EXHIBIT 10.29
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (hereinafter referred to as the "Agreement"),
is made this ____ day of December, 1996, by and between BARLAX, a New
Jersey general partnership, having an address of 00 Xxxx Xxxxxx, Xxxxxxx,
Xxx Xxxxxx, 00000 (hereinafter referred to as "Seller") and WELLSFORD
COMMERCIAL PROPERTIES, L.L.C. a Delaware limited liability company, having
an address at 000 Xxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx, 00000 (hereinafter
referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of certain real property located in the
Borough of Chatham, County of Xxxxxx, State of New Jersey, commonly known
as 00 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000, as more particularly
identified and described on Exhibit A, attached hereto and made a part
hereof (the "Land"), together with all right, title and interest of Seller
in and to all easements, rights, privileges, rights-of-way, hereditaments,
tenements and appurtenances belonging to the Land, all right, title and
interest in and to all open or proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx,
alleys, easements, strips, gores and rights of way, in, on, across, in
front of, contiguous to, abutting or adjoining the Land (hereinafter
collectively with the Land referred to as the "Real Property"), and
together with all buildings and improvements situated thereon (the
"Improvements"); and
WHEREAS, Seller is the owner of certain personal property used in
conjunction with the Real Property and Improvements, an inventory of which
will be prepared by Purchaser and acknowledged by Seller prior to the
expiration of the Feasibility Study Period, including all right, title or
interest of Seller in any on-site inventory and stockpiled materials, in
quantities and types as may be located on the Real Property as of the date
hereof, ordinary use excepted, and including Seller's right, if any, in and
to any plans and specifications in Seller's possession prepared in
connection with the Improvements (hereinafter referred to as the "Personal
Property"); and
WHEREAS, Seller is the owner of certain intangible property used in
connection with the Real Property and Improvements, including, but not
limited to Seller's rights, if any, in and to all operating expense and tax
records, promotional material, leasing prospects, plans, drawings, designs,
surveys, environmental studies and other studies used or generated in
connection with any part of the Real Property and Improvements
(collectively, the "Intangible Property") (the Real Property, Improvements,
Personal Property, and Intangible Property, are sometimes collectively
referred to herein as the "Property"); and
WHEREAS, Purchaser desires to purchase from Seller and Seller desires
to sell to Purchaser, all of Seller's rights in and to the Property, in
accordance with the terms and conditions hereinafter set forth, in "AS-IS,
WHERE-IS" "WITH ALL FAULTS" condition, except as set forth herein.
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NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, made one to another, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Agreement of Purchase and Sale. Seller hereby agrees to sell and
convey the Real Property and Seller's rights in and to the Property to
Purchaser and Purchaser hereby agrees to purchase such rights from Seller,
in accordance with the terms and provisions hereof.
2. Title. Title to the Real Property shall be good and marketable,
free and clear of all liens, encumbrances and encroachments and subject
only to the operation and effect of the Permitted Exceptions (as hereafter
defined). Permitted Exceptions shall be deemed to mean all instruments and
matters of record among the Public Records of Xxxxxx County, New Jersey on
the date hereof, other than any instrument or matter which is set forth as
an exception to coverage in a commitment for title insurance from a title
insurer selected by Purchaser (the "Title Company") covering the Property,
to which Purchaser has expressly objected. Such objection shall be set
forth in a written notice to Seller given within ten (10) business days of
receipt of (i) the commitment for title insurance, (ii) legible copies of
all documents listed as exceptions to coverage, and (iii) an ALTA survey of
the Real Property and the Improvements (all of which shall be at the
expense of Purchaser), but in no event later than the expiration of the
Feasibility Study Period, as such term is defined below (such matters to
which Buyer does not object are herein referred to as "Permitted
Exceptions").
