EXHIBIT 10.12
AGREEMENT made this 29th day of March, 2001 by and between
LIGHTHOUSE LANDINGS, INC.
000 Xxxxxxx 00
Xxxxxxx, Xxx Xxxxxx 00000
("Seller")
HIGHLANDS WATERFRONT, L.L.C.
c/o XXXXXX X. XXXXXX,
000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxxxxx, Xxx Xxxxxx 00000
("Buyer")
SECTION 1. PROPERTY
--------------------
The components of the Property (hereinafter collectively "the Property"),
the subject of this Agreement, are located in the Borough of Highlands, County
of Monmouth, Block 50, Lots 1, 1.01, 1.02, 2 and 2.01 on the Municipal Tax Maps
of the Borough of Highlands. Title to Block 50, Lots 1, 2 and 2.01, is vested in
Seller pursuant to a Deed from Drydock Cafe, Inc. dated December 29, 1996, and
recorded on February 20, 1997 in Monmouth County Deed Book 5576, Page 890. Block
50, Lots 1.01 and 1.02 are the subject of a now expired riparian Revocable
License in favor of Xxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx.
Certain portions of the Property are also known as Lots 13-18 on a Map entitled
"Map of Building Lots at Navasink Highlands, Highlands, New Jersey", recorded in
Deed Book 2381 at Page 174 in the Monmouth County Clerk's Office. Another
portion of the Property is the subject of a Riparian Deed from the State of New
Jersey to J. & M. Holding Company, Inc., dated June 29, 1964, and recorded April
20, 1970 in Monmouth County Deed Book 3686, Page 393 ("the Riparian Grant"). The
Property is commonly known as 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
SECTION 2. SALE OF PROPERTY
----------------------------
At the closing, Seller shall sell to Buyer and Buyer shall buy from Seller, the
Property, consisting of Block 50, Lots 1, 2 and 2.01, together with the land and
all the buildings, other improvements and fixtures erected thereon, and all of
Seller's riparian and other rights relating to the Property, free of liens,
encumbrances, tenancies, and uses of any sort unless expressly permitted
hereunder, but subject to the terms and conditions of this Agreement. Seller
shall also sell to Buyer whatever rights Seller may possess with respect to
Block 50, Lots 1.01 and 1.02.
SECTION 3. PURCHASE PRICE
--------------------------
The purchase price is One Million One Hundred and Fifty Thousand and 00/100
($1,150,000.00) Dollars.
SECTION 4. PAYMENT OF PRICE
----------------------------
4.1. Payment
-------
Buyer will pay the purchase price as follows:
(a) Upon execution of this agreement to be held in escrow by
Xxxxxx X. Xxxxxx, Esq., 000 Xxxxx Xxxx, Xxxxx X-0, Xxxxxxxxx, Xxx Xxxxxx 00000,
attorney for Buyer (hereinafter "escrowee"), until closing.............$5,000.00
(b) Upon obtaining a commitment for tile insurance satisfactory to
Buyer, to be held in escrow by escrowee...............................$25,000.00
(c) At closing to be paid by wire transfer or certified or bank
cashier's check....................................................$1,120,000.00
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TOTAL:........................................................... $1,150,000.00
SECTION 4. CLOSING
-------------------
Closing shall take place at the offices of Xxxxxx X. Xxxxxx, Esq., 000
Xxxxx Xxxx, Xxxxx X-0, Xxxxxxxxx, Xxx Xxxxxx 00000 on or before June 15, 2001 or
any other date or place to which
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the parties shall agree. At the closing, Seller will transfer ownership of the
Property to Buyer by Bargain & Sale Deed with Covenants Against Grantors' Acts
and shall tender an adequate Affidavit of Title.
SECTION 5. QUALITY OF LIFE
---------------------------
The quality of title to be transferred by Seller to Buyer shall be
marketable and insurable at regular rates by a reputable title insurance company
authorized to do business in New Jersey which shall be subject only to the
following exceptions, provided that they do not prevent the use of the Property
as a marina:
(a) The rights of utility companies to maintain pipes, poles, cable and
wires over, on and under the street, the part of the Property next to the street
or running to any improvement on the Property;
(b) Recorded agreements which limit the use of the Property, unless such
agreements are (1) presently violated; (2) provide that the Property would be
forfeited if they were violated; or (3) unreasonably limit the use of the
Property as presently constituted;
(c) Applicable laws and ordinances including zoning ordinances and codes;
(d) Such facts as are revealed by an accurate survey and a visual
inspection of the Property;
(e) Various rights of the State of New Jersey due to the riparian nature
of the Property, as well as any rights contained in the Riparian Grant.
