EXHIBIT 10.2
PURCHASE AND SALE AGREEMENT
THE DOCK, INCORPORATED
SELLER,
AND
UB DOCKSIDE, LLC
BUYER
DATED: JANUARY 6, 2005
PROPERTY: THE DOCK SHOPPING CENTER, STRATFORD, CT
Purchase and Sale Agreement
This Purchase and Sale Agreement ("Agreement"), dated as of January 6,
2005 (the "Effective Date"), is between THE DOCK, INCORPORATED, a Connecticut
corporation with an address of 955 Ferry Boulevard, Stratford, CT 06614
(collectively, "Seller") and UB DOCKSIDE, LLC, a Delaware Limited Liability
Company, with an address of 321 Railroad Avenue, Greenwich, CT 06830 ("Buyer").
Seller is simultaneously executing a Purchase and Sale Agreement with
UB Railside, LLC, a Delaware Limited Liability Company (the "Railside Sale
Agreement") whereby Seller has agreed to sell the railside portion of The Dock
Shopping Center to such entity.
Seller desires to sell the Property (as hereinafter defined) and Buyer
desires to buy the Property in a transaction which qualifies as a like-kind
exchange described in Section 1031 of the Internal Revenue Code of 1986, as
amended (the "Code") and the Treasury Regulations promulgated thereunder
("Regulations") and corresponding provisions of state tax law. In consideration
of the mutual undertakings and covenants herein contained, the receipt and
sufficiency of which are hereby mutually acknowledged, Seller and Buyer hereby
covenant and agree as follows:
ARTICLE I
SALE OF PROPERTY
l.1 Agreement to Buy and to Sell; Property. Seller shall sell to Buyer,
and Buyer shall purchase from Seller, at the price and upon the terms and
conditions set forth in this Agreement, (a) the real estate commonly known as
the dockside portion of The Dock Shopping Center, Stratford, Connecticut, as
more particularly described in Schedule A attached hereto including all right,
title and interest of Seller in and to any alleys, strips or gores abutting or
adjoining such real estate (the "Land"), together with the buildings and
improvements (including docks) located on the Land (together, the "Buildings");
(b) the fixtures, equipment and other personal property owned by Seller and
located in the Buildings or on the Land and used in connection with the
maintenance and operation of the Land and Buildings, including the property
specifically described in Schedule B hereto (the "Personal Property"); (c) the
landlord's interest in the Leases (as defined in Section 15.7 and as set forth
in Schedule 4.1 hereto); (d) Seller's interest in that certain Lease Agreement
between the State of Connecticut, Department of Transportation and The Dock,
Inc. dated June 13, 1997 and recorded in the Stratford Land Records in Volume
1312, Page 246 (the "DOT Lease") jointly to Buyer and UB Railside, LLC which has
contracted with Seller to purchase a portion of The Dock Shopping Center as
described in and pursuant to the terms of the Railside Sale Agreement, (e) all
right, title and interest of Seller, if any, in and to the land lying in any
rights of way and the Seller's interest in all easements, licenses, privileges
and all other appurtenances to the Land and Buildings (collectively,
"Appurtenances"); (f) Seller's interest in all contracts, agreements (the
"Contracts"), warranties and guaranties (the "Warranties") associated with the
Buildings and the Personal Property and its supporting equipment which Buyer may
elect to assume by written notice to Seller prior to Closing; (g) Seller's
interest in all plans, specifications, building permits, certificates of
occupancy, and other certificates, permits, licenses and approvals (the
"Licenses and Permits"), if any; (h) any and all of Seller's right, title and
interest in and to any intangible rights, titles, interests and privileges used
in connection with or in any way related to the Land and Buildings and
Appurtenances, including (1) the non-exclusive right in and to the use of the
trade name and any and all other trade names, trademarks, and logos used by
Seller in the operation and identification of the Land and Buildings, other than
the trade names or trademarks of Tenants or other third parties, (2) any and all
Development Rights, utility capacity and similar rights, (3) all licenses,
consents, easements, rights of way and approvals required to make use of
utilities serving the Land and Buildings, and (4) rights to condemnation or
insurance proceeds and other awards or compensation arising from any taking,
casualty or permitted disposition of any portion of the Property (collectively,
the "Intangible Rights"); (i) all of Seller's right, title and interest in and
to (1) all Tenant correspondence, billing and other files, (2) all structural
reviews, environmental assessments or audits, architectural drawings and
engineering, geophysical, soils, seismic, geologic, environmental and
architectural reports, studies and certificates pertaining to the Land and
Buildings and Appurtenances, and (3) all accounting, tax, financial, and other
books and records relating to the use, maintenance, leasing and operation of the
Property (collectively, the "Books and Records"); and (j) Seller's interest in
all permits and approvals relating to and all riparian and rights of Seller
relating to the dock area (all of the foregoing, as enumerated in (a) through
(j) above, collectively being referred to herein as the "Property").
1.2 Title. Seller shall convey and Buyer shall accept fee
simple title to the Property in accordance with the terms of this Agreement,
subject only to the following (the "Permitted Exceptions"):
(a) the Leases; and
(b) local, state and Federal laws, ordinances, rules and
regulations.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price ("Purchase Price")
for the Property is Thirty Million Two Hundred Fifty Thousand ($30,250,000)
Dollars, to be paid by Buyer to Seller as follows:
(a) Payment at Closing. The Purchase Price shall be paid in
U.S. dollars by wire transfer of immediately available funds.
2.3 Reporting Person. Buyer is hereby designated as the "real estate
reporting person" for purposes of Section 6045 of Title 26 of the United States
Code and Treasury Regulation 1.6045-4 and any instructions or settlement
statement shall so provide. Upon the consummation of the transaction
contemplated by this Agreement, Buyer shall file a Form 1099 information return
and send the statement to Seller as required under the aforementioned statute
and regulation. Seller and Buyer shall promptly furnish their federal tax
identification numbers to the other and shall otherwise reasonably cooperate
with each other in connection with Buyer's duties as real estate reporting
person.
ARTICLE III
BUYER DUE DILIGENCE INDEMNITY
3.1 Buyer Indemnity. Buyer agrees to indemnify and hold Seller harmless
from any claim for liabilities, costs, expenses (including reasonable attorneys'
fees actually incurred) losses, damages for bodily injuries, death, property
damage or mechanics' liens arising out of or resulting from the inspection of
the Property by Buyer or its agents, provided, however, that so long as Buyer
complies with the confidentiality provisions of this Agreement, Seller shall not
have any claim against Buyer for any diminution in the value of the Property
arising out of the mere discovery of the existence of site conditions which were
not created by or exacerbated by Buyer or its representatives. By executing this
Agreement Buyer acknowledges that it is accepting the condition of the Property
subject to the express terms of this Agreement. Notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify and hold harmless
Seller and the other obligations of Buyer under this Section 3.1 shall survive
Closing or any termination of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the Closing Date, as follows:
4.1 Leases. Schedule 4.1 attached hereto lists all leases, licenses or
other rental agreements or occupancy agreements (written or verbal), including
all amendments thereto, which grant any possessory interest in and to any space
situated on or in the Property or that otherwise give rights with regard to use
of the Property (the "Leases"). To Seller's knowledge, there are not presently
any defaults by the landlord under any of the Leases except for any allegation
of default contained in a writing provided to Buyer prior to the Closing. To
Seller's knowledge, there are not presently any defaults by the tenant under any
of the Leases In the event any estoppel certificate delivered to Buyer prior to
Closing with respect to any Lease contains any information inconsistent with
Seller's representation made in this Section 4.1, and if the information in the
tenant estoppel certificate is correct, and if Buyer closes without having
objected thereto, then Seller shall have no liability to Buyer for any claim due
to such inconsistency based on a breach of representation regarding such
information to the extent of such inconsistency. The termination of any Lease
prior to Closing by reason of the tenant's default shall not affect the
obligations of Buyer under this Agreement or entitle Buyer to any abatement of
or credit against the Purchase Price or give rise to any claim on the part of
Buyer.
