Exhibit 10.18
AGREEMENT OF SALE
This Agreement of Sale made this 27th day of July, 2004, by and between
WDH HOWELL, L.L.C., a New Jersey Limited Liability Company, having an address at
0 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxx, (hereinafter
referred to as "Seller"), and XXXXXX INTERNATIONAL, LTD., having offices at
Xxxxx 00 xxx Xxxxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 Attn: Xxxxxx X.
Xxxxxx, (hereinafter referred to as "Purchaser").
WHEREAS, Seller is owner of certain real property located in the
municipality of the Township of Xxxxxx, Monmouth County, N.J. known as Xxxxx
000, Xxx 0 xxx Xxxxx 49, Lots 30, 31, 44, 45, 45.01, 46, 47, 48, 49 & 50 on the
official tax map as more fully described on the annexed Schedule A;
WHEREAS, the Seller filed a voluntary petition in the Bankruptcy Court for
the District of New Jersey (the "Bankruptcy Court"); and
WHEREAS, Purchaser desires to purchase said Premises from Seller which
purchase is contingent upon and subject to the approval of the Bankruptcy Court;
and
WHEREAS, the parties hereto desire to set forth their mutual
understandings and agreements with respect to the sale and purchase of said
Premises.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. AGREEMENT TO SELL. Seller hereby agrees to sell and Purchaser hereby agrees
to purchase the Premises on the terms and conditions hereafter set forth. The
Premises to be sold consist of: (a) the land and all the buildings, other
improvements and fixtures on the land; (b) all of the Seller's rights relating
to the land; and (c) all personal property specifically included in this
Agreement, including, but not limited to, all office furniture, window
treatments, equipment, carpeting and telephone system located in the main office
of Building #2; (d) all permits and approvals pertaining to the Premises and (e)
each of the leases affecting the Premises. The Premises are more specifically
described on Schedule A attached hereto and made a part hereof.
2. PURCHASE PRICE. The purchase price for the Premises shall be $10,000,000
subject to adjustments as hereinafter provided payable as follows:
a. Initial deposit to be held in escrow by Seller's attorney
as provided hereunder..................................$ 25,000.00
b. Second deposit to be paid within five days of the
completion of the due diligence period, which deposit
shall be held in escrow pursuant to the terms hereof...$ 175,000.00
c. Third deposit shall be paid within five days of the
Bankruptcy Court Order approving this sale, which
deposit shall be held in escrow pursuant to
the terms hereof. .....................................$ 150,000.00
d. Balance to be paid at closing of title (subject to adjustments
at closing), by way of wired funds or certified/bank cashier's
check..................................................$ 9,650,000.00
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TOTAL PURCHASE PRICE $ 10,000,000.00
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3. TITLE
Title to the Premises shall be good, marketable, with title valid of
record, and insurable at regular rates by a title insurance company of
Purchaser's choice authorized to do business in the State of New Jersey, subject
to the following exceptions which shall be deemed "Permitted Exceptions":
a. Laws, regulations or ordinances of federal, state, county or local
entities or agencies having jurisdiction over the Premises, provided same
do not unreasonably interfere with the use and enjoyment of the Premises
for Purchaser's intended Use, as described in Paragraph 5 below.
b. Easements, covenants, and restrictions of record, provided the same
have not been violated; would not render title to the Premises not good or
unmarketable, nor would unreasonably interfere with the Purchaser's
Intended Use of the Premises.
c. Such state of facts as would be shown on an accurate survey of the
Premises, provided such facts do not render title to the Premises not good
or unmarketable, would not unreasonably interfere with Purchaser's
Intended continued Use of the Premises, nor would reveal encroachments
unto the Premises from adjoining properties or from the Premises onto
adjoining properties.
3.2. Within thirty (30) days from the date hereof, Purchaser shall procure a
preliminary certificate of title from a title insurance company of Purchaser's
choice licensed to do business in the State of New Jersey. Purchaser shall
promptly notify Seller, in writing, of any title exceptions set forth in such
preliminary certificate or in any amendments thereto which are not Permitted
Exceptions. Seller shall then have a thirty (30) day period after such notice to
clear or remove the non-Permitted Exceptions to the satisfaction of Purchaser
and Purchaser's title company. Seller shall be entitled to remove such
non-Permitted Exceptions (i) by obtaining the Final Order (as hereinafter
defined) authorizing the sale of the Premises free and clear of such
non-Permitted Exceptions on notice to the holder of such non-Permitted Exception
based on a legally cognizable ground; or (ii) otherwise. In the event Seller
cannot remove all title objections, in accordance with this paragraph, Purchaser
will have the option of (i) attempting to remove or resolve said title
objections for a period of 60 days from the date of notice that Seller cannot
remove the title objections; (ii) terminating this Agreement whereupon the
deposit together with interest will be returned to the Purchaser; (iii)
accepting such title as Seller is able to convey. Those title objections which
shall not be cancelled and discharged of record in accordance with the terms,
conditions and provisions of this Paragraph are hereafter referred to as
"Permitted Title Exceptions".
4. TERMINATION OF AGREEMENT. If, pursuant to the terms of this Agreement, this
Agreement shall be terminated or cancelled, then Seller shall return the full
deposit (including the Initial Deposit and Second Deposit), together with
interest earned thereon to Purchaser. Upon the return of the deposit, neither
Seller nor Purchaser shall have any further liability to the other.
