AGREEMENT OF SALE
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THIS AGREEMENT OF SALE is made this 26th day of October, 2004, by and
between UDC, INC., a New Jersey corporation, its assignee or nominee, having an
office at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxx Xxxxxx 00000 ("Buyer"), XXXXX XXXXX
XXXXXXXX, a natural person having an address c/o Xxxxxx X. Xxxxxx, P.C., 000
Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 ("Xxxxx Xxxxxxxx"),
and GESIPA FASTENERS USA, INC., a New Jersey corporation, having an office at
000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxx Xxxxxx 00000 ("Gesipa" and, together with
Xxxxx Xxxxxxxx, "Seller").
BACKGROUND
Seller is the owner of a certain parcel or parcels of land, together
with the building(s) and improvements thereon erected, including an office
building containing approximately 40,200 square feet, known as and numbered 000
Xxxxxxxx Xxxxxxxxx, in Xxxxx Township, Xxxxxx County, New Jersey, all as
hereinafter more fully described. Seller desires to sell to Buyer, and Buyer
desires to purchase from Seller, said property and other property interests
hereinafter described, upon the terms and conditions set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto, intending to be legally bound hereby,
covenant and agree as follows:
I. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the Closing Date (as
hereinafter defined):
A. Premises. Fee simple interest in the parcel or parcels of land, all
as more fully described on Exhibit "A", together with the building(s) and
improvements thereon erected, including the office building containing
approximately 40,200 net rentable square feet in the aggregate, commonly known
as 000 Xxxxxxxx Xxxxxxxxx, and all of the easements, licenses, rights of way,
privileges, hereditaments, appurtenances, and rights to any land lying in the
beds of any street, road or avenue, open or proposed, adjoining thereto, and
inuring to the benefit of said land, including but not limited to all of
Sellers' interest as a member of Princeton Crossroads at Ewing Business Park
under that certain Master Deed and Declaration of Restrictive and Protective
Covenants, Easements, Charges & Liens for the Princeton Crossroads One Office
Condominium, dated March 17, 1993 and recorded in Deed Book 2671 Page 085
(collectively, the "Premises"); and
B. Associated Property. All equipment, fixtures and machinery of every
kind and description affixed to and used in connection with the operation of the
Premises, and all assignable intangible personal property owned by Seller and
used in connection with the ownership, operation and maintenance of the land,
improvements and other property, including without limitation, all contract
rights, guaranties and warranties of any nature, all architects', engineers',
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surveyors' and other real estate professionals' plans, specifications,
certifications, contracts, reports, data or other technical descriptions,
reports or audits including, without limitation, all environmental, structural
and mechanical inspection reports ("Contract Documents"), all assignable
permits, licenses, certificates and approvals in connection with the ownership
of the Premises ("Licenses"), all instruments, documents of title, general
intangibles and all business records pertaining to the Premises, and all of
Seller's rights, claims and causes of action, if any, to the extent assignable,
under all warranties and/or guaranties of manufacturers, contractors and
installers, and all rights against others relating to the Premises or the
operation or maintenance thereof, including to the extent applicable, any
warranties and indemnities from any previous owners of the Premises
(collectively, the "Associated Property").
The Premises and Associated Property are hereinafter collectively
referred to as the "Property."
II. PURCHASE PRICE AND MANNER OF PAYMENT.
A. Purchase Price. Buyer shall pay the total sum of Five Million Five
Hundred Thousand and 00/100 Dollars ($5,500,000) (the "Purchase Price"), subject
to adjustment as hereafter provided, and not contingent upon Buyer obtaining
financing for its purchase of the Property.
B. Manner of Payment. The Purchase Price shall be paid in the following
manner:
1. Deposit. By delivery, within three (3) business days next
following Seller's execution and delivery of this Agreement, of Buyer's good
check in the amount of $100,000 (the "Deposit") to Title Company (as hereinafter
defined), to be held by Title Company as escrow agent, in a federally-insured,
segregated money market account at an institution designated by Buyer until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or paid to the party otherwise entitled to the
Deposit in the event of the termination of this Agreement prior to Closing.
2. Cash Balance. The balance, by delivery to the Seller on the
Closing Date, by title company check, or by wire transfer.
III. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Premises subject only to those rights of way,
easements, covenants, restrictions, and objections to title (the "Permitted
Exceptions") listed on Exhibit "B", unless identified by Buyer as "Title
Objections" as hereinafter provided, which title shall be insurable at regular
rates by any reputable title insurance company selected by Buyer ("Title
Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy"), with the endorsements and affirmative
insurance specified in Section XII.B.1.h. below. Seller and Buyer consent to
use, at Buyer's option, Fidelity National Title Insurance Company, as Title
Company.
IV. COVENANTS. In addition to the covenants contained in the other provisions of
this Agreement, Seller covenants that it shall, at all times prior to the
Closing Date:
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A. Maintenance. Maintain the Property in good condition and repair,
reasonable wear and tear alone excepted, operate the Property with sound
management practices, and pay in the normal course of business, and in any event
prior to Closing, all sums due for work, materials or services furnished or
otherwise incurred in the ownership and operation of the Property prior to
Closing.
B. Alterations. Not make or permit to be made any alterations,
improvements or additions to the Property without the prior written consent of
Buyer, except if required by applicable law or ordinance or by the Lease (as
hereinafter defined).
C. No Leases. Not enter into any lease, license or occupancy agreement
without Buyer's prior written consent.
D. Notice to Buyer. Notify Buyer promptly of the occurrence of any of
the following: (i) a fire or other casualty causing damage to the Property, or
any portion thereof; (ii) receipt of notice of eminent domain proceedings or
condemnation of or affecting the Property, or any portion thereof; (iii) receipt
of notice from any governmental authority or insurance underwriter relating to
the condition, use or occupancy of the Property, or any portion thereof, or
setting forth any requirements with respect thereto; (iv) receipt of any notice
of default from the holder of any lien or security interest in or encumbering
the Property, or any portion thereof; (v) receipt of notice of any actual or
threatened litigation against Seller or affecting or relating to the Property,
or any portion thereof; and (vi) the commencement of any strike, lock-out,
boycott or other labor trouble affecting the Property, or any portion thereof.
