EXECUTION COPY
PURCHASE AND SALE AGREEMENT
FOR
0000 X.X. XXXXXXX XXX XXXXX
XXXXX XXXXXXXXX, XXX XXXXXX
MADE BY
THE OKONITE COMPANY, INC. AS SELLER
AND
USA DETERGENTS, INC., AS PURCHASER
DATED AS OF JANUARY 22, 1997
PURCHASE AND SALE AGREEMENT
TABLE OF CONTENTS
Recitals................................................................... 1
Article 1
Fundamental Terms.......................................................... 2
Section 1.1. Fundamental Terms....................................... 2
Section 1.2. Other Definitions....................................... 2
Article 2
Purchase And Sale.......................................................... 7
Section 2.1. Purchase And Sale....................................... 7
Section 2.2. Payment Of The Purchase Price........................... 8
Article 3
Purchaser's Review......................................................... 9
Section 3.1. Property Documents...................................... 9
Section 3.2. Contingency Period...................................... 9
Section 3.3. Termination Of Agreement................................12
Section 3.4. Indemnity And Survival..................................12
Article 4
Title Documents............................................................13
Section 4.1. Survey..................................................13
Section 4.2. Title Commitment........................................13
Section 4.3. Title Defects...........................................14
Article 5
Representations, Warranties, And Covenants.................................17
Section 5.1. Seller's Representations And Warranties................17
Section 5.2. Survival Of Seller's Representations And Warranties.....28
Section 5.3. Purchaser's Representations And Warranties..............29
Section 5.4. Seller's Covenants......................................30
Section 5.5. Purchaser's Covenants...................................34
Article 6
Closing....................................................................35
Section 6.1. Conditions To Purchaser's Obligations To Close..........35
Section 6.2. Conditions To Seller's Obligations To Close.............37
Section 6.3. Closing.................................................38
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Section 6.4. Prorations.............................................39
Section 6.5. Closing Costs..........................................46
Section 6.6. Closing Deliveries.....................................46
Section 6.7. Access to Records......................................51
Section 6.8. Survival...............................................51
Article 7
Brokerage..................................................................51
Article 8
Casualty and Condemnation..................................................52
Article 9
Defaults...................................................................55
Section 9.1. Purchaser's Default............................55
Section 9.2. Seller's Default...............................55
Section 9.3. Delivery of Xxxxxxx Money Deposit in the Event
of a Default.................................56
Article 10
Limitations of Liability...................................................56
Section 10.1. No Liability as to Representatives.............56
Section 10.2. Limitation of Liability of Purchaser...........57
Section 10.3. Limitation of Liability of Seller..............57
Section 10.4. Survival.......................................57
Article 11
Miscellaneous..............................................................57
Section 11.1. Assurances Of Cooperation......................57
Section 11.2. Successors And Assigns.........................58
Section 11.3. Interpretation.................................58
Section 11.4. Survival.......................................59
Section 11.5. Joint Cooperation..............................60
Section 11.6. Publicity......................................60
Section 11.7. Notices........................................61
Section 11.8. Certain Conditions.............................62
Section 11.9. Attorney's Fees................................62
Section 11.10. Counterparts...................................62
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The Exhibits
Exhibit A..........The Real Property
Exhibit B..........The Permitted Title Exceptions
Exhibit C..........The Intangible Property And The Contracts
Exhibit D..........The Rent Roll
Exhibit E..........The Assignment of Contracts, and Intangible Property
Exhibit F..........The Assignment of Leases
Exhibit G..........The Claims
Exhibit H..........The Property Documents
Exhibit I..........Schedule of Insurance
Exhibit J..........Existing Mortgages and Encumbrances
Exhibit K..........Licenses
Exhibit L..........Environmental Reports
Exhibit M..........Escrow Agreement
Exhibit N..........Environmental Indemnity Agreement
Exhibit O..........Lease Agreement
Exhibit P..........Deed Covenant
Exhibit Q..........Pre-Closing Lease
Exhibit R..........Notice Dated July 26, 1996 from Okonite to NJDEP
Exhibit S..........CV Platforms to remain at Property
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THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made as of January
22, 1997, by and between The Okonite Company, Inc., a New Jersey corporation
("SELLER") and USA Detergents, Inc., a Delaware corporation ("PURCHASER").
Recitals
A. Seller is the owner of the real property generally known as 0000
X.X. Xxxxxxx Xxx Xxxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx, more particularly
described on Exhibit A hereto (the "LAND").
B. A portion of the Land is improved with a building containing
approximately 650,000 square feet of warehouse and office space and other
improvements (collectively, the "IMPROVEMENTS"). The Land and the Improvements
are referred to herein as the "REAL PROPERTY." The Real Property, the Lease,
the Contracts, the Intangible Property and the Licenses (as those terms are
defined herein) are collectively referred to as the "PROPERTY."
C. Purchaser has agreed to purchase the Property from Seller, and
Seller has agreed to convey and transfer the Property to Purchaser, on the
terms and conditions contained in this Agreement.
In consideration of the respective agreements, covenants,
representations, warranties and conditions contained in this Agreement, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
FUNDAMENTAL TERMS
Section
1.1. Fundamental Terms. When used herein, the following terms
shall have the following meanings attributed to them:
Purchase Price: Seven Million Two Hundred Thousand Dollars
($7,200,000).
Xxxxxxx Money
Deposit: Purchaser, pursuant to an escrow agreement
dated December 31, 1996 (the "ESCROW AGREEMENT"), has
deposited the sum of One Million Four Hundred Forty
Thousand Dollars ($1,440,000.00) with Fulbright &
Xxxxxxxx L.L.P. as Escrow Agent under the Escrow
Agreement. Purchaser and Seller hereby direct such
Escrow Agent to promptly deliver all funds it is
holding in escrow pursuant to the Escrow Agreement to
Escrowee (as defined herein). The term "XXXXXXX MONEY
DEPOSIT" shall also include any interest earned on
the deposited monies, unless otherwise specifically
provided for in this Agreement.
Contingency Period
Expiration Date: 5:00 p.m. Eastern Time, March 15, 1997.
Closing Date: March 31, 1997, as such date may be extended pursuant
to the terms of this Agreement or by mutual consent of
the parties hereto.
Seller's Broker: None.
Purchaser's Broker: None.
Escrowee: Fulbright & Xxxxxxxx L.L.P.
Section 1.2. Other Definitions. As used herein, the following terms
shall have the following meanings:
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ACO: As defined in Section 5.1.2.13. of this
Agreement.
Agreement: This Agreement, including all exhibits and schedules
hereto, all of which are incorporated into this
Agreement by this reference.
Change: As defined in Section 5.2.2. of this Agreement.
Cancellation
Notice: As defined in Section 3.3. of this Agreement.
Charges: As defined in Section 6.4.2.2. of this Agreement.
Claims: As defined in subsection 5.1.2.1. of this Agreement.
Closing: As defined in Section 6.3.1. of this Agreement.
Closing Date: As defined in Section 1.1. of this Agreement.
Closing
Statement: As defined in Section 6.4. of this Agreement.
Contingency
Period: As defined in Section 3.2.1. of this Agreement.
Contracts: All written or oral contracts, agreements and
understandings affecting all or any portion of the
Property to which Seller or its predecessor in
interest is a party (including without limitation all
guarantees and warranties pursuant to which goods or
services are furnished to or for the benefit of the
Property), which will survive the Closing Date. The
Contracts are identified on Exhibit C.
Cure Amount: As defined in Section 4.3.2.(a) of this Agreement.
Deed: As defined in Section 2.1. of this Agreement.
Delinquent Amounts: As defined in subsection 6.4.3.1. of this Agreement.
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Environmental Laws: All Legal Requirements regulating,
relating to or imposing liability standards
concerning or in connection with Hazardous Materials.
Environment Reports: Those certain environmental reports listed on Exhibit
L.
Escrowee: As defined in Section 1.1. of this Agreement.
Escrow Agent: Fulbright & Xxxxxxxx L.L.P.
Escrow Agreement: That certain agreement dated as of
December 31, 1996 between Purchaser, Seller and
Escrow Agent.
Excess Uninsured Amount: As defined in Subsection (d) of Article 8 of this
Agreement.
Governmental Authority: The United States of America, or
any state, county, municipality, or other unit of
local Government, or any agency, board, or other
public entity empowered or constituted by any of
them, having jurisdiction over the Property or its
use or ownership.
Hazardous Material: Any substance, material, waste, gas,
or particulate matter which is: (i) defined as a
"hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," or
"restricted hazardous waste" under any provision of
the laws of the State of New Jersey or the laws of
the United States; (ii) petroleum; (iii) asbestos;
(iv) polychlorinated biphenyl; (v) radioactive
material; (vi) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, 33
U.S.C. Sec. 1251 et seq.; (vii) defined as a
"hazardous waste" pursuant to Section 1004 of
the Resource Conservation and Recovery Act, 42 U.S.C.
Sec. 6901 et seq.; or (viii) defined as a "hazardous
substance" pursuant to Section (14) of the
Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. Sec. 9601 et seq.
Improvements: All buildings, structures, fixtures,
facilities, and other improvements of every kind
located on or under the Land, including any and all
plumbing, air conditioning, heating, ventilating,
mechanical, electrical and other utility systems,
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landscaping, roadways, sidewalks, security devices,
signs and light fixtures, but not including publicly
owned or privately owned (unless owned by Seller)
utility lines.
Intangible Property: All intangible property, excluding Contracts and
Licenses owned by Seller, which pertains to the
Property, including all of Seller's rights (if any)
in and to the guarantees, warranties, plans and
specifications and reports pertaining to the Property
(or any portion thereof); certain items of Intangible
Property are identified on Exhibit C.
Involuntary Monetary
and Mechanics' Liens: As defined in Section 4.3.2.(a) of this Agreement.
Lease: That certain lease for the occupancy of a portion
of the Real Property, including any amendments and
modifications thereof, which is identified on Exhibit
D.
Legal Requirements: All laws, statutes, regulations, rules
and requirements of any Governmental Authority having
jurisdiction over the Property.
Licenses: All licenses, permits, certificates of
occupancy, and authorizations or other matters issued
by any Governmental Authority regarding operation of
the Real Property by Seller.
Material Part: As defined in Subsection (c) Article 8 of
this Agreement.
NJDEP: As defined in Section 5.4.6. of this Agreement.
New Lease: As defined in Section 5.4.2.4. of this Agreement.
Overage Rents: As defined in Section 6.4.2.2. of this Agreement.
Owner's Policy: As defined in Section 4.2. of this Agreement.
Permitted Assignee: A corporation, partnership or limited
liability company which is affiliated with Purchaser
or is an entity controlled by Purchaser, provided,
however, that Purchaser guarantees the performance of
such proposed assignee; or any entity with which
Purchaser is merged or consolidated
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or to which all of Purchaser's assets have been
transferred, provided, however, that Seller is
furnished with sufficient documentation to enable
Seller to independently confirm that such merger,
consolidation or asset transfer has occurred.
Permitted Title
Exceptions: Those matters listed on Exhibit B to this Agreement.
Property: The Real Property, the Leases, the Licenses, the
Contracts and the Intangible Property.
Property Documents: As defined in Section 3.1. of this Agreement.
Prorations: As defined in Section 6.4. of this Agreement.
Purchaser: USA Detergents, Inc., a Delaware corporation.
