EXHIBIT 10.2
AGREEMENT OF SALE AND PURCHASE
BETWEEN
SWISSAIR, SWISS AIR TRANSPORT CO. LTD. IN DEBT RESTRUCTURING LIQUIDATION,
AS SELLER,
AND
OSI PHARMACEUTICALS INC.,
AS PURCHASER
PREMISES:
41 Pinelawn Road
Melville, New York
DATED: MARCH 15, 2005
TABLE OF CONTENTS
<Table>
<Caption>
PAGE
1. SALE AND PURCHASE OF PROPERTY............................................2
2. PURCHASE PRICE...........................................................2
3. INTENTIONALLY DELETED....................................................3
4. TITLE MATTERS............................................................3
5. UNPAID AMOUNTS...........................................................5
6. VIOLATIONS...............................................................6
7. SETTLEMENT...............................................................6
8. APPORTIONMENTS..........................................................11
9. REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS..............14
10. CASUALTY, CONDEMNATION..................................................19
11. ESCROW AGENT............................................................21
12. BROKER'S COMMISSION.....................................................23
13. MISCELLANEOUS...........................................................24
</Table>
EXHIBITS
Exhibit A Description of the Land
Exhibit B Certain Definitions
Exhibit C Form of Deed
Exhibit D Form of Bill of Sale
Exhibit E Form of Omnibus Assignment and Assumption
SCHEDULES
Schedule 1 Building Equipment
Schedule 4.1 Title Exceptions
Schedule 9.1(a)(iii) Seller's Work
ii
INDEX OF DEFINED TERMS
<Table>
<Caption>
PAGE
----
Additional Title Encumbrances...........................................4
Adjustment Date........................................................11
Affiliate.............................................................B-1
Agreement...............................................................1
Anti-Terrorism Order...................................................30
Approvals.............................................................B-2
Assignable Permits......................................................1
BALANCE.................................................................3
Bill of Sale............................................................9
Broker.................................................................23
Building................................................................1
Building Equipment......................................................1
Business Day..........................................................B-1
Casualty...............................................................19
CLAIMS.................................................................19
Closing.................................................................6
Closing Date............................................................6
Code..................................................................B-1
Condemnation...........................................................19
Confidential Information..............................................B-1
Deed....................................................................9
DEPOSIT.................................................................2
DEPOSITORY.............................................................21
Disclosure Parties....................................................B-1
ESCROW AGENT............................................................2
EXISTING CONTRACTS.....................................................16
Existing Leases.......................................................B-2
Governmental Entity...................................................B-2
Hazardous Materials...................................................B-2
Initial Closing Date....................................................6
Land....................................................................1
Legal Requirements....................................................B-2
Lien..................................................................B-2
Managing Agent.........................................................14
Material Event.........................................................20
New Contracts....................................................B-1, B-2
NEW YORK COURT.........................................................26
Non-Material Event.....................................................20
Notice.................................................................23
NYS Tax Affidavit......................................................10
Omnibus Assignment and Assumption.......................................9
Permitted Exceptions....................................................3
Person................................................................B-2
</Table>
iii
<Table>
Plans.................................................................B-2
PRELIMINARY PRORATION STATEMENT........................................13
Property................................................................1
Purchase Price..........................................................2
Purchaser...............................................................1
Requirements of Law...................................................B-2
Seller..................................................................1
Seller Adjourned Date...................................................6
Seller Objection Notice.................................................4
SELLER PARTIES.........................................................19
SELLER PARTY...........................................................19
Seller's Alleged Default Date...........................................8
SETTLEMENT STATEMENT...................................................13
TAXES..................................................................12
Title Company...........................................................4
Title Objections........................................................4
Title Report............................................................4
Transfer................................................................2
Transfer Tax............................................................8
Violations..............................................................6
</Table>
iv
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "AGREEMENT") is made and
entered into this 15th day of March, 2005 by and between SWISSAIR, SWISS AIR
TRANSPORT CO. LTD. IN DEBT RESTRUCTURING LIQUIDATION, a corporation organized
under the laws of Switzerland ("SELLER"), and OSI PHARMACEUTICALS INC., a
Delaware corporation ("PURCHASER").
WITNESSETH:
WHEREAS, Seller is the owner of that certain real property located at
41 Pinelawn Road, Melville, New York, consisting of the land more particularly
described in Exhibit A attached hereto and made a part hereof (the "LAND"),
together with all improvements, rights, privileges and easements appurtenant to
or used in connection with the ownership and operation of said Land, including,
without limitation: (i) the buildings, structures and improvements, together
with all and singular tenements, hereditaments and appurtenances thereunto
belonging or in otherwise appertaining, now erected or situated on the Land
(collectively, the "BUILDING"); (ii) the fixtures, equipment, machinery and
other tangible personal property located at and used in connection with the
operation of the Building, limited to the property of Seller listed on Schedule
1 attached hereto (collectively, the "BUILDING EQUIPMENT"); (iii) all of
Seller's right, title and interest in title to any land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the Land,
to the centerline thereof, and any strips and gores adjacent to the Land, and
all right, title and interest of Seller in and to any award made or to be made
in lieu thereof and in and to any unpaid award for damage to the Land and
Building by reason of change of grade of any street; (iv) all Permits, if any
and to the extent assignable (collectively, the "ASSIGNABLE PERMITS"); (v) all
of Seller's right, title and interest in and to any Contracts that are assigned
to, and assumed by, Purchaser; (vi) to the extent assignable or transferable,
all warranties, guaranties, other intangible rights, titles, interests,
privileges and appurtenances related exclusively to, or used exclusively in
connection with, the ownership, use or operation of the Land or the Building, if
any; and (vii) any Plans in the possession of Seller (all of the above
collectively, the "PROPERTY"). Certain of the terms used in this Agreement with
initial capital letters are defined in Exhibit B attached hereto;
WHEREAS, Purchaser desires to purchase the Property subject to all the
terms and conditions hereinafter set forth and Seller is agreeable to such sale
subject to all the terms and conditions hereinafter set forth;
WHEREAS, pursuant to petitions filed on October 3, 2001 and October 5,
2001 with the District Courts of Bulach (Bezirksgericht Bulach) and Zurich
(Bezirksgericht Zurich) (collectively, the "SWISS COURT"), Seller and certain
other parties asked the Swiss Court for a temporary debt moratorium. On May 22,
2003, the Swiss Court in Bulach approved a debt restructuring plan for Seller
and under such plan, Karl Wuthrich was appointed as the official Liquidator for
Seller (the "LIQUIDATOR");
WHEREAS, on October 8, 2001, a petition for relief under Section 304 of
the United States Bankruptcy Code was filed on behalf of Seller in the United
States Bankruptcy Court for the Southern District of New York (the "COURT")
thereby commencing a case ancillary to a foreign proceeding (the "ANCILLARY
BANKRUPTCY CASE"), which is currently pending in the Court under Case No.
01-42536 (SMB);
WHEREAS, the Court entered a preliminary injunction order (the
"PRELIMINARY INJUNCTION ORDER") in the Ancillary Bankruptcy Case which, among
other things, provides that all persons and entities are enjoined from
transferring or disposing of any legal or equitable interests of Seller in
property in the United States and further provides that Seller must provide
advance written notice to certain persons or entities of certain transfers,
sales or other dispositions of Seller's property; and
WHEREAS, Seller intends to follow the procedure set forth in the
Preliminary Injunction Order to provide notice of the transactions contemplated
hereby (the "SALE NOTICE") and, if any objections shall have been made in
response to the Sale Notice, or if Seller otherwise determines that it is
necessary or appropriate, to seek an order of the Court in the Ancillary
Bankruptcy Case which authorizes or approves the transactions contemplated
hereby or declares that no such authorization or approval from the Court is
necessary (the "APPROVAL ORDER").
NOW, THEREFORE, in consideration of the respective undertakings of the
parties hereafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties intending
to be legally bound, hereby agree to the foregoing and as follows:
1. SALE AND PURCHASE OF PROPERTY
In consideration of the Purchase Price (as hereinafter defined) and
upon, and subject to, the terms and conditions hereinafter set forth, Seller
shall sell the Property to Purchaser, and Purchaser shall purchase the Property
from Seller (the "TRANSFER"). Purchaser acknowledges and agrees that no property
(real, personal or otherwise) owned by any other Person (other than Seller) is
intended to be conveyed hereunder.
2. PURCHASE PRICE
2.1 The total purchase price (the "PURCHASE PRICE") for the Property
shall be Eleven Million Two Hundred Fifty Thousand and 00/100 ($11,250,000.00)
Dollars, to be paid in cash as follows:
(a) Five Hundred Sixty Two Thousand Five Hundred and 00/100
($562,500.00) Dollars (the "DEPOSIT") to be paid by Purchaser by federal wire
transfer of immediately available funds to an account designated by Hogan &
Hartson L.L.P., 875 Third Avenue, New York, New York 10022, as escrow agent
("ESCROW AGENT"), or by certified or official bank check payable to Escrow
Agent, subject to collection, simultaneously with the execution of this
Agreement by Purchaser and as a condition to the effectiveness of this
Agreement, to be held and disbursed pursuant to the terms and conditions of
Section 11 of this Agreement; and
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(b) The balance of the Purchase Price over and above the Deposit
actually delivered by Purchaser to Escrow Agent (the "BALANCE") shall be paid by
Purchaser at the Closing by federal wire transfer of immediately available funds
to an account or accounts designated by Seller not less than one (1) Business
Day prior to Closing.
2.2 All interest earned on the Deposit shall become a part of the
Deposit and shall be paid to the party entitled to the Deposit pursuant to this
Agreement. The Deposit shall be held by Escrow Agent on the terms set forth in
Section 11 and shall be disbursed in accordance with the provisions of this
Agreement regarding the Deposit. The parties hereby agree that, pending the
Closing, or the earlier termination of this Agreement, the Deposit shall be
deposited in an interest bearing account or in such other investment as the
parties may mutually agree. The Tax Identification Number of Purchaser is
13-3159796 and the Tax Identification Number of Seller is 13-1653578. In the
event the transaction contemplated by this Agreement is not consummated in
accordance with the terms hereof, the Deposit shall be delivered in accordance
with the applicable provisions of this Agreement.
3. INTENTIONALLY DELETED
4. TITLE MATTERS
4.1 Purchaser agrees that it shall accept title to the Property subject
only to the following: (a) all non-delinquent real estate property taxes and
assessments (subject to apportionment as set forth hereinafter) and any lien to
secure same; (b) any Contracts assigned to, and assumed by, Purchaser; (c) the
matters set forth on Schedule 4.1 attached hereto; (d) all matters created by or
on behalf of, at the request of, or with the consent of, Purchaser, or arises as
a result of the acts of Purchaser, including, without limitation, any documents
or instruments to be recorded as part of any financing for the acquisition of
the Property by Purchaser; (e) any Violations (as hereinafter defined); (f) all
exceptions disclosed by the Title Report (as hereinafter defined) and the survey
relating to the Property, to the extent that same are approved or deemed
approved by Purchaser in accordance with this Section 4; (g) all Requirements of
Law (including, without limitation, those relating to building, zoning and land
use) affecting the development, use, occupancy or enjoyment of the Property; and
(h) exceptions that will not require Purchaser to pay or incur any additional
expense and that are of a de minimis nature (collectively, "PERMITTED
EXCEPTIONS").
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4.2 Purchaser acknowledges receipt of a copy of a title report having
an effective date of November 15, 2004 (the "TITLE REPORT"), prepared by
American Land Services, as Agent for Commonwealth Land Title Insurance Company
(the "TITLE COMPANY"). Purchaser may raise objections to any title exceptions
(including survey matters) disclosed by the Title Report or any updates to the
Title Report which are not Permitted Exceptions (collectively, "TITLE
OBJECTIONS"). Any Title Objections must be made within ten (10) days after (a)
the date hereof with respect to title exceptions contained in the Title Report
or (b) Purchaser's receipt of any such update, but in no event later than the
Closing Date. If Purchaser does not make any Title Objection within the
applicable period, such title exceptions will be deemed to be Permitted
Exceptions. Purchaser agrees to promptly deliver, or cause to be delivered, to
Seller copies of any and all updates to the Title Report after Purchaser's
receipt thereof. Within seven (7) Business Days after the receipt of a Notice
(as hereinafter defined) from Purchaser of any Title Objection(s), Seller shall
(subject to Seller's obligations under Section 4.4 hereof) give Purchaser a
Notice of any such Title Objection which Seller is unable or unwilling to cause
to be removed prior to or at Closing (a "SELLER OBJECTION NOTICE"). With respect
to any and all Title Objection(s) which are not Required Omissions (as
hereinafter defined) (all such other Title Objections, collectively, the
"ADDITIONAL TITLE ENCUMBRANCES") that are the subject of a Seller Objection
Notice, Purchaser shall elect, by Notice to Seller within five (5) days after
the giving of such Seller Objection Notice, either (A) to terminate this
Agreement, in which event the Deposit shall be promptly refunded to Purchaser,
or (B) to consummate the Transfer subject to any such Additional Title
Encumbrances as may exist as of the Closing Date, in which event Purchaser shall
not be entitled to any credit, nor shall Seller bear any liability, with respect
to any such Additional Title Encumbrances. Purchaser's failure to timely give
such Notice of election to Seller shall be deemed an election by Purchaser to
consummate the Transfer in accordance with clause (B) above.