4.2 Service and Management Contracts. Schedule 4.2 attached hereto
lists all service, maintenance, supply and management contracts ("Service
Contracts") entered into by Seller and affecting the Property, and the
information set forth therein is accurate and complete in all material respects
as of the date hereof.
4.3 Ability to Perform. Seller has full power to execute, deliver and
carry out the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
The person signing this Agreement on behalf of Seller is authorized to do so.
4.4 No Litigation. Except as set forth on Schedule 4.4 attached hereto,
Seller has received no written notice of litigation affecting the Property or
Seller's ability to fulfill all of its obligations under this Agreement nor, to
Seller's knowledge, has any such action been threatened.
4.5 No Impediments. There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Seller
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
4.6 9/11 Dealings. Neither Seller nor any of its affiliates, nor any of
their respective partners, members, shareholders or other equity owners, and
none of their respective employees, officers, directors, representatives or
agents, is a person or entity with whom U.S. persons or entities are restricted
from doing business under regulations of the Office of Foreign Asset Control
("OFAC") of the Department of the Treasury (including those named on OFAC's
Specially Designated and Blocked Persons List) or under any statute, executive
order (including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action.
4.7 At Closing, Seller will represent that Seller is a corporation duly
organized and in good standing under the laws of the State of Connecticut. To
Seller's knowledge, there are no agreements of Seller or any contract,
agreement, order, judgment or decree to which Seller is a party or by which it
is bound that would interfere with the Seller's performance of its obligations
pursuant to this Agreement or that would give rise to any claim or assertion of
rights by any party against the Property or the Buyer at or after the Closing
Date merely because of the consummation of the transfer of the Property by the
Seller to the Buyer, and no consent of any other party is required as a
condition of the consummation of the transfer of the Property by the Seller to
the Buyer.
4.8 To Seller's knowledge, with the exception of possible activities of
the State of Connecticut with respect to the Interstate 95 ramp and bridge,
there are no existing or pending litigation, governmental or judicial
proceedings, eminent domain or similar proceedings, claims, condemnations or
sales in lieu thereof with respect to all or any portion of the Property or any
aspect of Seller's interest in the Property nor are any such actions, suits,
proceedings or claims currently being threatened or asserted, in writing, to
Seller.
4.9 Seller shall provide documentation reasonably acceptable to the
Title Company so that there shall be no exception to title relating to the
deduction and withholding of tax imposed on the disposition of any United States
real property interest by a foreign person, or relating to or in connection with
the sale of all or substantially all of the assets of Seller including such
evidence as may be reasonably required to evidence that all taxes that pursuant
to statute or regulation may become liens against the Property have been paid in
full including but not limited to all corporate, excise, personal property,
income and use taxes.
4.10 The Leases are in full force and effect, and, to Seller's
knowledge, no Tenant has threatened in writing any claim against the Seller or
defense against full performance of its Lease except as may be indicated on
Exhibit 4.10
4.11 No tenant under any of the Leases has given Seller written notice
of its intention to vacate or abandon its demised premises prior to the end of
the term of its Lease; to Seller's knowledge there are no maintenance, billing
or other disputes with tenants that have not been resolved to the satisfaction
of the Tenant and Seller has received no written notice from any Tenant of any
such dispute which remains unresolved; except as set forth in the Leases, no
Tenant under any Lease is or shall become entitled to any concession, rebate,
allowance or free rent for any period subsequent to the Closing Date; No Tenant
is contesting any rents due under its Lease. Except as set forth in the Leases,
no free rent has been given or rent payments waived for any Tenant in the past
twenty-four (24) months.
4.12 Seller has completed all tenant improvement work or alterations
required of the landlord under each Lease to be performed within two (2) years
prior to the date of this Agreement and Seller has no further obligations to
perform such tenant improvement work or alterations or to pay any amounts to
Tenants for any tenant improvement work under a Lease, to be performed or paid
after the date of this Agreement.
4.13 Seller has made available to and not withheld from Buyer any
environmental report or study concerning the Property, or any portion thereof,
which is in its possession or under its control, and, except for the hazardous
wastes referred to or described in such reports and studies, Seller has no
knowledge of any hazardous wastes on, in, under or about the Property. Buyer
acknowledges that Seller is not making representations or warranties concerning
its knowledge or lack of knowledge concerning properties other than the
Property, including without implied limitation the Raybestos superfund site.
4.14 All leasing commissions (if any) for the Leases arising from
listing agreements executed or assumed in writing by Seller have been paid in
full.
4.15 Seller has made available to, and has not withheld from, Buyer any
written notice in its possession or under its control of any future or currently
scheduled public hearings or proceedings which could affect the Property.
4.16 Seller has not received any written notice within the two (2)
years prior to the date of this Agreement, from any appropriate Governmental
Entity or structural engineer of any latent structural defect with respect to
any of the buildings or retaining walls located on or at the Property, including
but not limited to with respect to the foundations and load bearing walls except
as may be disclosed in any engineer's report delivered or made available to
Buyer by Seller prior to Closing.
4.17 To Seller's knowledge, Seller is not in default of any obligation
under the DOT Lease and Seller has delivered to Buyer a true, accurate and
complete copy of the DOT Lease.
4.18 Seller will make available to, and will not withhold from, Buyer
any copies of Leases, contracts, governmental violations, notices and
correspondence concerning or relating to the Property in its possession or under
its control.
4.19 To Seller's knowledge, Seller has not received any written notice
of any violation of the Permitted Encumbrances or zoning and/or building,
inland-wetlands, environmental, zoning or planning laws, statutes, ordinances,
orders, or requirements affecting the Property which asserted violation has not
been acknowledged as having been cured or corrected by the notifying authority;
4.20 Intentionally omitted.
4.21 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in this Article IV, as
updated by the certificate of Seller to be delivered to Buyer at Closing in
accordance with Section 7.2(j) hereof, shall survive Closing for a period of
twelve (12) months. No claim for a breach of any representation or warranty of
Seller shall be actionable or payable if the breach in question results from or
is based on a condition, state of facts or other matter which was known to Buyer
as of the Closing Date, and unless written notice containing a description of
the specific nature of such breach shall have been given by Buyer to Seller
prior to the expiration of said twelve-month period and an action shall have
been commenced by Buyer against Seller within fourteen (14) months after
Closing. Notwithstanding the foregoing, if Buyer knew at Closing that a
representation or warranty contained in this Article IV was not true at Closing
and Buyer nonetheless elected to proceed with the Closing, Buyer shall not have
any right to make a claim hereunder for a breach of such representation or
warranty. Notwithstanding anything herein to the contrary, Seller shall in no
event have any liability for breach of any representation or warranty set forth
in this Article IV in excess of $500,000 in the aggregate, which liability limit
shall apply to the aggregate liability of Seller under the Railside Sale
Agreement. The foregoing limitations of time and dollar amount shall not,
however, apply to any other obligations or covenants of Seller hereunder or to
any other closing documents.