5. PURCHASER'S INTENDED USE. Seller and Purchaser agree that Purchaser is
purchasing the Premises for the purposes of utilizing the Premises for
manufacturing, research and development ("Purchaser's Intended Use") as
permitted in the Township of Xxxxxx Land Use Ordinance pertaining to Special
Economic Development (SED) Zone (Section 14-25).
6. PURCHASER'S CONTINGENCIES. It is understood and agreed that the 22 obligation
of Purchaser to purchase the Premises is expressly contingent upon the
achievement or satisfaction of all of the following conditions ("Purchaser's
Contingencies"), any or all of which the Purchaser shall have the right to
waive, in whole or in part. Said conditions are as follows:
6.1. Due Diligence Period. Purchaser shall have a period of 120 days from the
date of this Agreement (the "Due Diligence Period") to conduct tests,
investigations, feasibility studies, soil borings, inspections and general
analysis in order to satisfy Purchaser, in Purchaser's sole discretion, that the
Premises is feasible for Purchaser's Intended Use. Purchaser and its agents
shall have the right to enter onto the Premises for the purpose of surveying,
testing and examining same including but not limited to inspection of existing
buildings for environmental conditions and underground storage tanks for the
entire period this Agreement is in effect. These tests, investigations, etc.
shall be conducted in a manner not to interfere with the operations at the
Premises. Purchaser may terminate this Agreement, for any reason in Purchaser's
sole discretion, upon written notice to the Seller prior to the end of the Due
Diligence Period. If Purchaser lawfully terminates this Agreement, Seller shall
return any payments made by Purchaser as the full deposit and this Agreement
shall become null and void and the parties shall have no further obligation to
each other except as otherwise provided herein. During the Due Diligence Period,
Seller will provide Purchaser with the opportunity to make full and independent
investigation of all of: (a) the facts concerning the transaction contemplated
by the Agreement (including the condition of the Premises or any part thereof);
and (b) the correspondence, instruments, agreements, contracts, books,
documents, records, plans, drawings, specifications, brochures, licenses,
registrations, consents, permits, approvals and authorizations relating to the
Premises and the transaction contemplated by the Agreement which are in the
possession or control of the Seller. Seller has or will provide Purchaser with
those documents within its possession or control related to the Premises and
this transaction and will immediately, upon execution of this Agreement, provide
any additional documents which come into its possession or control. Seller
states that it does not have a substantial number of documents or materials in
this regard, but Seller agrees to cooperate fully with Purchaser in identifying
the locations of materials not in its possession or control, but has no
obligation to obtain such documents. Purchaser shall begin its investigation of
the status of the Premises in all respects with due diligence and haste
immediately upon the execution of this Agreement and shall keep Seller fully
apprised of its findings. Seller shall fully cooperate with Purchaser in its due
diligence including instructing its attorneys and consultants to attend all
meetings scheduled with NJDEP; Purchaser shall be responsible for all fees and
costs relating to all services by Seller's attorney and consultants that are
specifically authorized, or requested, by Purchaser. Purchaser shall have the
right to waive its due diligence rights and to require Seller to close title
within sixty (60) days of the date of this Agreement or at any time thereafter
at the sole discretion of Purchaser subject to approval by the Bankruptcy Court.
6.2 Title. Title shall be in accordance with Paragraph 3 of this Agreement.
6.3. Representations. There shall be no material breach of Seller or Purchaser's
representations, warranties or covenants as set forth in this Agreement.
6.4. Bankruptcy Contingency. The Purchaser's obligation to perform under the
terms and provisions of this Agreement is conditioned upon the Seller obtaining,
at its sole cost and expense, from the Bankruptcy Court the following:
An order pursuant to ss. 363(b), (f), and (m) of the Bankruptcy Code
which is final and nonappealable authorizing the Seller's sale and
conveyance of the Premises to the Purchaser free and clear of all claims,
encumbrances, liens, and interests in and to the Premises of any kind or
nature (the "Liens"), with the Liens to attach to the proceeds of such
sale, which order includes an express finding of fact and conclusion of
law pursuant to ss. 363(m) of the Bankruptcy Code that the Purchaser is a
good faith purchaser (the "Final Order"). The Final Order shall be on
notice to the Office of the United States Trustee, the New Jersey
Department of Environmental Protection (the "DEP"), the New Jersey
Attorney General, all of the Seller's secured creditors as reflected on a
title search obtained by the Seller, at its sole cost and expense prior to
the Seller filing its application seeking entry of the Final Order, the
Seller's unsecured creditors as listed on its bankruptcy schedules, all
other necessary governmental authorities, and all parties in interest who
have requested notice pursuant to Bankruptcy Rule 2002. The Seller shall
obtain the Final Order within sixty (60) days of the earlier of (a) the
expiration of the Due Diligent Period; or (b) receipt of written notice
from Purchaser that it has satisfied or waives its Due Diligence rights.
The Final Order shall also expressly vacate the stay contained in
Bankruptcy Rule 6004(g). The Purchaser shall have the sole option of
waiving the finality of the Final Order. The Seller shall be prohibited
from affirmatively seeking or accepting higher or better offers.
