EX-10.56 3 a05-19730_1ex10d56.htm MATERIAL CONTRACTS AGREEMENT FOR SALE OF REAL ESTATE (745 Airport Road)
Exhibit 10.56
AGREEMENT FOR SALE OF REAL ESTATE
(745 Airport Road)
This Agreement for Sale of Real Estate (hereinafter referred to as the “Agreement”) is made and entered into on the 15th day of November, 2005 (the “Effective Date”),
BETWEEN
000 XXXXXXX XXXX, X.X.X., x Xxx Xxxxxx limited liability company,
whose mailing address is 0000 Xxxxxxx Xxxx, Xxxx 0X, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as “Seller”),
AND
VIVUS REAL ESTATE LLC, a New Jersey limited liability company,
whose address is c/o Vivus, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as “Buyer”).
1. Purchase Agreement. Seller agrees to sell, and Buyer agrees to purchase, the Property described in Section 2 of this Agreement.
2. Property Subject to This Agreement. The property to be sold pursuant to this Agreement (the “Property”) consists of the real property, and all of Seller’s rights relating thereto, commonly known as 000 Xxxxxxx Xxxx, xx xxx Xxxxxxxx xx Xxxxxxxx, Xxxxxx of Ocean, and State of New Jersey (the “Land”), together with all buildings and improvements thereon, and all and singular the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or in anywise appertaining to the real property, including any and all mineral rights, development rights, water rights and the like; and all right, title, and interest of Seller, if any, in and to all strips and gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining the real property. The Land is designated on the municipal tax map of the Township of Lakewood as Block 1160.01 Lot 232, and is more fully described in Exhibit A attached hereto and made a part hereof. The Property includes:
(i) the buildings, parking areas, improvements, fixtures and landscaping now situated on the Land (the “Improvements”); and
(ii) any and all furniture, personal property, machinery, apparatus and equipment owned by Seller and currently used in the ownership, operation, repair and maintenance of the Property (collectively the “Personal Property”), but expressly excluding any property owned by any tenant of the Property; and
(iii) all assignable warranties and guaranties (if any) issued in connection with the Improvements or the Personal Property; and
(iv) all transferable consents, authorizations, variances or waivers, licenses, permits, and approvals from any governmental or quasi governmental agency, department, board, commission, bureau or any other entity or instrumentality in respect of the Improvements; and
(v) to the extent transferable, all of Seller’s right, title, and interest in and to all intangible personal property related to the Property, including but not limited to the plans and specifications, surveys, engineering reports and other architectural engineering drawings relating to the Improvements, to the extent that such property is in Seller’s possession or control.
3. Purchase Price. The purchase price of the Property (the “Purchase Price”) is Three Million Nine Hundred Forty-Four Thousand Four Hundred Forty-Five and 00/100 Dollars ($3,944,445.00).
4. Payment of Purchase Price. Buyer will pay the Purchase Price as follows:
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Upon execution of this Agreement, Buyer shall deposit with the Escrow Agent (the “Deposit”) |
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197,222.25 |
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(b) |
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Balance to be paid at closing of title, in cash or by electronic wire transfer (subject to adjustments, as provided in Section 18 of this Agreement). |
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$ |
3,747,222.80 |
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Total: |
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3,944,445.00 |
5. Deposit Moneys. The Deposit will be held in trust by Xxxxxxxxx, XxXxxxxxx & Xxxxxxxxx, P.A. (“Escrow Agent”), in an interest-bearing trust account. Escrow Agent shall deliver the Deposit to Buyer or Seller, as the case may be, under the following conditions:
(a) To or for the benefit of Seller at the Closing, in which case the interest accrued on the Deposit shall be paid to Seller and credited against the Purchase Price; or
(b) Subject to Section 12, if this Agreement is terminated for any reason, then Buyer shall make a written demand (a “Deposit Demand”) upon Escrow Agent for the release of the Deposit, and Escrow Agent shall, subject to Seller’s right, if applicable, to reimbursement of Seller’s Reimbursed Expenses under Section 16(c), promptly release the Deposit to Buyer.
