AGREEMENT OF SALE
AGREEMENT made this 14th day of November, 2003 by and between ARROW
ELECTRONICS, INC., a New York corporation, having an office at 00 Xxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxx 00000 ("Seller") and Interpharm Holdings, Inc., a Delaware
corporation, having an office at 00 Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000
("Purchaser").
WITNESSETH:
WHEREAS, Seller is the fee owner of that certain parcel of land ("Land")
located at and known as 00 Xxxxxxxxxx Xxxx, Xxxxxxx, XX and being more
particularly described in Exhibit A annexed hereto and made a part hereof, and
all easements, rights of way, privileges, appurtenances and other rights and
benefits, if any, belonging or in any way related to such land (collectively,
"Easements"), together with all buildings, structures and improvements thereon,
if any (collectively, "Improvements"; the Land, Easements and Improvements being
hereinafter collectively referred to as the "Premises"); and all fixtures
attached to the Land or the Improvements listed on Exhibit B (collectively the
"Fixtures");
WHEREAS, Seller desires to sell and convey, and Purchaser agrees to
purchase, all of Seller's right, title and interest in and to the Premises and
the Fixtures;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. Sale of Premises and Fixtures.
(a) Seller hereby agrees to sell and convey, and Purchaser hereby
agrees to purchase, all of the Seller's right, title and interest in and to the
Premises and the Fixtures.
(b) With respect to the Premises, this sale includes all right,
title and interest, if any, of Seller in and to any land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the Land to
the center line thereof and all right, title and interest of Seller in and to
any award made or to be made in lieu thereof and in and to any unpaid award for
damage to the Premises by reason of change of grade of any street. With respect
to the Fixtures, the sale includes all of Seller's assignable contract rights
with respect thereto, including warranties, warranty claims, maintenance and
service contracts listed and described in Exhibit C.
2. Purchase Price. The purchase price is Nine Million Two Hundred and
Fifty Thousand Dollars ($9,250,000) ("Purchase Price"), payable as follows:
(a) Nine Hundred Twenty Five Thousand Dollars ($925,000) ("Deposit")
upon the signing of this Agreement, by Purchaser's delivering to Xxxxxxx Xxxx,
as "Escrow Agent", a check, subject to collection (non-payment of which check in
due course will give Seller the option of canceling this Agreement) in that
amount, the receipt of which is hereby acknowledged, to be held in escrow in
accordance with the terms of the Escrow Agreement annexed as Exhibit D; and
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(b) Eight Million Three Hundred Twenty Five Thousand Dollars
($8,325,000), on the Closing Date (as hereinafter defined), by official bank
check(s) or good certified check(s) of Purchaser or Purchaser's mortgage
lender(s), drawn on a bank which is a member of the New York Clearinghouse,
payable directly to the order of Seller or by wire transfer of immediately
available federal funds to an account or accounts of Seller as directed by
Seller, payable directly to the order of Seller.
(c) Seller shall satisfy, or at its option, use or direct Purchaser
to apply the necessary portion of the balance of the Purchase Price to satisfy
any mortgages, mechanics' liens, liens for judgments and taxes, and other liens
or encumbrances other than Permitted Encumbrances that were placed against the
Premises or the Fixtures as a direct result of actions or omissions of Seller
and that can be satisfied and discharged by payment of a fixed" and determinate
sum of money.
