EXHIBIT NO. 10.136
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT, made as of the 2nd day of February, 1998 (the
"Effective Date"), by and between BREL ASSOCIATES XIV, L.P., a New York limited
partnership, having an office at c/o Banque Nationale de Paris, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Seller"), and XXXX-XXXX
REALTY, L.P., 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, Seller is the owner of certain land(s), building(s) and
improvements (hereinafter collectively referred to as the "Property") situated
in the Borough of Fort Xxx, County of Bergen, New Jersey, being commonly known
as 0000 Xxxxxxx Xxxxxx, as more particularly described in Exhibit "A" annexed
hereto and made a part hereof; and
WHEREAS, Seller desires to sell the Property and Purchaser desires to
purchase the Property on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein made, it
is agreed as follows:
1. SALE AND PURCHASE. Seller agrees to sell and Purchaser agrees to
purchase the Property, including any and all easements, rights of way,
privileges, appurtenances and rights belonging to or inuring to the benefit of
said Property and any fixtures and personal property presently located at the
Property used in connection with the current operation of the Property, for the
Purchase Price (as hereinafter defined) and upon the terms and conditions
hereinafter provided. Seller reserves the right to remove from the Property
prior to the Closing (hereinafter defined) all wall partitions not installed in
the Property and all furniture and any other personal property located at the
Property not belonging to any tenants or occupants thereof.
2. PURCHASE PRICE. The purchase price of the Property shall be
$5,000,000 Dollars (the "Purchase Price") payable by Purchaser as follows:
A. Upon execution and delivery of this Agreement, by
depositing with Xxxxx & Samson, P.A., Seller's Attorney (the "Escrow Agent"), a
sum equal to $500,000 Dollars by a good, unendorsed certified or official bank
check drawn on an account of Purchaser, subject to collection, payable to the
order of the Escrow Agent or, at Purchaser's election, by a bank wire transfer
of immediately available funds to an account or accounts designated by Escrow
Agent (the "Deposit"), which Deposit shall be maintained by Escrow Agent
pursuant to the provisions of Paragraph 29 of this Agreement.
B. (i) At the closing of title, by paying to Seller the
balance of the Purchase Price by a wire transfer of immediately available funds
of Purchaser at a federal or state chartered bank or reputable, domestic lending
institution, subject to the adjustments and prorations described in Paragraph 16
of this Agreement.
(ii) If Purchaser shall fail to deliver the Deposit
in accordance with (A) above, or if Escrow Agent shall be unable immediately to
collect on such Deposit, such failure or inability shall constitute a default by
Purchaser, and this Agreement shall terminate and neither party shall have any
further obligation or liability to the other except as may otherwise be provided
for herein.
3. CLOSING DOCUMENTS.
A. At the Closing, Seller shall execute and deliver to
Purchaser (i) a Bargain and Sale deed; (ii) an affidavit of title, the form and
substance of which shall be subject to the reasonable approval of Purchaser's
title insurance company; (iii) an assignment and assumption of Seller's interest
in the property management agreement or service contracts referred to in
Paragraph 8 hereof ("Assignment and Assumption of Contracts") in form
satisfactory to the parties; (iv) an affidavit by Seller that Seller is not a
"foreign person" within the meaning of Section 1445 of the United States
Internal Revenue Code of 1986, as amended, and the regulations issued
thereunder; (v) a letter of non-applicability from the New Jersey Department of
Environmental Protection to the effect that the Property is exempt from the
application of the Industrial Site Recovery Act, N.J.S.A. 13:1k-6 et seq.; and
(vi) such documents and/or instruments as may be reasonably required by
Purchaser's attorney or Purchaser's title insurance company to effectuate the
within transaction. The deed and any other documents which are intended to be
recorded shall be executed and acknowledged in a manner property for
recordation.
B. At the Closing, the Purchaser shall execute and deliver to
Seller (i) the balance of the Purchase Price; (ii) the Assignment and Assumption
of Contracts; and (iii) such documents and/or instruments as may reasonably be
required by Seller's attorney or Purchaser's title insurance company to
effectuate the within transaction.