It is agreed that the duties of Escrow Agent are only as specifically provided in this Agreement, and subject to the provisions of this Section 5, are purely ministerial in nature, and
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that Escrow Agent will incur no liability whatsoever, except for willful misconduct or gross negligence, so long as Escrow Agent has not acted in bad faith. Without limiting the generality of the foregoing in any way, Buyer and Seller (i) each releases Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the performance of its duties under this Agreement; and (ii) each acknowledges and agrees that (a) Escrow Agent is and will remain qualified to serve as Escrow Agent even though it and will continue to serve as legal counsel to Seller; (b) Escrow Agent will be entitled to assume that all copies of any Deposit Demands or other written materials and signatures thereon are genuine; and (c) Escrow Agent shall not, except in the event of its own willful misconduct or gross negligence, have any liability or responsibility for giving any notice required by the terms of this Agreement or reviewing or adjudging the sufficiency or adequacy of any Deposit Demand, notice or other written matter, and/or failure to release the Deposit.
Mutual Conditions. In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Buyer, on the other hand, to consummate the transactions contemplated hereunder shall be contingent upon the following:
(a) The other party’s representations and warranties contained herein shall be true and correct in all material respects as of the date of this Agreement and the Closing Date, without giving effect to any knowledge based qualifications.
(b) As of the Closing Date, the other party shall have performed its obligations hereunder and all deliveries to be made at Closing have been tendered.
(c) There shall exist no pending or threatened, actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the other party that would materially and adversely affect the operation or value of the Property or the other party’s ability to perform its obligations under this Agreement or that seeks to restrain or prohibit, or obtain damages on a discovery order.
(d) All other conditions set forth in this Agreement to the other party’s obligation to close shall have been satisfied.
(e) Simultaneous with the Closing under this Agreement, closing shall occur with respect to the sale by 000 Xxxxxxx Xxxx, L.L.C. (“735 LLC”) to Buyer or an entity designated by Buyer (the “735 Purchaser”) of the real property owned by 735 LLC, commonly known as 000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx (Block 1160.01 Lot 229)(the “735 Property”), pursuant to an Agreement for Sale of Real Estate bearing even date herewith (the “000 Xxxxxxx Xxxx Transaction”). The parties expressly acknowledge and agree that (i)
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Seller shall have no obligation to convey title to the Property hereunder, and may terminate this Agreement, if, for any reason other than the default of 735 LLC, the closing of the 000 Xxxxxxx Xxxx Transaction does not occur on or before the Closing Date; and (ii) Buyer shall have no obligation to close title to the Property hereunder, and may terminate this Agreement, if, for any reason other than the default of 735 Purchaser, the closing of the 000 Xxxxxxx Xxxx Transaction does not occur on or before the Closing Date.
Seller shall also deliver to Buyer the following:
(i) Evidence of the authority of the person or persons signing documents on behalf of Seller reasonably satisfactory to Buyer, its counsel, and its title company.
(ii) At the Closing, Seller shall deliver to Buyer originals of all leases, all lease files, maintenance records, warranties, plans and specifications, licenses, permits, certificates of occupancy, copies or originals of all contracts, and copies of correspondence with tenants and suppliers, all advertising materials, booklets, keys, and all other items used in connection with the operation of the Property, to the extent that same exist and are in Seller’s possession or under its control.
(iii) A settlement statement executed on behalf of Seller.
(iv) A State of New Jersey Seller’s Residency Certification/Exemption form executed on behalf of Seller.
(v) An assignment of all service contracts applicable to the Property or, if Buyer elects by written notice to Seller to have Seller terminate such service contracts, then evidence that such service contracts have been terminated.
(vi) A properly completed 1099-S Reporting Form.
(vii) An instrument executed by Owner and Vivus, Inc. which terminates the lease between Owner and Vivus, Inc. covering the Property (the “Vivus Lease”).
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(viii) An instrument sufficient to transfer any assignable warranties relating to the Property.
(ix) Such other documents, certificates and instruments reasonably necessary in order to effectuate the transaction described herein.
10. Physical Condition of the Property. Subject to the terms of Sections 13 and 15, the Property is being sold “as is, where is,” without any representation or warranty whatsoever by Seller, except as expressly set forth in this
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Agreement. Except as expressly set forth in this Agreement, Seller does not make any claims or promises about the condition or value of any of the Property and any implied representation or warranty is hereby expressly disclaimed by Seller.