7. INTENTIONALLY BLANK.
8. CLOSING AND DELIVERY OF DOCUMENTS.
8.1. The closing of title to the Premises (the "Closing") shall take place at
the offices of Bathgate, Xxxxxxx & Xxxx, P.C., Xxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 at 10:00 a.m. on the Closing Date, as hereinafter defined. The
Closing Date shall be on the date mutually selected by the parties provided same
is no later than 120 days from the conclusion of the Due Diligence Period unless
this Agreement is terminated by Purchaser pursuant to paragraph 6.1 or within
thirty (30) days of a Bankruptcy Court order approving this Agreement. In the
event the Closing does not occur within the time frame set forth herein, both
parties reserve the right to schedule a Time Of The Essence Closing upon ten
(10) days prior written notice to the other party.
8.2. At the Closing, Seller shall deliver a Deed of Bargain and Sale with
Covenant against Grantors Acts, an affidavit of title, assignment of lease,
permits, etc., xxxx of sale for all personalty, a limited liability company
resolution authorizing the sale, if applicable, FIRPTA Affidavit, and shall
deliver and/or execute such other documents as Purchaser's title insurance
company may reasonably request or require and such other documents as are
customarily delivered in New Jersey real estate transactions. Seller agrees that
it shall not convey title pursuant to a power of attorney. In the event
Purchaser obtains a survey of the Premises from a surveyor licensed in the State
of New Jersey, Seller agrees to use the legal description in accordance with
such survey, provided such survey is certified to Seller, a copy of which shall
be provided to Seller by Purchaser in advance of closing. Seller and Purchaser
agree to exchange copies of the Closing documents not less than five (5) days
prior to Closing. At the Closing Purchaser will be given possession of the
Premises subject only to tenancies provided that they are on terms that are
commercially reasonable.
9. ADJUSTMENTS AT CLOSING.
9.1. At the time of Closing and delivery of deed, real estate taxes, heating
oil, water, gas and sewer charges, if applicable, shall be adjusted between
Seller and Purchaser as of the closing date with charges for the day of closing
attributable to the Seller.
9.2. Seller shall bear the expense of payment of the realty transfer fee and any
roll back tax, if any.
9.3. Real estate taxes shall be apportioned on the basis of the calendar year
for which assessed. Seller shall pay all roll-back taxes relating to farmland
assessment whenever such assessment may be imposed by the taxing authority.
Sufficient escrow shall be established at time of Closing to satisfy all such
assessments. The obligations of this paragraph with regard to any adjustments or
payments subsequent to Closing for real property taxes shall survive closing.
10. ASSIGNMENT. Purchaser shall be entitled to assign this Agreement, on or
before the date set for Closing, without prior written approval of Seller to any
entity. Such assignment shall automatically release XXXXXX INTERNATIONAL, LTD.
from the terms of this Agreement. Purchaser shall promptly advise Seller, in
writing, of any such assignment.
11. POSSESSION AND PRE-CLOSING ENTRY. Purchaser may enter into and upon the said
lands and Premises upon delivery of deed and from thence take the rents, issues
and profits for its own use; provided, however, that Purchaser shall have the
right, from time to time, upon reasonable notice to Seller, to enter upon the
Premises, prior to the date of Closing hereunder for the purpose of conducting
inspections, surveys and tests. Purchaser shall indemnify and hold Seller
harmless from any and all liability for damage to persons or property arising
from such entry prior to Closing Date.
12. ASSESSMENTS FOR MUNICIPAL IMPROVEMENTS. Seller represents, to the best of
its knowledge, that there are no current assessments for municipal improvements
that pertain to the Premises and, further, Seller has no knowledge of any
contemplated assessment for municipal improvements. Seller shall be solely
responsible for the payment of any assessment which prior to the Closing Date
has been assessed, levied, imposed or confirmed against the Premises; (ii) which
affects or is a lien upon the Premises; or (iii) which, although not yet a lien
upon the Premises, is attributable to improvements which benefit or will benefit
the Premises for which improvement work has been commenced or authorized. For
any assessment for improvement authorized or imposed subsequent to the Closing
Date of this final order, Purchaser shall be responsible, which responsibility
shall be contingent upon closing. Seller shall give notice forthwith to
Purchaser if Seller receives any notice of a contemplated assessment for
municipal improvements.
13. REAL ESTATE BROKERAGE COMMISSION. Seller and Purchaser mutually represent
and warrant to each other that neither has entered into any real estate
brokerage agreements, except that Purchaser agrees to pay Coldwell Banker a
brokerage commission of $150,000.00 upon the closing of title. The parties
hereto agree to save each other harmless, defend (including paying legal fees
and costs) and indemnify each other from any losses, damages, judgments and
costs, including legal fees, which a party may suffer if the other party
breaches its obligations hereunder or if the representation of the other party
contained herein proves untrue.
14. RISK OF LOSS. Risk of loss, by reason of fire or other casualty, shall
remain with Seller until the time of Closing. In the event of fire or other
casualty to the Premises, Seller shall advise Purchaser within ten (10) days
thereof. If all or a material part of the Premises is destroyed by fire or other
casualty, Purchaser shall have the right to terminate this Agreement. For
purposes hereof, a material damage shall be damage, the restoration or repair
cost of which shall, as estimated by Seller's insurance company (if not
available then a similarly qualified estimating entity), exceed $100,000.00. If
there is damage (which damage does not result in Purchaser's termination of this
Agreement), the Purchaser can proceed with the closing and deduct at closing
from the purchase price the cost to repair the property, or the Purchaser may
accept an assignment of Seller's insurance claim or proceeds, if any.