(f) Rights of the State of New Jersey with respect to lands now or
formerly flowed by tide waters;
(g) Rights of the Federal government concerning navigable waters.
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SECTION 6. PHYSICAL CONDITION OF THE PROPERTY
----------------------------------------------
Except as may be set forth in this agreement, the Property is being sold
"as is". Seller does not make any claims or promises about the condition or
value of the Property included in this sale. Buyer has inspected the Property
and relies on this inspection and any other rights conveyed herein. Seller shall
continue to maintain the Property and grounds pending the closing. At the
closing, the buildings and structures located thereon (the "Improvements") shall
be delivered broom clean, and the grounds shall be delivered free of debris,
rubbish and other unsightly objects.
SECTION 7. RIPARIAN RIGHTS
---------------------------
7.1 Grant
-----
Seller has disclosed to Buyer that all or a portion of the Property is now,
or formerly was tide-flowed and that the Seller of New Jersey has conveyed a
Riparian Grant by Deed to Seller's predecessor in title. Seller warrants and
represents that this Riparian Grant is in full force and effect and is
transferable to Buyer at closing.
7.2 Riparian Revocable License
--------------------------
Seller acknowledges that certain Riparian Revocable License affecting
Block 50, Lots 1.01 and 1.02 from Tidelands Resource Council in the Department
Environmental Protection, as Licensor, and Xxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx
and Xxxx X. Xxxxxx, as Licensees, dated September 9, 1987 was formerly in effect
but expired on or about August 12, 1992. Seller will cooperate with Buyer to
seek to procure a new, renewal, substitute or reinstated Riparian Revocable
License. To the extent that the issuance or renewal of the Riparian Revocable
License requires payment of license fees or other charges attributable to
periods prior to the
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Closing, same shall be paid and deducted from Seller's closing proceeds subject
to a maximum of $57,500.
SECTION 8. ENVIRONMENTAL CONDITIONS
------------------------------------
8.1 Definitions
-----------
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Hazardous Substances" includes but is not limited to any and all
substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or regulatory
effect under any present or future Environmental Laws or that may have a
negative impact on human health or the environment, including but not limited to
petroleum and petroleum products, asbestos and asbestos-containing materials
("ACM"), polychlorinated biphenyls ("PCBs"), lead, lead-based paints, radon,
radioactive materials, flammables and explosives. (b) "Release" with respect to
any Hazardous Substance includes but is not limited to any release, deposit,
discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting,
pumping, pouring, emptying, escaping, dumping, disposing or other movement of
Hazardous Substances. (c) "Storage Tanks" includes any underground or
aboveground storage tanks, whether filled, empty, or partially filled with any
substance.
8.2 Warranties
----------
Seller makes the following representations and warranties to Buyer with
respect to environmental matters, each of which will be true at closing, and
subject to no exceptions unless set forth in Exhibit 8.2 annexed thereto.
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(a) Hazardous Substances
--------------------
There are no Hazardous Substances or Storage Tanks in, on, above, or under
the Property, except those that are either (i) Hazardous Substances of such
types and in such quantities as are customarily used or stored or generated for
offsite disposal or otherwise present in or at properties of the relevant
property type, and in compliance with all Environmental Laws and with permits
issued pursuant thereto, or (ii) fully disclosed to and approved by Buyer in
writing.
(b) No Releases
-----------
There are no past, present or threatened Releases of Hazardous Substances
in, on, above, under or from the Property.
(c) No Migration
------------
There is no threat of any Release of Hazardous Substances migrating to the
Property.
(d) No Violations
-------------
There is no past or present non-compliance with Environmental Laws, or with
permits issued pursuant thereto, in connection with the Property.