As used in this Article IV, the term "Seller's knowledge" or any
similar phrase shall mean the actual, not constructive or implied, knowledge of
J. Robert Osborne and Michael B. Osborne, being the parties most familiar with
the operation of the Property, without any further obligation on such person's
part to make any independent investigation of the matters being represented and
warranted, or to make any further inquiry of any other persons, or to search or
examine any files, records, books or correspondence. The foregoing individuals
are acting for and on behalf of Seller and are in no manner expressly or
impliedly making any of these representations in their individual capacity, and
Buyer hereby waives any right to sue or to seek any judgment or claim against
them on an individual basis.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
5.1 Ability To Perform. Buyer has the full right, power and authority
to purchase the Property as provided in this Agreement and to carry out Buyer's
obligations hereunder, and all requisite action necessary to authorize Buyer to
enter into this Agreement and to carry out its obligations hereunder have been
taken. The person signing this Agreement on behalf of Buyer is authorized to do
so.
5.2 9/11 Dealings. Neither Buyer nor any of its affiliates, nor any of
their respective partners, members, shareholders or other equity owners, and
none of their respective employees, officers, directors, representatives or
agents, is a person or entity with whom U.S. persons or entities are restricted
from doing business under regulations of the OFAC (including those named on
OFAC's Specially Designated and Blocked Person List) or under any statute,
executive order (including the September 24, 2001 Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action.
5.3 No Impediments. There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Buyer
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transactions contemplated by
this Agreement.
5.4 Survival of Buyer's Representations and Warranties. The
representations and warranties of Buyer set forth in this Article V shall
survive Closing for a period of thirty seven (37) months and no claim for a
breach of any such other representation or warranty of Buyer shall be actionable
or payable unless written notice containing a description of the specific nature
of such breach shall have been given by Seller to Buyer prior to the expiration
of said thirty seven (37) month period and an action shall have been commenced
by Seller against Buyer within thirty nine (39) months after Closing.
ARTICLE VI
SELLER'S COVENANTS
6.1 Seller's Covenants. Seller covenants and agrees with
Buyer that prior to Closing the Seller will:
(a) not consent to any zoning changes, or sell, transfer,
assign, dispose or, or consent to the utilization of, any development rights, or
modify or amend or, except as otherwise required of landlord in any Lease,
consent to any modification or amendment of the certificates of occupancy for
the Property without the prior written consent of Buyer.
(b) if and to the extent that Seller has within the twenty
four (24) months preceding the Closing Date received a written notice from any
Governmental Entity indicating that the Property or any component thereof is in
violation of a law, regulation, rule or other legal requirement, and if such
violation has not previously been cured to the satisfaction of the relevant
Governmental Entity, and if the reasonable cost of curing such violation does
not exceed Fifteen Thousand ($15,000) Dollars in each instance, then the Seller
shall cause each such violation to be cured to the satisfaction of the relevant
Governmental Entity on or before the Closing.
6.2 Leasing Commissions. Seller shall pay all leasing commissions and
tenant costs (including, without limitation, tenant improvement costs, moving
costs, design costs incurred by the tenant, lease buyout costs and similar
tenant inducement costs) which become due and payable prior to the Closing Date
in connection with leases entered into prior to the Closing Date. In connection
with Leases entered into prior to the Closing Date, Seller shall also pay any
leasing commissions that Seller has agreed to pay to a broker, which commissions
become due and payable to brokers after the Closing Date upon the tenant's
exercise of any renewal, extension or expansion right which was granted to the
tenant in the Lease as it existed on the Closing Date. All leasing commissions
and tenant costs with respect to leases (and renewals, extensions or expansions
thereof) entered into on or after the Closing Date by Buyer shall be the
responsibility of Buyer.
6.3 DOT Lease. Seller will not alter, amend or modify the DOT Lease
without Buyer's prior written consent. Seller shall comply with all of Seller's
obligations under the DOT Lease.
6.4 Bradlee's Building. Seller agrees that prior to Closing it will
conduct tests to determine whether the floor tiles and mastic presently existing
in the Building formerly occupied by Bradlees ("Bradlees' Building") are
"asbestos-containing material" (i.e., greater than 1% asbestos) and would thus
require special handling upon removal under applicable EPA rules. If it is
determined that certain floor files and mastic are asbestos-containing material,
Seller shall remove all such floor tiles and mastic down to the slab in
compliance with all applicable laws and regulations at Seller's sole expense
within 60 days after the Closing. Seller shall provide to Buyer copies of all
permits obtained by Seller and all other evidence of compliance with applicable
laws and regulations with respect to any floor tiles and/or mastic that are
asbestos-containing material. Seller shall provide evidence to Buyer that the
removal of same was done in compliance with all applicable environmental laws,
rules and regulations. If Seller determines that the certain floor tiles and the
mastic in the Bradlees' Building are not asbestos-containing material and Seller
chooses to handle such tiles and mastic as non-asbestos containing material,
Seller shall provide Buyer with results of testing which support such
determination. At Buyer's option, Buyer may conduct its own testing for
asbestos-containing materials at its sole expense to confirm that said floor
tiles are not asbestos-containing material. Seller further agrees at its sole
expense to remove all fixtures, rubbish and debris within the Bradlees' Building
and deliver the Bradlees' Building broom clean, within 60 days after the
Closing. The provisions of this paragraph shall survive the Closing.
ARTICLE VI-A
CONDITIONS PRECEDENT TO BUYERS' OBLIGATION TO CLOSE
6.A.1 Conditions Precedent to Buyer's Obligation to Close. The
obligations of Buyer under this Agreement to close are subject to satisfaction
of all of the conditions set forth in this Article.
(a) On the Closing Date, Seller shall not be in material
default in the performance of any material covenant
or agreement to be performed by Seller under this Agreement.
(b) On the Closing Date, no judicial or administrative
suit, action, investigation, inquiry or other proceeding
by any person (not otherwise disclosed to or known to Buyer prior to the
Closing) shall have been instituted against Seller which challenges the validity
or legality of any of the transactions contemplated by this Agreement.
(c) Title to the Property shall be free of all
Encumbrances other than the Permitted Exceptions.
(d) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct
on the Closing Date.
(e) Neither Seller nor Buyer has received written notice
from the applicable Governmental Entity that there is an actual, threatened or
imminent change in the zoning of the Property from the date hereof.
ARTICLE VII
THE CLOSING
7.1 Closing. Except as otherwise provided in this Agreement, the
consummation of the transactions contemplated by this Agreement (the "Closing")
shall take place on or before January 7, 2005, the actual date of the Closing
being herein referred to as the "Closing Date"). At the Closing Buyer and Seller
shall perform their respective obligations as set forth in Sections 7.2 and 7.4
hereof, the performance of such obligations being concurrent conditions. In
addition, Seller shall deliver checks sufficient to pay all transfer and
conveyance taxes in connection with the transaction contemplated under this
Agreement and Buyer and Seller shall execute such transfer statements and
returns, closing statements, acknowledgments and other ministerial instruments
and take such further actions as may be reasonably necessary to complete the
transactions contemplated by this Agreement. The recordation and filing of
documents and instruments with registries of deeds and other government
instrumentalities in Connecticut shall be attended to by the Escrow Agent.
7.2 Seller's Closing Obligations. At the Closing, Seller shall
deliver the following to Buyer:
(a) A special warranty deed (the "Deed"), conveying the Land
and Buildings to Buyer, subject only to the Permitted Exceptions, together with
the applicable real estate conveyance tax forms and checks in the amount of the
applicable municipal and state conveyance tax.
(b) An assignment and assumption of the DOT Lease (the "DOT
Lease Assignment") to Buyer and UB Railside, LLC jointly by which Buyer and UB
Railside, LLC shall assume all obligations of the "Second Party" under the DOT
Lease.
(c) A bill of sale (the "Bill of Sale") transferring title to
the Personal Property, if any, to Buyer without warranty of title or use and
without warranty, express or implied, as to merchantability or fitness for any
purpose.