Purchase Price: The consideration payable by Purchaser to
Seller for the Property and for all other benefits to
Purchaser provided for in this Agreement, as stated
in Section 1.1. of this Agreement.
Real Property: The real property described on Exhibit A to
this Agreement.
Rent Roll: As defined in Section 5.1.3.1. of this
Agreement; a copy of the Rent Roll is attached to
this Agreement as Exhibit D.
Representatives: As defined in Section 10.1. of this Agreement.
Seller: The Okonite Company, Inc., a New Jersey corporation.
Studies: As defined in Section 3.2.3. of this Agreement.
Survey: A current survey of the Real Property prepared by a
surveyor licensed by the State of New Jersey
and certified to the Purchaser, the Title Insurer,
the Seller and such other parties as Purchaser shall
designate, which survey shall be prepared in
accordance with the Minimum Detail Standards for Land
Title Surveys of 1992 of the American Title
Association and American Congress on Surveying and
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Mapping for a Class A or Urban survey and shall be
dated no earlier than August 15, 1996 and shall also
include (i) the distances and bearings of all
boundaries of the Land and the location of all
changes in bearing, (ii) all abutting streets,
including an indication of the width of such streets
and the boundaries of the rights-of-way for such
streets, (iii) the number of stories of all of the
buildings and improvements located on the Land, (iv)
all recorded easements across the Land, identified by
book and page of recording, (v) all unrecorded
easements visible on the site or otherwise known to
the surveyor, and (vi) the total number of parking
spaces.
Tenant: A party in possession of a portion of the Property
pursuant to a Lease.
Title Commitment: A commitment for an ALTA Form 1970
Owner's Policy Form B of Title Insurance issued by
the Title Insurer in the amount of the Purchase Price
covering title to the Property on or after the date
of this Agreement, subject to the Permitted Title
Exceptions and containing the endorsements as set
forth in Section 4.2.
Title Defect: A lien, claim, charge, right, interest,
burden, encumbrance, defect, objection, exception or
security interest which is asserted against the
Property and which is not identified in this
Agreement as a Permitted Title Exception and as
defined in Section 4.1. of this Agreement.
Title Insurer: Chicago Title Insurance Company.
Violations: As defined in Section 5.4.4. of this Agreement.
Violations Cure Amount: As defined in Section 5.4.4. of this Agreement.
All Exhibits to this Agreement are by this reference
incorporated herein as if fully set forth herein at length.
ARTICLE 2
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PURCHASE AND SALE
Section
2.1. Purchase And Sale. Subject to the terms and conditions contained in this
Agreement, Purchaser agrees to purchase the Property from Seller and Seller
agrees to sell the Property to Purchaser. Upon and subject to the terms and
conditions contained in this Agreement, Seller agrees to convey fee simple
title to the Real Property to Purchaser or its Permitted Assignee by a bargain
and sale deed with covenant against grantor's acts (the "DEED"), subject to
the Permitted Title Exceptions. Upon and subject to the terms and conditions
contained in this Agreement, Seller agrees to sell, assign and transfer to
Purchaser the Leases, the Contracts, and, to the extent assignable, the
Intangible Property and Licenses by the instruments attached hereto as
Exhibits E and F which instruments shall be executed by Seller for the benefit
of Purchaser or its Permitted Assignee.
Section 2.2. Payment Of The Purchase Price. Concurrently
with the execution and delivery of this Agreement or as soon thereafter as
reasonably practicable, the parties shall direct Escrow Agent to deliver the
Xxxxxxx Money Deposit to Escrowee. The Xxxxxxx Money Deposit shall be held by
the Escrowee pursuant to an escrow agreement as set forth on Exhibit M hereto
and as the same may be modified by agreement of the parties thereto and shall
be invested in an interest-bearing instrument by the Escrowee as directed by
Purchaser and Seller jointly. Purchaser
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agrees to pay the Purchase Price to Seller, and Seller agrees to accept
payment of the Purchase Price on the Closing Date in the following manner:
2.2.1. The Xxxxxxx Money Deposit shall be delivered to Seller
in immediately available funds or by official bank check or by certified
check. The Xxxxxxx Money Deposit, but not the accumulated interest thereon,
will be credited against the Purchase Price at Closing.
2.2.2. To the extent Purchaser has paid any Base Rent to
Seller pursuant to the terms of the Lease attached hereto as Exhibit Q, the
total amount of such Base Rent paid by Purchaser shall be credited against the
Purchase Price.
2.2.3. On the Closing Date, Purchaser shall pay the balance of
the Purchase Price plus or minus net Prorations to Seller by wire transfer of
immediately available funds to a financial institution located in the
continental United States of America or by certified check or official bank
check. Seller's Wire transfer instructions are as follows:
Fleet Bank, N.A.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank Routing No. 0212-00339
For credit of: The Okonite Company, Inc.
Xxxxxx, Xxx Xxxxxx 00000
Account No. 0000-00-0000
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ARTICLE 3
PURCHASER'S REVIEW
Section
3.1. Property Documents. At any reasonable time and
from time to time following the execution and delivery of this Agreement, on
reasonable advance notice to Seller, Seller will permit Purchaser and its
authorized agents to examine and copy the instruments and documents listed on
Exhibit H and Exhibit L, together with such other instruments and documents
relating to the Property which are in the possession of Seller as Purchaser
may reasonably request (together with any documents copied pursuant to Section
3.2., the "PROPERTY DOCUMENTS"). Such inspection shall take place at the
offices of Seller, Seller's counsel, or at the Property.
If the transaction herein contemplated does not close, Purchaser
shall return to Seller all documents previously delivered to or copied by
Purchaser and its attorneys, accountants, consultants and other agents
regarding the Property.
Section 3.2. Contingency Period.
3.2.1. From the date of this Agreement to the Contingency
Period Expiration Date, Purchaser shall conduct its review of the Property and
of the Property's suitability for Purchaser's needs. The period from the date
of this Agreement to the Contingency Period Expiration Date is referred to
herein as the "CONTINGENCY PERIOD."
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3.2.2. During the Contingency Period and at all times prior to
the Closing, Seller shall make available to Purchaser and its representatives
for inspection and copying at Seller's offices or at the offices of Seller's
attorney, upon reasonable notice:
1. The original Property Documents and Environmental
Reports as set forth on Exhibit H and Exhibit L;
2. A schedule of all independent contractors currently
under contract, retained or employed by Seller or on behalf of its
managing agent in the operation or environmental remediation of the
Property or in connection with the plant clean-up or equipment
removal; and
3. All Contracts and Licenses.
3.2.3. During the Contingency Period, and at all times prior
to the Closing, Purchaser, its representatives or agents, shall have the right
to enter upon and inspect the Property. The Purchaser's right to inspect the
Property shall be subject to the following:
1. Purchaser may examine and test the Property, which
tests may include soil tests, environmental tests and engineering
tests which are noninvasive or invasive in a non-material manner.
Purchaser may conduct material invasive testing provided it obtains
prior written consent from Seller, which shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, however,
Purchaser's counsel may, subject to obtaining Seller's
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consent not to be unreasonably withheld or delayed, engage
an environmental consultant to conduct an examination of the
Property to obtain information about hazardous materials contained
thereon and to conduct any testing or examination required by a
customary and reasonable Phase I and II environmental review, taking
into account the nature, use and history of the Property; and
2. Purchaser may inspect the Improvements to evaluate
their suitability for Purchaser's needs.
3. Purchaser may initiate, and Seller shall assist and
cooperate with Purchaser, in preparing any necessary applications or
permits required by any Governmental Authority required in
connection with Purchaser's proposed use of the Property including
any proposed construction and/or demolition.
All of the examinations, inspections, studies, tests and
reports conducted or prepared pursuant to this Section 3.2.3. prior to Closing
are referred to in this Agreement as the "STUDIES."
3.2.4. Purchaser's right to enter onto the Property to conduct
these Studies is subject to the following conditions:
1. Purchaser shall provide Seller with reasonable prior
notice of any entry on the Property, and Seller may, at its
election, have a representative present during any such entry;
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2. All investigations and other activities conducted by
Purchaser with respect to the Property shall be at Purchaser's sole
cost and expense, and Purchaser shall keep the Property free of any
liens which may be asserted against Seller or the Property as a
result of these activities; and
3. Purchaser shall exercise due care with respect to the
Property in connection with its entry thereon so as to minimize any
damage caused to the Property and any interference with Seller's use
thereof. Promptly following any test or other examination which
results in any alteration of the Property, Purchaser will promptly
restore at its sole cost and expense the Property to the condition
which existed prior to such test or examination.
Section 3.3. Termination Of Agreement. Prior to the
Contingency Period Expiration Date, Purchaser shall have the right to elect to
terminate this Agreement for any reason in Purchaser's sole and absolute
discretion, and this Agreement shall be terminated if, on or before 5:00 p.m.
Eastern Time on the Contingency Period Expiration Date, Purchaser gives Seller
written notice of Purchaser's intention to terminate this Agreement (a
"CANCELLATION NOTICE"). If Purchaser gives the Cancellation Notice to Seller
in accordance with the terms of this Agreement, (a) Escrowee is hereby
instructed to return the Xxxxxxx Money Deposit to Purchaser and (b) this
Agreement shall be terminated, subject to the survival of the indemnity
obligations as provided in Section 3.4. and those provisions which
specifically survive the termination of this Agreement.
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Section 3.4. Indemnity And Survival. Purchaser hereby agrees
to indemnify, defend, protect and hold Seller harmless from any and all
claims, causes of action (including but not limited to any personal injury or
property damage liability claims or causes of action), costs, loss and
damages, including reasonable attorneys' fees and litigation expenses, which
may be brought against Seller or which Seller shall incur as a result of the
conduct or preparation of the Studies (but specifically not from the results
of the Studies). In the event this Agreement is terminated, this indemnity
shall survive the termination of this Agreement as to all claims which are
identified by Seller in writing to Purchaser within a period of six (6) months
from and after the date of termination of this Agreement, except that such
period shall be two (2) years in the case of personal injury or property
damage liability claims or causes of action. If this Agreement is not
terminated, this indemnification shall survive the Closing.
ARTICLE 4
TITLE DOCUMENTS
Section
4.1. Survey. Any encroachments onto the Real
Property from any adjacent property, encroachments by or from the Real
Property onto any adjacent property or violation of or encroachments upon any
building lines, restrictions or easements affecting the Real Property shown on
the Survey shall be considered "TITLE DEFECTS," unless otherwise included in
the Permitted Title Exceptions.
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Section 4.2. Title Commitment. Prior to or promptly after the date
of this Agreement, Purchaser shall cause the Title Insurer to deliver the
Title Commitment (and from time to time any update thereof) and copies of all
documents of record to Seller. Subject to the provisions of Section 4.3., on
the Closing Date, the Title Insurer shall issue an ALTA 1970 owner's title
insurance policy Form B (the "OWNER'S POLICY") or commitment therefor pursuant
to and in accordance with the Title Commitment insuring fee simple title to
the Real Property in the Purchaser as of the Closing Date in the amount of the
Purchase Price, subject to the Permitted Title Exceptions and such other
exceptions as Purchaser may approve pursuant to the provisions of this Article
4. Purchaser shall bear the cost of issuance of the Owner's Policy, the cost
of the lender's policy, and any endorsements required by Purchaser to be
issued in connection with the Owner's Policy or lender's policy.