11. [Reserved]
13. Title to Property. Seller agrees to transfer, and Buyer agrees to accept, ownership of the Property free of all mortgages, security interests, liens, encumbrances, and claims and rights of others, except for the items listed in Exhibit E annexed hereto and made a part hereof (the “Permitted Exceptions”). Title to the Property must be good and marketable and insurable, at regular rates, by a title insurance company selected by Buyer authorized to do business in New Jersey, subject only to the Permitted Exceptions.
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destruction and assume responsibility for such repair, and Buyer shall receive a credit at Closing for any deductible, uninsured or coinsured amount under said insurance policies. If such damage is less than $100,000, then Seller shall be entitled to collect and retain the insurance proceeds and Buyer shall be entitled to a credit against the Purchase Price equal to the amount of such damage. In such event, Seller shall have no obligation to repair the damage. The terms of this section shall apply as between Seller and Buyer; nothing in this section shall be deemed to affect the respective rights and duties of Seller and Vivus, Inc., under the Vivus Lease.
16. Effect of Termination of Agreement.
(a) Default by Seller. If this transaction fails to close as a result of the Seller’s default, then Buyer shall be entitled either (x) to terminate this Agreement and pursue any claim for money damages which may be available at law, in which case Escrow Agent shall promptly return the Deposit, together with all interest accrued thereon, to Buyer, or (y)to pursue the remedy of specific performance; provided, however, that except in the case of Seller’s willful default, fraud or intentional misrepresentation, Seller’s monetary liability shall in no event exceed the lesser of (i) the Purchase Price, or (ii) Seller’s equity in the Property, defined for purposes of this subsection as the difference between the fair market value of the Property and the outstanding principal balance of the mortgage encumbering the Property. For purposes of this Section 16, “Seller’s default” shall not include Buyer’s exercise of its termination rights under Sections 13, 14 or 15, except in the case of Seller’s (x) failure to remove any mortgage or lien securing a definite or ascertainable amount, or (y) gross negligence or willful misconduct.
(b) Default by Buyer. If this transaction fails to close due to the default of Buyer, then (i) the Vivus Lease Extension shall become effective as provided in Section 12 and the Vivus Lease shall continue in full force and effect in accordance with its terms (including the Vivus Lease Extension and any other amendments to the Vivus Lease), (ii) Vivus will deliver to Seller, the Replacement Vivus Letter of Credit as provided in Section 8, (iii) Buyer shall be responsible for Seller’s actual expenses incurred in the negotiation and performance of this Agreement, including but not limited to reasonable attorneys’ fees and out-of-pocket disbursements (“Seller’s Reimbursed Expenses”); and (iv) Escrow Agent shall promptly return to Buyer, the Deposit, together with all interest accrued thereon, minus Seller’s Reimbursed Expenses.
(c) Termination Without Default. If this transaction fails to close for any reason other than (x) the default by either party (which is covered by clause (a) or clause (b) of this section) of its obligations under this Agreement, or (y) the failure of the 000 Xxxxxxx Xxxx Transaction to close (as contemplated in Section 6(e)), then (i) the Vivus Lease Extension shall become effective as provided in Section 12 and the Vivus Lease shall continue in full force and effect in accordance with its terms (including the Vivus Lease Extension and any other amendments to the Vivus Lease), (ii) Vivus will deliver to Seller, the Replacement Vivus Letter of Credit as provided in Section 8, and (iii) Escrow Agent shall promptly return the Deposit, together with all interest accrued thereon, to Buyer.
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the improvement. Any unpaid charges (assessments) against the Property for work completed prior to the Closing Date will be paid by Seller at or before the Closing. If the improvement is completed, but the amount of the charge (assessment) is not determined, then Seller will pay an estimated amount at the Closing. When the amount of the charge is finally determined, Seller will promptly pay any deficiency to Buyer (if the estimate proves to have been too low), or Buyer will promptly return any excess to Seller (if the estimate proves to have been too high). This provision shall survive Closing.
18. Real Estate Taxes; Rents, and Other Adjustments at Closing.
(a) Real Estate Taxes. Real estate taxes and assessments will be apportioned between Buyer and Seller as follows. Buyer shall receive a credit for any accrued but unpaid real estate taxes applicable to any period before the Closing Date, even if such taxes are not yet due and payable. If the amount of any such taxes has not been determined as of the Closing Date, then such credit shall be based upon 110% of the most recent ascertainable taxes and shall be re-prorated upon issuance of the final tax xxxx. Seller shall receive a credit for any unaccrued but paid real estate taxes applicable to any period subsequent to the Closing Date, even if such taxes are not yet due and payable. This provision shall survive Closing.