15. INDEMNIFICATION, SAVE HARMLESS AND INSURANCE.
15.1. Purchaser agrees to indemnify and defend Seller and hold Seller harmless
from and against any and all claims, demands, liabilities, losses, damages,
costs and expenses (including, without limitation, the reasonable attorneys'
fees of an attorney of Seller's choice) for any bodily injury, property damage,
construction or mechanics' lien or other claim arising from or related to the
due diligence or other access by Purchaser granted by this Agreement. Purchaser
shall promptly repair and restore any damage caused by Purchaser as a result of
any such entry on the Premises and shall restore the Premises to reasonably the
same condition as existed at the time of entry and inspection.
15.2. Purchaser shall, at times that it or its representatives, agents or
employees may be upon the Premises, keep in force public liability insurance in
good and solvent insurance companies in limits of at least
$500,000.00/$1,000,000.0O for bodily injury and $1,000,000.00 for property
damage, covering its liability hereunder and naming Seller as an additional
insured. Certificates of such insurance shall be delivered to Seller prior to
such entry. Such insurance shall contain provisions covering Purchaser's
contractual indemnification obligations under subparagraph 15.1 above and
appropriate provisions waiving any rights of subrogation. The amount of
insurance required of or maintained by Purchaser shall in no way limit the
responsibility of Purchaser as otherwise provided in this Agreement.
16. ISRA ENVIRONMENTAL ESCROW. At closing, Three Million Dollars and no cents
($3,000,000.00) from the purchase price shall be escrowed with Purchaser's
attorney to be utilized only for the purpose of obtaining an ISRA or similar
site-wide "no further action letter", which $3,000,000.00 may be established as
a fully funded trust and utilized as a remediation funding source posted with
NJDEP. This escrow is in addition to whatever amount of money remains of the Two
Hundred Eighty Thousand Dollars ($280,000.00) paid to NJDEP in February 2002
("DEP Deposit"). It is agreed that if the environmental costs exceed
$3,000,000.00, plus the DEP Deposit, then Purchaser shall be responsible for
said costs. If the environmental costs are less than $3,000,000.00, plus the DEP
Deposit, the balance remaining shall be distributed as directed by the
Bankruptcy Court.
17. CONDEMNATION. In the event condemnation or eminent domain proceedings shall
be commenced by any governmental or quasi-governmental authority having
jurisdiction therefore against all or any part of the Premises, Seller shall
promptly notify Purchaser and provide Purchaser with all information concerning
such proceedings. Purchaser may, at its option, by giving written notice to
Seller within forty-five (45) days after its receipt of the notice of such
proceedings, terminate this Agreement in the event the lands condemned equal to
or exceed ten (10%) percent of the acreage of the Premises or in the event that
direct access to Lakewood-Farmingdale Road is denied. In the event Purchaser
does not elect to terminate this Agreement, then any award in condemnation
and/or unpaid claims and rights in connection with such condemnation shall be
assigned to Purchaser at Closing, or if paid to Seller prior thereof, shall be
credited against the unpaid balance of the Purchase Price due at Closing. If
Purchaser determines not to terminate this Agreement, Seller shall not adjust or
settle any condemnation awards without the prior written approval of Purchaser,
which approval shall not be unreasonably withheld, and shall allow Purchaser to
cooperatively participate with Seller in all proceedings.
18. REPRESENTATIONS
18.1. Seller's Representations. Seller hereby, to the best of Seller's
knowledge, represents, warrants and covenants to Purchaser which
representations, warranties and covenants are now true, hereafter shall continue
to be true and shall be true as of the Closing Date (except as otherwise
provided herein to the contrary), as follows:
a. Seller is duly organized and validly existing under the laws of the
State of New Jersey and fully authorized to transact business and to own
and convey property and has full power and right to enter into and perform
this Agreement, and the execution and delivery of this Agreement, and the
consummation of the transactions contemplated herein by Seller, have been
duly authorized by all necessary acts, do not require any governmental
consents and will not violate any provision of any agreement or result in
the breach of or constitute a default under any agreement to which Seller
is a party or by which Seller is bound under any permit, judgment, decree,
order, statute, rule or regulation applicable to Seller or to the Premises
except that Seller is required to obtain the Final Order.
b. Except as set forth on the annexed Schedule B, there is no tenancy or
other occupancy in the Premises or any part thereof.
c. To the best of Seller's knowledge, information and belief, as of the
date hereof, there is no pending or to the best of Seller's knowledge
threatened condemnation of all or any part of the Premises.
d. To the best of Seller's knowledge, information and belief as of the
date hereof, there is no pending assessment (nor is Seller aware of any
such pending assessment) for municipal improvements applicable to the
Premises.
e. At Closing, there shall be no mortgage or other liens upon the Premises
which cannot be extinguished through the Final Order.
f. Except for the Seller's Chapter 11 case, Seller does not have knowledge
of any pending or threatened actions or proceedings before any court or
administrative agency which will materially adversely affect the ability
of Seller to perform Seller's obligations under this Agreement.
g. Except as set forth on the annexed Schedule C, Seller does not have
knowledge of any pending foreclosure action or similar proceeding
affecting the Premises or any portion thereof.
h. Seller does not have knowledge of any legal actions, suits, or other
legal or administrative proceedings, pending or threatened against the
Premises, nor that any such action, suit, proceeding or claim has been
threatened or asserted against Seller or the Premises, nor that there is
any proceeding pending or presently being prosecuted for the reduction of
the assessed valuation of taxes or other impositions payable in respect of
any portion of the Premises.
