AGREEMENT OF SALE BETWEEN NORTHEAST COMMUNITY BANK (SELLER) AND MJ 1353-1355 FIRST AVENUE, LLC (PURCHASER) FOR PROPERTY LOCATED AT: Dated: December 13, 2006
Exhibit
10.1
BETWEEN
NORTHEAST
COMMUNITY BANK
(SELLER)
AND
MJ
1353-1355 FIRST AVENUE, LLC
(PURCHASER)
FOR
PROPERTY LOCATED AT:
1353-1355
FIRST AVENUE AND THE AIR RIGHTS APPURTENANT TO
0000
XXXXX XXXXXX, XXX XXXX, XXX XXXX
Dated:
December 13, 2006
THIS
AGREEMENT
is made
as of the 13th
day of
December, 2006, by and between NORTHEAST COMMUNITY BANK, formerly known as
Fourth Federal Savings Bank (“Seller”), having an address at 000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000 and MJ 0000-0000 XXXXX XXXXXX, LLC
(“Purchaser”), a New York limited liability company, having an address at c/o
Wellington Real Estate, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX
00000.
The
Seller agrees to sell, assign, convey and transfer to the Purchaser the Property
(hereinafter defined), and the Purchaser agrees to purchase the Property from
the Seller under the terms and conditions provided in this
Agreement.
ARTICLE
1. Definitions
(a) Certain
Defined Terms.
As
used
herein the following terms shall have the following meanings (such meanings
shall be applicable to both the singular and plural forms of the terms
defined):
“Agreement”
shall
mean this Agreement of Sale between the Seller and the Purchaser.
“Closing”
shall
mean the execution and delivery of all documents contemplated by this Agreement
to be executed and delivered on the Closing Date, the delivery of such documents
to the parties entitled thereto and the payment of the Purchase Price and all
other sums required to be paid on the Closing Date in the manner required by
this Agreement.
“Closing
Date”
is
defined in Section
4.2
hereof.
“Deposit”
shall
have the meaning ascribed to such term in Section
3.1(a).
“Governmental
Authorities”
shall
mean any board, bureau, commission, department or body of any municipal, county,
state or federal governmental unit, or any subdivision thereof, having or
acquiring jurisdiction over the Property or the management, operation, use
or
improvement thereof.
“Legal
Requirements”
shall
mean all laws, ordinances, rules, regulations, orders and requirements of all
Governmental Authorities relating to, or regulating, the ownership, use,
operation, management, maintenance and repair of the Property, including
building, fire, safety and health laws and environmental laws.
“Permitted
Exceptions”
shall
mean, with respect to the Property (a) those exceptions listed on Exhibit
A
attached
hereto and (b) matters of title created with the written consent of the
Purchaser or accepted by Purchaser.
“Person”
shall
mean an individual, estate, trust, partnership, corporation, limited liability
company, Governmental Authority or other legal entity.
“Personal
Property”
shall
mean any tangible and intangible property now or hereafter owned by Seller
located at the Property and used or usable in connection with the operation,
management, or ownership of the Property, including, but not limited to,
machinery, equipment, appliances, fixtures, any other agreements, contract
rights, building names, trade names relating to the Property, plans and
specifications in the possession or control of the Seller, warranties, utility
contracts, telephone numbers, advertising and marketing materials, permits,
approvals, plans or licenses if any, or any part thereof. “Personal Property”
shall not include any of the Seller's records with respect to the operation
of
the existing business at the Property.
“Prorations
Date”
shall
have the meaning given such term in Section
5.4.
“Property”
shall
mean collectively the Real Property and the Personal Property.
“Purchase
Price”
shall be
TWENTY EIGHT MILLION and 00/100 ($28,000,000.00) U.S. Dollars, subject to the
credits, adjustments and prorations in Section
5.4.
“Real
Property”
shall
mean (i) the premises known as 1353-1355 First Avenue, located in the City,
County and State of New York and as more particularly described in Exhibit
B attached
hereto, all easements, covenants and other rights appurtenant thereto and the
improvements located thereon, fixtures affixed thereto and strips and gores
and
land lying in any street open or proposed to the center line thereof; (ii)
the
air rights purchased and owned by Seller and appurtenant to property located
at
0000 Xxxxx Xxxxxx (340 East 73rd
Street),
New York, New York; and (iii) all the rights of Seller under the Zoning Lot
Development Agreement (the “ZELDA”) dated July 7, 2006 among Seller and Regency
East, LLC and recorded in the Office of the City Register of the City of New
York on November 13, 2006 as CRFN 2006000627517.
“Title
Commitment”
shall
mean collectively the title commitments issued by the Title Company for the
Real
Property.
“Title
Company”
shall
mean Fidelity National Title Insurance Company.
(b) Other
Terms.
All
defined terms used in this Agreement which are not defined in this Article
1,
shall
have the meaning set forth elsewhere in this Agreement.
2
ARTICLE
2.
2.1 Condition
of Property
(a) Upon
execution of this Agreement, Purchaser shall have 60 days from the date hereof
to complete its due diligence inspection of the property (the “Due Diligence
Period”) after which Purchaser agrees to accept the Real Property pursuant to
the terms of this Agreement on the Closing Date in an absolutely “AS
IS”
condition except as provided for herein. If Purchaser is unsatisfied with the
results of its due diligence for any reason whatsoever, Purchaser shall have
the
right to terminate this Agreement by giving written notice of such termination
to Seller and Escrow Agent not later than the last day of the Due Diligence
Period, in which event the First Deposit (as such term is hereinafter defined)
shall be paid to Purchaser and thereafter neither party shall have any
obligations to each other under this Agreement with the exception of those
obligations that specifically survive such termination.
(b) The
Purchaser shall be entitled to one (1) thirty (30) day extension of the Due
Diligence Period. If Purchaser requests such extension, the First Deposit (as
defined in Article 3.1) shall be nonrefundable and the Seller shall be under
no
obligation to refund the First Deposit to Purchaser for any reason whatsoever
except for Seller’s default or inability to convey title as required under this
Agreement.
(c) Purchaser
hereby agrees to indemnify, defend and hold harmless Seller and its agents,
from
and against all claims, losses, damages and liabilities (including reasonable
attorney's fees) which may arise from or grow out of such entry, inspections
and
tests, including, without limitation, mechanics' lien claims of any person
or
persons who made such tests and inspections (except any claims, losses or
liabilities caused by Seller) and all injury to persons and physical damage
to
the Real Property caused by such tests and inspections. Purchaser's agreement
to
indemnify, defend and hold Seller harmless pursuant to this section shall
survive the termination of this Agreement and the Closing. Seller shall
reasonably cooperate with Purchaser in carrying out its inspection of the Real
Property and personal property, if any, however, Seller shall not be obligated
to spend any amounts to complete such Purchaser’s inspections.
(c) THE
REAL
PROPERTY IS SOLD AND PURCHASED IN AN ABSOLUTELY “AS
IS”
CONDITION WITH ALL FAULTS AND DEFECTS. PURCHASER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL IMPLIED AND EXPRESS WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS, OR ANY
CLAIM FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM.