(b) Base Rent and Other Charges. (i) Base rent, additional rent, insurance, standby fire protection charges, and charges (if any) under any service contracts assigned to Buyer shall be apportioned and adjusted between Seller and Buyer as of 11:59 p.m. of the day preceding the Closing Date (the “Adjustment Date”). Not fewer than five (5) business days prior to the Closing Date, Seller shall provide Buyer with a statement of prepaid rents and uncollected rents At the Closing, Seller shall pay over to Buyer any base or additional rents collected by Seller which pertain to any period of time commencing with the Closing Date.
(ii) Base rent and payments for insurance and standby fire protection shall be prorated as of the Closing Date based upon the following per diem charges:
Base Rent |
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$773.98 per day |
Insurance |
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$54.80 per day |
Standby Fire Protection |
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$8.22 per day |
(iii) If, pursuant to this Section 18(b), any apportionment is made based on an estimate, and, if, at any time after such apportionment is made, actual figures become available, then a reapportionment shall be made based on such actual figures, and a corresponding payment shall be made, as appropriate.
(iv) The provisions of this Section 18(b) shall survive Closing.
(c) Closing Expenses. Seller shall pay the New Jersey Realty Transfer Fee, as well as all filing fees and costs with respect to the obtaining of the discharge and satisfaction of any and all liens. Each party shall be responsible for paying the fees and costs of its own legal counsel. The parties shall pro-rate any and all other items of income and expense in the manner
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set forth in this Agreement or otherwise adjusted on a pro-rata per diem basis calculated on the entire yearly charge.
(d) Security Deposit. Simultaneously with the Closing, Seller shall transfer Vivus, Inc.’s security deposit of $42,083 to Buyer or, at Buyer’s written direction, to Vivus, Inc., by electronic wire transfer.
In the event that an error is made in any closing adjustment, either party may notify the other of such error at any time within six (6) months following the Closing Date and the parties shall equitably resolve the error within thirty (30) days following the delivery of the notice. This provision shall survive Closing.
20. [Reserved]
If to Seller: |
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000 Xxxxxxx Xxxx, L.L.C. |
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0000 Xxxxxxx Xxxx, Xxxx 0X |
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Xxxxxxxx, XX 00000 |
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Attention: Mr. Xxxxxx Xxxxxxx, Sr. |
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with copy to: |
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Xxxxxx X. Xxxxxx, Esq. |
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Xxxxxxxxx, XxXxxxxxx & Xxxxxxxxx, P.A. |
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00 Xxxxxxxx Xxxxx |
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X.X. Xxx 0000 |
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Xxxxxxxxx, XX 00000-0000 |
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If to Buyer: |
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Vivus Real Estate LLC |
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c/o Vivus, Inc. |
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0000 Xxxxxx Xxxxxx |
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Xxxxxxxx Xxxx, XX 00000 |
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Attention: CFO |
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with copy to: |
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Xxxxxx X. Xxxxxxx, Esq. |
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Xxxxxxx Xxxx Xxxx & Xxxxxxxxxx, LLP |
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000 Xxxxxx Xxxxxx Xxxxx |
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Xxx Xxxxxxxxx, Xxx Xxxxxx 00000 |
Each party may, by notice properly given, change such party’s address for purposes of receipt of notice. Notices given by a party’s attorney shall be deemed notice given by the party.
26. ISRA Compliance. Buyer will cause Vivus, Inc. to deliver to Seller, prior to the Closing Date, evidence of compliance (“ISRA Compliance”) with the New Jersey Industrial Site Recovery Act (“ISRA”) with respect to the transaction contemplated in this Agreement, in the form of either (a) an approved “negative declaration,” (b) a “no further action letter,” (c) a letter from the New Jersey Department of Environmental Protection (“NJDEP”) approving a “de minimis quantity exception,” or (d) a “remediation agreement” approved by NJDEP. In the event that Buyer is unable to deliver to Seller, prior to the Closing Date, evidence of ISRA Compliance in one of the forms described in clauses (a) through (d) herein, Buyer may adjourn the Closing Date for a reasonable period of time sufficient to permit Vivus, Inc. to obtain evidence of ISRA
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Compliance in one of the forms described in clauses (a) through (d) of this Section, provided, that such adjournment shall not exceed 120 days.
