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement. In order to expedite the execution of this Agreement,
telecopied or facsimile signatures may be used in place of original signatures
on this Agreement. Seller and Buyer intend to be bound by the signatures on the
telecopied or faxed document, are aware that the other party will rely on such
signatures, and hereby waive any defenses to the enforcement of the terms of
this Agreement based on the form of signature.
13.13 Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall nonetheless remain in full force and effect.
13.14 No Third Party Beneficiaries. The provisions of this Agreement and of the
documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Buyer only and are not for the benefit of any third party.
Accordingly, no third party shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered at Closing.
13.15 Construction. The parties acknowledge that the parties and their counsel
have reviewed and revised this Agreement and that the normal rule of
constriction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
13.16 Termination of Agreement. It is understood and agreed that if either Buyer
or Seller terminates this Agreement pursuant to a right of termination granted
hereunder, such termination shall operate to relieve Seller and Buyer from all
obligations under this Agreement, except for such obligations as are
specifically stated herein to survive the termination of this Agreement.
13.17 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the substantive laws of the State of New York without regard to
conflicts of laws principles. Buyer and Seller agree that the provisions of this
Section 13.17 shall survive the Closing of the transaction contemplated by this
Agreement.
13.18 Merger. Except as specifically provided in this Agreement, the delivery of
the Deed by Seller, and the acceptance thereof by Buyer, shall be deemed the
full performance and discharge of every obligation on the part of Seller to be
performed hereunder.
13.19 Time of Essence. Time is of the essence of this Agreement.
---------------
13.20 Limitation of Liability. The obligations of Seller hereunder are binding
only on Seller and shall not be personally binding upon, nor shall any resort be
had to, the private properties of any of the partners, officers, directors,
members, shareholders, beneficiaries, advisors or agents of Seller, or of any
partners, officers, directors, members, shareholders, beneficiaries, advisors or
agents of any of the foregoing. All documents executed by Seller shall be deemed
to contain (even if not expressly stated) the foregoing exculpation.
SIGNATURES FOLLOW ON NEXT PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
ROCKLAND WAREHOUSE CENTER CORPORATION
By:___________________________
Name:
Title:
BUYER:
▇▇▇▇▇▇▇▇ REALTY LLC
By:___________________________
Name:
Title:
ESCROW AGENT:
LANDAMERICA FINANCIAL GROUP
By:___________________________
Name:
Title:
A-1
SCHEDULE A
DESCRIPTION OF PROPERTY
[OBJECT OMITTED]
A-2
SCHEDULE A-1
TITLE EXCEPTIONS
The following items set forth on Schedule B of Commonwealth Land Title Insurance
Company report CR021711 dated November 8, 2002:
1. Taxes, tax liens, tax sales, water rates, sewer rents and assessments,
subject to apportionment as provided in the Agreement.
2. State of facts shown on Minor Subdivision of Property for Rockland
Warehouse Center Corporation Located at Village of Montebello, Town of
Ramapo, Rockland County, New York, prepared by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Associates, P.C., dated February 6, 1996, last revised April 8, 1996.
3. The following covenants, conditions, easements, leases, and agreements
of record:
a. Sewer Easement to the County of Rockland in Liber 927 cp 253.
b. Sewer Easement in favor of the Town of Ramapo in Liber 860 cp 881
(affects Parcel 4).
c. Sewer Easement in favor of the Town of Ramapo in Liber 854 cp 834
(affects Parcel 3).
d. Gas Line Easement in favor of Orange & Rockland Utilities, Inc. in
Liber 857 cp 1041 (affects Parcel 2).
e. Electric and Gas Easement in favor of Orange & Rockland Utilities,
Inc. in Liber 962 cp 45 (affects easterly 150 feet).
▇. ▇▇▇▇▇ of Right of Way in Liber 966 cp 12 as amended by Amended Grant
of Right of Way in Liber 988 cp 38 and Liber 988 cp 77.
g. Sewer Easement in Liber 1019 cp 423.
h. Agreement in Liber 1019 cp 431.
i. Sewer Easement in Liber 851 cp 96.
j. Agreement in Liber 981 cp 1.
k. Covenants in Liber 961 cp 164.
l. Easement in Liber 775 cp 583.
▇. ▇▇▇▇▇ of Right of Way in Land Records Book 737 page 3925.
n. Reservations in Liber 961 cp 190.
o. Agreement in Land Records Book 745 page 409.
p. Covenant recorded as Instrument ID#1999-5613.
q. Easements as shown on Maps Nos. 6975 and 7263.
r. Notes on Maps Nos. 6975 and 7263.