Section 4.3. Title Defects.
4.3.1. If the Title Insurer is not prepared to issue the Owner's
Policy at Closing, consistent with the provisions of this Agreement, and if
Seller shall elect (or shall be required under Subsection 4.3.2 below) to
attempt to remove any defect in or objection to title or to fulfill any
condition, then Seller will be entitled, upon written notice delivered to
Purchaser at least two (2) business days prior to the Closing Date, to adjourn
the Closing Date one or more times, for a period not to exceed sixty (60) days
in the aggregate, to enable Seller to take such action as may be required to
cause the Title Insurer to issue the Owner's Policy in accordance with the
provisions
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of this Agreement. If Seller does not so elect to adjourn the Closing, or if
at the adjourned date(s) the Title Insurer is not prepared to issue the
Owner's Policy in accordance with the provisions of this Agreement, either
party may terminate this Agreement, by written notice to the other party
hereto, and the parties shall direct Escrowee to return the Xxxxxxx Money
Deposit to Purchaser and neither party will have any obligations under this
Agreement except for those provisions which specifically survive the
termination hereof.
4.3.2. (a) If Seller elects to adjourn the Closing as provided
above, this Agreement shall remain in effect for the period or periods of
adjournment in accordance with its terms. In no event, however, shall Seller
be required to take or bring any action or proceeding or any other steps to
remove any defect in or objection to title or to fulfill any condition or to
expend any moneys therefor, nor shall Purchaser have any right of action
against Seller therefor, at law or in equity, for damages or specific
performance; provided, however, that if an examination of title indicates the
existence of one or more (i) liens or encumbrances or (ii) mechanics' liens
created as a result of work performed at the Property on behalf of Tenant
prior to the Closing Date which as to (i) and (ii), are in liquidated amounts
and can be removed or discharged by payment of a sum of money ("INVOLUNTARY
MONETARY AND MECHANICS' LIENS") which is not in excess of Two Hundred Fifty
Thousand Dollars ($250,000.00) (the "CURE AMOUNT") in the aggregate, and if
such removal or discharge can reasonably be expected to be accomplished prior
to the Closing Date initially provided for in
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Section 1.1. hereof or within a period of sixty (60) days thereafter or such
longer period of time as Purchaser may approve, Seller agrees to take such
action as is reasonably required in order to remove or discharge such lien or
encumbrance and, if required, to adjourn the Closing Date for the period
required for such purpose. Seller will be deemed to have satisfied the
foregoing requirement with respect to any Involuntary Monetary and Mechanics'
Liens, provided that on the Closing Date the Title Insurer will issue or bind
itself to issue the Title Commitment without additional premium (unless Seller
shall pay such premium) which will (i) insure Purchaser against collection of
such Involuntary Monetary and Mechanics' Liens or enforcement thereof against
the Property and (ii) agree to issue a title commitment to any subsequent
mortgagee or purchaser of the Property from Purchaser, which commitment will
insure such mortgagee or purchaser against collection of such Involuntary
Monetary and Mechanics' Liens out of the Property or enforcement thereof
against the Property without any additional premium.
(b) In addition, Seller will, without limitation as to the
amount thereof and at its sole cost and expense, cause to be removed at or
prior to the Closing (i) all mortgages, assignments of leases and rents,
financing statements and deeds of trust whether created prior to or after the
date hereof, (ii) judgments or tax liens (other than real estate tax liens
which are addressed in Section 6.4.1.) against the Property resulting from
Seller's failure to pay any obligation of Seller or (iii) voluntary liens or
encumbrances (including mechanics' liens filed against landlord for work
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performed on Seller's behalf but excluding mechanics' liens filed in
connection with work performed on behalf of Tenant, except as provided for in
Section 4.3.2.(a)), affecting the Property, which liens or encumbrances result
from Seller's ownership or operation of the Property.
4.3.3. Notwithstanding the provisions of Section 4.3. hereof,
Purchaser may at any time accept the Owner's Policy in such form as the Title
Insurer is willing to issue, without reduction of the Purchase Price or any
credit or allowance on account thereof or any claims against Seller except
that if on the Closing Date there remain unremoved Involuntary Monetary and
Mechanics' Liens which have neither been removed by Seller nor insured over by
the Title Insurer as provided in Section 4.3.2., and Seller has not used the
entire Cure Amount in removing such liens, then Purchaser may elect to close
subject to such unremoved Involuntary Monetary and Mechanics' Liens and
receive the Cure Amount, less any amounts previously paid by Seller or
deposited with the Title Insurer to remove or obtain insurance over any
Involuntary Monetary and Mechanics' Liens, as a credit against the Purchase
Price. The acceptance of the Deed by Purchaser shall be deemed to be full
performance of, and discharge of, every agreement and obligation on Seller's
part to be performed under this Agreement, except for those which this
Agreement specifically provides shall survive the Closing.
ARTICLE 5
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REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section
5.1. Seller's Representations And Warranties. In order to induce
Purchaser to enter into this Agreement, Seller represents and warrants to
Purchaser as follows:
5.1.1. As to Organization, Power and Authority.
5.1.1.1. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey.
5.1.1.2. Seller has full right, power and authority to
enter into and perform its obligations under this Agreement and the other
instruments and documents contemplated herein to be executed and performed by
it, including, without being limited to, those conveying the Property. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby (1) have been duly authorized by all
necessary action on the part of the Seller, (2) do not require any
governmental or other consent other than the consent of the NJDEP as set forth
in Section 5.4.5. hereof, and (3) will not result in the breach of any
agreement, indenture or other instrument to which Seller is a party or is
otherwise bound. This Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with the terms
hereof.
5.1.1.3. Neither Seller nor the Property is in the
hands of a receiver nor is an application for a receiver pending or
contemplated. Seller is neither insolvent nor has made an assignment for the
benefit of its creditors, nor has Seller
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filed, or had filed against it, any petition in bankruptcy, nor is any such
petition contemplated or threatened.
5.1.1.4. Seller is a "non-foreign person" within the
meaning of Section 1445 of the United States Internal Revenue Code of 1986, as
amended, and the regulations issued thereunder.
5.1.1.5. To the best of Seller's knowledge, Seller is
the sole owner of, and has good and marketable title to the Intangible Property
free and clear of all liens, encumbrances, claims, chattel mortgages,
conditional bills of sale, security interests and demands, other than the
Permitted Title Exceptions.
5.1.1.6. Seller has not entered into any agreement
currently in force to sell or mortgage or otherwise encumber or dispose of its
interest in the Property or any part thereof, except for this Agreement and
those relating to any existing mortgages and encumbrances as set forth on
Exhibit J which will be satisfied or discharged on or before the Closing Date.
5.1.2. As to the Property.
5.1.2.1. There is no litigation, action or proceeding
pending against the Property, Seller's interest in the Property, or any part
thereof, before any court or Governmental Authority, except as shown on
Exhibit G (the "CLAIMS"). Except as shown on Exhibit G, Seller has not
received notice of any citations, violations, suits, proceedings, orders,
decrees or judgments relating to zoning, building, use and occupancy, traffic,
storm water management, fire, health, sanitation,
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Environmental Laws or other laws or regulations, against, or with respect to,
the Property or any part thereof which remain uncured or remain of record.
Exhibit L sets forth a complete list of the agreements currently in effect
between Seller and the NJDEP or any other Governmental Authority relating to
the environmental remediation of the Property.
5.1.2.2. Seller will not modify or cancel any of the
covenants of record as of the date hereof or hereafter modify any building or
use related permit, approvals or consent currently in effect and relating to
the Property.
5.1.2.3. Seller has not received any notice from any
Governmental Authority that (i) the Property is not properly zoned for its
current use or (ii) the Property is being operated as a non-conforming use.
Various aspects of Seller's use may not comply with existing zoning rules and
regulations issued by the applicable Governmental Authority with respect to
the Property, such as outside storage.
5.1.2.4. Seller has not received any notice from any
Governmental Authority that the Property is violating any law governing the
number of parking spaces required for the Property.
5.1.2.5. There are no operating or other agreements
(written or oral) currently affecting the Property except as set forth on
Exhibit C.
5.1.2.6. To the best of Seller's knowledge the Property
has not suffered any material damage by fire or other casualty that has not
heretofore been
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repaired. Seller has not in the last twenty-four (24) months been rejected for
insurance coverage or received a denial from an insurance underwriter because
of structural deficiencies on the Property, and since the issuance of Seller's
most recent insurance policies, Seller has not received written notice of any
such deficiency from its insurer. Seller presently has and will continue in
effect until Closing liability and casualty (including fire) insurance
policies in the amounts and types set forth on Exhibit I with respect to the
Property.
5.1.2.7. Seller has not received any notice from any
Governmental Authority that there are tax abatements or exemptions affecting
the Property. Seller has instituted proceedings for calendar year 1996 to
cause a reduction in the Property's real estate tax assessment, and such
proceedings are presently pending. Between now and the Closing, Seller will
advise Purchaser of any proposed real estate tax assessments and the amounts
of such assessments, and Seller and Purchaser will cooperate jointly in
commencing and prosecuting such proceedings, if requested by Purchaser, on or
before Closing.
5.1.2.8. Seller has not received notice from any
Governmental Authority that (a) there are special or other assessments for
public improvements or otherwise now affecting the Property, or (b) that there
are any pending or threatened special assessments affecting the Property.
5.1.2.9. Seller has not received notice from any
Governmental Authority with respect to any actual or threatened taking (which
has
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not already been completed) of any portion of the Property for any purpose by
the exercise of the right of condemnation or eminent domain.
5.1.2.10. The Seller's employees at the Property were
unionized.
5.1.2.11. Except as set forth in Exhibit C and except
for the Lease, there are no contracts, including, without limitation, agreements
relating to the management, service, maintenance, purchase of materials,
supplies, equipment, machinery parts, products, employee benefits (including
collective bargaining, pensions, profit sharing or unions) relating to the
Property which would be binding on the Purchaser subsequent to the Closing.
Exhibit C is a complete list of all Contracts, each of which is, to the best
of Seller's knowledge, in full force and effect, and none of which has been
amended or modified except as disclosed in Exhibit C. To the best of Seller's
knowledge, no other party is in material default under any of the items set
forth on Exhibit C.
5.1.2.12. Seller has not received any notice of any
default or breach under any of the covenants, conditions, restrictions or
agreements affecting the Property.
5.1.2.13. The Property is the subject of an ongoing
environmental remediation pursuant to an Administrative Consent Order ("ACO")
between Seller and NJDEP, previously furnished to Purchaser, and included in
Exhibit C. Seller has disclosed and made available for inspection by Purchaser
and its
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consultants the Seller's and Seller's consultants' reports submitted to the
NJDEP, and all of Seller's files reflecting Seller's and Seller's consultants'
environmental assessments, evaluations, contamination delineation and
remediation efforts to date under and with respect to the ACO, including but
not limited to Seller's remedial investigations. Seller is presently
remediating certain, and already has remediated other, of the areas of concern
("AREAS OF CONCERN") identified in Seller's remedial action reports and work
plans, and in the map attached hereto as Exhibit L, and identified as follows:
1) Areas labeled "A" through "J";
2) the swale;
3) the unnamed tributary; and
4) the area of the removed underground tanks.