(e) No Notice
---------
Seller does not know of, and neither Seller nor any tenant of the Property
has received, any written or oral notice or other communication from any person
or entity (including but not limited to a governmental entity) relating to
Hazardous Substances or Remediation thereof, of possible liability of any person
or entity pursuant to any Environmental Law, other environmental conditions in
connection with the Property, or any actual or potential administrative or
judicial proceedings in connection with any of the foregoing.
(f) Complete Disclosure
-------------------
Seller has truthfully and fully provided to Buyer, in writing, any and
all information
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relating to conditions in, on, above, under or from the Property that is known
to Seller and that is contained in files and records of Seller, including but
not limited to any reports relating to Hazardous Substances in, on, above, under
or from the Property and/or to the environmental condition of the Property.
(g) Authorization
-------------
All notices, permits, licenses, registrations, or similar authorizations,
if any, required to be obtained or filed in connection with the ownership,
operation, or use of the Property, including, without limitation, the existence
of any Storage Tanks at the Property or the past or present generation,
treatment, storage, disposal, or release of a Hazardous Substance into the
environment, have been duly obtained or filed and have been duly renewed or
maintained.
(h) Property Compliance
-------------------
The Property and the operations conducted thereon do not violate any
applicable law, statute, ordinance, rule, regulation, order, or determination of
any governmental authority or any restrictive covenant or deed restriction
(recorded or otherwise), including without limitation all applicable zoning
ordinances and building codes, flood disaster laws and Environmental Laws.
(i) Seller's Investigation
----------------------
Seller has taken all steps necessary to determine, and has determined, that
no Hazardous Substances are or have been generated, treated, stored, used,
disposed of or released on, under, from, or about the Property, except in
compliance with applicable Environmental Laws.
(j) No Litigation
-------------
Except as otherwise previously disclosed to Buyer in writing, there is no
pending or threatened litigation, proceedings, or investigations before or by
any administrative agency in which any person or entity alleges or is
investigating any alleged presence, Release, threat of
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Release, placement on, under, from or about the Property, or the manufacture,
handling, generation, transportation, storage, treatment, discharge, burial, or
disposal on, under, from or about the Property, or the transportation to or from
the Property, of any Hazardous Substance.
(k) No Communications
-----------------
There have been no communications or agreements with any governmental
authority thereof or any private entity, including, but not limited to, any
prior owners or operators of the Property, relating in any way to the presence,
Release, threat of Release, placement on, under or about the Property, or the
use, manufacture, handling, generation, transportation, storage, treatment,
discharge, burial, or disposal on, under or about the Property, or the
transportation to or from the Property, of any Hazardous Substance, except for
communications made in the ordinary course of business in connection with
permits, reports, and routine inspections issued, prepared or conducted by
government agencies or authorities having jurisdiction over the Property.
8.3 ISRA
----
Seller, at its cost and expense, shall obtain any and all necessary
clearances from the New Jersey Department of Environmental Protection ("NJDEP")
with respect to the Industrial Site Recovery Act of New Jersey ("ISRA"), if
applicable. In this regard, Seller represents that its SIC Number is 4482 and
the SIC Numbers of all tenants at the Property are New York Fast Ferry 4482. If
any cleanup shall be required, the cost of such cleanup shall be borne by
Seller.
SECTION 9. INSPECTION OF PROPERTY
-----------------------------------
Seller shall permit Buyer to inspect the Property at any reasonable time
before the closing upon reasonable notice to Seller. Additionally, Buyer may
have any inspection it wishes with
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respect to existing environmental conditions at the Property. Buyer shall
indemnify, defend and hold harmless Seller from and against any claims, damage
or loss caused by Buyer's entry upon the Property. Buyer agrees to repair any
damages caused to the Property by Buyer or its agents upon any inspection or
entry. If in Buyer's sole discretion, it is not satisfied with the results of
such inspections, Buyer may require remediation of such disclosed conditions at
Seller's expense as Buyer shall designate, but not in excess of 10% of the
purchase price. In the alternative, Buyer may void the transaction by written
notice to seller, whereupon Buyer shall receive a return of its deposit and
neither party shall have further liability to the other thereunder. Buyer shall
have until the expiration of the contingency period, set forth in Section 15
hereof, to notify Seller of any request or election hereunder.
