EXHIBIT 10.32
AGREEMENT OF PURCHASE AND SALE
by and between
MCANY OF KEARNY, INC.
("SELLER")
AND
DELBORNE LAND COMPANY LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
("PURCHASER")
Dated as of October __, 2000
SOLOMON AND XXXXXXXX LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
TABLE OF CONTENTS
SECTION PAGE
1. SALE OF SELLER INTERESTS.............................................. 2
2. PURCHASE PRICE........................................................ 2
(a) Purchase Price................................................... 2
(b) Manner of Payment................................................ 2
(c) Delivery of Reports.............................................. 3
4. REPRESENTATIONS AND WARRANTIES OF SELLER.............................. 4
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER........................... 5
6. TITLE................................................................. 5
7. OBJECTIONS TO TITLE................................................... 5
(a) Title Objections................................................. 5
(b) Acceptance by Purchaser.......................................... 6
(c) Wrongful Failure to Close........................................ 6
8. CLOSING............................................................... 6
(a) Closing Date..................................................... 6
(b) Seller's Deliveries to Purchaser................................. 7
(c) Purchaser's Delivery to Seller................................... 8
(d) Closing Costs; Fees and Disbursements of Counsel, etc............ 8
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9. APPORTIONMENTS........................................................ 8
10. DAMAGE OR DESTRUCTION AND EMINENT DOMAIN.............................. 8
(a) Risk of Loss..................................................... 8
(b) Eminent Domain Prior to Closing.................................. 9
11. DEFAULT; REMEDIES..................................................... 9
12. NOTICES............................................................... 10
13. BROKERS............................................................... 11
14. XXXXXXX MONEY GUARANTY................................................ 11
15. SELLER COOPERATION.................................................... 11
16. CONDITIONS TO CLOSING................................................. 12
(a) Title............................................................ 12
(b) Other Deliveries and Obligations................................. 12
(c) Representations.................................................. 12
(d) Documents........................................................ 13
17. GENERAL............................................................... 13
(a) Waivers.......................................................... 13
(b) Binding Effect................................................... 13
(c) Identification................................................... 13
(d) Captions......................................................... 13
(e) Entire Agreement................................................. 13
(f) Applicable Law................................................... 14
(g) Counterparts..................................................... 14
(h) Separability of Provisions....................................... 14
(i) Time for Performance............................................. 14
(j) Liens............................................................ 14
(k) Attorney's Fees.................................................. 14
EXHIBITS
Exhibit A Description of the Property
Exhibit B Permitted Encumbrances
Exhibit C Form of Deed
Exhibit D Form of Assignment of Xxxxxxxxx Ground Lease
Exhibit E Adjacent Parcel
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "AGREEMENT") is made and
entered into as of the ___ day of October, 2000, by and between MCANY OF KEARNY,
INC., having an address c/o MCARED Realty, 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxx X,
Xxxxx X-000X, P.O. Drawer C, Woodbury, Connecticut 06798 ("SELLER"), and
DELBORNE LAND COMPANY LLC, a Delaware limited liability company, having an
office c/o DVL, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("PURCHASER").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, MCANY is the owner of fee title to that certain parcel of land
(the "LAND") located in the Town of Kearny, County of Xxxxxx, and State of New
Jersey, and more particularly described on EXHIBIT A annexed hereto and made a
part hereof, and, to the extent of Seller's interest therein, of the buildings
and improvements situate thereon the "IMPROVEMENTS"; the Land and the
Improvements are collectively referred to herein as the "PROPERTY");
WHEREAS, Seller has leased the Property to Cygnus 77 Associates, a
Pennsylvania limited partnership ("CYGNUS") pursuant to a Lease Agreement, dated
as of December 30, 1980 (the "XXXXXXXXX GROUND LEASE"), a Memorandum of which
was recorded September 4, 1981 in Book 3330, Page 616 of the Xxxxxx County
Recorder's Office, New Jersey (the "OFFICE");
WHEREAS, the lessee's interest in the Xxxxxxxxx Ground Lease was assigned
to XX Xxxxxx LLC, a New Jersey limited liability company ("KEARNY LLC"), as
predecessor-in-interest to XX Xxxxxx Associates, LLC, a New Jersey limited
liability company ("ASSOCIATES"), pursuant to an Assignment and Assumption of
Lease Agreement (the "ASSUMPTION AGREEMENT"), by and between Cygnus, as
assignor, and Kearny LLC, as assignee, dated as of June 3, 1998, and recorded
July 15, 1998 in Book 5309, Page 312 in the Office;
WHEREAS, a portion of the Property is leased to Kmart Corporation, a
Michigan corporation ("KMART") pursuant to that certain lease, by and between
Partlin & Chananie Development Corp., a New York corporation ("P&C"), as
landlord, and Kmart, as tenant, dated as of April 25, 1979 ("KMART LEASE"), a
Memorandum of which was recorded August 3, 1979 in Book 3282, Page 125 in the
Office, and P&C assigned its interest in the Kmart Lease to Cygnus, pursuant to
an Assignment and Assumption Agreement, by and between P&C as
assignor, and Cygnus, as assignee, dated as of December 29, 1980 and recorded
September 4, 1981 in Book 3330, Page 612 in the Office, and Cygnus assigned its
interest in the Kmart Lease to Associates pursuant to an Assignment and
Assumption Agreement, by and between Cygnus, as assignor, and Associates, as
assignee, dated as of June 3, 1998 and recorded on July 16, 1998 in Book 5311,
Page 164 in the Office; and
WHEREAS, Seller desires to sell the Property to Purchaser and Purchaser
desires to purchase the Property from Seller, each upon the terms herein set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Ten Dollars ($10.00) and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, Seller and Purchaser do hereby agree as follows:
1. SALE OF THE PROPERTY. Subject to the terms and conditions of this
Agreement, Seller shall sell, grant, convey, transfer, assign and deliver all of
Seller's right, title and interest in the Property to Purchaser and Purchaser
shall acquire the Property from Seller.