Except as provided in Section 5.5.2. of this Agreement, and as more
specifically set forth in the Environmental Indemnity Agreement attached
hereto as Exhibit N, Seller will retain exclusive responsibility for
completing the remediation of the foregoing Areas of Concern and any other
obligation Seller has or may have under the ACO, all of which shall be at
Seller's sole cost and expense. Seller's obligations as set forth in this
Section will survive Closing.
5.1.2.14. Seller's remediation of the Areas of Concern
will include use and deed restrictions. A copy of the text to be used as part
of the deed which will be executed and recorded in effecting such use or deed
restrictions is attached hereto as Exhibit L (the "Use Restriction Language").
The Use Restriction Language is the form of the use restriction language
presently mandated by the
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NJDEP for establishing use and deed restrictions. If at any time in the future
the NJDEP changes the substance or form of such use restriction langauge,
Seller will execute the revised deed with such revised language instead of the
deed which contains the Use Restriction Language as set forth in Exhibit L. As
set forth more particularly in Section 5.5.2. of this Agreement, Purchaser
acknowledges receipt of this advice and is willing to accept such use and deed
restrictions subject to the limitations set forth in Section 5.1.2.16. below.
Seller will keep Purchaser informed of all communications with NJDEP which
bear upon Seller's further environmental activities under the ACO and shall
provide Purchaser with copies of any proposed use a deed restrictions at least
30 days prior to the recordation of same. In addition to possible use and deed
restrictions, Purchaser consents to whatever further remediation may be
necessary to enable Seller to comply with and discharge Seller's obligations
under the ACO, subject to the limitations set forth in Section 5.1.2.16.
below.
5.1.2.15. Seller has furnished NJDEP with the notice
annexed to this Agreement as Exhibit R. Seller is continuing its efforts to
ascertain whether any potential condition referenced in the notice may in fact
exist and whether any such condition will require remediation or other
environmental activity. Any such condition which exists may be included as an
Area of Concern under the ACO and if so will become subject to remediation
thereunder, including but not limited to remediation by deed restriction in
whole or in part. Purchaser agrees that Seller, at its sole cost and expense,
after providing notice to Purchaser, may undertake such
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potential remediation or other environmental activity relating to subject
to the restrictions set forth in Section 5.1.2.16. below.
5.1.2.16. Notwithstanding anything to the contrary set
forth in Sections 5.1.2.13, 5.1.2.14 and 5.1.2.15 above, Seller shall not
undertake and Purchaser shall not be required to undertake or consent to any
remediation activity or grant any use or deed restriction ordered or otherwise
mandated by NJDEP ("NJDEP mandate") if Purchaser objects to and requests that
Seller contest any such mandate.
Upon receipt of such a request from Purchaser, Seller and
Purchaser will contest such NJDEP mandate by all legal means available,
including but not limited to administrative relief and subsequent judicial
review, through appeal. The filing and similar costs of any and all such
proceedings will be borne equally by Seller and Purchaser. All such
proceedings will be conducted by counsel mutually acceptable to Seller and
Purchaser, and Seller and Purchaser will each pay one-half of the legal fees
of such counsel. Upon the entry of a final, non-appealable order or judgment
terminating any such proceedings brought to contest an NJDEP mandate, Seller
will comply with each such NJDEP mandate. The Purchaser will cooperate with
Seller as provided in Sections 5.1.2.13, 5.1.2.14, 5.1.2.15 and 5.5.2 in
implementing each such NJDEP mandate, and Purchaser will do so without any
further qualification to Sections 5.1.2.13, 5.1.2.14, 5.1.2.15 and 5.5.2 by
this Section 5.1.2.16. For each contested mandate as to which proceedings have
been terminated by final, non-appealable order or judgment, this Section
5.1.2.16 will be deemed to be of no further
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force or effect whatsoever. The provisions of this Section 5.1.2.16 shall
survive the closing.
5.1.3. As to Leases, Contracts, Permits and Policies.
5.1.3.1. (1) There are no occupancy rights (written or
oral), leases or tenancies presently affecting the Property other than the
Lease; (2) Seller will allow Purchaser to examine during the Contingency
Period, and will deliver to Purchaser at Closing a true and complete copy of
the Lease, as amended; the Lease represents the complete agreement between
Seller and the Tenant as to all rights, liabilities and obligations of Seller
and the Tenant in and to the premises demised thereunder; (3) the Lease is in
full force and effect; (4) to the best of Seller's knowledge, the Tenant has
not assigned its rights under the Lease or sublet any portion of the leased
premises; (5) the Tenant has not been granted any renewal or extension options
except as disclosed in the Lease, nor does Tenant have an option to purchase
the Property or any part thereof; (6) Seller has performed its obligations
under the Lease in all material respects; Seller has not received from Tenant
any notice claiming any material default by Seller under the Lease which has
not been complied with, or any right of set-off or counterclaim against
Seller, and, to the best of Seller's knowledge, no condition has occurred
which with the lapse of time or giving of notice would constitute a material
default by Seller as landlord under the Lease; (7) Seller has not given Tenant
any written notice claiming any material defaults or nonpayment of rent by
Tenant under the Lease which has not been complied with, and to Seller's
knowledge,
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no event has occurred which with the lapse of time or giving of notice would
constitute a material default by the Tenant under its Lease; (8) all work
required to be performed by the landlord pursuant to the Lease has been
completed and fully paid for; (9) the information contained in the RENT ROLL
annexed hereto as Exhibit D is true and correct in all material respects and
contains a schedule of the Lease and each modification and amendment to the
Lease, if any; (10) Seller has not accepted any prepaid rent or prepayment of
any other sum due under the Lease more than thirty (30) days in advance; (11)
Exhibit D contains the security deposit paid by Tenant under the Lease; (12)
the Tenant has not contested any Charges (as defined in Section 6.4.2.2.), or
any other amounts payable under the Lease which have not been resolved, and
any such resolution will not adversely affect the Purchaser after the Closing
Date; and (13) (i) Seller has no obligations to perform any decorating,
repairs or alterations in or to the Tenant's space, and (ii) Seller as
landlord under the Lease has no obligation to reimburse Tenant under its Lease
for any such decorating, repairs or alterations, and (iii) no equipment other
than building service equipment is required to be furnished for Tenant.
5.1.3.2. Except for any brokerage commissions, fees or other
compensation due with respect to any extension of the term of the Lease or
expansion of space under the Lease which may be granted or agreed to, or which
may be specifically provided for under the Lease on or after the Closing Date
("EXTENSION COMMISSIONS"), no brokerage commission, fee or other compensation
is payable (or
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will, with the passage of time or occurrence of any event or
both, be payable), with respect to the Lease pursuant to any existing
agreement which would be binding on the landlord under such Lease after the
Closing Date. There will not remain in effect after the Closing any exclusive
or continuing brokerage agreements binding on Purchaser as to any of the space
covered by the Lease or as to any space in the Property or, except for the
Commission Agreement identified in Exhibit C, in connection with Extension
Commissions. As of the Closing Date, no actual or pending claims or rights
exist or may accrue against Seller which will be binding on Purchaser for any
brokerage commission, fee or other compensation in respect of all or any
portion of the Property that is subject to a Lease except in connection with
the Extension Commissions.
5.1.3.3. No management commission, fee or other
compensation will be payable by Purchaser from and after the Closing Date with
respect to the management of the Property prior to the Closing Date.
5.1.3.4. The documents listed on Exhibit K hereto are
all of the Licenses (including all amendments, modifications, supplements and
extensions thereof) and neither Seller nor its managing agent has received any
notice from any Governmental Authority that Seller is in default under or has
breached any of the Licenses.
5.1.3.5. Seller has no patents, registered trademarks
or registered trade names which are used by Seller with respect to the Property.
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5.1.3.6. The documents delivered to Purchaser pursuant
to this Agreement are true and correct copies or originals and, to the extent
the information contained in such documents contains factual information which
originated with Seller, such information is true and correct, and to the
extent the information contained in such documents contains factual
information which did not originate with Seller, to the best of Seller's
knowledge, such information is true and correct.
5.1.3.7. All statements made herein are true and
correct, and the information provided and to be provided by Seller to Purchaser
relating to this Agreement does not and will not contain any statement which
is false or misleading with respect to any material fact, or omits to state
any material fact necessary in order to make any statement contained therein
not false or misleading in any material respect.
Section 5.2. Survival Of Seller's Representations And Warranties.
5.2.1. At Closing, Seller shall deliver to Purchaser a
certificate of the Seller which will confirm that the warranties and
representations are in all material respects true and correct as of the date
of the Closing (to the best of Seller's knowledge, where so specified above),
subject to changes for matters beyond Seller's control and otherwise as
expressly permitted or contemplated by this Agreement. Seller's
representations and warranties shall survive the Closing Date for a period of
three (3) years.
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5.2.2. If, prior to the Closing Date, any event or
circumstance occurs or first becomes actually known (without imputation and
without duty of inquiry) to Purchaser, or written notice thereof is first
actually received by Purchaser, and if the same would make false in a material
manner any representation or warranty of Seller hereunder (a "CHANGE"), then,
notwithstanding anything to the contrary in this Agreement, but subject to
Seller's cure right provided for in the next sentence, Purchaser may elect to
terminate this Agreement after providing Seller ten (10) days' notice within
which to cure such Change. Seller shall notify Purchaser whether Seller will
undertake to cure the event or circumstance which gave rise to such Change.
Seller will have a reasonable period of time, consistent with what would
customarily need to be done to cure such event or circumstance, in order to
effect the cure, which will be at Seller's sole cost and expense. If Seller
notifies Purchaser that it will not undertake to cure such event or
circumstance, then Purchaser may terminate this Agreement as provided for
above in this Section 5.2.2., and upon such termination, Seller will instruct
the Escrow Agent to return the Xxxxxxx Money Deposit to Purchaser, and
thereupon neither Purchaser nor Seller shall have any further rights against
the other, except for such provisions of this Agreement specifically intended
to survive such termination.
5.2.3. If such Change is attributable to the intentional acts
or bad faith of Seller, Purchaser may elect to terminate this Agreement
without permitting Seller to cure as provided in Section 5.2.2. above, and in
the event of such termination
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Purchaser shall have such remedies with respect to such Change as provided for
in Section 9.2. hereof.
Section 5.3. Purchaser's Representations And Warranties. In order
to induce Seller to enter into this Agreement, Purchaser hereby represents and
warrants to Seller as follows:
5.3.1. Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Purchaser has full right, power and authority to enter into and perform its
obligations under this Agreement and the other instruments and documents
contemplated herein to be executed and performed by it. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby (1) have been duly authorized by all necessary action on
the part of the Purchaser, (2) do not require any governmental or other
consent other than the consent of the NJDEP as set forth in Section 5.4.5.
hereof, (3) will not result in the breach of any agreement, indenture or other
instrument to which Purchaser is a party or is otherwise bound, and (4)
constitute the valid and binding obligation of Purchaser.
5.3.2. At Closing, Purchaser shall deliver to Seller a
certificate of the Purchaser which will confirm that the warranties and
representations set forth in Section 5.3.1 above are in all material respects
true and correct as of the date of the Closing subject to changes expressly
permitted or contemplated by this Agreement.
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Purchaser's representations and warranties contained in this Section 5.3.
shall survive the Closing for a period of three (3) years.
5.3.3. Purchaser acknowledges that it has received and/or has
inspected or been given access to all the information, documents and advice
contained or referred to in the Seller's representations and warranties.