-1
SCHEDULE B
PERSONAL PROPERTY
Item Quantity
Desk 1
Chairs 2
Workbench w/vise 1
Wall clock 1
Hand tools, files, screw drivers Multiple
Drawing/Blueprint rack 1
Metal shelf 1
5-drawer, letter size file cabinet 1
Metal utility cabinet 1
Step ladders: 6', 10', 12' 3
SCHEDULE C
LIST OF LEASES
Lease between American Telephone and Telegraph Company and The Dress Barn,
Inc. dated April 30, 1993
Lease between Rockland Warehouse Center Corporation and Xerox Corporation dated
December 10, 2001, together with letter dated August 15, 2002
Lease between Rockland Warehouse Center Corporation and Par Pharmaceutical, Inc.
dated July 17, 2002, together with letter dated August 28, 2002
D-1
SCHEDULE D
SERVICE CONTRACTS
Vendor Service Provided
Rino Landscaping Landscaping
Rino Landscaping Snow removal
Gateway Services Boiler operator
ADT Alarms
Hayden Roofing Roof maintenance
Brokerage Letter with Strategic Alliance Partners, LLC dated as of July 15,
2002 (re: Par Pharmaceutical lease)
Brokerage Letter with Equis Corp. dated December 14, 2001(re: Xerox
Corporation lease)
Exclusive Brokerage Agreement with Wm. ▇. ▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇, Inc. dated
October 12, 1992 (re: Dress Barn lease)
EXHIBIT 1
FORM OF DEED
BARGAIN AND SALE DEED WITH COVENANT AGAINST GRANTOR'S ACTS
THIS DEED is made as of January 28, 2003, by and between ROCKLAND WAREHOUSE
CENTER CORPORATION, a Delaware corporation, having an address in care of Clarion
Partners, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Grantor") and
▇▇▇▇▇▇▇▇ REALTY LLC, a Delaware limited liability company, with an address of ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ("Grantee").
WITNESSETH:
That for and in consideration of the sum of Ten Dollars and other valuable
consideration paid by the Grantee, the receipt of which is hereby acknowledged,
the Grantor does hereby grant and release unto the Grantee, its heirs or
successors and assigns forever, all that certain plot, piece or parcel of land,
with the buildings and improvements thereon erected, situate, lying and being in
the Village of Montebello, Town of Ramapo, County of Rockland, and State of New
York and more particularly bounded and described as set fort on Exhibit A
attached hereto and made a part hereof. Tax map designation Section __, Plot __
(the "Property").
TOGETHER with all right, title and interest, if any, of the Grantor, in and to
any streets and roads abutting the Property to the center lines thereof,
TOGETHER with the appurtenances and all the estate and rights of the Grantor in
and to the Property,
TO HAVE AND TO HOLD the Property herein granted unto the Grantee, its heirs or
successors and assigns forever.
AND the Grantor, in compliance with Section 13 of the Lien Law, covenants that
the Grantor will receive the consideration for this conveyance and will hold the
right to receive such consideration as a trust fund to be applied first for the
purpose of paying for the cost of any improvements and will apply the same first
to the cost if the improvements before using any part of the total of the same
for any other purposes.
AND the Grantor covenants with the Grantee that the Grantor has not done or
suffered anything whereby the Property has been encumbered in any way whatever,
except for those matters set forth on Exhibit B attached hereto and made a part
hereof by this reference.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be signed
in its corporate name by its duly authorized officers and its seal to be
hereunto affixed by authority of its Board of Directors, as of the day and year
first above written.
ROCKLAND WAREHOUSE CENTER
CORPORATION, a Delaware corporation
[CORPORATE SEAL] By:________________________________
Name:
Title:
ATTEST:
-----------------------
Name:
Title:
STATE OF NEW YORK
COUNTY OF NEW YORK
This __ day of ____________, 2003, before me, the undersigned Notary Public
in and for the County and State aforesaid, personally came ___________, who
resides at ________________, who being duly sworn, says that he is a
_____________ of Rockland Warehouse Center Corporation, and that the seal
affixed to the foregoing instrument in writing is the corporate seal of said
corporation, and that he signed and sealed said instrument on behalf of said
corporation by its authority duly given. And the said ________________
acknowledged said instrument to be the act and deed of said corporation.
WITNESS my hand and seal this __ day of ___________, 2003.