The sale by Seller of the Property shall include all of Seller's
interest, if any, in:
(a) all rights of Seller, if any, in and to all licenses, and
permits relating to the ownership and operation of the Property (collectively,
the "PERMITS"); and
(b) all easements, rights of way or use, privileges, licenses,
consents appurtenances and rights belonging or appertaining to the Property,
including but not limited to, strips and gores ("RIGHTS").
2. PURCHASE PRICE.
(a) PURCHASE PRICE. Purchaser will pay the aggregate purchase
price of Three Hundred Sixty Five Thousand ($365,000.00) Dollars (the "PURCHASE
PRICE") in lawful currency of the United States of America for the Property,
subject to the prorations, adjustments and credits hereinafter provided for in
this Agreement.
(b) MANNER OF PAYMENT. The Purchase Price shall be paid in the
following manner:
(i) One Hundred Twenty-Five Thousand ($125,000.00)
Dollars (such sum, together with all interest earned thereon are collectively
referred to as the "XXXXXXX MONEY"), by check, subject to collection, payable to
Seller;
(ii) The balance ("BALANCE") of the Purchase Price,
subject to the prorations, adjustments and credits hereinafter provided for, at
the Closing at Purchaser's election by payment of the full amount thereof by
certified check or bank check payable to the order of Seller ("BANK CHECK").
Seller and Purchaser acknowledge and agree that the Xxxxxxx Money shall be paid
to Seller at the Closing by Escrow Agent, and that Purchaser shall receive a
credit
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against the Balance for the full amount of the Xxxxxxx Money.
3. AS IS; ACCESS TO THE PROPERTY DURING CONTRACT PERIOD. Purchaser
hereby acknowledges, represents, warrants and agrees to and with Seller as
follows:
(a) Except as expressly set forth herein, Purchaser is
expressly purchasing the Property in its existing condition "AS IS, WHERE IS,
AND WITH ALL FAULTS" with respect to all facts, circumstances, conditions and
defects. Seller has no obligation to determine or correct any such facts,
circumstances, conditions or defects or to compensate Purchaser for same.
Purchaser acknowledges that Purchaser has fully examined the Property and is
familiar and satisfied with the physical condition and state of title of the
Property. Except as expressly set forth herein, Seller has not made and does not
make any representations as to zoning, compliance with laws, the physical
condition, structure, expenses, value of the Property, the continued occupancy
by any tenant, the adequacy of fitness for use of any mechanical equipment or
any other matter or thing affecting or related to the Property or this
transaction which might be pertinent in considering the purchase of the Property
or the entering into of this Agreement, and by reason of all the foregoing,
Purchaser assumes the full risk of any loss or damage (subject to SECTION 10
below) occasioned by any fact, circumstance, condition or defect pertaining to
the Property.
(b) Seller hereby disclaims all warranties of any kind or
nature whatsoever (including warranties of habitability and fitness for
particular purposes), whether expressed or implied, including, without
limitation, warranties with respect to the Property, except as expressly set
forth in this Agreement. Purchaser further acknowledges that, except as
otherwise expressly set forth in this Agreement, Purchaser is not relying upon
any representation of any kind or nature made by Seller, or any of its employees
or agents with respect to the Property, and that, in fact, no such
representations were made except as expressly set forth in this Agreement.
(c) DELIVERY OF REPORTS. Not more than ten (10) days after the
execution of this Agreement and upon the further request by Purchaser prior to
Closing, Seller, at no cost to Purchaser, shall deliver to Purchaser copies of
all engineering and environmental reports, surveys, studies, service contracts,
agreements and licenses, if any, in Seller's possession or control relating to
the Property. Purchaser acknowledges that Seller shall not be responsible for
the accuracy of the information contained in the foregoing Reports. Seller shall
cooperate with Purchaser in connection with the conduct by Purchaser of its due
diligence.
(d) Notwithstanding anything to the contrary contained in this
SECTION 3, Purchaser and/or Purchaser's employees, consultants, engineers and
agents shall have the right, subject to the rights of the tenants under the
Xxxxxxxxx Ground Lease and the Kmart Lease respectively, to enter the Property
at any time, in connection with Purchaser's due diligence of or with respect to
the Property, in order to conduct any investigation, inspection, soil tests or
sampling or any boring, digging, drilling or other physical intrusion of the
Property. In performing Purchaser's due diligence of or with respect to the
Property, Purchaser agrees that it shall use commercially reasonable efforts to
not interfere with the operation of, or disturb the
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occupancy of any tenant or subtenant of the Property. Purchaser hereby
indemnifies and holds harmless Seller from any and all claims, damage,
liability, loss, cost and expense that may arise in connection with all claims
arising out of the acts or omissions of Purchaser, its partners, agents,
employees, licensees, invitees, contractors and consultants.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants that:
(a) Seller is a corporation duly organized, validly existing
and in good standing under the laws of New Jersey and has full power and
capacity to execute and deliver this Agreement and perform its obligations
arising hereunder; the execution of this Agreement and performance of Seller's
obligations hereunder has been duly authorized, and such execution and
performance will not violate any material term of its articles of organization.
