EXHIBIT 10.1
AMENDED AND RESTATED AGREEMENT OF SALE
THIS AGREEMENT (the "Agreement"), made effective as of this November 10,
2004, by and between LEHIGH ACQUISITION CORPORATION, a New Jersey corporation
having an address at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxx Xxxxxx 00000,
(the "Seller") and 00 XXXX 00XX XXXXXX REALTY CORP., a New Jersey corporation
having an address at 00 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Buyer").
WITNESSETH:
WHEREAS, the parties entered into an original Agreement of Sale (the
"Original Agreement of Sale") dated as of July 1, 2004, regarding certain real
property and the improvements thereon located on Lot 1 in Block 511 of the Tax
Map of the Township of Cranford, New Jersey, commonly known as 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the "Property");
WHEREAS, in order to implement certain provisions of the Original
Agreement of Sale, the Seller's parent entity, NuWave Technologies, Inc.,
delivered to the Buyer a Convertible Debenture (the "Convertible Debenture") in
the original principal amount of $1,783,549.25;
WHEREAS, the Original Agreement of Sale and Convertible Debenture are
hereby rescinded and terminated in their entirety and this Agreement constitutes
the entire agreement of the parties regarding the Property;
WHEREAS, Seller is the 100% owner of the Property; and
WHEREAS, Buyer is desirous of acquiring a twenty percent (20%) interest in
the Property as a tenant-in-common pursuant to the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. Agreement to Sell and Purchase. Seller agrees to sell to Buyer, and
Buyer agrees to buy from Seller, a twenty percent (20%) fee simple interest in
the Property as a tenant-in-common, such interest in land being more
particularly described on Exhibit A, together with all right, title and
interest, if any of Seller in and to any lands lying in any stream, street, road
or highway in front of or adjoining the Property and all right, title and
interest of Seller in and to any awards made or to be made in lieu thereof.
2. Purchase Price. Buyer agrees to pay to Seller and Seller agrees to
accept from Buyer as and for the purchase price for a twenty percent (20%) fee
simple interest in the Property the sum of ONE MILLION FOUR HUNDRED TWENTY SIX
THOUSAND EIGHT HUNDRED THIRTY NINE AND 41/100 DOLLARS ($1,426,839.41) (the
"Purchase Price"), of which $1,783,549.25 was paid to the Seller in connection
with the Original Agreement of Sale.
3. Title to the Property. Subject to Buyer's rights under Sections 4
and 6 under this Agreement, a twenty percent (20%) fee simple interest in the
Property is being sold and Buyer agrees to purchase a twenty percent (20%) fee
simple interest in the Property as a tenant-in-common subject to the following
Permitted Exceptions (the "Permitted Exceptions"):
(a) Zoning ordinances and other applicable governmental
regulations and requirements;
(b) Rights of the public and adjourning owners in highways,
streets, roads and lanes bounding the Property;
(c) Rights and easements relating to the construction, operation
and maintenance of utility lines, wires, cables, pipes, poles,
distribution boxes and other such equipment in, on, over, or under the
Property, and other easements and rights;
(d) Covenants, restrictions or agreements of record, affecting the
Property, provided that no such covenant, restriction or agreement or
record has been violated and that future violation will not result in a
forfeiture or require any monetary payments by Buyer;
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(e) Outstanding rights in adjoining roads;
(f) The state of facts as might be disclosed by a survey,
inspection and/or title search of the Property, provided same do not
render title unmarketable;
(g) Liens for unpaid taxes, assessments, water charges and sewer
rents, subject to adjustment as set forth in this Agreement;
(h) Standard conditions and exceptions to title contained in the
current form of ALTA Owner's Standard Form B Title Insurance Policy.
4. Seller's Representations. Seller represents and warrants to the
Buyer only with respect to the Property owned by Seller as follows:
(a) The person executing and delivering this Agreement on behalf
of the Seller is authorized to do so and no consent of any other person,
firm or entity is required for the Seller to enter into this Agreement.
Seller has the authority to enter into this Agreement and to consummate
the transactions contemplated hereunder.
(b) The execution and performance of this Agreement (i) shall not
be a breach or violation of any agreement to which Seller is a party
and/or Seller has obtained the necessary approval for the execution and
performance of same, and (ii) does not conflict with any order, judgment,
injunction, award or decree of any governmental body, administrative
agency or court affecting Seller or by which Seller or any of Seller's
assets or properties is or are bound.