4.3 Purchaser shall purchase any fee title insurance policy obtained by
Purchaser in connection with the acquisition of the Property from the Title
Company or any other title insurance company licensed to do business in the
State of New York. If Purchaser is unwilling to accept such title insurance from
the Title Company (subject to Seller's obligations under Section 4.4 hereof),
Purchaser shall be required to close the Transfer subject to such Title
Objection(s), and upon failure to so close, Purchaser shall be deemed to be in
material default under this Agreement and the provisions of Section 7.5 hereof
shall apply. Notwithstanding any provision of this Article 4 to the contrary, in
the event that the Title Company, or any other title insurance company chosen by
Purchaser, is unwilling or unable to issue to Purchaser a fee title insurance
policy in connection with the acquisition of the Property which reflects the
state of title required to be delivered to Purchaser by Seller under this
Article 4, then, in such event, and if such fee title insurance reflecting such
state of title is available from Title Associates Inc., a Division of Stewart
Title Insurance Company, Purchaser shall be required to purchase any title
insurance required by Purchaser from Title Associates Inc., at Purchaser's sole
cost and expense, and such title company shall be deemed to be the "Title
Company" in all respects under this Article 4, except with respect to the
provisions of this sentence, and the title report prepared by such title company
shall be deemed to be the "Title Report" in all respects under this Article 4.
4.4 Seller shall cause the Title Company to omit all Required Omissions
from Purchaser's lender's title policy and, with respect to Purchaser's owner's
title policy only, to omit or insure against enforcement of all Required
Omissions out of the Property. "REQUIRED
4
OMISSIONS" shall mean any Title Objections that (a) were caused by, resulted
from or arose out of a grant by Seller to any Person of a mortgage or security
interest affecting the Property; (b) are Liens placed by mechanics or
materialmen resulting from the performance of work on behalf of Seller upon all
or any part of the Property; or (c) constitute judgments or tax liens upon the
Property that are created or caused by Seller. In no event shall Seller have any
obligation or liability to spend any money or incur any expense to cause the
Title Company to remove, cure or insure against any Title Objections which are
not Required Omissions.
4.5 Purchaser, at its expense, shall cause the existing survey of the
Property, if any, to be updated and re-certified, or have a new survey created
(the "SURVEY"), and shall deliver or cause same to be delivered to Seller.
Within five (5) Business Days after receipt of the Survey, Purchaser shall
notify Seller of any Title Objections (the "SURVEY OBJECTION NOTICE") based
thereon. Failure to timely deliver a Survey Objection Notice with respect to any
matter contained on the Survey shall constitute a waiver thereof. Purchaser's
objections to the Survey shall be governed in the same manner as Purchaser's
objections to title as set forth in this Section 4.
4.6 Purchaser acknowledges that record title to the Property is
currently held by the Suffolk County Industrial Development Agency (the "IDA"),
and that the failure of Seller to hold record title to the Property and the
presence of any liens or encumbrances of any nature on the Property relating
thereto, shall not be deemed to be a Title Objection, and in connection
therewith, Purchaser further acknowledges and agrees that title to the Property
shall either be conveyed (a) to Seller by the IDA prior to Closing or (b) to
Purchaser directly by the IDA, at Seller's sole option (the "IDA TRANSFER").
Seller shall be permitted to use any portion of the Purchase Price for the
purpose of facilitating the IDA Transfer, including for the payment of legal
fees and costs.
5. UNPAID AMOUNTS
5.1 The amount of any unpaid Taxes (as hereinafter defined), water
charges and sewer rents (subject to proration as provided in Section 8.1
hereof), which Seller is obligated to pay and discharge, with interest and
penalties (if any), to the Closing Date, may, at the option of Seller, be
allowed by Purchaser to be paid out of the Purchase Price, provided that
official bills therefor with interest and penalties thereon calculated to the
Closing Date are furnished by Seller at the Closing, and such Taxes shall not be
deemed to be Title Objections.
5.2 Seller may use any portion of the Purchase Price to satisfy or bond
any Liens which exist on the Closing Date which are not Permitted Exceptions,
provided that Seller delivers to Purchaser at Closing instruments in recordable
form sufficient to satisfy such Liens, together with the cost of recording or
filing said instruments, or pays such sums or performs such acts (including,
without limitation, obtaining appropriate bonds) as will enable the Title
Company to insure Purchaser free of same as provided for in Section 4.4 hereof,
and such Liens shall not be deemed to be Title Objections.
5.3 If Seller requests within a reasonable time prior to the Closing
Date, Purchaser agrees to provide at the Closing separate certified checks or
official cashier's checks, or to make various federal wire transfers of
immediately available funds, which in the aggregate equal the
5
amount of the Purchase Price in order to facilitate the satisfaction of any
unpaid (and due) Taxes, assessments, water charges or sewer rents referred to in
Section 5.1, and, if Seller elects to proceed pursuant to the provisions of
Section 5.2, the payment or bonding of any Liens referred to therein.
6. VIOLATIONS
6.1 Seller shall have no obligation to comply with or cure, and
Purchaser shall accept title to the Property subject to any and all notes or
notices of violations of Legal Requirements noted in or issued by any
Governmental Entity having jurisdiction against or affecting the Property or
conditions which may give rise to the same (collectively, the "VIOLATIONS"),
including, but not limited to, Violations that are the obligation of the parties
under the Contracts to cure.
7. SETTLEMENT
7.1 Time, Place and Conditions. Subject to any express right of
adjournment of Seller set forth in this Agreement, the settlement of the
Transfer under this Agreement (the "CLOSING") shall be held on the date which is
five (5) Business Days after the date that Seller gives a Closing Notice (as
hereinafter defined) to Purchaser (the "INITIAL CLOSING DATE"), at the offices
of Hogan & Hartson L.L.P. at 875 Third Avenue, New York, New York 10022 or, if
required by Purchaser's lender, if any, at the offices of such lender or its
counsel in the City of New York or the Counties of Nassau or Suffolk in the
State of New York. Notwithstanding the foregoing, either Seller or Purchaser
shall have the right from time to time to one or more adjournments of the
Closing, to a Business Day (an "ADJOURNED DATE") not later than ten (10)
Business Days after the Initial Closing Date, provided that such party delivers
written notice to the other party prior to the Initial Closing Date (or any
Adjourned Date, as the case may be) of such party's desire to adjourn the
Closing. TIME SHALL BE OF THE ESSENCE AS TO PURCHASER'S OBLIGATION to close by
3:00 P.M. Eastern Standard Time either on the Initial Closing Date or on any
Adjourned Date, subject to any express right of adjournment as provided in this
Agreement. TIME SHALL BE OF THE ESSENCE AS TO SELLER'S OBLIGATION to close by
3:00 p.m. Eastern Standard time on the Initial Closing Date or any Adjourned
Date, subject to any express right of adjournment as provided in this Agreement.
The actual date of the Closing is referred to herein as the "CLOSING DATE." In
the event that Seller has not given the Closing Notice to Purchaser within
seventy-five (75) days after the date hereof. Purchaser shall have the right,
within five (5) Business Days after the end of such seventy-five (75) day
period, to terminate this Agreement on Notice to Seller, in which even the
Deposit shall be refunded to Purchaser within five (5) Business Days, and the
parties shall have no further rights or obligations to the other except for
those items that, by the terms of this Agreement, expressly survive such
termination.
7.2 Conditions to Closing.
6
(a) The obligation of Seller to sell the Property to Purchaser
is subject to the satisfaction of the following conditions:
(i) Purchaser shall have performed, satisfied and
complied, or tendered performance, satisfaction and
compliance, in all material respects, with every covenant,
agreement and condition required by this Agreement to be
performed or complied with by Purchaser on or before the
Closing Date;
(ii) The representations and warranties of Purchaser
shall be true and correct in all material respects on the
Closing Date, provided that as of the Closing Date there shall
be no change from the date hereof with respect to the
representations contained in Sections 9.3(b) and (c); and
(iii) The Sale Notice shall have been given and no
objections to the transactions contemplated hereby shall have
been timely made in response to the Sale Notice and/or at
Seller's sole and absolute discretion or if objections to the
Sale Notice shall have been timely made, the Approval Order
shall have been entered by the Court and such Approval Order
shall have become a final and non-appealable order.
The conditions set forth in the foregoing clauses (i), (ii)
and (iii) are for the sole benefit of Seller and may be waived, in whole or in
part, by Seller in its sole and absolute discretion. A Notice by Seller to
Purchaser indicating that the conditions set forth in the foregoing clauses (i),
(ii) and (iii) have been, or will as of the Initial Closing Date be, satisfied
or waived, as determined by Seller, shall be referred to as a "CLOSING NOTICE."
(b) The obligation of Purchaser to purchase the Property from
Seller is subject to the satisfaction of the following conditions:
(i) Seller shall have performed, satisfied and
complied or tendered performance, satisfaction and compliance,
in all material respects, with every covenant, agreement and
condition required by this Agreement to be performed or
complied with by Seller on or before the Closing Date; and
(ii) The representations and warranties of Seller
shall be true and correct in all material respects as of the
Closing Date, provided that as of the Closing Date there shall
be no change from the date hereof with respect to the
representations contained in Section 9.2(b).
The conditions set forth in the foregoing clauses (i) and (ii)
are for the sole benefit of Purchaser and may be waived, in whole or in part, by
Purchaser in its sole and absolute discretion.
7.3 Costs and Expenses.
(a) Whether or not this Agreement and the transactions
contemplated hereby are consummated, and except as provided in this Agreement,
each party will bear its own costs and expenses (including legal fees and
expenses, except as provided in Section 13.7 hereof) incurred in connection with
the negotiation and execution of this Agreement and the transactions
7
contemplated hereby, and obtaining third party consents to the performance of
that party's obligations under this Agreement. Notwithstanding the foregoing:
(i) Purchaser will be responsible for all fees and
costs of any financial advisor to Purchaser, and Seller will
be responsible for all fees and costs of any financial advisor
to Seller;
(ii) Purchaser will be responsible for all costs,
fees and expenses of (A) its due diligence, including without
limitation the costs of survey (including the cost of any
change, update or recertification of any existing survey),
environmental and engineering reviews and audits, appraisals,
accounting and other financial reviews, (B) its lender and
obtaining its financing (including, without limitation, any
costs of a lender's title insurance policy) and (C)
Purchaser's owner's title insurance policy and the
endorsements or extended coverage thereto (including all Title
Company charges, title insurance premiums, title examination
and other costs);
(iii) At the Closing, Seller shall pay the New York
State Transfer Tax in accordance with Article 31 of the New
York State Tax Law (the "TRANSFER TAX"), which shall be due on
the Transfer;
(iv) At the Closing, Seller shall pay all fees and
recording charges for releasing or bonding Liens (other than
the Permitted Exceptions) which Seller has an obligation or
elects to remove or bond, including prepayment premiums or
penalties, if any. All other recording fees shall be borne and
paid by Purchaser at the Closing, including, without
limitation, the costs of recording the Deed (as hereinafter
defined); and
(v) Any other costs, charges and expenses shall be
borne and paid as provided in this Agreement, or in the
absence of such provision, in the manner recommended by the
Customs in Respect to Title Closings of the Real Estate Board
of New York, Inc.
(b) The provisions of this Section 7.3 shall survive the
Closing.
7.4 Seller's Default. If Purchaser is ready, willing and able to
consummate the transactions contemplated by this Agreement and Seller shall fail
to perform its material obligations hereunder and to make full settlement in
accordance with the terms hereof, Purchaser may elect, as its sole and exclusive
remedy for such failure to perform on the part of Seller either (a) to terminate
this Agreement on Notice to Seller, in which event the Deposit shall be refunded
to Purchaser within five (5) Business Days, and the parties shall have no
further rights or obligations to the other except for those items that, by the
terms of this Agreement, expressly survive such termination, or (b) to seek
specific performance of Seller's obligations under this Agreement, provided,
however, that specific performance shall only be available if Purchaser shall
notify Seller that Purchaser has elected to pursue its right of specific
performance within forty-five (45) days after the date of the Closing then
scheduled pursuant to this Agreement at the time of the alleged default
hereunder by Seller ("SELLER'S ALLEGED DEFAULT DATE") and commence an action
seeking specific performance in a court of competent jurisdiction within ninety
(90) days after Seller's Alleged Default Date. If Purchaser shall fail to
deliver such notice within such forty-five (45) day period or shall fail to
commence such action within such ninety (90) day
8
period, Purchaser shall be deemed to have waived Purchaser's right to seek
specific performance and Purchaser shall be deemed to have elected to terminate
this Agreement as provided in clause (a) above. Notwithstanding the foregoing,
Purchaser shall have the right to waive any default of Seller, in whole or in
part, in its sole and absolute discretion, and proceed to Closing without any
credit or adjustment to the Purchase Price or further liability of Seller with
respect to such default.