4. TITLE.
A. Purchaser, at its expense, shall obtain a title insurance
binder from a title insurance company doing business in the State of New Jersey
insuring marketable title (as hereinafter defined) to the Property. For the
purposes of this Agreement, "marketable title" shall be deemed to be such title
as any title insurance company doing business in the State of New Jersey shall
insure at standard rates and subject only to the usual printed exceptions and to
the Permitted Encumbrances set forth on Exhibit "B" annexed hereto (the
"Permitted Encumbrances"). Purchaser shall, by no later than ten (10) days after
the Effective Date, forward to Seller a copy of its title insurance binder and
specify in writing any alleged defects
set forth in said binder ("Title Obligations"), failing which Purchaser shall be
deemed to have waived all Title Objections, TIME BEING OF THE ESSENCE as to
Purchaser's obligation to so notify Seller. Within two (2) business days
following Seller's receipt of said binder and notice of any Title Objections,
Seller shall have the right (without being obligated or required to commence
litigation or to incur any expenditure of monies), (i) to agree to cause any
Title Objection to be removed as a title exception prior to Closing, (ii) to
cause another title company to insure marketable title in accordance herewith;
or (iii) to take no action with respect to any Title Objections. If Seller
causes marketable title to be insured for the Property, Purchaser shall be
required to complete the purchase of the Property as herein provided. Seller
may, if it so elects, postpone the Closing for a period not to exceed sixty (60)
calendar days in order to cure a Title Obligation. If Seller is unable or
unwilling to cause marketable title to be insured for the Property, then
Purchaser shall have the right, at its sole option, either to (i) waive the
Title Objections and accept such title as Seller is able to convey without any
diminution in the Purchase Price, or (ii) terminate this Agreement.
B. Purchaser shall make its election to accept such title as
Seller shall be able to convey or to terminate this Agreement by no later than
the end of the Due Diligence Period. If Purchaser shall fail to so notify
Seller, then Purchaser shall be deemed to have elected to waive the Title
Objections and accept title without any abatement or reduction in the Purchase
Price.
C. Except for any liens affecting the Property in an amount
not to exceed $150,000.00 which were caused by the direct acts of Seller, Seller
shall have no obligation to expend any amounts due to any lienholder of the
Property which are necessary to obtain a release or discharge of such lien in
order to cure a Title Objection. To the extent Seller agrees to pay any such
sum(s) of money for such purpose, then, at the option of Seller, such sum(s) may
be paid at the Closing from the Purchase Price. In the event any liens affecting
the Property become of record after delivery of the Title Objections which
Seller is not required to discharge as provided for above, then Purchaser's sole
remedy is to either (i) accept such title as Seller is able to convey without
diminution of the Purchase Price or (ii) terminate this Agreement, in which
event Seller shall reimburse Purchaser for its actual costs for title searches,
survey and legal fees, but not to exceed $5,000.00 in the aggregate.
D. It is understood and agreed that Seller acquired the
Property at a foreclosure sale and acquired title thereto by way of a Sheriff's
Deed executed and delivered by the Bergen County Sheriff, a copy of which is
annexed hereto as Exhibit C. It is further understood and agreed that the Deed
conveying title to the Property shall convey the same quality of title as that
conveyed to Seller by such Sheriff's Deed.
5. POSSESSION; TENANCIES.
A. Seller shall deliver to Purchaser, and Purchaser shall
accept from Seller, vacant possession of the Property at the Closing, free of
all tenants or occupants.
B. (i) Purchaser acknowledges that the civil action, Borough
of Fort Xxx vs. Fort Xxx Headquarters Limited Partnership, Red Rock Holdings,
Ltd., Banque National de Paris and DBR Management, Inc. has been adjudicated in
the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No.
BER-C-325-95E (the "Borough Litigation"), pursuant to which the Court terminated
any alleged occupancy rights by the Borough and the Borough has vacated the
Property. Notwithstanding the foregoing, Seller reserves the right, and shall
have the right, without interference from Purchaser, to continue to pursue its
action for monetary relief or damages against the Borough and no such portion of
the Borough Litigation will be assigned to Purchaser. This provision shall
survive the Closing.
(ii) Seller represents that there are no tenants or
occupants of the Property as of the Effective Date and Seller covenants not to
grant any leases after the Effective Date.