(c) Seller will not further sell, convey, assign or contract to
sell, convey, assign, or pledge, all or any part of the Property, nor
restrict the use of all or any part of the Property, nor take or cause to
be taken any action in conflict with this Agreement at any time between
the date of this Agreement and Closing.
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(d) Seller is the sole owner of the Property and has the full
right, power and authority to sell, convey and transfer to Buyer a twenty
percent (20%) interest in the Property as a tenant-in-common.
5. Buyer's Representations. Buyer represents and agrees as follows:
(a) The person executing and delivering this Agreement on behalf
of the Buyer is authorized to do so and no consent of any other person,
firm or entity is required for the Buyer to enter into this Agreement.
Buyer has the authority to enter into this Agreement and to consummate the
transactions contemplated hereunder.
(b) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby will not result in
the breach of any agreement to which the Buyer or any affiliate of the
Buyer is a party.
(c) Buyer is a sophisticated business person experienced in real
estate development and has entered into this Agreement with the knowledge
that Seller intends to pursue the development of the Property; however,
Seller has not made any representations as to whether the development
approvals will be obtained or whether the ultimate development of the
Property will increase the value of Buyer's investment.
6. Conditions Precedent to Closing.
(a) The following shall be further conditions precedent to Buyer's
obligation to close:
(i) Seller delivering fee simple title as a tenant-in-common
to the twenty percent (20%) interest in the Property in accordance
with the provisions hereof.
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(ii) The truth and accuracy of Seller's warranties and
representations herein being true and correct as of the date of
Closing.
(iii) On the date of Closing, no proceedings shall be pending
or threatened that could or would affect Seller's interest in the
Property.
In the event that any of the conditions precedent referred to in this
paragraph 6(a), or any of the representations set forth in Article 4 of this
Agreement are not materially true as of the date of Closing, then the Buyer
herein may terminate this Agreement upon written notice to Seller.
7. Closing of Title. The Closing shall take place at the offices of
DeCotiis Xxxxxxxxxxx, Xxxx & Xxxxxx, LLP, 000 Xxxxx X. Xxxx Xxxxxxxxx, Xxxxxxx,
Xxx Xxxxxx 00000 on such date and at such time as shall be agreed upon in
writing by Seller and Buyer. It is estimated that the time for Closing shall be
on or about November 19, 2004 or at such other time as shall be agreed upon in
writing between Buyer and Seller (the "Closing").
8. Closing Deliveries.
(a) At Closing, Seller shall deliver to Buyer the following:
(i) A Bargain and Sale Deed with covenant against grantor's
acts to the twenty percent (20%) interest in the Property, in proper
statutory form for recording subject only to Permitted Exceptions.
Seller shall utilize in the deed the metes and bounds description
set forth in Exhibit A.(ii) An Affidavit of Title in the usual form,
shall be made to the best knowledge, information and belief of the
deponent thereof, however, without the obligation to investigate.
(ii) A refund of purchase price of $298,561.84.
(iii) An interest payment of $28,422.18, representing interest
from September 14, 2004 through November 10, 2004.
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(b) At Closing, Buyer shall deliver to Seller the following:
(i) The adjustments contemplated by Article 9 hereof shall
be made.
Each party shall deliver to the other party such other and further
documents and instruments as may reasonably be requested by the other party.
9. Brokerage. Each party represents to the other that it did not deal
with any real estate broker in connection with this transaction.
10. Notices. All notices, requests, consents, approvals or other
communications under this Agreement shall be in writing and sent by overnight
courier, transmitted by facsimile, or mailed by certified mail, return receipt
requested, postage prepaid, addressed to:
(a) If to Seller, at:
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxx X. Xxxxxxx, Esq.
DeCotiis, FitzPatrick, Xxxx & Xxxxxx, LLP
Glenpointe Centre West
000 Xxxxx X. Xxxx Xxxx.
Xxxxxxx, Xxx Xxxxxx 00000
(b) If to Buyer, at:
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxxx Present, Esq.
Xxxxxx Xxxxxxxx Xxxxx & Danke LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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All notices shall be effective if sent in the manner set forth above on
the date of receipt or rejection as evidenced by certified mail receipt card or
xxxx of lading as the case may be.