EXCEPT AS PROVIDED HEREIN, SELLER MAKES ABSOLUTELY NO REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED WITH RESPECT TO THE PHYSICAL CONDITION,
ENVIRONMENTAL, TITLE OR ANY OTHER MATTER RELATING TO THE PREMISES. THIS
AGREEMENT, AS WRITTEN, CONTAINS ALL THE TERMS OF THE AGREEMENT BETWEEN THE
PARTIES, AND
3
PURCHASER
ACKNOWLEDGES THAT SELLER (OR AN AGENT OR OTHER REPRESENTATIVE OF SELLER
INCLUDING ANY PERSON REPRESENTING OR PURPORTING TO REPRESENT SELLER) HAS MADE
NO
REPRESENTATIONS AND HELD OUT NO INDUCEMENTS TO PURCHASER IN PURCHASING THE
PREMISES.
(d) With
respect to the Real Property, Purchaser acknowledges that Seller shall have
no
obligation after Closing to perform work to satisfy any requirements of any
covenants running with land, or any zoning or other governmental laws,
ordinances or requirements, or to cure any violations or to perform any other
work, except as expressly set forth in this Agreement.
2.2 Title
(a) Upon
the
Closing, the Purchaser agrees to take title to the Real Property subject only
to
the Permitted Exceptions. If any title defect or defects (other than the
Permitted Exceptions) arise or are discovered by Purchaser between the date
of
this Agreement and the Closing Date, Purchaser shall give notice of such title
defect or defects to the Seller within ten (10) days after such title defect
or
defects arises or is discovered, whichever is later, and
(i) if
the
title defect or defects is not of a type described in section 2.2(b) below
and
can be cured, removed or eliminated by either or both the payment of money
or by
the posting of a bond to the Title Company’s satisfaction for an amount not to
exceed $100,000 in the aggregate, Seller agrees to make such payment or post
such bond or both within thirty (30) days of receiving the notice from
Purchaser, in which event, the Closing shall be adjourned if necessary to a
date
ten (10) days after Seller has paid the money or posted the bond to remove
the
title defect or defects.
(ii) if
the
title defect or defects is not of a type described in section 2.2(b) below
and
can be cured, removed or eliminated only by the payment of money or by the
posting of a bond in an amount of more than $100,000 in the aggregate, Seller
shall have no obligation to cure or remove such title defect or defects but
the
Purchaser shall have the right, to be exercised in the notice to Seller, either
(A) to accept the Property as it then is with a decrease in the Purchase Price
not to exceed $100,000; or (B) to terminate this Agreement, whereupon the
Deposit shall be returned to the Purchaser. If the Purchaser does not make
an
election in its notice to the Seller, it shall be deemed to have elected the
option in sub-section (B).
(b) Notwithstanding
any provisions contained in this section, if a title defect is in the nature
of
a lien or security interest created by the Seller (including, without
limitation, any mortgage(s)), or arises as a result of a breach of Seller's
covenant under Section
9.4 hereof,
then Seller shall be obligated at Seller’s cost to cure or remove any such title
defect, failing which, Seller shall be deemed to be in default
hereunder.
4
(c) If
a
title defect cannot be or is not susceptible of being removed or eliminated
with
either or both the payment of money or the posting of a bond in any amount
and
did not arise out of a lien or security interest created by the Seller or as
a
result of a breach of Seller's covenant under Section
9.4,
Seller
shall have no obligation to cure the title defect and may elect to terminate
this Agreement by sending notice of its election to terminate to Purchaser
within fifteen (15) days of Seller's receipt of notice of such title defect
and
unless Purchaser, in its sole discretion, within fifteen (15) days of receiving
such notice of termination, then agrees by sending written notice to the Seller
to accept title subject to the title defect or defects in question. In the
event
the Purchaser does not elect to accept title subject to the title defect or
defects in question without a reduction in the Purchase Price, the termination
notice from the Seller shall be effective at the end of such fifteen (15) day
period and this Agreement shall be deemed terminated, the Deposit shall be
returned to the Purchaser and all parties hereto released from all obligations
hereunder except as to those obligations arising under those Sections that
expressly survive the termination of this Agreement. Notwithstanding, Seller
will remove any title defects that can reasonable be removed by signing a title
document as long as it does not impose any additional liability upon the Seller.
2.3 Survival.
This
Article
2 shall
survive the termination of this Agreement and the Closing.
ARTICLE
3. Deposits.
3.1 Deposits.
(a) Upon
the
execution of this Agreement, Purchaser shall deposit with XXXXXX XXXXXX GIACOVAS
& KRANJAC LLP (“Escrow Agent”) the sum of TWO HUNDRED THOUSAND DOLLARS and
00/100 ($200,000.00) US Dollars by check or wire transfer of same-day funds,
subject to collection, which shall be held by the Escrow Agent in an interest
bearing escrow account (such deposit together with the interest earned thereon
is referred to herein as the “First Deposit”) in accordance with this Agreement
and the escrow agreement annexed hereto as Exhibit
C
(the
“Escrow Agreement”). Purchaser shall also deposit at the end of the Due
Diligence Period (as the same may be extended pursuant to Article 2.1(b)) the
sum of EIGHT HUNDRED THOUSAND DOLLARS and 00/100 ($800,000.00) US Dollars by
check or wire transfer of same-day funds, subject to collection, which shall
be
held by the Escrow Agent pursuant to the Escrow Agreement (such deposit together
with the interest earned thereon is referred to herein as the “Second Deposit”
which combined with the “First Deposit” shall herein after be referred to as the
“Deposit”). In the event a check is delivered to the Escrow Agent for the
Deposit and said check shall fail collection in due course, Seller, at its
option, may declare this Agreement null, void and of no further effect and
may
pursue its remedies against Purchaser upon said check or in any other manner
permitted by law. At the Closing, the Purchaser shall receive a credit in the
amount of the Deposit against the Purchase Price. The Deposit (to the extent
paid) and all accrued interest thereon are
5
non-refundable
except as otherwise specifically provided herein including, without limitation,
pursuant to section 2.1(a) hereof.
ARTICLE
4. Purchase
and Sale; Closing
4.1 Purchase
and Sale.
On
the
Closing Date, subject to the terms and conditions set forth in this Agreement,
the Seller agrees to sell the Real Property and the Personal Property to the
Purchaser, and the Purchaser agrees to purchase the Real Property and the
Personal Property from the Seller for the Purchase Price. Subject to the
provisions of Section
2.2,
the
Seller shall sell, convey, transfer or assign and the Purchaser shall purchase
and accept title to the Real Property free and clear of all liens, encumbrances,
easements, covenants, conditions, leases, occupancy agreements and other matters
affecting title, except the Permitted Exceptions. The Purchase Price is for
the
Real Property and no portion is attributable to the Personal Property. The
Personal Property shall not be purchased if the Real Property is not
purchased.
4.2 Place
and Time of Closing.
Upon
satisfaction of the conditions precedent set forth in Article
5,
the
Closing shall occur on the date that is sixty (60) days after the expiration
of
the Due Diligence Period at the office of Purchaser’s Lender or, if not
applicable, at the office of the Seller’s attorney (the “Closing Date”) TIME IS
OF THE ESSENCE AS TO THE CLOSING DATE provided, however, that Purchaser may
(i)
designate an earlier Closing Date on seven (7) days prior written notice to
the
Seller and the Title Company or (ii) adjourn the Closing Date for up to ten
(10)
days upon written notice to the Seller and the Title Company. On the Closing
Date, all monies due to be paid hereunder shall be paid by wire transfer or
certified/bank check and all instruments due to be made, executed and delivered
shall be made, executed and delivered by the respective parties, each to the
other as herein provided.