6. RISK OF LOSS AND CONDEMNATION.
A. Seller assumes the risk of any material loss or damage to
the Property beyond ordinary wear and tear until delivery of the deed to
Purchaser at Closing. If, after the Effective Date, any material portion of the
Property is destroyed or damaged as a result of fire or other casualty (meaning
a casualty the cost of which to repair exceeds $500,000.00), and such repair
shall not have been completed prior to Closing, Seller or Purchaser shall have
the right to terminate this Agreement by delivery of written notice to the other
party within ten (10) calendar days of such casualty, in which event the Escrow
Agent shall return the Deposit to Purchaser and, except as provided for herein,
all rights obligations and liabilities of the parties hereto shall thereupon
terminate. If Purchaser does not have a right to terminate this Agreement or,
having a right to terminate this Agreement, elects not to terminate this
Agreement, then at Closing, Seller shall pay over or assign to Purchaser all
insurance proceeds recovered by Seller and not theretofore used to repair or
restore the Property, less any expenses incurred by Seller in seeking recovery
of such insurance proceeds; provided, however, Purchaser shall be entitled to a
credit against the Purchase Price in an amount equal to the amount of any
deductible maintained by Seller.
B. If prior to Closing all or substantially all of the
Property shall be condemned or taken as the result of the exercise of the power
of eminent domain, then this Agreement shall be null and void and of no further
force and effect, in which event Escrow Agent shall return the Deposit to
Purchaser. If prior to the Closing, less than all or substantially all of the
Property shall be condemned or taken as the result of the exercise of the power
of eminent domain, and Purchaser in its reasonable judgment shall determine that
(i) the remaining portion of the Property is not suitable for the continued use
of the Property as an office building, then Purchaser may terminate this
Agreement within five (5) calendar days after receipt of notice thereof or at
the Closing, whichever is earlier, in which event Escrow Agent shall return the
Deposit to Purchaser without further liability hereunder on the part of either
party except as provided for herein, or (ii) the remaining portion of the
Property is suitable for the continued use of the Property, then Seller shall be
entitled to any award
resulting from any condemnation proceeding, but Purchaser shall be entitled to a
credit against the Purchase Price in an amount equal to said proceeds up to the
amount of the Purchase Price unless such condemnation proceedings shall be
pending on the day of Closing, in which event there shall be no such credit and,
at Closing, Seller shall assign all of its rights and interest in said
proceedings to Purchaser.
7. REPRESENTATIONS.
A. The acceptance of the deed to the Property by Purchaser
shall be deemed an acknowledgment by Purchaser that Seller has fully complied
with, or that Purchaser has waived its right to demand compliance with, all of
Seller's obligations hereunder, and that Seller shall have no further liability
with respect to any of its representations, warranties, covenants or agreements
under this Agreement. All representations made by Seller hereunder or elsewhere
in this Agreement are true and correct to the best of Seller's knowledge and
belief. No representation, warranty, covenant or agreement of Seller shall
survive the Closing.
B. Seller's Representations. In order to induce Purchaser to
enter into this Agreement, Seller represents that:
(i) Seller and the person executing this Agreement on
behalf of Seller have the right, power and authority to enter into this
Agreement and to fulfill its terms; and
(ii) The execution, delivery and performance of this
Agreement in accordance with its terms does not violate any contract, agreement,
commitment, order, judgment, decree, law, regulation or ordinance to which
Seller is a party or by which it is bound and constitutes a legal valid and
binding obligation of Seller.
(iii) Seller shall continue to maintain liability and
casualty insurance on the Property until the Closing and shall provide evidence
thereof to Purchaser.
C. Purchaser's Representations. In order to induce Seller to
enter into this Agreement, Purchaser warrants and represents that:
(i) Purchaser and the person executing this Agreement
on behalf of Purchaser have the right, power and authority to enter into this
Agreement and to fulfill its terms; and
(ii) The execution, delivery and performance of this
Agreement in accordance with its terms does not violate any contract, agreement,
commitment, order, judgment, decree, law, regulation or ordinance to which
Purchaser is a party or by which it is bound and constitutes a legal, valid and
binding obligation of Purchaser.
(iii) Purchaser represents that Purchaser is a
sophisticated and
experienced purchaser of properties, such as the Property, and has been duly
represented by counsel in connection with the negotiation of this Agreement and
the purchase of the Property.