3. Title to the Premises.
(a) Seller shall sell and deliver good and marketable title to the
Premises and the Fixtures, subject to the following (which are hereinafter
collectively referred to as the "Permitted Encumbrances"):
(i) All liens, encumbrances, covenants, easements,
restrictions, claims, reversions or other agreements or matters which are more
particularly set forth on Exhibits A-2 annexed hereto and made a part hereof;
(ii) Rights now of record of any utility company to construct,
maintain and operate existing lines, wires, poles, cables, distribution boxes
and appurtenances thereto, on, under or across the Premises, provided that they
do not interfere with the use or occupancy of the Premises as currently allowed
of right under applicable zoning;
(iii) Rights contained in instruments of record, if any, so
far as the same may be of present force or effect, in favor of any public or
quasi-public utility, provided that they do not (i) cause title to be
unmarketable or (ii) prohibit or materially restrict the use or occupancy of the
Premises or the existing Improvements as currently allowed of right under
applicable zoning;
(iv) Building and zoning restrictions, ordinances and
regulations affecting the Premises heretofore or hereafter adopted by the state,
county, city, town or village in which any portion of the Premises lie or by any
other governmental authority having jurisdiction thereof, and all amendments or
additions thereto now in effect or which will be in force and effect on the
Closing Date provided that they do not cause title to be unmarketable or
restrict the use or occupancy of the Premises or the existing Improvements as
currently used and occupied;
(v) Real estate taxes, ad valorem personal property taxes,
water rates, water frontage charges and storm sewer and sanitary sewer taxes (if
any), and water meter and sewer rent (if any) charges based thereon and interest
and penalties thereon for the fiscal tax period or real estate tax year in which
the Closing occurs, subject to adjustment as hereinafter set forth;
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(vi) Unpaid franchise or other taxes of any corporation in the
chain of title, provided, that on the Closing of title, Seller makes such
deposit or guarantee as might be required by Purchaser's title insurance company
and that Purchaser's title insurance company issues to Purchaser and any
institution providing or facilitating financing to Purchaser a policy of title
insurance, insuring against the collection thereof out of the Premises; and
(vii) Any state of facts which an accurate survey or personal
inspection of the Premises would show, provided the same does not (i) cause
title to be unmarketable or (ii) prohibit or materially restrict the use or
occupancy of the Premises or the existing Improvements as currently allowed of
right under applicable zoning.
4. Apportionments.
(a) The following items are to be apportioned between Seller and
Purchaser as of midnight preceding the Closing Date:
(i) Real estate taxes are to be apportioned on the basis of
the fiscal year for which assessed. If the Closing Date shall occur before the
tax rate is fixed, the apportionment of taxes shall be upon the basis of the tax
rate for the next preceding year applied to the latest assessed valuation and
shall be readjusted on the basis of the actual tax xxxx, promptly after the
receipt thereof; which obligation shall survive the Closing.
(ii) Water rates, water frontage charges and storm sewer and
sanitary sewer taxes. If there are water meters on the Premises, any unfixed
water charges shall be apportioned on the basis of the water meter bills based
upon a reading taken not more than 30 days prior to the Closing Date.
(b) In the event that the apportionments hereinabove provided for
result in a credit balance to Purchaser, the same shall constitute a credit to
the cash balance of the Purchase Price due at Closing. In the event that the
apportionments hereinabove provided for result in a credit balance to Seller,
Purchaser shall pay the amount thereof to Seller at Closing as part of, and in
addition to, the Purchase Price, by check for any amount less than $10,000 or by
official bank check or certified check for amounts greater than $10,000.
(c) Any items which cannot be apportioned at the Closing shall be
apportioned as soon as practicable after the Closing Date.
(d) The provisions of this Paragraph 4. shall survive the Closing
Date, but no later than one (1) year after the Closing Date.
5. Liens.
(a) All taxes, water rates or charges, sewer rents and assessments,
plus interest and penalties which on the Closing Date are liens upon the
Premises, and which Seller is obligated to pay and discharge, and all unpaid
balances, together with accrued interest thereon, on contracts, chattel
mortgages or conditional bills of sale (on file on the Closing Date), or any
other property constituting part of the Premises or the Fixtures, will be
allowed to Purchaser out of the Purchase Price, to be deducted from the balance
of the Purchase Price due at the Closing (subject to the provision for
apportionment of taxes, water rates and sewer rents herein contained).
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(b) If, on the Closing Date, the Premises shall be affected by a
lien or encumbrance which, pursuant to the provisions of this Agreement, is
required to be discharged or satisfied by Seller, Seller shall (i) deliver
proper instruments of satisfaction or discharge to Purchaser on the Closing
Date, (ii) make proper allowance to Purchaser for recording charges thereon, and
(iii) direct Purchaser to pay at the Closing Date by Bank or certified checks,
any amount, not exceeding the cash balance of the Purchase Price, required to
discharge any such lien or liens, and the amount so advanced shall be credited
against the balance of the Purchase Price due at the Closing. Purchaser agrees
that not less than two days prior notice from Seller shall be sufficient for the
purpose of Purchaser's compliance with clause (iii).