Section 5.4. Seller's Covenants.
5.4.1. Except as set forth in Sections 5.4.6. and 5.4.7.
hereof, and except as set forth in the Lease annexed to this Agreement as
Exhibit Q, on the Closing Date, Seller shall tender possession of the Property
to Purchaser in the same condition the Property was in on the date of this
Agreement, subject to reasonable use, wear and tear and, subject to Article 8,
Seller shall make all needed repairs as and when required to keep the Property
in its present condition. Seller agrees that between the date hereof and the
Closing Date it shall continue to operate the Property in substantially the
same manner it has operated the Property prior to the date hereof and shall
not take any action to adversely affect the Property or to limit Purchaser's
proposed use of the Property.
5.4.2. Seller covenants and agrees that from and after the
date of this Agreement until the Closing Date or the earlier termination of
this Agreement by Purchaser, or as a result of a default by Purchaser
hereunder:
1. Seller will not, without the prior written
consent of Purchaser, enter into any new employment, management, service,
maintenance or
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union agreements relating to the Property or renew or extend any Contracts,
unless such new agreements and such Contracts, as renewed or extended, will be
cancelable by Purchaser on not more than thirty (30) days prior notice without
any costs for such cancellation.
2. The insurance policies described on Exhibit I (or
substantially similar substitute policies and with companies of similar or
better financial strength) shall be maintained in full force and effect.
3. Seller shall not sell, encumber or grant any
interest in the Property or any part thereof, except to effect the "deed
restrictions" referred to in Sections 5.1.2.13., 5.1.2.14., 5.1.2.15.
and 5.5.2.
4. Seller shall not, without the prior written
consent of Purchaser, enter into any new Lease, permit occupancy of space on
the Property which is presently vacant or which may hereafter become vacant
or extend the term of the Lease (collectively, a "NEW LEASE").
5. Seller shall not terminate or accept a surrender
of the Lease if Tenant is not in default or modify, cancel, or amend the Lease,
or release Tenant from liability under the Lease without the prior written
consent of Purchaser.
6. Seller shall not initiate any action to alter or
amend the zoning classification of the Property, or otherwise intentionally
perform any act or deed which shall diminish, encumber or affect Purchaser's
rights in and to the Property or prevent Seller from performing fully its
obligations hereunder.
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7. Seller shall not solicit or encourage directly or
indirectly (including solicitation or encouragement by any broker retained by
Seller), inquiries or proposals with respect to, furnish any information
relating to, or participate in any negotiation concerning any proposal for the
sale or lease of the Property.
8. Seller shall not fill the railroad siding located
on the Property with contaminated soil or any other type of fill.
5.4.3. From and after the date of this Agreement, Seller will
defend or will cause its insurance carrier to defend any claims that Seller
has breached any contractual obligation of Seller (including without
limitation the Lease) and any tort claims against Seller, which arose before
the Closing Date, with the result that Purchaser will not be liable with
respect to such claims for any actual loss, costs or damages in connection
therewith, including litigation costs and expenses and excluding any costs or
expenses for Purchaser's employees' time or overhead but including any
expenses paid by Purchaser to third parties in assisting or cooperating with
Seller in defending any such claims. Seller agrees to indemnify and hold
harmless Purchaser from and against, and to reimburse Purchaser with respect
to, any and all claims, demands, causes of action, loss, damage, liabilities,
costs, and expenses (including reasonable attorneys' fees and courts costs)
asserted against or incurred by Purchaser by reason of or arising out of any
such alleged breach of contract or tort claim.
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5.4.4. With respect to any written notices to Seller received
by Seller prior to Closing of violations of law or municipal ordinances,
orders or requirements issued by any Governmental Authority against or
affecting the Property (the "VIOLATIONS"), Seller shall have the option either
to (a) elect not to cure such Violation(s), or (b) to cure any such
Violation(s) prior to Closing, to the extent it is practicable to so effect
such a cure. If Seller elects to cure the Violation(s), then if any
Violation(s) remains uncured on the Closing Date, Seller shall be given a
reasonable time, consistent with the nature of the work to be done, the
availability of tradespeople to accomplish the work, and the weather and other
physical conditions required for the work to be accomplished efficaciously and
at minimal cost, to effect such cure, or, at Seller's election, Purchaser
shall receive a credit against the Purchase Price equal to the mutually agreed
upon estimated cost of curing the same. Notwithstanding the foregoing, in the
event, Seller elects not to cure any violations, then Purchaser, at its
election, may as its sole remedy in respect thereof either (A) terminate this
Agreement, in which event the parties shall direct the Escrowee to return the
Xxxxxxx Money Deposit to Purchaser and neither party hereto will have any
further obligations except for those which specifically survive the
termination hereof, or (B) accept the Property subject to the Violations
without reduction of the Purchase Price or any credit or allowance on account
thereof or any claims against Seller.
5.4.5. Seller shall, at its sole cost and expense, use its
best efforts to obtain from the New Jersey Department of Environmental
Protection ("NJDEP")
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the Transfer Authorization provided for in N.J.S.A. 13:1K-11.5(b) permitting
the transfer of the Property to Purchaser. If such Authorization has not been
issued by the NJDEP by April 15, 1997, for any reason, this Agreement may be
terminated by Purchaser. Upon Purchaser providing written notice of such
election to Seller and Escrowee, this Agreement shall terminate and Escrowee
shall return the Xxxxxxx Money Deposit to Purchaser, and neither party shall
have any further liability to the other hereunder.
5.4.6. Seller shall, at its sole cost and expense, on or
before the Closing Date, store any of its Personal Property then remaining on
the Property in the 30,000 square feet to be leased to Seller by Purchaser as
provided in Section 6.6.(B)(5) and Exhibit O of this Agreement.
5.4.7. Seller shall, at its sole cost and expense, on or
before the Closing Date: (i) except for the CV platforms presently existing at
the Property and located between columns 8 and 11 as shown on Exhibit S
annexed hereto, remove all foundations and platforms which supported machinery
and equipment previously located on the Property as well as remove any
associated electrical or mechanical equipment specifically associated with
that machinery or equipment, and restore the floor to level condition in the
area of all such foundations and platforms so removed; (ii) fill all elevator
"pits", and cover such pits with cement which will be level with the existing
floors and (iii) arrange for the breaking up of or scrubbing of all concrete
floors which are oil soaked.
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5.4.8. Seller shall promptly notify Purchaser of any Change,
as defined in Section 5.2.2.
5.4.9. The provisions of this Section 5.4. shall survive the
Closing Date.
Section 5.5. Purchaser's Covenants.
5.5.1. Except for the representations and warranties and
covenants expressly made in this Agreement, Seller has made no
representations, warranties or covenants with regard to the Property and
Purchaser is purchasing the Property in its "as is" and "where is" condition.
5.5.2. Purchaser grants to Seller, its consultants and
contractors and to NJDEP the right to enter upon the Property as required to
perform or monitor the work necessary under the ACO or as otherwise required
by NJDEP, including but not limited to all activities and acts referred to in
Sections 5.1.2.13., 5.1.2.14. and 5.1.2.15. Subject to the limitations set
forth in Sections 5.1.2.16, Purchaser shall cooperate with Seller to enable
Seller to complete and discharge Seller's obligations under the ACO to the
satisfaction of the NJDEP, including granting Purchaser's consent to, and
including Purchaser's entry into and/or recording of use or deed restrictions
with respect to the Property which are set forth in Exhibit P. Seller shall
provide Purchaser with reasonable advance notice of the exercise of the right
of access to the Property. At Closing Seller's deed shall include and reserve
to Seller the rights
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set forth in this Section 5.5.2., in substantially the form set forth in
Exhibit P annexed to this Agreement.
ARTICLE 6
CLOSING
Section
6.1. Conditions To Purchaser's Obligations To Close. The obligation of
Purchaser to close under this Agreement and to pay the Purchase Price therefor
shall be subject to the fulfillment on and as of the Closing Date of all of
the following conditions (in addition to any other conditions to Purchaser's
obligation under this Agreement which are set forth elsewhere herein):
6.1.1. Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of this
Agreement, including, without limitation, those provided for in Section 6.6.
6.1.2. Except as provided in Section 5.2., all of the
representations and warranties of Seller contained in this Agreement shall be
true and correct in all material respects on and as of the Closing Date as if
the same were made on and effective as of such date.
6.1.3. Seller shall have performed and observed, in all
material respects, all covenants, agreements and conditions of this Agreement
to be performed and observed by Seller as of the Closing Date. Purchaser shall
have the right, at its
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election, at or prior to the Closing by notice to Seller, to waive any
condition set forth in this Agreement to its obligation hereunder and by
effecting the Closing, Purchaser shall be deemed to have waived any such
condition not then fulfilled. Nothing contained in the preceding sentence,
however, shall limit, constitute a waiver or otherwise affect the liability of
Seller with respect to any covenants, indemnities, warranties and
representations which survive the Closing pursuant to the terms hereof.
6.1.4. Purchaser shall have received on or before March 1,
1997 (the "COMMITMENT DATE"), a [written commitment] from the New Jersey
Economic Development Authority ("EDA") pursuant to which the EDA agrees to
make [a loan] to Purchaser, in an amount not less than $6,480,000, or such
lesser sum as Purchaser shall be willing to accept, at the prevailing fixed
rate of interest for a term of at least 30 years and on other customary
commitment terms, secured by a first mortgage on the Property. Purchaser shall
(a) make prompt application to the EDA for such mortgage loan, (b) furnish
accurate and complete information on Purchaser, as required, (c) pay all
charges required in connection with such application and loan, (d) pursue such
application with diligence, (e) cooperate in good faith with the EDA to the
end of securing such first mortgage loan, (f) furnish Seller with proof that
Purchaser has filed its application for the EDA [loan], substantially
contemporaneously with such filings, and (g) promptly give notice to Seller
when and if such commitment is issued by the EDA. Purchaser shall comply with
all requirements of such commitment and
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shall furnish Seller with a copy thereof promptly after receipt thereof. If
such commitment is not issued on or before the Commitment Date, then, unless
Purchaser has accepted a commitment that does not comply with the requirements
set forth above, Purchaser may cancel this Agreement by giving notice to
Seller within five (5) business days after the Commitment Date, in which case
this Agreement shall be deemed canceled and thereafter neither party shall
have any further rights against, or obligations or liabilities to, the other
by reason of this Agreement (except as specifically otherwise provided
herein), except that the Xxxxxxx Money Deposit shall be promptly refunded to
Purchaser.
Section 6.2. Conditions To Seller's Obligations To Close. The
obligation of Seller to close under this Agreement shall be subject to the
fulfillment on or before the Closing Date of all of the following conditions
(in addition to any other conditions to Seller's obligation under this
Agreement which are set forth in this Agreement):
6.2.1. Purchaser and/or Escrowee shall have delivered to
Seller all of the items required to be delivered to Seller pursuant to the
terms of this Agreement, including, without limitation, those provided for in
Section 6.6.
6.2.2. All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date as if the same were made on and effective as of
such date.
6.2.3. Purchaser shall have performed and observed, in all
material respects, all covenants, agreements and conditions of this Agreement
to be performed
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or observed by Purchaser as of the Closing Date. Seller shall have the right,
at its election at or prior to the Closing by notice to Purchaser, to waive
any condition set forth in this Agreement to its obligation hereunder and by
effecting the Closing, Seller shall be deemed to have waived any such
condition not then fulfilled. Nothing contained in the preceding sentence,
however, shall limit, constitute a waiver or otherwise affect the liability of
Purchaser with respect to any covenants, warranties, representations or
indemnities which survive the Closing pursuant to the terms hereof.