Title to the Real Property shall be deemed good and marketable if
a nationally recognized title insurance company acceptable to Purchaser
agrees to insure fee simple title to the Real Property and issue to
Purchaser, at standard premium rates, an extended coverage owner's title
insurance policy with an ALTA Form 9 Endorsement (in the form applicable to
the jurisdiction in which the Land is located), subject only to the
Permitted Exceptions. If there are title defects other than the Permitted
Exceptions, Purchaser shall notify Seller of such title defects during the
Feasibility Study Period and Seller shall have the right, within ten (10)
days from receiving notice, to elect: (i) to cure the title defect at
Seller's cost and expense, which election shall be deemed made if no notice
of election is received by Purchaser within such 10-day period, or (ii) not
to cure such defect, provided that Seller shall not have the right to
decline to cure any monetary encumbrances and/or other monetary obligations
affecting title to the Real Property. If Seller elects not to cure the
title defect in accordance with the preceding sentence, then Purchaser,
within seven (7) days from receipt of Seller's written notice of such
election, shall elect by written notice to Seller to either (1) waive the
title defect and proceed under this Agreement with no abatement of the
Purchase Price, or (2) terminate this Agreement, in which event Purchaser
shall be entitled to the immediate return of the Deposit. Upon such
termination, each party's rights and liabilities hereunder shall cease
except for Purchaser's indemnification pursuant to Section 10 hereof.
3. Purchase Price and Independent Consideration.
(a) The purchase price ("Purchase Price") for the Property shall be
Five Million, Nineteen Thousand, One Hundred Thirty Three and 00/100
Dollars ($5,019,133.00), of which $1,019,133.00 shall be paid through
Seller financing (to be secured by a purchase money promissory note and
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mortgage in form and substance reasonably satisfactory to Seller and
Purchaser), and the balance of which ($4,000,000.00) shall be paid at
Settlement in cash or other immediately available funds.
(b) The Seller financed portion of the Purchase Price, equal to
$1,019,133.00, shall be evidenced by a purchase money promissory note,
bearing interest at a rate of nine percent (9%) per annum, and maturing on
that date (the "Maturity Date") which is eighteen (18) months after the
Settlement Date (as defined below). Such financing obligation shall be
payable in quarterly installments of interest only, in arrears, with the
first such quarterly payment to be due and payable on the 91st day after
the Settlement Date, and with each subsequent quarterly payment to be due
and payable 91 days after the date of the previous quarterly payment. If
not sooner paid , the outstanding principal balance and all accrued but
unpaid interest shall be payable in full on the Maturity Date. Such loan
shall be prepayable in full or in part, without penalty, at any time, and
from time-to-time, prior to the Maturity Date.
4. Deposit.
(i) On or before 5:00 p.m., Eastern Standard Time on
December 10, 1996, Purchaser shall deliver to the Xxxxx X. Xxxxx, Esquire,
of 000 Xxxxxx Xxxxxxx Xxxx, Xxx Xxxx, Xxx Xxxxxx 00000, as escrow agent
("Escrow Agent"), the sum of One Hundred Thousand Dollars ($100,000.00)
(the "Initial Deposit"), in cash or check, to be held by Escrow Agent, in
escrow, in an interest-bearing account (the "Escrow Account") at Core
States Bank or such other mutually acceptable financial institution with
which the Escrow Agent currently maintains an account (the "Escrow
Account"). If Purchaser fails to deliver the Initial Deposit within the
foregoing time frame, time being of the essence, this Agreement shall be
null and void, ab initio. Within one (1) business day following the
expiration of the Feasibility Study Period (as hereinafter defined), if
this Agreement has not been terminated prior to such date, Purchaser shall
deliver to the Escrow Agent an additional sum of One Hundred Fifty Thousand
Dollars ($150,000.00) (the "Second Deposit") in cash or by check, to be
added by Escrow Agent to the Initial Deposit, and to be held by the Escrow
Agent, together with the Initial Deposit, in escrow, in the Escrow Account.
As used herein, the term "Deposit" shall mean and include the Initial
Deposit, the Second Deposit and any accrued interest in the Escrow Account.
In the absence of a default hereunder by Seller, Purchaser agrees that a
portion of the Deposit equal to the lesser of (i) $5,000.00, or (ii) the
total legal costs incurred by Seller in the preparation and negotiation of
this Agreement, shall be deemed non-refundable and may be retained by
Seller in the event this Agreement is terminated for any reason other than
Seller's default. Such non-refundable portion of the Deposit shall be
delivered by Escrow Agent to Seller within five (5) days after the delivery
by Seller to the Escrow Agent and Purchaser of reasonable evidence of
Seller's having incurred such costs.
(ii) The Escrow Agent shall deliver the Deposit held
hereunder (a) to Purchaser concurrent with Settlement, as set forth in
Section 5 below, provided Purchaser shall pay the full cash portion of the
Purchase Price to Seller (or, at Purchaser's election, shall apply the
Deposit toward the Purchase Price), or (b) at such other time, before or
after Settlement, as Purchaser or Seller becomes entitled to the Deposit,
as provided in this Agreement.