Seller is not required to obtain any consent, authorization, approval or
obligation from any third party or under any law, statute, rule, regulation,
judgment, order, writ, injunction or decree in order to enter into the
transactions contemplated by this Agreement. This Agreement and the documents to
be delivered by Seller pursuant hereto do not and will not contravene any
provision of any currently applicable law or regulation which governs the right
of Seller to sell the Property and/or the delivery of this Agreement;
(b) There is no litigation, other than pending litigation which
will not be binding upon Purchaser or the Property after Closing, condemnation
proceedings or adversarial proceedings involving the Property or the Xxxxxxxxx
Ground Lease, and Seller has not prior to the date of its execution of this
Agreement received written notice from any governmental instrumentality or other
third parties of any such litigation or proceeding being commenced or
threatened, or that the Property is not in compliance with applicable
governmental laws, rules and regulations. To Seller's best knowledge, no
federal, state, county, municipal or other governmental plans to restrict or
change (x) access from any highway or road bounding the Property or (y) any
zoning ordinance affecting the Property;
(c) Other than the Permitted Encumbrances (as hereinafter
defined), to Seller's best knowledge, Seller is neither a party to nor bound by
any lease, license, occupancy, management, service, supply, maintenance or other
agreement with respect to the Property;
(d) Seller has not filed any petition seeking or acquiescing in
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor, to Seller's best knowledge, has any such petition been filed
against Seller. No general assignment of the property of Seller has been made
for the benefit of creditors, and no receiver, master, liquidator or trustee has
been appointed for Seller or any of Seller's property; and
(e) Seller is not a "foreign person" as that term is defined
for purposes of the Foreign Investment in Real Property Tax Act, Internal
Revenue Code ("IRC") Section 1445, as amended, and the regulations promulgated
thereunder (collectively "FIRPTA"); and
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It shall be a condition to Closing that each of the
representations and warranties of Seller hereunder be true and correct in all
material respects as of the date hereof and as of the Closing. The
representations and warranties of Seller hereunder shall survive the Closing for
a period of one (1) year.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants that:
(a) Purchaser is a limited liability company duly organized and
validly existing and in good standing under the laws of the State of Delaware
and has full power and capacity to execute and deliver this Agreement and
perform its obligations arising hereunder; the execution of this Agreement and
performance of Purchaser's obligations hereunder has been duly authorized, and
such execution and performance will not violate any material term of its
articles of organization; Purchaser is not required to obtain any consent,
authorization, approval or obligation from any third party or under any law,
statute, rule, regulation, judgment, order, writ, injunction or decree in order
to enter into the transactions contemplated by this Agreement. This Agreement
and the documents to be delivered by Purchaser pursuant hereto do not and will
not contravene any provision of any currently applicable law or regulation which
governs the right of Purchaser to purchase the Property and/or the delivery of
this Agreement; and
(b) No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or
arrangement or other action under Federal or State bankruptcy laws is pending
against or contemplated by Purchaser.
6. TITLE. At the Closing, fee title to the Property shall be
insurable at ordinary rates, without additional premium by Purchaser's title
insurance company, and good and marketable title thereto shall be conveyed and
transferred to Purchaser subject only to the matters set forth on SCHEDULE B on
the date hereof to that certain title insurance commitment issued by Royal
Abstract Corp. on behalf of Chicago Title Insurance Company, dated May 30, 2000
under Commitment Number 62136 (subject to Seller's obligation to deliver
customary title affidavits and undertakings to remove the printed exceptions 1,
2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 on SCHEDULE B-SECTION 1 and 1, 2, 4, (to the
extent said taxes, charges and assessments are due and payable), 18, 19, 20, 22
and 23 on SCHEDULE B-SECTION 2 therein) (the "PERMITTED ENCUMBRANCES").
7. OBJECTIONS TO TITLE.
(a) TITLE OBJECTIONS. If, on the Closing Date, Seller is unable
to convey to Purchaser title to the Property in accordance with the provisions
of this Agreement, Seller may, but shall not be obligated to, upon written
notice delivered to Purchaser on or prior to the Closing Date, to one or more
adjournments of the Closing for a period or periods not to exceed sixty (60)
days in the aggregate to enable Seller to convey such title to the Property. If
Seller does not so elect to adjourn the Closing, or if at the adjourned date
Seller is unable to conveytitle in accordance with the provisions of this
Agreement, Purchaser may terminate this Agreement by written notice to Seller
and Escrow Agent delivered on or promptly after the date scheduled for the
Closing, in which event Escrow Agent shall repay to Purchaser the Xxxxxxx Money
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together with any interest earned thereon, subject to SECTION 14 hereof. Upon
payment of the Xxxxxxx Money this Agreement shall be deemed canceled and become
void and of no further effect, and neither party hereto shall have any
obligations of any nature to the other hereunder or by reason hereof. 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 the terms
hereof. Seller shall not 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 precedent to Purchaser's obligations under this Agreement or to
expend any moneys therefor, nor shall Purchaser have any right of action against
Seller therefor, at law or in equity, except that Seller shall, on or prior to
the Closing, pay, discharge or remove of record or cause to be paid, discharged
or removed of record at Seller's sole cost and expense all of the following
items: (i) Voluntary Liens (as hereinafter defined) and (ii) other liens
encumbering the Property (including, without limitation, judgments and federal,
state and municipal tax liens) which, solely in the case of this CLAUSE (II),
(x) are in liquidated amounts and which may be satisfied solely by the payment
of money (including the preparation or filing of appropriate satisfaction
instruments in connection therewith) and (y) do not exceed in the aggregate
$50,000.00. The term "VOLUNTARY LIENS" as used herein shall mean liens and other
encumbrances (other than the Permitted Encumbrances) which Seller has knowingly
and intentionally suffered or allowed to be placed on the Property, including,
without limitation, mechanics' liens.