(d) An assignment of the Leases (the "Assignment of Leases")
to Buyer by which Buyer shall assume all obligations of the landlord under the
Leases, and in which Buyer shall have no obligation to pay any brokerage
commissions that Seller has agreed to pay to a broker, which commissions become
due and payable to brokers after the Closing Date upon the tenant's exercise of
any renewal, extension or expansion right which was granted to the tenant in the
Lease as it existed on the Closing Date.
(e) Originals, where available, of the due diligence materials
made available to Buyer prior to the Closing Date.
(f) Originals of all Leases, and appropriate instruments of
transfer or assignment with respect to any lease security which is other than
cash.
(g) An assignment (the "Assignment") of all Service Contracts
to be assigned to the Buyer and any then effective assignable guaranties and
warranties relating to the Property or any of its components.
(h) Such affidavits and indemnities as the Title Insurer may
reasonably require in order to omit from its title insurance policy all
exceptions for parties in possession (other than tenants under Leases and other
Permitted Exceptions) and mechanic's liens.
(i) Sufficient original letters (the "Tenant Notice Letters"),
executed by Seller, advising the tenants under the Leases of the sale of the
Property to Buyer and directing that all rents and other payments thereafter
becoming due under the Leases be sent to Buyer or as Buyer may direct.
(j) A certificate executed by Seller to the effect that all of
the representations and warranties set forth in Article IV remain true and
correct as of the Closing Date except to the extent the same may have changed in
accordance with the terms and conditions of this Agreement. Such certificate
shall expressly state that it is made subject to the limitations of survival and
rights with respect thereof set forth in Article IV of this Agreement. If Seller
discovers that any of the representations or warranties made by Seller in
Article IV of this Agreement were not on the date hereof or are not on the
Closing Date true and correct in all material respects, Seller shall include
such state of facts in such certificate as shall be necessary or appropriate to
make such representations and warranties true and correct in all material
respects as of the date hereof and as of the Closing Date. If, as a result of
any disclosures made in such certificate, the warranties and representations set
forth in this Agreement were not on the date hereof or are not on the Closing
Date true and correct in all material respects for any reason other than the
occurrence of an event expressly permitted hereunder, the Buyer's sole remedy
shall be either to (a) close without adjustment of the Purchase Price and
without the right to make any claim against Seller or (b) terminate this
Agreement and neither party shall have any further rights or obligations
hereunder except to the extent that any rights or obligations set forth herein
expressly survive termination of this Agreement.
(k) Evidence reasonably acceptable to Buyer and the Title
Insurer as to the due authorization of the delivery of the Deed and other
documents required by this Agreement to be executed by Seller.
(l) An affidavit duly executed by Seller stating that Seller
is not a "foreign person" as defined in the Federal Foreign Investment in Real
Property Tax Act of 1980 and the 1984 Tax Reform Act.
(m) A property maintenance agreement (the "Maintenance
Agreement") in mutually satisfactory form.
(n) At Closing, Seller shall provide its 2003 Books and
Records (as defined herein) and the latest available Books and Records for 2004
(including balance sheet and income statements). The provisions hereof shall
survive the Closing. Seller hereby covenants and agrees with Buyer that upon
Buyer's written request, for a period of three (3) years after the Closing,
Seller shall (a) make the Books and Records of the Seller relating to Seller's
ownership and operation of the Property available to the Buyer, for inspection,
copying and audit by the Buyer's designated accountants. Seller acknowledges
that applicable securities laws may require the Buyer to file audited financial
statements relating to operations at the Real Property for a three-year period
and hereby consents to the Buyer engaging the Seller's auditors to assist the
Buyer in the preparation of all or a portion of such audited financial
information relating to Real Property operations, and to otherwise cooperate (at
no cost to Seller) with the Buyer in preparing such financial statements and
will make all Books and Records relating Seller's ownership and operation of the
Real Property available to Buyer's auditors. Seller's obligations hereunder
shall survive the Closing.
(o) The Office Lease. At Closing, Seller shall execute
and delivery an Office Lease in a mutually satisfactory form.
(p) Laundry Lease. At Closing Seller will enter into a lease
in a mutually satisfactory form for the laundry space described and upon the
terms and conditions set forth therein.
(q) 1099-S. Information for Real Estate 1099-S Report Filing
in accordance with ss.6045 of the Internal Revenue Code.
(r) Authority. Such documents as shall be reasonably required
by Buyer or the Title Company to evidence Seller's due organization, good
standing and authority to consummate the transactions contemplated by this
Agreement.
(s) General Assignment. A general assignment and transfer of
any and all miscellaneous interests included in the Property and all warranties
and guarantees from contractors, subcontractors, suppliers, manufacturers or
distributors relating to the Property, if any, and all of Seller's right, title,
interest and benefits in, to and under all intangible rights, Development
Rights, licenses, permits and similar documents or authorizations pertaining to
the ownership and operation of the Property, if any, including the trade name of
the Property.
(t) Marina Lease. At Closing, Seller shall enter into a
lease with Buyer in a mutually satisfactory form.
(u) Pylon Sign Easement. Seller shall deliver an easement
agreement in a mutually satisfactory form. This obligation of Seller shall
survive the Closing.
(v) Closing Statement. A closing statement reflecting the
proration and other relevant provisions of this Agreement (a "Closing
Statement"), duly executed by Seller;
(w) Any other documents required by this Agreement to be
executed or delivered by Buyer.
7.3 Possession. At the time of Closing, Seller shall deliver full
possession of the Property, subject only to the rights of parties under the
Leases and the Permitted Exceptions.
7.4 Buyer's Closing Obligations. At the Closing, Buyer shall:
(a) Deliver the Purchase Price to Seller as adjusted for
apportionments under Article VIII, by 12 p.m. eastern time on the Closing Date.
(b) Cause the Deed to be recorded
(c) Countersign and deliver to Seller the DOT Lease
Assignment, the Assignment of Leases and the Contract Assignment.
(d) Deliver to Seller a certificate executed by Buyer to the
effect that all of the representations and warranties set forth in Article V
remain true and correct as of the Closing Date.
(e) Execute and, promptly following the Closing, cause to be
delivered the Tenant Notice Letters.
(f) Provide evidence reasonably acceptable to Seller and the
Title Insurer as to the due authorization of the delivery of the documents
required by this Agreement to be executed by Buyer.
(g) Execute and deliver the Maintenance Agreement.
(h) Execute and deliver the Laundry Lease.
(i) Execute and deliver the Office Lease and the Marina Lease.
(j) A Hazardous Material Release and Waiver Agreement in
mutually satisfactory form,
(k) Deliver a Holdback Escrow Agreement relating to a sum of
$500,000 in a mutually satisfactory form; and
(l) Deliver any other documents required by this Agreement to
be executed or delivered by Buyer.
7.5 Expenses. Buyer shall pay all costs and expenses associated with
its due diligence review, its own counsel fees, all recording fees customarily
paid by Buyer, all title insurance premiums and costs, any survey costs, one
half of the Escrow Agent's fee and such other closing costs as are customarily
paid by a buyer in the jurisdiction where the Property is located. Seller shall
pay its own counsel fees, all transfer taxes payable upon recordation of the
Deed, one half of the Escrow Agent's fee, any recording fees at Closing and such
other closing costs as are customarily paid by a seller in the jurisdiction
where the Property is located.
7.6 Use of Proceeds to Clear Title. Any unpaid taxes, assessments,
water charges and sewer rents, together with the interest and penalties thereon
to the Closing Date, and any other liens and encumbrances which Seller is
obligated to pay and discharge, may be paid out of the proceeds of the monies
payable at the Closing.