(iii) If Seller shall become entitled to receive the
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Deposit, the Escrow Agent shall pay the same to Seller. If Purchaser so
directs, the Deposit shall be paid to Seller as part of the Purchase Price.
(iv) If this escrow shall be involved in any litigation or
controversy, the parties hereto shall severally hold the Escrow Agent free
and harmless against any cost or expense that may be suffered by it by
reason of such litigation or controversy, other than due to its gross
negligence or willful misconduct. All such costs and expenses shall be paid
by the party who does not prevail in such litigation. In addition, the
party who prevails shall be indemnified against any cost or expense,
including reasonable attorneys' fees (both at trial and on appeal), and
replacement of any depletion in the escrow funds, if such funds are
ultimately to be paid to the prevailing party.
(v) In the event conflicting demands are made, or notices
served, upon the Escrow Agent with respect to this escrow, the Escrow Agent
shall have, without limitation, the following rights and obligations:
(A) Withhold and stop all further proceedings in, and
performance of this escrow for a reasonable period of time to permit
resolution; or
(B) File a suit in interpleader and obtain an order
from a court of competent jurisdiction requiring the parties to interplead
and litigate in such court their several claims and rights amongst
themselves. In the event such interpleader suit is brought, and the escrow
funds paid and/or delivered into court, the Escrow Agent shall ipso facto
be fully released and discharged from all obligations to perform any and
all duties or obligations relative to such funds which are imposed upon it
by this Agreement.
(vi) The Escrow Agent, in its capacity as escrow agent, is
not to be held liable for the sufficiency or correctness of the form,
manner of execution or validity of any instrument that might be deposited
into the escrow, nor as to the identity, authority or rights of any person
executing the same, nor the failure of any other party to comply with any
provisions of any agreement, contract or other instrument filed herein, and
its duties hereunder shall be limited to the safekeeping of the money,
instruments, or other documents received by it, and for the disposition of
the same in accordance with the provisions of this Agreement, and for the
discharge of its obligations specified in this Section.
(vii) Prior to the earlier of the Settlement or the
termination of this Agreement in accordance with its terms, neither party
shall have the right to withdraw any instruments or monies deposited by
them with the Escrow Agent, except as herein specifically provided.
5. Settlement. Settlement shall take place on or before January 22,
1997, time being of the essence (the exact date to be selected by
Purchaser) at Seller's offices at 00 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx (the
"Settlement").
6. Settlement Deliveries/Conditions to Closing:
(a) At (or, if required below, before) Settlement, Seller shall:
(i) Deliver to Purchaser a good and sufficient Bargain and
Sale Deed with Covenants against Grantor's Acts, conveying the Property in
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fee simple to Purchaser in accordance with the terms hereof, subject to no
liens or encumbrances other than the Permitted Exceptions;
(ii) Furnish Purchaser, at Seller's expense, with a letter
of non-applicability, a no-further-action letter, a letter of full
compliance, or the equivalent thereof, from the New Jersey Department of
Environmental Protection in compliance with the Industrial Site Recovery
Act, and the regulations promulgated thereunder (such letter shall be
furnished to Purchaser on or before January 10, 1997);
(iii) Provide an affidavit of seller certifying that
Seller is not a "foreign person" as defined in the Federal Foreign
Investment in Real Property Tax Act of 1990; as amended;
(iv) Provide a xxxx of sale executed by Seller assigning to
Purchaser the Personal Property and the Intangible Property, to the extent
the same is owned by Seller, together with physical delivery thereof to
Purchaser;
(v) Give full, complete and exclusive possession of the
Property to Purchaser, including all keys and security codes thereto, free
from any right of possession by any person or entity;
(vi) Provide evidence of authority of Seller to sell the
Property and due authorization and execution of the documents required from
Seller at Settlement;
(vii) Execute and deliver to Purchaser or to the Escrow
Agent all other documents reasonably required of Seller to consummate the
transaction contemplated hereby, including but not limited to any Title
Company affidavits or indemnities which are customary and necessary to
remove pre-printed exceptions from the Purchaser's title policy, including
a customary "gap undertaking" agreement and a "no debt or lien" affidavit.