ARTICLE
5. Seller's
and Purchaser's Covenants and Deliveries and Conditions to Seller's and
Purchaser's Agreement to Close.
5.1 Covenants
and Contracts and Deliveries.
5.1
A. Seller's
Covenants and Contracts and Deliveries
(a) The
Seller agrees to deliver to the Purchaser or its representatives an executed
and
acknowledged Bargain and Sale Deed With Covenants in the form attached hereto
as
Exhibit D.
(b) Seller
agrees to deliver on the Closing Date to the Purchaser or its representatives
the documents and items described in Sections
5.2A(d).
Seller
also agrees to deliver the certificate required under Section
5.2A(a);
provided however, the
6
delivery
of a certificate which indicates breaches of representations or warranties
or
changes, variations or differences of representations or warranties from those
set forth in this Agreement as of the date of this Agreement shall constitute,
to the extent set forth in Section
5.2(A)(a),
the
non-fulfillment of a condition to Purchaser's obligation to close and not a
default by Seller. If any of the representations or warranties set forth in
this
Agreement are proven to be untrue by Seller when made, or if Seller causes
any
of the representation or warranties set forth in this Agreement to become
untrue, then Seller shall be deemed to be in default under this Agreement.
5.1
B. Purchaser's
Covenants and Contracts and Deliveries.
(a) Purchaser's
Documents.
Purchaser agrees to deliver to the Seller or its representatives the following
documents on the Closing Date (the “Purchaser's Documents”):
The
Purchaser's filed articles of organization, resolutions authorizing the
transactions contemplated hereby, members certificate and good standing
certificate dated no earlier than thirty (30) days prior to
Closing.
(b) Purchaser's
Covenants.
Purchaser covenants and agrees:
(i) to
pay a
portion of the Purchase Price on the Closing Date in the amount of TEN MILLION
AND 00/100 ($10,000,000.00) US Dollars by wire transfer or official, bank or
certified check of same day funds. The $18,000,000.00 remaining balance of
the
Purchase Price shall be due and payable pursuant to a promissory note to be
signed by Purchaser and Seller and which promissory note is attached hereto
as
Exhibit
E
(the
“Promissory Note”) the terms of which are incorporated herein by reference;
and
(ii) As
security for Purchaser’s performance of the Promissory Note, Purchaser shall
execute and provide Seller with a Purchase Money Real Estate Mortgage,
Assignment, and Security Agreement, which is attached hereto as Exhibit
F
(the
“Security Agreement”), the terms of which are incorporated herein by reference;
and
(iii) to
deliver the documents and make any payments required under Sections
5.2B (a), (b), (d), and (e) hereof.
5.2
A. Conditions
Precedent to Purchaser's Obligation to Close.
The
following shall be conditions precedent to the obligations of Purchaser to
purchase the Real Property and are for the benefit of Purchaser but may be
waived by Purchaser in whole or in part in its sole discretion:
(a) Representations
and Warranties True.
Purchaser shall have received a certificate from the Seller to the effect that
the representations and warranties made by Seller in Article
6 shall
be
true and correct in all material respects on and as of the Closing Date with
the
same force and effect as if such representations and warranties had
7
been
made
on and as of such date or, subject to the last sentence of section 5.1(A)(b),
Purchaser may cancel this Agreement and the amount of the Deposit given to
the
Seller at that point in time will be refunded to the Purchaser.
(b) Seller's
Performance.
The
Seller shall have performed all covenants and obligations required by this
Agreement to be performed by it on or before the Closing Date.
(c) Title
to Real Property.
Purchaser shall receive at closing an owner's ALTA title policy if required
by
Purchaser, in which event such ALTA title policy shall be at Purchaser's expense
(the “Title Policy”) in an amount equal to the Purchase Price, dated the Closing
Date, insuring, at standard rates, Purchaser's fee simple title to the Real
Property free and clear of all exceptions, liens and encumbrances except for
standard printed exceptions (other than the standard exceptions for mechanic
liens, surveys and tenants in possession) in the Title Commitment (applicable
to
Extended Coverage and as modified in the Title Commitment) and the Permitted
Exceptions, with the endorsements described in the Title
Commitment.
(d) The
Property shall be vacant and free of all occupants at the Closing. Purchaser
and
Seller shall enter into a Lease Agreement at Closing for Seller to become a
tenant of the first floor of the Property after construction is completed by
the
Purchaser pursuant to the terms of the Lease attached hereto as Exhibit
G.
(d) Documents.
The
receipt and possession by Purchaser of the following:
(i) Seller's
Organizational Documents.
Seller's filed articles of organization, consent authorizing the transactions
contemplated hereby and good standing certificate dated no earlier than thirty
(30) days prior to Closing.
(ii) No
Foreign Person.
An
affidavit, under penalty of perjury, indicating Seller's United States taxpayer
identification numbers and stating that Seller is not a foreign person, which
affidavit shall be in the form attached as Exhibit
H.
(iii) Seller's
Affidavit of Title.
An
Affidavit of Title, provided by the Title Company and reasonably acceptable
to
the Seller, executed by an officer of the Seller.
(iv) Permits,
Plans, Warranties and Licenses. Seller shall assign to Purchaser any and all
permits, plans, licenses or warranties in connection with the Property, if
applicable.
(v) All
required real property transfer tax returns and bank check(s) from Seller to
the
order of the appropriate tax collecting agency or official in the amount of
all
real property transfer taxes payable by reason of or in connection with the
sale
of the Property by Seller to Purchaser.
8
(vi) An
assignment of the ZELDA and all of Seller’s right, title and interest thereunder
from and after the Closing Date in the form of Exhibit
I
attached
hereto.
(iv) Other
Documents.
Any
other document (i) required by this Agreement to be delivered by Seller, (ii)
reasonably required by the Title Company, which do not require the expenditure
of any funds or the incurrence of any obligations beyond those contained in
this
Agreement, or (iii) otherwise reasonably necessary to consummate the
transactions contemplated hereby and in form reasonably acceptable to Purchaser
and Purchaser's counsel on, at or before the Closing; provided, however, that
any request hereunder shall be made on a timely basis, so that Seller shall
have
a reasonable period of time to satisfy such request.
5.2
B. Conditions
Precedent to Seller's Obligations to Close.
The
following shall be conditions precedent to the obligation of Seller to sell
the
Property and are for the benefit of the Seller and may be waived by Seller
in
whole or in part in its sole discretion:
(a) Purchase
Price.
The
Seller shall have received and be in possession of that portion of the Purchase
Price as indicated in section 5.1B(b)(i).
(b) Purchaser's
Representations and Warranties True.
The
Seller shall have received a certificate from the Purchaser to the effect that
representations and warranties made by the Purchaser in Article
7 are
true
and correct in all material respects as of the Closing Date with the same force
and effect as though such representations and warranties had been made on and
as
of such date.
(c) Purchaser's
Performance.
The
Purchaser shall have performed all material obligations required by this
Agreement to be performed by it on or before the Closing Date.
(d) Purchaser's
Documents.
The
receipt and possession by Seller of copies of Purchaser’s certificate of
incorporation, resolutions authorizing the transactions contemplated hereby
and
good standing certificate dated no earlier than thirty (30) days prior to
Closing.
(e) Other
Documents.
