\n1. Definitions………………………………………………………………………… 1
\n2. Agreement to Sell and Purchase the Premises……………………………………………. 4
\n3. Purchase Price……………………………………………………………………… 5
\n4. Permitted Exceptions………………………………………………………………… 5
\n5. Closing……………………………………………………………………………. 6
\n6. Apportionments……………………………………………………………………… 8
\n7. Documents to be Delivered at the Closing………………………………………………. 9
\n8. Premises Conveyed As Is; Other Representations and
\n Warranties of Seller………………………………………………………………… 11
\n9. Representations, Warranties and Covenants of Purchaser………………………………….. 13
\n10. Conditions to Seller’s Obligation to Close Title……………………………………….. 15
\n11. Conditions to Purchaser’s Obligation to Close Title…………………………………….. 15
\n12. Risk of Loss……………………………………………………………………….. 16
\n13. Matters Affecting the Premises Until Closing…………………………………………… 17
\n14. Title to the Premises……………………………………………………………….. 18
\n15. Brokers, etc……………………………………………………………………….. 20
\n16. Termination of Agreement; Default…………………………………………………….. 21
\n17. Expenses of the Transaction………………………………………………………….. 23
\n18. Notices……………………………………………………………………………. 24
\n19. Further Assurances………………………………………………………………….. 25
\n20. Governing Law………………………………………………………………………. 25
\n21. Entire Agreement; No Third Party Beneficiary, etc………………………………………. 26
\n22. Waivers; Extensions…………………………………………………………………. 26
\n23. Construction; Severability…………………………………………………………… 26
\n24. Assignment…………………………………………………………………………. 27
\n25. Counterparts……………………………………………………………………….. 27
\n26. No Recording……………………………………………………………………….. 27
\n27. Confidentiality…………………………………………………………………….. 27
\n28. Attorneys’ Fees…………………………………………………………………….. 27
\n<\/c><\/s><\/caption>\n<\/table>\n -i-
\n 3
\n CONTRACT OF SALE<\/p>\n
THIS AGREEMENT (this “Agreement”) is made as of the 11th day
\nof January, 2000, by and between CASTLE SENIOR LIVING, LLC, a Delaware limited
\nliability company, with an office at 405 Cedar Lane, Teaneck, New Jersey 07666
\n(“Seller”), and EDISON SCHOOLS INC., a Delaware corporation with an office at
\n521 Fifth Avenue, 15th Floor, New York, NY 10175 (“Purchaser”).<\/p>\n
W I T N E S S E T H :
\n – – – – – – – – – –<\/p>\n
Seller is the owner of the Land (as hereinafter defined)
\nlocated at and known as 1280-1285 Fifth Avenue, New York, New York, together
\nwith the improvements located thereon (the “Improvements”; the Land and
\nImprovements are herein collectively referred to as the “Premises”) which is
\nmore particularly described in and is the subject of this Agreement.<\/p>\n
Seller desires to sell and convey to Purchaser, the Premises,
\nand Purchaser desires to purchase the same from Seller, subject to and upon all
\nof the terms and conditions of this Agreement.<\/p>\n
NOW, THEREFORE, in consideration of the premises and the
\nmutual undertakings in this Agreement, the parties hereto agree as follows:<\/p>\n
1. DEFINITIONS.<\/p>\n
1.1 Wherever used in this Agreement, the following terms shall
\nhave the meanings set forth in this Article l unless the context of this
\nAgreement clearly requires another interpretation:<\/p>\n
“Affiliate” – shall mean with respect to a particular person
\nor entity, any other person or entity which, directly or indirectly controls, is
\ncontrolled by or is under common control with the named person or entity.<\/p>\n
“Business Day” – shall mean any day other than a Saturday, a
\nSunday or a day on which national banking associations are authorized or
\nrequired to close.<\/p>\n
“Closing” – shall mean the closing of the sale of the Premises
\nby Seller to Purchaser provided for in Article 5.<\/p>\n
“control” – shall mean ownership of 50% or more of the voting
\nstock, membership interests or partnership interests of an entity, or the power
\nto direct the
\n 4
\n 2<\/p>\n
management, operations and policies of a person or entity, whether through
\nownership interest, contract or otherwise.<\/p>\n
“Exhibits” – shall mean the exhibits attached to this
\nAgreement, each of which shall be deemed to form part of this Agreement whether
\nor not so stated in this Agreement.<\/p>\n
“Governmental Authorities” – shall mean all agencies, bureaus,
\ndepartments and officials of federal, state, county, municipal and local
\ngovernments and public authorities having or claiming jurisdiction over the
\nPremises or any part thereof, or over Seller or Purchaser with respect to this
\nAgreement or the transactions contemplated herein.<\/p>\n
“Impositions” – shall mean all real estate and personal
\nproperty taxes, general and special assessments, water and sewer charges,
\nlicense fees and other similar fees and charges assessed or imposed by
\nGovernmental Authorities upon the Premises.<\/p>\n
“knowledge” or “notice” – shall mean actual knowledge of or
\nnotice received by Stanley Diamond, Chairman of Seller who has direct
\nresponsibility for management of the Premises or Seller’s investment therein,
\nwithout independent investigation as to such matters.<\/p>\n
“Improvements” – shall have the meaning ascribed thereto on
\npage 1 of this Agreement.<\/p>\n
“In Rem Parcels” – shall mean Block 1615, Lots 5, 7, 66 and
\n68.<\/p>\n
“Interest Rate” – shall mean the rate of 4% per annum.<\/p>\n
“Leases” – shall mean all leases, licenses, concessions and
\nother forms of agreement, written or oral, however denominated, granting to any
\nparty or parties the right of use or occupancy of any portion of the Premises,
\nand all renewals, modifications, amendments, guaranties and other agreements
\naffecting the same.<\/p>\n
“Legal Requirements” – shall mean all statutes, laws,
\nordinances, rules, regulations, executive orders and requirements of all
\nGovernmental Authorities which are applicable to the Premises or any part
\nthereof or the use or manner of use thereof or construction thereon (including,
\nwithout limitation, building codes and restrictions), or to the owners, Tenants
\nor occupants thereof in connection with such ownership, occupancy or use.<\/p>\n
“Other Agreements” – shall mean all contracts, agreements and
\ndocuments pertaining to the Premises to which Seller or any Affiliate of Seller
\nis a party or by which Seller or any Affiliate of Seller is bound, and shall
\ninclude without
\n 5
\n 3<\/p>\n
limitation all union contracts, service contracts, construction contracts,
\nmanagement, development and leasing agreements, brokerage agreements, zoning lot
\nmerger agreements, restrictive agreements and utility agreements, but shall
\nexclude the Leases. The documents comprising the Other Agreements are listed on
\nExhibit D.<\/p>\n
“Permissible Use” – shall mean a school, museum, offices,
\nand\/or such other use or uses which do not (x) prevent, materially interfere
\nwith, or impose any additional restrictions, requirements, conditions or
\nlimitations upon, Seller’s ability to use the Premises for residential or
\ncommunity facility purposes (including, without limitation, assisted living
\nfacilities) with retail space or (y) reduce the available floor area ratio for
\nthe Premises from that existing on the date hereof.<\/p>\n
“Permitted Exceptions” – shall mean those items specified in
\nArticle 4 and Exhibit B, and all other matters affecting title to the Premises
\nwhich are hereafter accepted in writing by Purchaser, treated in accordance with
\nthe terms of this Agreement, or waived by Purchaser in writing.<\/p>\n
“Purchaser” – shall have the meaning ascribed thereto on page
\n1 of this Agreement.<\/p>\n
“Recording Office” – shall mean the Office of the Register of
\nthe City of New York, New York County.<\/p>\n
“Seller” – shall have the meaning ascribed thereto on page 1
\nof this Agreement.<\/p>\n
“Significant Taking” – shall mean any taking by condemnation
\nor eminent domain other than (x) a taking in connection with a street widening
\nor (y) a taking of a de minimis portion of the Premises.<\/p>\n
“Tenants” – shall mean the tenants, licensees, concessionaires
\nor other users or occupants under Leases.<\/p>\n
“Title Company” – shall mean Commonwealth Land Title Insurance
\nCorporation or such other reputable title insurance company as may be selected
\nby Purchaser.<\/p>\n
“Violations” – shall mean material violations of Legal
\nRequirements existing with respect to the Premises.<\/p>\n
“Zoning Approvals” – shall mean issuance to the extent
\nrequired under applicable zoning law, by the applicable Governmental Authorities
\nof a final, non-appealable zoning variance, special permits or rezoning of the
\nLand and the In Rem Parcels to permit the use thereof for a Permissible Use.