E. No New Agreements. Subject to the provisions of Paragraph XIX.A, not
enter into any agreements which affect the Property or the transactions
contemplated by this Agreement without the prior written consent of Buyer; and
not permit the creation of any liability which shall bind Buyer or the Property
after Closing.
F. Tax Disputes. Notify Buyer of any tax assessment disputes (pending
or threatened) prior to Closing, and not agree to any changes in the real estate
tax assessment, nor settle, withdraw or otherwise compromise any pending claims
with respect to prior tax assessments, without Buyer's prior written consent.
G. No Removal of Personalty. Not remove any Associated Property from
the Premises.
V. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter into this
Agreement, Seller hereby represents and warrants to Buyer that the following
representations and warranties are true now and will be true at Closing:
A. Seller's Authority For Binding Agreement. Gesipa is a duly
authorized and validly existing corporation formed under the laws of New Jersey.
Gesipa has full power, right and authority to own its properties, to carry on
its business as now conducted, and to enter into and fulfill its obligations
under this Agreement. Each of the persons executing this Agreement on behalf of
Seller is (are) authorized to do so. This Agreement is the valid and legally
binding obligation of Seller, enforceable against Seller in accordance with its
terms. Xxxxx Xxxxxxxx is a natural person, sui juris, of full age and capacity,
competent to enter into this Agreement and perform each and all of her
obligations hereunder.
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B. Seller's Employees. All persons presently employed by Seller in
connection with the operation and maintenance of the Premises ("Employees") are
employed in such capacity on an "at will" basis. Unless expressly agreed to in
writing by Buyer, Buyer is under no obligation to continue utilizing any
Employees for such purposes and Seller represents and warrants to Buyer that
Seller has informed all Employees of such fact. Buyer shall assume no liability
with respect to any Employees, including any liabilities arising out of or
relating to any employee benefit plans, programs or arrangements covering the
Employees.
C. Service Contracts. Unless otherwise directed by Buyer, all existing
service, equipment, supply and maintenance contracts and licenses with respect
to or affecting the Property (the "Service Contracts") shall be terminated by
Seller effective as of Closing, and Seller shall pay any penalties or
cancellation fees associated therewith. At Closing, Seller shall have performed
all obligations under said Service Contracts. Anything in this Section to the
contrary notwithstanding, Seller represents and warrants that any and all
existing management agreements and exclusive brokerage or leasing agreements
shall be terminated as of Closing, Seller having fully paid and discharged any
and all obligations accruing thereunder, and Buyer shall assume no liability
under or in respect of any such agreements.
D. Condemnation. No condemnation or eminent domain proceedings are
pending with regard to any part of the Property, and to Seller's knowledge, no
such proceedings are proposed.
E. No Lawsuits. There are no claims, lawsuits or proceedings pending,
or to Seller's knowledge, threatened against or relating to Seller or the
Property, in any court or before any governmental agency.
F. Leases. There are no oral or written leases, licenses, or rights of
occupancy or grants or claims of right, title or interest in any portion of the
Premises, other than (i) that certain Lease Agreement between Gesipa Real Estate
Partners and Universal Display Corporation dated as of October 12, 1998, as
amended by that certain First Amendment of Lease dated January 11, 2001, that
certain Second Amendment to Lease dated September 22, 2003, and that certain
Third Amendment to Lease of even date herewith (the "Lease"), and (ii) any
lease(s) that may exist between Gesipa Fasteners, Inc. and Gesipa Real Estate
Partners (each of which, if any, shall be terminated as of Closing).
Notwithstanding anything to the contrary set forth in Article 55 of the Lease,
Buyer and Seller hereby acknowledge and agree that Buyer's purchase of the
Property shall not require Buyer to enter into a lease with Seller for any
portion of the Property.
G. Compliance with Law.
(i) The Property and the continued operation and use thereof comply
with all applicable requirements of federal, state and local law, and all
applicable requirements of governmental bodies or agencies having jurisdiction
thereof; and there are no outstanding notices of any violations issued by
governmental authority having jurisdiction over the Property. The zoning
classification of the Property is IP-1. Not more than ten (10) days prior to
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Closing, Seller shall provide Buyer with an estoppel certificate from the zoning
code enforcement (or other appropriate) officer of Xxxxx Township, dated not
earlier than thirty (30) days prior to Closing, confirming that no portion of
the Property is in violation of any applicable codes, and that the Property and
its continued operation and use is in compliance with applicable zoning.
Seller's representation in this subsection G.(i) is expressly qualified to the
extent of any violation of law or code created or caused by Buyer.
(ii) To Seller's knowledge, (a) except for those materials which
have been acquired or generated by Buyer, no Hazardous Substances and no
Hazardous Wastes are present on the Property that would require remediation
under any federal, state or local environmental statute, ordinance or
regulation, and (b) except for Buyer's use of the Property, there has been no
use of the Property that may, under any federal, state or local environmental
statute, ordinance or regulation, require, at any time, any closure or cessation
of the use or occupancy of the Property and/or impose, at any time, upon the
owner of the Property any clean-up or other monetary obligation. For purposes of
this Agreement, "Hazardous Substances" means those elements and compounds which
are designated as such in Section 101(14) of the Comprehensive Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601 (14), as
amended, all petroleum products and by-products, and any other hazardous
substances as that term may be further defined in any and all applicable
federal, state and local laws; and "Hazardous Wastes" means any hazardous waste,
residential or household waste, solid waste, or other waste as defined in
applicable federal, state and local laws. Seller has not received any summons,
citation, directive, letter or other communication from any governmental or
quasi-governmental authority concerning the releasing, spilling, leaking,
pumping, pouring, emitting, emptying or dumping of Hazardous Substances or
Hazardous Wastes, or related in any way to the generation, storage, transport,
treatment or disposal of Hazardous Substances or Hazardous Wastes. Seller has
not been identified in any litigation, administrative proceeding or
investigation as a responsible party or potentially responsible party for any
liability for clean-up costs, natural resource damages or other damages or
liability for prior disposal or release of Hazardous Substances, Hazardous
Wastes or other environmental pollutants or contaminants, and no lien or
superlien has been recorded, filed or otherwise asserted against any real or
personal property of Seller for any clean-up costs or other responses costs
incurred in connection with any environmental contamination that is
attributable, in whole or in part, to Seller. Seller hereby indemnifies and
holds Buyer harmless of, from and against any and all liability, loss or damage
suffered or incurred as a result of a claim, demand, cost or judgment in favor
of a third party, including, without limitation, any governmental authority,
arising from the deposit, storage, disposal, burial, dumping, injecting,
spilling, leaking, or other placement or release in or on the Premises of
Hazardous Substances or Wastes during or prior to Seller's period of ownership,
including any such Hazardous Substances or Wastes required to be remediated by
reason of any investigation conducted pursuant to the New Jersey Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et. seq. and the regulations promulgated
thereunder, except to the extent caused by Buyer.