Section 6.3. Closing.
6.3.1. The closing of the transaction provided for in this
Agreement (the "CLOSING") will be held at 10:00 a.m. at the offices of Xxxxxxx
X. Xxxxxxxx, Esq. in Xxxxxx, Xxx Xxxxxx, 00000 (or at such other place upon
which Seller and Purchaser shall agree) on the Closing Date, provided,
however, that Purchaser and Seller shall each be entitled to adjourn the
Closing upon notice to the other party hereto given as soon as reasonably
practical prior to or on the scheduled Closing Date (as the same may have been
adjourned pursuant to this sentence or as otherwise provided in this
Agreement) one or more times for reasonable periods not in excess of ten (10)
days of adjournment by either of the parties, if the party giving such notice
or its attorneys are unable to perform their obligations on the Closing Date
for reasons beyond their reasonable control in the nature of force majeure
which shall include, but shall not be limited to, events in the nature of
physical illness, death of a family member, disruption of the means of
transportation or the financial institutions relied upon by
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any such party or failure of reputable overnight delivery services to perform
within the normally anticipated periods of performance. Except as set forth in
Section 4.3.1., there shall be no right to adjournment of the Closing to any
date beyond April 20, 1997.
6.3.2. In the event this Agreement is validly terminated
pursuant to a specific provision of this Agreement providing therefor,
Escrowee shall be directed to return the Xxxxxxx Money Deposit as specifically
provided for herein.
Section 6.4. Prorations. The following items shall be apportioned
(the "PRORATIONS") between the parties as of 11:59 p.m. of the day immediately
preceding the Closing Date and shall be documented in a statement (the
"CLOSING STATEMENT") executed and delivered by Purchaser and Seller:
6.4.1. Taxes. General real estate taxes and special
assessments required to be paid in calendar year 1997 shall be prorated on a
calendar year basis as of the Closing Date on the basis of the actual amount
of the most recent tax xxxx. If any special assessment is payable in
installments, Purchaser and Seller will only adjust for such special
assessment on the basis of the minimum payment due on such special assessment
for the tax year in which the Closing occurs.
6.4.2. Rent. Rent shall be prorated for the month in which the
Closing Date occurs, with Seller entitled to receive rent for the period prior
to the Closing Date, and with Purchaser entitled to receive rent for the
period from and after the Closing Date. No rent proration shall be made for
rents other than rents which have been received by either Seller or Purchaser;
no credit proration shall be made at
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any time for rents which have accrued but which have not been paid in cash.
Seller's remedies for rent unpaid at the time of Closing are stated in Section
6.4.3. below. Rents which have been received by Seller for the month in which
the Closing occurs will be considered prepaid rent for the portion of that
month occurring from and after the Closing, and Purchaser shall receive credit
for prepaid rents hereunder.
6.4.2.1. Seller shall be entitled to fixed, minimum and
base rents for the period prior to the Closing Date. Seller shall be entitled
to retain payments it has received from Tenant, or for which it has billed
Tenant, for heat, electricity and real estate taxes, for the month in which
Closing occurs. Purchaser and Seller will prorate these items as provided in
Sections 6.4.1. and 6.4.6.
6.4.2.2. Overage rents ("OVERAGE RENTS") to be prorated
hereunder shall include consumer price index, escalation payments and other
similar rental payments in excess of fixed, minimum and base rents under the
Leases, whether finally determined before or after the expiration of the
fiscal years under the Leases. Charges ("CHARGES") to be prorated hereunder
shall include maintenance charges, taxes, operating expenses and similar
expenses to the extent Tenant under Lease pays monthly estimates with an
adjustment at the end of each fiscal year applicable to Charges. Overage Rents
and Charges shall be separately prorated under each Lease on the basis of the
fiscal year set forth in each Lease for the payment of Overage Rents and
Charges. All interim Overage Rent and Charges payments made before the Closing
Date shall be retained by Seller until year-end adjustment and determination
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of Seller's allocable share thereof. At the Closing, Seller shall provide a
schedule listing all Overage Rents and Charges it has collected for the
current fiscal year. All amounts received by Purchaser on or after the Closing
Date as interim payments of Overage Rents and Charges shall be retained by
Purchaser until year-end adjustment and determination of Seller's allocable
share thereof. Purchaser shall endeavor to complete the year-end adjustment
within one hundred-twenty (120) days of the end of the relevant fiscal year
after the Closing Date and will compute such adjustment in a reasonably
prudent manner provided that prior to forwarding the adjustment to Tenant,
Purchaser will forward a copy to Seller. Purchaser may not waive any
Delinquent Amounts nor modify the Lease so as to reduce amounts or charges
owed under the Lease for any period in which Seller is entitled to receive a
share of charges or amounts, without first obtaining Seller's written consent.
Upon final determination of Overage Rents and Charges owed by the Tenant under
the Lease for the fiscal year under that Lease in which the Closing Date
occurs, Seller and Purchaser shall adjust between themselves amounts owed for
such fiscal year (as applicable to the specific Overage Rent or Charge) on
account of Overage Rents and Charges, and Seller's allocable share of such
Overage Rents and Charges shall be equal to an amount determined by
multiplying separately each of the Overage Rents and Charges owed by the
fraction whose numerator is the number of days in such fiscal year before the
Closing Date, and whose denominator is the total number of days in such fiscal
year for the relevant Overage Rent or Charge. At the end of the fiscal year
for the Lease for
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which Overage Rents or Charges are due, Purchaser shall promptly xxxx the
amounts due, if necessary, and shall diligently pursue such payment. Within
fifteen (15) days after collection, Purchaser shall remit to Seller its
allocable share, less interim payments previously retained by Seller, if any,
less a pro rata share of costs of collection paid to third parties, if any. If
Seller has retained amounts in excess of its allocable share, Seller, within
fifteen (15) days after notice from Purchaser of the excess owed Purchaser,
shall remit such excess to Purchaser.
6.4.3. Collections and Applications of Payments after Closing.
6.4.3.1. After the Closing Date, Purchaser shall xxxx
Tenant for all amounts due under the Lease, including amounts accruing prior
to the Closing Date and at Seller's reasonable request, Purchaser shall
provide such information to Seller. Any amounts due and owing Seller before
the Closing Date by Tenant under the Lease which are unpaid on the Closing
Date are collectively called "DELINQUENT AMOUNTS." Rental and other payments
received by Purchaser or Seller from Tenant shall be applied first toward the
actual and reasonable out-of-pocket costs of collection paid to third parties;
then, if on the Closing Date Tenant is not in arrears in excess of one month's
rent, then any sums collected by Purchaser shall be applied against the
Delinquent Amount up to the amount in arrears on the Closing Date, but not to
exceed one month's rent and be promptly remitted to Seller; then toward the
payment of rent and other charges owed to Purchaser, and any excess monies
received shall be applied to the payment of the balance of the Delinquent
Amounts of the Tenant who on the
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Closing Date was in arrears in excess of one months rent. Purchaser may not
waive any Delinquent Amounts nor modify the Lease so as to reduce amounts or
charges owed for any period in which Seller is entitled to receive a share of
charges or amounts, without first obtaining Seller's written consent.
6.4.3.2. During the first year after the Closing Date,
Seller shall have and reserve the right to pursue any remedy against Tenant
for Delinquent Amounts provided that (i) Seller shall notify Purchaser of its
intent to institute any legal proceeding relating thereto not less than sixty
(60) days prior to the institution thereof, (ii) Seller shall not institute
any legal proceedings for collection of Delinquent Amounts prior to the
expiration of thirty (30) days following the Closing Date, (iii) Seller shall
in no event institute any proceeding to evict or dispossess Tenant from the
Real Property, and (iv) Seller shall not take any action which would limit
Purchaser's rights to pursue any remedy Purchaser may have for a default under
the Lease. Purchaser may, by written notice to Seller within twenty (20) days
of receipt of Seller's notice, restrict Seller from collecting such Delinquent
Amounts, but only if Purchaser first pays Seller such Delinquent Amounts in
exchange for Seller's assignment to Purchaser of all of Seller's rights and
causes of action with respect thereto. With respect to Delinquent Amounts owed
by tenants who are no longer tenants of the Property as of the Closing Date,
Seller shall retain all rights relating thereto. Seller shall indemnify and
hold harmless Purchaser from any action taken by
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Seller in violation of the provisions of this Section. The provisions of this
Section 6.4.3. shall survive the Closing.
6.4.4. Prepaid Rents and Security Deposit. All prepaid rents
and security and other deposits of the Tenant under the Lease not theretofore
applied to cure defaults by the Tenant, with accrued interest thereon, to the
extent any interest is required to be paid to the Tenant shall be delivered by
Seller to Purchaser on the Closing Date by unendorsed certified or official
bank check to Purchaser's order, or at Seller's election Seller may give
Purchaser a credit against the Purchase Price in the amount of such prepaid
rent, security deposits and accrued interest. The provisions of this Section
6.4.4. shall survive the Closing.
6.4.5. Contracts. Purchaser shall be entitled to a credit
against the Purchase Price for sums that are due (or accrued) and unpaid as of
the Closing Date under any Contracts which have been assigned to Purchaser,
and Seller shall be entitled to a credit to the extent that sums have been
paid under any Contracts which have been assigned to Purchaser for services to
be performed or goods to be delivered after the Closing Date.
6.4.6. Utility and Fuel Charges. Seller shall cause all water,
electricity, gas and other utility meters to be read on the day preceding the
Closing Date, or as close thereto as may be possible, and shall pay all bills
rendered as a result of such readings. The cost of such utilities for the
period, if any, between the date of the meter reading and the Closing Date
shall be adjusted on the basis of the most
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recently issued xxxx therefor. If Seller does not obtain such a meter reading
for any such utility, the adjustment therefore shall be on the basis of the
most recently issued xxxx therefor, subject to post-Closing adjustment in
accordance herewith. At the Closing, Purchaser shall reimburse Seller in an
amount equal to all deposits, if any, made by Seller with any utility which
the utility shall require remain on deposit for the benefit of Purchaser
subsequent to the Closing. In the event that there are any fuel oil supplies,
the fuel oil supplies will be prorated on the quantity on hand no earlier than
three (3) business days prior to the Closing Date based on Seller's cost
therefor (including sales tax, if any) based on measurements thereof by
Seller's regular suppliers.
6.4.7. Other Items of Expense or Receipt. All other
customarily prorated items of expense or receipt for properties similar to the
Property in North Brunswick, New Jersey, shall be prorated between the parties
hereto as of the Closing Date. Except with respect to items prorated at
Closing (a) Seller shall be responsible for payment of any and all bills or
charges incurred by Seller or its agent prior to the Closing Date for work,
services, supplies or materials in respect of the Property, and (b) Purchaser
shall be responsible for payment of any and all bills or charges incurred on
and after the Closing Date for work, services, supplies or materials in
respect of the Property. Unless otherwise provided for in this Agreement,
Purchaser shall not purchase, nor shall there be any proration credit given
for, any of Seller's receivables arising from the operation of the Property.
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6.4.8. Adjustments.