ARTICLE VIII
APPORTIONMENTS AND ADJUSTMENTS TO PURCHASE PRICE
8.1 Apportionments. The following apportionments, calculated as
of the close of business on the day prior to the Closing Date, shall be made
between the parties at the Closing:
(a) Rents received by Seller prior to the Closing Date which are
allocable to periods prior to and including the Closing Date shall be retained
by Seller. Rents which are allocable to periods prior to and including the
Closing Date which have been forgiven in return for the tenant's delivery of a
promissory note or notes to Seller shall be treated as principal and interest
owed to the Seller and shall be retained by the Seller if as and when received.
Buyer shall receive a credit for the per diem value of rents received by Seller
prior to the Closing Date which are allocable to periods after the Closing Date.
Rents which are in arrears at Closing shall be applied and apportioned, if, as,
and when collected by Buyer or Seller (net of reasonable third-party collection
costs, if any), and shall be applied in the following order of priority:
(i) to the month in which the Closing occurred;
(ii) then to the month preceding the month in which the
Closing occurred;
(iii) then to any month or months following the month in
which the Closing occurred with respect to which rent
is due at time or receipt; and
(iv) then to the period prior to the month preceding the
month in which the Closing occurred. If any payments
from a tenant received by Seller after the Closing
are payable to Buyer by reason of this Subsection,
then the appropriate sum shall be promptly paid to
Buyer.
(b) If any tenants are required to pay percentage rent, escalation
charges for real estate taxes, operating expenses, cost-of-living adjustments or
other charges of a similar nature ("Additional Rent") and any Additional Rent is
collected by Buyer or Seller which is attributable in whole or in part to any
period during which the respective party did not own the Property, such party
shall promptly pay to the other party the other party's proportionate share
thereof, less a proportionate share of any reasonable attorney's fees, costs and
expenses of collection thereof, which obligation shall survive the Closing.
Additional rents shall be apportioned as when and to the extent actually
collected on a pro rata basis as of the Closing Date on the basis of the period
for which payable under the applicable Lease and apportioned on the basis of the
actual number of days in such period. If as a result of any reconciliation of
any payments made by tenants for any such items of expense, Buyer is obligated
to remit to tenants or credit to any tenant any amounts relating to a period
prior to the Closing Date, Seller shall promptly remit to Buyer any such amount
paid by Buyer, which obligation shall survive the Closing.
(c) Cash security deposits made by tenants under Leases shall be
retained by Seller, with Buyer to receive a credit for the amount thereof. Any
discrepancy between the amount credited to Buyer at Closing and the amount
required to be held by the landlord under the applicable lease as of the Closing
Date shall be reconciled between Buyer and Seller within a period of thirty-six
(36) months after the Closing Date. Security deposits consisting of letters of
credit or other property shall be transferred to Buyer upon delivery of a
receipt therefor.
(d) Prepaid and accrued operating expenses including real estate and
personal property taxes, water charges, sewer rents and vault charges shall be
apportioned on a per diem basis between Buyer and Seller using the most recent
assessment, invoice, meter reading or billing. If the Closing shall occur before
the current tax rate or valuation is fixed, the apportionment of taxes at the
Closing shall be upon the basis of the tax rate for the preceding period applied
to the latest assessed valuation. Promptly after the new rate and valuation are
fixed, the apportionment of taxes shall be recomputed Real estate tax refunds
and credits received after the Closing which are attributable to the fiscal tax
year during which the Closing occurs shall be apportioned between Seller and
Buyer, after deducting the costs of collection thereof, pursuant to this
Section. Buyer and Seller will be responsible for reconciling any such refunds
and credits with tenants pursuant to the terms of tenant leases that were in
effect during the period of Buyer's and Seller's ownership of the Property,
respectively. With respect to the real estate tax appeal captioned "The Dock,
Inc. v. Town of Stratford Board of Assessment Appeals and Town of Stratford",
Docket Number CV 01-0383289S concerning the valuation of the Property as of
October 1, 2000, any refund of tax shall be received by Seller and shall be
apportioned by Seller and shared with Buyer, net costs of appeal and protest,
based on their respective shares in which they paid or bore financial
responsibility for real estate taxes paid pursuant to bills issued beginning on
July 1, 2001 and ending on January 1, 2005. Any credit against tax which is
obtained shall be received by Seller but shall be assigned to Buyer upon receipt
and shall be utilized by Buyer against the installment of real estate taxes
coming due immediately following the issuance of the credit by the Town of
Stratford. At the time any such credit is utilized by Buyer, Buyer shall pay
over to Seller an amount of cash equal to the amount of credit utilized. If the
credit is not fully utilized with respect to a particular real estate tax
payment it shall be utilized with respect to the next succeeding real estate tax
bill, and the Buyer shall pay over to Seller at such time an amount of cash
equal of the remaining amount of credit so utilized. The provisions hereof shall
survive the Closing.
(e) Electric gas, telephone and other public utility charges for
services furnished to the Property, on the basis of the actual number of days in
any period covered by the charge being apportioned except that no apportionment
shall be made for any of such items as are furnished and charged by the
applicable utility company directly to Tenants under the Tenant Leases. Seller
shall give all utility providers notice of the transfer of the Property to
Buyer. Fuel, if any, and taxes thereon, on the basis of a reading taken as
recently as possible prior to the Closing, at the price then charged by a
supplier unrelated to either Buyer or Seller.
(f) Seller shall pay all amounts due and owing as of the Closing Date
from Seller to any Tenant for tenant improvements or other tenant inducements
under any Lease.
(g) Prepaid or unpaid amounts under the Contracts, which Buyer has
elected to have assigned to and assumed by Buyer, if any, at Buyer's option
shall be apportioned as provided herein.
(h) None of the insurance policies relating to the Property will be
assigned to Buyer. Accordingly, there will be no proration for insurance
premiums.
(i) If any errors or omissions are made regarding adjustments and
prorations as set forth above, the parties shall make the appropriate
corrections promptly upon the discovery thereof, provided the same are
discovered and written notice thereof is delivered to the other party hereto
within 36 months after the Closing Date. Any error or omission not discovered
within that period shall not thereafter be subject to adjustment. Any net debit
or credit resulting from such recomputation shall be paid promptly in cash.
(j) Seller and Buyer agree that Buyer is not assuming any obligations
of Seller under any commission agreements executed or assumed by Seller prior to
the Closing Date including any obligation to pay commissions for renewals of
existing leases which take place after the Closing Date.
(k) The provisions of this Section 8.1 shall survive the Closing,
without limit as to time except as otherwise specifically stated therein.
ARTICLE IX
INTENTIONALLY OMITTED
ARTICLE X
BROKERAGE
10.1 Brokerage Fees. Seller and Buyer mutually represent and warrant
that they have not dealt with any brokers in connection with this purchase and
sale other than Sentivany & Marcone, Inc. and Gerald J. Kiley, Jr. and Antares
Real Estate Services, L.L.C. (the "Brokers") and that neither Seller nor Buyer
knows of any broker other than the Brokers who has claimed or may have the right
to claim a commission in connection with this purchase and sale. The commission
of the Brokers shall be paid by Buyer pursuant to a separate written agreement
between Broker and Buyer. Seller and Buyer shall indemnify and defend each other
against any costs, claims or expenses, including attorneys' fees, arising out of
the breach on their respective parts of any representations, warranties or
agreements contained in this Section. Seller's indemnification obligation shall
not extend to any liability or cost Buyer may incur on account of the
involvement of the Brokers with the subject transaction. The representations and
obligations under this Section shall survive the Closing or, if the Closing does
not occur, the termination of this Agreement.
ARTICLE XI
NOTICES
11.1 Effective Notices. All notices under this Agreement shall be in
writing and shall be delivered personally or shall be sent by overnight mail,
addressed as set forth below or as Seller or Buyer shall otherwise have given
notice as herein provided. Notices shall be effective on the earlier of (a) the
date when so delivered if delivered personally, (b) one business day after the
date sent if sent by overnight mail or (c) by facsimile transmission on the
first business day on or after the date delivery is made as confirmed.