------------------------
Notary Public
My commission expires:
EXHIBIT 2
FORM OF ▇▇▇▇ OF SALE
▇▇▇▇ OF SALE
FOR VALUE RECEIVED, ROCKLAND WAREHOUSE CENTER CORPORATION, a Delaware
corporation ("Seller") hereby sells, conveys and assigns to __________, a
_____________, all of Seller's right, title and interest in and to all personal
property located upon or used in the ownership, operation, management,
maintenance and/or repair of that certain real property described in Schedule 1
attached hereto and incorporated herein by this reference and the improvements
thereon (collectively, the "Personal Property"), which Personal Property shall
include, without limitation, the items described on Schedule 2 attached hereto
and incorporated herein by this reference.
TO HAVE AND TO HOLD the Personal Property unto the grantee and its
successors and assigns forever.
Seller warrants that it owns good and marketable title to the Personal
Property and will defend title to the Personal Property against all persons
claiming a prior right thereto to the extent that such prior right is alleged to
exist on or before the date of this ▇▇▇▇ of Sale. Seller makes no representation
or warranty, express or implied, of merchantability, fitness for a particular
purpose, or otherwise except as set forth herein.
IN WITNESS WHEREOF, Seller has executed this ▇▇▇▇ of Sale as of this 28th
day of January, 2003.
ROCKLAND WAREHOUSE CENTER CORPORATION
By:___________________________
Name:
Title:
Schedule 1
LEGAL DESCRIPTION OF THE PROPERTY
Schedule 2
DESCRIPTION OF ITEMS INCLUDED IN THE PERSONAL PROPERTY
EXHIBIT 3
FORM OF ASSIGNMENT OF LEASES
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES (this "Assignment") dated as of_________, 2003,
is made by ROCKLAND WAREHOUSE CENTER CORPORATION, a Delaware corporation
("Assignor"), to ______________, a ___________________ ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the lessor under certain leases executed with
respect to that certain real property located in Montebello, New York (the
"Property") more particularly described on Schedule 1 attached hereto and
incorporated herein by this reference, which leases are described in Schedule 2
attached hereto and incorporated herein by this reference (the "Leases").
WHEREAS, Assignor is contemporaneously herewith selling the Property to
Assignee pursuant to that certain Purchase and Sale Agreement dated as of
_________, 2002, by and between Assignor and Assignee (the "Purchase
Agreement").
WHEREAS, Assignor desires to assign its interest in and to the Leases
to Assignee as of the date on which title to the Property is vested in Assignee
(the "Transfer Date").
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby agree as follows:
1. As of the Transfer Date, Assignor hereby assigns to Assignee all of
its right, title and interest in and to the Leases.
2. As of the Transfer Date, Assignee hereby assumes all of Assignor's
right, title and interest in and to the Leases.
3. Assignor hereby agrees to indemnify, defend and hold harmless
Assignee from and against any and all liabilities, claims, demands, damages and
costs, including, without limitation, attorneys' fees and expenses
(collectively, "Liabilities"), arising out of the lessor's obligations under the
Leases described in Schedule 2 and related to the period prior to or on the
Transfer Date or which arise out of the lessor's obligations under said Leases
after the Transfer Date on account of any fact or circumstance occurring or
existing on or prior to the Transfer Date.
4. Assignee hereby agrees to indemnify, defend and hold harmless
Assignor from and against any and all Liabilities arising out of the lessor's
obligations under the Leases described in Schedule 2 and related to the period
after the Transfer Date, except for Liabilities which arise out of the lessor's
obligations under said Leases after the Transfer Date on account of any fact or
circumstance occurring or existing on or prior to the Transfer Date.
5. In the event of any litigation between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses in such litigation,
including, without limitation, reasonable attorneys' fees and expenses. In
addition to the foregoing award of attorneys' fees to the prevailing party, the
prevailing party in any lawsuit on this Agreement shall be entitled to its
reasonable attorneys' fees incurred in any post judgment proceedings to collect
or enforce the judgment. This provision is separate and several and shall
survive the merger of this Assignment into any judgment on this Assignment.
6. This Assignment shall be binding on and inure to the benefit of the
Assignee and Assignor and their respective heirs, executors, administrators,
successors-in-interest and assigns.
7. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York.
8. Nothing contained herein shall be deemed or construed as relieving
the Assignor or Assignee of their respective duties and obligations under the
Purchase Agreement.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the
date first above written.