6. Representations, Warranties and Covenants of the Parties. In order to
induce the parties to enter into this Agreement and to perform its respective
obligations hereunder, each party represents warrants and covenants to and
agrees with the other that:
(a) Each party (i) is a corporation, duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and is in good standing and, where applicable, qualified to do business in the
State of New York, (ii) has the full power and authority to purchase and sell,
as appropriate, the Premises and the Fixtures, and to execute, deliver and
perform this Agreement and all documents contemplated hereby, and (iii) has
taken all actions and obtained all consents and approvals required for the
consummation of the transactions contemplated by this Agreement, including all
such actions and consents required pursuant to any law and said party's
corporate by-laws in connection with this Agreement.
(b) Neither the execution, nor the delivery of, nor the performance
under this Agreement or any other document executed and delivered by it (both
contemporaneously herewith or at the Closing) in connection with the transaction
is precluded by, will conflict with, result in a breach of or violate, any
provision of (iv) any existing federal, state, local or other governmental or
quasi-governmental law, statute, ordinance, restriction, rule or regulation, or
(v) any judgment, order decree, writ or injunction of any court or governmental
department, commission, board, bureau, agency or instrumentality applicable to
Purchaser.
(c) There is no action, arbitration, or other proceeding, or
investigation (zoning or otherwise) pending, or to a representing party's
knowledge, threatened against or relating to the parties which would impact on
or interfere with a party's ability to execute, deliver and perform its
respective obligations hereunder and consummate the transactions contemplated by
this Agreement.
7. Closing. The closing ("Closing") shall be held at the offices of Seller
at 00 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, or in the offices of the attorney
for Purchaser's lender if Purchaser's lender so requires, at 10:00 A.M. on or
about March 31, 2004 ("Closing Date").
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8. Seller's Responsibilities. (a) Seller shall deliver the Premises in
broom clean condition, free of debris, vacant and not subject to any tenancies
or other rights of occupancy. Prior to said delivery, Seller shall have removed
all non-structural racking (that is, all racking not presently within the
automated storage and retrieval area, as identified by the cross hatched area on
Exhibit E annexed hereto, and all shelving which supports mezzanine floors) and
all trade equipment. The parties agree that the ten robot cranes, bin boxes, and
all shelving, rack, rail and post structures which are and have been a part of
the automated storage and retrieval system in the area shown on Exhibit E may,
together with all existing mezzanines and shelves supporting them, may, at
Seller's option be left in place, in whole or in part, by Seller upon delivery
of the Premises, Between the date hereof and the Closing Date, Seller shall
maintain the Premises and the Fixtures in their existing condition, consistent
with past practice.
(b) If Purchaser requests, Seller shall make a written request to
the holder or holders of any existing mortgage to assign the same to Purchaser's
lender for the purposes of consolidating it with Purchaser's mortgage. Seller
shall permit Purchaser to communicate with such mortgage holders and coordinate
with them in connection with obtaining such assignments.
(c) Seller shall use its reasonable best efforts to deliver true
copies of all contracts relating to the use or maintenance of the Premises or
the Fixtures, all of which are listed and described on Exhibit C. If requested,
Seller will request the other party to each such contract to assign the same to
Purchaser, or at Purchaser's instructions, Seller will terminate any such
contracts which may be terminated without liability or financial penalty
effective at the Closing Date.
(d) Seller shall deliver all permits, approvals, and/or certificates
of occupancy for any alternations or improvements Seller made or performed to
any buildings or Improvements located on the Premises, and shall close or
otherwise remedy any open building permits.
9. Closing Deliveries.
(a) At the Closing, Seller shall deliver to Purchaser the following:
(i) Bargain and Sale Deed with Covenants Against Grantor's
Acts ("Deed"), with the covenant required by Section 13 of the New York Lien
Law, which shall convey the Premises to Purchaser subject to the Permitted
Encumbrances, in proper form for recording;
(ii) Evidence of Compliance with FIRPTA as provided in
Paragraph 31;
(iii) Any surveys, site plans, building plans or blue prints,
specifications (including specifications with respect to Fixtures and facility
equipment maintenance logs and reports and other documents relating to the
Premises, to the extent the same are in the possession of Seller and kept in the
normal course of Seller's business; and
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(iv) All keys and security codes to all entrance doors to, and
equipment and utility rooms located in, the Premises, with keys properly tagged
for identification.
(b) At the Closing, Purchaser shall deliver to Seller the cash
portion of the Purchase Price payable at the Closing.