H. Insurance. The Property (inclusive of all buildings and
improvements) is presently insured by Seller under a policy of insurance written
by Pacific Indemnity Company under policy dated January 1, 2004 through January
1, 2005, bearing policy number 35193479, for its full replacement cost, and
shall continue to be so insured through Closing.
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I. Permits, Approvals and Certificates. All required certificates of
occupancy for the Property and for its separately demised spaces have been
issued and are in good standing and shall remain so upon consummation of
Closing.
J. Good Title to Property. Seller holds good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the lien of security interests securing any existing
mortgage liens which shall be paid and discharged at or before Closing, and the
Permitted Encumbrances.
K. FIRPTA. Gesipa is not a "foreign person" as such term is defined in
Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended (the
"Code"). Xxxxx Xxxxxxxx is a "foreign person" as such term is defined in the
Code. Seller acknowledges that, with respect to Xxxxx Xxxxxxxx, Buyer shall be
required to withhold and remit to the Internal Revenue Service a portion of the
Purchase Price at Closing as required by the Code. Buyer may, in its sole
discretion, agree that Seller shall undertake such withholding and remission on
Buyer's behalf, subject to Seller executing an indemnification agreement
satisfactory to Buyer.
L. Mechanic's Liens. No work has been performed or is in progress at,
and no materials have been furnished to the Property which might give rise to
construction, mechanic's, materialmen's, or other liens against the Property or
any portion thereof, except that for which full and complete releases have been
obtained. This provision shall not apply with respect to work performed by or
materials caused to be furnished by Buyer.
M. Charges, Fees and Assessments. Any and all applicable charges, fees
and assessments and any and all other sums due under declarations,
cross-easements and like agreements to which the Property or any portion thereof
may be subject, have been paid, and no special assessments thereunder are
pending, and all consents and approvals required to be obtained under any such
declarations, cross-easements and like agreements have been obtained. Seller is
in compliance with the terms of any such declarations, cross-easements and like
agreements.
N. Development Agreements. Seller is in compliance with and has fully
paid and discharged all obligations arising under any and all development,
tri-party and like agreements, and any and all other agreements with county,
municipal and other governmental and quasi-governmental agencies and authorities
respecting the ownership, development and operation of the Property and all
portions thereof.
O. Rights to Purchase. Except as set forth in the Lease and the
Declaration (as hereinafter defined), there are no agreements, options, rights
of first refusal, right of first offer, conditional sales agreements or other
arrangements, whether oral or written, regarding the purchase and sale of the
Property, or which otherwise affect any portion of the Property.
P. Rollback Taxes. The Property is not, and to Seller's knowledge has
not been, subject to any roll-back or agricultural taxation or other tax
abatement program.
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Q. Correct Copies of Documents. Where copies of any documents
concerning Seller or the Property have been delivered by Seller to Buyer, in
connection with this Agreement, such copies: (i) are exact copies of the
originals of said documents, as executed and delivered by all of the parties
thereto; (ii) to the best of Seller's knowledge, constitute, in each case, the
entire agreement between the parties thereto with respect to the subject matter
thereof, and are now in full force and effect, and valid and enforceable in
accordance with their respective terms; and (iii) have not been changed or
amended except for amendments, if any, specifically referred to therein.
VI. POSSESSION. Possession of the Property is to be given to Buyer on the
Closing Date, free and clear of any and all rights of occupancy, by delivery of
the Deed, and all keys, combinations and security codes. Seller shall remove
from the Property all of Seller's office furniture and other personal property
not included in the definition of Associated Property set forth herein. Seller
shall repair, at its expense, any damages occasioned by the removal of said
items.
VII. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
A. Title Binder. Buyer has ordered, or shall promptly order upon
Seller's execution and delivery of this Agreement, a current title commitment
(the "Title Binder") from the Title Company, and shall have twenty (20) days
from Buyer's receipt of the Title Binder and complete copies of all underlying
documentation to examine the condition of title, including the terms and
provisions of all items and documents referred to in the Title Binder, and all
information regarding title and matters on the ground as disclosed on such
survey of the Premises as Buyer may secure (the "Survey"), and to approve or
disapprove the same. If Buyer identifies any monetary liens or encumbrances or
determines that any matters in the Title Binder would, in Buyer's sole but good
faith judgment, materially or substantially impair or interfere with Buyer's
intended use of the Premises or subsequent disposition or development thereof,
such disapproval shall be set forth in a notice given to Seller (the
"Disapproval Notice") identifying the condition of title to the Property or any
of the terms, provisions or contents of said items, documents or Survey which
are disapproved by Buyer (the "Title Objections"). Subject to the provisions of
the succeeding portion of this Section, Seller shall have until the date which
is ten (10) days after the date of the Disapproval Notice (the "Title Cure
Expiration Date") in which to cure or eliminate all items which Buyer
disapproves in the Disapproval Notice, and to furnish evidence satisfactory to
Buyer and Title Company that all such items have been cured or eliminated or
that arrangements have been made with Title Company and any parties in interest
to cure or eliminate the same at or prior to Closing. If Seller fails to remove
any Title Objection in accordance with the provisions of the immediately
preceding sentence, Buyer nevertheless may elect to consummate the transaction
provided for in this Agreement subject to any such Title Objection(s) as may
exist as of Closing, with a credit against the Purchase Price in the full amount
necessary to discharge any lien or other monetary encumbrance of a fixed or
ascertainable amount. If Buyer shall not so elect, Buyer may terminate this
Agreement by notice in writing to Seller, whereupon the Deposit shall be
immediately refunded to Buyer, and this Agreement shall be null and void, and
the parties hereto shall be relieved of all further obligations.