The
receipt and possession by Seller of all other documents (i) required by this
Agreement to be delivered by Purchaser, (ii) reasonably required by the Title
Company, which do not require the expenditure of any funds or the incurrence
of
any obligation beyond that contained in this Agreement, and (iii) otherwise
reasonably necessary to consummate the transaction contemplated hereby and
in
form reasonably satisfactory to Seller and Seller's counsel on, at or before
the
Closing; provided, however, that any request hereunder shall be made on a timely
basis so that Purchaser shall have a reasonable period of time to satisfy such
request.
9
5.3 Closing
Costs.
(a) The
following closing costs shall be borne by the Purchaser:
(i) the
charges for preparation of the Title Commitment;
(ii) any
survey fees necessary to have a survey certified to the Purchaser and the Title
Company and to have the standard printed survey exception to the Title
Commitment deleted;
(iii) title
insurance premiums for the Purchaser's and owner's mortgagee standard title
insurance policy subject only to the Permitted Exceptions; and
(iv) all
recording fees and costs (including all fees and costs associated with the
recording of any mortgage), except those required to clear title
defects.
(b) At
the
Closing, Seller and Purchaser shall execute, acknowledge, deliver and timely
file all such returns as may be necessary to comply with Article 31 of the
Tax
Law of the State of New York and the regulations applicable thereto, as the
same
may be amended from time to time (the “RET”) and the New York City Real Property
Transfer Tax (Admin. Code Article 21) and the regulations applicable thereto,
as
the same may be amended from time to time (the “RPT”). On the Closing Date,
Seller shall pay to the appropriate party the amounts payable under the RET
and
RPT.
(c) All
other
expenses and charges associated with the Closing, including attorneys' fees,
consulting fees, other due diligence expenses, the cost of all opinions,
certificates, instruments, documents and papers which are required to be
delivered by any party, and cost of all performances by that party, and all
other expenses or charges not included in Section
5.3(a) and (b) shall
be
paid by the party incurring such expenses. The terms of this Section
5.3 shall
survive the Closing.
5.4 Adjustments
and Prorations.
The
following shall be adjusted and prorated in cash at Closing as of 11:59 p.m.
on
the day preceding the Closing Date (the “Prorations Date”):
(i) any
rents, revenues and other income generated from the Property;
(ii) any
proceeds of loss of rents or business interruption insurance shall be prorated
in the same manner as the rents or receipts insured thereby;
(iii) real
estate taxes, special assessments, personal property taxes and payments due
in
respect of the Real Property payable in the year in which this transaction
closes;
10
(iv) all
other
costs, expenses, charges and fees relating to the ownership, management,
operation, maintenance and repair of the Property, including electricity, gas,
water, sewer charges, fuel, waste collection and removal, telephone and other
public utilities. It shall be assumed that the utility charges were incurred
uniformly during the routine billing period in which the Closing occurs. If
bills for the applicable period are unavailable, the amounts of such charges
will be estimated based upon the latest known bills. Notwithstanding the
foregoing, to the extent possible, meters will be read as of the Proration
Date
and bills rendered to the Seller as of that date.
Seller
shall pay any of the foregoing which are due and payable prior to the Proration
Date and Seller shall pay or cause to be paid at Closing any delinquent real
estate taxes and any special and supplemental real estate
assessments.
5.5 Reproration
and Post-Closing Adjustments.
(a) In
the
event that any adjustments or prorations cannot be apportioned or adjusted
at
Closing by reason of the fact that final or liquidated amounts have not been
ascertained, or are not available as of such date, or are payable pursuant
to
Article
8,
the
parties hereto agree to apportion or adjust such items on the basis of their
best estimates of the amounts at Closing and to reprorate any and all of such
amounts promptly when the final or liquidated amounts are ascertained, and
a
statement to this effect shall be set forth in the closing statement. In the
event of any omission or mathematical error on the closing statement, or if
the
prorations, apportionments and computations shall prove to be incorrect for
any
reason, the same shall be promptly adjusted when determined and the appropriate
party paid and monies owed, provided the request is made in writing within
one
(1) year after Closing, and a reference to this section shall be set forth
in
such request statement.
(b) The
provisions of this Section
5.5 shall
survive the Closing.
5.6 Statement
Prior to Closing.
The
prorations and payments to be made at Closing under the provisions of
Sections
5.4 and
5.5
shall be
made on the basis of a written statement or statements delivered together with
supporting information reasonably necessary for Purchaser to evaluate such
statements and to determine the accuracy thereof, to Purchaser by Seller or
its
agent not less than three (3) days prior to the Closing Date, and approved
by
Purchaser, such approval not to be unreasonably withheld or
delayed.
ARTICLE
6. Seller's
Representations and Warranties
6.1 Seller
represents and warrants to Purchaser as of the date hereof as
follows:
(a) Organization
Seller
is
a federal savings bank duly organized under the laws of the United
States.
11
(b) Power
and Authority
Seller
has full legal power, right and authority to execute, deliver and carry out
its
obligations under this Agreement and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement. The instruments
Seller has agreed to deliver pursuant hereto and this Agreement constitute
legal, valid and binding obligations of Seller enforceable in accordance with
their respective terms. No further consent of any member, governmental authority
or other person is required and the individual executing this Agreement and
instruments to be delivered pursuant hereto has been duly authorized to do
so.
(c) Litigation
There
are
no actions, suits or proceedings pending, affecting or, to the best of Seller's
knowledge, threatened against Seller or the Property at law or equity, or before
any federal, state or municipal governmental or quasi-governmental department,
commission, board, bureau, authority, official, agency or instrumentality,
which
would affect Seller's ability to consummate the transactions contemplated by
this Agreement or affect the Property or affect Purchaser.
(d) Brokers
Sale
Seller
has not employed or retained or, consulted or dealt with any real estate broker,
salesman, advisor, or consultant in connection with the sale and purchase
contemplated by this Agreement.
(e) To
the
best of Seller’s knowledge, there are currently no condemnation or eminent
domain proceedings involving the Property.
(f) There
are
no contracts or leases affecting the Property that would be binding upon
Purchaser after the Closing and any existing contracts or leases will be
terminated prior to Closing.
(g) There
are
no employees of Seller at the Property and no union contracts or notices from
any union affecting employment at the Property.
(h) There
are
no pending certiorari proceedings to reduce the assessed valuation of the
Property.
(i) There
are
no brokerage commissions due in connection with any rental of any space at
the
Property.
(m) All
of
Seller’s rights and benefits to the air rights and under the ZELDA are in effect
and are assignable to Purchaser.
(n) Other
Contracts
12
The
execution, delivery and performance of this Agreement by Seller in accordance
with its terms, will not violate, conflict with or result in the breach of
the
articles of incorporation or by-laws of Seller or any other agreement or any
law, regulation, contract, agreement, commitment, order, judgment or decree
to
which Seller is a party or by which it may be bound or which the Property is
subject.
ARTICLE
7. Purchaser's
Representations and Warranties
7.1 Purchaser
represents and warrants to Seller as of the date hereof as follows:
(a) Organization
Purchaser
is a corporation duly formed and validly existing under the laws of the State
of
New Jersey.
(b) Power
and Authority
Purchaser
has full power and authority to execute, deliver and carry out its obligations
under the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
This Agreement constitutes the legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms. No further consent of any member,
governmental entity or other person is required and the individual executing
this Agreement and the instruments to be delivered by Purchaser pursuant to
the
Agreement have been duly authorized to do so.