(c) At the Closing, the parties shall deliver to each other the
following:
(i) The New York State Form TP-584, 7/03 revision, with
Seller's payment by check in the amount of the New York State Real estate
Transfer Tax due in connection therewith;
(ii) The New York State Board of Equalization & Assessment
Real Estate Transfer Report;
(iii) Evidence of corporate authority to execute and deliver
this Agreement and to perform the other transactions contemplated hereby; and
(iv) Such other documents as may be reasonably required by the
title company or any governmental authority or agency, to effectuate the closing
of the transaction contemplated hereby.
10. Default.
(a) If Purchaser shall default under the terms of this Agreement,
Seller shall retain the Deposit as liquidated damages, whereupon this Agreement
shall be deemed canceled and neither party shall have any further claims and/or
rights against the other, except for any claims pursuant to Paragraph 17 hereof
entitled "Brokerage," and the lien, if any, of Purchaser against the Premises
shall cease. Purchaser also shall forfeit the Deposit to Seller if Purchaser
elects to terminate this Agreement in accordance with Paragraph 34(B). The
parties agree that actual damages in the event of a failure by Purchaser to
accomplish the Closing by reason of its default or by terminating under
Paragraph 34(B) would be impossible to ascertain and that the amount of the
Deposit is a reasonable estimate thereof, was freely negotiated and is otherwise
reasonable in the circumstances.
(b) If without being in default and after having made a diligent and
good faith effort to do so, Seller shall be unable to convey title on the
Closing Date as provided in this Agreement or otherwise be unable to comply with
this Agreement, its sole liability and obligation hereunder shall be to return
or cause to be returned the Deposit to Seller and Seller shall reimburse
Purchaser for any non-refundable title, survey and bank fees or expenses and due
diligence expense relating to its Investigations (defined below) up to $30,000
in the aggregate, whereupon this Agreement shall be deemed canceled and neither
party shall have any further claims and/or rights against the other, except for
any claims pursuant to the Paragraph entitled "Brokerage" hereof, and the lien,
if any, of Purchaser against the Premises shall cease. Purchaser may,
nevertheless, elect to accept such title as Seller may be able to convey,
without reduction of the Purchase Price or any credit or allowance against the
same and without any other liability on the part of Seller. The acceptance of
the Deed by Purchaser shall be deemed to be a full performance and discharge of
every agreement and obligation on the part of Seller to be performed pursuant to
the provisions of this Agreement.
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(c) Subject to the limitations described in Paragraph 22, if Seller
shall default in its obligations under this Agreement, Purchaser shall have all
remedies available under applicable law.
11. Condition of the Premises. Subject to Purchaser's inspection and
examination of the Premises as provided in Paragraph 32 and the other
requirements of this Agreement, Purchaser agrees to acquire the Premises "as
is", in such condition as the same may be on the date hereof, subject, however,
to reasonable use, wear, tear, casualty and natural deterioration between the
date hereof and the Closing Date. Seller has not and does not make any
representations as to the physical condition, expenses, value of the Land or the
Improvements, availability of sewage connections, adequacy or fitness for use of
any mechanical equipment or any other matter or thing affecting or related to
the Premises or the transaction, which might be pertinent in considering the
making of the purchase of the Premises or entering into this Agreement except as
herein specifically set forth, and Purchaser hereby expressly acknowledges that
no such other representations have been made. Seller is not liable or bound in
any manner by expressed or implied warranties, guaranties, promises, statements,
representations or information pertaining to the Premises, made or furnished by
any real estate broker, agent, employee, servant or other person representing or
purporting to represent Seller, unless such warranties, guaranties, promises,
statements, representations or information are expressly and specifically set
forth herein. Seller further agrees that all Fixtures (including the HVAC,
plumbing and electrical systems, but excluding the automated storage and
retrieval system) on the Premises will be in reasonable working order on the
date of Closing, and the roof on the buildings free of leaks. Without limiting
the foregoing, Purchaser acknowledges that the shelving, rack, rail and post
structures which are and have been a part of the automated storage and retrieval
system within the Premises and existing mezzanines and support shelving may, at
Seller's option, be left in place, in whole or in part, by Seller upon delivery
of the Premises; that such structures may be, in whole or in part, load-bearing
or otherwise required for the structural integrity of the Premises; and that the
possibility of the removal of such structures and the costs thereof formed a
part of the negotiation of the Purchase Price.