\n 6
\n 4<\/p>\n
1.2 The following additional terms, wherever used in
\nthis Agreement, shall have the respective meanings specified in the Articles or
\nSections of this Agreement set forth below after such terms:<\/p>\n
Terms Sections
\n —– ——–
\n “Adjustment Point” Article 6
\n “Closing Date” Section 5.1
\n “CTIC” Section 14.1
\n “Deed” Section 7.1.1
\n “Deposit” Section 3.1.2
\n “Fence Agreement” Exhibit D
\n “First Additional Deposit” Section 5.3
\n “First Extension Option” Section 5.3
\n “In Rem Sale Approvals” Section 5.3
\n “Land” Section 2.1.1
\n “Premises” Section 2.1
\n “Purchase Price” Article 3
\n “Second Additional Deposit” Section 5.4
\n “Second Extension Option” Section 5.4
\n “Study” Section 13.3<\/p>\n
1.3 Except as otherwise specifically indicated, all
\nreferences in this Agreement to Articles or Sections refer to Articles or
\nSections of this Agreement, and all references to Exhibits refer to Exhibits
\nattached hereto. The words “herein,” “hereof,” “hereinafter,” and words and
\nphrases of similar import refer to this Agreement as a whole and not to any
\nparticular Section or Article.<\/p>\n
2. AGREEMENT TO SELL AND PURCHASE THE PREMISES.<\/p>\n
2.1 Upon and subject to the terms and conditions of
\nthis Agreement, Seller agrees to sell and convey to Purchaser and Purchaser
\nagrees to purchase from Seller, the premises (the “Premises”), which consists of
\nthe following:<\/p>\n
2.1.1 the land more particularly described on Exhibit
\nA annexed hereto, together with, all and singular, the tenements, hereditaments,
\neasements, appurtenances and rights belonging or in any way appertaining
\nthereto, and the reversions and the remainders thereof (the “Land”);<\/p>\n
2.1.2 the Improvements; and<\/p>\n
2.1.3 all right, title and interest, if any,
\nof Seller in and to all of the following (collectively, “Appurtenances”):
\n 7
\n 5<\/p>\n
2.1.3.1 land lying in the bed of
\nany street, highway, road, or avenue, open or proposed, public or private, in
\nfront of or adjoining the Land.<\/p>\n
2.1.3.2 rights of way, highways,
\npublic places, easements, appendages, appurtenances, sidewalks, alleys, strips
\nand gores of land adjoining or appurtenant to the Land which are now or
\nhereafter used in connection with the Premises.<\/p>\n
3. PURCHASE PRICE.<\/p>\n
3.1 The purchase price (the “Purchase Price”) payable
\nby Purchaser to Seller for the Premises shall be TEN MILLION DOLLARS
\n($10,000,000.00), subject to adjustment as provided in Article 6, which shall be
\npayable as set forth below:<\/p>\n
3.1.1 ONE MILLION FIVE HUNDRED THOUSAND
\nDOLLARS ($1,500,000.00) by good check drawn by Purchaser subject to collection
\nor official bank check, in either case drawn on a bank which is a member of the
\nNew York Clearing House Association, to be paid to Seller upon execution and
\ndelivery by Seller and Purchaser of this Agreement;<\/p>\n
3.1.2 FIVE HUNDRED THOUSAND DOLLARS
\n($500,000.00) by good check drawn by Purchaser subject to collection or official
\nbank check, in either case drawn on a bank which is a member of the New York
\nClearing House Association, payable to the order of Seller, or by wire transfer
\nof immediately available federal funds to Seller’s account to be designated by
\nnotice given to Purchaser at least 2 Business Days prior to the date such
\npayment is due; (such sum, together with the sum payable pursuant to Section
\n3.1.1, is herein collectively referred to as the “Deposit”), to be paid to
\nSeller on or prior to February 11, 2000; and<\/p>\n
3.1.3 EIGHT MILLION DOLLARS ($8,000,000.00)
\n(less, to the extent paid pursuant to Sections 5.3 and 5.4 hereof, the amount of
\nthe First Additional Deposit and the Second Additional Deposit), representing
\nthe balance of the Purchase Price, to Seller, by wire transfer of immediately
\navailable federal funds to an account of Seller to be designated by notice given
\nto Purchaser at least 2 Business Days prior to the Closing, or at Seller’s
\noption by unendorsed certified check drawn on a bank which is a member of The
\nNew York Clearing House Association, at the Closing.<\/p>\n
4. PERMITTED EXCEPTIONS.<\/p>\n
4.1 The Premises are sold and are to be conveyed
\nsubject to the following matters (“Permitted Exceptions”):
\n 8
\n 6<\/p>\n
4.1.1 the matters set forth in Exhibit B
\nannexed hereto and made a part hereof;<\/p>\n
4.1.2 liens for Impositions which are not
\ndue and payable as of the Closing Date or which are apportioned in accordance
\nwith Article 6;<\/p>\n
4.1.3 any state of facts a physical
\ninspection of the Premises would show provided the same do not prevent
\nconstruction of improvements on the Premises for the purposes contemplated in
\nthe definition of “Zoning Approvals” in Section 1.1 of this Agreement and the
\nsame do not render title unmarketable;<\/p>\n
4.1.4 zoning, subdivision, environmental,
\nbuilding and all other Legal Requirements applicable to the ownership, use or
\ndevelopment of, or the right to maintain or operate, the Premises, presently
\nexisting or enacted prior to the Closing;<\/p>\n
4.1.5 Violations of which notice has been
\nissued prior to the date hereof, subject to apportionment of fines and\/or
\npenalties levied in connection therewith as set forth in Section 14.1; and
\nViolations of which notice is first issued between the date hereof and the
\nClosing, subject to Seller’s obligations set forth in Section 13.2;<\/p>\n
4.1.6 consents by any former owner of the
\nPremises for the erection of any structure or structures on, under or above any
\nstreets, highways, roads or avenues which the Premises may abut; and<\/p>\n
4.1.7 lis pendens and notices of
\ncommencement of action against Seller (or which affect Seller’s interest in the
\nPremises) which relate to this Agreement or the transactions contemplated hereby
\nor which arise out of or in connection with any actions taken by Purchaser, its
\nemployees, agents or contractors, and any unpaid franchise taxes of Seller,
\nprovided that the Title Company shall provide affirmative insurance reasonably
\nsatisfactory to Purchaser insuring against the collection of such unpaid
\nfranchise taxes out of the Premises.<\/p>\n
5. CLOSING.<\/p>\n
5.1 The Closing shall be held at 10:00 a.m. local
\ntime on July 11, 2000 (as the same may be adjourned or advanced pursuant to the
\nterms of this Agreement, the “Closing Date”), at the offices of Paul, Weiss,
\nRifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York, or
\non such other date, or at such other time and place, which may be agreed upon by
\nthe parties. Purchaser and Seller hereby authorize their respective counsel to
\nexecute and deliver in the names of Purchaser and Seller any agreement(s)
\nconfirming an accelerated or deferred Closing Date or changed place of Closing
\nagreed to by the parties.
\n 9
\n 7<\/p>\n
5.2 At the Closing, the parties shall deliver and
\naccept all executed documents and instruments and take all other action required
\nof them pursuant to this Agreement, unless otherwise provided in this Agreement.<\/p>\n
5.3 Purchaser shall have the option (the “First
\nExtension Option”) to adjourn the Closing Date if, on or before June 29, 2000
\n(TIME BEING OF THE ESSENCE of such date), all of the following shall occur: (i)
\nPurchaser shall have been unable, notwithstanding the exercise of commercially
\nreasonable efforts, to obtain (a) the Zoning Approvals and (b) all approvals
\n(including, without limitation, execution and delivery of a contract of sale for
\nthe In Rem Parcels, and receipt of final non- appealable approvals under the New
\nYork City Uniform Land Use Review Procedure) (collectively, the “In Rem Sale
\nApprovals”) necessary for the City of New York to authorize disposition of the
\nIn Rem Parcels to Purchaser; (ii) Purchaser shall pay the sum of ONE MILLION
\nDOLLARS ($1,000,000.00) (the “First Additional Deposit”) by good check drawn by
\nPurchaser subject to collection or official bank check, in either case drawn on
\na bank which is a member of the New York Clearing House Association, payable to
\nthe order of Seller, or by wire transfer of immediately available federal funds
\nto Seller’s account; and (iii) Purchaser shall notify Seller in writing of the
\noccurrence of the matters referred to in this Section 5.3 and of the exercise by
\nPurchaser of the First Extension Option. Upon the exercise of the First
\nExtension Option, the Closing Date shall be adjourned to January 11, 2001. Upon
\nthe payment of the First Additional Deposit, the term “Deposit” shall be deemed
\nto include the First Additional Deposit.<\/p>\n
5.4 Purchaser shall have the option (the “Second
\nExtension Option”) to adjourn the Closing Date if, on or before December 28,
\n2000 (TIME BEING OF THE ESSENCE of such date), all of the following shall occur:
\n(i) Purchaser shall have been unable, notwithstanding the exercise of
\ncommercially reasonable efforts, to obtain (a) the Zoning Approvals and (b) the
\nIn Rem Sale Approvals; (ii) Purchaser shall pay the sum of FIVE HUNDRED THOUSAND
\nDOLLARS ($500,000.00) (the “Second Additional Deposit”) by good check drawn by
\nPurchaser subject to collection or official bank check, in either case drawn on
\na bank which is a member of the New York Clearing House Association, payable to
\nthe order of Seller, or by wire transfer of immediately available federal funds
\nto Seller’s account; and (iii) Purchaser shall notify Seller in writing of the
\noccurrence of the matters referred to in this Section 5.4 and of the exercise by
\nPurchaser of the Second Extension Option. Upon the exercise of the Second
\nExtension Option, the Closing Date shall be adjourned to April 11, 2001. Upon
\nthe payment of the Second Additional Deposit, the term “Deposit” shall be deemed
\nto include the Second Additional Deposit.<\/p>\n
5.5 TIME SHALL BE OF THE ESSENCE to Purchaser’s and
\nSeller’s obligation to close title on the Closing Date, subject only to (a) in
\nthe case of Purchaser, the First Extension Option and the Second Extension
\nOption, (b) in the case of Seller, Seller’s rights to extend or adjourn the
\nClosing as set forth in Article 14, and (c) the right of either party to adjourn
\nthe Closing for one or more periods not to
\n 10
\n 8<\/p>\n
exceed, with respect to each party, 15 Business Days in the aggregate. Purchaser
\nshall have the right to accelerate the Closing Date to a date which is earlier
\nthan the then-scheduled Closing Date by giving Seller a notice of acceleration,
\nwhich notice shall set forth a date for the Closing which is not earlier than 30
\ndays following the date of such notice and which notice shall state that
\nPurchaser has waived the conditions set forth in Section 11.1.4; Seller’s
\nobligation to close title on the Closing Date as so accelerated shall be
\nsubject, nevertheless, to Seller’s rights to extend or adjourn as provided in
\nclauses (b) and (c) of the preceding sentence of this Section 5.5. Nothing
\ncontained in this Article 5 shall be construed as impairing or abrogating any
\nright granted elsewhere in this Agreement to either party unilaterally to extend
\nthe Closing Date.<\/p>\n
6. APPORTIONMENTS.<\/p>\n
6.1 At the Closing (except where a later date is
\nspecifically provided for in this Article), the parties shall adjust the items
\nset forth below as of 11:59 P.M. on the day preceding the Closing Date (the
\n“Adjustment Point”), and the net amount thereof shall be paid by Purchaser to
\nSeller, or credited by Seller to Purchaser against the balance of the Purchase
\nPrice, as the case may be, at the Closing. At the Closing, the following items
\nshall be apportioned between the parties hereto as of the Adjustment Point, with
\nSeller to be obligated for amounts apportioned to the period through and
\nincluding the Adjustment Point and Purchaser to be obligated for amounts
\napportioned to the period following the Adjustment Point:<\/p>\n
6.1.1 Impositions payable by Seller in
\nrespect of the Premises on the basis of the fiscal year or fiscal years for
\nwhich the same are imposed, whether or not yet due and payable as of the Closing
\nDate. In the case of special assessments payable in installments, the
\ninstallment for the fiscal year in which the Adjustment Point occurs will be
\napportioned as provided above.<\/p>\n
6.1.2 Water and sewer charges, if any,
\npayable by Seller on the basis of the period or periods for which the same are
\npayable. If there are water meters on the Premises or any portion thereof Seller
\nshall furnish readings to a date not more than thirty (30) days prior to the
\nClosing Date, and the unfixed meter charges and the unfixed sewer charges, if
\nany, based thereon for the intervening time shall be apportioned on the basis of
\nsuch last readings.<\/p>\n
6.1.3 Fees and charges payable pursuant to
\nthe Fence Agreement.<\/p>\n
6.1.4 Any other items of income or expense
\nof the Premises which, in accordance with generally accepted accounting
\nprinciples and business practices, should be apportioned between Seller and
\nPurchaser.