(c) Litigation
To
the
knowledge of Purchaser, there are no actions, suits or proceedings pending
or
threatened against Purchaser which would affect Purchaser's ability to
consummate the transaction contemplated by this Agreement.
(d) Other
Contracts
The
execution, delivery and performance of this Agreement by Purchaser in accordance
with its terms, will not violate, conflict with or result in the breach of
any
of the articles of incorporation or by-laws of Purchaser, any other agreement
or
any law, regulation, contract, agreement, commitment, order, judgment or decree
to which Purchaser is a party or by which it may be bound.
13
(e) Brokers-Sale
Purchaser
has not employed or retained or, consulted or dealt with any real estate broker,
salesman, advisor, or consultant in connection with the sale and purchase
contemplated by this Agreement.
(f) Investigation
Purchaser
has, or will have during the Due Diligence Period, had the opportunity to
independently inspect and to take any other action deemed necessary or
appropriate by Purchaser to evaluate and become fully acquainted with the Real
Property and to decide to purchase the Real Property. Purchaser expressly
acknowledges that, except as expressly provided in this Agreement and in the
documents and instruments to be executed by Seller pursuant hereto, neither
Seller nor any agent or representative of Seller has made, and Seller is not
liable for or bound by in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations, or information
pertaining to Real Property.
ARTICLE
8. Insurance,
Casualty and Condemnation
8.1 Maintenance
of Insurance.
Seller
shall maintain or cause to be maintained its insurance policies for the Real
Property in full force and effect until the Closing. Seller assumes the risk
of
loss in and to the Real Property until the Closing, after which such risk shall
be borne by the Purchaser.
8.2 Notice
of Casualty or Condemnation.
If
the
Real Property, or any part thereof, shall be damaged or destroyed by fire or
other casualty prior to the Closing Date (the “Casualty”), Seller shall promptly
notify Purchaser thereof (“Casualty Notice”). If the Real Property, or any part
thereof, shall be taken or condemned or Seller shall receive notice or be
informed of any threatened condemnation prior to the Closing Date, Seller shall
promptly notify Purchaser thereof (“Condemnation Notice”).
8.3 Casualty
Repaired or Temporary Condemnation before Closing.
Seller
shall be entitled to the proceeds of any insurance claims relating to damages
repaired prior to the Closing Date and the proceeds of any condemnation
proceeding relating to any temporary taking which relates to any period prior
to
the Closing Date. If the payment of such proceeds is received by the Seller,
the
proceeds shall be retained by Seller. If such proceeds shall not have been
paid
to the Seller by the Closing Date, Purchaser shall pay over as a post-closing
adjustment under Section
5.5 the
amount of such proceeds to Seller promptly after the Purchaser receives them.
In
either case, there shall be no set-off or reduction to the Purchase Price by
reason of such payment or claim for such proceeds.
14
8.4 Absence
of Major Unrepaired Damage
At
the
time of Closing, and as a condition precedent to the obligation of the Purchaser
to purchase the Real Property pursuant to this Agreement, there shall be no
unrepaired damage caused by Casualty to any portion of the Property the
estimated cost of repair of which is more than $250,000. Purchaser retains
the
right to waive this condition.
8.5 Effect
of Unrepaired Damage.
(a)
If
(i) any portion of the Real Property is damaged by Casualty after the date
of
this Agreement and is not repaired and restored substantially to its original
condition prior to Closing, and (ii) the estimated cost of repairs is $250,000
or less and the estimated time to repair is less than sixty (60) days, the
Purchaser shall be required to purchase the Real Property in accordance with
the
terms of this Agreement and, at Closing, the Seller shall assign to the
Purchaser all insurance claims and proceeds with respect thereto (other than
claims and proceeds for rent loss insurance with respect to rent payable before
the Closing) and shall pay or credit to the Purchaser the amount of any
deductible or uninsured loss with respect to such Casualty;
(b) If
the
estimated cost of repairing such damage is more than $250,000 or the estimated
time to repair is more than sixty (60) days, the Purchaser may, at its sole
option: (i) terminate this Agreement, in which case the Escrow Agent shall
return the Deposit to the Purchaser and no party shall have any further
liability or obligation to any other party under this Agreement except under
those sections of the Agreement which survive the termination of this Agreement;
or (ii) elect to proceed with the Closing, in which case the Seller shall assign
to the Purchaser all insurance claims and proceeds (other than claims and
proceeds for rent loss insurance with respect to rent payable and relating
to a
period before the Closing) with respect to such damage and shall pay or credit
to the Purchaser the amount of any deductible or uninsured loss (up to $250,000)
with respect to such Casualty; and
(c) If
a
Casualty to any part of the Property has occurred and Purchaser is required
or
elects to complete the purchase of the Property, the Seller shall cooperate
with
the Purchaser in prosecuting all insurance claims assigned to the Purchaser
at
Closing.
(d) Unless
Seller, reasonably deems repairs or restoration necessary, Seller shall not
perform any repairs or restoration unless approved by Purchaser.
The
Purchaser and Seller agree that, notwithstanding the preceding provisions,
in
the event an uninsured loss exceeds $250,000, the Seller may elect to cancel
this Agreement unless Purchaser, by sending a notice to Seller within fifteen
(15) days of receiving such a notice from Seller, elects to close the purchase
contemplated by this Agreement, with a reduction of the Purchase Price limited
to the amount of $250,000, notwithstanding the actual amount of the uninsured
loss.
15
8.6 Estimate
of Costs.
For
purposes of Section
8.5,
an
architect selected by the Seller and approved in writing by the Purchaser (such
approval not to be unreasonably withheld, delayed or conditioned), shall
determine the estimated costs and time to repair damage caused by fire or other
casualty.
8.7 Condemnation.
(a) Material
Permanent Condemnation.
In
the
event that a permanent public condemnation, eminent domain or other taking
proceeding shall be completed, commenced or threatened in writing against the
Real Property or a material portion (such taking shall be material if the result
shall be a significant reduction in the amount of buildable square feet or
access to the Property) of the Real Property either party may terminate this
Agreement by giving a notice of termination to the non-terminating party within
10 days after delivery to Purchaser of the Condemnation Notice, provided
however, that notwithstanding any such condemnation, the Purchaser may elect
by
giving notice to Seller within such 10 day period to consummate the purchase
contemplated by this Agreement, without abatement or reduction of the Purchase
Price. If Purchaser shall so elect to consummate the purchase contemplated
by
this Agreement, all condemnation awards shall be paid to Purchaser.
(b) Non-Material
Permanent Condemnation.
In
the
event of a permanent public condemnation, eminent domain or other taking
proceeding of a portion of the Real Property which is not described in
Section
8.7(a),
Purchaser shall complete the sale without any adjustment to the Purchase Price
or other compensation for such condemnation except that any proceeds received
by
the Seller before Closing on account thereof shall be paid over to Purchaser
at
Closing as a Closing adjustment, and Seller shall transfer and assign to
Purchaser at Closing all of Seller's rights and interests in and to such award
and proceeds and any proceeds received by the Seller whether before or after
Closing on account thereof shall be paid over to Purchaser as a Post-Closing
adjustment under Section
5.5.
ARTICLE
9. Rights
and Obligations Pending Closing
Between
the date of this Agreement and the Closing:
9.1 Contracts
and Leases.