8. CONDITION OF THE PROPERTY; OPERATION OF THE PROPERTY.
A. Purchaser acknowledges and agrees (i) that Purchaser has
examined and/or subject to Paragraph 9 hereof, shall have the right to examine,
the Property and is familiar with the condition thereof including any mechanical
or structural defects at the Property; (ii) that except as expressly set forth
in this Agreement, neither Seller, nor the employees, agents or attorneys of
Seller have made any verbal or written representations or warranties whatsoever
to Purchaser, either express or implied; and (iii) that Purchaser has not relied
on any representations or warranties except those expressly set forth in this
Agreement. Specifically, without limitation, no representations or warranties
have been made to Purchaser with respect to: (i) the physical condition of the
Property; (ii) the environmental condition of the Property; (iii) the
applicability to the Property of any particular statues, laws, codes,
ordinances, regulations or rules, or the compliance of the Property therewith,
including, without limitation, zoning, building and health codes, regulations
and ordinances; and (iv) the expenses of or in respect of the Property.
Purchaser agrees to accept the Property "AS-IS, WHERE-IS and WITH ALL FAULTS" at
the Closing, including any latent or patent defects in or affecting the
Property. Purchaser and any person or entity claiming by or under Purchaser,
shall at the Closing be deemed to have released Seller and its affiliates,
employees, officers, directors, representatives and agents from any and all
claims, costs, losses, liabilities, damages, expenses, demands or causes of
action now or hereafter arising from or related to any matter of any kind or
nature relating to the Property.
B. From and after the Effective Date until the Closing, Seller
shall maintain the Property in its present condition, subject to ordinary wear
and tear, except as provided for herein. Seller represents that the day to day
operation and maintenance of the Property is presently in the care, custody and
control of Xxxxxxx Properties, L.P. ("Xxxxxxx") pursuant to a written property
management agreement dated May 20, 1996, a copy of which has been delivered to
Purchaser. Purchaser may, at its election, assume Seller's obligations under
said management agreement or request that Seller cancel such management
agreement at the Closing. Seller shall be responsible for any cancellation
penalty incurred as a result of such cancellation. To the best of Seller's
knowledge, there are no service contracts presently in effect which are not
terminable, without penalty, on thirty (30) calendar days' written notice.
Purchaser may, at its election, assume Seller's obligations under said service
contracts or request that Seller cancel such service contracts at the Closing. A
list of all such service contracts is annexed hereto and made a part hereof as
Exhibit D.
C. From and after the Effective Date until the Closing, Seller
shall not, without the prior written consent of Purchaser, which consent
Purchaser agrees it shall not unreasonably withhold or delay, enter into any new
service contract unless the same shall not be binding on Purchaser after the
Closing or shall be cancelable, without penalty, upon not more than thirty (30)
calendar days' written notice (unless Purchaser, in its sole discretion,
elects to accept the same).
9. DUE DILIGENCE REVIEW.
A. From and after the Effective Date until 5:00 P.M. (New York
time) on the first business day which is fifteen (15) days after the Effective
Date or sooner if Seller and Purchaser mutually agree (such period being
hereinafter referred to as the "Due Diligence Period"), Purchaser and
Purchaser's agents, at Purchaser's sole cost and expense, shall have the right
to enter upon the Property in order to make such physical inspection of the
Property as Purchaser deems reasonably necessary and appropriate. If any
inspections are performed on the Property, Purchaser shall keep the Property in,
or restore the Property to, its physical condition as of the Effective Date.
Prior to such entry or inspection, Purchaser, or its designated representatives
or agents who will perform such inspections, (i) shall obtain liability
insurance in form, substance, coverage and amounts reasonably acceptable to
Seller and (ii) shall deliver certificates of such insurance to Seller. Such
insurance shall continue until the Closing. Notwithstanding anything to the
contrary set forth in the foregoing, in exercising its rights under this
Paragraph, Purchaser shall not interfere otherwise with the normal operation,
use, occupancy, management or maintenance of the Property.
B. Purchaser agrees to indemnify and hold Seller harmless from
and against any claim, suit or damage arising out of Purchaser's entry and/or
inspections on or about the Property. Such indemnity shall survive any
termination of this Agreement.