(b) ACCEPTANCE BY PURCHASER. Notwithstanding anything in this
SECTION 7 hereof to the contrary, Purchaser may at any time accept such title to
the Property as Seller can convey, without reduction of the Purchase Price or
any credit or allowance on account thereof or any claim against Seller. The
acceptance of the Deed (as hereinafter defined) and the Assignment of the
Xxxxxxxxx Ground Lease (as hereinafter defined) by Purchaser (whether or not
title then comports with the provisions of SECTION 7) 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 such matters which are
expressly stated in this Agreement to survive the Closing.
(c) WRONGFUL FAILURE TO CLOSE. Nothing in this SECTION 7 and
nothing in this Agreement shall absolve Seller from, or limit Purchaser's rights
in connection with, any wrongful act on Seller's part which results in Seller's
inability to fulfill its obligations under this Agreement.
8. CLOSING.
(a) CLOSING DATE. The closing of the transactions contemplated
by this Agreement (the "CLOSING") shall occur at the offices of Solomon and
Xxxxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place upon which the parties shall mutually agree, at 10:00 AM, on the date
selected by Purchaser in a notice given to Seller not less than five (5) days
prior thereto, provided that such date shall be not earlier than January 8, 2001
and not later than February 15, 2001, subject to Seller's right to adjourn such
date as set forth in SECTION 7 hereof (the "CLOSING DATE").
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(b) SELLER'S DELIVERIES TO PURCHASER. On or prior to the
Closing Date, Seller shall execute and deliver or cause to be executed (and
where required, acknowledged) and delivered to Purchaser, the following:
(i) A Bargain and Sale Deed with covenants against the
acts of Seller, in the form annexed hereto as EXHIBIT C conveying to Purchaser
insurable, good and marketable title to the Property, subject only to the
Permitted Encumbrances;
(ii) A duly executed and acknowledged assignment, in the
form annexed hereto as EXHIBIT D, of the Xxxxxxxxx Ground Lease (the "ASSIGNMENT
OF THE XXXXXXXXX GROUND LEASE"), transferring and conveying all of Seller's
right, title and interest as landlord thereunder, containing Purchaser's
assumption of Seller's obligations under the Xxxxxxxxx Ground Lease accruing
from and after the Closing Date;
(iii) A Mechanics' lien, possession and gap affidavit, and
any other such affidavits, indemnities and documents as may reasonably be
required by the Title Company;
(iv) Certification of non-foreign status, pursuant to
Section 1445 of the Internal Revenue Code;
(v) The originals (or true and correct complete copies
if originals are not available) of all Permits and Licenses;
(vi) An original counterpart of the Xxxxxxxxx Ground
Lease and Kmart Lease;
(vii) either (a) a non-applicability letter, (b) a de
minimus quantity exception or (c) an unconditional approval of Seller's negative
declaration which Seller shall have received from the Industrial Site Evaluation
Element of the New Jersey Department of Environmental Protection and Entry (the
"ISRA APPROVAL"), and for which Seller shall apply pursuant to the Industrial
Site Recover Act, N.J.S.A. 13:1K-8 et seq., the regulations promulgated
thereunder, and any amending or successor legislation or regulations. Purchaser
shall prepare and Seller shall execute such applications and documents required
to obtain ISRA approval;
(viii) A State of New Jersey Affidavit of Consideration or
Exemption, if required; and
(ix) Such other documents as shall be reasonably required
by Purchaser or by Purchaser's Title Company in order to close and consummate
the transactions contemplated hereunder.
(c) PURCHASER'S DELIVERY TO SELLER. On the Closing Date,
Purchaser shall execute and deliver to Seller, or cause to be executed and
delivered to Seller:
(i) the Balance of the Purchase Price;
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(ii) the sums, if any, due under Article 9 herein; and
(iii) counterparts of the New Jersey Affidavit of
Consideration or Exemption.
(d) CLOSING COSTS; FEES AND DISBURSEMENTS OF COUNSEL, ETC. At
the Closing, Purchaser shall pay the New Jersey Realty Transfer Tax ("TRANSFER
TAX") imposed upon or payable in connection with the transfer of title to the
Property to Purchaser and the recordation of the Deed. All such tax payments
shall be made payable directly to the order of the appropriate governmental
officer or the Title Company. Except as otherwise expressly provided to the
contrary in this Agreement, Purchaser shall pay (i) all charges for recording
and/or filing the Deed and (ii) all title charges and survey costs, including
the premium on Purchaser's title insurance policy. Each of the parties hereto
shall bear and pay the fees and disbursements of its own counsel, accountants
and other advisors in connection with the negotiation and preparation of this
Agreement and the Closing. The provisions of this SECTION 8(E) shall survive the
Closing.