12. Title Report. Purchaser shall within three (3) business days after
Seller delivers to Purchaser two manually signed, fully executed copies of this
Agreement, order a title insurance policy from a title insurance or abstract
company authorized to do business in the State of New York. Promptly after
receipt of a title report and any continuation searches from said company,
Purchaser shall forward copies of such report to Seller's attorneys or arrange
for same to be sent directly by the title or abstract company. If Seller is
required to remove any objections, Seller shall be entitled to a reasonable
adjournment, not to exceed 60 days, of the Closing Date set forth herein,
whereupon Seller shall have until such new Closing Date to dispose of any such
objections, at no cost or expense to Purchaser. Any attempt by Seller to cure an
objection shall not per se be construed as an admission by Seller that such
objection is one that will give Purchaser the right to cancel this Agreement.
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13. Removal of Objections. Except as otherwise set forth herein, Seller
may, but shall not be required to, bring any action or proceeding, or incur any
expense or expenses exceeding $45,000 in the aggregate, in order to correct any
inadvertent, correctable misrepresentations, remove any violations against the
Premises that Purchaser's Investigations may reveal, or remove any objections to
title that Purchaser has not agreed herein to accept. Seller shall be required
to expend up to $45,000 in the aggregate for such purposes.
14. Real Estate Tax Proceedings. Seller is hereby authorized to continue
any proceeding or proceedings now pending for the reduction of the assessed
valuation of the Premises, and to try or settle the same in Seller's discretion,
but with respect to any tax year included within Purchaser's period of
ownership, with Purchaser's approval, which shall not unreasonably be withheld
or delayed. The net refund of taxes, if any, for any tax year for which
Purchaser shall be entitled to share in the refund shall be divided between
Seller and Purchaser in accordance with the apportionment of taxes pursuant to
the provisions hereof, after deducting there from a pro rata share (based upon
Purchaser's percentage interest in the proceeds of any judgment or settlement)
of all expenses, including counsel fees, necessarily incurred in obtaining such
refund, the allocation of such expenses to be based upon the total refund
obtained in such proceeding and in any other proceeding simultaneously involved
in the trial or settlement. Purchaser shall deliver to Seller, upon demand,
receipted tax bills and canceled checks used in payment of such taxes and shall
execute any and all consents or other documents, and do any act or thing
necessary for the collection of such refund by Seller.
15. Personal Property. No representation or warranty is made by Seller as
to the quality, kind or condition of any Fixture or article of personal property
attached or appurtenant to or used in connection with the Premises or other
personal property located therein and sold hereunder. The parties mutually agree
that no part of the Purchase Price shall be deemed to have been paid by
Purchaser for such personal property. However, if any Federal, state or local
governmental body deems any part of the Purchase Price to have been paid for any
personal property transferred hereunder, Purchaser agrees to pay to Seller on
the Closing Date or subsequent thereto the amount of any sales tax payable in
connection herewith. The provisions of this Paragraph shall survive the Closing
Date for a period of one year.
16. Expenses. Seller shall pay all transfer taxes and recording fees for
Seller's documents and Purchaser shall pay all mortgage recording tax, mortgage
recording fees, recording costs for Purchaser's documents and Purchaser's title
insurance premiums (including he cost of preparing or updating surveys of the
Premises as well as the cost of any special endorsements or affirmative
assurances), payable with respect to the sale and conveyance of he Premises to
Purchaser.
17. Brokerage. Each party represents and warrants to the other that no
broker or person acting as such was instrumental or had any part in bringing
about the transaction other than CB Xxxxxxx Xxxxx. Each party covenants and
agrees to indemnify and hold the other harmless from and against any loss, cost,
damage, expense (including reasonable attorneys' fees and expenses) or liability
resulting from any claims that may be made against the indemnified party by any
broker or other person so acting, other than CB Xxxxxxx Xxxxx, claiming a fee or
other compensation as a result of the transaction arising by, through or on
account of any act or purported act of the indemnifying party or its
representatives. Seller will pay the commissions due CB Xxxxxxx Xxxxx pursuant
to separate agreements. The provisions of this paragraph shall survive the
Closing Date.