(a) Prorations shall be accomplished by a credit against
the Purchase Price due Seller or a credit in favor of Seller on the Closing
Date.
(b) Except for amounts due under Section 6.4.3., to the
extent that any of the prorations made upon the Closing Date pursuant to this
Article 6 are based upon estimates of payments to be made and/or expenses to
be incurred by Purchaser subsequent to the Closing Date or have been made
erroneously, Seller and Purchaser agree to adjust such prorations no later
than two hundred forty (240) days after the Closing Date upon receipt by
Seller or Purchaser, as the case may be, of bills or other documentation
setting forth the actual and/or correct amount of such expenses. The
provisions of this Section 6.4.8. shall survive the Closing.
Section 6.5. Closing Costs.
A. In connection with the Closing, Seller shall on the Closing Date pay:
1. The transfer taxes imposed by the State of New Jersey and any
local or county transfer taxes on the Deed and any other transfer or gains
taxes imposed on this transaction; and
2. Any other closing costs and expenses customarily paid by
sellers necessary to effectuate the transactions contemplated by this Agreement
(other than costs specifically allocated to Purchaser below).
B. In connection with the Closing, Purchaser shall pay:
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1. The title insurance premium for the costs of obtaining the
Owner's Policy and the lender's policy and any endorsements thereto;
2. The cost to record the Deed to Purchaser; and
3. Any other closing costs and expenses customarily paid by
purchasers necessary to effectuate the transactions contemplated by this
Agreement (other than costs specifically allocated to Seller above).
Section
6.6. Closing Deliveries.
A. Seller shall deliver at Closing the following documents ("SELLER'S CLOSING
DOCUMENTS"):
1. The Deed together with completed tax returns as required by
state, county or local law, if any;
2. An assignment of the Contracts which may be assigned and
Intangible Property from Seller in the form of Exhibit E;
3. A certificate confirming the continued accuracy of the
warranties and representations made by Seller in this Agreement as required by
Section 5.2.;
4. An estoppel letter addressed to Purchaser dated no earlier
than forty-five (45) days prior to the Closing Date from Tenant. The estoppel
letter will state, with respect to Tenant's Lease, (aa) that the Tenant has
accepted and is
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occupying the leased premises, (bb) the date of the Lease and that the Lease
has not been modified or amended (or, if modified or amended, stating the date
of each modification or amendment), (cc) that the Lease is in full force and
effect and Tenant has not received any written notices of default thereunder,
(dd) that there are no defaults of the landlord under the Lease known to the
Tenant, (ee) that any construction of tenant improvements required to be
completed by the landlord has been satisfactorily completed, (ff) the date to
which rent has been paid under the Lease (gg) the expiration date of the
Lease; and (hh) whether the Tenant has an option to extend the term of the
Lease;
5. A letter to Tenant advising it (i) of the change in
ownership of the Property, (ii) the amount of its security deposit and the
prepaid rent that has been delivered to Purchaser, (iii) directing it to pay
rent to Purchaser or as Purchaser may direct, and (iv) directing it to deliver
to Purchaser or as Purchaser may direct, an insurance certificate in the form
required under the Lease for the benefit of the landlord;
6. Appropriate evidence of Seller's right, power and authority
to sell the Property to Purchaser on the terms and conditions of this
Agreement as Purchaser may reasonably require;
7. An affidavit executed on behalf of Seller providing
Seller's taxpayer identification number and a statement that Seller is not a
foreign person within the meaning of Section 1445(f)(3) of the Internal
Revenue Code, as amended;
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8. A complete set of all keys and magnetic pass cards to the
Improvements, appropriately tagged for identification to the extent in
Seller's possession or control;
9. To the extent in Seller's possession or control, and not
already delivered, all original licenses and permits, authorizations and
approvals which are currently in force pertaining to the Property and all
guarantees and warranties which are currently in force and which Seller has
received in connection with any work or services performed or equipment
installed in and to Improvements erected on the Property;
10. True and complete originals of the Lease and files with
respect to Overage Rents and Charges which will be deemed delivered if
delivered to Purchaser at the site of the Closing or at the Property;
11. An instrument duly executed and acknowledged by Seller, in
which Seller assigns to Purchaser all of Seller's right, title and interest as
landlord in, to and under the Lease as of the Closing Date in the form of
Exhibit F;
12. To the extent in Seller's possession or control, the
originals of the Property Documents and in all other instances copies thereof
which will be deemed delivered if delivered to Purchaser at the site of the
Closing or at the Property;
13. The current operating files for the Property except that
Seller shall not be required to deliver any original accounting documents, or
any canceled checks or bills which are not related to current amounts payable
or due under any of the Contracts which are being assigned pursuant to this
Agreement or are not required to compute Overage Rents and Charges, which will
be deemed delivered if delivered to Purchaser at the site of the Closing or at
the Property;
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14. A duly executed Closing Statement;
15. An Environmental Indemnity Agreement substantially in the
form of Exhibit N;
16. A Transfer Authorization issued by the New Jersey
Department of Environmental Protection approving the transaction contemplated
by this Agreement pursuant to N.J.S.A. 13:1K-11.5(b);
17. An affidavit of title;
18. The corporate resolutions of Seller authorizing the
actions to be taken by Seller pursuant to this Agreement;
19. A certificate of incumbency for the officers of Seller;
20. The Lease Agreement in the form attached hereto as
Exhibit O;
21. A written designation by the appropriate Governmental
Authority that the Property is considered an "environmental opportunity zone"
pursuant to the New Jersey Environmental Opportunity Zone Act.
22. The written approval by the local Governmental Authority
of Purchaser's proposed use of the Property.
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23. Such other, and further customary instruments and
documents as Seller's counsel and Purchaser's counsel may reasonably require
to evidence and conclude the transaction contemplated by this Agreement.
B. Purchaser shall deliver at Closing the following items:
1. A duly executed Closing Statement;
2. Counterpart copies of any of Seller's Closing Documents
which require execution by Purchaser, including Exhibit F;
3. A certificate confirming the continued accuracy of the
warranties and representations made by Purchaser in this Agreement as required
by Section 5.3.2.;
4. The amounts required to be paid to Seller pursuant to the
Closing Statement; and
5. A Lease Agreement between Purchaser, as Landlord, and
Seller, as Tenant, providing for the lease to Seller of approximately 30,000
square feet of storage space, at a rental of $1.00 per year, for a term of two
(2) years, substantially in the form of Exhibit O.
6. Such other and further customary instruments and documents
as Seller's counsel and Purchaser's counsel may reasonably require to evidence
and conclude the transaction contemplated by this Agreement.
Section 6.7. Access to Records.
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6.7.1. Purchaser agrees that (i) all records and files
delivered to Purchaser by Seller pursuant to this Agreement will be preserved
by Purchaser, its successors and assigns, for a period of three (3) years
subsequent to the Closing at a location in North Brunswick, New Jersey, and
(ii) Seller may have access to such records and files, to the extent necessary
for the preparation of its tax returns or other good business reason, from
time to time after the Closing during normal business hours and upon
reasonable prior notice to Purchaser.
Section 6.8. Survival. The provisions of this Article 6 shall
survive the Closing.
ARTICLE 7
BROKERAGE
Each party represents and warrants to the other that it has dealt
with no broker or finder with respect to this Agreement. Each party hereby
indemnifies and agrees to save, defend and hold the other party harmless from
and against any loss, cost, damage, claim, liability or expense, including
reasonable attorneys' fees and litigation costs suffered or incurred as a
result of its breach of the foregoing representation and warranty. The
provisions of this Article 7 will survive the termination of this Agreement or
the Closing.
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ARTICLE 8
CASUALTY AND CONDEMNATION
(a) Seller and Purchaser waive the provisions of all
applicable laws relating to the occurrence of a casualty or condemnation
between the date hereof and the Closing, and Seller and Purchaser agree that
the provisions of this Article 8 shall govern in lieu thereof.
(b) If the Property shall hereafter be destroyed or
damaged in whole or in part by fire or other cause, or be taken in whole or in
part by right of eminent domain or by condemnation, the obligations of the
parties hereunder shall continue unaffected by reason of any such damage,
destruction or taking and the transaction contemplated by this Agreement shall
be fully consummated in accordance with the terms hereof without any reduction
or abatement in the Purchase Price or any credit or allowance against the
same, except as herein expressly provided for. Seller covenants and agrees
that it will give Purchaser prompt notice of any casualty, condemnation or
threatened condemnation.
(c) If prior to the Closing Date (i) a Material Part (as
defined below) of the Improvements is damaged or destroyed by fire or other
cause or a Material Part of the Property is taken by right of eminent domain
or condemnation or proceedings therefor or notice thereof shall have been
given or commenced, or (ii) Purchaser obtains knowledge of a taking (or the
contemplation of a taking) of a
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Material Part of the Property by eminent domain or condemnation, Purchaser
may, by written notice given to Seller at or prior to the Closing (but not
more than thirty (30) days after notice of such damage or destruction, taking
or commencement of such a taking is received by Purchaser), cancel this
Agreement, whereupon this Agreement shall terminate, and neither party shall
have any rights or liabilities against or to the other except for those that
specifically survive the termination hereof and the parties shall direct the
Escrowee to return the Xxxxxxx Money Deposit to Purchaser. For the purposes of
this Article 8, a "MATERIAL PART" shall mean (i) damage or destruction the
cost of repair of which shall exceed One Million Dollars ($1,000,000.00), or
(ii) a taking or proposed taking of five percent (5%) or more of the square
footage of the building situated on the Land or a permanent taking or proposed
taking which would materially impede vehicular or pedestrian access to the
Property, or which would materially interfere with or impede the proposed use
of the Property by Purchaser.
(d) If prior to the Closing Date (i) an immaterial part of
the Improvements is damaged or destroyed in whole or in part by fire or other
cause, (ii) an immaterial part of the Property is taken by right of eminent
domain or by condemnation, or eminent domain or condemnation proceedings are
commenced with respect to an immaterial part of the Property, (iii) a Material
Part of the Improvements is damaged or destroyed in whole or in part by fire
or other cause and Purchaser has not canceled this Agreement in accordance
with the provisions of subsection (c) above or (iv) a Material Part of the
Property is taken by eminent domain or condemnation,
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or eminent domain or condemnation proceedings are commenced with respect to a
Material Part of the Property and Purchaser has not canceled this Agreement in
accordance with subsection (c) above, then Seller as its sole obligation and
at its sole election shall either (i) credit on account of the Purchase Price
an amount equal to the net proceeds of any fire insurance and condemnation
award actually received by Seller (the term "NET PROCEEDS" as used in this
Section to mean such proceeds reduced by (aa) the reasonable cost of
collection and (bb) the cost of any repairs effected by or on behalf of Seller
with Purchaser's consent, which consent shall not be unreasonably withheld or
delayed, or without Purchaser's consent with respect to repairs of an
emergency nature) or (ii) if any such proceeds have not been received by
Seller, transfer and assign to Purchaser, without recourse, all of Seller's
right, title and interest in and to any insurance and condemnation proceeds
payable to Seller, and there shall be no abatement or credit on account of the
Purchase Price and no duty or obligation on Seller to repair or restore any
damage or to make any repairs to the Property by reason of such fire, casualty
or taking. Adjustment of any insurance or condemnation claim shall be
conducted jointly by Seller and Purchaser. In the event of an assignment of
all insurance claims as provided for above, Purchaser shall receive at
Closing, a credit against the Purchase Price in an amount equal to any
deductible(s) and uninsured amounts. Notwithstanding the foregoing, in the
event that the uninsured amount plus any sums expended by Seller pursuant to
clause (bb) above (which has not been reimbursed to Seller from the insurance
proceeds, if any) exceeds
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One Million Dollars ($1,000,000.) (an "EXCESS UNINSURED AMOUNT"), then Seller,
at its election, may terminate this Agreement and the parties shall direct the
Escrowee to return the Xxxxxxx Money Deposit to Purchaser, and neither party
will have any further obligation to the other except for those provisions
which specifically survive the termination hereof. Notwithstanding the
foregoing, Purchaser, at its election made within five (5) business days after
notice of Seller's election to terminate this Agreement due to an Excess
Uninsured Amount, may accept title to the Property, notwithstanding the
existence of an Excess Uninsured Amount, provided that on the Closing Date,
Seller credits the Purchase Price by an amount equal to One Million Dollars
($1,000,000.) less any sums expended by Seller pursuant to clause (bb) above
(which has not been reimbursed to Seller from the insurance proceeds, if any).