SECTION 10. RISK OF LOSS
-------------------------
If prior to closing (a) the whole or a substantial portion of the
Improvements shall be destroyed by fire or other casualty, or (b) a lessor
portion shall be so destroyed and the damage cannot lawfully be repaired, or (c)
all or a substantial portion of the Property shall be condemned or taken by
eminent domain by any competent authority for any public or quasi-public use or
purpose or notice of a proposed such condemnation or taking shall be given, then
in any such event either party shall have the option to cancel this Agreement
within twenty (20) days after such event by written notice of cancellation to
the other. If either party shall elect pursuant to such option to cancel this
Agreement, Buyer shall be entitled to return of the Deposit and both parties
shall be relieved and discharged of all further liability hereunder. If,
however, neither party shall elect to cancel this Agreement, then Buyer shall be
entitled, in the case of fire or other casualty, to receive from the insurance
carriers all insurance proceeds or, in the case of a condemnation or taking by
eminent domain, to receive the entire award for the Property or the
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portion thereof so taken and Seller will execute and deliver to Buyer at the
closing hereunder all proper instruments for the assignment and collection of
such proceeds or award and the purchase price shall be reduced by such amount,
if any, as shall reasonably be required for restoration but shall not have
compensated by insurance proceeds or the condemnation award, as the case may be.
In the alternative, Buyer can proceed with the closing and either:
(a) require that the Seller repair the damage before the closing; or
(b) deduct from the purchase price a fair and reasonable estimate of the
cost to repair the Property.
Seller represents that there are no pending condemnation proceedings
against the Property, and Seller is unaware of any such threatened or
contemplated proceedings.
SECTION 11. FAILURE TO CLOSE
----------------------------
If Buyer shall fail to consummate the purchase of the Property through no
fault of Seller, Seller shall be entitled to its actual damages, if any, if same
is subject to computation and admeasurement. In the event that same is not
subject to computation and admeasurement, Seller shall retain the deposit
heretofore paid as liquidated damages.
SECTION 12. ASSESSMENTS
-----------------------
All unpaid municipal assessments against the Property for work completed
prior to the closing will be paid by Seller at or before the closing. If the
improvement is not completed before the closing, Buyer will be responsible for
the payment thereof. If the improvement is completed but the amount of the
assessment is not yet determined, Seller will pay an estimated amount at the
closing. When the amount is finally determined, Seller will pay any deficiency
to Buyer or Buyer will return any excess to Seller.
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SECTION 13. ADJUSTMENTS
-----------------------
At the closing, Buyer and Seller shall adjust the following: Taxes, rents,
municipal water and sewer charges, assumed insurance premiums, fuel and other
items customarily required to be adjusted at closing. Any person with a claim or
right affecting the Property shall be paid off out of the proceeds of this sale.
SECTION 14. POSSESSION
----------------------
At the closing, Buyer will be given possession of the Property. No tenant
or licensee will have any right to the Property unless otherwise agreed herein.
SECTION 15. CONTINGENCIES
-------------------------
15.1 Approvals
---------
The performance by Buyer of this Agreement is subject to and contingent
upon Buyer's reasonable satisfaction that all necessary and appropriate
governmental approvals to operate the subject Property as a marina, including
without limitation DEP approval, CAFRA Permits, Waterfront Development Permits,
Tidelands approval and U.S. Army Corp. of Engineers approval, are available upon
due and proper application. Buyer shall have sixty (60) days from the date of
this Agreement to obtain such reasonable satisfaction, and shall have the right,
on notice to Seller, to extend such period for an additional thirty (30) days if
required.
15.2 Environmental Preliminary Assessment
------------------------------------
Performance by Buyer of this Agreement is further subject to and contingent
upon the receipt by Buyer at Buyer's expense of an Environmental Preliminary
Assessment in form acceptable to Buyer with respect to conditions at the
premises, including without limitation underground storage tanks and other
environmental matters. Buyer shall have sixty (60) days from the date of this
Agreement to obtain such acceptable Environmental Preliminary
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Assessment, and shall have the right, on notice to Seller, to extend such period
for an additional thirty (30) days if required.