ASSIGNOR:
ROCKLAND WAREHOUSE CENTER CORPORATION
By:___________________________
Name:
Title:
ASSIGNEE: ________________________________
By:___________________________
Name:
Title:
Schedule 1
LEGAL DESCRIPTION OF REAL PROPERTY
Schedule 2
DESCRIPTION OF THE LEASES
EXHIBIT 4
FORM OF TENANT ESTOPPEL CERTIFICATE
The capitalized terms use in this Tenant's Certificate have the
following meanings:
Buyer:
Landlord: Rockland Warehouse Center Corporation
Tenant:
Lease: That certain lease, together with all amendments and modifications
thereto, as particularly described on Exhibit A hereto.
Demised Property: __________________________ square feet of space in the
property located at _____________ (the "Property")
The undersigned Tenant is the tenant under the Lease. Understanding
that Buyer, its successors, assigns and lenders shall rely upon the
representations and agreement made herein in connection with the purchase of the
Property and an assignment to Buyer of the Landlord's interest in the Lease,
Tenant hereby acknowledges, represents and certifies as follows:
1. The Lease represents the entire agreement and understanding between
the Tenant and the Landlord with respect to the leasing of the Demised Property.
The Lease is in full force and effect and has not been modified, supplemented,
canceled or amended in any respect, except as described on Exhibit A. A true and
complete copy of the Lease and all amendments and modifications thereto are
annexed hereto as Exhibit B.
2. The term of the Lease commenced on _________________, and expires on
_______________, (the "Initial Term"). Tenant has no rights of extension or
renewal except as set forth in the Lease. Tenant has no right or option to
expand the Demised Property, to lease additional space at the Property or to
relocate to a different space.
3. The Tenant is obligated to pay fixed or base rent during the Initial
Term in monthly installments each in an amount of $________________, which rent
obligation is continuing and is not past due or delinquent in any respect. The
estimated rent payable pursuant to the Lease on account of real estate taxes,
insurance, common area maintenance expenses and operating expenses in the amount
of $______________ has been paid through and including __________________, 2003.
No installment of rent has been paid more than one calendar month in advance.
4. Tenant has accepted the Demised Property and taken full possession
thereof without any condition or qualification. All work and improvements
required to be completed by Landlord have been completed and accepted by Tenant,
and there are no sums due to Tenant from Landlord.
5. Tenant has not assigned, transferred or pledged the Lease or any
interest therein or sublet all or any portion of the Demised Property, except as
follows: _______________.
6. Tenant is not in default under the Lease, and, no event that with
the giving of notice or the passage of time, or both, would constitute a default
by Tenant under the Lease has occurred. To Tenant's knowledge, Landlord is not
in default under the Lease and no event that with the giving of notice or the
passage of time, or both, would constitute a default by Landlord under the Lease
has occurred.
7. Tenant has not made any payment to Landlord as a security deposit or
rental deposit except any payment expressly provided for in the Lease as
follows: ___________ [describe amount and nature of payment].
8. Tenant is not entitled to a refund of any rent or other sums
heretofore paid to Landlord. Except as set forth in the Lease, Tenant is not
entitled to any free rent or similar concession and Tenant does not have any
defenses against the payment of rent (or other sums owing to Landlord) or to any
offsets, deductions, allowances, concessions, rebates or credits against rent or
other charges payable to Landlord. Landlord has not agreed to reimburse Tenant
for or to pay Tenant's rent obligation under any other lease.
9. Tenant does not have a right or option to purchase or otherwise
acquire the Demised Property or any portion thereof.
10. No bankruptcy or insolvency proceedings are pending by or against
Tenant and no bankruptcy proceedings are contemplated by Tenant.
11. There is no outstanding material dispute of any nature between
Tenant and Landlord in respect of the Lease.
IN WITNESS WHEREOF, this certificate has been duly executed and
delivered by the authorized officers of the undersigned as of ________________,
2003.
TENANT:
------------------------------
By: __________________________
Name: ________________________
Title: _________________________
Attest: ____________________
EXHIBIT 5
FORM OF ASSIGNMENT OF CONTRACTS, GUARANTIES AND WARRANTIES
ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES,
GUARANTIES, PERMITS AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES, GUARANTIES AND OTHER
INTANGIBLE PROPERTY (this "Assignment") is made as of ----------
_________________, 2003 by ROCKLAND WAREHOUSE CENTER CORPORATION, a Delaware
corporation ("Assignor"), to _____________, a -------- ____________________
("Assignee"). --------
WITNESSETH:
WHEREAS, Assignor is contemporaneously herewith selling pursuant to
that certain Purchase and Sale Agreement dated as of ________, 2002, by and
between Assignor and Assignee, as amended, (the "Purchase Agreement") that
certain real property and improvements thereon located in Montebello, New York,
the real property of which is more particularly described on Schedule 1 attached
hereto and incorporated herein by this reference. Terms used in this Assignment
and not otherwise defined shall be given the meanings defined in the Purchase
Agreement.