9. APPORTIONMENTS.
Rent and other sums paid pursuant to the Xxxxxxxxx Ground
Lease, prior to the Closing, for the period January 1, 2001 through June 30,
2001 shall be retained by Seller, without apportionment, it being acknowledged
and agreed that the semi-annual payment of rent payable in January 2001 (the
"JANUARY RENT PAYMENT"), if paid prior to the Closing, shall belong to Seller.
If, at Closing, any portion of the January Rent Payment is past due or has not
yet been paid (the "ARREARAGE"), Purchaser shall pay to Seller the lesser of (i)
the actual Arrearage or (ii) $10,000.00. Purchaser shall be entitled to all
payments made in respect of any Arrearage after the Closing.
10. DAMAGE OR DESTRUCTION AND EMINENT DOMAIN.
(a) RISK OF LOSS. Risk of loss by damage or destruction to the
Property prior to the Closing shall be borne by Purchaser. If, prior to the
Closing Date, the Property shall be damaged or destroyed by fire, storm,
accident or other casualty or cause, Seller shall promptly give written notice
thereof to Purchaser. In such event, the obligations of the parties hereunder
shall not be affected by such damage or destruction and/or damaged condition,
provided that at the Closing, Seller shall assign to Purchaser all of Seller's
interest, if any, in any casualty insurance proceeds payable to Seller as a
result of the damage or destruction, including rent loss proceeds, payable by
reason of such damage or destruction. The Purchaser shall receive at Closing a
credit against the Purchase Price for the amount of any insurance proceeds
theretofore paid to Seller. Seller agrees to assist and cooperate with Purchaser
in collecting the insurance proceeds.
(b) EMINENT DOMAIN PRIOR TO CLOSING. If, prior to the Closing
Date, all or any material portion of the Property is taken by eminent domain or
condemnation (or is the subject of a pending or contemplated taking of all or a
material portion of the Property which has not been consummated), Seller shall
promptly notify Purchaser of such fact, whereupon, Purchaser
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shall have the option to terminate this Agreement upon written notice to the
Seller given within fifteen (15) business days after the Purchaser's receipt of
Seller's notice. For purposes of this Section, a material portion of the
Property shall be deemed to be any portion with a value in excess of One Hundred
Thousand Dollars ($100,000). If this Agreement is terminated in accordance with
this subsection, Escrow Agent shall immediately return the Xxxxxxx Money to
Purchaser, this Agreement shall terminate and thereafter neither party shall
have any further rights or obligations hereunder. If Purchaser does not exercise
its option to terminate this Agreement pursuant to this clause (b), Seller
shall, at the Closing, assign and deliver to Purchaser all awards for the taking
by eminent domain or condemnation, and there shall be no adjustment of the
Purchase Price.
11. DEFAULT; REMEDIES.
(a) In the event Purchaser shall default in the performance of
Purchaser's obligations under this Agreement and the Closing does not occur as a
result thereof (a "PURCHASER DEFAULT"), Seller's sole and exclusive remedy shall
be, and Seller shall be entitled, to retain the Xxxxxxx Money and any interest
earned thereon as and for full and complete liquidated and agreed damages for
Purchaser's default, and Purchaser shall be released from any further liability
to Seller hereunder. Seller and Purchaser agree that it would be impractical and
extremely difficult to estimate the damages which seller may suffer upon a
purchaser default and that the Xxxxxxx Money and any interest earned thereon,
represents a reasonable estimate of the total net detriment that seller would
suffer upon a purchaser default. Such liquidated and agreed damages are not
intended as a forfeiture or a penalty within the meaning of applicable law.
(b) In the event that Seller shall default in the performance
of Seller's obligations under this Agreement and the Closing does not occur as a
result thereof, Purchaser shall be entitled, to either (a) terminate this
Agreement, in which event Seller shall promptly refund to Purchaser the Xxxxxxx
Money, together with interest thereon computed at nine percent (9%) per annum
from the date hereof until the date of such termination, and thereafter at the
rate of twenty four percent (24%) (the "DEFAULT RATE") per annum until paid,
together with reimbursement of Purchaser's Costs, as hereinafter defined, upon
which Seller shall be released from any further liability to Purchaser
hereunder, or (b) seek specific performance of Seller's obligation to convey
title to the Property as provided hereunder. As used herein, the term
"PURCHASER'S COSTS" shall mean the out-of-pocket costs and expenses paid or
incurred by Purchaser, not to exceed Twenty-Five Thousand and 00/100
($25,000.00), including without limitation, reasonable fees and disbursements of
attorneys and other professionals engaged by Purchaser in connection with its
evaluation of the Property, engineering and environmental testing, title
examination and survey, and preparation and negotiation of this Agreement.