(a) Except as set forth on Exhibit F, (i) there is no current or pending litigation against Seller or the Property of which Seller has received written notice, and (ii) to the best of Seller’s knowledge, there is no litigation threatened against Seller or the Property, in each case, which, if determined adversely to Seller, could reasonably be expected to adversely affect the Property.
(b) Except as set forth on Exhibit G, there are no office supply, maintenance or utility contracts, or any other agreements affecting the Property.
(c) As of the date of this Agreement, the only party with any rights to occupy any portion of the Property is Vivus, Inc. under the Vivus Lease.
(d) Except as disclosed on Exhibit H, Seller has not received any written notice from any governmental authority or other person, and Seller has no knowledge of the violation of any law or ordinance regulating use of the Property, including those dealing the environment, which has not been cured by Seller to the satisfaction of the issuer.
(e) Seller has the full right, power and authority and has obtained any and all consents required to execute and deliver this Agreement and all of the documents to be delivered by Seller at the Closing, and to consummate or cause to be consummated the transactions contemplated in this Agreement. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.
(f) There is no agreement to which Seller is a party or, to Seller’s knowledge, binding on Seller which is in conflict with this Agreement.
(g) No condemnation, eminent domain or similar proceedings are pending, or to Seller’s threatened, with regard to the Property. Seller has not received any notice and has no knowledge of any pending or threatened liens, special assessments, impositions or increases in assessed valuations to be made against the Property.
29. No Third Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions or remedies to any person or entity as a third party beneficiary.
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30. Entire Agreement; Amendments. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property. This Agreement may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought.
31. Time is of the Essence. Either party may make time of the essence in the performance of this Agreement upon fifteen (15) days prior written notice to the other party.
32. Rule of Construction. The parties acknowledge that the parties and their respective counsel have reviewed and negotiated this Agreement and agree that the normal rule of construction—that any ambiguities are to be construed against the drafting party—shall not be employed in the interpretation of this Agreement.
33. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Jersey, without regard to choice of law principles.
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creditors, officers, employees and agents as necessary to perform its obligations hereunder and/or any regulatory authorities, including but not limited to the United States Securities and Exchange Commission.
(a) Buyer has the full right, power and authority and has obtained any and all consents required to execute and deliver this Agreement and all of the documents to be delivered by Buyer at the Closing and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Buyer at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Buyer, enforceable in accordance with their terms.
(b) There is no agreement to which Buyer is a party or, to Buyer’s knowledge, binding on Buyer which is in conflict with this Agreement.
(c) Buyer represents and warrants to Seller that Buyer has received a commitment letter dated August 12, 2005, from Crown Bank, N.A. (“Buyer’s Lender”), pursuant to which Buyer’s Lender has agreed (subject to the terms of such commitment letter) to make a purchase money mortgage loan to Buyer in the principal amount of $5,375,000 to allow Buyer to purchase the Property and the 735 Property (“Buyer’s Financing”). Subject to the closing of Buyer’s Financing, Buyer will have the financial wherewithal to pay the balance of the Purchase Price, i.e., $3,944,445.00, at the Closing in accordance with Section 4 of this Agreement.