(b) The obligation of Purchaser to make Settlement on the
purchase the Property shall be also subject to the satisfaction of the
following conditions precedent (the "Conditions") as of the time of
Settlement:
(i) The representations and warranties made by Seller
herein shall continue to be true and accurate and Seller shall have
performed all of its covenants and obligations herein.
(ii) Title shall be in the condition contemplated in
Paragraph 2 of this Agreement.
(iii) No Hazardous Materials (as defined herein) shall
be in, on or under the Property, other than de minimis amounts of Hazardous
Materials used in the ordinary course of operating the Building, provided
the same are stored, used and disposed of by Seller in accordance with all
applicable legal requirements.
(c) In the event any of the Conditions set forth in
Paragraph 6(b) are not satisfied as of the date of Settlement, Purchaser
shall have the right (i) to terminate this Agreement by giving written
notice to Seller, (ii) to waive such Condition in writing and proceed to
Settlement, or (iii) to adjourn the Settlement for a reasonable period (not
to exceed 120 days) in order for Seller to bring about the satisfaction of
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such Condition. In the event Purchaser elects to terminate this Agreement,
the Deposit shall be promptly refunded to Purchaser and thereafter the
parties shall be relieved of all liability under this Contract, at law or
in equity; provided, however, that if any condition is not satisfied as the
result of a breach or default by Seller of its obligations herein, Seller
shall not be relieved of liability and Purchaser's right to receive a
refund of the Deposit shall be in addition to, and not in limitation of,
any other rights and remedies which Purchaser may have under applicable
law.
7. Adjustments. (a) All items of income and expense relating to the
Property, including, without limitation, real estate taxes, all utilities,
water and sewer rents, annual front-foot benefit charges applicable to the
Property, other operating charges, and any other matters customarily
adjusted at settlement are to be adjusted between the parties as of the
date of Settlement. Seller shall make arrangements for the reading on or
about the date of Settlement or all meters for utilities that Seller is
responsible to pay. If such meter readings take place on a date other than
the date of Settlement, then a pro rata adjustment will be made when the
bills are received, on a day-to-day basis.
(b) If Settlement shall occur before the tax rate or the assessed
valuation of the Property is fixed for the then current year, the
apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Subsequent to
Settlement, when the tax rate and the assessed valuation of the Property is
fixed for the year in which Settlement occurs, the parties agree to adjust
the proration of taxes and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment.
(c) The agreements of Seller and Purchaser set forth in this Section
7 shall survive Settlement.
8. Costs. Examination of title, title insurance, settlement fees,
tax certificates, survey costs and notary fees shall be paid by Purchaser.
Seller shall pay the New Jersey realty transfer tax applicable to the
conveyance of the Property and all other customary Seller's expenses
incurred in connection with this transaction. Each party shall be
responsible for its own attorneys' and other consultants' fees and
expenses.
9. Feasibility Study Period. Purchaser shall have the right from
the date hereof through 5:00 p.m. Eastern Time on January 2, 1997 (the
"Feasibility Study Period") to make such investigations, studies and tests
with respect to the Property as Purchaser deems necessary or appropriate to
determine the feasibility of purchasing the Property. If, during the
Feasibility Study Period, Purchaser determines, in its sole discretion,
that the Property is not acceptable to Purchaser or the purchase thereof is
not feasible, then Purchaser may, at any time prior to 5:00 p.m. Eastern
Time on January 2, 1997, terminate this Agreement by written notice to
Seller (such notice to be received by Seller prior to the final day of the
Feasibility Study Period).
Prior to Settlement, Purchaser will, pursuant to the terms
hereof, have made such examination of the Property and all matters relating
to this transaction as Purchaser deems necessary. In entering into this
Agreement, Purchaser has not been induced by and has not relied upon any
representation, warranty or statement whether express or implied, made by
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Seller or any agent, employee or other representative of Seller, or by any
broker or any other person representing or purporting to represent Seller,
which are not expressly set forth in this Agreement, whether or not any
such representations, warranties or statements were made orally or in
writing. On the date of Settlement, Purchaser shall reaffirm the
acknowledgment made in this section.