12. NOTICES. All notices, demands and requests provided for in this
Agreement (collectively, "NOTICE" or "NOTICES") shall be in writing. All such
Notices shall be personally delivered or sent by fax or telecopier (with a hard
copy sent by overnight courier), by overnight courier service (such as Federal
Express), or by United States certified mail, return receipt requested, postage
prepaid, addressed as set forth as follows:
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If to Seller:
MCANY of Kearny, Inc.
c/o MCARED Realty
00 Xxxxxxx Xxxx Xxxx
Xxxxxxxx X, Xxxxx X-000X
X.X. Xxxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000
If to Purchaser:
Delborne Land Company LLC
c/o DVL, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Solomon and Xxxxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Such Notice shall be effective (i) if hand-delivered, upon delivery, (ii) on the
next business day, if deposited and sent by overnight courier, (iii) if mailed,
two (2) business days after such notice shall be deposited with the United
States Post Office, or upon actual receipt, whichever first occurs, or (iv) on
the same day as sent via fax or via telecopier, if sent on a business day, or on
the next business day if sent on a non- business day; provided that in either
case, a "hard copy" of such notice is deposited with an overnight courier
service on the same day the Fax or telecopy is sent, or on the next business day
if the fax or telecopy is sent on a non-business day.
13. BROKERS. Purchaser and Seller each represent and warrant to the
other that it has not dealt with any broker, consultant, finder or like agent
who might be entitled to a commission or compensation on account of introducing
the parties hereto, the negotiation or execution of this Agreement or the
closing of the transactions contemplated hereby, other than Xxxxx Xxxxx
("XXXXX"). Each of Purchaser and Seller shall at Closing pay to Xxxxx the sum of
Five Thousand Dollars ($5,000.00) as Xxxxx'x sole compensation for his
assistance bringing about this transaction. Purchaser agrees to indemnify and
hold Seller harmless from and against all claims, losses, liabilities and
expenses (including, without limitation, reasonable attorneys fees and
disbursements) which may be asserted against, imposed upon or incurred by such
party by reason of the breach by Purchaser of its representations made in this
SECTION 13. Seller agrees to indemnify and hold Purchaser harmless from and
against all claims, losses, liabilities and expenses (including without
limitation, reasonable attorneys fees and disbursements) which may
10
be asserted against, imposed upon or incurred by Purchaser by reason of the
breach by Seller of its representations made in this SECTION 13. The provisions
of this SECTION 13 shall survive the Closing or other termination of this
Agreement.
14. XXXXXXX MONEY GUARANTY. By his signature at the foot of this
Agreement, Xxxxxxxx X. Xxxxxxxxx ("GUARANTOR"), the principal shareholder of
Seller, guarantees the prompt return to Purchaser of the Xxxxxxx Money (together
with interest, if any, payable to Purchaser), if at any time pursuant to this
Agreement Purchaser shall be entitled to same. Guarantor agrees that if the
Xxxxxxx Money (and applicable interest thereon) is not paid to Purchaser within
five (5) days of the date Purchaser becomes entitled thereto (the "RETURN
DATE"), interest shall accrue at the Default Rate and be payable by Guarantor
during the period commencing on the Return Date and continuing until paid.
15. SELLER COOPERATION.
(a) Reference is made to that certain Reciprocal Easement
Agreement, by and between P&C and Xxxxxxx X. Xxx, as Trustee of the K.V. Realty
Trust, dated as of August 2, 1979, and recorded in Book 3282, Page 112 in the
Office, as amended by First Amendment, dated as of August 21, 1979, and recorded
in Book 3284, Page 839 and Second Amendment, dated as of June 3, 1980 and
recorded in Book 3301, Page 1011 (the "REA"). The REA restricts the owners or
lessees of the Property and the adjoining parcels described in EXHIBIT E annexed
hereto and made a part hereof (the "ADJACENT PARCEL") from taking certain
actions, including without limitation, increasing the gross leasable area above
that shown on the Site Plan attached to the REA and changing the traffic
patterns as shown on the Site Plan attached to the REA (the "REA RESTRICTIONS").
(b) Seller hereby (i) irrevocably waives all rights arising
under the REA to object to construction upon and development of any portion of
the Adjacent Parcel, and (ii) consents to development of an outparcel portion of
the Property by the ground lessee under the Xxxxxxxxx Ground Lease (the "GROUND
LESSEE") (collectively, the "PROPOSED DEVELOPMENT") for retail purposes,
provided that Purchaser shall have consented to such Proposed Development, and
agrees to sign any necessary documents or agreements in connection therewith.
(c) During the term of this Agreement, Seller shall cooperate
fully with Purchaser and its affiliate and the Ground Lessee, at no cost to
Seller (other than Seller's general overhead or time devoted thereto by any of
Seller's employees, principals, officers or directors) in connection with
obtaining such approvals, permits, licenses, consents, authorizations, waivers,
variances, acknowledgements and the like which Purchaser, the Ground Lessee
and/or their affiliates may seek in connection with the Proposed Development,
and agrees to execute any necessary documents or agreements in connection
therewith. Additionally, Seller shall not object to the application by Purchaser
or the Ground Lessee of any subdivision approvals, zoning variances and
approvals, EPA approvals, environmental conservation approvals, board of health
approvals, department of transportation approvals, railroad approvals, curb cut
and access and egress approvals, on-and off-site highway and road approvals and
building permits which are a
11
condition to the commencement of construction of the Proposed Development.
(d) During the term of this Agreement, Seller shall consent to,
and execute any and all documents, instruments, amendments, covenants,
appurtenances and/or authorizations in connection with or relating to the
Proposed Development requested by Purchaser, its affiliate or the Ground Lessee,
which shall be necessary or desirable with respect to the Proposed Development.
16. CONDITIONS TO CLOSING. The obligation of Purchaser to consummate
the transaction contemplated by this Agreement is subject to the following
conditions precedent being fully complied with at or prior to the Closing, each
of which conditions may be waived or modified in whole or in part by Purchaser
in its sole discretion:
(a) TITLE. Seller shall have delivered to Purchaser title to
the Property as required by SECTION 6.