[End of text of Agreement – Signature Page and Exhibits follow]
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Counterpart Signature Page
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SELLER: | ||||||
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000 XXXXXXX XXXX, L.L.C. | ||||||
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By: |
/s/ Xxxxxx Xxxxxxx, Sr. | |||||
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Xxxxxx Xxxxxxx, Sr. | ||||||
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Managing Member | ||||||
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BUYER: | ||||||
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VIVUS REAL ESTATE LLC | ||||||
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Chief Financial Officer |
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ESCROW AGENT: | ||||||
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XXXXXXXXX, XxXXXXXXX & XXXXXXXXX, P.A. | ||||||
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By: |
/s/ Xxxxxx X. Xxxxxx, Esq. | |||||
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Xxxxxx X. Xxxxxx, Esq. | ||||||
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Authorized Officer | ||||||
LIST OF EXHIBITS
Exhibit A |
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Legal Description of Property |
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Exhibit B |
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Leases |
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Exhibit C |
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Form of Deed |
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Exhibit D |
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Form of Xxxx of Sale |
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Exhibit E |
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Permitted Liens |
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Exhibit F |
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Litigation Against Seller |
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Exhibit G |
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Contracts |
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Exhibit H |
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Notices of Violations |
EXHIBIT A
Legal Description of Property
All the real property located in the Township of Lakewood, County of Ocean, State of New Jersey and more particularly described as follows:
BEING known and designated as New Xxx 0, Xxxxx 0000.0, as shown on “Minor Subdivision Map Lots 41A6 and Xxx 000, Xxxxx 0000 xxx Xxx 0, Xxxxx 1160.1, Lakewood Township, Ocean County, New Jersey,” filed in the Ocean County Clerk’s Office November 15, 1979, as Map No. D-961.
BEING further described in accordance with a survey of the premises by Xxxxxx X. Xxxxx Associates, P.A. (Xxxxxxxx X. Xxxxxxx, P.L.S.), dated March 13, 1986, revised June 27, 1988, as follows:
BEGINNING at a point in the Southerly sideline of Airport Road, where same is intersected by the division line of New Xxx 0 xxx Xxx Xxx 000, Xxxxx 1160.01 as shown on “Minor Subdivision Map Lots 41A6 and Xxx 000, Xxxxx 0000 xxx Xxx 0, Xxxxx 1160.01, Lakewood Township, Ocean County, New Jersey,” filed in the Ocean County Clerk’s Office November 15, 1979, as Map No. D-961, said point being distant 363.83 feet measured South 74 degrees 40 minutes 39 seconds East, along said Southerly sideline of Airport Road from its intersection with the Easterly sideline of Airport Road, from said Beginning point running thence
(1) South 74 degrees 40 minutes 39 seconds East and running along Southerly sideline of Airport Road 375.00 feet; thence
(2) South 15 degrees 19 minutes 21 seconds West 300.00 feet; thence
(3) North 74 degrees 40 minutes 39 seconds West 53.23 feet; thence
(4) South 85 degrees 57 minutes 50 seconds West 341.05 feet; thence
(5) North 15 degrees 19 minutes 21 seconds East 413.05 feet to the point and place of Beginning.
EXHIBIT B
Leases
None.
EXHIBIT C
Form of Deed
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Prepared by: |
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DEED |
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Xxxxxx X. Xxxxxx, Esq. |
This Deed is made as of the day of , 2005
BETWEEN
000 XXXXXXX XXXX, L.L.C., a New Jersey limited liability company, whose address is 0000 Xxxxxxx Xxxx, Xxxx 0X, Xxxxxxxx, Xxx Xxxxxx 00000, referred to as the “Grantor.”
AND
VIVUS REAL ESTATE LLC, a New Jersey limited liability company, whose address is c/o Vivus, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000, referred to as the “Grantee.”
The words “Grantor” and “Grantee” shall mean all Grantors and all Grantees listed above.
Tax Map Reference. (N.J.S.A. 46:15-1.1) The property described herein is also known as Block 1160.01, Lot 232 on the Official Tax Map of the Township of Lakewood, Ocean County, New Jersey.
Property. The property consists of the tracts and parcels of land and all the buildings and structures, if any, thereon located in the Township of Lakewood, County of Ocean, and State of New Jersey together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining and the reversions, remainder, rents, issues, and profits thereof; and also, all the estate, right, title, interest, property, claim and demand whatsoever, as well in law as in equity, of Grantor, of, in or to the tracts and parcels described on Exhibit A attached hereto and made a part hereof and every part and parcel thereof, with the appurtenances.
BEING the same premises conveyed to the Grantor herein by Deed of Airport Road Associates, dated July 18, 2002, recorded by the Clerk of Ocean County on August 9, 2002, in Deed Book 10953 at page 210 et seq.
SUBJECT TO easements and restrictions of record and such matters as an accurate survey would reveal.