\n 11
\n 9<\/p>\n
6.2 Seller will deliver to Purchaser prior to the
\nClosing a copy of a proposed adjustment statement, showing all adjustments to be
\nmade at the Closing. If Purchaser agrees with the figures set forth in such
\nproposed adjustment statement, Purchaser shall notify Seller that Purchaser will
\nexecute and return counterparts of such adjustment statement at the Closing;
\notherwise the parties shall seek immediately to reconcile any difference. To the
\nextent that there is an error or omission in any of the adjustments made and the
\nsame is discovered following the Closing, the parties agree to rectify the same
\nas promptly as possible following such discovery.<\/p>\n
6.3 The provisions of this Article 6 shall survive
\nthe Closing.<\/p>\n
7. DOCUMENTS TO BE DELIVERED AT THE CLOSING.<\/p>\n
7.1 At or prior to the Closing, Seller will deliver
\nor cause to be delivered to Purchaser each of the instruments and documents
\nlisted in this Section 7.1, executed and acknowledged where appropriate, but
\nnone of the documents shall be deemed delivered or any other action taken until
\nall Closing deliveries and actions are complete:<\/p>\n
7.1.1 A bargain and sale deed without
\ncovenant against grantor’s acts (the “Deed”), in proper statutory form for
\nrecording, conveying the fee simple title to the Premises from Seller to
\nPurchaser subject only to the Permitted Exceptions, in the form of Exhibit C.<\/p>\n
7.1.2 An affidavit that Seller is not a
\n“foreign person” within the meaning of Section 1445 of the Internal Revenue
\nCode.<\/p>\n
7.1.3 Counterparts of the adjustment
\nstatement showing all adjustments in respect of the Purchase Price to be made at
\nthe Closing.<\/p>\n
7.1.4 All transfer tax and other tax
\nreturns, if any, which Seller is required by law to execute and acknowledge and
\nto deliver, either individually or together with Purchaser, to any Governmental
\nAuthority as a result of the sale, together with checks made payable to the
\nappropriate Governmental Authority in the required amounts.<\/p>\n
7.1.5 A certificate of Seller that the
\nrepresentations and warranties of Seller set forth in Section 8.3 hereof, are
\ntrue, correct and complete in all material respects as of the Closing Date,
\nsubject to changes between the date hereof and the Closing Date in accordance
\nwith the provisions of Article 13. Notwithstanding the foregoing, those
\nrepresentations which are expressly stated to be made as of the date hereof will
\nnot be redated as of the Closing Date, and (x) Purchaser shall have no claim
\nagainst Seller hereunder if any such representations cease to be true between
\nthe date hereof and the Closing Date, and (y) it shall not be a condition to
\nPurchaser’s
\n 12
\n 10<\/p>\n
obligation to close title on the Closing Date that any such representations
\ncontinue to be true as of the Closing Date.<\/p>\n
7.1.6 A copy of the resolutions of Seller,
\ncertified by the secretary or an assistant secretary of such party, which
\nauthorize (i) the transactions contemplated by this Agreement, and (ii) the
\nexecution of the documents, instruments and agreements to be executed and
\ndelivered by Seller, together with an incumbency certificate of Seller setting
\nforth the name(s) and title(s) of the person(s) executing and delivering such
\ndocuments, instruments and agreements on behalf of Seller.<\/p>\n
7.1.7 A copy of the filed certificate of
\nformation of Seller, certified by the Secretary of State of Delaware, a
\ncertificate of qualification to do business in the State of New York, together
\nwith a certificate of subsistence for Seller from the appropriate officers of
\nthe States of Delaware and New York, dated within thirty (30) days of the
\nClosing Date.<\/p>\n
7.1.8 An assignment to Purchaser of all of
\nSeller’s right, title and interest in, to and under the Fence Agreement.<\/p>\n
7.1.9 Such customary affidavit as may be
\nreasonably required by the Title Company in connection with the issuance to
\nPurchaser of the owner’s policy, provided that such affidavit does not impose on
\nSeller any material liabilities not assumed by it under this Agreement (it being
\nagreed that an affidavit in customary form which is required to remove the
\nstandard pre-printed exceptions for tenants in possession and inchoate liens in
\nrespect of work performed by Seller will not be deemed to impose material
\nliabilities on Seller); and a customary indemnity by Seller in favor of the
\nTitle Company as may be reasonably required by the Title Company in connection
\nwith omission of exceptions for liens of possible unpaid New York State
\nfranchise taxes of Seller and inchoate municipal liens.<\/p>\n
7.1.10 All other instruments and documents,
\nif any, to be executed, acknowledged and delivered by Seller pursuant to any of
\nthe other provisions of this Agreement.<\/p>\n
7.2 At or prior to the Closing, Purchaser will
\ndeliver or cause to be delivered to Seller or such other parties indicated below
\neach of the payments, documents and instruments listed in this Section 7.2, such
\ninstruments and documents to be executed and acknowledged where appropriate, but
\nnone of the documents shall be deemed delivered or any other action taken until
\nall Closing deliveries and actions are complete:<\/p>\n
7.2.1 The balance of the Purchase Price as
\nset forth in subsection 3.1.2 hereof, together with any other sums which are
\npayable to Seller at the Closing.
\n 13
\n 11<\/p>\n
7.2.2 Counterparts of each of the
\ninstruments and documents listed in subsections 7.1.3 and 7.1.4.<\/p>\n
7.2.3 A copy of the resolutions of the Board
\nof Directors of Purchaser, certified to by the secretary or an assistant
\nsecretary of Purchaser, which authorize (i) the transactions contemplated by
\nthis Agreement, and (ii) the execution of the documents, instruments and
\nagreements to be executed and delivered by Purchaser by the person executing and
\ndelivering the same on behalf of Purchaser, together with an incumbency
\ncertificate of Purchaser setting forth the name(s) and title(s) of the person(s)
\nexecuting and delivering such documents, instruments and agreements on behalf of
\nPurchaser.<\/p>\n
7.2.4 A certificate of Purchaser that the
\nrepresentations and warranties of Purchaser set forth in Section 8.2 and Article
\n9 hereof are true, correct and complete as of the Closing Date.<\/p>\n
7.2.5 An acceptance of assignment and
\nassumption by Purchaser of all of Seller’s obligations under the Fence
\nAgreement.<\/p>\n
7.2.6 All other instruments and documents,
\nif any, to be executed, acknowledged and delivered by Purchaser pursuant to any
\nof the other provisions of this Agreement.<\/p>\n
8. PREMISES CONVEYED AS IS; OTHER REPRESENTATIONS AND
\n WARRANTIES OF SELLER.<\/p>\n
8.1 Purchaser acknowledges that, except as expressly
\nset forth in this Agreement and in the documents and instruments delivered at
\nthe Closing, neither Seller nor any agent or representative or purported agent
\nor representative of Seller has made, and Seller is not liable for or bound in
\nany manner by, any express or implied warranties, guaranties, promises,
\nstatements, inducements, representations or information pertaining to the
\nPremises or any part thereof, the physical condition, environmental matters,
\nzoning, income, expenses or operation thereof, the uses which can be made of the
\nsame or any other matter or thing with respect thereto, including, without
\nlimitation, any existing or prospective Leases or Other Agreements. Without
\nlimiting the foregoing, the Purchaser acknowledges and agrees that, except as
\nexpressly set forth in this Agreement and in the documents and instruments
\ndelivered at the Closing, Seller is not liable for or bound by (and Purchaser
\nhas not relied upon) any verbal or written statements, representations, real
\nestate brokers’ “set-ups” or any other information respecting the Premises
\nfurnished by Seller or any broker, employee, agent, consultant or other person
\nrepresenting or purportedly representing Seller.<\/p>\n
8.2 Purchaser represents that it has inspected,
\nexamined and investigated (or has waived, inspection, examination and
\ninvestigation of) the Premises, the physical and environmental conditions
\nthereof, the uses thereof, zoning
\n 14
\n 12<\/p>\n
matters, the Fence Agreement, and the books and records kept by Seller in
\nconnection therewith to its satisfaction, that it has independently
\ninvestigated, analyzed and appraised (or has waived investigation, analysis and
\nappraisal of) the value and the profitability thereof and that, unless otherwise
\nexpressly provided in this Agreement, it is purchasing the Premises “as is” at
\nthe date of this Agreement, subject to reasonable wear and tear and changes
\nbetween the date hereof and the Closing Date in accordance with the provisions
\nof Article 13.<\/p>\n
8.3 Seller hereby represents and warrants to
\nPurchaser as follows:<\/p>\n
8.3.1 Seller is a limited liability company
\nduly organized, validly existing and in good standing under the laws of the
\nState of Delaware; it has the power, right, authority and legal capacity to
\nexecute and deliver this Agreement and the other documents, instruments,
\ncertificates and agreements required to be executed and delivered by it
\nhereunder and to enter into and perform the transactions contemplated hereby.<\/p>\n
8.3.2 All resolutions, authorizations and
\nother actions required to be taken by or on the part of the partners of Seller
\nwhich are necessary to approve or authorize the execution of this Agreement by
\nSeller and the consummation of the transactions contemplated herein have been
\nobtained and taken.<\/p>\n
8.3.3 Neither the entry into nor the
\nperformance of this Agreement by Seller will (i) violate, conflict with, result
\nin a breach under, or constitute a default under, Seller’s organizational
\ndocuments or any indenture, contract, permit, judgment, decree or order to which
\nSeller is a party or by which Seller is bound, or (ii) require the consent of
\nany third party other than as has already been obtained or is otherwise
\nspecifically treated in this Agreement.<\/p>\n
8.3.4 Seller is not a “foreign person”
\nwithin the meaning of Section 1445 of the Internal Revenue Code.<\/p>\n
8.3.5 No Leases affect the Premises.<\/p>\n
8.3.6 No Other Agreements affect the
\nPremises other than the Fence Agreement.<\/p>\n
8.3.7 As of the date hereof, no
\ncondemnation, eminent domain or similar proceeding in which Seller has been
\nserved with process or of which Seller is otherwise aware is pending with
\nrespect to all or any part of the Premises, and Seller has no knowledge that any
\nsuch proceeding is threatened or contemplated.<\/p>\n
8.3.8 Seller has no knowledge of the
\nexistence of any consents of the nature referred to in Section 4.1.6.