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18. Risk of Loss. Between the date hereof and the Closing Date, the risk
of ownership and loss of the Premises shall belong solely to Seller, except as
hereinafter provided. If, prior to the Closing Date, all or a substantial
portion of the Premises is condemned or threatened to be condemned or taken by
or threatened to be taken by eminent domain, or damaged by fire or by any other
cause of any nature, Seller shall notify Purchaser of such taking or damage.
After receipt of notice of such condemnation, taking or damage (from Seller or
otherwise), Purchaser shall have the option, to be exercised within twenty (20)
business days following receipt of such notice, either (a) to require Seller to
convey the Premises on the Closing Date to Purchaser in its damaged condition,
upon and subject to all of the other terms and conditions of this Agreement, and
to assign to Purchaser all of Seller's right, title and interest in and to any
claims Seller may have under the insurance policies, condemnation awards and/or
any causes of action with respect to such condemnation or taking of or damage to
the Premises and to pay Purchaser all payments theretofore made under such
insurance policies or by such condemning authorities or (b) to terminate this
Agreement by giving notice to Seller, whereupon this Agreement shall be
terminated and Seller shall return, or cause to be returned to Purchaser, the
Deposit and thereafter neither party shall have any further rights or
obligations to the other, except pursuant to the provisions of Paragraph 16
hereof. Seller shall maintain hazard insurance of the type and amount
customarily maintained for buildings similar to the Premises and if Seller fails
to maintain such insurance and Purchaser should become entitled to an assignment
of insurance proceeds as provided above, Seller shall pay to Purchaser a sum
equal to the amount of such proceeds that would have been paid had Seller
maintained the required insurance. In the event that Purchaser shall fail to
make the election provided in the preceding sentence within the prescribed time
period, Purchaser shall be conclusively deemed to have elected the option set
forth in clause (a) of the preceding sentence. For purposes of this Paragraph, a
substantial portion of the Premises shall mean, in the event of condemnation or
taking by eminent domain, a taking which (i) will result in a condemnation award
in excess of $100,000 (ii) materially reduces parking or staging areas or
changes or limits access to the Premises such that use of parking or staging
areas are materially impaired, (iii) has an effect which prohibits or restricts
the use of the existing improvements or interferes with the use of the Premises
as an office or warehouse or for light industrial or light manufacturing use,
and, in the event of damage by fire or any other cause, where the cost to repair
and restore the same to its condition immediately preceding such fire or other
casualty would exceed $100,000. If, prior to the Closing Date, an unsubstantial
portion of the Premises is condemned, taken by eminent domain, or damaged by
fire or by any other cause of any nature, this Agreement shall continue in full
force and effect without abatement of the Purchase Price or credit or allowance
of any kind or any claim or right of action against Seller and, at the Closing,
Seller shall assign to Purchaser any and all right, title and interest of Seller
in and to any insurance policies, condemnation awards and/or any causes of
action with respect to such condemnation or taking of or damage to the Premises.
Seller represents that there are no pending or, to its knowledge, contemplated
condemnation or eminent domain proceedings affecting the Premises or any part
thereof.
19. Notices. All notices, consents, demands, waivers, approvals and other
communications made hereunder or in connection therewith shall be in writing and
shall be given by mailing the same addressed to the party for whom it is
intended, at the address set forth above, by United States certified or
registered mail, return receipt requested, postage prepaid, or by a recognized,
national overnight courier. Copies of all notices to Seller shall be sent, as
provided herein, to Arrow Electronics, Inc., 00 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000 attention: Director, Real Estate, with a separately transmitted copy to
Xxxxx Xxxxx, VP Legal affairs at the same address. Copies of all notices to
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Purchaser shall be sent, as provided herein, to 00 Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000, attention Xxxxxx X. Xxxxxxx, with a copy to Xxxxxxx Xxxxxxxxx, Esq., at
Xxxxxx Xxxxxx XXX, XXX Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000- 0111. Either party may
designate by notice to the other given as hereinabove provided a new address to
which notices shall thereafter be delivered or mailed. Notices given by mail
shall be effective five (5) business days after mailing and notices given by
overnight courier on the business day following delivery of same to the courier,
except notices of change of address which shall be effective upon receipt.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
21. Assignment. No assignment or attempted assignment of any kind (by
operation of law or otherwise) by Purchaser of this Agreement, its rights
hereunder or its interests in any sums paid pursuant hereto, shall be valid or
enforceable against Seller, except that Purchaser may assign its rights under
this Agreement (without relieving Purchaser of its obligations hereunder) to a
wholly owned subsidiary.