C. In the event that any such examinations, reviews and/or
inspections cause Purchaser, in its sole discretion, to believe that the
Property is not suitable for Purchaser's purposes, then Purchaser may, at any
time during the Due Diligence Period, terminate this Agreement by giving written
notice of such termination to Seller, whereupon the parties hereto shall be
released from any and all liability and obligation hereunder, except as
expressly provided herein, and the Deposit shall be returned to Purchaser
forthwith.
D. In the event Purchaser does not terminate this Agreement on
or prior to the last day of the Due Diligence Period as provided herein, as to
which date TIME IS OF THE ESSENCE, Purchaser shall no longer have the right to
terminate this Agreement but shall have the continued right until Closing to
inspect, survey and make other examinations of the Property, subject in all
cases to Purchaser's indemnification and restoration obligations set forth in
this Paragraph 9.
E. In the event Purchaser does not cancel this Agreement at
the end of the Due Diligence Period, Purchaser shall be deemed to have (i)
represented and warranted that it has inspected all of the Property and the
Property Documents and that in such inspection Purchaser has not discovered any
material matter which would form the basis for a claim by Purchaser that the
Property is not in the condition agreed to or that Seller has breached any
representation, warranty, covenant or agreement of Seller made in this Agreement
relating to the Property or the Property Documents and that Purchaser has no
actual knowledge of any
such matter and (ii) waived any claim that Purchaser may have against Seller and
released Seller from any such claim now or hereafter arising from or related to
any matter of any kind or nature relating to the Property.
F. Upon termination of this Agreement, neither party shall
have liability to the other, except that (i) Purchaser's indemnification and
restoration obligations set forth herein shall survive as set forth in such
provisions, (ii) Purchaser shall be obligated to deliver to Seller any reports
that were performed by or on behalf of Purchaser with respect to the Property,
and (iii) Purchaser shall return all copies of all confidential information
furnished to Purchaser or Purchaser's agents by Seller.
G. Upon the execution and delivery of this Agreement by Seller
and Purchaser, or as soon thereafter as reasonably possible, in addition to
those materials heretofore provided to Purchaser by Seller or the Broker (as
hereinafter defined), Seller shall make available, or cause Xxxxxxx to make
available, to Purchaser for its inspection during normal business hours at
Xxxxxxx'x offices those documents in Seller's possession affecting the ownership
and operation of the Property (the "Property Documents"). Purchaser, at its sole
cost and expense, may make copies of the Property Documents but may not remove
the originals from Xxxxxxx'x offices. Contemporaneously with the delivery of
copies of the Property Documents, Purchaser shall sign an inventory list of the
copies of the Property Documents so delivered to Purchaser for Purchaser's
inspection and/or copying, acknowledging receipt of such Property Documents.
H. Purchaser acknowledges that all information in respect of
the Property furnished, or to be furnished, to Purchaser has been and will be so
furnished on the condition that Purchaser maintain the confidentiality thereof.
Accordingly, Purchaser shall, and shall cause its directors, officers and other
employees and representatives to hold in strict confidence, and not disclose to
any other party without the prior written consent of Seller until the Closing
shall have been consummated, any of the information in respect of the Property
delivered to Purchaser by Seller or any of its agents, representatives or
employees. In the event the Closing does not occur and this Agreement is
terminated, Purchaser shall promptly return to Seller all originals and copies
of all such information without retaining any copy thereof or extract therefrom.
Notwithstanding anything to the contrary hereinabove set forth, Purchaser may
disclose such information (i) on a need-to-know basis to its employees or
members of professional firms serving it in connection with this transaction,
(ii) as is requested by a reputable institutional lender in connection with any
financing of the purchase of the Property, and (iii) as any governmental agency
may require in order to comply with applicable laws or regulations; provided,
however, that all such individuals and/or entities shall agree in writing to be
bound by the confidentiality provisions of this Agreement and that Purchaser
shall indemnify Seller with respect to any breach of such agreement by any such
person and/or entity. The provisions of this Section shall survive the Closing
or earlier termination of this Contract.
10. MUNICIPAL INSPECTION. Purchaser, at its sole expense, shall be
responsible to obtain a Certificate of Occupancy and/or all other municipal
certificates or approvals that may be required to convey the Property, to occupy
the Property, or to maintain business operations thereon.
11. NO FINANCING CONTINGENCY. Purchaser represents and warrants that
the consummation of this transaction by Purchaser is not contingent or
conditioned upon Purchaser's obtaining any financing and that Purchaser has, or
will have at the time of Closing, sufficient cash to complete the purchase.