i. Seller does not have knowledge of any pending or threatened
governmental or private proceedings which would impair or result in the
termination of access from the Premises to abutting public highways,
streets and roads.
j. Seller does not have knowledge of, or reason to believe that there are
mines, limestone deposits, or other subsurface conditions on the Premises
which would have a materially adverse effect on the Purchaser's Intended
Use.
k. No persons other than Seller have any rights, inchoate or otherwise, to
dower or courtesy or any other marital rights in the Premises.
l. Seller is not a "foreign person" as such term is defined under Section
1445(f)(3) of the Code.
m. Seller has made no agreements to pay any commissions or other
compensation to any brokers or agents in connection with this Agreement,
has had no dealings with any broker or agent with respect to this
Agreement or with respect to listing or offering the Premises upon which
any such broker or agent would be entitled to a commission or other
compensation.
n. There are real estate taxes and tax liens outstanding against the
Premises which will be paid by Seller and discharged at Closing.
o. No one other than Purchaser has a contract, option or right of first
refusal to purchase the Premises or any part thereof.
p. At the Closing, there will be no unpaid bills or claims which may give
rise to a lien against the Premises.
q. To the best of Seller's knowledge, information and belief, except as
set forth in the DEP conditionally approved Remediation Investigation
Workplan, Seller has no knowledge of any underground storage tanks located
on or under the Premises, and there are no sumps, clarifiers or uncapped
on-site xxxxx located on or under the Premises. Seller notes that it
believes that there is an underground septic tank with regard to each
building at the Premises, which septic tanks have not been utilized since
the Premises received public sewer service in the late 1980's.
18.2. Purchaser's Representations. Purchaser hereby represents, warrants and
covenants to Seller which representations, warranties and covenants shall be
true as of the date of closing as follows:
a. The actual entity which shall be the Purchaser will upon the Closing
Date be duly and validly formed and in existence under the laws of the
State of New Jersey and/or the State of Delaware and on the Closing Date
will be entitled under the laws of the State of New Jersey to acquire the
Premises and to enter into the agreements herein provided.
b. This Agreement is, and all documents which are to be executed by the
actual Purchaser and delivered to Seller on the Closing Date are, and on
the Closing Date will be, duly authorized, executed and delivered by such
Purchaser, and are, and on the Closing Date will be legal, valid and
binding obligations of Purchaser and do not, and on the Closing Date will
not, violate any provisions of any agreement to which such Purchaser is a
party or by which it is bound or under any permit, judgment, decree,
order, statute, rule or regulation applicable to such Purchaser.
c. The actual Purchaser shall execute and deliver the agreement and
documents referred to herein it being expressly understood that in the
event the actual Purchaser is a corporation it shall be required to submit
on the Closing Date a corporate resolution authorizing the within
transaction.
d. Purchaser represents that Purchaser has sufficient financial resources
and shall dedicate same to pursue and satisfy Purchaser's contingencies,
and to consummate the within transaction.
e. Purchaser has made no agreements to pay any commissions or other
compensation to any brokers or agents in connection with this Agreement,
has had no dealings with any broker or agent with respect to this
Agreement or with respect to listing or offering to purchase the Premises
upon which any such broker or agent would be entitled to a commission or
other compensation, except that Purchaser agrees to pay Coldwell Banker a
brokerage commission of $150,000.00 upon closing of title.
19. BOUNDARY LINES. Seller represents to the best of Seller's information,
knowledge and belief that there are no encroachments from the Premises onto
adjoining properties or from adjoining properties on the Premises.
20. NOTICES. All notices and demands under this Agreement shall be delivered
personally or by facsimile (with regular mail copy) or registered or certified
mail, postage prepaid, return receipt requested, to the following addresses:
IF TO SELLER: At the address for Seller set forth on page 1.
WITH A COPY TO:
X'Xxxxxx & X'Xxxxxx, Esqs.
Xxxxxxx X. X'Xxxxxx, Esq.
000 Xxxxxxxxxx Xxxxxx Xx.
Wemrock Professional Mall
Freehold, N.J. 07728
IF TO PURCHASER: At the address set forth on page 1.
WITH A COPY TO:
Xxxxxxx X. Xxxx, Esq.
Bathgate, Xxxxxxx & Wolf, P.C.
Xxx Xxxxxxx Xxxx
Xxxxxxxx, X.X. 00000
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto. No amendment or modification hereof shall have any force or
effect unless in writing and executed by all parties.
22. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective legal representatives, their
heirs, executors, administrators, successors and assigns.
23. GOVERNING LAW. This Agreement shall be construed in accordance with the laws
of the State of New Jersey.
24. HEADINGS. The article headings contained in this Agreement are for reference
only for the convenience of the parties. They shall not be deemed to constitute
a part of this Agreement nor shall they alter or supersede the contents of the
paragraphs themselves.
25. RECORDING OF AGREEMENT. A memorandum of this Agreement shall be prepared in
substance and form identical to Schedule D attached hereto and incorporated by
reference and shall be executed by Purchaser and Seller and recorded with the
Clerk's Office. The Parties shall execute a termination of memorandum of
agreement to be held in escrow by Seller's attorney in a form identical to
Schedule E attached hereto and incorporated herein by reference (the
"Termination Memo"). Seller's attorney shall record the Termination Memo upon
termination of this Agreement.
26. "AS IS" CONDITION. Purchaser and Seller acknowledge and agree that this is a
land transaction and the buildings and structures on the Premises are being sold
"as is".