ARTICLE 9
DEFAULTS
Section 9.1. Purchaser's Default. In the event that Purchaser
wilfully defaults under this Agreement and the Closing does not occur as the
result thereof, Seller shall, as its sole and exclusive remedy, retain the
Xxxxxxx Money Deposit as liquidated and agreed damages for such default by
Purchaser, whereupon neither party hereto shall have any further obligations
to the other under this Agreement; provided, however,
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that neither party shall be released from its obligations which specifically
survive the termination of this Agreement.
Section 9.2. Seller's Default. If Seller defaults in its
obligations under this Agreement, and the Closing does not occur as a result
thereof, then except as set forth below, the sole obligation of Seller shall
be to cause the refund of the Xxxxxxx Money Deposit to Purchaser and upon the
making of such refund and reimbursement this Agreement shall be null and void
and of no further force or effect, no party hereto shall have any further
claim against the other by reason of this Agreement provided, however, that
neither party shall be released from its obligations which specifically
survive the termination of this Agreement. Notwithstanding the foregoing, if
Seller's inability to close shall result from Seller's willful default or
willful material misrepresentation or willful and material breach of warranty
or a covenant, then and in any such event Purchaser may, at its election,
pursue any remedy allowed by law, including, without limitation, specific
performance, or Purchaser may elect to cancel this Agreement and receive the
return of the Xxxxxxx Money Deposit. If Purchaser elects to cancel this
Agreement, then upon receipt by Purchaser of the Xxxxxxx Money Deposit, no
party hereto shall have any further claim against the other by reason of this
Agreement except in connection with those provisions which expressly survive
the termination hereof.
Section 9.3. Delivery of Xxxxxxx Money Deposit in the Event of a
Default. In any case where either party is entitled to receive the Xxxxxxx
Money Deposit
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hereunder due to a default by the other party to this Agreement (or as
otherwise provided in this Agreement), the parties agree to give the Escrowee
prompt written instructions to deliver the Xxxxxxx Money Deposit to the party
entitled thereto.
ARTICLE 10
LIMITATIONS OF LIABILITY
Section
10.1. No Liability as to Representatives. The parties agree that
all obligations of a party under or with respect to this Agreement do not
constitute personal obligations of the partners, members, officers, directors,
employees, shareholders, advisors or agents of such party (collectively
"REPRESENTATIVES") and shall not involve or create any claim against or any
personal liability of any of the Representatives and that each party or any
person claiming by or under such party will look solely to the assets of the
other party for satisfaction of such party's liabilities under this Agreement
and will not seek recourse against any of the Representatives for any such
satisfaction.
Section 10.2. Limitation of Liability of Purchaser. Anything herein
to the contrary notwithstanding, the liability of Purchaser for failure to
perform its obligations or otherwise under or in connection with this
Agreement shall prior to the Closing or after the termination of this
Agreement be limited to the Xxxxxxx Money Deposit.
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Section 10.3. Limitation of Liability of Seller. Anything herein to
the contrary notwithstanding, the liability of Seller for failure to perform
its obligations under or in connection with this Agreement prior to the
Closing or after the termination of this Agreement shall be limited to its
interest in the Property, the proceeds of sale or other transfer thereof and
the net proceeds of any refinancing thereof.
Section 10.4. Survival. The provisions of this Article 10 shall
survive the Closing or termination of this Agreement.
ARTICLE 11
MISCELLANEOUS
Section
11.1. Assurances Of Cooperation. The parties hereby
covenant and agree that they will at any time prior to or after the Closing
and from time to time, execute, acknowledge and deliver, or will cause to be
done, executed, acknowledged and delivered all such further acts, documents
and instruments as may reasonably berequired by the other party in order to
carry out fully and effectuate the transaction herein contemplated in
accordance with the provisions of this Agreement.
Section 11.2. Successors And Assigns. This Agreement shall be
binding in all respects on and shall inure to the benefit of the Seller and
Purchaser and their respective successors and assigns. Purchaser may assign
its interests under this
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Agreement to (i) a Permitted Assignee; or (ii) to any other entity upon the
prior written consent of Seller, which consent shall not be unreasonably
withheld. Upon such assignment, Purchaser named herein shall be released of
liability hereunder provided, however, that upon Purchaser's assignment the
assignee assumes in writing, for Seller's benefit, all liabilities of
Purchaser under this Agreement and reaffirms all of the representations and
warranties contained in Section 5.3. hereof with respect to the assignee, and
a counterpart of such assignment and assumption is delivered to Seller. This
Agreement is made for the sole and exclusive benefit of the parties hereto and
their respective successors and assigns; no third party is intended to have or
shall have any rights under this Agreement.
Section 11.3. Interpretation.
11.3.1. This Agreement represents the entire agreement between
the parties hereto and shall not be modified or affected by any offer,
proposal, statement or representation, oral or written, made by or for either
party in connection with the negotiation of the terms hereof. No future
modification or Amendment of this Agreement may be made, except by written
agreement executed by the parties hereto.
11.3.2. No failure by the parties hereto to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy upon a breach thereof shall
constitute a waiver of any such right or remedy or any other covenant,
agreement, term or condition. Any party
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to this Agreement may by written notice waive any of its rights or any
conditions to its obligations hereunder, or any duty, obligation or covenant
of any other party hereto.
11.3.3. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected thereby and shall be
enforced to the fullest extent permitted by law.
11.3.4. Use of the terms "include," "including," or
"includes," followed by specific examples shall not be deemed to limit the
object of the reference to the specific examples.
11.3.5. The masculine, feminine or neuter pronouns used herein
shall be interpreted without regard to gender, and the use of the singular or
plural shall be deemed to include the other whenever the context so requires.
The headings in this Agreement are inserted for convenience of reference only
and shall not be a part of or control or affect the meaning of this Agreement.
11.3.6. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of the State of New
Jersey, without regard to its conflict of laws rules.
Section
11.4. Survival. All provisions of this Agreement which are
expressly stated to survive the Closing, shall not merge with, be extinguished
or otherwise affected by the Deed
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or any of the Closing Documents. The provisions of this Article 11 shall
survive the Closing or termination of this Agreement.
Section 11.5. Joint Cooperation. Upon obtaining knowledge of any
event which could give rise to a claim of indemnity under this Agreement, the
party seeking indemnification shall promptly notify the other party of that
event but the failure of the indemnified party to timely give written notice
as provided herein shall not relieve the indemnifying party of its obligations
under this Agreement unless such failure to give notice materially adversely
affects the ability of the indemnifying party to defend such claim. If such
claim or demand relates to a claim or demand asserted by a third party, the
indemnifying party shall have the right, at its expense, to employ counsel
reasonably acceptable to the indemnified party, except that counsel designated
by the insurance company of the indemnifying party shall be deemed acceptable,
to defend such claim or demand and the indemnified party shall have the right,
but not the obligation, to participate in the defense of any such claim or
demand. So long as the indemnifying party is defending such claim or demand in
good faith, the indemnified party will pay its own attorney fees for
participating in such defense and will not settle such claim or demand without
the indemnifying party's consent. The indemnified party shall make available
to the indemnifying party all records and other materials reasonably required
by it in contesting a claim or demand asserted by a third party against the
indemnified party and shall cooperate in the defense thereof. The parties
shall make their records available to each other to the extent required to
comply with
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any audit or other review of a party's records or tax returns by a
governmental agency.
Section 11.6. Publicity. Neither Purchaser nor Seller shall
announce or disclose publicly the terms or provisions hereof without the prior
written approval of the other party, except as such disclosure may be required
by law and except that this provision shall not prohibit either party from
disclosing such terms or provisions to its attorneys, accountants, lenders,
bankers, financial advisors, investors or any other advisor or consultant.
Neither Seller nor Purchaser shall record this Agreement or any evidence
thereof in the public records of the county in which the Real Property is
located.
Section 11.7. Notices. All elections, notices and other
communications to be given hereunder by either party to the other shall be in
writing and sent by personal delivery, reliable overnight courier with
evidence of receipt or by facsimile (with confirmation by one of the other
methods of notice), addressed:
If to Seller: Xx. Xxxxx X. Xxxxxx
The Okonite Company
000 Xxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Facsimile No. (000) 000-0000
with a copy to Xxxxxxx X. Xxxxxxxx, Esq.
Seller's Counsel: 000 Xxxxxxx Xxxx
Post Xxxxxx Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
Facsimile No. (000) 000-0000
If to Purchaser: Xx. Xxxxxxxxx X. Xxxxxxxx
USA Detergents, Inc.
0000 Xxxxxx Xxxxxx
-00-
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No. (000) 000-0000
with a copy to Xxxxxxx Xxxxxxxx, Esq.
Purchaser's Fulbright & Xxxxxxxx L.L.P.
Counsel: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
or at such other addresses as the parties may designate to the other by
written notice in the manner herein provided. Any such notices or election
shall be effective at the following times: (i) upon delivery, if personally
delivered; (ii) one (1) day after delivery to the overnight courier; or (iii)
the date of transmission if by facsimile with confirmed electronic receipt.
Section 11.8. Certain Conditions. Notwithstanding anything to the
contrary set forth in Sections 6.6.A.21 and 6.6.A.22, Seller shall not be
required to deliver the documents set forth in said sections as a condition to
the Closing; and if such documents are not delivered by Seller at or prior to
the Closing, Purchaser shall nonetheless be required to Close this transaction
if all other conditions to the Closing have been satisfied.
Section 11.9. Attorney's Fees. In the event of any litigation
between the parties hereto with respect to their rights and obligations
hereunder, the reasonable attorneys' fees and costs of the party successful in
such action, but only with respect to the first $500,000 of such fees and
costs, will be borne by the party which is the losing party in such
litigation.
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Section 11.10. Counterparts. This Agreement may be executed and
delivered in counterpart copies, all of which together will constitute one
executed original agreement.
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IN WITNESS WHEREOF, Seller and Purchaser have executed this
Agreement the day and year first above written.
SELLER:
THE OKONITE COMPANY, INC.
By: /s/ Xxxxx X. Sokika
-------------------------
Xxxxx X. Sokika
Its: Vice President Finance &
Treasurer
PURCHASER:
USA DETERGENTS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxxxx X. Xxxxxxxx
Its: Executive Vice President
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