\n 15
\n 13<\/p>\n
8.3.9 Seller has no right, title or interest
\nin or to the In Rem Parcels.<\/p>\n
8.3.10 Seller has received no reports
\nrelated to hazardous substances or environmental laws as the same affect the
\nPremises or the In Rem Parcels other than (i) the Phase I Environmental Site
\nAssessment Report, dated August 1997, prepared by E.A.I., Inc. (a copy of which
\nhas previously been delivered to Purchaser), and (ii) the report, dated June 17,
\n1999, and the subsoil investigation plans, dated December 4, 1998 and May 20,
\n1000, prepared by Soil Mechanics Drilling Corp. (copies of which have previously
\nbeen delivered to Purchaser).<\/p>\n
8.3.11 As of the date hereof, Seller has no
\nknowledge of the existence of any Violations which have not been discharged or
\notherwise satisfied.<\/p>\n
8.3.12 As of the date hereof, no litigation
\nis pending or, to Seller’s knowledge, threatened affecting the Premises.<\/p>\n
8.3.13 As of the date hereof, Seller is not
\nthe subject of any voluntary proceedings in bankruptcy or insolvency and, to
\nSeller’s knowledge, Seller is not the subject of any involuntary proceedings in
\nbankruptcy or insolvency.<\/p>\n
8.4 All representations and warranties made herein by
\nSeller which are based on Seller’s knowledge or which refer to notices received
\nby Seller are made, and are hereby acknowledged by Purchaser to be made, without
\nindependent investigation regarding the facts contained therein except as
\notherwise expressly provided herein.<\/p>\n
8.5 The representations and warranties of Purchaser
\nset forth in Sections 8.1 and 8.2 hereof, and the representations and warranties
\nof Seller set forth in subsections 8.3.1 through 8.3.4 hereof shall survive the
\nClosing without limitation as to time. The representations and warranties of
\nSeller set forth in subsections 8.3.5 through 8.3.13 shall survive the Closing
\nfor a period of twelve (12) months.<\/p>\n
8.6 Claims by Purchaser following the Closing based
\non a breach of a warranty or representation shall be made by written notice to
\nSeller within twelve (12) months following the Closing. Each such notice shall
\nset forth in reasonable detail the nature of the claim or claims and the
\nprovision of this Agreement claimed to be breached thereby. In the event that
\nSeller and Purchaser are unable to agree upon the resolution of any such claim,
\nPurchaser shall institute legal proceedings in respect thereof against Seller
\nwithin six (6) months following the date of Purchaser’s written notice to
\nSeller. If Purchaser fails in any case to give written notice to Seller of any
\nsuch claim or to institute legal proceedings in respect of any such unresolved
\nclaim within the time period as aforesaid, then such claim or claims shall be
\ndeemed waived and shall lapse. Seller shall not be liable to Purchaser, nor
\nshall the Purchaser make a
\n 16
\n 14<\/p>\n
claim in any legal proceedings, for the first $50,000 of any damages suffered by
\nPurchaser in the aggregate on account of any breaches of representation or
\nwarranty by Seller hereunder.<\/p>\n
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.<\/p>\n
9.1 Purchaser hereby represents and warrants to
\nSeller as follows:<\/p>\n
9.1.1 Purchaser is a corporation duly
\norganized and validly existing under the laws of the State of Delaware;
\nPurchaser is authorized to do business in the State of New York; it has the
\npower, right, authority and legal capacity to execute and deliver this Agreement
\nand the other documents, instruments, certificates and agreements required to be
\nexecuted and delivered by it hereunder and to enter into and perform the
\ntransactions contemplated hereby.<\/p>\n
9.1.2 All consents, authorizations and other
\nactions required to be taken by or on the part of Purchaser which are necessary
\nto approve or authorize the execution of this Agreement by Purchaser and
\nconsummation of the transactions contemplated herein have been obtained and
\ntaken.<\/p>\n
9.1.3 Neither the entry into nor the
\nperformance of this Agreement by Purchaser will (i) violate, conflict with,
\nresult in a breach under, or constitute a default under, any corporate charter,
\ncertificate of incorporation, by-law, statute, regulatory restriction,
\nindenture, contract, permit, judgment, decree or order to which Purchaser is a
\nparty or by which Purchaser is bound, or (ii) require the consent of any
\nGovernmental Authority or other third party other than as has already been
\nobtained or is otherwise specifically treated in this Agreement.<\/p>\n
9.1.4 Purchaser is not the subject of any
\nvoluntary proceedings in bankruptcy or insolvency and, to Purchaser’s knowledge,
\nPurchaser is not the subject of any involuntary proceedings in bankruptcy or
\ninsolvency.<\/p>\n
9.2 Purchaser covenants to use commercially
\nreasonable efforts to obtain from applicable Governmental Authorities: (i) the
\nZoning Approvals; and (ii) the In Rem Sale Approvals. Purchaser shall notify
\nSeller of the making of any applications, the filing of any requests, and the
\nsending or receipt of any correspondence or other communications (including,
\nwithout limitation, drafts of any of the aforementioned which are to be
\nsubmitted to any Governmental Authority) in connection with such approvals,
\nshall deliver to Seller (x) at least five (5) days before filing with the
\napplicable Governmental Authorities copies of all such applications (including
\namendments thereto and drafts, as aforesaid) related thereto, and (y)
\nsimultaneously with the delivery to the applicable Governmental Authorities
\ncopies of all requests, correspondence and other documentation, and shall at all
\ntimes keep Seller apprised as to the status of the approval processes. In no
\nevent shall Purchaser make,
\n 17
\n 15<\/p>\n
submit or deliver any application or amendment thereto to any Governmental
\nAuthority (A) which does not constitute a Permissible Use, or (B) which shall
\nnot have theretofore been reviewed and approved by Seller to the extent
\nreasonably necessary to determine whether the same complies with the
\nrequirements of this Agreement. Seller agrees to execute such documents as may
\nbe reasonably requested by Purchaser and otherwise reasonably cooperate with
\nPurchaser to enable Purchaser to obtain the Zoning Approvals and the In Rem Sale
\nApprovals; provided Purchaser shall, upon demand, reimburse Seller for all
\nreasonable out-of-pocket costs and expenses (including reasonable attorneys’
\nfees and disbursements), up to an aggregate sum of $25,000.00, incurred or to be
\nincurred by Seller in connection with the review or execution of such documents,
\nthe review of Purchaser’s submissions in connection with obtaining such
\napprovals, or the other matters contemplated by this Section 9.2 to the extent
\nnecessary to determine compliance with this Section 9.2. Purchaser shall pay the
\nexpenses of its own counsel in preparing and negotiating such documents, and
\nshall pay the entire costs of filing any such documents with Governmental
\nAuthorities. In connection with any such approvals (but subject to Article 27),
\nPurchaser may deliver to the applicable Governmental Authorities a photocopy of
\nthis Agreement with the Purchase Price and the amount of all deposits deleted
\ntherefrom.<\/p>\n
9.3 Purchaser covenants to pay each installment of
\nthe Deposit in the manner and on the dates specified in Sections 3.1.1 and
\n3.1.2.<\/p>\n
9.4 The representations and warranties of Purchaser
\nset forth in Section 9.1 shall survive the Closing without limitation as to
\ntime.<\/p>\n
10. CONDITIONS TO SELLER’S OBLIGATION TO CLOSE TITLE.<\/p>\n
10.1 The obligation of Seller to close title under
\nthis Agreement is expressly conditioned upon the fulfillment by and as of the
\nClosing Date of each of the conditions listed below; provided that Seller, at
\nits election, may waive all or any of such conditions; provided, further, that
\nif any of such conditions are not fulfilled or waived, Seller may terminate this
\nAgreement and Article 16 shall govern:<\/p>\n
10.1.1 Purchaser shall have paid to Seller
\nthe balance of the Purchase Price as provided in Article 3 hereof, less any
\ncredits granted to Purchaser and together with other amounts payable by
\nPurchaser to Seller, if any, pursuant to the terms of this Agreement.<\/p>\n
10.1.2 Purchaser shall have delivered or
\ncaused to be delivered at Closing all documents and executed counterparts of
\ndocuments and instruments required by this Agreement to be delivered by
\nPurchaser and shall have taken all other action and fulfilled all other
\nconditions required of Purchaser under this Agreement.
\n 18
\n 16<\/p>\n
10.1.3 All representations and warranties of
\nPurchaser set forth in Sections 8.1 and 8.2 and Article 9 shall be true and
\ncorrect in all material respects on and as of the Closing Date as if made on and
\nas of such date.<\/p>\n
11. CONDITIONS TO PURCHASER’S OBLIGATION TO CLOSE TITLE.<\/p>\n
11.1 The obligation of Purchaser to close title under
\nthis Agreement is conditioned upon the fulfillment by and as of the Closing Date
\nof each of the conditions listed below; provided that Purchaser, at its
\nelection, may waive all or any of such conditions; provided, further, that if
\nany of such conditions are not fulfilled or waived, Purchaser may terminate this
\nAgreement and Article 16 shall govern:<\/p>\n
11.1.1 Seller shall have executed and
\ndelivered or caused to be executed and delivered at or prior to Closing all of
\nthe documents and instruments required by this Agreement to be delivered by
\nSeller and shall have taken all other action and fulfilled all other conditions
\nrequired of Seller under this Agreement.<\/p>\n
11.1.2 The representations and warranties of
\nSeller set forth in Section 8.3 shall be true and correct in all material
\nrespects on and as of the Closing Date as if made on and as of such date,
\nsubject, however, to changes between the date hereof and the Closing Date in
\naccordance with the provisions of Article 13. Notwithstanding the foregoing, it
\nshall not be a condition to Purchaser’s obligation to close title on the Closing
\nDate that any representations which are expressly stated to be made as of the
\ndate hereof continue to be true as of the Closing Date.<\/p>\n
11.1.3 Seller shall have performed its
\ncovenants set forth in Section 13.4(iv) or 13.4(v) or, if Seller shall have
\nbreached such covenants, such breach shall not have irreparably harmed the
\nprocess for Purchaser to obtain the In Rem Sale Approvals or the Zoning
\nApprovals.<\/p>\n
11.1.4 Purchaser shall have obtained the
\nZoning Approvals and the In Rem Sale Approvals.<\/p>\n
12. RISK OF LOSS.<\/p>\n
12.1 If, prior to the Closing Date, a
\nSignificant Taking of the Premises shall occur, or the Premises is the subject
\nof a pending Significant Taking in which title to the Premises has not yet
\nvested in the condemnor, Seller shall notify Purchaser of such fact. Purchaser
\nshall have the option to terminate this Agreement upon notice to Seller given
\nnot later than thirty (30) days after the giving of Seller’s notice. If this
\nAgreement is terminated as aforesaid, the Deposit (together with interest
\nthereon at the Interest Rate from the date the Deposit or each installment
\nthereof is paid to Seller until the date so refunded to Purchaser) shall be
\nreturned to Purchaser and thereafter neither Seller nor Purchaser shall have any
\nfurther rights or obligations to the
\n 19
\n 17<\/p>\n
other hereunder except with respect to those obligations hereunder which
\nexpressly survive termination.<\/p>\n
12.2 In the case of fire or other casualty causing
\ndamage to the Improvements, Seller shall not be obligated to repair such damage
\nor destruction but (x) Seller shall assign and turn over to Purchaser all of the
\ninsurance proceeds net of reasonable collection costs (or, if such have not been
\nawarded, all of its right, title and interest therein) payable with respect to
\nsuch fire or other casualty and (y) the parties shall proceed to Closing
\npursuant to the terms hereof without modification of the terms of this
\nAgreement.<\/p>\n
12.3 In case of a taking, if Purchaser does not
\ntimely elect to terminate this Agreement as aforesaid, or if a taking which is
\nnot a Significant Taking shall occur, there shall be no abatement of the
\nPurchase Price and, after deducting or providing for an allocation or
\nreimbursement to Seller of Seller’s reasonable costs and expenses incurred in
\ncollecting any award, Seller shall assign all remaining awards or any rights to
\ncollect awards to Purchaser on the Closing Date.<\/p>\n
12.4 Purchaser and Seller each hereby waive the New
\nYork Vendor and Purchaser Risk Act (GOL Section 5-1311) and agree that the
\nprovisions of this Article 12 shall govern the respective rights and obligations
\nof Purchaser and Seller with respect to the subject matter of this Article 12.<\/p>\n
13. MATTERS AFFECTING THE PREMISES UNTIL CLOSING.<\/p>\n
13.1 Seller agrees, between the date of this
\nAgreement and the Closing Date, to (i) maintain the Premises in accordance with
\nthe current practices of Seller, and (ii) to make no alterations, additions or
\nimprovements thereto (except as may be required to protect life or safety of
\npersons or property, to properly secure the Premises, or in connection with the
\nFence Agreement), except as otherwise specifically provided in this Agreement.<\/p>\n
13.2 Seller shall notify Purchaser of any of the
\nfollowing matters which occur between the date of this Agreement and the Closing
\nDate: (i) notices of Violations affecting the Premises received by Seller, (ii)
\nlitigation commenced by Seller, or litigation of which Seller has received
\nnotice commenced against Seller, in either case with respect to the Premises,
\n(iii) notices of condemnation proceedings against all or any portion of the
\nPremises received by Seller, and (iv) casualty losses to the Premises. Seller