If to Seller:
The Dock, Inc.
955 Ferry Boulevard
Stratford, CT 06614
Attn: J. Robert Osborne
Telephone No. 203.377.2353
Fax No. 203.377.5951
With a copy to: Lerner & Holmes PC
98 North Washington Street, Suite 550
Boston, MA 02114
Attn: Daniel P. Holmes, Esq.
Telephone No. 617.443.9477
Fax No. 617.443.9471
If to Buyer: UB Dockside, LLC
c/o Urstadt Biddle Properties Inc.
321 Railroad Avenue
Greenwich, CT 06830
Attn: Willing L. Biddle
Telephone No: 203-863-8206
Fax No. 203.861.6755
With a copy to: UB Dockside, LLC
c/o Urstadt Biddle Properties Inc.
321 Railroad Avenue
Greenwich, CT 06830
Attn: Raymond P. Argila
Telephone No. 203-863-8210
Fax No. 203-861-6755
With a copy to: Cummings & Lockwood
Four Stamford Plaza
P.O. Box 120
Stamford, CT 06904-0120
Attn: Michael J. Hinton
Telephone No. 203-351-4492
Fax No. 203-351-4535
ARTICLE XII
DISCLAIMERS AND WAIVERS
12.1 No Reliance. Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller or its brokers or agents to
Buyer in connection with the transaction contemplated hereby. Buyer acknowledges
and agrees that all materials, data and information delivered by Seller to Buyer
in connection with the transaction contemplated hereby are provided to Buyer as
a convenience only and that any reliance on or use of such materials, data or
information by Buyer shall be at the sole risk of Buyer, except as otherwise
expressly stated herein. Without limiting the generality of the foregoing
provisions, except as otherwise specifically set forth in this Agreement. Buyer
acknowledges and agrees that (a) any environmental, engineering, development
potential or other report with respect to the Property which is delivered by
Seller to Buyer shall be for general informational purposes only, (b) Buyer
shall not have any right to rely on any such report delivered by Seller to
Buyer, but rather will rely on its own inspections and investigations of the
Property and reports commissioned by Buyer with respect thereto, and (c) neither
Seller, any affiliate of Seller nor the person or entity which prepared any such
report delivered by Seller to Buyer shall have any liability to Buyer for any
inaccuracy in or omission from any such report.
12.2 Disclaimers. Except for the representations and warranties of
Seller in Article IV of this Agreement and except as otherwise expressly set
forth in this Agreement, it is understood and agreed that Seller is not making
and has not at any time made any warranties or representations of any kind or
character, express or implied, with respect to the Property, including, but not
limited to, any warranties or representations as to habitability,
merchantability, fitness for a particular purpose, title (other than any limited
warranty of title that may be set forth in the Deed), zoning, development or
expansion potential, tax consequences, latent or patent physical or
environmental condition, utilities, operating history or protections, valuation,
governmental approvals, the compliance of the Property with laws, the truth,
accuracy or completeness of the documents or any other information provided by
or on behalf of Seller to Buyer, or any other matter or thing regarding the
Property. Buyer acknowledges and agrees that at the Closing Seller shall sell
and convey to Buyer and Buyer shall accept the Property "as is, where is, with
all faults", except to the extent expressly provided otherwise in this
Agreement. Buyer has not relied and will not rely on, and Seller is not liable
for or bound by, any express or implied warranties, guaranties, statements,
representations or information pertaining to the Property or relating thereto
(including specifically, without limitation, property information packages
distributed with respect to the Property) made or furnished by Seller, the
manager of the property, or any real estate broker or agent representing or
purporting to represent Seller, to whomever made or given, directly or
indirectly, orally or in writing, unless specifically set forth in this
Agreement. Buyer represents to Seller that Buyer has conducted, or will conduct
prior to Closing, such investigations of the Property, including but not limited
to the physical and environmental condition thereof, as Buyer deems necessary to
satisfy itself as to the condition of the Property and the existence or
nonexistence or curative action to be taken with respect to any Hazardous
Materials on, in, under or discharged from the Property, and except as otherwise
specifically set forth in this Agreement, will rely solely upon same and not
upon any information provided by or on behalf of Seller or its agents or
employees with respect thereto. Except as otherwise specifically set forth in
this Agreement, at the Closing, Buyer shall assume the risk that adverse
matters, including but not limited to, construction defects and adverse physical
and environmental conditions, may not have been revealed by Buyer's
investigations, and Buyer, upon Closing, shall be deemed to have waived,
relinquished and released Seller (and Seller's officers, directors,
shareholders, employees and agents) from and against any and all claims,
demands, causes of action (including causes of action in tort), losses, damages,
liabilities, costs and expenses (including attorneys' fees and court costs) of
any and every kind or character, known or unknown, which Buyer might have
asserted or alleged against Seller (and Seller's officers, directors,
shareholders, employees and agents) at any time by reason of or arising out of
any latent or patent construction defects or physical conditions, violations of
any applicable laws (including, without limitation, any environmental laws) and
any and all other acts, omissions, events, circumstances or matters regarding
the Property. Buyer agrees that should any cleanup, remediation or removal of
Hazardous Materials or other environmental conditions on the Property be
required after the Closing Date, such clean-up, removal or remediation shall be
the responsibility of and shall be performed at the sole cost and expense of
Buyer and that, unless the exceptions set forth in Section 7.4(j) hereof are
applicable, Buyer shall not have, and hereby waives, any claim, including,
without limitation, any statutory claims or claims for contribution or joint
liability, against Seller (or Seller's officers, directors, shareholders,
employees and agents). Nothing contained herein shall limit or impair Buyer's
right to seek damages from Seller for a breach of representation or warranty
under this Agreement.
12.3 Effect and Survival of Disclaimers. Urstadt Biddle Properties,
Inc. agrees that for purposes of Sections 12.1 and 12.2 hereof, the definition
of "Buyer" includes Urstadt Biddle Properties, Inc. Seller and Buyer acknowledge
that the compensation to be paid to Seller for the Property takes into account
that the Property is being sold subject to the provisions of this Article XII.
Seller and Buyer agree that the provisions of this Article XII shall survive
Closing.
ARTICLE XIII
ASSIGNMENT
13.1 No Assignment. Except as hereinafter provided, this Agreement
and the rights of Buyer and Seller may not be transferred or assigned in whole
or in part to any other party, whether by voluntary action or by judicial order.
13.2 Intentionally Omitted.
13.3 Code Section 1031 Matters. (a) Further, and notwithstanding the
foregoing, and for the purpose of effecting an exchange under Code Section 1031
(which may include a so-called "reverse exchange"), Buyer may assign its rights
and obligations under this Agreement to a qualified intermediary or a qualified
exchange accommodation title holder or both, (as such terms are used for
purposes of Code Section 1031) or a limited liability company wholly owned by
such qualified exchange accommodation title holder (the "Intermediary") and
receive a subsequent reassignment of such rights and obligations and this
Agreement. Seller acknowledges that Buyer has informed Seller that Buyer intends
to acquire the Property as replacement property in a like-kind exchange (within
the meaning of Section 1031 of the Code) of other property with a third party.