10. Inspection. At the time of execution of this Agreement, Seller
shall deliver or make available to Purchaser for inspection and copying all
property management and construction files, test borings and geotechnical
information, plats, surveys, plans, construction drawings, title materials,
environmental studies, marketing materials, engineering and architectural
data, and other tests, studies, reports and other information in the
possession or control of Seller (or its agents) relating to the Property,
at no cost to Purchaser. If this Agreement terminates for any reason other
than Seller's default, Purchaser shall return all of these materials to
Seller and deliver to Seller any similar information and materials related
to the Property generated by third parties for Purchaser (excluding
architectural materials). In addition, Purchaser shall have the right from
time to time to enter upon the Property prior to Settlement for the purpose
of making any inspection, investigations, studies or tests. Purchaser
shall repair any damage to the Property resulting from any inspections,
studies or tests performed by Purchaser. In connection with such entry
onto the Property, Purchaser agrees that it shall be responsible for any
damages to the same resulting from such operations and shall indemnify and
hold Seller harmless from all claims of any type arising out of or incident
to Purchaser's entry onto the Property for the purposes set forth herein.
11. Representations, Warranties and Covenants By Seller; Acceptance
of Property.
11.1 Seller's Representations, Warranties and Covenants. Seller makes
(i) the following representations and warranties as of the date hereof,
each and all of which shall also be true as if made on the date of
Settlement, and (ii) the following covenants:
(a) Seller is a general partnership, duly formed and existing
under the laws of the State of New Jersey. Seller has full and absolute
power and authority to enter into this Agreement and all ancillary
documents delivered pursuant hereto, and to perform all of its obligations
hereunder. The execution and delivery of this Agreement and the
performance by Seller of its obligations hereunder have been duly
authorized by all requisite action and no further action or approval is
required (except as may be set forth herein) in order to constitute this
Agreement as a binding and enforceable obligation of Seller, including, but
not limited to, the authority to sell, assign and transfer the Property
subject to the limitations and qualifications set forth herein.
(b) That until Settlement Seller will (i) continue the operation
of the Property in the manner in which currently operated and will not
defer any necessary maintenance thereto (including continued ordinary
maintenance of mechanical, electrical, plumbing and HVAC systems), (ii) not
commit or knowingly permit to be committed any waste to the Property, (iii)
not remove any item of Personal Property from the Property or Improvements,
(iv) not enter into any lease, occupancy agreement or service contract
without the prior written consent of Purchaser, except as otherwise allowed
in Section 12, (v) not enter into any agreement or instrument or take any
affirmative action which would constitute an encumbrance on the Property or
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which would bind Purchaser or the Property after Settlement, without the
prior written consent of Purchaser, except as otherwise allowed in Section
12, (vi) not sell or enter into any contract to sell, or market for sale,
the Property or any portion thereof, and (vii) continue the insurance
currently carried by Seller, or such replacements thereof, on the Property,
in amounts and in such form as Seller may determine using commercially
reasonable judgement.
(c) Other than the Permitted Encumbrances, there are no
management, maintenance or service contracts or other agreements of any
kind affecting the Property executed by Seller or otherwise, nor are there
any warranties, licenses permits or authorizations affecting the Property.
(d) There are no leases, subleases, occupancies or tenancies in
effect pertaining to the Property.
(e) Seller is not currently undertaking to modify the zoning
classification of the Property.
(f) There are no condemnation proceedings, written notices of
code or legal violations, or litigation of any kind, which are pending or
outstanding, or to the best of Seller's knowledge, threatened against
Seller or the Property and which affects (or would affect) the Property or
Seller's ability to perform its obligations under this Agreement. The
foregoing does not constitute a representation by Seller that the Property
is in compliance with all current applicable code and legal requirements.
(g) The execution and delivery of this Agreement, and the
performance by Seller of its obligations under this Agreement, is not
prohibited by, and will not violate, any agreement, judicial order or other
undertaking to which the Seller or the Property is subject or bound.
(h) To Seller's knowledge, there are no underground storage
tanks under, nor any asbestos or asbestos-containing materials which are
incorporated within any improvements upon, or otherwise located in, on, or
under the Property. Seller has provided to Purchaser full and complete
disclosure of all studies and information in Seller's possession (or which
are readily available to Seller) regarding the environmental condition of
the Property, and the presence of any hazardous substances and materials
which are regulated under any federal, state or local environmental laws,
regulations or ordinances (collectively, such materials are referred to as
"Hazardous Materials").
The representations and warranties contained herein shall continue for a
period of nine (9) months following Settlement. Purchaser shall not be
entitled to pursue any claim against Seller after closing in connection
with the breach of any representation or warranty of Seller set forth
herein if and to the extent Purchaser had actual knowledge of the existence
of such breach or inaccuracy prior to making Settlement hereunder.