B. Physical and Financial Inspection. For a period (the "Inspection
Period") commencing on the date on which this Agreement is fully executed, and
expiring thirty (30) days thereafter (the "Inspection Period Expiration Date"),
Buyer shall have the right to perform or have performed one or more physical,
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mechanical, financial and other inspections, examinations, surveys, analyses,
review, studies and assessments of and concerning the Property and its
suitability for Buyer's use and/or expansion. Seller shall cooperate with Buyer
and shall furnish to Buyer such information, materials and documents as Buyer
may reasonably request, including, without limitation, by providing to Buyer,
within fourteen (14) days of the date on which this Agreement is fully executed,
copies of the following:
1. All Licenses and Contract Documents as required under Section
I.B;
2. All Service Contracts as required under Section V.C;
3. All financial information pertaining to the Property in Seller's
possession;
4. Gesipa's corporate and other organizational documents as required
under Section XII.B.a.(j);
5. Copies of any other agreements to which the Property or any
portion thereof may be subject, including but not limited to building
association agreements;
6. All environmental reports and surveys pertaining to the Property
in Seller's possession;
7. Evidence of the current insurance policy covering the Property;
and
8. Any other material documentation relating to the Property.
Buyer's inspection, audit and measurement of the Property's operation, condition
and maintenance shall include, without limitation, such environmental and
engineering inspections, reviews, surveys, appraisals and assessments that Buyer
deems appropriate. If Buyer, at Buyer's sole and absolute discretion, shall find
any one or more of Buyer's inspections of the Property (or the results or
recommendations therefrom) to be unsatisfactory for any reason that would, in
Buyer's sole but good faith judgment, materially or substantially impair or
interfere with Buyer's intended use of the Premises or subsequent disposition or
expansion thereof, or to present a material or potentially material liability,
Buyer shall have the right, at its option, to terminate this Agreement at any
time on or before the Inspection Period Expiration Date, said date to be
extended automatically for a period equal to the period of any delay on Seller's
part in providing the requested information, materials, documents and other
cooperation contemplated hereunder. Upon such termination, the Deposit shall be
immediately refunded to the Buyer and thereupon the parties hereto shall have no
further liabilities one to the other with respect to the subject matter of this
Agreement.
VIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer and Seller set forth herein shall survive Closing and
delivery of the Deed for a period of two (2) years, excepting those
representations and warranties set forth in Section V.(G), which shall survive
for the applicable period of the statute of limitations pertaining thereto.
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IX. FIRE OR OTHER CASUALTY.
A. Damage. If, prior to the Closing Date, any portion of the Property
is damaged or destroyed by fire or other casualty, and the cost of repair or
restoration shall be $100,000 or less (as established by good faith estimates
obtained by Buyer), then this Agreement shall remain in force and effect. If,
prior to the Closing Date, any portion of the Property is damaged or destroyed
by fire or other casualty, and the cost of repair or restoration thereof shall
be more than $100,000 (as established by good faith estimates obtained by
Buyer), Buyer may, within ten (10) days after receipt of notice of said damage
or destruction, terminate this Agreement by giving written notice thereof to
Seller, and if this Agreement is so terminated, then the Deposit shall be
immediately refunded to Buyer, and thereafter neither party shall have any
further liability hereunder. If Buyer does not so terminate this Agreement, it
shall remain in full force and effect, and the provisions of Section IX.B below
shall apply.
B. Closing After Damage. So long as this Agreement shall remain in
force under Section IX.A, then, at Buyer's option, either (a) all proceeds of
insurance collected prior to Closing, plus the amount of deductible under
Seller's insurance policy, shall be adjusted (subject to Buyer's approval and
participation in any adjustment) and credited to Buyer against the Purchase
Price payable by Buyer at Closing, and all unpaid claims and rights in
connection with losses shall be unconditionally assigned to Buyer at Closing, or
(b) Seller shall restore the Property by Closing to its condition immediately
preceding the casualty and include Buyer, and obtain Buyer's approval of any
insurance adjustments made by Seller.
C. Lease Provisions. If there are any inconsistencies between this
Section IX and Section 16 of the Lease, the provisions of this Section IX shall
govern.
X. CONDEMNATION. If, prior to the Closing Date, all or any portion of the
Property is taken by condemnation or eminent domain, or any notice of any
condemnation or eminent domain proceedings is received by the Seller, then
Seller shall within three (3) days thereafter give notice thereof to Buyer, and
Buyer shall have the option to (a) complete the purchase hereunder, or (b) if
such taking, in Buyer's sole and absolute discretion, adversely affects the
Property or its current use or economic viability, terminate this Agreement, in
which event the Deposit shall be immediately refunded to Buyer, and this
Agreement shall be null and void. Buyer shall deliver written notice of its
election to the Seller within twenty (20) days after the date upon which the
Buyer receives written notice of such condemnation or eminent domain
proceedings. If this Agreement is not so terminated, Buyer shall be entitled to
all awards or damages by reason of any exercise of the power of condemnation or
eminent domain. Any negotiation for, or agreement to, and all contests of any
offers and awards relating to eminent domain proceedings shall be conducted with
the joint approval and consent of Seller and Buyer. If there are any
inconsistencies between this Section X and Section 24 of the Lease, the
provisions of this Section IX shall govern.
XI. EXPENSE ALLOCATIONS. Seller shall pay any realty transfer taxes payable with
respect to the Deed, and any recording charges to record documents removing
encumbrances as may be required hereunder. Buyer shall pay all other recording
charges, the cost of Buyer's title examination, the premium for the title
insurance policy and the cost of the Survey. Buyer and Seller each shall be
responsible for their own attorneys' fees in connection with this transaction.
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XII. CLOSING.
A. Time and Date and Place. The closing ("Closing") on the sale of the
Property shall take place at 10:00 A.M. prevailing local time on December 1,
2004, or such other date as the parties may agree in writing (the "Closing
Date"), at the offices of Xxxxxx, Xxxxx & Bockius LLP, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, time being of the essence.