12. ASSESSMENTS. If at the Closing the Property or any part thereof
shall be or shall have been affected by any assessments which are or may become
payable in annual installments of which the first installment is then due or has
been paid, then for the purposes of this Agreement all the unpaid installments
of any such assessment, including those which are to become due and payable
after the delivery of the deed, shall be assumed by Purchaser. The cost of all
other assessments for work commenced after the date of this Agreement will be
borne by Purchaser.
13. CLOSING OF TITLE. The closing of title (the "Closing") shall take
place on the first business day which is thirty (30) days after the expiration
of the Due Diligence Period (the "Closing Date"), at 11:00 A.M. at the offices
of Xxxxx & Samson, 0 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000, or at such
other location reasonably acceptable to the parties.
14. ASSIGNMENT. This Agreement may not be assigned by Purchaser without
the prior written consent of Seller.
15. BROKERAGE. Each party represents and warrants to the other that it
dealt with no broker or other person entitled to claim fees for such services in
connection with the negotiation, execution and delivery of this Agreement other
than CB Commercial Real Estate Group, Inc. and Plawker Real Estate, Inc.
(collectively, the "Broker"). Seller agrees to pay Broker a commission pursuant
to a separate agreement with Broker. Based upon the aforesaid warranty and
representation, each party agrees to defend, indemnify and hold the other party
harmless from and against any and all claims for finders' fees or brokerage or
other commissions which may at any time be asserted against the indemnified
party founded upon a claim that the substance of the aforesaid representation of
the indemnifying party is untrue, together with any and all losses, damages,
costs and expenses, including reasonable attorneys' fees and disbursements,
relating to such claims or arising therefrom or incurred by the indemnified
party in connection with this indemnification provision. The provisions of this
Paragraph 15 shall survive the Closing.
16. CLOSING ADJUSTMENTS AND COSTS.
A. The following shall be apportioned and adjusted as of 11:59
p.m. of the day before the Closing and the net amount thereof shall be added to
or deducted from, as the case may be, the Purchase Price to be paid at Closing:
All items of income and expense, real estate taxes
and sewer rents, if any, fuel, electricity, gas, water, service contracts and
other similar expenses.
B. All recording fees for the Deed, the realty transfer fee
and all title insurance search fees and premiums shall be paid by Purchaser.
Each party shall pay the fees of its respective counsel.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto. No variations or modifications of or amendments to
the terms of this Agreement shall be binding unless reduced to writing and
signed by the parties hereto.
18. COUNTERPARTS. This Agreement may be signed in counterparts, all of
which when taken together shall constitute a single agreement.
19. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of Seller and Purchaser and their respective successors and
assigns, except as otherwise provided herein.
20. CONSTRUCTION. The interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New Jersey. Seller
and Purchaser agree that each party and its counsel have reviewed this Agreement
and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments to exhibits thereto.
21. FURTHER ASSURANCES. Each party agrees that at any time or from time
to time upon written request of the other party, it will execute and deliver all
such further documents and do all such other acts and things as may be
reasonably required to confirm or consummate the within transaction.
22. CAPTIONS. The captions preceding the paragraphs of this Agreement
are intended only as a matter of convenience and for reference and in no way
define, limit or describe the scope of this Agreement or the intent of any
provision hereof.
23. NOTICES. All notices required to be given pursuant to this
Agreement shall be sent by certified mail, return receipt requested or by same
day delivery service, or by a national overnight delivery service, or by
facsimile transmission to the parties at the following addresses:
A. If to Seller, at its address set forth in the heading to
this Agreement, to the attention of Xx. Xxxxxx Xxxxx, Telecopy Number:
000-000-0000, with a copy to: Xxxxx & Samson, P.A., 0 Xxxxxx Xxxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx Xxxxxxx, Esq., Telecopy Number:
000-000-0000.
B. If to Purchaser, at its address set forth in the heading to
this Agreement, to the attention of
C. If to Escrow Agent, to Xxxxx & Xxxxxx, P.A., 0 Xxxxxx Xxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx Xxxxxxx, Esq., Telecopy
Number: 973-740- 1407.
Any party may designate a different address by written notice
to the other party.
