EXHIBIT 2.2
ADDENDUM TO REAL ESTATE SALE AND PURCHASE AGREEMENT
BY AND BETWEEN XXXXXXX-XXXXXX CORPORATION
XXXXXXX-XXXXXX FLIGHT SYSTEMS, INC. AND
XXXX ACHAS LLC
The Real Estate Sale and Purchase Agreement by and between
Xxxxxxx-Xxxxxx Corporation and Xxxxxxx-Xxxxxx Flight Systems, Inc.,
(collectively "Seller") and Xxxx Achas LLC, ("Purchaser") dated August 2, 2001
(the "Agreement") is hereby amended to include the following provisions:
1. All terms, which are defined in the Agreement, shall have the same
meaning and effect in this Addendum.
2. If any provision of this Agreement or any portion of such provision
shall be held invalid or unenforceable by a court of competent
jurisdiction, the remaining provision or portion thereof affected by
such holding shall be modified, if possible so that it is
enforceable to the maximum extent permissible.
3. Section 6 is hereby amended to add the following paragraphs to the
end of said section:
"Purchaser is hereby given the option to extend the Closing Date
by an additional 18 days to no later than December 18, 2001. Time
shall be of the essence, and unless Seller fails to deliver the
Property in accordance with the requirements of the Agreement or
otherwise defaults hereunder or under the Agreement, the Deposit and
Closing Extension Payment shall be forfeited to Seller in the event
Purchaser shall not close on the title of the Property on or before
December 18, 2001.
Upon the exercise of the extension, the sum of FIVE HUNDRED
THOUSAND ($500,000.00) DOLLARS (the "Closing Extension Payment")
shall be paid on the date of such exercise by wire transfer to the
Escrowee. The Closing Extension Payment shall be refundable to the
same extent as that of the Contract Fee as set forth in this
Agreement. Purchaser shall receive a credit for the Closing
Extension Payment against the Purchase Price. All interest on the
Deposit and the Closing Extension Payment which accrues from
December 1st to the Closing shall be payable to the Seller.
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4. Section 13 is hereby amended to read as follows:
"Subject to the terms of this Agreement, and in any document
delivered to Purchaser in connection with this Agreement or the
Closing, Purchaser hereby acknowledges that it has inspected and
examined the property to its satisfaction and relies upon those
inspections and examinations in entering this Agreement and not upon
any oral or written representation or warranty of the Seller, its
agents, servants or employees or any broker except as may be
provided herein. The property is sold "As Is" subject only to the
continued operation of Groundwater Treatment System ("GWTS"), the
monitoring xxxxx, and the Soil Vapor Extraction System ("SVES") as
described in the Order of the Commissioner issued on October 8,
1993, in ISRA Case No. 84-205, attached hereto as Exhibit I.
Purchaser hereby acknowledges that all rights, title and interest to
the GWTS and SVES, its accessories, components and any subsequent
modifications thereto, shall remain with the Seller. Seller shall
continue to perform all remedial investigation and remedial action
work required by NJDEP to remediate to a non-residential standard
and shall be responsible for removing any pre-existing contamination
that is discovered after the Closing except as set forth in Section
3 of the Environmental Indemnity Agreement attached hereto as
Exhibit F. Seller shall diligently pursue, prior to and after the
closing of title, obtaining a No Further Action letter and Covenant
Not to Xxx from NJDEP (or final Remedial Action Workplan approval)
and further to diligently pursue the removal of the Classification
Exception Area ("CEA") filed for the groundwater at or emanating
from the site including all groundwater monitoring required during
the duration of the CEA or to remove the CEA."
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5. Section 14, Paragraph (a) is hereby amended to read as follows:
"Purchaser hereby acknowledges that it has received a copy of
Exhibit I. Purchaser hereby agrees and accepts to take title and
possession of the Property subject to the Seller's continued
operation of the GWTS, monitoring Xxxxx, and the SVES. Seller and
Purchaser shall cooperate with each other to assure that the GWTS
and the SVES and any monitoring xxxxx, and other remedial
investigation or remedial action equipment at the property do not
unreasonably interfere with the operation and use of the property.
Seller shall provide Purchaser with notice prior to installing any
additional remedial action equipment in a location on the Property
where such remedial action equipment is not already located to
ensure that such location of such remedial action equipment shall
not unreasonably interfere with the operation and use of the
Property. Purchaser shall have three (3) calendar days from the date
Seller notifies Purchaser to state any concerns Purchaser may have
with the proposed installation of additional remedial action
equipment. If Purchaser fails to respond within the three-day
period, Purchaser shall be considered to acquiesce to Seller's
location. Purchaser acknowledges and understands that GWTS and the
SVES shall remain in their present locations, and cannot be removed,
altered, or relocated in any way. Purchaser shall provide access to
Seller for the operation, maintenance, installation, removal, and
closure of the GWTS and the SVES and any monitoring xxxxx after
Closing."
6. Purchaser is not waiving any rights it may have under the Agreement
by virtue of the payment of the Second Deposit.
7. Seller hereby agrees, at no cost or liability to Seller, to execute
any and all documents needed by Purchaser to pursue its subdivision
application with the appropriate governmental entities.
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8. The following shall be added at the end of the first paragraph of
Section 3 of the Environmental Indemnification Agreement:
", provided, however, that except as set forth in the second
paragraph of this Section 3, Seller shall indemnify the Purchaser
for the remediation of any Contaminants existing prior the Closing
that are discovered by Purchaser after the Closing."
9. To the extent of any inconsistency between the Agreement and this
Addendum, this Addendum shall govern.
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IN WITNESS WHEREOF, the parties have hereunto affixed their hands and
seals as of this 10 day of September 2001.
WITNESS: SELLER: XXXXXXX-XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Vice President - Finance
XXXXXXX-XXXXXX FLIGHT SYSTEMS, INC
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Treasurer
WITNESS: PURCHASER: XXXX ACHAS LLC
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Vice President
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