Except
as
otherwise provided in this Article
9,
from
and after the date hereof, Seller shall not enter into any new contract or
lease
other than in the ordinary course of business, without Purchaser's prior written
consent; provided, however, that without Purchaser's consent Seller for cause
may (a) terminate any Contract for any material default thereunder or (b) enter
into a new agreement which replaces an existing
16
agreement,
provided that such new agreement, is on substantially the same terms as the
agreement being replaced with the same or shorter period for termination thereto
(but in any event any replacement agreement shall permit termination by the
then
owner of the Property without penalty on not more than 5 days notice, provided
all leases and contracts are terminated prior to Closing) and provided further
that Seller promptly notifies Purchaser upon terminating any agreement or
entering into any new agreement as aforesaid.
9.2 Operation.
(a) Seller,
at its expense, shall cause the Real Property to be operated and maintained
consistent with the past practices of Seller and in accordance with a standard
of diligence and care consistent with the past practice of Seller and maintained
(including making all necessary routine repairs and replacements arising after
the date hereof) in substantially the same condition as it was on the date
of
full execution hereof, reasonable wear and tear, loss by casualty and/or
condemnation excepted (subject to Article
8)
and
shall advise Purchaser of all decisions materially affecting the Real Property.
Seller will not unreasonably defer any routine or normal maintenance of the
Real
Property and will not and shall have no obligation to make any Major Repair
or
Alteration. For the purposes of this Agreement, a “Major Repair or Alteration”
shall be a repair or repairs or an alteration or alterations having a cost
individually or in the aggregate of $75,000 or more. Seller shall maintain
or
cause to be maintained the Licenses in full force and effect until the Closing.
Except as otherwise provided in this Article
9 and
otherwise at the Seller's invitation, Purchaser shall have no right to
participate in the management or operation of the Real Property prior to
Closing.
(b) In
the
event between the date of this Agreement and the Closing Date, a Major Repair
or
Alteration is required, Seller shall notify Purchaser of the Major Repair or
Alteration and the estimated cost thereof and Purchaser shall have the right,
to
be exercised in writing within ten (10) days of the delivery of the notice
from
the Seller either, to (i) close the purchase of the Real Property in accordance
with this Agreement, or (ii) cancel this Agreement and receive a return of
the
Deposit. In the event Purchaser fails to respond to a notice from Seller within
ten (10) days of delivery, Purchaser shall be deemed to elect alternative
(i).
9.3 Legal
Compliance.
Unless
disclosed to Purchaser, Seller shall use commercially reasonable efforts to
comply with all notices of non-compliance with federal, state, county and
municipal laws, ordinances, and regulations issued by Governmental Authorities
relating to the Real Property delivered to the Seller on or before the Closing,
copies of which shall be promptly delivered to Purchaser, subject, however,
to
good faith contests thereof. Seller shall keep Purchaser informed of and,
promptly after receipt thereof, send Purchaser copies of all notices of
non-compliance received on or before the Closing and of such contests. In the
event Seller is unable to comply with any notice of non-compliance by the
Closing Date, Purchaser may elect either (a) to close the purchase of the Real
Property
17
notwithstanding
the non-compliance without a reduction of the Purchase Price or (b) to cancel
the Agreement and receive a return of the Deposit.
9.4 No
Conveyance.
Seller
shall not (a) sell, assign, convey (absolutely or as security), grant a security
interest in, or otherwise encumber or dispose of, the Real Property or Personal
Property or any portion thereof or any interest or estate therein, (b) subject
the Real Property to any liens, encumbrances, covenants, conditions, easements,
rights or similar matters not in effect on the date hereof, or (c) enter into
or
negotiate with any party for the purpose of entering into any agreement to
sell,
assign, convey (absolutely or as security), grant a security interest in, or
otherwise encumber or dispose of, the Real Property or Personal Property or
any
portion or any interest or estate therein, without the prior written consent
of
the Purchaser, which consent may be withheld by Purchaser without
cause.
9.5 Mortgage
Contingency.
(a) It
is
agreed that Purchaser shall within thirty (30) days from the expiration of
the
Due Diligence Period obtain a commitment from one or more lending institutions
(collectively, the “First Lender”) for acquisition and construction loans
(collectively, the “Mortgage Loan”) in the estimated principal amount of
$30,000,000.00 for a maximum period of thirty (30) years, with interest not
to
exceed the higher of the present prevailing rate of interest for commercial
mortgage loans or the prevailing rate of interest at the time of Closing.
Purchaser further agrees to promptly furnish all credit information required
by
the First Lender and any other proper authority where required, to render
truthful and accurate statements to the First Lender and to execute all
necessary papers and documents necessary for the procurement of the Mortgage
Loan in a timely fashion. It is understood and agreed that all costs, fees
and
financing charges relating to the Mortgage Loan shall be paid by Purchaser.
The
Purchaser shall deliver to Seller, upon its request, copies of any
correspondence from the First Lender relating to the status of Purchaser's
Mortgage Loan application. In the event that Purchaser fails to obtain a
commitment for the Mortgage Loan within thirty (30) days from the expiration
of
the Due Diligence Period, this Agreement may be terminated by Purchaser upon
notification in writing to the other party provided that Purchaser's right
to
terminate this Agreement shall be subject to: (i) the diligent compliance by
Purchaser of its obligations herein to apply for the Mortgage Loan and provide
any information or documentation requested by the First Lender; and (ii) receipt
by Seller of Purchaser's termination notice within five (5) days after the
end
of the thirty (30) day period following the expiration of the Due Diligence
Period as provided herein for Purchaser to obtain the Mortgage Loan. Purchaser's
failure (or election not) to give such notice of termination shall be deemed
a
conclusive waiver of such right to terminate. Upon such termination this
Agreement shall be null and, void and Purchaser shall be entitled to a refund
of
all sums paid on account of the purchase price, except as set forth in Article
2.1(b). Purchaser agrees to forward to Seller a copy of any commitment it
receives from the First Lender which has agreed to make the Mortgage
Loan.
18
(b) Upon
request of the First Lender, the Security Agreement from Purchaser to Seller
shall be subordinate to the Mortgage Loan and all amendments, modifications,
consolidations, spreaders, and extensions thereof and to all advances
thereunder. Notwithstanding the foregoing, if the First Lender does not permit
Seller to have the Security Agreement recorded against the Property to secure
any future payments of the Purchase Price or portions thereof, then Purchaser
shall provide Seller with a first priority pledge and security interest in
all
direct and indirect interests of Purchaser. In addition, Seller shall execute
and deliver an intercreditor agreement in a form reasonably satisfactory to
Seller, which (i) provides Seller with notice and cure periods with respect
to
all defaults under the Mortgage Loan, (ii) gives Seller the right to commence
an
enforcement action against the Collateral without causing a default under the
Mortgage Loan, (iii) gives Seller the option to become the borrower under the
Mortgage Loan, and (iv) provides that Seller may only commence a foreclosure
of
the Security Agreement with the prior written consent of First Lender and
subject to the terms and conditions of a subordination agreement to be executed
and delivered by Seller to the First Lender.
ARTICLE
10. Continuing
Obligations.
10.1 Further
Assurances.
(a) After
the
Closing Date, Seller and Purchaser shall cooperate with one another at
reasonable times and on reasonable conditions and shall execute and deliver
such
instruments and documents as may be reasonably necessary in order fully to
carry
out the intent and purpose of the transactions contemplated hereby.