22. Liability of Seller. Seller shall not have any liability to Purchaser
with respect to any of Seller's obligations under this Agreement, or otherwise,
in excess of the liability that Seller would have had if the only asset of
Seller were the Premises, and in no event shall either party be liable to the
other for any incidental, consequential or indirect damages of any kind or
nature. The parties agree that liquidated damages under Paragraph 10(a) hereof
shall be treated as direct damages and not limited by the foregoing sentence.
23. Fuel. Purchaser shall reimburse to Seller the cost of all oil or other
fuel on the premises on the Closing Date. The amount of fuel shall be measured
by a representative of the oil company and the price to be paid therefore is to
be the then prevailing price of the company which supplied same, plus sales
taxes thereon. Seller shall deliver at Closing a written statement from the oil
company.
24. No Recording. This Agreement shall not be recorded by Purchaser and
any attempted recordation by Purchaser shall be void and constitute a default
hereunder.
25. Right of Inspection. Purchaser and its agents shall have the right at
reasonable times and from time to time to inspect the Premises, provided that
reasonable written notice thereof shall be given to Seller as herein provided.
26. Further Documents. Each party to this Agreement agrees to execute,
acknowledge and deliver or cause to be delivered, such other deeds, assignments,
affidavits, certificates and other instruments and documents as may be
reasonably necessary and required by the other party from time to time to
confirm and carry out the intent and purpose of this Agreement and the
performance of each party's obligations under the terms of this Agreement, in
such form as shall be reasonably satisfactory to counsel for both parties.
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27. Benefits and Obligations; No Third Party Beneficiary. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Notwithstanding anything to the
contrary contained herein, no party other than the parties hereto or their
respective successors and permitted assigns shall have any right or benefit
herein, including, without limitation, the right to insist upon or enforce
against either Seller or Purchaser the performance of all or any of their
respective obligations hereunder and no such third party shall be deemed to have
received any benefit as a result of any of the revisions of this Agreement.
28. Remedies Cumulative; No Waiver. Each right, power and remedy provided
for herein or now or hereafter existing at law, in equity, by statute or
otherwise shall be cumulative and concurrent and shall in addition to every
other right, power or remedy provided for herein or now or hereafter existing at
law, in equity, by statute or otherwise, and the exercise or beginning of the
exercise or the forbearance of exercise by a party hereto of any one or more of
such rights, powers or remedies shall not preclude the simultaneous or later
exercise by such party of any or all of any such rights, powers or remedies. No
waiver by a party hereto of any breach of this Agreement or of any warranty or
representation made hereunder by the other party shall be deemed to be a waiver
of any other breach of any kind or nature and no acceptance of payment or
performance by a party after such breach by the other party shall be deemed a
waiver of any breach of this Agreement or of any representation or warranty by
such other party. No failure on the part of a party to exercise any right it may
have hereunder by law upon the default of the other party and no delay in the
exercise of such right shall prevent the exercise thereof at any time that such
defaulting party continues to be in default, and no such failure to delay shall
operate as a waiver of any default, or as a modification of any of the
provisions of this Agreement.
29. Limitations on Survival of Representations, Warranties, Covenants and
Other Obligations. No representations, warranties, covenants or other
obligations of Seller set forth in this Agreement shall survive the Closing, and
no action based thereon shall be commenced after the Closing except as otherwise
specifically set forth herein.
30. Miscellaneous. This Agreement, including Exhibits A, B, C, D and E
annexed hereto, contain the entire agreement between the parties hereto with
respect to the sale of the Premises and supersedes all prior understandings, if
any, with respect thereto. All oral or written prior statements, representations
or promises, if any, and all prior negotiations and agreements are superseded by
this Agreement and merged herein. If any term or provision of this Agreement or
any application thereof shall be invalid or unenforceable, the remainder of this
Agreement and any other application thereof shall not be affected thereby. This
Agreement may not be modified, terminated or amended nor any of its provisions
waived except by a written instrument signed by the party to be charged or by
its agent duly authorized in writing. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and shall
constitute but one and the same instrument. The captions and headings used in
this Agreement are for convenience of reference only and shall not affect the
construction to be given any of the provisions hereof. The delivery of the Deed
by Seller, and the acceptance thereof by Purchaser, shall be deemed the full
performance and discharge of every obligation on the part of Seller to be
performed hereunder, except for obligations expressly stated to survive the
Closing.