\nagrees to cure, prior to Closing, any Violation of which notice is first issued
\nbetween the date hereof and the Closing Date the existence of which prevents or
\nwould prevent issuance of a building permit.<\/p>\n
13.3 Between the date hereof and the Closing Date,
\nPurchaser and its authorized representatives, agents and employees shall have
\nthe right, from time to time, upon reasonable advance notice to Seller, to enter
\nupon and pass through the
\n 20
\n 18<\/p>\n
Premises during normal business hours to examine and inspect the same. Purchaser
\nshall have the right, at its own risk, cost and expense, in each case upon
\nreasonable prior notice to Seller and with Seller having the right to have a
\nrepresentative present, to enter, or cause its agents or representatives to
\nenter, upon the Premises for the purpose of making inspections, investigations
\nand\/or studies of the Premises, including environmental, soil and geological
\ntests (each, a “Study”). Purchaser covenants and agrees to supply Seller with
\nthe results of any Study and copies of any report or document created in
\nconnection with any Study promptly after receipt thereof. During the course of
\nany such entry Purchaser shall not cause, and shall not suffer or permit to
\noccur, any damage or injury to the Premises or any part thereof, and Purchaser
\nshall not, and shall not suffer or permit to occur, any material interference
\nwith the management or operation of the Premises. If as a result of any entry or
\nactivities conducted on the Premises by Purchaser or any of its agents,
\ncontractors, consultants or other representatives the Premises sustain any
\ndamage or injury, Purchaser shall pay to Seller on demand the cost of repairing
\nall such damage and injury, which obligation shall survive the termination of
\nthis Agreement. In addition, Purchaser shall indemnify Seller from and against
\nall claims of third parties resulting from any such entry on the Premises by
\nPurchaser or any of its agents, contractors, consultants or other
\nrepresentatives, or any Study or other activities conducted in or on the
\nPremises by them, or any of them, together with all expenses incurred by Seller
\nby reason thereof including, without limitation, reasonable attorneys’ fees and
\ndisbursements, which obligation shall survive the Closing or the termination of
\nthis Agreement. Purchaser shall cause its contractors, agents or representatives
\nperforming any Study to maintain policies of insurance in amounts customary for
\nthe scope of work to be performed at the Premises and to deliver to Seller
\ncertificates of insurance naming Seller as an additional insured under such
\npolicies. In the event of any discrepancy between information contained in the
\nExhibits and information in the underlying documents identified in the Exhibits
\nwhich are made available to Purchaser, the information contained in the
\ndocuments shall be deemed to control and to be known to Purchaser. Purchaser
\nagrees that it shall not interfere with Seller’s operation of the Premises as
\nprovided herein prior to the Closing Date.<\/p>\n
13.4 Between the date hereof and the Closing Date,
\n(i) Seller shall maintain all insurance customarily maintained by Seller on the
\nPremises in full force and effect, (ii) Seller shall not without the prior
\nwritten consent of Purchaser enter into any new Other Agreements for the
\nPremises except those which can be canceled prior to Closing, (iii) Seller shall
\nnot without the prior written consent of Purchaser enter into any new Lease for
\nthe Premises except one that can be canceled prior to Closing, (iv) Seller shall
\nnot acquire or make any application to acquire or take any action in an effort
\nto acquire the In Rem Parcels, and (v) Seller shall not file for any zoning
\nchanges or similar approvals with respect to the Premises or the In Rem Parcels
\nor oppose or interfere with Purchaser’s application made in compliance with
\nSection 9.2.
\n 21
\n 19<\/p>\n
13.5 Seller shall have the right, at any time and
\nfrom time to time, to file applications for the reduction of the assessed
\nvaluation of the Premises and\/or to institute certiorari proceedings to review
\nsuch assessed valuations for tax years commencing prior to the Closing Date (as
\nthe same may be extended). Seller shall have sole control over such proceedings
\nuntil the Closing. After the Closing, Seller shall control the proceedings
\nrelevant to any tax years commencing prior to the closing and Purchaser shall
\ncontrol the proceedings any subsequent tax years. Such control shall include the
\nright to withdraw, compromise and\/or settle any such proceeding and to take,
\nconduct, withdraw and\/or settle appeals, and the non- controlling party consents
\nthereto. Any tax savings or refund for any year or years prior to the tax year
\nin which the Closing occurs shall belong to the Seller. Any tax savings or
\nrefund for the tax year in which the Closing occurs shall be prorated between
\nSeller and Purchaser (based on the number of days of ownership during such tax
\nyear) after deducting all fees and expenses relevant to the proceeding,
\nincluding legal fees. Purchaser will cooperate with Seller in facilitating the
\nsettlement of any tax proceeding and\/or the collecting of any amount of any tax
\nrefund. The provisions of this Section 13.5 shall survive the Closing.<\/p>\n
14. TITLE TO THE PREMISES.<\/p>\n
14.1 Purchaser has ordered and shall deliver to
\nSeller within 20 days following the date hereof a copy of an owner’s title
\ncommitment with respect to the Premises issued by the Title Company. If such
\ntitle commitment shall show that title to the Premises is subject to matters
\nother than the Permitted Exceptions, Seller shall be entitled to adjourn the
\nClosing for one or more periods not to exceed ninety (90) days in the aggregate
\nfrom the Closing Date (as the same may have been extended) for the purpose of
\ncausing title to be conveyed subject only to Permitted Exceptions. If additional
\nmatters affecting title to the Premises become known following the delivery of
\nsuch title commitment to Seller, Seller shall be entitled to adjourn the Closing
\nfor one or more periods not to exceed ninety (90) days in the aggregate from the
\ndate to which the Closing Date had previously been extended, if any, for the
\npurpose of causing title to be conveyed subject only to the Permitted
\nExceptions. If, at the end of the applicable of the above periods, Seller shall
\nbe unable to convey title to the Premises subject only to the Permitted
\nExceptions, either party may terminate this Agreement by notice to the other
\nparty delivered at or prior to the Closing Date as so extended, in which event
\nthis Agreement shall be terminated and of no further force or effect and neither
\nparty shall have any obligations of any nature to the other hereunder or by
\nreason hereof, except that Seller shall return to Purchaser the Deposit
\n(together with interest thereon at the Interest Rate from the date the Deposit
\nor each installment thereof is paid to Seller until the date so refunded to
\nPurchaser), and except as to those obligations hereunder that are specifically
\nstated to survive such termination. Seller shall be under no obligation to take
\nany steps or to institute or prosecute any action or proceedings, or expend any
\nsums of money or effort to remove from title to the Premises any defect,
\nencumbrance or objection to title whether or not the remedying of the defect,
\nencumbrance or objection to title is within Seller’s control; provided,
\n 22
\n 20<\/p>\n
however, that Seller shall be responsible to discharge or cause the Title
\nCompany to omit as exceptions, (x) any liens or encumbrances which do not
\nconstitute Permitted Exceptions, which liens or encumbrances arise on account of
\nobligations voluntarily and intentionally undertaken or actions voluntarily
\nperformed by Seller or (y) any judgment liens which can be discharged solely by
\nthe payment of a sum of money which does not exceed, in the aggregate, for all
\nsuch judgment liens, $50,000.00; provided further, however, Seller’s obligation
\nto discharge or cause the Title Company to omit as exceptions any such liens or
\nencumbrances shall be deemed satisfied if Chicago Title Insurance Company
\n(“CTIC”) agrees to issue to Purchaser an owner’s title insurance policy which
\n(x) omits as exceptions any such liens or encumbrances and (y) otherwise
\ncomplies with the requirements of this Article 14. Seller may use any part of
\nthe Purchase Price to discharge the same, provided that Seller shall deliver to
\nPurchaser or the Title Company at the Closing instruments in recordable form
\nsufficient for the Title Company to discharge such liens and encumbrances of
\nrecord. Except for Seller’s failure to discharge or cause the Title Company or
\nCTIC to omit as exceptions such liens or encumbrances as aforesaid, Seller shall
\nnot be deemed in default of this Agreement, and Purchaser shall not be entitled
\nto damages of any kind by reason of the failure of Seller, for any reason
\nwhatsoever, to convey title to the Premises in accordance with the provisions of
\nthis Agreement, nor shall Purchaser in such circumstances be entitled to
\nspecific performance of this Agreement. The existence of any Violations or fines
\nand\/or penalties associated therewith shall not be an objection to title;
\nprovided, however, that (i) with respect to Violations, if any, of which notice
\nhas been issued prior to the date hereof, Purchaser shall be responsible to pay
\nor discharge the first $50,000.00 in fines and\/or penalties levied in connection
\nwith such Violations, and Seller shall be responsible to pay or discharge any
\nadditional fines and\/or penalties levied in connection with such Violations up
\nto a maximum aggregate amount of $50,000.00 and (ii) with respect to Violations
\nof which notice is first issued between the date hereof and the Closing, Seller
\nshall be obligated to cure the same if so required under Section 13.2.<\/p>\n
14.2 Purchaser, at its election, evidenced by notice
\ngiven to Seller at any time prior to, or within five (5) Business Days
\nfollowing, notice from Seller to terminate this Agreement pursuant to Section
\n14.1, but in any event on or before 10 A.M. on the Closing Date, may in writing
\naccept such title as Seller can convey, without reduction of the Purchase Price
\nor any credit or allowance on account thereof or any claim against Seller by
\nreason thereof.<\/p>\n
14.3 If at the Closing the Premises is subject to any
\nmatter encumbering title thereto other than matters which Seller is obligated to
\ndischarge under Section 14.1 or Permitted Exceptions, such matter shall not be
\ndeemed grounds for termination of this Agreement or any other remedy if the
\nTitle Company or CTIC will affirmatively insure against enforcement of such
\nmatter against the Premises by endorsement reasonably satisfactory to Purchaser,
\nat Seller’s expense, if any. Except as set forth in Section 14.1, nothing in
\nthis Section 14.3 shall be deemed to create any obligation on the part of Seller
\nto satisfy or to cause the Title Company or CTIC to
\n 23
\n 21<\/p>\n
issue affirmative insurance over any such liens, encumbrances or matters
\naffecting title which are not Permitted Exceptions.<\/p>\n
14.4 The acceptance of the Deed by Purchaser from
\nSeller shall be deemed full performance on the part of Seller of all of its
\nobligations under this Agreement (including all promises, agreements,
\nconditions, representations and warranties), except as to any such obligation
\nwhich is specifically stated in this Agreement to survive the Closing or is
\nexpressly contained in the documents delivered at Closing.<\/p>\n
14.5 Notwithstanding anything herein to the contrary,
\nPurchaser acknowledges the existence of record of that certain Agreement,
\nbetween The City of New York and East Harlem Block Nursery, Inc., dated March
\n30, 1984, recorded in the Office of the City Register for New York County on
\nOctober 19, 1984 in Reel 841, Page 849, a copy of which has heretofore been
\ndelivered to Purchaser. Purchaser agrees that the such Agreement shall not be
\ndeemed an objection to title if the Title Company (or, if the Title Company
\nrefuses to do so, CTIC) shall omit the same as an exception.<\/p>\n
15. BROKERS, ETC.<\/p>\n
15.1 Seller warrants and represents to Purchaser that
\nneither Seller nor any Affiliate of Seller has dealt with any broker, finder or
\nlike agent who might claim a commission or fee in connection with the
\ntransactions contemplated in this Agreement or on account of introducing the
\nparties, the preparation or submission of brochures, the negotiation or
\nexecution of this Agreement or the Closing of the transactions contemplated
\nherein. Seller agrees to indemnify and hold harmless Purchaser and its
\nsuccessors and assigns from and against any and all claims, losses, liabilities
\nand expenses, including without limitation reasonable attorneys’ fees,
\ndisbursements and charges, arising out of any claim or demand for commissions or
\nother compensation for bringing about this transaction by any broker, finder or
\nsimilar agent or party who claims to have dealt with Seller or any affiliate
\nthereof in connection with this transaction.<\/p>\n
15.2 Purchaser warrants and represents to Seller that
\nneither Purchaser, nor any Affiliate of Purchaser, has dealt with any broker,
\nfinder or like agent who might claim a commission or fee in connection with the
\ntransactions contemplated in this Agreement or on account of introducing the
\nparties, the preparation or submission of brochures, the negotiation or
\nexecution of this Agreement or the closing of the transactions contemplated
\nherein other than Pacheco & Lugo (Carmen Pacheco) (the “Broker”), whose
\ncompensation, if any, Purchaser agrees to pay pursuant to a separate agreement.