(b) OTHER DELIVERIES AND OBLIGATIONS. Seller shall have
delivered all items described in SECTION 8 and performed all other obligations
of Seller provided herein.
(c) REPRESENTATIONS. All representations and warranties of
Seller stated in this Agreement shall be true, correct and complete in all
material respects (individually and in the aggregate) as of the Closing.
(d) DOCUMENTS. All documents of Seller with respect to the
transactions contemplated herein shall be reasonably satisfactory to Purchaser's
counsel and to the Title Company as being in accordance with the terms of this
Agreement.
17. GENERAL.
(a) WAIVERS. The parties to this Agreement may waive any of the
conditions contained herein or any of the obligations of the other party
hereunder, but any such waiver shall be effective only if in writing and signed
by the party waiving such condition or obligation. Any past waiver as to any of
the terms, covenants, conditions or provisions of this Agreement shall not
operate as a future waiver of the same terms, covenants, conditions or
provisions or prevent the future enforcement thereof.
(b) BINDING EFFECT. Each and all of the terms, covenants,
conditions, agreements and stipulations contained herein shall be binding upon
and inure to the benefit of the parties hereto, their respective successors and
assigns and successors in interest.
(c) IDENTIFICATION. Whenever the singular number is used in
this Agreement and when required by the context, the same shall include the
plural, the plural the singular, and the masculine gender shall include the
feminine and neuter genders and the word "PERSON" shall include corporation,
firm, partnership or other form of association. The phrase "THE DATE HEREOF"
12
or words of similar import shall refer to the last date of execution hereof by
either one of the Purchaser or the Seller.
(d) CAPTIONS. The article and section titles, headings or
captions contained in this Agreement are inserted only for purposes of
identification and as a matter of convenience and for reference; in no way
define, limit, extend or describe the scope of this Agreement or the interest of
any provision hereof; and shall, accordingly, not be considered in construing,
defining, limiting or extending this Agreement as aforesaid.
(e) ENTIRE AGREEMENT. This Agreement constitutes and sets forth
the entire agreement between the parties relating to the subject matter hereof
and supersedes all prior or contemporaneous agreements and understandings of the
parties hereto and of their respective principals in connection therewith. No
promise, representation, warranty, covenant, agreement or condition not included
or expressed in this Agreement has been or is relied upon by either party hereto
nor shall the same be binding upon the parties hereto or shall affect or be
effective to interpret, change or restrict the provisions of this Agreement,
unless in writing, signed by the respective parties and dated contemporaneously
or subsequent to the date hereof. Furthermore, neither party hereto has made any
representations, warranties or covenants to the other party concerning any tax
benefits or tax treatment which may be given to the other party in connection
with the transaction contemplated hereunder. No modification or amendment of
this Agreement shall be of any force or effect unless made, in writing, and
executed by both Purchaser and Seller.
(f) APPLICABLE LAW. This Agreement shall be governed by,
interpreted under and construed and enforced in accordance with the laws of the
State of New York.
(g) COUNTERPARTS. This Agreement may be executed in one or more
counterparts and such counterparts shall, for all purposes, constitute one
agreement binding on the parties hereto, notwithstanding that the respective
parties are not signatory to the same counterpart or counterparts.
(h) SEPARABILITY OF PROVISIONS. If one or more of the
provisions of this Agreement or any application thereof shall be invalid,
illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions hereof, and any application thereof,
shall in no way be affected or impaired and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein.
(i) TIME FOR PERFORMANCE. Whenever under the terms of this
Agreement the time for performance falls on a Saturday, Sunday or legal holiday
in the State of Jersey, such time for performance shall be on the next day that
is not a Saturday, Sunday or legal holiday.
(j) LIENS. All sums paid on amount of this Agreement, including
the Xxxxxxx Money, are hereby made liens upon the Property.
(k) ATTORNEY'S FEES. In the event of any litigation arising out
of this
13
Agreement, the prevailing party shall be entitled to recover its
reasonable attorney's fees and costs.
[NO FURTHER TEXT ON THIS PAGE]
14
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day, month and year first above written.
SELLER:
MCANY OF KEARNY, INC.,
a New Jersey corporation
By:
-------------------------------------
PURCHASER:
DELBORNE LAND COMPANY LLC,
a Delaware limited liability company
By: DVL, Inc.,
a Delaware corporation,
Managing Member
By:
--------------------------------
Name:
Title: Authorized Signatory
XXXXXXXX X XXXXXXXXX hereby guarantees repayment of Xxxxxxx Money to Purchaser
in accordance with this Agreement, and agrees to the terms and conditions of
Section 14 hereof.
Xxxxxxxx X. Xxxxxxxxx
15
EXHIBIT A
DESCRIPTION OF PROPERTY
(Attached hereto)
EXHIBIT B
PERMITTED ENCUMBRANCES
1. The Xxxxxxxxx Ground Lease and the Kmart Lease;
2. All presently existing and future liens for unpaid real estate
taxes and water and sewer charges not due and payable as of the date of the
Closing, subject to adjustment as hereinbelow provided.
3. All present and future zoning, building, environmental and other
laws, ordinances, codes, restrictions and regulations of all governmental
authorities having jurisdiction with respect to the Property and all zoning
variances and special exceptions, subject to Article 15.