11. Merger. The acceptance of a deed by Buyer shall be deemed to be a
full performance by Seller of, and shall discharge Seller from, all obligations
hereunder; and Seller shall have no liability hereunder thereafter to Buyer. 12.
Further Assurances. Each of the parties hereby agrees to execute, acknowledge,
and deliver such other deeds, affidavits, certificates, documents or instruments
as the other may reasonably require from time to time to carry out the purposes
of this Agreement.
13. Miscellaneous Provisions. The parties further agree as follows:
(a) Neither party may assign this Agreement without the prior
written consent of the other party.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives,
successors (by operation of law or otherwise) and assigns.
(c) This Agreement contains the entire agreement between the
parties, and may not be modified or changed except by an agreement in
writing executed by the parties hereto.
(d) The captions herein are for convenience and reference only and
in no way define, limit or describe the scope or intent of this Agreement
or affect any of the terms or provisions hereof.
(e) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same Agreement.
(f) This Agreement shall be governed by the laws of the State of
New Jersey.
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(g) Submission of this Agreement for consideration is not an offer
and this Agreement shall be binding upon the parties hereto only upon the
execution and delivery hereof.
(h) Buyer hereunder desires to exchange other property of like
kind and qualifying use within the meaning of Section 1031 of the Internal
Revenue Code of 1986, as amended ("IRC"), and the Regulations promulgated
thereunder, for fee title (as a tenant-in-common) in the Property. Buyer
expressly reserves the right to assign its rights, but not its
obligations, hereunder to a Qualified Intermediary as provided in IRC Reg.
1.103(k)-1(g)(4) on or before the date of Closing.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
WITNESS: SELLER:
LEHIGH ACQUISITION CORPORATION
_________________________________ By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
BUYER:
00 XXXX 00XX XXXXXX REALTY CORP.
_________________________________ By: /s/ Xxxxxxx Xxxxxxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxxxxxx
Title: President
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Exhibit A
Legal Description
All that certain lot, tract or parcel of land and premises, situate, lying and
being in the Township of Xxxxxxxx, Union County, State of New Jersey, designated
as Block 511, Lot 1 on a Map entitled "Proposed Minor Subdivision of South
Avenue Property, Xxx 0, Xxxxx 000, Xxx 0 Xxxxx 511 and Xxx 0, Xxxxx 000,
xxxxxxxx xx Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx" which Map is dated April 24,
1985, revised to June 24, 1985, made by B and T Associates and filed in the
Office of the Union County Register on November 22, 1985 as Map No. 762-D1 and
D2, and also being more particularly described as follows:
BEGINNING at a point in the northerly sideline of South Avenue, said point
being distant 2,203.72 feet westerly along the said sideline from its point of
intersection with the Boundary line between the Township of Xxxxxxxx and the
Borough of Roselle; thence (1) South 80 degrees 07 minutes 15 seconds West
1265.65 feet to a point; thence (2) North 9 degrees 52 minutes 45 seconds West
100.00 feet to a point; thence (3) South 80 degrees 07 minutes 15 seconds West
250.00 feet to a point; thence (4) North 9 degrees 52 minutes 45 seconds West
100.00 feet to a point in the lands of, now or formerly, the N.J. Transit
Corporation; thence (5) North 80 degrees 07 minutes 15 seconds East, along the
lands of the N.J. Transit Corporation, 767.78 feet to a point in the southerly
line of a 50 foot railroad right of way; thence (6) North 89 degrees 05 minutes
01 seconds East, along the southerly line of the 50 foot wide right of way,
223.10 feet to a point of curvature; thence (7) Southeasterly, continuing along
the southerly line of the 50 foot wide right-of way, and along curve to the
right, having a radius of 1,885.08, an arc distance of 554.77 feet to a point in
the northerly sideline of South Avenue and the Point and Place of BEGINNING.
BEING the same premises conveyed to the Grantor by Deed of Xxxxxx X.
Xxxxxxx & Co., Inc., a New Jersey corporation, dated January 1, 1996 and
recorded in the Union County Register's Office on May 15, 1996 in Book 4380 of
Deed for said County at page 108 &c.
BEING premises commonly known and designated as 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx.
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