Notices shall be deemed received (i) on the day of receipt if
sent by same day delivery service, (ii) on the second business day after
mailing, if sent by certified mail, (iii) on the next business day after mailing
if sent by overnight delivery, and (iv) on receipt of facsimile confirmation if
sent by facsimile transmission.
24. REMEDIES.
A. If Purchaser shall default in its obligations hereunder,
Seller's sole remedy shall be to retain the Deposit as liquidated damages, and
not as a penalty, it being agreed that Seller's damages might be impossible to
determine, and that the Deposit constitutes a fair and reasonable amount of
damages under the circumstances.
B. If Seller shall default in its obligations hereunder,
Purchaser's sole remedy shall be to either (i) terminate this Agreement,
whereupon the Deposit shall be returned to Purchaser or (ii) xxx for specific
performance.
25. WAIVER OF CONDITIONS. Purchaser and Seller each shall have the
right, in the sole and absolute exercise of its discretion, to waive any of the
terms or conditions of this Agreement which are strictly for its benefit and to
complete the Closing in accordance with the terms and conditions of this
Agreement which have not been so waived.
26. NO RECORDING. Purchaser shall not record this Agreement or any
memorandum or short form hereof in any place or office of public record and any
action in violation of this provision shall be deemed a default and shall
terminate this Agreement by notice delivered to Purchaser.
27. SEVERABILITY. The terms, conditions, covenants and provisions of
this Agreement shall be deemed to be severable. If any clause or provision
herein contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of applicable law, the same shall be
deemed to be severable and shall not affect the validity of
any other clause or provision herein, but such other clauses or provisions shall
remain in full force and effect, unless such provisions shall relate to the
Purchase Price or other monies to be paid hereunder. In such event, Seller, on
notice to Purchaser, shall have the right to terminate this Agreement on the
date specified in such notice, whereupon neither party shall have any further
obligation to the other.
28. GENDER. As used in this Agreement, the masculine gender shall
include the feminine or neuter genders and the neuter gender shall include the
masculine or feminine genders, the singular shall include the plural and the
plural shall include the singular, wherever appropriate to the context.
29. ESCROW PROVISIONS.
A. The Deposit shall be held in escrow by the Escrow Agent in
one or more interest-bearing FDIC insured bank accounts selected by Escrow Agent
on the terms hereinafter set forth. All interest earned thereon shall be deemed
part of the Deposit.
B. When the Closing has occurred, Escrow Agent shall deliver
the Deposit to Seller in which event the Deposit, and the interest included
therein, shall be applied in reduction of the Purchase Price.
C. If Escrow Agent receives a written request for the Deposit
signed by Seller stating that Purchaser has defaulted in the performance of its
obligations under this Agreement, Escrow Agent shall deliver a copy or copies of
such request to Purchaser in accordance with the provisions of Paragraph 23
hereof, and no earlier than the third business day after the receipt of such
notice by Purchaser, Escrow Agent shall deliver the Deposit to Seller.
D. If Escrow Agent receives a written request signed by
Purchaser stating that this Agreement has been canceled or terminated and that
Purchaser is entitled to the Deposit, Escrow Agent shall deliver a copy of such
request to Seller in accordance with the provisions of Paragraph 23 hereof, and
no earlier than the third business day after the receipt of such notice by
Seller, Escrow Agent shall deliver the Deposit to Purchaser.
E. All mailings and notices from Escrow Agent to Seller and/or
Purchaser, or from Purchaser and/or Seller to Escrow Agent, provided for in this
Escrow Agreement shall be given in the manner set forth in Paragraph 23 above.
All notices from Purchaser and Seller must be given by a person having proper
authority to act by and on behalf of such party and shall be duly notarized.
F. If Escrow Agent receives written instructions signed by
Seller instructing Escrow Agent to pay the Deposit to Purchaser, or if Escrow
Agent receives written instructions signed by Purchaser instructing Escrow Agent
to pay the Deposit to Seller, Escrow Agent shall deliver the Deposit in
accordance with such instructions.