WHEREAS, Assignor desires to assign its interest in and to the
following to Assignee as of the date on which title to the Real Property is
vested in Assignee (the "Transfer Date"):
(a) All service contracts described in Schedule 2 attached
hereto and incorporated herein by this reference (the "Contracts");
(b) All "Warranties and Guaranties" (hereinafter defined);
(c) All "Names and Marks" (hereinafter defined);
(d) All "Intangible Property" (hereinafter defined); and
(e) All "Permits" (hereinafter defined).
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
As of the Transfer Date, Assignor hereby assigns and transfers
unto Assignee all of its right, title, claim and interest in, to and
under the (a) Contracts; (b) Warranties and Guarantees; (c) Names and
Marks; (d) Intangible Property and (e) Permits (collectively the
"Assigned Interests").
As of the Transfer Date, Assignee hereby assumes all of
Assignor's right, title and interest in and to the Assigned Interests.
The following terms shall have the following meanings:
(a) The term "Warranties and Guaranties" as used
herein shall mean and include all warranties and
guarantees to the extent assignable, whether or not written, for all or any
portion of the Property, including without limitation the Improvements and the
Tangible Personal Property, including without limitation construction warranties
from contractors and subcontractors.
(b) The term "Names and Marks" as used herein shall
mean and include all patents, licenses,
trademarks, service marks and names used in connection with the operation of the
Property, and all symbols, emblems and logos used in connection with the
ownership or operation of the Property, whether in black and white or in color,
and irrespective of size, and all of Assignor's right, title and interest in and
to all goodwill associated therewith.
(c) The term "Intangible Property" as used herein
shall mean and include all intangible property relating to
or used in connection with the Property, as defined in the Purchase Agreement.
(d) The term "Permits" as used herein shall mean and
include all governmental permits and approvals
relating to the construction, operation, use or occupancy of the Property.
4. Assignor hereby agrees to indemnify, defend and hold
harmless Assignee from and against any and all liabilities, claims, demands,
damages and costs, including, without limitation, attorneys' fees and expenses
(collectively, "Liabilities"), arising out of the Assigned Interests and related
to the period prior to or on the Transfer Date or which arise out of the
Assigned Interests after the Transfer Date on account of any fact or
circumstance occurring or existing on or prior to the Transfer Date.
5. Assignee hereby agrees to indemnify, defend and hold
harmless Assignor from and against any and all Liabilities arising out of the
Assigned Interests after the Transfer Date, except for Liabilities which arise
out of the Assigned Interests after the Transfer Date on account of any fact or
circumstance occurring or existing on or prior to the Transfer Date.
6. In the event of any litigation between Assignor and
Assignee arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the prevailing party's costs and expenses in such
litigation, including, without limitation, reasonable attorneys' fees and
expenses. In addition to the foregoing award of attorneys' fees to the
prevailing party, the prevailing party in any lawsuit on this Agreement shall be
entitled to its reasonable attorneys' fees incurred in any post judgment
proceedings to collect or enforce the judgment. This provision is separate and
several and shall survive the merger of this Assignment into any judgment on
this Assignment.
7. This Assignment shall be binding on and inure to the
benefit of Assignee and Assignor, and their respective heirs, executors,
administrators, successors-in-interest and assigns.
8. This Assignment shall be governed by and construed in
accordance with the laws of the State of New York.
9. Nothing contained herein shall be deemed or construed as
relieving the Assignor or Assignee of their respective duties and obligations
under the Purchase Agreement.
IN WITNESS WHEREOF, Assignor has executed this Assignment as
of the date first above written.
ASSIGNOR: ROCKLAND WAREHOUSE CENTER CORPORATION
By:___________________________
Name:
Title:
ASSIGNEE: ___________________________________
By:_______________________________
Name:
Title:
Schedule 1
LEGAL DESCRIPTION OF REAL PROPERTY
Schedule 2
DESCRIPTION OF THE CONTRACTS
----------------------------------- --------------------------------------------
Vendor Service
----------------------------------- --------------------------------------------
[To include all contracts set forth on Schedule D]