11.2 Disclaimer. Purchaser acknowledges and agrees that, except for
the specific representations made by Seller to Purchaser under the other
provisions of Section 11.1 above or elsewhere in this Agreement, Seller has
not made, does not make and specifically negates and disclaims any
representations, warranties, promises, covenants, agreements or guaranties
of any kind or character whatsoever, whether express or implied, oral or
written, past, present, or future, of, as to, concerning or with respect to
(a) the value, nature, quality or condition of the Property, including,
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without limitation, the water, soil and geology, (b) the income to be
derived from the Property, (c) the suitability of the Property for any and
all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
(e) the habitability, merchantability, marketability, profitability or
fitness for a particular purpose of the Property, (f) the manner or quality
of the construction or materials, if any, incorporated into the Property,
(g) the manner, quality, state of repair or lack of repair of the Property,
or (h) any other matter with respect to the Property. Purchaser further
acknowledges and agrees that having been given the opportunity to inspect
the Property, Purchaser is relying on its own investigation of the Property
and not on any information provided or to be provided by Seller (other than
the representations and warranties of Seller elsewhere set forth in this
Agreement) and at the Settlement agrees to accept the Property and waive
all objections or claims against Seller (including, but not limited to, any
right or claim or contribution) arising from or related to the Property or
to any Hazardous Materials on the Property, other than the representations
and warranties of Seller elsewhere set forth in this Agreement. Purchaser
further acknowledges and agrees that to the maximum extent permitted by
law, the sale of the Property as provided for herein is made on an "as is"
condition and basis, with all faults. It is agreed that the Purchase Price
has been adjusted by prior negotiation to reflect that all of the Property
is sold by Seller and purchased by Purchaser subject to the foregoing. The
provisions of this Section 11 shall survive the Settlement.
12. Leasing. All obligations for tenant improvements and commissions
for any leases of the Property existing prior to Closing shall be the
responsibility of Seller. So long as this Agreement remains in effect,
Seller shall not enter into any new leases of the Property, or any portion
thereof, without Purchaser's prior written consent, which may be withheld
in Purchaser's sole and absolute discretion.
13. Condemnation. In the event Seller receives notice of any
condemnation proceedings or notice of the intention of any governmental or
quasi-governmental authority to initiate condemnation proceedings, or if
any such proceedings commence, or an actual condemnation or taking of the
Property or any portion thereof occurs, Seller will promptly notify
Purchaser and Purchaser may, within fifteen (15) days thereafter (i) elect
to terminate this Agreement, in which event, the Deposit shall be returned
to Purchaser and the parties shall be relieved of all further liability
hereunder; or (ii) if Purchaser does not elect to terminate this Agreement
the condemnation award as well as any unpaid claims or rights in connection
with such condemnation shall be assigned to Purchaser at Settlement, or, if
paid to Seller prior to Settlement, shall be credited at Settlement against
the Purchase Price.
14. Casualty Loss. In the event that subsequent to the date hereof
the Property or any part thereof is damaged or destroyed by fire or other
casualty and the cost of restoring the Property to its original condition
is in excess of One Hundred Thousand Dollars ($100,000.00), Purchaser may,
at its option, by giving written notice to Seller within ten (10) days
after receipt from Seller of notice of Seller's estimate of restoration of
the Property caused by such casualty, terminate this Agreement. In such
event Purchaser shall be entitled to the return of the Deposit and
thereafter neither Purchaser nor Seller shall have any further liability to
the other hereunder. In the event Purchaser does not elect to terminate
this Agreement or the Property or any part thereof is damaged by fire or
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other casualty and the cost of repair is less than One Hundred Thousand
Dollars ($100,000.00), Purchaser shall be obligated to proceed to
Settlement in accordance with this Agreement and all insurance proceeds in
connection with such casualty not expended (or associated costs incurred)
in connection with repair of the Property shall be assigned to Purchaser at
Settlement or, if paid to Seller prior thereto, shall be credited against
the unpaid Purchase Price due at Settlement, and the amount of the
insurance deductible shall be credited against the unpaid Purchase Price
due at Settlement.