7.5 Purchaser's Default. If Section 7.4 hereof shall not be applicable
and Purchaser is in default and fails to perform any of its material obligations
under this Agreement including, without limitation, a failure to fully and
completely comply with the conditions to Closing set forth in Section 7.2(a)
hereof, then the Deposit shall be promptly disbursed to Seller. Upon receipt of
the Deposit by Seller, Seller shall retain the Deposit as liquidated damages,
and Seller shall have no obligation to convey title to the Property to
Purchaser, and except as expressly provided in this Agreement, upon such
disbursement of the Deposit to Seller, this Agreement shall be absolutely,
automatically and completely null, void and of no further force or effect.
Enforcement of Seller's right to receive the Deposit and the retention of the
Deposit, when disbursed to, and retained by Seller as liquidated damages, shall
be Seller's sole remedy in the event of Purchaser's default hereunder. THE
PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN
THE EVENT OF A DEFAULT BY PURCHASER WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO ASCERTAIN AND THAT THE DEPOSIT REPRESENTS THE PARTIES'
REASONABLE ESTIMATE OF SUCH DAMAGES. Notwithstanding the foregoing, Seller shall
have the right to waive any default of Purchaser, in whole or in part, in its
sole and absolute discretion, and proceed to Closing without any credit or
adjustment to the Purchase Price or further liability of Purchaser with respect
to such default.
7.6 Documents and Other Deliveries at Closing.
(a) Seller's Deliveries. Seller shall execute and deliver or
cause to be executed and delivered to Purchaser on the Closing Date the
following:
(i) a bargain and sale deed without covenant against
grantors acts with respect to the Land and the Building (the
"DEED"), in recordable form, in the form annexed hereto as
Exhibit C and made a part hereof, or in such other form;
(ii) a bill of sale in the form annexed hereto as
Exhibit D and made a part hereof (the "BILL OF SALE");
(iii) an assignment of Seller's interest in the
Contracts that are being assumed by Purchaser and the
Assignable Permits and, to the extent assignable, in and to
all warranties, guaranties, other intangible rights, titles,
interests, privileges and appurtenances owned by Seller and
related exclusively to, or used exclusively in connection
with, the ownership, use or operation of the Property,
including any trade names or trademarks associated solely with
the Premises (the "OMNIBUS ASSIGNMENT AND ASSUMPTION"), in the
form annexed hereto as Exhibit E and made a part hereof;
(iv) a certificate of an authorized officer of Seller
with attached copies of (A) the resolution or consent by the
Creditors' Committee of Seller approving
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the transactions contemplated hereby, (B) in the event that it
has been entered on or before the Closing Date, the Approval
Order, and (C) the incumbency of the individual(s) executing
this Agreement and the Closing documents on behalf of Seller;
(v) an affidavit, and any other documentation
required by the applicable Governmental Entity, that provides
all information necessary for the satisfaction of the
reporting requirements under Section 6045(e) of the Internal
Revenue Code of 1986, as amended, and Seller's counsel shall
be the responsible person with respect to any reporting
requirements;
(vi) the Settlement Statement (as hereinafter
defined) setting forth the amounts paid by or on behalf of
and/or credited to each of Purchaser and Seller pursuant to
this Agreement;
(vii) the New York State Combined Real Estate
Transfer Tax Return, Credit Line Mortgage Certificate and
Certificate of Exemption from the Payment of Estimated
Personal Income Tax (TP-584) (the "NYS TAX AFFIDAVIT"), or any
successor form thereto required to be filed with respect to
the New York State Real Estate Transfer Tax, together with
bank or cashiers' checks from Seller, or attorney escrow
account checks, made payable to the appropriate Governmental
Authority in the required amount(s) (unless Seller authorizes
the Title Company to pay same and the Title Company agrees to
deduct and pay such expenses out of monies payable to Seller);
(viii) the New York State Real Property Transfer
Report (RP-5217 NYC) (the "TRANSFER REPORT");
(ix) all keys and access codes to the Property which
are in Seller's possession;
(x) to the extent in Seller's possession, originals
of the Contracts, Permits and Plans which are in effect as of
the Closing Date which Purchaser has agreed or is required
under this Agreement or by Requirement of Law, to assume (it
being understood and agreed that if originals are not in
Seller's possession, then copies, to the extent in Seller's
possession, will be delivered);
(xi) to the extent in Seller's possession, originals
or copies of all current maintenance records and operating
manuals;
(xii) an assignment, if necessary, in form and
substance reasonably satisfactory to Purchaser of all rights
to condemnation awards or insurance proceeds, if any, relating
to the Property and of the right to prosecute and adjust all
proceedings and claims in connection therewith, duly executed
by Seller in accordance with Section 10 hereof;
(xiii) an affidavit reasonably requested by the Title
Company containing such information as reasonably and
customarily required for similar transactions (to the extent
known by Seller to be true): (A) stating that there are no
occupancy rights affecting the Property; (B) providing
information necessary so that the Title Company will omit from
Purchaser's owner's title insurance policy all exceptions for
unfiled mechanics' or materialmen's liens or judgments,
bankruptcies or other
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returns against Persons whose names are the same as or similar
to the name of Seller; and (C) providing such information as
may be required so that the Title Company will insure title
free of all Title Objections to the extent required by Section
4 of this Agreement;
(xiv) a certificate indicating whether as of the
Closing there have been any changes in circumstances relating
to the representations and warranties of Seller in Section 9.2
hereof between the date hereof and the Closing Date;
(xv) any other documents, instruments or agreements
required to be delivered by Seller pursuant to the provisions
of this Agreement or required by any Governmental Entity in
connection with, and as a condition to, the Transfer.
(b) Purchaser's Deliveries. Purchaser shall execute and
deliver or cause to be executed and delivered to Seller on the Closing Date the
following:
(i) the Balance (as provided for in, and in
accordance with, Section 2.1(b) herein), together with such
other sums as required to pay Purchaser's share of the Closing
costs, prorations, reimbursements and adjustments, and any
other sums payable to Seller, as set forth in this Agreement,
in each case by federal wire transfer of immediately available
funds, except as may be provided in Section 5.3;
(ii) a duly executed certificate of an authorized
officer of Purchaser with attached copies of (A) the
resolutions or consent required by Purchaser's organizational
documents and/or applicable Requirements of Law approving the
transactions contemplated hereby and (B) the incumbency of the
individual(s) executing this Agreement and the Closing
documents on behalf of Purchaser;
(iii) the Settlement Statement;
(iv) the Omnibus Assignment and Assumption;
(v) the NYS Tax Affidavit;
(vi) the Transfer Report;
(vii) a certificate indicating whether as of the
Closing there have been any changes in circumstances relating
to the representations and warranties of Purchaser in Section
9.3 hereof between the date hereof and the Closing Date; and
(viii) any other documents, instruments or agreements
required to be delivered by Purchaser pursuant to the
provisions of this Agreement or required by any Governmental
Entity in connection with, and as a condition to, the
Transfer.
8. APPORTIONMENTS
8.1 Apportionments. The following items shall be apportioned between
Seller and Purchaser as of 11:59 P.M. Eastern Standard Time of the day prior to
the Closing Date (the "CUTOFF") with respect to the Property and the net amount
thereof either shall be paid by Purchaser to Seller or credited to Purchaser, as
the case may be, at the Closing:
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(a) real property taxes and assessments (or installments
thereof), including any payments in lieu of taxes and payments required to be
made to any business improvement district, and vault charges affecting the Land
and/or the Building (collectively, "TAXES");
(b) water rates and charges;
(c) sewer taxes and rents;
(d) permit, license and inspection fees, if any, with respect
to the Permits on the basis of the fiscal year for which levied along with any
deposits thereunder, if the rights with respect thereto are transferred to
Purchaser at Closing, and Seller shall receive a credit at Closing in the amount
of such deposit(s);
(e) electricity, gas, telephone and any other utilities, at
the rates most recently charged to Seller, plus sales taxes thereon, except in
the event that Purchaser arranges for new accounts for any such utility, and the
service provided to Seller is terminated, as of the Closing;
(f) fees and other charges paid or payable by Seller or paid
or payable to Seller, under any Contracts not terminated at or prior to Closing
and assumed by Purchaser;
(g) the value of Building inventory and supplies in customary
quantities (e.g., soap, cleaning powder, light bulbs, etc.) in unopened
containers in the Building, if any, in accordance with an inventory prepared by
Seller or its agent, shall be credited to Seller. Such value amount shall be
determined based upon Seller's cost thereof, as evidenced by actual invoices;
and
(h) premiums for any assignable insurance policies which
Seller and Purchaser agree shall be assigned to Purchaser and which are actually
assigned to Purchaser.
8.2 Taxes; Water and Sewer.
(a) Apportionment of Taxes, water rates and charges, sewer
taxes and rents shall be made on the basis of the fiscal year for which
assessed. If the Closing Date shall occur before the Taxes, water rates or
charges, sewer taxes or rents are fixed, apportionment for any item not yet
fixed shall be made on the basis of the real property tax rate, water rates and
charges, sewer taxes and rents or vault charges, as applicable, for the
preceding year applied to the latest assessed valuation. After the Taxes, water
rates and charges, sewer taxes and rents are finally fixed, Seller and Purchaser
shall make a recalculation of the apportionment of same, and Seller or
Purchaser, as the case may be, shall make an appropriate payment to the other
based upon such recalculation.
(b) The amount of any unpaid Taxes, water charges and sewer
rents which Seller is obligated to pay and discharge, with interest and
penalties thereon (if any) to the Closing Date may, at Seller's option, be
credited to Purchaser.
(c) If any refund or credit of Taxes, water rates or charges,
sewer taxes or rents is made after the Closing Date for a period prior to the
Closing Date, the same shall be applied first to the reasonable out-of-pocket
third party costs incurred in obtaining same and the
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balance, if any, of such refund shall, to the extent received by Purchaser, be
paid to Seller (to the extent relating to the period through the Cutoff), and to
the extent received by Seller, be paid to Purchaser (to the extent relating to
the period commencing with the Closing Date).
(d) Seller shall use good faith efforts to obtain readings of
the meters measuring water consumption or sewer usage, electricity and gas, if
any, at the Property to a date not more than fifteen (15) days prior to the
Closing Date. If such readings are not obtained (and if such readings are
obtained, then with respect to any period between such reading and the Cutoff),
water rates and charges and sewer taxes and rents, electricity and gas, if any,
shall be apportioned based upon the last meter readings, subject to
reapportionment when readings for the relevant period are obtained after the
Closing Date as provided in Section 8.3(b) below.
8.3 Miscellaneous.
(a) Prior to the Closing, Seller shall prepare and deliver to
Purchaser a statement (the "PRELIMINARY PRORATION STATEMENT") showing
apportionments for the items set forth above, calculated as of the Cutoff, on
the basis of the actual days in a particular month and a 365-day calendar year.
Purchaser and Seller shall agree upon any adjustments to be made to the
Preliminary Proration Statement prior to the Closing, and at the Closing,
Purchaser or Seller, as applicable, shall receive a credit equal to the net
amount due Purchaser or Seller, pursuant to the Preliminary Proration Statement
as finally agreed upon by Purchaser and Seller (as so approved by Seller and
Purchaser, the "SETTLEMENT STATEMENT").
(b) If final prorations cannot be made on the Closing Date for
any item being prorated under this Article 8 or, if there is an error in the
calculation of any proration, then Purchaser and Seller agree to allocate such
items on a fair and equitable basis as soon as invoices or bills are available
or after such items are finally fixed, with final adjustment to be made as soon
as reasonably possible after the Closing Date (but in no event later than six
(6) months after the Closing Date). If such final adjustment discloses that any
amount is owing to either of the parties hereunder, the party owing the sum in
question shall, within five (5) Business Days of the making of such final
adjustment, remit the sum due to the other party. Except for any post Closing
proration adjustments as provided in this Section 8.3(b) (which must be
determined within six (6) months after the Closing Date), all prorations made
under this Article 8 shall be final as of the Closing Date and shall not be
subject to further adjustment after the Closing Date.
(c) All other costs and expenses customarily prorated for in
similar transactions shall be apportioned in accordance with the Customs in
Respect to Title Closings of the Real Estate Board of New York, Inc.
(d) The provisions of this Section 8 shall survive the
Closing.
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9. REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS
9.1 Covenants of Seller.
(a) Seller hereby covenants and agrees that during the period
commencing on the date of execution of this Agreement and ending on the Closing
Date or the earlier termination of this Agreement:
(i) Seller shall not enter into any Lease without the
consent of Purchaser, which consent may be granted or withheld
in Purchaser's sole and absolute discretion.
(ii) Except in connection with the IDA Transfer,
Seller shall not sell, assign, mortgage, pledge, encumber or
otherwise transfer all or any portion of the Property or take
any other affirmative action affecting title to the Property,
or enter into a written agreement to do any of the foregoing,
without the prior written consent of Purchaser, which may be
granted or withheld in Purchaser's sole and absolute
discretion. Notwithstanding the foregoing, if any mortgage,
pledge or encumbrance shall affect the Property as of the
Closing Date, the foregoing shall not be deemed a default
under this Section 9.1(a)(ii) but shall be dealt with in
accordance with Article 4 herein.