G. Notwithstanding the foregoing provisions of (C) and (D)
above, if Escrow Agent shall have received a written notice of objection from
Seller or Purchaser, or shall have received at any time before actual
disbursement of the Deposit a written notice signed by either Seller or
Purchaser advising that litigation between Seller and Purchaser over entitlement
to the Deposit has been commenced, or shall otherwise believe in good faith at
any time that a disagreement or dispute has arisen between the parties hereto
over entitlement to the Deposit (whether or not litigation has been instituted),
Escrow Agent shall have the right, upon written notice to both Seller and
Purchaser, (i) to deposit the Deposit with the Clerk of the Court in which any
litigation is pending, and/or (ii) to take such affirmative steps as it may, at
its option, elect in order to terminate its duties as Escrow Agent, without
limitation, the depositing of the Deposit with a court of competent jurisdiction
and the commencement of an action for interpleader, the costs thereof to be
borne by whichever of Seller or Purchaser is the losing party, and thereupon
Escrow Agent shall be released of and from all liability hereunder except for
any previous gross negligence or willful default.
H. Escrow Agent shall have no duty to invest all or any
portion of the Deposit during any period of time Escrow Agent may hold the same
prior to disbursement thereof except in one or more interest-bearing accounts as
aforesaid, and any disbursements or deliveries of the Deposit required herein to
be made by Escrow Agent shall be with such interest, if any, as shall have been
earned thereon.
I. Purchaser acknowledges that Escrow Agent is also counsel to
Seller and shall have the right to represent Seller in any dispute between
Seller and Purchaser regarding the disposition of the Deposit or otherwise.
J. Escrow Agent shall be under no obligation to deliver any
instrument or documents to a court or take any other legal action in connection
with this Agreement or towards its enforcement, or to appear in, prosecute or
defend any action or legal proceeding which, in Escrow Agent's opinion, would or
might involve it in any cost, expense, loss or liability unless, as often as
Escrow Agent may require, Escrow Agent shall be furnished with security and
indemnity satisfactory to it against all such costs, expenses, losses or
liabilities.
K. Escrow Agent shall not be liable for any error in judgment
or for any act done or omitted by it in good faith, or for any mistake of fact
or law, and is released and exculpated from all liability hereunder except for
willful misconduct or gross negligence.
L. Escrow Agent's obligations hereunder shall be as a
depositary only, and Escrow Agent shall not be responsible or liable in any
manner whatever for the sufficiency, correctness, genuineness or validity of any
notice, written instructions or other instrument furnished to it or deposited
with it, or for the form of execution of any thereof, or for the identity or
authority of any person depositing or furnishing same.
M. Escrow Agent shall not have any duties or responsibilities
except those set forth in this Paragraph 29, and shall not incur any liability
in acting upon any signature,
notice, request, waiver, consent, receipt or other paper or document believed by
it to be genuine, and Escrow Agent may assume that any person purporting to give
any notice or advice on behalf of any party in accordance with the provisions
hereof has been duly authorized to do so. Seller and Purchaser hereby jointly
and severally indemnify and agree to hold and save Escrow Agent harmless from
and against any and all loss, damage, cost or expense Escrow Agent may suffer or
incur as Escrow Agent hereunder unless caused by its gross negligence or willful
default.
N. Escrow Agent shall be entitled to consult with counsel in
connection with its duties hereunder. Seller and Purchaser agree to reimburse
Escrow Agent for all costs and expenses incurred by Escrow Agent in performing
its duties as Escrow Agent including, but not limited to, attorneys' fees
(either paid to retained attorneys or amounts representing the fair value of
legal services rendered to itself).
O. The terms and provisions of this Paragraph 29 shall create
no right in any person, firm or corporation other than the parties hereto and
their respective successors and permitted assigns, and no third party shall have
the right to enforce or benefit from the terms hereof.
30. NO OFFER. The submission of this Agreement for examination does not
constitute a reservation of, or an offer for, this Property, and this Agreement
shall become effective only upon the full execution by both Seller and
Purchaser.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first above written.
SIGNED, SEALED AND DELIVERED SELLER:
IN THE PRESENCE OF:
BREL ASSOCIATES XIV, L.P.
By: Real French Fourteen,
Ltd., its
general partner
-----------------------------
By:_______________________________
Name:
Title:
-----------------------------
By:_______________________________
Name:
Title:
PURCHASER:
-----------------------------
----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice
Pres.
ESCROW AGENT:
XXXXX & SAMSON, P.A.
-----------------------------
By:_______________________________
Name: Xxxxxx Xxxxxxx
Title: Partner