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31. FIRPTA. At Closing the Seller and Purchaser agree to execute and
deliver as directed, any instrument, affidavit or statement, or to perform any
act reasonably necessary to carry out the provisions of the Foreign Investment
in Real Property Tax Act.
32. Investigation Contingency. (A) During the period beginning with the
date Seller delivers to Purchaser two (2) manually signed, fully executed copies
of this Agreement, and ending on the date that is forty-five (45) days from that
date (the "Investigation Period"), Purchaser may, at Purchaser's sole cost and
expense, conduct any and all investigations, inspections and examinations of the
Premises and the Fixtures, including a violation search, title review,
structural engineering study, and a phase one environmental audit (but not a
phase two) of the Premises ("Investigations"). If the result of Purchaser's
Investigations reveals (i) any Environmental Condition (defined below), (ii)
violations which Seller does not agree at its sole cost and expense to remedy,
discharge and remove of record or (iii) any structural defect, damage or unsafe
or unsound condition concerning any of Improvements which Seller does not agree
at its sole cost and expense to remedy to the reasonable satisfaction of
Purchaser's professional engineer, in its sole discretion, Purchaser shall have
the right to cancel this Agreement by exercising such right of cancellation in
writing and delivering said notice of cancellation to Seller within the
Investigation Period. If this Agreement is so canceled, then the Deposit and all
other sums paid hereunder shall be returned to the Purchaser, and thereafter,
all rights of the parties hereunder shall cease. If Purchaser fails to give such
notice of cancellation to Seller within the time period provided therefore,
then, in that event, the contingency of this Paragraph shall cease and this
Contract shall be firm and unconditional except to the extent otherwise set
forth in this Contract.
(B) "Environmental Conditions" means any condition, which constitutes a
violation of applicable environmental law, or requires reporting, investigation
and/or remediation activities due to the presence of Hazardous Materials or the
reasonable suspicion of such presence. "Hazardous Materials" means any
substance, waste or material regulated under by any applicable environmental
laws, and any substance that poses a threat to human health or environment.
33. Hazardous Materials. Seller has received no notice nor otherwise has
knowledge of the presence of hazardous materials on the Premises other than
those that might ordinarily be kept or used at a facility such as the Premises
in compliance with all applicable law. Seller makes no other or further
representation concerning the use, presence or absence of hazardous materials or
contaminants of any kind on, in or under the Premises.
34. Town of Brookhaven XXX. (A) Purchaser's obligations under this
Agreement are subject to Purchaser's obtaining by December 30, 2003 written
notice that the Town of Brookhaven Industrial Development Agency (the "XXX") has
adopted an inducement resolution evidencing the intention of the XXX to provide
certain financial assistance with respect to Purchaser's acquisition of the
Premises pursuant to this Agreement (the "Inducement Resolution"). Purchaser
shall make a truthful and prompt application for the Inducement Resolution,
which Purchaser shall pursue with diligence, and shall furnish all necessary
information and documents and pay all fees and charges required in connection
with such application. Purchaser shall furnish Seller with a copy of the
Inducement Resolution promptly following its receipt.
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(B) In attempting to obtain the Inducement Resolution, Purchaser shall
comply with all reasonable requirements of the XXX. Purchaser shall notify
Seller of any inability to obtain the Inducement Resolution promptly. In that
case, Seller may, in its sole discretion, extend Purchaser's time to obtain the
Inducement Resolution. If Purchaser is unable to obtain the Inducement
Resolution on or before December 30, 2003 or on such later date as Seller may in
its sole discretion permit, Purchaser may by notice to Seller elect (i) to seek
financing for this acquisition from alternative sources and proceed to Closing
as otherwise provided for herein but without any financing contingency or (ii)
to cancel this Agreement, in which event the Deposit shall immediately become
Seller's sole property as liquidated damages for Purchaser's exercising its
right to terminate.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date and year first above written.
ARROW ELECTRONICS, INC.
By:_______________________
Printed Name: XXX X XXXXX
Its: VICE PRESIDENT & TREASURER
Date: 11/14/03______________
Interpharm, Inc
By:_______________________
Printed Name: XXXXXXXX XXXXXXX
Its: CEO Interpharm__________
Date: 11-14-03______________
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