27. OWNER'S CLOSING DOCUMENTS. To the extent available to Seller, Seller agrees
that within ten (10) days from the date hereof, it shall deliver to Purchaser
copies of its title insurance policy, survey, deed and other closing documents
in its possession. To the extent available to Seller, Seller shall also make
available to Purchaser plans and specifications utilized by Seller in connection
with any applications made by Seller for any governmental approvals or in
connection with the construction of any improvements on the Premises.
28. CALCULATION OF TIME PERIODS. With respect to any time periods set forth
herein which are calculated from the date of this Agreement, it is understood
and agreed that such time period commences from the date of final execution of
this Agreement by all parties hereto, including execution of any riders or
amendments hereto. The date of this Agreement shall be the date the last
signatory executes this Agreement and any such riders or amendments.
29. DEFAULT BY PURCHASER/LIQUIDATED DAMAGES. If the sale and purchase of the
Premises contemplated by this Contract is not closed because of the Purchaser's
default under any substantial material term hereunder the Deposit plus accrued
interest, if any, shall be paid over to the Seller and shall constitute Seller's
liquidated damages, not as a penalty, but in full satisfaction of all Seller's
claims which the parties agree to be fair and equitable because of the
difficulty of ascertaining actual damages and Purchaser shall be released from
any further liability.
30. DEFAULT BY SELLER. If the sale and purchase of the Premises contemplated by
this Agreement is not closed on account of the Seller's default under any
substantial material term hereunder, the Deposit plus accrued interest, if any,
shall be refunded to the Purchaser and shall constitute Purchaser's sole
remedies hereunder; except that the Purchaser may seek specific performance.
31. DELIVERY OF SELLER'S DOCUMENTATION. Within ten (10) days of the execution of
this Agreement, Seller shall provide to Purchaser copies of all background
documentation in Seller's possession regarding the Premises, including but not
limited to, surveys, title reports, engineering reports, studies, investigations
and the like which would be relevant to Purchaser's investigation and
development of the Premises. Seller states that other than surveys, title
reports and the DEP Remedial Investigation Workplan and leases, it has few
relevant documents about the Premises.
32. PERSONAL PROPERTY AND FIXTURES. Many items of property become so attached to
a building or other real property that they become a part of it. These items are
called fixtures and are included in the sale. There is no personal property
included in this sale except the office furniture, equipment, telephone system,
window treatments and wall-to-wall carpeting which are located in the main
office in Building #2.
33. LEASES. That the attached Schedule "B" is a complete list of all leases,
tenancies, and rental agreements presently encumbering the Premises; and that:
a. Complete list. No person, firm or corporation has any title, interest,
or right to possession of the Premises or any portion of it as a lessee or
tenant of Seller except as shown on Schedule "B".
b. Seller not in default. All the leases, tenancies and rental agreements
shown on Schedule "B" are now in full force and effect; Seller is not in
material default in performing any such instrument or agreement; and no
tenant or lessee is entitled to any rebate, concession, or other benefit
except as set forth in the leases and agreements referred to in Schedule
"B".
c. Commencing with the date of this Agreement, Seller shall not sign,
amend or extend any existing lease or enter into a new lease or other
agreement affecting the Premises without the prior written consent of
Purchaser which consent shall be reasonably granted and shall not be
unreasonably withheld.
35. ASSIGNMENT OF LEASES. At the closing Seller will deliver to Purchaser a
written assignment, duly signed, assigning to Purchaser all of Seller's right,
title and interest in the leases relating to the Premises. Seller shall prepare
letters to each tenant notifying the tenant of the title transfer and directing
that all future payments be made to the Purchaser or its assignee.
36. ASSUMPTION OF LEASES BY PURCHASER. Upon the closing, Purchaser shall accept,
assume and perform all the terms and conditions of the leases listed on Schedule
B attached hereto that would have been kept or performed by Seller subsequent to
the Closing. Seller shall within 5 days of the execution of this Agreement send
Purchaser true copies of the leases.
37. TENANT ESTOPPEL CERTIFICATES TO BE DELIVERED. Seller shall use its diligent
and best efforts to deliver to Purchaser at closing tenant estoppel certificates
signed by each of the tenants at the Premises. The estoppel certificate shall be
substantially in the form attached hereto and identified as Schedule F.
38. TERMINATION OF AGREEMENT. Subject to paragraphs 29 and/or 30, if, pursuant
to the terms of this Agreement, this Agreement shall be terminated or cancelled,
then Seller shall return the Deposit together with interest earned thereon to
Purchaser, and neither Seller nor Purchaser shall have any further liability to
the other.
39. EXCULPATION OF ESCROWEE. There shall be two Escrow Agents regarding this
transaction. The attorney for Seller shall be the Escrow Agent for the two
deposits (See Paragraph 2). The other Escrow Agent shall be the attorney for
Purchaser who shall serve regarding the $3,000,000.00 environmental escrow to be
withheld from the closing proceeds (See Paragraph 16).
39.1. The escrow funds shall be held and disbursed by the Escrow Agent in
accordance with the terms of this Agreement.