Type of Deed. The Grantor promises that the Grantor has done no act to encumber the property. This promise is called a “covenant as to grantor’s acts” (N.J.S.A. § 46:4-6). This promise means that the Grantor has not allowed anyone else to obtain any legal rights which affect the property (such as by making a mortgage or allowing a judgment to be entered against the Grantor).
Signatures. The Grantor signs this Deed as of the date at the top of the first page. If the Grantor is a corporation, this Deed is signed and attested to by its proper corporate officers and its corporate seal is affixed.
Witnessed by: |
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000 XXXXXXX XXXX, L.L.C. | |||
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By: |
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Xxxxxx X. Xxxxxx |
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Xxxxxx Xxxxxxx, Sr. | |||
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Managing Member | |||
STATE OF NEW JERSEY |
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SS.: |
COUNTY OF OCEAN |
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I CERTIFY that on , 2005, XXXXXX XXXXXXX, SR., personally came before me and acknowledged under oath, to my satisfaction, that:
(a) He signed, sealed and delivered the attached document as Manager of 000 XXXXXXX XXXX, L.L.C., the limited liability company named in this document; and
(b) this document was signed and made by the limited liability company as its voluntary act and deed by virtue of authority from its Members.
(c) this deed was made for $3,944,445.00 as the full and actual consideration paid or to be paid for the transfer of title. (Such consideration is defined in N.J.S.A. § 46:15-5).
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Xxxxxx X. Xxxxxx, Esq. |
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Attorney at law of New Jersey |
DEED |
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Dated: , 2005 |
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745 AIRPORT ROAD, L.L.C.
Grantor
TO
VIVUS REAL ESTATE LLC
Grantee |
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Record and return to: |
(168199)
EXHIBIT D
XXXX OF SALE
THIS XXXX OF SALE is made on the day of , 2005.
BY 000 XXXXXXX XXXX, L.L.C., whose address is 0000 Xxxxxxx Xxxx, Xxxx 0X Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the “Seller”).
TO VIVUS REAL ESTATE LLC, whose address is c/o Vivus, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000 (together with its successors and assigns, hereinafter referred to as the “Buyer”).
The words “Buyer” and “Seller” include all Buyers and all Sellers named above.
1. Transfer of Ownership. The Seller hereby assigns and transfers ownership of the property described below to the Buyer. The Seller has been paid One Dollar ($1.00) for making this transfer.
2. Property. The property (hereinafter referred to as the “Personal Property”) assigned and transferred to the Buyer hereby consists of the personal property described on attached Schedule A owned by Borrower and located at 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx (the “Real Property”):
3. Promises by Seller. The Seller promises that no one else has any legal rights in the Personal Property. If anyone claims to have legal rights in the Personal Property, then the Seller will indemnify, defend and hold harmless the Buyer against the claim and will pay all costs, reasonable attorney fees, and damages.
4. Warranties and Covenants; Survival. All of the terms, covenants, obligations, and conditions contained in the Agreement for Sale of Real Estate (the “Agreement”) between Seller and Buyer, dated November 15, 2005, shall inure to the benefit of and shall bind the respective parties hereto, and their legal representatives, successors and assigns, respectively, for a period of 12 months from the date hereof.
5. Signatures. The Seller agrees to the terms of this Xxxx of Sale. If this Xxxx of Sale is made by a corporation, then its proper corporate officers sign and its corporate seal is affixed.
WITNESS: |
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000 XXXXXXX XXXX, L.L.C. | ||
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By: |
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Xxxxxx X. Xxxxxx |
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Xxxxxx Xxxxxxx, Sr. | ||
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Managing Member | ||
EXHIBIT E
Permitted Exceptions
1. Right of way for Jersey Central Power and Light Company, as contained in Deed Book 1077, page 471.
2. Right of way for Lakewood Water Company, as contained in Deed Book 1077, page 474.
3. Right of way for Jersey Central Power and Light Company, as contained in Deed Book 4377, page 546.
4. 25-foot drainage easement shown on Filed Map Xx. X-000, Xxx Xx. X-000, xxx Xx. X-0000.
6. Right of way for Jersey Central Power and Light Company, as contained in Deed Book 4688, Page 518.
EXHIBIT F
Litigation Against Seller
None.
EXHIBIT G
Contracts
1. Landscaping contract with Veccio’s Environmental.
2. Snow plowing contract with Four Seasons.
EXHIBIT H
Notices of Violations
None.