(iii) Seller shall continue to operate, maintain and
repair the Property in accordance with its current business
practices so as to deliver the Property to Purchaser in
substantially its present or, at Seller's sole discretion,
better, condition, ordinary wear and tear and damage from
casualty or condemnation excepted, or otherwise in the
condition required under this Agreement. In addition, Seller
may, but shall not be required to, perform any maintenance,
alterations, repairs or renovations, (A) as expressly
permitted by the terms of this Agreement following a casualty
or condemnation or (B) as required by any Legal Requirement.
Seller shall have the right, either in its own name, or in the
name of Sutton & Edwards (the "MANAGING AGENT"), to hire or
terminate employees in connection with the operation of the
Property, provided that any such employees shall be terminated
on or before the Closing and Purchaser shall have no
obligation with respect thereto. Seller shall not remove from
the Property any Building Equipment unless replaced by
property of similar or better quality, provided that in no
event shall Seller be obligated to Purchaser for any de
minimis items of Building Equipment which are lost or missing
as of the Closing Date. Notwithstanding the foregoing
provisions of this Section 9.1(a)(iii), Seller shall, at
Seller's sole cost, perform the work listed on Schedule
9.1(a)(iii) annexed hereto, (collectively, "SELLER'S WORK").
Notwithstanding anything to the contrary provided for in this
Agreement, the substantial completion of Seller's Work: (1) is
not and shall not be deemed to be a condition of Closing, (2)
in the event that Seller's Work is not fully performed at
Closing, then Purchaser shall be entitled to be paid at
Closing for the estimated cost of the actual and reasonable
out-of-pocket costs to be incurred by Purchaser after the
Closing in performing the unperformed portion of Seller's
Work, as reasonably estimated by Purchaser and
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Seller. Seller shall have no obligations or liabilities and
Purchaser shall have no rights or remedies with respect to
Seller's Work other than Seller's obligations and Purchaser's
rights as set forth in this Section 9.1(a)(iii).
(iv) Seller shall have the right to enter into New
Contracts to operate the Property, provided that Seller shall
not enter into any New Contracts that would survive the
Closing and be binding upon Purchaser without Purchaser's
prior written consent, which Purchaser may grant or withhold
in Purchaser's sole and absolute discretion. Except for
Contracts that Seller and Purchaser, in their sole and
absolute discretion, mutually agree to have assigned to, and
assumed by Purchaser, Seller shall terminate, at Seller's sole
cost and expense, any Contract that does not expire by its
terms on or before the Closing Date.
(v) Seller shall keep Purchaser reasonably apprised
of progress made in connection with either giving of the Sale
Notice and/or obtaining the Approval Order, provided that in
no event shall Purchaser have any approval rights in
connection with such procedures.
(b) Seller shall commence service of the Sale Notice to each
party to whom service is deemed necessary or desirable by Seller within four (4)
Business Days after the date that this Agreement is fully executed and each
party has delivered a signed original of its signature to the other party.
Seller shall give Notice to Purchaser of the commencement of the service of the
Sale Notice within one (1) Business Day after the end of such four (4) Business
Day period. If Seller fails to timely give such Notice then Purchaser shall
elect, by Notice to Seller within two (2) Business Days after the failure of
Seller to timely give such Notice, either (i) to terminate this Agreement, in
which event the Deposit shall be refunded to Purchaser within five (5) Business
Days, or (ii) to consummate the Transfer. Purchaser's failure to timely give
such Notice of election to Seller shall be deemed an election by Purchaser to
consummate the Transfer in accordance with clause (ii) above.
(c) If, pursuant to any provision of Section 9.1(a),
Purchaser's consent is required, such consent shall not be unreasonably delayed.
To that end, if Purchaser fails to respond to any written request for consent
pursuant to Section 9.1(a) within five (5) Business Days, Purchaser shall be
deemed to have consented to such request.
9.2 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser that the following matters are materially true and correct
as of the execution of this Agreement:
(a) Seller is a corporation duly formed and validly existing
under the laws of Switzerland;
(b) Seller has or shall have as of the Closing the requisite
power and authority to execute and deliver and to perform its obligations under
this Agreement and all instruments and other documents executed and delivered by
Seller, or to be executed and delivered, in connection with this Agreement and
(ii) Seller's performance of the transactions contemplated hereby (and thereby),
have been duly authorized by all necessary action of Seller;
15
(c) This Agreement and all other instruments executed by
Seller and delivered to Purchaser in connection with this Agreement and the
transactions contemplated hereby and thereby have been or will be duly and
validly executed and delivered by Seller and constitute or shall constitute as
of the Closing the legal, valid and binding obligations of Seller, enforceable
in accordance with their respective terms (except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium and
other principles relating to or limiting the right of contracting parties
generally) and does not and will not violate any provisions of any agreement to
which Seller is a party or to which it is subject. As of the Closing Seller
shall not be subject to any law, order, decree or restriction which prohibits or
would be violated by this Agreement or consummation of the transactions
contemplated hereby;
(d) There are no written or oral leases or occupancy
agreements in effect with respect to the Property which will not be terminated
on or prior to the Closing;
(e) There are no written or oral Contracts other than
Contracts which shall be terminated or expire on or before the Closing
(collectively, the "EXISTING CONTRACTS");
(f) Except as set forth in this Agreement, there are no
actions, suits or proceedings against Seller that are pending in any court of
law or in equity or before any Governmental Entity that, if determined
adversely, would affect the ability of Seller to perform its obligations under
this Agreement or, except to a de minimis extent, affect the use or operation of
the Property;
(g) There are no leasing commissions due or outstanding with
respect to any lease of all or any portion of the Property; and
(h) Seller has not received any written notice in the
immediately preceding two (2) years to the effect that any condemnation, eminent
domain or similar proceedings are pending with respect to the Property.
Seller shall deliver a certification to Purchaser at Closing
indicating whether as of the Closing, there have been any material changes in
circumstances relating to such representations and warranties between the date
hereof and the Closing Date, provided that any such change in circumstance shall
not give rise to any liability whatsoever of Seller to Purchaser, except that
Purchaser shall have any rights expressly provided for in this Agreement.
9.3 Representations, Warranties and Covenants of Purchaser. Purchaser
represents and warrants to Seller that the following matters are true and
correct as of the execution of this Agreement and will also be true and correct
as of the Closing Date:
(a) Purchaser is a Delaware corporation duly organized and
validly existing and in good standing under the laws of the State of Delaware
and qualified to do business under the laws of the State of New York. Purchaser
has the requisite power and authority to execute and deliver and to perform its
obligations under this Agreement and all instruments and other documents
executed and delivered, or to be executed and delivered, by Seller in connection
with this Agreement and Purchaser's performance of the transactions contemplated
hereby (and thereby), have been duly authorized by all necessary corporate
action of Purchaser;
16
(b) This Agreement is, and all the documents executed by
Purchaser which are to be delivered to Seller at the Closing will be, duly
executed and delivered by Purchaser, and is and will be legal, valid and binding
obligations of Purchaser enforceable against Purchaser in accordance with their
respective terms (except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium and other principles relating to
or limiting the right of contracting parties generally) and does not and will
not violate any provisions of any agreement to which Purchaser is a party or to
which it is subject. Purchaser is not subject to any law, order, decree or
restriction which prohibits or would be violated by this Agreement or
consummation of the transactions contemplated hereby; and
(c) There are no voluntary or involuntary Bankruptcy Actions
pending against Purchaser.
9.4 Acknowledgments of Purchaser; As-Is, Where-Is.
(a) Purchaser hereby expressly acknowledges and agrees that,
except as otherwise expressly set forth in this Agreement, as reliance thereon
and enforcement thereof is expressly limited in this Agreement, neither Seller,
nor anyone acting for or on behalf of Seller, has made any representation,
warranty, covenant, agreement, promise or statement, express or implied, to
Purchaser, or to anyone acting for or on behalf of Purchaser, concerning (i) the
Property's condition, merchantability, habitability, fitness or development for
a particular use; (ii) the value, profitability or marketability of the
Property; (iii) any environmental condition, whether latent or observable; or
(iv) compliance with any environmental protection, pollution or land use laws,
rules, regulations, orders or requirements, including (but in no way limited to)
those pertaining to the handling, generating, treating, storing or disposing of
any Hazardous Materials. Except as otherwise expressly provided in this
Agreement, as a material inducement to the execution and delivery of this
Agreement by Seller, the Property to be sold to Purchaser pursuant to this
Agreement is sold and transferred "AS-IS, WHERE-IS AND WITH ALL FAULTS," without
any representation or warranty by, or recourse of any kind or nature against,
Seller or any other party.
(b) Purchaser hereby expressly acknowledges and agrees that in
entering into this Agreement, Purchaser has not, except as expressly set forth
in this Agreement, as reliance thereon and enforcement thereof is expressly
limited in this Agreement, relied on, and shall not be entitled to rely on, any
oral or written representation, warranty, promise or statement, express or
implied, of Seller, or anyone acting for or on behalf of Seller, as to (i) the
quality, nature, adequacy or physical condition of the Property, including (but
in no way limited to) the structural elements, foundation, roof, appurtenances,
access, landscaping, parking facilities or the electrical, mechanical, HVAC,
telecommunications, plumbing, sewage or utility system, facilities or appliances
at the Property, if any; (ii) the quality, nature, adequacy or physical
condition of soils or the existence of ground water at the Property; (iii) the
existence, quality, nature, adequacy or physical condition of any utilities
serving the Property; (iv) the development potential of Property, its
habitability, merchantability or fitness or the suitability or adequacy of the
Property for any particular purpose; (v) the zoning or other legal status of the
Property; (vi) the Property's or its operations' compliance with any Legal
Requirement or any applicable covenants, conditions or restrictions of any
Person; (vii) the quality of any labor or materials relating in any way to the
Property; or (viii) the condition of title to the Property or the nature,
17
status and extent of any easement, right-of-way, lease, right of redemption,
possession, lien, encumbrance, license, reservation, covenant, condition,
restriction or other matter affecting title to the Property and that all matters
concerning the Property have been or shall be independently verified by
Purchaser prior to the Closing and that Purchaser shall, except as expressly set
forth in this Agreement, purchase the Property on Purchaser's own prior
investigation and examination of the Property (or Purchaser's election not to do
so).
(c) SELLER DOES NOT MAKE AND HAS NOT MADE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE COMPLIANCE OR
NON-COMPLIANCE OF THE PROPERTY WITH THE AMERICANS WITH DISABILITIES ACT, OR ANY
OTHER LEGAL REQUIREMENT REGULATING, RELATING TO OR IMPOSING LIABILITY OR
STANDARDS OF CONDUCT CONCERNING ACCESS AND ACCOMMODATION FOR DISABLED PERSONS.
(d) Seller shall not be liable or bound in any manner by any
oral or written "setups" or information pertaining to the Property furnished by
the agents or representatives, their agents or representatives, any real estate
broker, or other person unless otherwise set forth in this Agreement or in any
document delivered at Closing.
(e) Purchaser hereby expressly acknowledges and agrees that,
except for Seller's representations and warranties expressly set forth in this
Agreement, as reliance thereon and enforcement thereof is expressly limited in
this Agreement, Purchaser waives, and Seller disclaims, all warranties of any
type or kind whatsoever with respect to the Property, whether express or
implied, including, by way of description but not limitation, those of fitness
for a particular purpose and use.
(f) Purchaser acknowledges that Purchaser has had an adequate
opportunity to make such legal, factual and other inquiries and investigations
as Purchaser deems necessary, desirable or appropriate with respect to the
Property. Such inquiries and investigations of Purchaser shall be deemed to
include, but shall not be limited to, any leases and contracts pertaining to the
Property, the physical components of all portions of the Property, the condition
of the Property (including environmental), the existence of any wood destroying
organisms at the Property, such state of facts as an accurate survey and
inspection would show, zoning ordinances, resolutions and regulations of the
Town of Huntington, County of Suffolk and State of New York and the value and
marketability of the Property.
(g) Purchaser acknowledges and agrees that, except as
expressly provided in this Agreement, Seller shall not have any liability or
other obligation whatsoever with respect to any reports and/or materials, (i)
obtained by or on behalf of Seller and delivered (or otherwise made available)
to Purchaser or (ii) obtained by or on behalf of Purchaser (or any of its
Affiliates), including, without limitation, the Phase I Environmental Site
Assessment dated December 17, 2004 prepared by Airtek Environmental Corp., and,
except to the extent expressly required pursuant to this Agreement, neither
Seller nor any of its Affiliates has any obligation to make any changes,
alterations or repairs to the Property or any portion thereof, except to the
extent expressly required pursuant to this Agreement, or to cure any violations
of Legal Requirements or to comply with the requirements of any insurer.
Purchaser acknowledges and
18
agrees that, except as otherwise expressly provided in this Agreement, Purchaser
is solely responsible for obtaining any approval or permit necessary for
acceptance by it of any property directly or indirectly and for any repairs or
alterations necessary to obtain the approval or permit, all at Purchaser's sole
cost and expense.
(h) The provisions of this Section 9.4 shall survive the
Closing.