\nPurchaser agrees to indemnify and hold harmless Seller and its successors and
\nassigns from and against any and all claims, losses, liabilities and expenses,
\nincluding without limitation reasonable attorneys’ fees, disbursements and
\ncharges, arising out of any claim or demand for commissions or
\n 24
\n 22<\/p>\n
other compensation for bringing about this transaction by the Broker or any
\nother broker, finder or similar agent or party who claims to have dealt with
\nPurchaser or any affiliate thereof in connection with this transaction.<\/p>\n
15.3 The provisions of this Article 15 shall survive
\nthe Closing or termination of this Agreement.<\/p>\n
16. TERMINATION OF AGREEMENT; DEFAULT.<\/p>\n
16.1 If this Agreement shall terminate or be
\nterminated (i) by mutual consent of Seller or Purchaser, (ii) pursuant to the
\nexpress provisions of Sections 12.1 or 14.1, or (iii) because one or more
\nconditions to Purchaser’s obligation to close title as set forth in Article 11
\n(other than Section 11.1.4, which shall not entitle Purchaser to terminate this
\nAgreement) shall fail to be fulfilled or waived by Purchaser, and such failure
\nis not due to the default by Purchaser of its obligations hereunder, then upon
\nsuch termination (A) at Seller’s option, Purchaser shall assign and transfer to
\nSeller all of Purchaser’s right, title and interest in and to the In Rem
\nParcels(to the extent assignable and, if Purchaser shall theretofore have
\nacquired title to the In Rem Parcels, Purchaser shall transfer same to Seller
\nupon the same terms as Purchaser acquired the same and Seller shall pay
\nPurchaser its actual, out-of-pocket cost to acquire same), and (B) Seller shall
\nreturn to Purchaser the Deposit (together with interest thereon at the Interest
\nRate from the date the Deposit or each installment thereof is paid to Seller
\nuntil the date so refunded to Purchaser). Except for the foregoing, and for
\nthose obligations hereunder that are specifically stated to survive termination
\nhereof, following the termination of this Agreement neither party shall have any
\nobligations of any nature to the other hereunder or by reason hereof.<\/p>\n
16.2 If at the Closing Date either (i) the conditions
\nto the obligation of Seller to close title as set forth in Article 10 hereof
\nhave not been fulfilled on account of the default of Purchaser hereunder, and
\nsuch conditions have not been waived by Seller, and the Closing shall not occur,
\nor (ii) this Agreement shall terminate or be terminated because one or more
\nconditions to Purchaser’s obligation to close title as set forth in Section
\n11.1.4 shall not have been fulfilled and such condition shall not have been
\nwaived by Purchaser, or if Purchaser shall breach any covenant set forth in
\nSection 9.2, then and in any such event (A) at Seller’s option, Purchaser shall
\nassign and transfer to Seller all of Purchaser’s right, title and interest in
\nand to the In Rem Parcels (to the extent assignable and, if Purchaser shall
\ntheretofore have acquired title to the In Rem Parcels, Purchaser shall transfer
\nsame to Seller upon the same terms as Purchaser acquired the same and Seller
\nshall pay Purchaser its actual, out-of-pocket cost to acquire same), and (B)
\nSeller shall be entitled, as its sole remedy (other than the right to seek
\nspecific performance of Purchaser’s obligations set forth in clause (A) of this
\nSection 16.2 and in clause (A) of Section 16.1, and the right to payment of
\nattorneys’ fees, as provided in Article 28), to retain the Deposit as liquidated
\ndamages for loss of a bargain and not as a penalty. Purchaser and Seller agree
\nthat such liquidated damages are based in part upon the following damages which
\nSeller shall
\n 25
\n 23<\/p>\n
suffer on account of a default by Purchaser and the failure of the Closing to
\noccur, which damages Purchaser and Seller agree are incapable of an exact
\ndetermination of amount: the removal of the Premises from the real estate market
\nduring the period of this Agreement and the loss of the possibility of obtaining
\na new purchaser during such time at a higher amount; the possibility of being
\nunable to find a new purchaser for the amount of the Purchase Price after
\nPurchaser’s default; various restrictions related to the management and
\nmaintenance of the Premises during the period of this Agreement, including
\nwithout limitation restrictions against entering into new Leases; and the
\ninconvenience of relisting the Premises for lease and\/or sale. PURCHASER
\nEXPRESSLY ACKNOWLEDGES AND AGREES THAT THE DEPOSIT (INCLUDING, TO THE EXTENT
\nPAID, THE FIRST ADDITIONAL DEPOSIT AND THE SECOND ADDITIONAL DEPOSIT) SHALL BE
\nNON-REFUNDABLE AND SHALL BE RETAINED BY SELLER EXCEPT TO THE EXTENT EXPRESSLY
\nPROVIDED IN SECTION 16.1 HEREOF. THE PROVISIONS OF THIS AGREEMENT REGARDING
\nNON-REFUNDABILITY OF THE DEPOSIT (INCLUDING, TO THE EXTENT PAID, THE FIRST
\nADDITIONAL DEPOSIT AND THE SECOND ADDITIONAL DEPOSIT) CONSTITUTE A MATERIAL
\nINDUCEMENT TO SELLER TO ENTER INTO THIS AGREEMENT AND PURCHASER ACKNOWLEDGES
\nTHAT, ABSENT SUCH PROVISIONS, SELLER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
\nPURCHASER SHALL HAVE NO INTEREST IN OR CLAIM TO REFUND OF ALL OR ANY PORTION OF
\nTHE DEPOSIT (INCLUDING, TO THE EXTENT PAID, THE FIRST ADDITIONAL DEPOSIT AND THE
\nSECOND ADDITIONAL DEPOSIT) EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN SECTION
\n16.1 HEREOF.<\/p>\n
PURCHASER’S INITIALS<\/p>\n
16.3 If at the Closing Date the conditions to the
\nobligation of Purchaser to close title as set forth in Article 11 hereof have
\nnot been fulfilled on account of the willful default of Seller hereunder, and
\nsuch conditions have not been waived by Purchaser, and the Closing shall not
\noccur, then Purchaser shall be entitled to seek specific performance of Seller’s
\nobligations under this Agreement. If Seller shall willfully default under its
\nobligations hereunder, then Purchaser shall be entitled to seek to enjoin such
\nwillful default of Seller and, if such final, non-appealable injunctive relief
\nis granted against Seller then, provided Purchaser timely deposits into escrow
\nwith Seller’s attorneys the amount of the First Additional Deposit or the Second
\nAdditional Deposit, as applicable, the date by which the First Extension Option
\nor the Second Extension Option are required to be exercised and the Closing Date
\n(as theretofore extended) shall be extended by a period equal to the number of
\ndays from the date such breach commenced until such judgment is issued.
\nPurchaser hereby waives any right to sue Seller for damages (including, without
\nlimitation, consequential and punitive damages, but excluding (i) its right to
\nthe payment of attorneys’ fees as provided in Article 28 and (ii) the right to
\nseek actual damages (but not consequential or punitive damages) upon the
\nissuance of a final, non-appealable judgment finding that
\n 26
\n 24<\/p>\n
Seller has committed fraud or intentional waste)) for any default hereunder. No
\npartner, officer, or member of Seller shall have any personal liability,
\ndirectly or indirectly, to Purchaser hereunder, and Purchaser, for itself and
\nits successors and assigns, hereby waives all rights to proceed directly and
\npersonally against any partner, officer, or member of Seller or against any
\nassets of any such partner, officer, or member under or in connection with this
\nAgreement.<\/p>\n
16.4 The provisions of this Article 16 shall survive
\nthe termination of this Agreement.<\/p>\n
17. EXPENSES OF THE TRANSACTION.<\/p>\n
17.1 Seller shall pay the New York State Real Estate
\nTransfer Tax, New York City Real Property Transfer Tax and the New York City
\nReal Property Transfer Tax Return Filing Fee, and any other like taxes or
\ncharges imposed by Governmental Authorities on the transfer of the Premises.