39.2. If a demand or request is made upon the Escrow Agent for the payment or
delivery of funds, the Escrow Agent shall give notice to the other parties of
such demand. If a notice of objection to the proposed payment is not received
from the other party within ten (10) business days after the giving of notice by
the Escrow Agent, time being of the essence, Escrow Agent is hereby authorized
to deliver the funds plus accrued interest to the party who made the demand. If
Escrow Agent receives a notice of objection within said period, or if, for any
other reason Escrow Agent in good faith elects not to deliver the funds, then
Escrow Agent shall continue to hold the funds plus accrued interest and
thereafter pay it to the party entitled when Escrow Agent receives (a) notice
from the objecting party withdrawing the objection, or (b) notice signed by both
parties directing disposition of the funds or (c) a final, non-appealable
judgment or order of a court with competent jurisdiction.
39.3. In the event of any dispute or doubt as to the genuineness of any document
or signature, or uncertainty as to Escrow Agent's duties, then Escrow Agent
shall have the right to either continue to hold the funds in Escrow or pay the
funds plus accrued interest into court pursuant to relevant statute.
39.4. The Escrow Agent shall hold the funds and shall have no liability
hereunder except for actions taken by it in bad faith and the parties hereto do
hereby jointly and severally indemnify, defend (including paying legal fees and
costs) and agree to hold Escrow Agent harmless from and against any claims,
losses or liabilities of whatsoever nature hereunder, including, but without
limitation, reasonable counsel fees and costs in the event of the assertion of
any claims against it. The parties agree that in the event of any dispute as to
any funds held by any Escrow Agent in connection herewith, the Escrow Agent
shall be and is hereby authorized to tender the funds and any other funds into a
court of competent jurisdiction within the State of New Jersey and to abide by
the final non-appealable judgment thereof. In the event any such proceedings are
required the parties shall be jointly and severally responsible for all legal
fees, costs and expenses which may be incurred by Escrow Agent which the Escrow
Agent may deduct from the escrow. The parties agree that, notwithstanding their
service in the role as Escrow Agent, the Escrow Agents do and may continue to
represent the parties as legal counsel in connection with the subject matter of
the Agreement and otherwise.
40. NO PRESUMPTION. This Agreement has been fully reviewed and negotiated by the
parties and their respective attorneys and, therefore, any presumption of
resolving ambiguities against the drafter shall not apply.
41. COUNTERPARTS. This Agreement can be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
WITNESS: WDH XXXXXX, LLC,
a Debtor in Possession
BY:/s/ Xxxxxxx X. Xxxxxx
------------------------ ------------------------
(Illegible) XXXXXXX X. XXXXXX, Manager
ATTEST: XXXXXX INTERNATIONAL, LTD.,
/s/ Xxxxxxx Xxxxxx BY:/s/ Xxxxxx X. Xxxxxx
------------------------ ------------------------
XXXXXX X. XXXXXX, President
SCHEDULE A
SCHEDULE B
Tenants
-------
Building Tenant Area Being leased
-------- ------ -----------------
4 Exhibit Network 27,000 +/- s.f.
3 Xxxxxx Motorcycle Co., Ltd.
SCHEDULE C
PENDING FORECLOSURE OR SIMILAR PROCEEDINGS
AFFECTING THE PREMISES
1. LaSalle National Bank as Trustee for the Registered Holders of First
Union-Xxxxxx Brothers Commercial Mortgage Trust II, Commercial Mortgage
Pass-Through Certificates, Series 1997-C2 -vs- WDH Howell, LLC, a New Jersey
limited liability company, Sovereign Bank, a federal savings bank, FEL
Corporation, and Xxxxxxx X. Xxxxxx, Superior Court of New Jersey, Chancery
Division, Monmouth County, Docket No. F-12562-00 or successors or assigns of
Plaintiffs.
2. United States Bankruptcy Court, In the Matter of WDH Howell, LLC, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx, Bankruptcy Case Number 01-050618 (KCF).
SCHEDULE D
MEMORANDUM OF THIS AGREEMENT FOR RECORDING
Memorandum of Agreement of Sale
STATE OF NEW JERSEY
COUNTY OF MONMOUTH
This Memorandum will evidence the existence of a certain Agreement of Sale
executed this date between WDH Howell, LLC ("Seller") with XXXXXX INTERNATIONAL,
LTD. ("Purchaser"), affecting the following described property:
ALL OF THAT CERTAIN TRACT OR PARCEL OF LAND, located, being and situated
in the Township of Xxxxxx, Monmouth County, N.J. known as Xxxxx 000, Xxx 0 xxx
Xxxxx 49, Lots 30, 31, 44, 45, 45.01, 46, 47, 48, 49 & 50 on the official tax
map of the Township of Xxxxxx.
The purpose of this Memorandum is to notify all persons interested
in the foregoing described property that Seller and Purchaser have entered into
said Agreement regarding the above described property.
Executed this 27t day of July______, 04.
SELLER:
WITNESS: WDH XXXXXX, LLC,
a Debtor in Possession
BY: /s/ Xxxxxxx X. Xxxxxx
--------------------------- ---------------------------
(Illegible) XXXXXXX X. XXXXXX, Manager
PURCHASER:
WITNESS: XXXXXX INTERNATIONAL, LTD.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
XXXXXX X. XXXXXX, President
STATE OF NEW JERSEY )
) ss:
COUNTY OF MONMOUTH )
I CERTIFY that on July 2 , 2004 XXXXXXX X. XXXXXX personally came
before me and stated to my satisfaction that this person:
(a) was the maker of the attached instrument;
(b) was authorized to and did execute this instrument as Manager of WDH
Xxxxxx, LLC, the entity named in this instrument; and
(c) was fully authorized to and did execute this instrument as the act
of the entity named in this instrument.