In no event shall Seller have any liability if Buyer's intended like-kind
exchange fails to occur or close or be approved or accepted for any reason
whatsoever. Seller will reasonably cooperate with Buyer if Buyer elects to
utilize a qualifying exchange in connection with the purchase of the Property,
including, but not limited to, the assignment of this Agreement to a
Intermediary (including both a qualified exchange accommodation title holder and
thereafter a qualified intermediary) as defined in the Code, the closing of the
sale through such Intermediary and the re-assignment of this Agreement from such
Intermediary. Seller hereby consents to (a) assignment of this Agreement to such
Intermediary, (b) the re-assignment of this Agreement from such Intermediary to
Buyer and (c) the taking of title by the qualified exchange accommodation title
holder. The Closing of this transaction is not contingent on such exchange and
such exchange shall not delay the closing. In connection therewith, Seller
agrees to execute such documents, or perform such acts, as may be reasonably
necessary to effect said exchange. Seller hereby agrees to acknowledge or
consent to all assignments and notices of assignments to and from the
Intermediary in connection with such like-kind exchange on such assignments and
notices. The exchange will be structured by Buyer at its sole cost and expense
such that Seller will have no obligation to (i) acquire or enter into the chain
of title to any property other than the Property or (ii) incur any cost,
liability or obligations of any nature whatsoever as a result of its limited
participation in the exchange for which Seller would not be reimbursed by Buyer
at Closing. The exchange shall not impair, amend, modify, reduce or in any other
manner whatsoever affect the representations, warranties and covenants of Buyer
to Seller under this Agreement or the survival thereof pursuant to this
Agreement. Seller shall have no obligation to extend any dates for performance,
including but not limited to, the Closing Date, or enter into any modifications
to this Agreement as a result of the exchange. Buyer further acknowledges that
the exchange is at its request and initiation, and Seller in no manner,
expressly or implicitly, participated in or offered tax advice or planning to or
for the benefit of Buyer.
The provisions of this subparagraph shall survive the Closing.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Integration. This Agreement embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein, and all prior agreements, understandings, representations and
statements, oral or written, are merged into this agreement. Neither this
Agreement nor any provision hereof may be waived, modified, amended, discharged
or terminated except by an instrument signed by the party against whom the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
14.2 Confidentiality.
(a) All information (collectively, "Inspection Material")
acquired by Buyer or any employee, officer, director, shareholder, owner,
affiliate, agent or representative of a party (collectively, such party's
"Representatives") with respect to the Property, whether delivered by Seller or
any of its Representatives or obtained by Buyer as a result of its inspection of
the Property, examination of Seller's files or otherwise shall be used solely
for the purpose of determining whether or not the Property is suitable for
Buyer's purposes and for no other reason. All Inspection Material shall be kept
in strict confidence and shall not be disclosed to any individual or entity
other than those Representatives of Buyer who need to know the information for
the purpose of assisting Buyer in making such determination, it being understood
and agreed by Buyer that such Representatives shall be informed by Buyer of the
confidential nature of the Inspection Material and that Buyer shall cause them
to treat such information confidentially. Without limiting the foregoing, the
Inspection Material will not be used by Buyer in any way detrimental to the
Seller or any tenant or occupant of the Property and will be used solely for the
purpose of evaluating a possible acquisition of the Property by Buyer. Without
the prior written consent of Seller, Buyer will not, and will direct all of its
Representatives not to, disclose to any individual or entity either the fact
that discussions or negotiations are taking place concerning any possible
purchase of the Property or any of the terms, conditions or other facts with
respect thereto, including the status thereof. Notwithstanding anything to the
contrary herein, Buyer may disclose any of the Inspection Material (a) to
prospective investors and their respective directors, trustees, officers,
beneficiaries, employees, attorneys, agents and consultants, (b) to directors,
trustees and officers of the parties, and employees, agents, bankers, attorneys,
accountants, consultants, and affiliates of the parties who are involved in this
transaction, and to the Title Company and Escrow Agent, and to Buyer's
consultants who are retained to investigate any of the matters referred to in
Article III, and all such persons who are not officers, directors or employees
of Buyer shall be required to execute non-disclosure agreements running to the
benefit of the Seller; (c) as required by law or governmental regulation or in
response to lawful process or subpoena or other valid or enforceable order of a
court of competent jurisdiction, but only after having given Seller notice of
Buyer's intention to make a disclosure and having afforded the Seller an
opportunity to contest the applicability, propriety and/or legality of the law,
governmental regulation, process, subpoena or other order which purports to
require such disclosure; (d) in any action or proceedings between any parties to
this Agreement; and/or (e) in any filings with governmental authorities required
by reason of the transactions provided for herein, or as may be required to
comply with the filing requirements of applicable law or rule, including but not
limited to the filing of an 8K, 10Q, 10K and other filings required under the
applicable Securities and Exchange Commission Rules or New York Stock Exchange
Rules. The foregoing confidentiality provisions shall not apply to any data,
materials or information which is in the public domain or otherwise available
from another non-confidential source. The provisions of this Paragraph 14.2
shall survive any termination of this Agreement but shall not survive the
Closing.
(b) Buyer will indemnify and hold Seller harmless from and
against any and all loss, liability, cost, damage or expense Seller may suffer
or incur as a result of the disclosure of any Inspection Material in violation
of the above provisions to any individual or entity other than an appropriate
Representative of Buyer and/or the use of any Inspection Material by Buyer or
any Representative thereof for any purpose other than as herein provided.
(c) If the Closing shall fail to take place for any other
reason whatsoever (other than solely as a result of a default by Seller
hereunder), Buyer will, promptly following Seller's request therefor, return to
Seller all Inspection Material in the possession of Buyer or any of its
Representatives and destroy all copies, notes or extracts thereof as well as all
copies of any analyses, compilations, studies or other documents prepared by
Buyer or for its use (whether in written form or contained in database or other
similar form) containing or reflecting any Inspection Material. The delivery or
redelivery of the Inspection Material, as the case may be, to Seller shall not
relieve Buyer of its obligations hereunder.
(d) In the event of a breach or threatened breach by Buyer or
its Representatives of this Section 14.2, Seller shall be entitled to an
injunction restraining Buyer or its Representatives from disclosing, in whole or
in part, any Inspection Material. Nothing herein shall be construed as
prohibiting Seller from pursuing any other available remedy at law or in equity
for such breach or threatened breach. The provisions of this Section 14.2 shall
not survive the Closing, but shall continue in full force and effect
notwithstanding the prior termination of this Agreement pursuant to any right of
termination granted herein or otherwise.
14.3 Public Disclosure. Subject to the provisions of 14.2 and prior to
the Closing, any public release or disclosure of information with respect to the
sale contemplated herein or any matters set forth in this Agreement by either
party will be made only in the form approved by Buyer and Seller and their
respective counsel. In the event of a conflict between Sections 14.2 and 14.3,
Section 14.2 shall be controlling.
14.4 No Recording. Buyer agrees that neither this Agreement nor
any memorandum thereof may be recorded.
14.5 Captions. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this Agreement or any of the provisions hereof.
14.6 Drafts. This Agreement shall not be binding or effective until
properly executed and delivered by both Seller and Buyer.
14.7 Number and Gender. As used in this Agreement, the masculine shall
include the feminine and neuter, the singular shall include the plural and the
plural shall include the singular, as the context may require.
14.8 Attachments. All attached schedules and exhibits are hereby
incorporated as integral parts of this Agreement.
14.9 Records. Buyer and Seller shall cooperate with each other for a
period of three (3) years after Closing by allowing either party and its agents
or representatives access, upon reasonable advance notice (which notice shall
identify the nature of the information sought by the requesting party), at all
reasonable times to examine and make copies of any and all instruments, files
and records relating to the Property in connection with this Agreement, which
right shall survive the Closing.
14.10 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes of this
Agreement. Without limiting the generality of the foregoing, Buyer shall, if
requested by Seller, execute acknowledgments of receipt with respect to any
materials delivered by Seller to Buyer with respect to the Property. The
provisions of this Section 14.10 shall survive Closing.
14.11 Counterparts. This Agreement may be executed in counterparts, and
all such executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart in proving this Agreement.