SECTION 16. BROKERAGE
---------------------
Each party represents to the other that neither has utilized the services
of a real estate broker, finder or other person entitled to a fee or commission
in connection with this transaction, and that no rights are created in any such
person for a fee or commission hereunder, except Xxxxx X. Xxxxxxxx of Heritage
House Realtors and Xxx X'Xxxxx of Weichert Realtors, who shall be paid a
commission by Seller pursuant to separate agreement. In the event that any other
person shall make a claim for a fee or commission as a result of this
transaction, the party through whom such claim arises shall indemnify the other
from any liability to such person for the fee or commission claimed, including
defense costs, attorney's fees and the like.
SECTION 17. ENTIRE AGREEMENT
----------------------------
Any prior agreements, letters of intent or expressions of intent between
the parties, whether written or verbal, are deemed merged into this Agreement,
which is deemed to be the entire agreement of the parties, and any terms and
conditions not found herein shall not be deemed valid or enforceable.
SECTION 18. NOTICES
-------------------
All notices under this Agreement must be in writing. The notices must be
delivered personally or mailed by certified mail, return receipt requested, to
the other party at the address set forth in this Agreement.
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A copy of any notice to Seller shall be given as follows:
XXXXXXX X. XXXXXXXXX, ESQ.
West Xxxxxxxx Office Park
000 Xxxxxxxxx xxxxxx, Xxxxx 0X
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
A copy of any notice to Buyer shall be given as follows:
XXXXXX X. XXXXXX, ESQ.
000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
SECTION 19. MODIFICATION
------------------------
This Agreement may not be modified verbally but only by an agreement in
writing signed by all parties hereto.
SECTION 20. WAIVER
------------------
The failure of any party to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision or provisions
or of the right of such party thereafter to enforce any such provision.
SECTION 21. APPLICABLE LAW
--------------------------
This Agreement shall be governed by and construed under the laws of the
State of New Jersey.
SECTION 22. BINDING EFFECT
--------------------------
This Agreement shall be binding upon the parties hereto, their respective
successors, representatives, heirs, beneficiaries and assigns.
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SECTION 23. PRONOUNS AND GENDER
-------------------------------
As used herein, each of the masculine, feminine or neuter genders shall
include the other genders, the singular shall include the plural and the plural
shall include the singular, whenever appropriate to the context.
SECTION 24. SEVERABILITY
------------------------
If any portion of this Agreement should be declared by a Court of competent
jurisdiction to be illegal or unenforceable, it shall not affect the balance of
this Agreement, but shall be deemed served therefrom, with the balance of the
Agreement remaining in full force and effect.
SECTION 25. ASSIGNMENT
----------------------
Buyer shall have the right, on notice to Seller, to assign this Agreement
to any person or entity which thereupon will be deemed substituted for Buyer as
though originally named herein. Upon such Assignment, if any, Seller shall
deliver the Deed and other closing requirements to such Assignee.
SECTION 26. CAPTIONS
--------------------
All articles, sections and paragraph titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the text of
this Agreement.
SECTION 27. ARBITRATION
-----------------------
Any controversy, dispute or claim arising out of or relating to this
Agreement, or its breach, including any controversy, claim or dispute concerning
whether same is arbitrable, shall be settled by arbitration in Union County, New
Jersey by a single Arbitrator, mutually designated by the parties. Any party
wishing arbitration shall make a demand therefor upon the other. The parties
shall have thirty (30) days from the date of the demand to agree to the identity
of the Arbitrator, and any rules they wish to make for the conduct of the
arbitration. Failing such
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agreement, the party demanding arbitration shall apply to the New Jersey
Superior Court for an Order appointing an Arbitrator. The Arbitrator shall be
required as part of the submission to make findings of fact and conclusions of
law. The costs of arbitration shall be borne as directed by the Arbitrator.
Judgement upon the Award rendered may be entered and enforced in any Court of
competent jurisdiction.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year first above written.
WITNESSES: LIGHTHOUSE LANDINGS, INC.
/s/ Xxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------- -------------------------------------
Xxxx Xxxxxxxx By: Xxxxxxx X. Xxxxxxxxx (Print Name)
CFO - Treasurer Title: Vice President
/s/ Xxxxxxx Xxxxxxx
--------------------------- HIGHLANDS WATERFRONT L.L.C.
Xxxxxxx Xxxxxxx Buyer
/s/ Xxxxx Xxxx
-------------------------------------
By: Xxxxx Xxxx (Print Name)
Title: President
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