(b) After
the
Closing, Seller agrees to cooperate with Purchaser and to provide Purchaser
with
such information as Purchaser may reasonably request relating to rent, expenses
and other charges or financial matters relating to the Real Property, provided,
however, Seller shall have no obligation to incur any liability or expense
in
connection with any of the foregoing.
(c) At
Closing, Purchaser and Seller shall enter into a Lease Agreement for Seller
to
become a Tenant at the Premises pursuant to the provisions of the Lease attached
hereto as Exhibit
G,
the
terms of which are incorporated herein by reference. This provision shall
survive the Closing and transfer of the Deed.
10.2 Survival.
Notwithstanding
anything in this Agreement to the contrary, only those Sections of this
Agreement which expressly state that they shall survive either or both of the
termination of this Agreement and the Closing shall survive the termination
of
this Agreement and the Closing.
19
ARTICLE
11. Defaults
and Termination; Remedies.
(a) Defaults
by Purchaser and Termination by Seller.
In
the
event Purchaser shall fail to perform its obligations hereunder on the Closing
Date and all conditions to such performance have then been satisfied, Seller
shall have as its remedies the right to terminate this Agreement and to retain
(by notifying the Escrow Agent) the entire Deposit as damages and not as a
penalty and Seller shall have such other remedies available to it at law or
in
equity, including, but not limited to, specific performance.
(b) Termination
by Purchaser-Seller Default.
In
the
event of a default of Seller under this Agreement (which default shall include,
without limitation, if Seller has sold, transferred, conveyed, assigned or
leased all or substantially all of the Real Property, except in accordance
with
this Agreement, or failed to perform any of its obligations under this
Agreement), Purchaser's remedy shall be, at Purchaser’s option, either (1) to
terminate the Agreement and to obtain the return of the Deposit, or (2) to
obtain specific performance of this Agreement, or (3) to pursue any and all
other remedies available to Purchaser at law or in equity including, without
limitation, the right to recover all actual damages and out-of-pocket costs
and
expenses incurred by Purchaser that are caused by and are attributable to
Seller's default; provided however, Purchaser's remedies shall in all events
be
limited by the provisions of Section
12.13 hereof.
(c) Termination
of Agreement by Purchaser-No Default.
The
Purchaser shall be entitled to a return of the Deposit (to the extent paid)
(1)
upon the termination of this Agreement by Seller pursuant to Sections
8.5 or 8.7
hereof,
(2) upon a termination of this Agreement by the Purchaser pursuant to
Sections
2.1(a),
8.5 or 8.7
hereof,
(3) upon a termination of this Agreement by Purchaser pursuant to Section
11(b) hereof,
(4) if any condition to Purchaser's obligation to close is not satisfied or
(5)
if this Agreement is terminated or the purchase and sale is not closed for
a
reason other than a default under or breach of this Agreement by
Purchaser.
(d) Post-Termination
Rights and Obligations.
Upon
the
termination of this Agreement, neither party shall have any further rights
or
obligations, except those rights and obligations arising under any Sections
of
this Agreement which expressly survive termination of this Agreement. In the
event this Agreement shall be terminated by either party in accordance with
the
terms hereof, either party shall, at the request of the other, execute and
deliver an agreement in form reasonably satisfactory to the party terminating
the Agreement and its attorney evidencing such termination.
20
(e) Survival.
Section
11
shall
survive the Closing and/or the termination of the Agreement.
ARTICLE
12. Miscellaneous.
12.1 Exhibits.
The
Exhibits referred to herein and attached hereto are hereby made a part hereof
as
fully as if set forth in the text of this Agreement.
12.2 Assignments.
This
Agreement may not be assigned by the Purchaser without the prior written consent
of Seller. Purchaser may assign this Agreement to an entity or affiliate of
the
Purchaser without consent and only notice as long as such entity is controlled
and managed by Xxxx Xxxxxxx or any entity controlled and managed by Xxxx
Xxxxxxx. Subject to the foregoing, this Agreement shall inure to the benefit
of
and be binding upon the successors and assigns of the parties.
12.3 Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of
law.
12.4 Headings.
Headings
and captions at the beginning of each numbered section and articles of this
Agreement are solely for the reference of the parties and are not a part of
or
to affect the interpretation of this Agreement.
12.5 Attorney’s
Fees.
In
the
event of any litigation arising out of a breach or claimed breach of this
Agreement, the prevailing party shall be entitled to recover all costs and
expenses incurred, including reasonable attorneys' fees and expenses. References
to “reasonable attorneys fees” herein shall be deemed to include all such fees
in connection with litigation, including any trial, appeal and post-trial
proceeding, whether or not so stated in a particular instance.
12.6 Multiple
Counterparts.
This
Agreement may be executed in any number of counterparts and it shall not be
necessary that each party to this Agreement execute each counterpart. Each
counterpart so executed (or, if all parties do not sign on the same counterpart,
each group of counterparts signed by all parties) shall be deemed to be an
original, but all such
21
counterparts
together shall constitute one and the same instrument. In making proof of this
Agreement, it shall not be necessary to account for more than one counterpart
or
group of counterparts signed by all parties.
12.7 Interpretation.
This
Agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Agreement to be drafted.
If any words or phrases in this Agreement shall have been stricken out or
otherwise eliminated (whether or not any other words or phrases have been added)
and initialed by the party in favor of which such words or phrases are
construed, this Agreement shall be construed as if the words or phrases so
stricken out or otherwise eliminated were never included in this Agreement
and
no implication or inference shall be drawn from the fact that such words or
phrases were so stricken out or otherwise eliminated. If any provision of this
Agreement shall not be enforceable or shall be determined by any court to be
invalid, all other provisions of this Agreement shall be unaffected thereby
and
shall remain in full force and effect. All terms and words used in this
Agreement, regardless of the number or gender in which they are used, shall
be
deemed to include any other number and any other gender as the context may
require.
12.8 Amendment.
This
Agreement can be modified, amended, changed, or rescinded only by a writing
expressly referring to this Agreement and signed by all of the
parties.
12.9 Notices.
(a) Manner
of Giving Notice.
Each
notice, request, demand, consent, approval or other communication (hereafter
in
this Section referred to collectively as “notices” and referred to singly as a
“notice”) which the Seller or the Purchaser is required or permitted to give to
the other party pursuant to this Agreement shall be in writing and shall be
deemed to have been duly and sufficiently given if
(i) personally
delivered with proof of delivery thereof (any notice so delivered shall be
deemed to have been received at the time so delivered),
(ii) sent
by
Federal Express (or other similar overnight courier) designating early morning
delivery (any notice so delivered shall be deemed to have been received on
the
next Business Day following receipt by the courier),
(iii) sent
by
United States registered or certified mail, return receipt requested, postage
prepaid, at a post office regularly maintained by the United States Postal
Service (any notice so sent shall be deemed to have been received two days
after
mailing in the United States), or
22
(iv) sent
by
telecopier or facsimile machine which automatically generates a transmission
report that states the date and time of the transmission, the length of the
document transmitted and the telephone number of the recipient's telecopier
or
facsimile machine (with a copy thereof sent in accordance with paragraph (1),
(2) or (3) above) (any notice so delivered shall be deemed to have been received
(i) on the date of transmission, if so transmitted before 12:00 midnight (local
time of the sender) on a Business Day, or (ii) on the next Business Day, if
so
transmitted on or after 12:00 midnight (local time of the sender) on a Business
Day or if transmitted on a day other than a Business Day), addressed to the
parties at their respective addresses designated pursuant to subsection
(b).