9.5 Release.
(a) Without limiting the provisions of Section 9.4, effective
as of the Closing Date, Purchaser, for itself and any of its successors and
assigns and their Affiliates, hereby irrevocably and absolutely waives its right
to recover from, and forever releases and discharges, and covenants not to file
or otherwise pursue any legal action against, Seller, SAirGroup AG and/or their
Affiliates or any direct or indirect partner, member, manager, trustee,
director, shareholder, controlling person, officer, attorney, employee, agent,
broker, representative (including, without limitation, the Liquidator) or
Affiliate of any of the foregoing, and any of their respective heirs,
successors, personal representatives and assigns (each, a "SELLER PARTY", and
collectively, the "SELLER PARTIES"), with respect to any and all suits, actions,
proceedings, investigations, demands, claims, liabilities, fines, penalties,
liens, judgments, losses, injuries, damages, settlement expenses or costs of
whatever kind or nature, whether direct or indirect, known or unknown,
contingent or otherwise (including any action or proceeding brought or
threatened or ordered by any Governmental Entity), including, without
limitation, attorneys' and experts' fees and expenses, and investigation and
remediation costs that may arise on account of or in any way be connected with
the condition of the Property or any portion thereof as of the Closing Date
(collectively, "CLAIMS"), including, without limitation, the physical,
environmental and structural condition of the Property or any Legal Requirement
applicable thereto, or any other matter relating to the use, presence, discharge
or release of Hazardous Materials on, under, in, above or about the Property.
The foregoing provision of this Section 9.5 shall not apply with respect to any
Claim by Purchaser against (i) any Seller Party for any act of that Seller Party
that constitutes fraud or (ii) Seller for any breach of the representations,
warranties, covenants or other agreements set forth in this Agreement that
expressly survive the Closing, but only for the period of such survival.
Purchaser expressly waives the benefits of any provision or principle of a Legal
Requirement that may limit the scope or effect of the foregoing waiver and
release.
(b) The provisions of this Section 9.5 shall survive the
Closing.
10. CASUALTY, CONDEMNATION
10.1 If, prior to the Closing, any part of the Property is damaged or
destroyed by earthquake, flood, landslide, fire or other casualty (a
"CASUALTY"), or any portion of the Property is taken by eminent domain or
condemnation proceeding (a "CONDEMNATION"), and such Casualty or Condemnation is
a Non-Material Event (as hereinafter defined), (a) Purchaser shall not have any
right or option to terminate this Agreement due to such Casualty or Condemnation
and this Agreement shall remain in full force and effect, (b) the parties shall
consummate the Transfer without any reduction in the Purchase Price and (c) at
the Closing Purchaser shall accept the Property "AS-IS, WHERE-IS" subject to
such Casualty or Condemnation (or so much of the Property as remains after such
Casualty or Condemnation), as the case may be.
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Notwithstanding the foregoing, at the Closing, (i) in the case of a Casualty,
(A) Seller shall turn over and/or assign to Purchaser (without representation,
warranty or recourse against Seller) the right to receive, and Purchaser shall
be entitled to receive and keep, all casualty insurance proceeds paid or payable
to Seller, if any, under insurance policy(ies) with respect to such Casualty
(and Seller shall have no obligation to repair such casualty), (B) Seller shall
credit to Purchaser at the Closing the amount of any insurance deductible and
(C) Purchaser shall pay to Seller at Closing the amount of the actual,
reasonable expenses incurred by Seller in making repairs occasioned by such
Casualty which are required by applicable Legal Requirements, or which Seller,
in its reasonable discretion, deems necessary for public safety reasons or to
maintain or preserve the Property to the standards as of the date hereof, or,
(ii) in the case of a Condemnation, (A) Seller shall turn over and/or assign to
Purchaser (without representation, warranty or recourse against Seller) the
right to receive, and Purchaser shall be entitled to receive and keep, all
condemnation awards, if any, paid or payable to Seller with respect to such
Condemnation, and (B) Purchaser shall pay to Seller at Closing the amount of the
actual, reasonable expenses incurred by Seller in making repairs to the Property
which are required by applicable Legal Requirements, or which Seller, in its
reasonable discretion, deems necessary for public safety reasons or to maintain
or preserve to the standards as of the date hereof, occasioned by such
Condemnation.
10.2 If a Casualty occurs, or all or any portion of the Property is
taken by Condemnation prior to the Closing, Seller shall notify Purchaser of
such fact promptly after obtaining knowledge thereof and, if and only if such
Casualty constitutes a Material Event, Purchaser shall have the right to
terminate this Agreement by giving Notice to Seller (and to Escrow Agent) not
later than ten (10) days after receipt of Seller's Notice of such Casualty which
is a Material Event, in which event this Agreement shall terminate on the date
of the giving of such Notice by Purchaser (except for those provisions of this
Agreement that survive any termination of this Agreement) and Escrow Agent shall
disburse the Deposit to Purchaser within five (5) Business Days after Escrow
Agent receives Notice of such termination. If Purchaser fails to elect to
terminate this Agreement as aforesaid within such ten (10) day period, Purchaser
shall be deemed to have waived such termination right with respect to such
Casualty or Condemnation and the provisions of Section 10.1 shall apply as if
such Casualty or Condemnation were a Non-Material Event. A "MATERIAL EVENT" with
respect to the Property means (a) any damage by Casualty if the cost of
restoration or repair of such Casualty is reasonably anticipated to exceed
$562,500 to repair or restore or (b) any taking by Condemnation (i) of at least
five (5%) percent of the gross number of square feet contained in the Building,
(ii) that would decrease the parking spaces now existing or potentially existing
on the Property to a level that is not in compliance with applicable Legal
Requirements and (iii) that would eliminate access to the Property from all
public streets, roads, avenues, alleys, expressways and highways. A
"NON-MATERIAL EVENT" with respect to the Property means any Casualty or
Condemnation which is not a Material Event.
10.3 Seller shall promptly provide to Purchaser copies of any
correspondence relating to any claims related to any Casualty or Condemnation
under the relevant insurance policies or against the Governmental Entity
effecting the Condemnation, and shall promptly advise Purchaser of all material
developments concerning such claims. Seller shall not settle or compromise any
claims related to any Casualty or Condemnation under the relevant insurance
policies or against the Governmental Entity effecting the Condemnation without
Purchaser's consent, which consent may not be unreasonably withheld, delayed or
conditioned. Seller shall
20
cooperate with Purchaser to effect the assignment of the right to receive
insurance or condemnation proceeds to Purchaser and will execute and deliver all
such instruments as are reasonably necessary to complete that assignment.
10.4 The provisions of this Section 10 shall be construed as express
provisions in lieu of the provisions of the Uniform Vendor and Purchaser Risk
Act, which the parties agree shall be inapplicable to the transactions
contemplated hereby.
10.5 The provisions of this Section 10 shall survive the Closing, but
not the earlier termination of this Agreement.
11. ESCROW AGENT
11.1 Escrow Agent. Escrow Agent accepts its appointment hereunder
subject to the following conditions:
(a) Escrow Agent shall hold the Deposit and all interest
accrued thereon in escrow in an interest bearing escrow account maintained at a
bank selected by Escrow Agent that is insured by the Federal Deposit Insurance
Corporation (the "DEPOSITORY") (but Escrow Agent shall be under no duty to
maximize the rate of return on the Deposit or to insure against any reduction in
the value of the Deposit by reason of any loss in value of any security in which
the Deposit is invested). The Escrow Agent may commingle the Deposit with escrow
funds of others.
(b) Escrow Agent shall pay over or apply the Deposit in
accordance with the terms of this Agreement. All interest accrued on the Deposit
shall be paid to the party entitled to payment of the Deposit. The party who
receives the interest accrued on the Deposit shall pay all income taxes thereon.
(c) Escrow Agent shall be liable only for loss or damage
resulting from the malfeasance or gross negligence of Escrow Agent or its
partners or employees and shall not be liable for loss or damage resulting from:
(i) any good faith act or forbearance of Escrow Agent or its partners or
employees; (ii) any default, error, action or omission of any party, other than
Escrow Agent; (iii) the expiration of any time limit or other delay which is not
solely caused by the failure of Escrow Agent to proceed in its ordinary course
of business, and in no event where such time limit is not disclosed in writing
to the Escrow Agent; (iv) Escrow Agent's compliance with all attachments, writs,
orders, judgments or other legal process issued out of any court; or (v) Escrow
Agent's assertion or failure to assert any cause of action or defense in any
judicial or administrative proceeding.
(d) Investment of the Deposit shall be subject to the rules,
regulations, policies and procedures of the Depository.
(e) If for any reason any party makes a written demand upon
Escrow Agent for payment of any part of the Deposit, Escrow Agent shall give at
least ten (10) Business Days' prior written notice to the other party hereto of
Escrow Agent's intention to pay over the Deposit in accordance with such demand
on a stated date (which date shall be at least ten (10) Business Days after the
giving of such notice to the other party). If Escrow Agent does not receive a
21
written objection from the other party to the proposed payment before such
stated date, Escrow Agent is hereby authorized and directed to pay the Deposit
to the party claiming to be entitled thereto. If Escrow Agent does receive
written objection before such payment, Escrow Agent shall continue to hold the
Deposit until otherwise directed by written instructions from each of Seller and
Purchaser or until resolution of any dispute by judicial or non-judicial
procedure agreed upon by Seller and Purchaser and delivery of a copy of any
final judicial order or non-judicial decision to Escrow Agent, whereupon Escrow
Agent shall disburse the Deposit as provided in such joint instructions, order
or decision.
(f) If Escrow Agent is made a party to any judicial,
non-judicial or administrative action, hearing or process based on acts of any
of the other parties hereto and not on the malfeasance and/or gross negligence
of Escrow Agent in performing its duties hereunder, the expenses, costs and
reasonable attorney fees incurred by Escrow Agent in responding to such action,
hearing or process may be deducted from the funds held hereunder and the
party/parties whose alleged acts are a basis for such proceedings shall
indemnify, save or hold Escrow Agent harmless from said expenses, costs and fees
so incurred.
(g) It is expressly understood that Escrow Agent acts
hereunder as a stakeholder for the convenience and accommodation of the parties
hereto and as a depository only and is not responsible or liable in any manner
whatsoever for the sufficiency, correctness, genuineness or validity of any
instrument received by or deposited with it, or for the form of execution of
such instruments, or for the identity, authority or right of any person
executing or depositing the same, or for the terms and conditions of any
instrument pursuant to which Escrow Agent may act.
(h) The duties of Escrow Agent are purely ministerial. Escrow
Agent shall not have any duties or responsibilities except those set forth in
this Agreement and shall not incur any liability in acting upon any signature,
notice, request, waiver, consent, receipt or other paper or document believed by
Escrow Agent to be genuine, and Escrow Agent may assume that any person
purporting to give it any notice on behalf of any party in accordance with the
provisions hereof has been duly authorized to do so.
(i) Escrow Agent may resign upon ten (10) days' prior notice
to each of Seller and Purchaser and by (i) depositing the Deposit with any Court
or the Clerk of the County of New York, New York or (ii) transferring the
Deposit to a bank or other institution acceptable to Seller and Purchaser which
shall have assumed in writing the obligations of Escrow Agent pursuant to this
Agreement. Upon the effective date of such resignation, Escrow Agent shall have
no further obligations arising hereunder and shall be released from all
liability arising out of this Agreement, except its misapplication of any
portion of the Deposit or its gross negligence or willful misconduct.
(j) Escrow Agent may act or refrain from acting in respect of
any matter referred to herein in full reliance upon and by and with the advice
of counsel which may be selected by it.
(k) Seller and Purchaser hereby jointly and severally agree,
with the right of contribution against each other, to indemnify and save Escrow
Agent harmless from any and all
22
loss, damage, claim, liability, judgment and other cost and expense of every
kind and nature which may be incurred by Escrow Agent by reason of its
acceptance of, and its performance under, this Agreement (including, without
limitation, reasonable attorneys' fees), except in the case of its own
malfeasance or gross negligence.
(l) Purchaser acknowledges that Escrow Agent is also counsel
to Seller in connection with this transaction. Notwithstanding that fact,
Purchaser agrees that Escrow Agent may continue to act as counsel to Seller in
connection herewith and in connection with any other transaction between Seller
and Purchaser and in connection with any dispute, action, cause of action or
claim arising out of this transaction or any other transaction between Seller
and Purchaser, provided that the matter at issue does not involve the
performance of Escrow Agent's services hereunder.
(m) Upon delivery of the Deposit in accordance with the terms
of this Agreement, Purchaser and Seller hereby release Escrow Agent from all
obligation and liability hereunder. In furtherance of the foregoing, at the
Closing, Seller and Purchaser shall execute and deliver to Escrow Agent an
agreement in writing (i) authorizing Escrow Agent to deliver the Deposit to
Seller and (ii) releasing Escrow Agent from any liability in connection with the
performance of its obligations hereunder, and the Deposit shall be paid by
Escrow Agent as provided herein.
12. BROKER'S COMMISSION
12.1 Seller represents and warrants to Purchaser that Seller has not
engaged or dealt with, or made any oral or written promises to, any broker,
finder or like agent in connection with the transactions contemplated by this
Agreement other than Sutton & Edwards (the "BROKER"). Except as set forth in
Section 12.2 below, Seller shall be solely responsible for any payments to
Broker, including without limitation, any commission, finder's fee or other
compensation paid or owed to the Broker pursuant to a separate agreement. Seller
shall indemnify, defend and hold Purchaser harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys' fees and
costs) incurred by Purchaser by reason of any breach or inaccuracy of the
representations and warranties made by Seller in this Section 12.1.