14.12 Severability. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
14.13 No Third Party Beneficiaries. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Buyer only and are not for the benefit of any third
party. Accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
14.14 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
constriction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any schedules, exhibits or amendments hereto.
14.15 Termination of Agreement. It is understood and agreed that if
either Buyer or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Buyer from all obligations under this Agreement, except for such obligations
as are specifically stated herein to survive the termination of this Agreement.
14.16 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the substantive laws of the State of Connecticut without
regard to conflicts of laws principles. Buyer and Seller agree that the
provisions of this Section 14.16 shall survive the Closing of the transaction
contemplated by this Agreement.
14.17 Merger. Except as specifically provided in this Agreement, the
delivery of the Deed by Seller, and the acceptance thereof by Buyer, shall be
deemed the full performance and discharge of every obligation on the part of
Seller to be performed hereunder.
14.18 Time of Essence. Time is of the essence of this Agreement.
14.19 Limitation of Liability. The obligations of Seller and Buyer
respectively hereunder are binding only on Seller and Buyer respectively and
shall not be personally binding upon, nor shall any resort be had to, the
private properties of any of the partners, officers, directors, members,
shareholders, beneficiaries, advisors or agents of either Buyer or Seller, or of
any partners, officers, directors, members, shareholders, beneficiaries,
advisors or agents of any of the foregoing. All documents executed by Seller or
Buyer shall be deemed to contain (even if not expressly stated) the foregoing
exculpation.
ARTICLE XV
DEFINITIONS
15.1 "Books and Records" means all books, records and Tenant lists
for the Property, together with any and all files, reports, surveys, studies,
projections, budgets and strategic plans prepared by or for Seller in connection
with the ownership, operation, maintenance and/or management of the Property,
excepting, however, all correspondence of Buyer pertaining to intra-corporate
dealings or other proprietary matters which are not necessary to assist or
enable Buyer in exercising rights with respect to the Property.
15.2 "Development Rights" means all rights of the owner to the air
space above the Property, all zoning entitlements, development rights and
appurtenances (including, but not limited to, all entitlements based upon
so-called unused floor-area ratios) accruing to the Property (and/or Seller with
respect to the Property) under, or by reason of, any applicable zoning ordinance
or other laws and all choses in action.
15.3 "Encumbrances" means any and all liens, mortgages, deeds of
trust, security agreements, security interests, claims, options, rights of
purchase or first refusal, encroachments, rights-of-way, operating agreements,
covenants, reservations, orders, decrees, judgments, leases, subleases,
licenses, assignments, agreements, charges, conditions, restrictions, and rights
of others or other encumbrances affecting title to a property.
15.4 "Environmental Laws" means any federal, state or local
statute, law, rule, regulation, ordinance, code, policy, rule or common law,
judicial order, administrative order, consent decree, or judgment now or
hereafter in effect, in each case, as have been amended from time to time,
relating to the environmental, health or safety, including the National
Environmental Policy Act (42 U.S.C. Section et seq.), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 et seq.), as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), as amended by the Hazardous and Solid Waste
Amendments of 1984, the Hazardous Materials Transportation Act (49 U.S.C.
Section 1801 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.), the Clean Water Act (33 U.S.C. Section 1321 et seq.), the Clean Air
Act (42 U.S.C. Section 7401 et seq.), the Occupational Safety and Health Act (29
U.S.C. Section 651 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. Section 3808 et
seq.), or any similar federal, state or local laws, ordinances or regulations
implementing such laws.
15.5 "Governmental Entity" means the United States, the State of
Connecticut any other State in which a party to this Agreement is incorporated
or organized, the County of Fairfield, the municipality or other political
subdivision of any of the foregoing, and any agency, authority, department,
court, commission or other legal entity of any of the foregoing asserting
jurisdiction over any of the parties hereto or over the Property or over the
operation of the business of the Property.
15.6 "Hazardous Materials" means (a) asbestos, radon gas, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated byphenyls in excess of
federal, the State of Connecticut, the County of Fairfield, safety guidelines,
whichever are more stringent, (b) any solid or liquid wastes (including
hazardous wastes), hazardous air pollutants, hazardous substances, hazardous
chemical substances and mixtures, toxic substances, pollutants and contaminants,
as such terms are defined in the National Environmental Policy Act (42 U.S.C.
Section 4321 et seq.), the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended by the
Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et. Seq.), as amended by the Hazardous
and Solid Wastes Amendments of 1984, the Hazardous Materials Transportation Act,
the Toxic Substances Control Act, the Clean Water Act (33 U.S.C. Section 1321
et. Seq.), the Clean Air Act, the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), as such laws and regulations may be amended and/or
supplemented from time to time, or any and all rules and regulations promulgated
under any of the above as such may be amended and/or supplemented from time to
time, or (c) any other chemical material or substances, exposure to which is
prohibited, or, to the extent limited or regulated, limited or regulated by any
Governmental Entity.
15.7 "Leases" or "Tenant Leases" means all leases, rental
agreements, concession agreements, subleases, underleases or other agreements
which permit or authorize the use and occupancy, of every kind whatsoever now
existing or hereafter created or granted with respect to the Property and/or use
and occupancy thereof, together with any and all, if any, guaranties, security
deposits, letters of credit, or other security for performance of a tenant's
obligations thereunder, and all Amendments and/or other agreements forming a
part thereof.
15.8 "Licenses and Permits" means all building and other permits,
certificates, licenses, franchises, authorizations and approvals granted by any
Governmental Entity necessary or useful in connection with the Property and/or
the operation of the improvements thereon or any part thereof including those
issued or granted with respect to any construction or renovation work currently
being undertaken at the Property.
15.9 "Plans" means all architectural, electrical, mechanical,
plumbing and other plans and specifications produced in connection with the
construction, repair and maintenance of the Property (including all revisions
and supplements thereto) and all appraisals, reports and analyses of engineers
and other consultants, operating manuals and other documents pertaining to the
physical operation of the Property.
15.10 "Security Deposits" means all security deposits and/or
prepaid rentals received from any Tenant under any Lease.
15.11 "Tenant" means a tenant, subtenant, undertenant, or
occupant under a Lease.
15.12 "Violation" means any note or notice of any violation of law
noted in or issued by any Governmental Entity against or with respect to a
property, but shall not include valid and legal non-conforming uses.
SIGNATURES FOLLOW ON NEXT PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SELLER:
THE DOCK, INCORPORATED
By: /s/ James Robert Osborne
Name: James Robert Osborne
Title: Vice President
BUYER:
UB DOCKSIDE, LLC
By: /s/ John Ford
Name: John Ford
Title: Duly Authorized Representative
SCHEDULE A
LEGAL DESCRIPTION
SCHEDULE B
LIST OF PERSONAL PROPERTY
TO BE SEPARATED BY PROPERTY
SCHEDULE 4.1
LIST OF LEASES
Bradlees
Lease dated 4/26/91
[Rejected in bankruptcy case]
Staples
Lease dated 5/19/97
Commencement Date Agreement dated 1/21/98
JoAnn Fabrics
Lease dated 4/27/92
Letter Agreement dated 11/13/92
Toy Works
Lease dated 7/25/90
Petco
Lease dated 9/29/94
Fleet Bank
Lease dated 1/26/87
First Amendment signed 8/12/97
Aspen Dental Management, Inc.
Lease dated 2/11/00
SCHEDULE 4.2
LIST OF SERVICE, MAINTENANCE, SUPPLY AND MANAGEMENT CONTRACTS
1. Property Maintenance Agreement by and between The Dock, Inc. and Connecticut
Coal, Inc.
SCHEDULE 4.4
LIST OF LITIGATIONS
None.
Exhibit 4.10
Exceptions to Representation 4.10
None.