\nSeller shall pay all recording and filing fees and charges in connection with
\nsatisfaction of any liens or encumbrances to be removed or satisfied by Seller
\npursuant to Section 14.1. Purchaser shall pay all other recording and filing
\nfees and charges in connection with such transfer.<\/p>\n
17.2 Purchaser and Seller shall each execute,
\nacknowledge and deliver at the Closing all affidavits, returns and supporting
\ndocumentation required by Governmental Authorities in connection with the New
\nYork State Real Estate Transfer Tax, the New York City Real Property Transfer
\nTax and any sales (including bulk sales) or use taxes.<\/p>\n
17.3 Seller shall deliver to the Title Company at
\nClosing certified checks in the respective amounts of the New York State Real
\nEstate Transfer Tax and New York City Real Property Transfer Tax payable by
\nSeller pursuant to the terms of Section 17.1, payable to the order of the
\nappropriate governmental officer; provided that Seller may direct that Purchaser
\ndeliver such checks directly to the Title Company and the amount of such checks
\nshall be credited against the balance of the Purchase Price due to Seller.<\/p>\n
17.4 Purchaser shall pay all title insurance and
\nsurvey charges in connection with the transfer of the Premises.<\/p>\n
17.5 Each party shall pay the fees, charges and
\ndisbursements of its own counsel, accountants and other advisors in connection
\nwith the negotiation and preparation of this Agreement and the Closing.<\/p>\n
17.6 The provisions of this Article 17 shall survive
\nthe Closing (or, with respect to Sections 17.4 and 17.5, the termination) of
\nthis Agreement.
\n 27
\n 25<\/p>\n
18. NOTICES.<\/p>\n
Except as otherwise provided in this Agreement, all notices,
\ndemands, requests, consents, approvals or other communications which are
\nrequired or permitted to be given under this Agreement or which either party
\ndesires to give with respect to this Agreement shall be in writing and shall be
\ndeemed to have been properly given or served if (i) delivered by hand, (ii) sent
\nby telecopy with the original sent by first-class mail, postage prepaid, (iii)
\nsent by registered or certified mail, postage prepaid, return receipt requested,
\nor (iv) sent by reputable overnight courier service for next Business Day
\ndelivery with requirement of signed receipt upon delivery, in each case
\naddressed to the party to be notified as follows (or to such other address as
\nsuch party shall have specified at least ten (10) days prior thereto by like
\nnotice):<\/p>\n
if to Seller, to:<\/p>\n
Castle Senior Living, LLC
\n 405 Cedar Lane
\n Teaneck, New Jersey 07666
\n Attention: Stanley Diamond, Esq.
\n Telecopier: (201) 836-5577<\/p>\n
with a copy at the same time to:<\/p>\n
Paul, Weiss, Rifkind, Wharton & Garrison
\n 1285 Avenue of the Americas
\n New York, New York 10019-6064
\n Attention: Meredith J. Kane, Esq.
\n Telecopier (212) 373-2322<\/p>\n
if to Purchaser, to:<\/p>\n
Edison Schools Inc.
\n 521 Fifth Avenue, 15th Floor
\n New York, New York 10175
\n Attention: David A. Graff, Esq.,
\n Deputy General Counsel
\n Telecopier: (212) 419-1868<\/p>\n
with a copy at the same time to:<\/p>\n
Gibson, Dunn & Crutcher LLP
\n 200 Park Avenue
\n New York, New York 10166
\n Attention: Joanne Franzel, Esq.
\n Telecopier: (212) 351-4035
\n 28
\n 26<\/p>\n
Notices shall be deemed given when delivered by hand, or if delivered by
\ntelecopy when telecopied (provided, however, notices delivered by telecopy on a
\nday which is not a Business Day or after 5:00 p.m. on a Business Day shall be
\ndeemed given on the next Business Day), or if delivered only by mail, three (3)
\ndays after mailing or one (1) Business Day after deposit with an overnight
\ncourier service, in each case with failure to accept delivery to constitute
\ndelivery for purposes hereof.<\/p>\n
19. FURTHER ASSURANCES.<\/p>\n
19.1 Each of Seller and Purchaser agrees, at any time
\nand from time to time after the Closing, to execute, acknowledge, where
\nappropriate, and deliver such further instruments and documents and to take such
\nother action as the other party may reasonably request in order to carry out the
\nintents and purposes of this Agreement, provided that (i) such request is made
\nby notice given within two (2) years of the Closing Date and (ii) the documents
\nrequested to be delivered or actions requested to be taken impose no additional
\nliability on the party delivering or taking the same than is imposed under this
\nAgreement or in the documents delivered at the Closing. If required by the party
\nreceiving the request, the party making the request will bear the reasonable
\ncost involved.<\/p>\n
19.2 The provisions of this Article 19 shall survive
\nthe Closing.<\/p>\n
20. GOVERNING LAW.<\/p>\n
20.1 This Agreement shall be construed, interpreted
\nand enforced in accordance with the laws of the State of New York applicable to
\ncontracts negotiated, executed and to be performed wholly within such State.<\/p>\n
20.2 Each party hereto acknowledges that it was
\nrepresented by counsel in connection with this Agreement and the transactions
\ncontemplated herein, that it and its counsel reviewed and participated in the
\npreparation and negotiation of this Agreement and the documents and instruments
\nto be delivered hereunder, and that any rule of construction to the effect that
\nambiguities are to be resolved against the drafting party shall not be employed
\nin the interpretation of this Agreement or the documents and instruments to be
\ndelivered hereunder.<\/p>\n
21. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARY, ETC.<\/p>\n
This Agreement, including all Exhibits, constitutes the entire
\nagreement between the parties with respect to the subject matter hereof and
\nsupersedes all prior understandings, if any, with respect thereto. The parties
\nhave made no representations with respect to the subject matter of this
\nAgreement and have given no warranties with respect to the subject matter hereof
\nexcept as expressly provided herein and\/or expressly provided in the documents
\ndelivered at Closing. This Agreement may not be modified, changed, supplemented
\nor terminated, nor may any obligations hereunder be
\n 29
\n 27<\/p>\n
waived, except by written instrument signed by the party to be charged or by its
\nagent duly authorized in writing or as otherwise expressly permitted herein. The
\nparties do not intend to confer any benefit hereunder on any person, firm or
\ncorporation other than the parties hereto. The provisions of this Article 21
\nshall survive the Closing or termination of this Agreement.<\/p>\n
22. WAIVERS; EXTENSIONS.<\/p>\n
No waiver of any breach of any agreement or provision herein
\ncontained shall be deemed a waiver of any preceding or succeeding breach thereof
\nor of any other agreement or provision herein contained. No extension of time
\nfor performance of any obligation or act shall be deemed an extension of the
\ntime for performance of any other obligations or acts. The provisions of this
\nArticle 22 shall survive the Closing or termination of this Agreement.<\/p>\n
23. CONSTRUCTION; SEVERABILITY.<\/p>\n
Headings at the beginning of each Article and Section are not
\na part of this Agreement. Whenever required by the context of this Agreement,
\nthe singular shall include the plural and the masculine shall include the
\nfeminine and vice versa. This Agreement shall not be construed as if it had been
\nprepared by one of the parties, but rather as if both parties had prepared the
\nsame. All Exhibits and Schedules referred to in this Agreement are attached and
\nincorporated herein by reference, and any capitalized term used in any Exhibit
\nwhich is not defined in such Exhibit shall have the meaning attributed to such
\nterm in the body of this Agreement. In the event the date on which Purchaser or
\nSeller is required to take any action under the terms of this Agreement is not a
\nBusiness Day, the action shall be taken on the next succeeding Business Day. If
\nany provision of this Agreement shall be deemed invalid, it shall be deemed
\nsevered from this Agreement and the remainder of this Agreement shall be
\ninterpreted as if such invalid provision had not been contained herein.<\/p>\n
24. ASSIGNMENT.<\/p>\n
Purchaser shall not have the right, without the prior written
\nconsent of Seller, which may be withheld or granted in Seller’s sole discretion,
\nto assign this Agreement or its rights hereunder, in whole or in part, to any
\nother person; provided, however, Purchaser may upon 5 Business Days’ notice to
\nSeller (a) at any time assign this Agreement to a for-profit corporation or
\nother for-profit business entity controlled by Purchaser or (b) a not-for-profit
\nentity formed for the purpose of owning the Premises or (c) simultaneously with
\nthe Closing, assign this Agreement or designate another entity to take title to
\nthe Premises, provided no assignment or designation pursuant to any provision of
\nthis Article 24 shall effect a release of Purchaser named herein (i.e., Edison
\nSchools Inc.) from any of its obligations hereunder; provided, however, that the
\nliability of the Purchaser named herein shall not be greater than it
\n 30
\n 28<\/p>\n
would have been had Purchaser not so assigned this Agreement (other than any
\nincreased liability caused by the acts of such assignee or the making of the
\nassignment).<\/p>\n
25. COUNTERPARTS.<\/p>\n
This Agreement may be executed in counterparts, each of which
\n(or any combination of which, signed by all of the parties) shall be deemed an
\noriginal, but all of which, taken together, shall constitute one and the same
\ninstrument.<\/p>\n
26. NO RECORDING.<\/p>\n
The parties agree that neither this Agreement nor any
\nmemorandum or notice thereof shall be recorded.<\/p>\n
27. CONFIDENTIALITY.<\/p>\n
Seller agrees that it will treat as confidential the drafts of
\ndocuments submitted by Purchaser to Seller pursuant to Section 9.2 hereof until
\nsuch documents are submitted to the applicable Governmental Authority, other
\nthan disclosure to Seller’s attorneys, accountants and consultants, if any, and
\nexcept as may be required or compelled by law. Neither party shall issue any
\npress release or other publicity regarding the transaction contemplated by this
\nAgreement without the consent of the other party. If this Agreement is
\nterminated or the Closing does not otherwise occur, Purchaser shall redeliver to
\nSeller all materials with respect to the Premises furnished to it by or at the
\nbehest of Seller and shall destroy all copies thereof and notes relating thereto
\nand certify to Seller in writing that it has done so. The provisions of this
\nArticle 27 shall survive the termination of this Agreement.<\/p>\n
28. ATTORNEYS’ FEES.<\/p>\n
In connection with any litigation, including appellate
\nproceedings, initiated by a party hereto against the other party hereto and
\narising out of this Agreement, the party adjudicated to be the substantially
\nprevailing party shall be entitled to recover reasonable attorneys’ fees and
\ndisbursements from the other party. The provisions of this Article 28 shall
\nsurvive the Closing or any termination of this Agreement.