12.2 Purchaser represents and warrants to Seller, its principals,
shareholders, representatives and agents that (a) Purchaser, and any of its
employees or associates, has not engaged or dealt with, or made any oral or
written promises to, any broker, finder or like agent in connection with the
transactions contemplated by this Agreement other than Broker and (b) Purchaser
owes no payments to Broker, including without limitation, any commission,
finder's fee or other compensation payable to the Broker with respect to any
services provided by any representative of Broker as a "buyer's broker" or
consultant to Purchaser. Purchaser shall indemnify, defend and hold Seller
harmless from and against any losses, damages, costs and expenses (including,
but not limited to, attorneys' fees and costs) incurred by Seller by reason of
any breach or inaccuracy of the representations and warranties made by Purchaser
in this Section 12.2.
12.3 The provisions of this Section 12 shall survive the Closing and/or
the termination of this Agreement.
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13. MISCELLANEOUS
13.1 Notices. Any and all notices, requests or other communications
hereunder (each, a "NOTICE") shall be deemed to have been duly given only if
transmitted in writing, by hand delivery or by nationally recognized overnight
courier service, in either case with receipt therefor, or by telecopier with a
confirmation copy simultaneously transmitted by one of the foregoing methods, as
follows:
If to Seller: Swissair, Swiss Air Transport Company Ltd.
in debt restructuring liquidation
c/o Hartmann Muller Partner
Zurichbergstrasse 66
CH 8044 Zurich
Attention: Dr. Niklaus B. Muller
Phone: 41 (43) 268 83 00
Fax: 41 (43) 268 83 01
and
c/o Wenger Plattner
Goldbach-Center
Seestrasse 39
8700 Kusnacht-Zurich
Switzerland
Attention: Dr. Karl Wuthrich
Phone: 41 (0) 43 222-3800
Fax: 41 (0) 43 222-3801
with a copy to: Hogan & Hartson L.L.P.
875 Third Avenue
New York, New York 10022
Attention: Ira S. Greene, Esq. and
Michael J. Waters, Esq.
Phone: 212-918-3000
Fax: 212-918-3100
24
If to Purchaser: OSI Pharmaceuticals Inc.
58 South Service Road, Suite 110
Melville, New York 11747
Attention: Robert van Nostrand
Phone: 631-962-2000
Fax: 631-962-2024
with a copy to: Ruskin Moscou Faltischek, PC
190 EAB Plaza
Uniondale, New York 11556-0190
Attention: Eric Rubenstein, Esq.
Phone: 516-663-6513
Fax: 516-663-6713
If to Escrow Agent: Hogan & Hartson L.L.P.
875 Third Avenue
New York, New York 10022
Attention: Ira S. Greene, Esq. and
Michael J. Waters, Esq.
Phone: 212-918-3000
Fax: 212-918-3100
or such other address as either party may furnish to the other by notice in
accordance with this Section 13.1. Any Notice given hereunder shall be deemed
given, (a) if sent by recognized overnight courier service, one (1) Business Day
after delivery to such carrier, or, in the event of a Notice to Seller, three
(3) Business Days after delivery to such carrier for international priority
delivery, (b) if personally delivered on a Business Day, the day of delivery or,
if delivered on other than a Business Day, on the first Business Day after the
day of delivery; (c) if delivered by electronic facsimile transmitted on a
Business Day, the day of transmittal if prior to 5:00 P.M. Eastern Standard
Time, otherwise the next Business Day after the day of transmittal; and (d) if
by electronic facsimile transmitted on other than a Business Day, the next
Business Day regardless of the time of day of the transmittal. All costs and
expenses of the delivery of Notices hereunder shall be borne and paid for by the
delivering party. Any counsel designated respectively by Seller or Purchaser
above, or such counsel designated by Notice to the parties, is hereby authorized
to give Notices hereunder on behalf of its respective client.
13.2 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable conflicts of law principles thereof.
13.3 Interpretation. When a reference is made in this Agreement to a
Section, Exhibit or Schedule such reference will be to a Section, Exhibit or
Schedule of or to this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and will not affect in any way the meaning or interpretation of this
Agreement. All words or terms used in this Agreement, regardless of the number
or gender in which they are used, shall be deemed to include any other number
and any other gender as the context may require. The plural of any term
25
defined in the singular, and the singular of any term defined in the plural,
shall have a meaning correlative to such defined term. Whenever the words
"include", "includes" or "including" are used in this Agreement, they will be
deemed to be followed by the words "without limitation." No provision of this
Agreement will be interpreted in favor of, or against, any of the parties to
this Agreement by reason of the extent to which such party or its counsel
participated in the drafting thereof or by any reason of the extent to which
such provision is consistent with any prior draft hereof.
13.4 Binding Effect. Subject to the provisions of Section 13.11 below,
this Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective legal representatives, heirs, executors,
administrators, successors and permitted assigns.
13.5 Entire Agreement; No Third-Party Beneficiaries. This Agreement and
the Exhibits and Schedules attached hereto contain the final and entire
agreement between the parties hereto with respect to the sale and purchase of
the Property and are intended to be an integration of all prior negotiations and
understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement. Purchaser, Seller and their agents shall not
be bound by any terms, conditions, statements, warranties or representations,
oral or written, not contained herein. This Agreement shall not confer any
rights or remedies upon any Person other than the parties hereto, the Persons
entitled to indemnification hereunder, and in each case their respective
successors, heirs, legal representatives and permitted assigns.
13.6 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision will be interpreted
to be only so broad as is enforceable.
13.7 Attorneys' Fees. If any action is brought by either party against
the other in connection with or arising out of this Agreement or any of the
documents and instruments delivered in connection herewith or in connection with
the transactions contemplated hereby, the prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees and expenses incurred in
connection with the prosecution or defense of such action. The provisions of
this Section 13.7 shall survive the Closing or earlier termination of this
Agreement.
13.8 Enforcement; Jurisdiction.
(a) Any legal action or proceeding with respect to this
Agreement shall be brought in a Federal or state court of competent jurisdiction
sitting in the City, County and State of New York (including the appellate
courts thereof) (each, a "NEW YORK COURT") and by execution and delivery of this
Agreement, each party to this Agreement hereby accepts, generally and
unconditionally, the jurisdiction of the New York Courts. Each party to this
Agreement hereby expressly and irrevocably submits the person of such party to
this Agreement to the personal jurisdiction of the New York Courts in any suit,
action or proceeding arising, directly or indirectly, out of or relating to this
Agreement. To the extent permitted under applicable law, this consent to
personal jurisdiction shall be self-operative and no further
26
instrument or action, other than service of process in one of the manners
specified in this Agreement or as otherwise permitted by law, shall be necessary
in order to confer jurisdiction upon the person of such party to this Agreement
in any such New York Court.
(b) To the fullest extent permitted under applicable law, each
party to this Agreement irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in a New York Court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum, any claim that it is not personally
subject to the jurisdiction of any such New York Court or that this Agreement or
the subject matter hereof may not be enforced in or by such New York Court.
(c) The provisions of this Section 13.8 shall survive the
Closing or the earlier termination of this Agreement.
13.9 Waiver. No waiver by either party of the other party's breach of
any term, covenant or condition contained in this Agreement shall be deemed to
be a waiver of any subsequent breach of the same or any other term, covenant or
condition of this Agreement. In addition, no waiver of any of the provisions of
this Agreement shall be valid unless the same is in writing and is signed by the
party against which it is sought to be enforced.
13.10 Amendment. This Agreement may only be modified or amended by a
written instrument duly executed by authorized representatives of the parties.
13.11 Assignments. Purchaser may not assign this Agreement, nor any of
the rights, interests or obligations hereunder, directly or indirectly
(including without limitation, any direct or indirect change in equity
structure, ownership or control of any Person which is the Purchaser), in whole
or in part, by operation of law or otherwise, without Seller's prior written
consent to any Person, and any such assignment made without Seller's consent
shall be void ab initio. Notwithstanding the foregoing, Purchaser shall have the
right to designate a wholly-owned Affiliate formed and validly existing in the
United States to take title to the Property, provided, that in the event of any
such assignment, Purchaser will remain liable to Seller with respect to all
liabilities and obligations under this Agreement. Any assignment permitted by
the immediately prior sentence shall only be permitted and deemed effective if
Purchaser shall notify Seller of same no later than five (5) Business Days prior
to the Closing and such notice is accompanied by (a) a copy of such assignment
document (whereby assignee assumes all obligations of Purchaser under this
Agreement) and (b) a certification from assignee that any such assignee does not
violate the provisions of the foregoing sentence.
13.12 Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR
CONTRACT) BROUGHT BY SUCH PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION
13.12 SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION OF THIS AGREEMENT.
27
13.13 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Agreement, it is understood and agreed that none of the
employees, directors, officers, members, partners, managers, principals,
consultants, shareholders, advisors, attorneys, trustees, or agents of Seller,
or any other person or entity, shall have any personal liability or obligation
whatsoever for obligations entered into by or on behalf of Seller.
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that none of the employees, directors, officers, members,
partners, managers, principals, consultants, shareholders, advisors, attorneys,
trustees or agents of Purchaser, or any other Person, shall have any personal
liability or obligation whatsoever for any obligations under this Agreement or
under any documents delivered at Closing, and the individual assets of such
parties shall not be subject to any claims of any Person relating to such
obligations. However, the foregoing shall not in any way limit the parties'
obligations and liabilities under this Agreement. The provisions of this Section
13.13 shall survive the Closing or any early termination of this Agreement.
13.14 No Recording or Notice of Pendency. Seller and Purchaser agree
that neither this Agreement nor any memorandum or notice thereof shall be
recorded. Purchaser agrees (a) not to file any notice of pendency, except in
connection with Purchaser's right to commence an action seeking specific
performance under Section 7.4 of this Agreement, or other instrument or judgment
against the Property or any portion thereof in connection herewith and (b) to
indemnify Seller against all costs, expenses and damages, including without
limitation, reasonable attorneys' fees and disbursements incurred by Seller by
reason of the filing by Purchaser of such notice of pendency or other
instrument. The provisions of this Section shall survive the Closing or any
early termination of this Agreement.
13.15 Confidentiality; Public Announcements.
(a) Purchaser and Seller shall hold the Confidential
Information in confidence, and in connection therewith Purchaser and Seller
shall not show this Agreement or the other Confidential Information to any third
party other than as set forth below. The parties acknowledge that any existing
confidentiality agreement between Seller and Purchaser or any of its affiliates
with respect to the Property shall be terminated as of the date hereof and shall
be of no further force and effect.
(b) Notwithstanding the foregoing, Purchaser and Seller may
make the Confidential Information available to their respective employees,
officers and principals and those Disclosure Parties who, with respect to
Purchaser, in Purchaser's sole judgment and, with respect to Seller, in Seller's
sole judgment, need to know such information for the purpose of evaluating the
transactions contemplated hereby. If Purchaser or Seller make the Confidential
Information available to any Disclosure Party, then Purchaser or Seller, as the
case may be, shall inform such Disclosure Party to keep such Confidential
Information strictly confidential in accordance with this Agreement. Purchaser
or Seller, as the case may be, shall be responsible for any violation of this
provision by their respective Disclosure Parties but not for punitive or
consequential damages. In addition, Purchaser or Seller, as the case may be,
shall be entitled to disclose any Confidential Information which (i) was or
becomes generally available to the public other than as a result of disclosure
by the other party or any of its employees, agents, representatives or
consultants to the public or to any third party in violation of this Agreement;
(ii) becomes available to Purchaser or Seller, as the case may be, from a source
other than the
28
other party or its representatives, provided that Purchaser or Seller, as the
case may be, has no reason to believe (in its reasonable judgment) that such
source is itself bound by any nondisclosure obligation in favor of the other
party; (iii) was rightfully in the possession of Purchaser or Seller, as the
case may be, prior to its receipt from the other party or its representatives;
(iv) Purchaser or Seller, as the case may be, is required to disclose by
Requirement of Law or by any Governmental Entity of competent jurisdiction or to
comply with any applicable securities law or regulations, provided, to the
extent practical, Purchaser or Seller, as the case may be, shall provide the
other party with reasonable prior written notice of such disclosure obligation;
or (v) is disclosed in connection with obtaining the IDA Transfer or the
Approval Order.
(c) Upon the termination of this Agreement, the Confidential
Information and all copies thereof, except for that portion thereof which
consists of analyses, compilations, studies or other documents prepared by
Purchaser or its agents, will be returned to Seller upon request without
Purchaser retaining any copies thereof. That portion of the Confidential
Information which consists of analyses, compilations, studies or other documents
prepared by Purchaser or its agents will be held by Purchaser and kept
confidential and subject to the terms of this Agreement.
(d) Neither party shall make or authorize a press release or
publicity notice or announcement of the terms of the Agreement, or the
transactions contemplated hereby, prior to the Closing, without the consent of
the other party, which consent shall not be unreasonably withheld or delayed.
The party making such release or announcement shall furnish to the other party
advance copies of any release or other publicity notice or announcement which it
proposes to make public with respect to this Agreement and/or the transactions
contemplated hereby.