(b) Addresses
for Notices.
All
notices shall be addressed to the parties at the following
addresses:
Seller:
NORTHEAST
COMMUNITY BANK
000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxx, President and CEO
with
copies to:
Xxxxxx
Xxxxxx Giacovas & Kranjac LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxxx, Esq.
Purchaser:
MJ
1353-1355 First Avenue, LLC
c/o
Wellington Real Estate, Inc.
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx
with
a
copy to:
Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx, LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
Either
party may, by notice given pursuant to this Section, change the Person or
persons and/or address or addresses, or designate an additional Person or
Persons or an additional address or addresses, for its notices, but notice
of a
change of address shall only be
23
effective
upon receipt in accordance with Section
12.9(a) hereof.
Seller and Purchaser each agree that it will not refuse or reject delivery
of
any notice given hereunder, that it will acknowledge, in writing, receipt of
the
same upon request by the other party and that any notice rejected or refused
by
it shall be deemed for all purposes of this Agreement to have been received
by
the rejecting party on the date so refused or rejected, as conclusively
established by the records of the U.S. Postal Service or the courier
service.
12.10 Waiver.
No
waiver
shall be effective unless such waiver shall be particularly set forth in writing
and signed by the party making the waiver. Any and all written waivers under
this Agreement shall be valid only for the particular time and circumstances
for
which such waiver is given.
12.11 No
Recordation.
Purchaser
shall not record this Agreement or any memorandum of this Agreement without
the
prior written consent of Seller. In the event Purchaser shall violate the
provisions of this Section
12.11,
such
violation shall, at Seller's option, constitute a default of the Purchaser
under
this Agreement entitling Seller to terminate this Agreement and retain the
Deposit if not remedied by Purchaser within three (3) business days after
receipt of notice from Seller. In the event that Purchaser violates the
provisions of this Section
12.11,
Purchaser hereby irrevocably appoints Seller and as its attorney-in-fact,
coupled with an interest, to execute and record a certificate conclusively
terminating this Agreement, which certificate shall be recorded in the office
of
the City Register, New York County, it being intended that such certificate
shall serve to clear any cloud on the title to the Property created by the
erroneous or improper recordation of this Agreement.
12.12 Confidentiality.
(a) If
for
any reason whatsoever this transaction is terminated prior to Closing, all
information and documentation delivered to Purchaser by Seller or its agents
shall be promptly returned to Seller by Purchaser. Additionally, all such
information and documentation, as well as any information otherwise obtained
or
generated by Purchaser and its consultants, to the extent not now or hereafter
in the public domain, is confidential and shall not be disclosed by Purchaser
to
any party at any time prior to Closing or if this Agreement is terminated in
accordance with its terms, other than Purchaser's attorneys, accountant,
consultants, and potential or existing lenders, tenants and investors, without
Seller's prior written consent or unless required by subpoena or order of a
Court or governmental agency. Prior to Closing, Seller and Purchaser agree
to
maintain in confidence and agree not to disclose the terms and provisions of
this Agreement and matters relating to the acquisition of the Property by
Purchaser, including, without limitation, the identity of the Purchaser, except
as such disclosure may be necessary to attorneys, accountant, consultants,
lenders, investors or regulators or judicial order or subpoena. In this regard,
Seller and Purchaser each agree to use their good faith efforts to prevent
any
and all such persons retained by them from disclosing any information
to
24
third
parties with respect to this transaction, other than as such disclosure may
be
necessary in connection with the matters expressly set forth hereinabove and
with respect to any judicial orders or subpoenas the parties agree to use good
faith efforts to secure a judicial order enforcing this confidentiality
provision. The provisions of this paragraph (i) shall terminate as to Purchaser
and survive as to the Seller after the Closing and (ii) shall terminate as
to
the Seller and survive as to Purchaser in the event of the termination of this
Agreement.
(b) Upon
Seller's request, after any termination of this Agreement, Purchaser shall
within ten (10) business days return to Seller the files and records that were
furnished by Seller to Purchaser in connection with this transaction in the
possession or control of Purchaser, and shall use diligent, good faith efforts
to cause its consultants, attorneys, lenders and potential investors to do
the
same. This paragraph shall survive the termination of this Agreement.
12.13 Liability
of Seller.
Any
and
all claims against Seller arising out of or in connection with this Agreement
shall be enforceable only against the assets of the Seller. No member, officer,
director, shareholder, trustee, employee, investment manager, advisor, or agent
of the Seller (and no officer, director, shareholder, trustee, employee,
investment manager, advisor or other agent of any such person) shall have any
personal liability arising out of or in connection with this Agreement.
12.14 Liability
of Purchaser.
Any
and
all claims against Purchaser arising out of or in connection with this Agreement
shall be enforceable only against the assets of the Purchaser. No member,
partner, officer, director, shareholder, trustee, employee, investment manager,
advisor, or agent of the Purchaser (and no officer, director, shareholder,
trustee, employee, investment manager, advisor or other agent of any such
person) shall have any personal liability arising out of or in connection with
this Agreement.
12.15 Severability.
The
provisions of this Agreement are independent of and severable from each other.
If any provision hereof or any document or agreement delivered pursuant hereto
shall for any reason be held invalid or unenforceable, it is the intent of
the
parties that such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision hereof and that this Agreement shall
be
construed as if such invalid or unenforceable provision had never been contained
herein.
12.16 WAIVER
OF JURY TRIAL.
SELLER
AND PURCHASER HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY
WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
25
PROCEEDING
OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT OR INSTRUMENT EXECUTED IN
CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS
AGREEMENT.
12.17 Telecopy.
This
Agreement may be executed and delivered by telecopy and a telecopy counterpart
of this Agreement executed by any party shall constitute, for all purposes,
an
original document; any party executing this Agreement by telecopy agrees
promptly to deliver an executed counterpart of this Agreement but the failure
of
such party to deliver or of any other party to account for or produce such
counterpart shall not affect the binding and enforceable nature of the telecopy
counterpart and the telecopy counterpart shall continue to be an original,
binding agreement.
12.18 Entire
Agreement.
All
understandings and agreements heretofore made between the parties are merged
in
this Agreement. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement in effect between the parties,
except as expressly set forth in this Agreement.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
26
EXECUTED
as of the date first above written.
|
PURCHASER:
|
|
|
MJ
1353-1355 FIRST AVENUE, LLC,
|
|
|
a
New York limited liability company
|
|
|
By:
/s/ Xxxx X.
Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxxx
|
|
|
Title:
Managing Member
|
|
|
SELLER:
|
|
|
NORTHEAST
COMMUNITY BANK
|
|
|
By:
/s/ Xxxxxxx X.
Marinek
|
|
|
Name:
Xxxxxxx X. Marinek
|
|
|
Title:
Chairman, President and Chief Executive
Officer
|
27
EXHIBIT
LIST
|
A.
-
|
Permitted
Exceptions
|
|
B.
-
|
Real
Property (Schedule A Description and/or
Survey)
|
|
C.
-
|
Escrow
Agreement
|
|
D.
-
|
Bargain
and Sale Deed With Covenants
|
|
E.
-
|
Promissory
Note
|
|
F.
-
|
Security
Agreement
|
|
G.
-
|
Lease
|
|
H.
-
|
FIRPTA
Affidavit
|
|
I.
-
|
Assignment
of ZELDA
|