B. Documents. At or before Closing, the parties indicated shall execute
and deliver the following:
1. Seller's Documents and Other Items. Seller shall execute and
deliver or cause to be executed and delivered to Buyer:
a. Deed. A Bargain and Sale Deed With Covenants Against Grantor's
Acts, prepared by Buyer's counsel, in form reasonably acceptable to Seller (the
"Deed"), conveying the Premises to Buyer, in proper form for recording. The Deed
description shall be based upon the metes and bounds description attached as
Exhibit "A", unless Buyer requests that Seller convey the Premises by the metes
and bounds description shown on the Survey, in which event the Premises shall be
so conveyed;
b. Xxxx of Sale. A xxxx of sale, prepared by Buyer's counsel, in
form reasonably acceptable to Seller, assigning, conveying and transferring all
of the Associated Property to Buyer;
c. Original Licenses, Contract Documents and Other Associated
Property. All original Licenses, Contract Documents, and other Associated
Property described in Section I.B of this Agreement, including, without
limitation, valid certificates of occupancy respecting the Premises and each of
its separately demised spaces;
d. Assignment of Licenses, Contract Documents and Other
Associated Property. An assignment agreement, prepared by Buyer's counsel, in
form reasonably acceptable to Seller, assigning, conveying and transferring the
Licenses, Contracts Documents and other Associated Property to Buyer;
e. Lease Termination. A lease termination agreement, prepared by
Buyer's counsel, in form reasonably acceptable to Seller, terminating the Lease;
f. FIRPTA Certificates. All certificate(s) required under Section
1445 of the Code;
g. Estoppel Certificate from Xxxxx Township. All certificate(s)
required by Section V.G hereof, and any other certificates required by Xxxxx
Township, Xxxxxx County, or the State of New Jersey as a condition of the
conveyance of the Premises or the recording of the Deed;
h. Title Insurance Certificates. Such affidavits of title or
other certifications as shall be required by Title Company to insure Buyer's
title to the Premises as set forth in Section III, and to provide affirmative
endorsements (a) against mechanic's liens, (b) insuring against any violation of
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existing covenants, conditions or restrictions, and insuring that future
violation will not result in forfeiture of title or the forced removal or
alteration of improvements, (c) removing any exceptions for matters which an
accurate survey would disclose, and (d) providing affirmative insurance with
respect to such other matters as Buyer or its lender shall reasonably specify;
i. Seller Certificate. A written certification confirming that,
as of Closing, no representation or warranty of Seller contained in this
Agreement, nor any document or certificate delivered to Buyer pursuant to this
Agreement or in connection with the transaction contemplated hereby, contains
any untrue statement of a material fact or knowingly omits to state a material
fact necessary to make any representation or warranty contained herein
misleading;
j. Organization Certifications. Confirmation of the due
authority of those executing for Gesipa and such parties, including a
certificate from the secretary of the corporation, or managing general partner
of the partnership or managing member of the limited liability company,
confirming, as the case may be, the incumbency of the signatories and the
current force and effect of the resolution authorizing their execution of this
document and the documents required hereunder, issued no earlier than thirty
(30) days prior to Closing;
k. Keys. All keys, combinations and security codes for all locks
and security devices on the Property;
l. Tax Bills. Current tax bills and, if available, tax bills for
each of the years of Seller's ownership of the Property;
m. Tax Reduction Rights. An instrument assigning to Buyer any
claims for the reduction of real or personal property taxes assessed against any
portion of the Property for the fiscal year in which the Closing takes place;
any refund for such year shall be prorated when received;
n. Consents and Approvals. Any and all required consents and
approvals pursuant to any declarations, cross-easements and like agreements to
which the Property or any portion thereof may be subject, including but not
limited to any required building association consents and approvals; and
o. Princeton Crossroads Association. An estoppel certificate from
the Princeton Crossroads One Office Condominium Association confirming that all
dues have been paid by Seller through the Closing Date and that there is no
default or violation by Seller under that certain Master Deed and Declaration of
Restrictive and Protective Covenants, Easements, Charges & Liens for the
Princeton Crossroads One Office Condominium, dated March 17, 1993 and recorded
in Deed Book 2671 Page 085 or any other Condominium Documents (as such term is
defined therein).
2. Buyer's Documents. Buyer shall deliver or cause to be delivered to
Seller:
a. The amounts required to be paid to Seller pursuant to this
Agreement;
11
b. Executed counterparts of any documents identified under
Section XII.B which shall require the signature of both Seller and Buyer.
XIII. DEFAULT; REMEDIES.
A. Seller's Default. In the event that any of Seller's representations,
warranties or covenants contained in this Agreement are untrue, or if Seller
shall have failed to have performed any of the covenants and/or agreements
contained in this Agreement which are to be performed by Seller on or before the
date set forth in this Agreement for the performance thereof, or if any of the
conditions precedent to Buyer's obligation to consummate the transaction
contemplated by this Agreement shall have failed to occur, Buyer may, at its
option, (1) rescind this Agreement by giving written notice of such rescission
to Seller, and Seller shall immediately cause Title Company to return the
Deposit, and thereupon, the parties shall have no further liability to each
other hereunder, or (2) seek specific performance of Seller's obligations under
this Agreement (with a credit against the Purchase Price in an amount necessary
to account for Seller's default, if such amount is fixed or reasonably
ascertainable).
B. Buyer's Default. Buyer recognizes that if this purchase and sale is
not consummated because of Buyer's default, Seller shall be entitled to
compensation for such detriment, if Seller itself shall not have defaulted in
the timely performance of any of its obligations hereunder. Seller and Buyer
acknowledge that it is extremely difficult and impracticable to ascertain the
extent of the detriment, and to avoid this problem, Seller and Buyer agree that
if the purchase and sale contemplated in this Agreement is not consummated
because of Buyer's default under this Agreement, then, if Seller shall not have
defaulted in the timely performance of any of its obligations hereunder, Seller
shall be entitled to retain the Deposit as liquidated damages. The parties agree
that the sum stated above as liquidated damages shall be in lieu of any other
relief to which Seller might otherwise be entitled; Seller hereby specifically
waives any and all rights which it may have to damages or specific performance
as a result of Buyer's default under this Agreement.
XIV. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer hereunder are subject to the fulfillment of
the following conditions prior to or on the Closing Date (any one of which may
be waived in whole or in part by Buyer at or prior to the Closing), and in the
event any of the conditions are not complied with, Buyer may terminate this
Agreement by notifying Seller and Title Company, and thereupon Buyer shall
receive the immediate return of the Deposit, and thereafter this Agreement shall
be null and void:
A. Correctness of Warranties and Representations. The warranties and
representations made by Seller in this Agreement shall be true and correct on
the Closing Date as though such representations and warranties were made on the
Closing Date.