(e) The provisions of this Section 13.15 shall survive the
Closing or termination of this Agreement.
13.16 Further Assurances. If at any time prior to or after the Closing
any further action is necessary or desirable to carry out the purposes of this
Agreement or any other documents or agreements reasonably requested by either
Seller or Purchaser in order to consummate the transactions contemplated by this
Agreement, the parties to this Agreement shall take all such necessary action;
provided, however, that such further assurances do not increase such party's
obligations or liabilities hereunder or decrease such party's rights hereunder,
other than to a de minimis extent. The provisions of this Section 13.16 shall
survive the Closing.
13.17 Time of the Essence; Calculation of Time Periods. The parties
hereto acknowledge and agree that, except as otherwise provided in this
Agreement, TIME IS OF THE ESSENCE for the performance of all actions (including,
without limitation, the giving of notices, the delivery of documents and the
funding of money) required or permitted to be taken under this Agreement.
Whenever action must be taken (including, without limitation, the giving of
notice, the delivery of documents or the funding of money) under this Agreement,
prior to the expiration of, by no later than or on a particular date, unless
otherwise expressly provided in this Agreement, such action must be completed by
5:00 p.m. (New York time) on such date, provided that such action must be
completed by 3:00 p.m. (New York Time) with respect to the payment of the
Balance and other payments by Purchaser on the Closing Date. However,
29
notwithstanding anything to the contrary herein, whenever action must be taken
(including, without limitation, the giving of Notice, the delivery of documents
or the funding of money) under this Agreement prior to the expiration of, by no
later than or on a particular date that is not a Business Day, then such date
shall be extended until the immediately following Business Day.
13.18 No Offer. This Agreement shall not be deemed an offer or binding
upon Seller or Purchaser until this Agreement is fully executed and delivered by
Seller and Purchaser.
13.19 Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. This Agreement may
be executed by facsimile signature.
13.20 Authority. Each person signing below acknowledges that he or she
has the authority to bind his or her respective party to the terms and
conditions of this Agreement.
13.21 OFAC Policy. Neither Purchaser nor any of its constituents have
engaged in any dealings or transactions, directly or indirectly, (a) in
contravention of any U.S., international or other money laundering regulations
or conventions, including, without limitation, the United States Bank Secrecy
Act, the United States Money Laundering Control Act of 1986, the United States
International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, Trading with the Enemy Act (50 U.S.C. Section 1 et seq., as amended), or
any foreign asset control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto, or (b) in contravention of Executive Order No.
13224 dated September 24, 2001 issued by the President of the United States
(Executive Order Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), as may be amended or
supplemented from time to time ("ANTI-TERRORISM ORDER"), or on behalf of
terrorists or terrorist organizations, including those persons or entities that
are included on any relevant lists maintained by the United Nations, North
Atlantic Treaty Organization, Organization of Economic Cooperation and
Development, Financial Action Task Force, U.S. Office of Foreign Assets Control,
U.S. Securities & Exchange Commission, U.S. Federal Bureau of Investigation,
U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country
or organization, all as may be amended from time to time. Neither Purchaser nor
any of its constituents (i) are or will be conducting any business or engaging
in any transaction with any person appearing on the U.S. Treasury Department's
Office of Foreign Assets Control list of restrictions and prohibited persons, or
(ii) are a person described in section 1 of the Anti-Terrorism Order, and to the
best of Purchaser's knowledge, neither Purchaser nor any of its Affiliates have
engaged in any dealings or transactions, or otherwise been associated with any
such person. The provisions of this Section 13.21 shall survive the Closing or
earlier termination of this Agreement.
13.22 Survival. Except as otherwise expressly set forth in this
Agreement, none of the representations, warranties, covenants, indemnities,
agreements or obligations of Seller or Purchaser made in this Agreement shall
survive the Closing, the same being merged into the conveyance of the Property.
13.23 RADON GAS. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT IS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITY,
30
MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF
RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
THE STATE. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
13.24 FIRPTA. Purchaser agrees that it shall not withhold more than the
lesser of (a) the amount required to be withheld pursuant to Section 1445(a) of
the Internal Revenue Code of 1986, as amended, or (b) the amount, if any,
determined to be due by the Internal Revenue Service pursuant to a certificate
of exemption issued under Treasury Regulation Section 1.1445-3 (the "CERTIFICATE
OF EXEMPTION"). In the event that, prior to the Closing, the Internal Revenue
Service grants a Certificate of Exemption from the withholding provisions of
Section 1445 with respect to Purchaser or directs a deposit of any amount
received to be withheld by Purchaser, Purchaser agrees that it shall, as
provided in the Certificate of Exemption, either (i) not withhold any portion of
the Purchase Price pursuant to Section 1445(a) or Treasury Regulation Section
1.1445-3 or (ii) if directed in the Certificate of Exemption, deposit any amount
required to be withheld by Purchaser at or prior to the Closing. Purchaser
further agrees that if it receives notice from Seller at or prior to the Closing
that Seller has applied for a Certificate of Exemption, Purchaser shall not
report or pay any amount withheld pursuant to this Section 13.24 to the Internal
Revenue Service until after the Internal Revenue Service has made a final
determination with respect to the application for the Certificate of Exemption.
The provisions of this Section 13.24 shall survive the Closing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
31
IN WITNESS WHEREOF, the undersigned, hereby accept, agree and execute
the above Agreement as of the day and year first above written.
SELLER:
SWISSAIR, SWISS AIR TRANSPORT CO. LTD.
IN DEBT RESTRUCTURING LIQUIDATION
By: /s/ Dr. Niklaus B. Muller
----------------------------------------
Name: Dr. Niklaus B. Muller
Title: Deputy Liquidator
PURCHASER:
OSI PHARMACEUTICALS INC.
By: /s/ Robert L. Van Nostrand
-----------------------------------------
Name: Robert L. Van Nostrand
Title: Vice President and
Chief Financial Officer
AGREEMENT BY ESCROW AGENT:
The undersigned hereby agrees to serve as Escrow Agent under the
foregoing Agreement of Sale and Purchase and to perform all duties and
obligations of Escrow Agent under the provisions of Section 11 thereof.
Dated: March 15, 2005
HOGAN & HARTSON L.L.P.
By: /s/ Michael J. Waters
---------------------------
EXHIBIT A
DESCRIPTION OF THE LAND
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Town of Huntington, County of Suffolk and State of New York, known and
designated as Lot 4 on a certain map entitled, "Map of Bewco Plat Situated in
the Town of Huntington - Suffolk County, N.Y.", made by Theodore S. Prime,
L.L.S., dated May 1972 and filed October 24, 1972 as Map No. 5811, which Lot is
more particularly bounded and described according to said Map as follows:
BEGINNING at a point at the corner formed by the intersection of the westerly
side of Pinelawn Road (as widened) with the northerly side of North Service Road
of the Long Island Expressway;
RUNNING THENCE North 86 degrees 15 minutes 07 seconds West along the northerly
side of the North Service Road of the Long Island Expressway for a distance of
372.37 feet;
RUNNING THENCE North 28 degrees 46 minutes 00 seconds West for a distance of
570.12 feet;
THENCE North 69 degrees 12 minutes 10 seconds East for a distance of 341.99 feet
to the westerly side of Pinelawn Road;
THENCE South 28 degrees 04 minutes 20 seconds East along the westerly side of
Pinelawn Road for a distance of 564.10 feet;
THENCE along the arc of a curve bearing to the left and having a radius of
2,713.60 feet for a distance of 65.52 feet; and
THENCE South 17 degrees 56 minutes 20 seconds East along the westerly side of
Pinelawn Road (as widened) for a distance of 94.97 feet to the point or place of
BEGINNING.
EXHIBIT B
CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the following
meanings when used herein with initial capital letters:
"AFFILIATE" shall mean, with respect to a specified Person, a Person
that directly, or indirectly through one or more intermediaries, (i) owns,
directly or indirectly, all of the legal and beneficial equity interests therein
and (ii) retains the power to direct the management and policies of such Person.
"BUSINESS DAY" shall mean a day other than Saturday, Sunday or any day
on which commercial banks in New York, New York are authorized or obligated to
close. In the event any period would begin or expire, or any action is required
to be taken by any party hereunder, on a day that is not a Business Day, such
period will be deemed to commence or expire or the action will not be required
to be taken, as the case may be, until the next Business Day.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, or any
corresponding provisions of succeeding law.
"CONFIDENTIAL INFORMATION" shall mean this Agreement and any
information, brochures, documents or other materials, pertaining to this
Agreement and the transactions contemplated hereby, including the Transfer,
Seller and/or the Property and its business, or to Purchaser and/or its
properties and business, heretofore or hereafter furnished or made available by
Seller to Purchaser or any Affiliate or by Purchaser to Seller or any Affiliate,
as the case may be, or any summary of the foregoing. Confidential Information
shall include the fact that discussions or negotiations concerning the sale of
the Property to Purchaser from Seller have taken place and the terms, covenants,
conditions, and other facts with respect to this Agreement, including without
limitation, the status of the sale of the Property.
"CONTRACTS" shall mean all management, service or maintenance
contracts, collective bargaining or other union agreements, and any and all
other contracts and agreements of every kind (except Leases) affecting the
Property or the operation thereof.
"DISCLOSURE PARTIES" shall mean (i) any of Purchaser's or Seller's
attorneys, appraisers, accountants, engineers, architects, agents, consultants,
contractors and advisors, (ii) potential tenants of the Building, (iii)
Purchaser's potential lenders or investors, but in no event by way of a mass
mailing or solicitation, and their respective employees, accountants, attorneys
and agents, (iv) Seller's lenders, principals, members, owners, investors,
trustees and receivers, (v) the IDA, (vi) any utility companies with respect to
providing utility service to the Property after the Closing and (vii) any other
parties to whom Purchaser or Seller deems it necessary to disclose Confidential
Information in order to effectuate the transactions described in this Agreement,
including, without limitation, with respect to Seller, any party to a Contract
or Permit, or any utility company.
B-1
"LEASES" shall mean any and all leases, subleases, tenancies,
concessions, licenses and occupancies (including without limitation any and all
modifications, amendments, supplements extensions or renewals thereof) affecting
the Property.
"GOVERNMENTAL ENTITY" shall mean any federal, state, county, municipal,
local governmental or quasi governmental authority or any other public body,
department, bureau, office, court, administrative or regulatory agency or
commission or other governmental authority or agency.
"HAZARDOUS MATERIALS" shall mean, individually or collectively, any
pollutant, contaminant, flammable, explosive or radioactive material, any
material defined or designated as a hazardous or toxic substance, chemical,
material or waste or term of similar import under any Legal Requirements or the
removal or remediation of which is required, or the manufacture, use,
maintenance, storage, treatment, disposal, release, ownership or handling of
which is restricted, prohibited, regulated or penalized by any Legal
Requirements, and shall include, without limitation, those substances included
within the definition of "hazardous substances", "extremely hazardous",
"hazardous materials", "hazardous waste" or "toxic substances" in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, the Resource Conservation and Recovery Act of 1976, as amended, such
other substances, materials and wastes which are regulated as to the manner of
use, storage, exposure or disposal under any Legal Requirements, or which are
classified as hazardous or toxic under any Legal Requirements.
"LEGAL REQUIREMENTS" shall mean the requirements of each and every
statute, law, ordinance, rule, regulation or order made by any Governmental
Entity which are applicable to the Property.
"LIENS" shall mean all liens, charges, claims, security interests,
pledges, rights of first refusal, restrictions and other encumbrances.
"NEW CONTRACTS" shall mean all Contracts which are entered into by
Seller between the date hereof and prior to the Closing Date in accordance with
the provisions of this Agreement.
"PERMITS" shall mean, collectively, all licenses, registrations,
franchises, permits, concessions, orders, approvals, certificates of occupancy,
dedications and entitlements now or hereafter issued, approved or granted by any
Governmental Entity in connection with the Property, together with all renewals
and modifications thereof.
"PERSON" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
"PLANS" shall mean, collectively, all site plans, architectural
renderings, plans and specifications, engineering plans, as-built drawings,
floor plans and other similar plans or diagrams, if any, which are owned by
Seller and are in Seller's possession as of the Closing Date.
"REQUIREMENTS OF LAW" shall mean all present laws, rules, orders,
ordinances, regulations, statutes, requirements, codes and executive orders,
extraordinary as well as ordinary,
B-2
of any and all governmental authorities now existing or hereafter created, and
of any and all of their departments and bureaus, and of any applicable fire
rating bureau, or other body exercising similar functions.
B-3
EXHIBIT C
FORM OF DEED
BARGAIN AND SALE DEED
WITHOUT COVENANT AGAINST GRANTOR'S ACTS
FROM
SWISSAIR, SWISS AIR TRANSPORT CO. LTD. IN DEBT RESTRUCTURING LIQUIDATION
TO
OSI PHARMACEUTICALS INC.
Location of Property:
Street Address: 41 Pinelawn Road, Melville
Town : Huntington
County : Suffolk
State : New York
Section : 255.00
Block : 01.00
Lot : 017.000
Record and Return to:
Ruskin Moscou Faltischek, PC
190 EAB Plaza
Uniondale, New York 11556-0190
Attention: Eric Rubenstein, Esq.