/s/ Xxxxxxxxx Xxx XxXxxxxxx
---------------------------
NOTARY PUBLIC
State of New Jersey
STATE OF NEW JERSEY )
) ss:
COUNTY OF MONMOUTH )
I CERTIFY that on ___July 27, _2004_, XXXXXX X. XXXXXX personally came
before me and stated to my satisfaction that this person:
(a) was the maker of the attached instrument;
(b) was authorized to and did execute this instrument as President of
XXXXXX INTERNATIONAL, LTD., the entity named in this instrument; and
(c) was fully authorized to and did execute this instrument as the act
of the entity named in this instrument.
/s/ Xxxxxxx Xxxxxx
---------------------------
NOTARY PUBLIC
State of New Jersey
SCHEDULE F
TENANT ESTOPPEL CERTIFICATE
TO: WDH HOWELL, LLC and XXXXXX INTERNATIONAL, LTD., their successors and/or
assigns
I HEREBY CERTIFY THAT:
1. We are tenants in possession of premises known as Building #____ at the
WDH Howell, LLC complex in the Township of Xxxxxx, Monmouth County, New
Jersey.
2. We hold the premises under a lease dated ___________________ ("Lease").
3. This Lease is unmodified and in full force and effect.
4. We are not in default in the performance of the Lease, nor have we
committed any breach.
5. So far as is known to us, the Lessor ________________________ is not in
default in the performance of the Lease, nor has it committed any breach.
6. No rent has been paid by us in advance under the Lease, except the rent
that became due on ______________________ for the current month.
7. We have no claim against the Lessor for any deposits except the
security deposit of $_____________.
8. We have no defenses or offsets we could allege in any action brought
against us for rent accruing under the lease.
9. We make this certification knowing that WDH Xxxxxx, LLC is
contemplating selling the premises and that if such transaction goes
forward, both Seller and Purchaser will rely upon this certification.
10. We have authority to make this certification and the statements set
forth herein are true and correct.
11. All references made, and all nouns and pronouns used herein, shall be
construed in the singular or plural, and in such gender or in the neuter,
as shall be appropriate to the context in which made or used.
IN WITNESS WHEREOF, this Certification has been duly executed by the
Tenant herein named on the ________ day of
-
WITNESS: NAME OF TENANT
--------------------------- ----------------------------------
STATE OF NEW JERSEY )
) ss:
COUNTY OF MONMOUTH )
I CERTIFY that on _______, ____________ personally came before me and
stated to my
satisfaction that this person:
(a) was the maker of the attached instrument;
(b) was authorized to and did execute this instrument as Manager of WDH
Xxxxxx, LLC, the entity named in this instrument; and
(c) was fully authorized to and did execute this instrument as the act
of the entity named in this instrument.
----------------------------------
NOTARY PUBLIC
State of New Jersey
STATE OF NEW JERSEY )
) ss:
COUNTY OF MONMOUTH )
I CERTIFY that on _______ 2004, ____________ personally came before me and
stated to my satisfaction that this person:
(a) was the maker of the attached instrument;
(b) was authorized to and did execute this instrument as
President of XXXXXX INTERNATIONAL, LTD., the entity named
in this instrument; and
(c) was fully authorized to and did execute this instrument as
the act of the entity named in this instrument.
----------------------------------
NOTARY PUBLIC
State of New Jersey
SCHEDULE F
TENANT ESTOPPEL CERTIFICATE
TO: WDH HOWELL, LLC and XXXXXX INTERNATIONAL, LTD., their successors and/or
assigns
I HEREBY CERTIFY THAT:
1. We are tenants in possession of premises known as Building #____ at the
WDH Howell, LLC complex in the Township of Xxxxxx, Monmouth County, New
Jersey.
2. We hold the premises under a lease dated ___________________ ("Lease").
3. This Lease is unmodified and in full force and effect.
4. We are not in default in the performance of the Lease, nor have we
committed any breach.
5. So far as is known to us, the Lessor ________________________ is not in
default in the performance of the Lease, nor has it committed any breach.
6. No rent has been paid by us in advance under the Lease, except the rent
that became due on ______________________ for the current month.
7. We have no claim against the Lessor for any deposits except the
security deposit of $_____________.
8. We have no defenses or offsets we could allege in any action brought
against us for rent accruing under the lease.
9. We make this certification knowing that WDH Xxxxxx, LLC is
contemplating selling the premises and that if such transaction goes
forward, both Seller and Purchaser will rely upon this certification.
10. We have authority to make this certification and the statements set
forth herein are true and correct.
11. All references made, and all nouns and pronouns used herein, shall be
construed in the singular or plural, and in such gender or in the neuter,
as shall be appropriate to the context in which made or used.
IN WITNESS WHEREOF, this Certification has been duly executed by the
Tenant herein named on the ________ day of
WITNESS: NAME OF TENANT
--------------------------- ----------------------------------
STATE OF NEW JERSEY )
) ss:
COUNTY OF MONMOUTH )
I CERTIFY that on ____________ ___, ____ ________________________
personally came before me and stated to my satisfaction that this person:
(a) was the maker of the attached instrument;
(b) was authorized to and did execute this instrument as
___________________ of ___________________________ the entity named
in this instrument; and
(c) was fully authorized to and did execute this instrument as the act
of the entity named in this instrument.
----------------------------------
NOTARY PUBLIC