15. Default. If Purchaser without cause shall fail or refuse to make
Settlement hereunder for any reason other than a termination of this
Agreement by either party as provided herein or a default by Seller under
the terms of this Agreement, the amount of damages not being ascertainable,
the Deposit provided in Section 4 above shall be forfeited and the same
shall forthwith be delivered by the Escrow Agent to Seller as liquidated
damages. In the event of such default by Purchaser, Seller's sole remedy
shall be restricted to retention of said Deposit, and Purchaser shall have
no other responsibility or liability of any kind to Seller by virtue of
such default. If Seller, through no fault of Purchaser, shall fail to
perform its obligations hereunder to make full settlement in accordance
with the terms hereof, Purchaser shall have the right to terminate this
Agreement and have the Deposit promptly returned to Purchaser, to seek
specific performance of the terms hereof, and/or to exercise any other
rights and remedies available to Purchaser at law or in equity, provided
Purchaser shall in no event be entitled to an award of consequential
damages from Seller.
16. Broker. Each party, by the execution hereof, represents and
warrants that neither party has engaged the services of any broker, finder,
agent or other similar person or entity in connection with this transaction
other than Associated Realty, Inc. of Parsippany, New Jersey, which will be
paid a fee by Seller upon consummation of Settlement pursuant to separate
agreement. Each party shall indemnify and hold harmless the other against
and from any loss, cost, damage or fee (including attorneys' fees)
resulting from any inaccuracy of such representation and warranty.
17. Definition of "business day". For purposes of this Agreement,
the term "business day" as used herein shall mean all days of the week
except for Saturday, Sunday and any other days which are declared federal
bank holidays in Newark, New Jersey. If any period of time ends, or if any
act is required to be performed, on a day other than a business day, then
the applicable period of time shall be deemed to expire, or the date
required for the performance of the appropriate obligation shall be deemed
to be extended, on the next business day following the applicable date of
performance.
18. Miscellaneous.
A. Notices. Any and all notices, requests or other
communications hereunder shall be deemed to have been duly given on the day
of actual delivery thereof (as evidenced by receipt therefore) if in
writing and if transmitted by hand delivery with receipt therefor, by
recognized overnight courier, or by registered or certified mail, return
receipt requested (or, as to a notice pursuant to Section 9 hereof, via
facsimile transmission with a confirmation by the sending machine of
receipt by the receiving machine) addressed as follows (or to such new
address as the addressee of such a communication may have notified the
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sender thereof):
To Seller: BARLAX
Attention: Xxxxxx Xxx, General Managing Partner
00 Xxxx Xxxxxx
Xxxxxxx, X.X. 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
With Copy to: Xxxxx X. Xxxxx, Esq.
000 Xxxxxx Xxxxxxx Xxxx
Xxx Xxxx, X.X. 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
To Purchaser: WELLSFORD COMMERCIAL PROPERTIES, L.L.C.
Attention: Xxxxxxx X. Xxxxxxx, Managing Member
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
With a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Saas, P.C.
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
To Escrow Agent: Xxxxx X. Xxxxx, Esq.
000 Xxxxxx Xxxxxxx Xxxx
Xxx Xxxx, X.X. 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
B. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New Jersey.
C. Headings. The captions and headings herein are for convenience
and reference only and in no way define or limit the scope or content of
this Agreement or in any way affect its provisions.
D. Effective Date. This Agreement shall be effective as of the date
of full and final execution and delivery hereof by Purchaser and Seller.
E. Counterpart Copies. This Agreement may be executed in two or
more counterpart copies, all of which counterparts shall have the same
force and effect as if all parties hereto had executed a single copy of
this Agreement.
F. Binding Effect; Assignment. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns; provided, however, that Purchaser shall not be
entitled to assign this Agreement without the prior written consent of
Seller, which consent shall be given or withheld at Seller's reasonable
discretion, provided however that Seller's consent shall not be required
for any assignment of this Agreement to an entity in which Purchaser (or
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any member of Purchaser) is a general partner, controlling shareholder,
managing member or otherwise has a substantial affiliation or owns a
substantial economic interest.
G. Entire Agreement. This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto
with respect to the sale and purchase of the Property and are intended to
be an integration of all prior negotiations and understandings. Purchaser
and its agents, and Seller and its agents, shall not be bound by any terms,
conditions statements, warranties or representations, oral or written, not
contained herein. No change or modifications to this Agreement shall be
valid unless the same is in writing and signed by the parties hereto. No
waiver of any of the provisions of this Agreement shall be valid unless the
same is in writing and is signed by the party against with which it is
sought to be enforced.