C-1
THIS INDENTURE, made as of the __ day of _____, 2005 by
SWISSAIR, SWISS AIR TRANSPORT CO. LTD. IN DEBT RESTRUCTURING LIQUIDATION, a
corporation organized under the laws of Switzerland, having an address of c/o
________________ ("SELLER"), in favor of OSI PHARMACEUTICALS INC., a Delaware
corporation, having an address at 58 South Service Road, Suite 110, Melville,
New York 11747 ("PURCHASER"),
WITNESSETH, that Seller, in consideration of Ten Dollars
($10.00), lawful money of the United States, and other good and valuable
consideration paid by Purchaser, the receipt and sufficiency of which are hereby
acknowledged, does hereby grant and release unto Purchaser and Purchaser's
successors and assigns, forever,
ALL that certain plot, piece or parcel of land lying and being
in the County of Suffolk, State of New York, as more particularly described on
Exhibit A attached hereto and made a part hereof (the "LAND") and all buildings,
structures and other improvements located on the Land, together with any air
rights appurtenant to the Land or the improvements constructed thereon
(collectively with the Land, the "PROPERTY");
TOGETHER with all right, title and interest, if any, of Seller
in and to any streets and roads abutting the Property to the center lines
thereof; and
TOGETHER with the appurtenances and all the estate and rights
of Seller in and to the Property;
TO HAVE AND TO HOLD the Property unto Purchaser and
Purchaser's successors and assigns, forever.
AND Seller, in compliance with Section 13 of the Lien Law,
covenants that Seller 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 the cost of the improvement and will apply the
same first to the payment of the cost of the improvement before using any part
of the total of the same for any other purpose.
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C-2
IN WITNESS WHEREOF, Seller has duly executed this Indenture as of the
date first above written.
SWISSAIR, SWISS AIR TRANSPORT CO.
LTD. IN DEBT RESTRUCTURING LIQUIDATION
By:
-----------------------------------
Name:
Title:
C-3
STATE OF NEW YORK )
) ss.:
COUNTY OF ________ )
On the _____ day of _______________ in the year 2005 before
me, the undersigned, personally appeared ________________________________,
personally known to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
--------------------------------
Notary Public
C-4
Exhibit A
Description of the Land
C-5
EXHIBIT D
FORM OF BILL OF SALE
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS,
That, subject to the terms and conditions hereinafter set forth,
SWISSAIR, SWISS AIR TRANSPORT CO. LTD. IN DEBT RESTRUCTURING LIQUIDATION, a
corporation organized under the laws of Switzerland, having an address of c/o
________________ ("SELLER"), for and in consideration of the sum of Ten Dollars
($10.00) lawful money of the United States of America and other good and
valuable consideration, to it in hand paid at or before delivery of these
presents by OSI PHARMACEUTICALS INC., a Delaware corporation, having an address
at 58 South Service Road, Suite 110, Melville, New York 11747 ("PURCHASER"), the
receipt and sufficiency of which are hereby acknowledged, does by these presents
hereby sell, assign, bargain, grant and convey unto Purchaser, its successors
and assigns, forever, without recourse to Seller and without representation or
warranty of any kind whatsoever, express or implied, all of Seller's right,
title and interest, if any, in and to (a) the fixtures, equipment, machinery and
other tangible personal property located at and used in connection with the
operation of the Building, limited to the property of Seller listed on Schedule
1 attached hereto and made a part hereof, together with (b) any supplies, site
plans, architectural renderings, plans and specifications, engineering plans,
as-built drawings, floor plans and other similar plans or diagrams, maintenance
records and operating manuals, if any, which are owned by Seller and are in
Seller's possession as of the date hereof (all of the foregoing in clauses (a)
and (b), collectively, the "PERSONALTY"), located at or attached to, and used
exclusively in connection with the ownership, use or operation of, the land and
improvements located at 41 Pinelawn Road, Melville, New York, as more
particularly described on Schedule 2 attached hereto and made a part hereof.
TO HAVE AND TO HOLD the same unto Purchaser, its successors and assigns
forever, from and after the date hereof.
SELLER HAS MADE NO WARRANTY THAT THE PERSONALTY COVERED BY THIS BILL OF
SALE IS MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE AND THE SAME IS SOLD IN
AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION AS OF THE DATE HEREOF. BY
ACCEPTANCE HEREOF, PURCHASER ACKNOWLEDGES AND AFFIRMS THAT IT IS NOT RELYING
UPON ANY WARRANTY OR REPRESENTATION OF SELLER WITH RESPECT TO THE PERSONALTY,
EXPRESSED, IMPLIED OR STATUTORY.
This Bill of Sale shall be governed by and construed in accordance with
the laws of the State of New York.
D-1
This Bill of Sale may be executed in counterparts, it being understood
that all such counterparts, taken together, shall constitute one and the same
instrument. This Bill of Sale may be executed via facsimile signature, which
shall have the same force and effect as an original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
D-2
IN WITNESS WHEREOF, Seller has caused this instrument to be duly
executed and made effective as of the ___ day of ______, 2005.
SELLER:
SWISSAIR, SWISS AIR TRANSPORT CO.
LTD. IN DEBT RESTRUCTURING LIQUIDATION
By:
--------------------------------------
Name:
Title:
PURCHASER:
OSI PHARMACEUTICALS INC.
By:
--------------------------------------
Name:
Title:
D-3
EXHIBIT E
FORM OF OMNIBUS ASSIGNMENT AND ASSUMPTION
OMNIBUS ASSIGNMENT AND ASSUMPTION
THIS OMNIBUS ASSIGNMENT AND ASSUMPTION (this "ASSIGNMENT") is made as
of the ___ day of _____, 2005 by SWISSAIR, SWISS AIR TRANSPORT CO. LTD. IN DEBT
RESTRUCTURING LIQUIDATION, a corporation organized under the laws of
Switzerland, having an address of c/o ________________ (the "ASSIGNOR"), in
favor of OSI PHARMACEUTICALS INC., a Delaware corporation, having an address at
58 South Service Road, Suite 110, Melville, New York 11747 (the "ASSIGNEE").
WHEREAS, Assignor is the owner of the land and improvements located at
41 Pinelawn Road, Melville, New York (the "PREMISES"); and
WHEREAS, Assignor has as of the date hereof transferred all of
Assignor's right, title and interest in and to the Premises to Assignee;
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
Dollars ($10.00) lawful money of the United States of America and other good and
valuable consideration paid by Assignee to Assignor, the receipt and sufficiency
of which are hereby acknowledged, Assignor hereby assigns, transfers and conveys
to Assignee, its successors and assigns, to the extent assignable or
transferable, all of Assignor's right, title and interest, if any, in and to the
following (collectively, the "ASSIGNED PROPERTY"):
(a) [ALL OF ASSIGNOR'S RIGHT, TITLE AND INTEREST IN AND TO THE
CONTRACTS AND AGREEMENTS AFFECTING THE PREMISES OR THE USE OR OPERATION THEREOF
AND DESCRIBED ON EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF (THE
"CONTRACTS") - IF ANY];
(b) all licenses, registrations, franchises, permits, concessions,
orders, approvals, certificates of occupancy, dedications and entitlements now
or hereafter issued, approved or granted by any governmental entity in
connection with the Premises, together with all renewals and modifications
thereof, if any (collectively, the "PERMITS");
(c) all warranties, guaranties, other intangible rights, titles,
interests, privileges and appurtenances related exclusively to, or used
exclusively in connection with, the ownership, use or operation of the Premises,
if any; and
(d) any site plans, architectural renderings, plans and specifications,
engineering plans, as-built drawings, floor plans and other similar plans or
diagrams, if any, which are owned by Assignor and are in Assignor's possession
as of the date hereof.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
forever, subject to the terms, covenants, conditions and provisions contained in
the Assigned Property.
E-1
This Assignment is made without warranty or representation by, or recourse
against, Assignor of any kind whatsoever, express or implied.
THE ASSIGNED PROPERTY IS BEING ASSIGNED "AS IS", "WHERE IS", AND "WITH
ALL FAULTS" AS OF THE DATE OF THIS ASSIGNMENT, WITHOUT ANY REPRESENTATION OR
WARRANTY WHATSOEVER AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED. ASSIGNEE IS HEREBY
ACQUIRING THE ASSIGNED PROPERTY BASED SOLELY UPON ASSIGNEE'S OWN INDEPENDENT
INVESTIGATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY ASSIGNOR OR
ASSIGNOR'S AGENTS OR CONTRACTORS. ASSIGNOR SPECIFICALLY DISCLAIMS ANY WARRANTY,
GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESSED OR
IMPLIED, CONCERNING THE ASSIGNED PROPERTY OR ASSIGNOR'S TITLE THERETO.
ASSIGNEE HEREBY accepts the foregoing assignment and assumes and agrees
to perform all of the obligations of Assignor under the Assigned Property first
arising or accruing from and after the date hereof.
This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
This Assignment shall be binding upon, and inure to the benefit of, the
parties to this Assignment and their respective heirs, legal representatives,
successors and assigns.
This Assignment may be executed in counterparts, it being understood
that all such counterparts, taken together, shall constitute one and the same
instrument. This Assignment may be executed via facsimile signature, which shall
have the same force and effect as an original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
E-2
IN WITNESS WHEREOF, the parties hereto have signed this instrument as
of the date written above.
ASSIGNOR:
SWISSAIR, SWISS AIR TRANSPORT CO.
LTD. IN DEBT RESTRUCTURING LIQUIDATION
By:
----------------------------------------
Name:
Title:
ASSIGNEE:
OSI PHARMACEUTICALS INC.
By:
----------------------------------------
Name:
Title:
E-3
Exhibit A
Contracts
E-4
SCHEDULE 1
BUILDING EQUIPMENT
GYM
1 Executive step by step Stairmaster
1 Bodyguard 535 stationary bicycle
2 Candice treadmills
1 Paramount 5 station universal machine
1 13" JVC television
1 JVC VCR
1 Kenwood multiple CD player
1 nurse's cot
3 floor mats
1 bookcase
BASEMENT COMMUNICATIONS ROOM
1 Meridian phone mail system
1 Aspect call center phone system
1 KW 125 KVA UPS system
1 Stult 4000 a/c unit
1 25 ton back up a/c unit
ROOM 006
5 workbenches
1 cabinet
1 storage rack
Sch. 1-1
CAFETERIA
Whirlpool 18.1 cubic feet refrigerator
1 Amana microwave oven
6' foot storage rack for microwave
11 patio tables and 32 patio chairs
8 cafeteria tables and 33 chairs
1 Univex mixer with stand
1 Crystal tips ice machine
1 Champion dishwasher
1 Trallsen side-by-side refrigerator
1 Marathoner gold convection oven
1 South Bend deep fryer
1 South bend broiler
1 South Bend side by side oven
1 Wyott deep fryer
1 Wyott counter grill
1 Wyott cook top
1 Savory toaster
1 Slicing machine
3 storage racks
ROOM 011
4 workbenches
3 stools
1 worktable and chair
Sch. 1-2
ROOM 004
1 oblong conference table
1 6' shelf
2ND FLOOR
5 6' steel draw files
9 white flowerpot holders
1ST FLOOR
9 white flowerpot holders
1 round table
7 red chairs
1 white television cabinet
22 student tables (used for training)
SNOW REMOVAL EQUIPMENT
1 Bob Cat snow blower
1 Bezzech salt spreader
1 Scotts lawn edger
MECHANIC ROOM
2 workstations and benches
2 BMS computers (Staefa, Honeywell)
1 bench grinder
1 floor drill press
9 lockers
2 file cabinets
3 step ladders,1 extension ladder
Sch. 1-3
SCHEDULE 4.1
TITLE EXCEPTIONS
1. Restrictive covenants, notes and state of facts, including without
limitation 75-foot building setback line, shown on Map No. 5811.
2. Permanent Easement for Embankments and Slopes appropriated by The
People of the State of New York as Parcel No. 239 on Map No. 30
pursuant to Notice of Appropriation dated June 1, 1962, recorded June
1, 1962 in Liber 5173 cp 491.
3. Declaration of Covenants and Restrictions made by Bewco Corporation,
dated March 15, 1972, recorded in Liber 7157 cp 247.
4. Terms, covenants and conditions of Agreement made by and among
Swissair, Swiss Air Transport Company, Ltd.; Suffolk County Sewer
District No. 3-Southwest; Suffolk County Department of Public Works;
Suffolk County Sewer Agency; and County of Suffolk, dated May 14, 1993,
recorded June 9, 1993 in Liber 11632 cp 327.
SCHEDULE 9.1(a)(iii)
SELLER'S WORK
1. Patch cracked curb and concrete on portion of walkway in front of
main entrance to the Building.
2. Repair and seal all active leaks around the windows in the Building.
3. Complete washing and repainting the exterior walls of the Building
only to the extent that paint has cracked or peeled away.
4. Remove 55-gallon engine oil drum in the emergency generator area of
the Building and clean up minor spill on floor surrounding same.
5. Repair north wall of Ice Tank Room to stop active water leak.
6. Repair cracks in the paved concrete area approaching the service
entrance on the west side of the building.