B. Compliance with Terms and Conditions. Seller shall have performed
and complied with all of the terms and conditions required by this Agreement to
be performed and complied with by it prior to or on the Closing Date.
12
C. Buyer's Satisfaction with Inspection. Buyer shall (i) have notified
Seller of Buyer's satisfaction with the title review and other due diligence
inspections performed under Section VII of this Agreement, or (ii) have failed
to notify Seller on or before the Inspection Period Expiration Date, of Buyer's
dissatisfaction with the results of such review(s).
D. Estoppels. Seller shall have delivered to Buyer all of the required
estoppels identified in Section XII.B.1.
E. Corporate Documentation. Buyer shall have received confirmation of
the good standing and existence of Gesipa (and its general partner(s) or
managing member, as applicable), including the following documents issued no
earlier than thirty (30) days prior to Closing: (a) good standing certificate in
Gesipa's state of organization and in the state in which the Premises are
located, and (b) articles of incorporation, certificate of limited partnership,
certificate of formation or other formation instrument certified by the
secretary of state of the state of incorporation.
F. ISRA. Buyer shall have obtained either: (1) a letter from the New
Jersey Department of Environmental Protection ("NJDEP") stating that the New
Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et. seq. and the
regulations promulgated thereunder (collectively "ISRA") are not applicable to
the transaction contemplated by this Agreement; (2) an approved Negative
Declaration (as defined by ISRA) or No Further Action Letter (as defined by
ISRA); or (3) other appropriate ISRA documentation (the Negative Declaration or
No Further Action Letter or other appropriate documentation, as the case may be,
are hereinafter referred to collectively as "ISRA Clearance") with respect to
each and every Industrial Establishment (as defined by ISRA) involved in the
transaction contemplated by this Agreement. If Buyer is unable to obtain a
Letter of Non-Applicability or ISRA Clearance by the Closing, then Buyer shall
apply for and, prior to Closing, enter into a Remediation Agreement (as defined
by ISRA) with NJDEP for the Premises. In any such Remediation Agreement, Buyer
shall pay for and be identified as the sole party responsible for: 1) compliance
with the Remediation Agreement after Closing; and 2) obtaining ISRA Clearance
after the Closing. In addition, Buyer shall provide all necessary financial
assurance required by NJDEP under any such Remediation Agreement. Nothing in
this Section XIV.(F) shall limit Seller's indemnifications in Section V.G.(ii)
of this Agreement.
XV. PRORATIONS.
A. Operating Income and Expenses. The following items shall be prorated
at Closing, as of close of business of the day immediately preceding the Closing
Date (the "Adjustment Date"):
1. Taxes. Real estate and personal property taxes, if any, on the
basis of the fiscal year for which assessed. If Closing shall occur before the
tax rate or assessment is fixed, the apportionment of such real estate and
personal property taxes at Closing shall be upon the basis of the tax rate for
the next preceding year applied to the latest assessed valuation. Final
adjustment will be made upon the actual tax amount, when determined.
13
2. Water and Sewer Charges. Water and sewer charges and fire
protection and inspection services shall be apportioned based upon meter
readings to be obtained by Seller effective as of the Adjustment Date, or if not
so obtainable, a date not more than ten (10) days prior to the Adjustment Date,
and the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to Closing will be apportioned on a per diem
basis from the date of such reading immediately prior thereto and Seller shall
pay the proportionate charges due up to the date of Closing.
3. Assigned Contracts. Amounts paid or payable in respect of any
service and maintenance contracts assigned to and assumed by Buyer in accordance
herewith.
4. Electricity, gas, steam and fuel. Electricity, gas and steam and
fuel oil, if any, based on meter readings or a fuel company letter showing
measurement on the day immediately preceding Closing, and valued at current
prices.
5. Agreements. Amounts paid or payable under declarations,
cross-easements and like agreements to which the Property or any portion thereof
may be subject.
6. Indemnification for Seller's Tax Obligations. Seller shall
indemnify, defend and save and hold harmless Buyer from any loss, cost,
liability or expense (including, without limitation, reasonable counsel fees and
court costs) incurred, paid or suffered by Buyer arising out of or by reason of
any claim made by the New Jersey Division of Taxation or by any other state
taxing or employment authorities asserting or indicating any claims or possible
claims for unpaid taxes, penalties, interest or court costs related thereto of
Seller or any related party, due the State of New Jersey or its political
subdivisions.
7. Schedule of Prorations. The parties shall endeavor to jointly
prepare a schedule of prorations for the Property no less than five (5) days
prior to Closing.
8. Readjustments. The parties shall correct any errors in prorations
as soon after Closing as amounts are finally determined.
9. Survival. The provisions of this Section XV shall specifically
survive Closing hereunder.
XVI. BROKERS. Each party represents and warrants to the other that it has not
employed or retained any broker, finder or other intermediary in connection with
the transactions contemplated by this Agreement, and that neither has had any
dealings with any other person or party which may entitle that person or party
to a fee or commission. Each party shall indemnify the other of and from any
claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
XVII. GENERAL PROVISIONS.
A. Notices. All notices or other communications required or permitted
to be given under the terms of this Agreement shall be in writing, and shall be
deemed effective when (i) hand delivered with signed receipt by an authorized
14
signatory, (ii) sent by facsimile with confirmation of receipt, with an original
copy following by regular mail, (iii) the next business day after being sent by
nationally-recognized overnight courier, guarantying next day delivery; or (iv)
three (3) business days after being deposited in the United States mail, sent by
certified mail, postage prepaid, addressed as follows:
1. If to Buyer, addressed to:
UDC, Inc.
c/o Universal Display Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxx, General Counsel
Facsimile: 000-000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esquire
Facsimile: 877.432.9652
2. If to Seller, addressed to:
Gesipa Fasteners USA, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxxxx 00000
Attn: Xxx X. Xxxxx
Facsimile: 609.833.8301
with a copy to:
Xxxxxx X. Xxxxxx, P.C.
000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
Facsimile: 000.000.0000
3. If to Title Company, addressed to:
Fidelity National Title Insurance Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: M. Xxxxxx Xxxxxxx
Facsimile: 215.732.6726
15
or to such other address or addresses and to the attention of such other person
or persons as any of the parties may notify the other in accordance with the
provisions of this Agreement.
B. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
C. Entire Agreement. All Exhibits attached to this Agreement are
incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
D. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New Jersey.
E. Tender. Tender of the Deed by Seller, and of the Purchase Price by
Buyer, are hereby mutually waived.
F. Execution in Counterparts. This Agreement may be executed by
facsimile and in any number of counterparts, each of which shall be deemed to be
an original as against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
G. Further Instruments. Each party will, whenever and as often as it
shall be reasonably requested so to do by the other, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any and all
conveyances, assignments, corrective and confirmatory instruments, and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions of
this Section shall survive Closing.
H. Time. Time is of the essence. In the event that the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude the
first day and include the last day of such time period.
I. Designation of Nominee; Assignment of Agreement. Subject to the
obligations of Buyer under this Agreement, Buyer shall have the right to assign
this Agreement to an affiliated entity or designate an affiliated entity to
acquire title to the Premises hereunder, provided that Buyer shall either
directly or indirectly hold an equity interest in such entity.
16
J. Effective Date. Whenever the term or phrase "effective date hereof"
or "date hereof" or other similar phrases describing the date this Agreement
becomes binding on Seller and Buyer are used in this Agreement, such terms or
phrases shall mean and refer to the date on which a counterpart or counterparts
of this Agreement executed by Seller and Buyer are deposited with Title Company.
K. Time for Acceptance. This Agreement shall constitute an offer to buy
or sell the Property, as the case may be, on the terms herein set forth only
when executed by the Seller or Buyer. This Agreement may be accepted by the
party receiving such executed Agreement only by executing this Agreement and
delivering an original signed copy hereof to Title Company and an originally
signed copy hereof to the other party hereto within five (5) business days after
such receipt. Failure to accept in the manner and within the time specified
shall constitute a rejection and termination of such officer.
L. Confidentiality. Other than such disclosure by Buyer as may be
required by applicable securities regulations, the parties hereto covenant and
agree to hold the existence and content of this Agreement in strict confidence
prior to Closing. Any press release or other public disclosure which Seller
desires to make shall be pre-approved by Buyer.
XVIII. AS-IS.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE
PROPERTY IS BEING SOLD ON AN "AS IS, WHERE IS" BASIS, AND SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PHYSICAL
CONDITION, FITNESS FOR USE, TITLE OR ANY OTHER MATTER RELATING TO THE PREMISES
OR THE PROPERTY.
XIX. RIGHT OF FIRST REFUSAL.
A. Right of First Refusal. Notwithstanding anything to the contrary in
this Agreement, the parties acknowledge that the Premises is subject to that
certain Declaration of Covenants, Conditions and Restrictions and Reservation of
Easements for Princeton Crossroads at Ewing, dated June 6, 1988, and recorded on
June 7, 1988, in the office of the Clerk of Xxxxxx County, in Deed Book 2445
Page 564, as such Declaration has been amended (the "Declaration"). Pursuant to
the Declaration, each other Owner (as used herein, such term is as defined in
the Declaration) in the Project (as used herein, such term is as defined in the
Declaration) has a right of first refusal to purchase the Premises. Within five
(5) business days after this Agreement has been fully executed, Seller shall
deliver Seller's Notice (as used herein, such term is as defined in the
Declaration) to each Owner in the Project, in the form attached hereto as
Exhibit "C". Seller shall promptly notify Buyer of any offer by an Owner to
purchase the Premises. If no Owner responds to Seller's Notice, Owner shall
inform Buyer in writing of such fact fifteen (15) days after delivery of
Seller's Notice to the Owners.
17
B. Amendment to Lease. Simultaneously with the execution of this
Agreement, the parties have entered into an amendment to the Lease, the form of
which is attached hereto as Exhibit "D" (the "Amendment"). If Closing under this
Agreement is not consummated, and no Owner has exercised its right to purchase
the Premises pursuant to the Declaration as provided in Section XIX.(A) above,
the Amendment shall be deemed automatically null and void and of shall be no
further force and effect.
[Signatures on following page]
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
SELLER:
------
GESIPA FASTENERS USA, INC., a New
Jersey corporation
By: /s/ Guy Krone
-------------------------------
Name: Guy Krone
Title: President
Witness: /s/ Xxxxxx Marmenante
-------------------------------
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
XXXXX XXXXX XXXXXXXX
Witness: /s/ Xxxxxx Xxxxxxxx
-------------------------------
BUYER:
-----
UDC, INC., a New Jersey corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
Witness: /s/ Xxxxx Xxxxxx
-------------------------------
EXHIBIT "A"- LEGAL DESCRIPTION
All that certain lot, tract or parcel of land situate, lying and being
in the Township of Ewing, County of Xxxxxx, and State of New Jersey and being
known as Tax Lot 53 in Section 225.02 as shown on page 36 of the Township of
Ewing Tax Maps and also being known as Lot 6 as shown on a plan entitled
"Revision 0, Xxxxxxx Xxxxx 0, Xxxxxxxxx Xxxxxxxx at Ewing" duly filed in the
Xxxxxx County Clerk's office on March 6, 1995 as Map No. 3195 and being more
particularly bounded and described as follows, to wit
Beginning at a point in the Southerly line of Xxxxxxxx Boulevard, 70
feet wide, said point being the Northwesterly corner of the herein described Lot
6 and being distant 205.00 feet, as measured along said Southerly line of
Xxxxxxxx Boulevard, bearing N 77(degree) 17' 44" E, from a concrete monument
marking the Northeasterly point of terminus of a sight line bearing N 40(degree)
44' 55" E, which connects the Easterly line of Lower Ferry Road, of variable
width, to said Southerly line of Xxxxxxxx Boulevard with a distance of 55.85
feet and running, thence
1. Still along said Southerly line of Xxxxxxxx Boulevard, still bearing N
77(degree) 17' 44" E, a distance of 276.94 feet to a concrete monument found
marking a point of curvature in said line; thence
2. Still along the same and along a curve to the right having a radius of 475.00
feet, an arc distance of 476.23 feet measured in an Easterly direction to a
concrete monument found marking a point of tangency of said line, thence
3. Still along the same, S 45(degree) 15' 38" E, a distance of 8.52 feet to a
point being the Northeasterly corner of Lot 6, thence
4. Along the Southeasterly line of Lot 6, S 63(degree) 43' 02" W, a distance of
536.67 feet to an angle point in said line, thence
5. Still along the same, S 18(degree) 46' 46" W, a distance of 70.00 feet to a
point being the Southeasterly corner of Lot 6, thence
6. Along the Southerly line of Lot 6, N 71(degree) 13' 14" W, a distance of
145.00 feet to a point being the Southwesterly corner of said Lot, thence
7. Along the Westerly line of Xxx 0, X 00(xxxxxx) 00' 00" X, a distance of
336.53 feet to the point and place of beginning.