H. Risk of Loss. The risk of loss to the Property shall remain with
Seller and shall pass to Purchaser simultaneously with Seller's delivery of
a deed to the Property to Purchaser or Purchaser's agent at Settlement.
I. Survival. The terms and provisions of this Agreement shall
survive Settlement and delivery of a deed, and shall not be merged therein,
provided that the representations and warranties shall expire nine (9)
months after the date of Settlement unless Purchaser notifies Seller in
writing of the existence of such a claim, with reasonable specificity, on
or before such date.
J. Recordation. Neither this Agreement nor any memorandum or other
summary of this Agreement shall be placed of public record under any
circumstances except with the prior written consent of the Seller and the
Purchaser.
K. Exhibits
A - Description of Real Property
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date or dates set forth below.
WITNESS: SELLER:
BARLAX, a New Jersey partnership
___________________________ By: /s/ Xxxxxx Xxx
----------------------------
Name: Xxxxxx Xxx
Title: General Managing Partner
Date: December 2, 1996
PURCHASER:
WELLSFORD COMMERCIAL PROPERTIES, L.L.C., a
Delaware limited liability company
__________________________ By: /s/ Xxxxxxx X. Xxxxxxx
12
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
Date: December 2, 1996
ESCROW AGENT:
/s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx, Esquire
Date: December 2, 1996
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December 23, 1996
VIA TELECOPIER
Barlax
Attn: Xx. Xxxxxx Xxx
General Managing Partner
00 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Re: Agreement of Sale, dated December 2, 1996, by and between Barlax, a
New Jersey General Partnership, as "Seller" and Wellsford Commercial
Properties, L.L.C., as "Purchaser" (the "Agreement")
Dear Xx. Xxx:
Reference is hereby made to the above-captioned Agreement. This letter is
intended to constitute an amendment to the Agreement, and capitalized terms
used herein shall have the same meaning as were ascribed to such terms in
the Agreement.
Section 9 of the Agreement shall be, and the same hereby is, amended by
substituting the date "January 7, 1997" for the date "January 2, 1997", in
each place where such date appears within Section 9.
Except as modified hereby, the Agreement shall remain in full force and
effect, unmodified. Please indicate your agreement to the foregoing by
countersigning this letter where indicated below, and returning it to me.
Thank you.
Very truly yours,
WELLSFORD COMMERCIAL PROPERTIES, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx, Managing Member
AGREED:
BARLAX, a New Jersey General Partnership
By: /s/ Xxxxxxx Xxx
---------------------------
Xxxxxxx Xxx, General Managing Partner
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April 1, 1997
Barlax, a New Jersey General Partnership
Attn: Xx. Xxxxxx Xxx
General Managing Partner
00 Xxxx Xxxxxx
Letter Amendment #2
Xxxxxxx, Xxx Xxxxxx 00000
Fax No. (000) 000-0000
Re: Agreement of Sale, dated December 2, 1996, by and between Barlax, a
New Jersey General Partnership, as "Seller" and Wellsford Commercial
Properties, L.L.C., as "Purchaser" (the "Agreement")
Dear Xx. Xxx:
Reference is hereby made to the above-captioned Agreement. This letter is
intended to constitute an amendment to the Agreement, and capitalized terms
used herein shall have the same meaning as were ascribed to such terms in
the Agreement.
This will confirm that the Purchaser will not be terminating the Agreement
pursuant to Section 9 thereof. In accordance with Section 4 of the
Agreement, we are wire transferring the Second Deposit to the Escrow
Agent's escrow account. In consideration of the Purchaser's decision not
to exercise its termination right set forth in Section 9 of the Agreement,
the Purchaser and Seller hereby agree that, notwithstanding Section 5 of
the Agreement to the contrary, Settlement shall take place on Januray 29,
1997. Except as modified hereby, the Agreement shall continue in full
force and effect, unmodified. This Letter Amendment may be executed in
couterparts.
By our signatures below, we each indicate our acceptance of the foregoing
modifications as of this date. Thank you.
Very truly yours,
WELLSFORD COMMERCIAL BARLAX, a New Jersey General
PROPERTIES, L.L.C. Partnership
By: ______________________ By:__________________________
Xxxxxxx X. Xxxxxxx, Xxxxxx Xxx, General
Managing Partner Managing Member
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