4. All covenants, restrictions and rights and all easements and
agreements, whether or not of record, for the erection and/or maintenance of
water, gas, steam, electric, telephone, sewer or other utility pipelines, poles,
wires, conduits or other like facilities, and appurtenances thereto, over,
across and under the Property serving only the Property.
5. Any state of facts an accurate survey of the Property may
disclose, provided same does not render title unmarketable.
EXHIBIT C
FORM OF DEED
Record and return to:
Solomon and Xxxxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx Prepared by:
----------------------
----------------------
DEED
THIS DEED ("DEED") made as of ___________, 2000, by MCANY OF KEARNY,
INC., a New Jersey corporation having an office c/o MCARED Realty, 00 Xxxxxxx
Xxxx Xxxx, Xxxxxxxx X, Xxxxx X-000X, P.O. Drawer C, Woodbury, Connecticut 06798
("GRANTOR") to DELBORNE LAND COMPANY LLC, a Delaware limited liability company,
having an office c/o DVL, INC., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("GRANTEE").
CONSIDERATION AND CONVEYANCE. Grantor grants and conveys to Grantee all
of its right, title and interest in and to all of the real property and
improvements located in the Town of Kearny, County of Xxxxxx, State of New
Jersey as more particularly described in EXHIBIT A attached hereto and made a
part hereof (the "PROPERTY"), but excluding the land, for Ten Dollars ($10.00)
Dollars and other good and valuable consideration the receipt and sufficiency of
which being hereby acknowledged by Grantor.
MUNICIPAL TAX LOT AND BLOCK OR ACCOUNT NUMBER. The Property is designated
as Xxxxx 00, Xxx 0, located in the Town of Kearny, County of Xxxxxx, State of
New Jersey.
RECEIPT OF CONSIDERATION. Grantor has received the full payment from
Grantee.
SIGNATURE OF GRANTOR. Grantor executes this Deed on the day first set
forth above.
GRANTOR:
MCANY OF KEARNY, INC.,
a New Jersey corporation
By:
--------------------------------
Name:
Title:
ACKNOWLEDGMENT
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _______________ 2000, before me, the undersigned, a
Notary Public in and for said State, personally appeared ______________________,
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature(s) on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument; that the individual is known to me and did not
swear an oath.
Notary Public (SEAL)
EXHIBIT D
FORM OF ASSIGNMENT OF XXXXXXXXX GROUND LEASE
Record and return to:
Solomon and Xxxxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx Prepared by:
-----------------------------
ASSIGNMENT AND ASSUMPTION OF LEASE
KNOW ALL MEN BY THESE PRESENTS, that MCANY OF KEARNY, INC., a New Jersey
corporation, having an office c/o MCARED Realty, 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxx
X, Xxxxx X-000X, P.O. Drawer C, Woodbury, Connecticut 06798 ("ASSIGNOR"), for
and in consideration of TEN ($10.00) DOLLARS and other good and valuable
consideration paid by DELBORNE LAND COMPANY LLC, a Delaware limited liability
company, having an office c/o DVL, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("ASSIGNEE"), the receipt and sufficiency of which being hereby
acknowledged, hereby assigns, transfers and sets over unto Assignee, and unto
Assignee's successors and assigns, from and after the date hereof (the "CLOSING
DATE"), all of Assignor's right, title and interest as lessor in, to and under
that certain agreement of lease, dated as of December 30, 1980, between
Assignor, as landlord, and Cygnus 77 Associates, a Pennsylvania limited
partnership, as tenant, a memorandum of which lease was recorded September 4,
1981 in Book 3330, Page 616 in the Xxxxxx County Recorder's Office (the "GROUND
LEASE"), which Ground Lease affects that certain parcel of real property more
particularly described in EXHIBIT A annexed hereto and made a part hereof (the
"PREMISES"), together with all rents, guarantees, if any, of the obligations of
the tenant thereunder and any security deposits, if
any, but only to the extent presently held by Assignor as set forth on EXHIBIT B
annexed hereto and made a part hereof (the "SECURITY DEPOSIT"), subject to the
terms and conditions of the Ground Lease.
TO HAVE AND TO HOLD THE SAME unto Assignee, its successors and assigns,
forever.
Assignee for itself, its successors and assigns, hereby assumes all of
the rights, duties and obligations of the lessor under the Ground Lease arising
from and after the date hereof.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Assumption of Lease as of ______________________, 2000.
ASSIGNOR:
MCANY OF KEARNY, INC.
a New Jersey corporation
By:
---------------------------------
Name:
Title:
ASSIGNEE:
DELBORNE LAND COMPANY LLC,
a Delaware limited liability company
By: DVL, Inc.,
a Delaware corporation,
Managing Member
By:
------------------------------
Name:
Title: Managing Member
ACKNOWLEDGMENT
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of ______________________ in the year 2000, before me,
the undersigned, personally appeared _______________________________, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he/she executed the same in his/her capacity, and that by his/her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Notary Public (SEAL)
ACKNOWLEDGMENT
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of _________________ in the year 2000, before me, the
undersigned, personally appeared _________________________, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
she/he executed the same in her/his capacity, and that by her/his signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
Notary Public (SEAL)
EXHIBIT A
The Premises
(Property Description)
[Attached hereto]
EXHIBIT B
Security Deposit
EXHIBIT E
ADJACENT PARCEL
(Attached hereto)