A-1
EXHIBIT "B" - PERMITTED ENCUMBRANCES
1. Subject to a 75 feet Building Setback Line as shown on filed plan.
2. Subject to a 10 foot wide Utility Easement along the front line as shown on
filed plan.
3. Restrictions as contained in Deed Book 2310, Page 643.
4. Drainage Easement in Deed Book 2371, Page 264. Amendment thereto in Deed
Book 2423, page 1.
5. Subject to terms and conditions of Agreement recorded in Deed Book 2371,
page 285.
6. Subject to Conservation and Maintenance Easement in Deed Book 2421, page
284.
7. Declaration of Covenants, Conditions and Restrictions and Reservation of
Easements for Princeton Crossroads at Ewing in Deed Book 2445, 564. 1st
Supplement as contained in Book 2514, page 626. Supplement Amendment as
contained in Book 2519, page 366. 2nd Amendment as contained in Book 2671,
page 78. 3rd Amendment as contained in Book 2933, page 320. 4th Amendment
dated 7-21-97, Book 3234, page 205. Supplement dated 9-2-97, in Book 3234,
page 212.
8. Utility Easements recorded in Deed Book 604, page 207; Deed Book 604, page
208; Deed Book 1163, page 553; Deed Book 1857, page 451 and Deed Book 2122,
page 412.
B-1
EXHIBIT "C" - FORM OF SELLER NOTICE
CERTIFIED MAIL, RETURN RECEIPT
____________, 2004
[ADDRESS OF OWNER]
Re: Declaration of Covenants, Conditions and Restrictions and
Reservation of Easements for Princeton Crossroads at Ewing,
dated June 6, 1988, and recorded on June 7, 1988, in the
office of the Clerk of Xxxxxx County, in Deed Book 2445 Page
564, as amended (the "Declaration")
To Whom It May Concern:
As an Owner under the above-referenced Declaration, you have a right of
first refusal to purchase Units sold by other Owners. Pursuant to the
Declaration, this letter is notice that Xxxxx Xxxxx Xxxxxxxx and Gesipa
Fasteners USA, Inc. ("Owners") have entered into an Agreement of Sale with
Universal Display Corporation ("UDC") for the sale of 000 Xxxxxxxx Xxxxxxxxx
(the "Property").
You have fifteen (15) days in which to notify Owners of your offer to
purchase the Property upon the Owner's terms. The Agreement of Sale between
Owners and UDC provides for the following basic terms:
o A purchase price of $5,500,000, not contingent on the buyer
obtaining financing therefor;
o A cash deposit of $100,000 (to be included with any notification to
Owners of an offer pursuant to this letter);
o Closing by December 1, 2004, time being of the essence; and
o Conveyance to buyer of good and marketable fee simple title, subject
only to easements, covenants and restrictions of record.
The Property is subject to a lease between Gesipa Real Estate Partners
and UDC, the term of which currently expires on December 31, 2013, and pursuant
to which UDC has a continuing right to expand into any and all available space
in the Property upon thirty (30) days notice to the landlord.
Sincerely,
_______________
C-1
EXHIBIT "D" - AMENDMENT TO LEASE
This Third Amendment of Lease is made as of the 26th day of October, 2004,
between GESIPA REAL ESTATE PARTNERS, an entity having an office at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx, Xxx Xxxxxx 00000 ("Landlord"), and UNIVERSAL DISPLAY
CORPORATION, an entity having an office and principal place of business at 000
Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxx Xxxxxx 00000 ( "Tenant").
Whereas, Landlord and Tenant have entered into a Lease Agreement dated
October 12, 1998, which agreement was amended by a First Amendment of Lease
dated January 11, 2001 and a Second Amendment to Lease dated September 22, 2003
(the "Master Lease"); and
Whereas, Landlord and Tenant desire to renew the term of the Master
Lease for an additional five-year period and to make such other changes to the
Master Lease as are described below.
Now, Therefore, Landlord and Tenant, intending to be legally bound,
hereby agree as follows:
FIRST; the term of the Master Lease shall be renewed for an additional
five (5) year period, expiring on December 31, 2013.
SECOND; the following new Article 56 shall be added to the Master
Lease:
"56. RIGHT OF EXPANSION.
Tenant shall have the right, at any time during the term of this Lease,
to expand into any additional available space in the Building, upon
thirty (30) days prior written notice to Landlord. Tenant shall lease
such additional space on the same terms and conditions as are
applicable to the Leased Premises pursuant to the terms and conditions
of this Lease (with Base Rent adjusted, as applicable, on a
proportionate basis with respect to the respective square footages of
the Leased Premises and of the additional leased space). Tenant's right
of expansion shall be continuous throughout the term of this Lease so
that Tenant's decision not to lease an available unit of space does not
result in a forfeiture of Tenant's continuing right regarding available
space throughout the term of this Lease."
THIRD; each party represents to the other that it utilized no broker
for this transaction.
FOURTH; except as set forth in this Third Amendment of Lease, all other
terms, covenants, conditions, provisions and agreements contained in the Master
Lease shall remain in full force and effect.
[Signatures on following page]
D-1
In Witness Whereof, this Third Amendment of Lease has been duly
executed by the parties hereto as of the day and year first above written.
WITNESS: GESIPA REAL ESTATE PARTNERS
By:
--------------------------- ------------------------------
Name: Name: Xxx X. Xxxxx
---------------------- ----------------------------
WITNESS: UNIVERSAL DISPLAY CORPORATION
By:
--------------------------- ------------------------------
Name: Name: Xxxxxx Xxxxxxxxxx
---------------------- ----------------------------
D-2