\n 31
\n 29<\/p>\n
IN WITNESS WHEREOF, the parties have duly executed this
\nAgreement as of the day and year first above written.<\/p>\n
SELLER:<\/p>\n
CASTLE SENIOR LIVING, LLC<\/p>\n
By: \/s\/ Stanley Diamond
\n ———————————————–
\n Name: Stanley Diamond
\n Title: Chairman<\/p>\n
EIN: 22-3542422<\/p>\n
PURCHASER:<\/p>\n
EDISON SCHOOLS INC.<\/p>\n
By: \/s\/ Adam Feild
\n ———————————————–
\n Name: Adam Feild
\n Title: Senior Vice President, Finance<\/p>\n
EIN: 13-3915075
\n 32
\n SCHEDULE OF EXHIBITS<\/p>\n
\n\n
\nExhibit A Description of the Property<\/p>\nExhibit B Permitted Exceptions<\/p>\n
Exhibit C Form of Deed<\/p>\n
Exhibit D Other Agreements
\n<\/c><\/s><\/caption>\n<\/table>\n
33
\n EXHIBIT A
\n LEGAL DESCRIPTION<\/p>\n
PARCEL I<\/p>\n
ALL that certain plot, piece or parcel of land, situate, lying and being in the
\nBorough of Manhattan, County of New York, City and State of New York, bounded
\nand described as follows:<\/p>\n
BEGINNING at the corner formed by the intersection of the easterly side of 5th
\nAvenue with the northerly side on East 109th Street;<\/p>\n
RUNNING THENCE Northerly along the easterly side of 5th Avenue seventy-nine feet
\neight inches;<\/p>\n
THENCE Easterly parallel with 109th Street and part of the distance through a
\nparty wall one hundred feet;<\/p>\n
THENCE Southerly parallel with 5th Avenue seventy-nine feet eight inches to the
\nnortherly side of 109th Street; and<\/p>\n
THENCE Westerly along the northerly side of 109th Street one hundred feet to the
\npoint or place of BEGINNING.<\/p>\n
PARCEL II<\/p>\n
ALL that certain plot, piece or parcel of land, situate, lying and being in the
\nBorough of Manhattan, County of New York, City and State of New York, bounded
\nand described as follows:<\/p>\n
BEGINNING at the corner formed by the intersection of the easterly side of 5th
\nAvenue and the southerly side of a public street or square legally opened on
\n3\/18\/89 pursuant to Chapter 421 of the Laws of 1886 and now or formerly called
\nFrawley Square;<\/p>\n
RUNNING THENCE Easterly along the southerly side of said street or square,
\n100 feet;<\/p>\n
THENCE Southerly parallel with Fifth Avenue, 21 feet 3 inches, more or less to
\nthe northerly side of the property conveyed by Peace Company, Inc. to Milton
\nShubert by deed dated 1\/21\/49 and recorded 1\/25\/49 in Liber 4607, Cp. 492 in the
\nOffice of the Register of the City of New York in New York County;
\n 34
\n 2<\/p>\n
RUNNING THENCE Westerly parallel with 109th Street and through a party wall and
\nalong the northerly side of land conveyed to Milton Shubert by deed above
\nmentioned, 100 feet to the easterly side of Fifth Avenue; and<\/p>\n
THENCE Northerly along the easterly side of Fifth Avenue, 21 feet 3 inches, more
\nor less to the point or place of BEGINNING.
\n 35
\n EXHIBIT B<\/p>\n
PERMITTED ENCUMBRANCES<\/p>\n
1. Present and future zoning laws, ordinances, resolutions,
\norders and regulations of all municipal, county, state or federal governments
\nhaving jurisdiction over the Premises and the use of improvements thereon.<\/p>\n
2. All covenants, restrictions, easements, encumbrances and
\nagreements of records.<\/p>\n
3. The state of facts disclosed on the survey of the Premises,
\ndated July 13, 1999, prepared by Harwood Surveying P.C.<\/p>\n
4. Such state of facts as a current, accurate survey of the
\nPremises would disclose, provided the same do not prevent construction of
\nimprovements on the Premises for the purposes contemplated in the definition of
\n“Zoning Approvals” in Section 1.1 of this Agreement and provided the same do not
\nrender title unmarketable.<\/p>\n
5. (a) The lien of all unpaid assessments encumbering the
\nPremises on the date of this Agreement, and installments thereof, due and
\npayable on or after the Closing Date, and (b) the lien of all unpaid assessments
\nwhich first encumber the Premises subsequent to the date of this Agreement, and
\ninstallments thereof, whether due and payable prior to, on or after the Closing
\nDate.<\/p>\n
6. All liens and encumbrances resulting from any activities
\nundertaken by Purchaser or its contractors or agents.<\/p>\n
7. Rights, if any, of any utility company to construct and\/or
\nmaintain lines, pipes, wires, cables, poles, conducts and distributions boxes
\nand equipment in, over, under, and\/or upon the Premises or any portion thereof,
\nprovided the same do not render title unmarketable.<\/p>\n
8. Variations between record line and retaining walls;
\nencroachments of adjoining premises upon the Premises, provided the same do not
\nrender title unmarketable.<\/p>\n
9. Variations between the description contained in Exhibit A
\nand the tax map description of the Premises.<\/p>\n
10. Right, lack or right or restricted right of any owner of
\nthe Premises to construct and\/or maintain any vault or vaulted area in or under
\nthe sidewalks abutting the Premises; any licensing statute, ordinance or
\nregulation and the terms of any license pertaining thereto; and any fees for
\nvault space which may thereafter be assessed.
\n 36
\n 2<\/p>\n
11. The printed exclusions from coverage listed in any title
\ncommitment issued by the Title Company.
\n 37
\n EXHIBIT C<\/p>\n
BARGAIN AND SALE DEED
\n WITHOUT COVENANT AGAINST GRANTOR’S ACTS<\/p>\n
THIS INDENTURE, made the _____ day of _______________, 2000,
\nbetween CASTLE SENIOR LIVING, LLC, a Delaware limited liability company, having
\nan office at 405 Cedar Lane, Teaneck, New Jersey 07666 (“Grantor”), and EDISON
\nSCHOOLS INC., a Delaware corporation, having an office at 521 Fifth Avenue, 15th
\nFloor, New York, New York 10175 (“Grantee”).<\/p>\n
W I T N E S S E T H :<\/p>\n
Grantor, in consideration of ten dollars and other valuable
\nconsideration paid by Grantee, the receipt and sufficiency of which are hereby
\nacknowledged, does hereby grant and release unto Grantee, the heirs or
\nsuccessors and assigns of Grantee forever, all that certain plot, piece or
\nparcel of land, with the buildings and improvements thereon erected, situate,
\nlying and being in the Borough of Manhattan, City, County and State of New York,
\nand more particularly described on Exhibit A attached hereto and made a part
\nhereof.<\/p>\n
TOGETHER with all right, title and interest, if any, of
\nGrantor in and to any streets and roads abutting the above described premises to
\nthe center lines thereof; together with the appurtenances and all the estate and
\nrights of Grantor in and to said premises; TO HAVE AND TO HOLD the premises
\nherein granted unto Grantee, the heirs or successors and assigns of Grantee
\nforever.<\/p>\n
And Grantor, in compliance with Section 13 of the Lien Law,
\ncovenants that Grantor will receive the consideration for this conveyance and
\nwill hold the right to receive such consideration as a trust fund to be applied
\nfirst for the purpose of paying the cost of improvement and will apply the same
\nfirst to the payment of the cost of the improvement before using any part of the
\ntotal of the same for any other purpose.<\/p>\n
IN WITNESS WHEREOF, Grantor has duly executed this deed the
\nday and year first above written.<\/p>\n
IN PRESENCE OF: CASTLE SENIOR LIVING, LLC<\/p>\n
By:
\n—————————– ——————————–
\nPrint Name: Name: Stanley Diamond
\n Title: Chairman
\n 38
\n STATE OF NEW YORK )
\n ) ss.:
\n COUNTY OF NEW YORK )<\/p>\n
On the ____ day of _________ in the year 2000, before me,
\n the undersigned, a notary public in and for said State, personally
\n appeared Stanley Diamond personally known to me or proved to me on the
\n basis of satisfactory evidence to be the individual whose name is
\n subscribed to the within instrument and acknowledged to me that he
\n executed the same in his capacity, and that by his signature on the
\n instrument, the individual, or the person upon behalf of which the
\n individual acted, executed the instrument.<\/p>\n
———————————–
\n Notary Public
\n 39
\n Exhibit A<\/p>\n
Premises<\/p>\n
PARCEL I<\/p>\n
ALL that certain plot, piece or parcel of land, situate, lying and being
\n in the Borough of Manhattan, County of New York, City and State of New
\n York, bounded and described as follows:<\/p>\n
BEGINNING at the corner formed by the intersection of the easterly side of
\n 5th Avenue with the northerly side on East 109th Street;<\/p>\n
RUNNING THENCE Northerly along the easterly side of 5th Avenue
\n seventy-nine feet eight inches;<\/p>\n
THENCE Easterly parallel with 109th Street and part of the distance
\n through a party wall one hundred feet;<\/p>\n
THENCE Southerly parallel with 5th Avenue seventy-nine feet eight inches
\n to the northerly side of 109th Street; and<\/p>\n
THENCE Westerly along the northerly side of 109th Street one hundred feet
\n to the point or place of BEGINNING.<\/p>\n
PARCEL II<\/p>\n
ALL that certain plot, piece or parcel of land, situate, lying and being
\n in the Borough of Manhattan, County of New York, City and State of New
\n York, bounded and described as follows:<\/p>\n
BEGINNING at the corner formed by the intersection of the easterly side of
\n 5th Avenue and the southerly side of a public street or square legally
\n opened on 3\/18\/89 pursuant to Chapter 421 of the Laws of 1886 and now or
\n formerly called Frawley Square;<\/p>\n
RUNNING THENCE Easterly along the southerly side of said street or square,
\n 100 feet;<\/p>\n
THENCE Southerly parallel with Fifth Avenue, 21 feet 3 inches, more or
\n less to the northerly side of the property conveyed by Peace Company, Inc.
\n to Milton Shubert by deed dated 1\/21\/49 and recorded 1\/25\/49 in Liber
\n 4607, Cp. 492 in the Office of the Register of the City of New York in New
\n York County;
\n 40
\n 2<\/p>\n
RUNNING THENCE Westerly parallel with 109th Street and through a party
\n wall and along the northerly side of land conveyed to Milton Shubert by
\n deed above mentioned, 100 feet to the easterly side of Fifth Avenue; and<\/p>\n
THENCE Northerly along the easterly side of Fifth Avenue, 21 feet 3
\n inches, more or less to the point or place of BEGINNING.
\n 41
\n BARGAIN AND SALE DEED
\n WITHOUT COVENANT AGAINST GRANTOR’S ACTS<\/p>\n
————————————————-<\/p>\n
CASTLE SENOR LIVING, LLC,<\/p>\n
Grantor<\/p>\n
TO<\/p>\n
EDISON SCHOOLS INC.,<\/p>\n
Grantee
\n ————————————————-<\/p>\n
Section:<\/p>\n
Block: 1615
\n Lot: 1
\n County\/Town: New York<\/p>\n
State: New York<\/p>\n
Record and Return to:<\/p>\n
Gibson, Dunn & Crutcher LLP
\n 200 Park Avenue
\n New York, New York 10166
\n Attention: Joanne Franzel, Esq.
\n 42
\n EXHIBIT D<\/p>\n
OTHER AGREEMENT<\/p>\n
Agreement dated August 20, 1999, between Regional
\n Scaffolding & Hoisting Co., Inc. and Castle Senior Living, LLC.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7412],"corporate_contracts_industries":[],"corporate_contracts_types":[9603,9579],"class_list":["post-41779","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-edison-schools-inc","corporate_contracts_types-land__ny","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41779","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41779"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41779"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41779"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41779"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}