MODIFICATION TO AGREEMENT OF SALE
BETWEEN WILLCO ASSOCIATES-2, L.L.C.
AND
XXXXXXXXXX GRAPHICS INTERNATIONAL, INC.
This Amendment to Agreement of Sale made this 3rd day of February, 1999 by
and between Willco Associates-2, L.L.C., a New Jersey limited liability company,
as ASeller" and Xxxxxxxxxx Graphics International, Inc., a New Jersey
corporation, as ABuyer".
Witnesseth:
WHEREAS, on or about October 28, 1998, the parties hereto entered into an
Agreement of Sale ("Contract") for the sale and purchase of vacant real property
located in the City of Jersey City, County of Xxxxxx and State of New Jersey as
currently described on the tax map of the City of Jersey City as Block 2154.3,
Lot 65 (the "Willco-2 Property"); and
WHEREAS, on or about December 24, 1998, the Agreement was terminated by the
Buyer; and
WHEREAS, after discussion, the parties agreed to engage Xxxxx Associates,
Inc. ("SAI" or "Seller's Consultant") and Converse Consultants, Inc. ("CCI" or
"Buyer's Consultant"), at Seller's expense, for the purpose of testing the
Willco-2 Property to determine whether environmental conditions exist at the
Willco-2 Property which would require remediation; and
WHEREAS, on January 12, 1999, SAI, after agreement on protocol and in
consultation with CCI, while both SAI and CCI were present on the Willco-2
Property, groundwater samples were collected and soil samples were obtained from
the Willco-2 Property and analyzed; and
WHEREAS, in accordance with the terms of a certain report dated January 18,
1999 issued by SAI (the "Xxxxx Report") elevated concentrations of the pesticide
dieldrin were detected in two soil samples collected along the southeastern
boundary of the Willco-2 Property adjacent to the railroad track's and base
neutral organic compounds and heavy metals which are commonly associated with
historic fill materials were also detected in soil and groundwater samples taken
at the Willco-2 Property; and
WHEREAS, the SAI report recommended, inter alia, further delineation of the
dieldrin located along the southeastern boundary of the Willco-2 Property
adjacent to the railroad tracks and the installation of a cap as an engineering
control along the southeastern boundary of the Willco-2 Property adjacent to the
railroad tracks ("Dieldrin Remediation"); and
WHEREAS, Buyer has requested that additional soil samples be taken in order
to determine, what, if any, remediation, other than the Dieldrin Remediation,
needs to be performed at the Willco-2 Property in order to obtain a No Further
Action Letter ("NFA") from the New Jersey Department of Environmental Protection
("NJDEP"); and
WHEREAS, the Seller has agreed to have CCI in consultation with SAI,
perform additional soil borings at the Willco-2 Property; and
WHEREAS, the parties have agreed to revive the Contract and proceed with
the purchase of the Willco-2 Property under the following terms and conditions:
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants contained herein, together with other good and valuable consideration,
the parties hereto agree as follows:
1. Modification of Purchase Price. Paragraph 2 of the Contract is hereby
amended to provide that the Purchase Price is reduced from One Million Sixty
Five Thousand ($1,065,000.00) Dollars to Nine Hundred Seventy Five Thousand
($975,000.00) Dollars.
2. Waiver of Contract Conditions Precedent. The Buyer agrees that the
conditions precedent contained in paragraphs 7(a) and 7(b) of the Contract, are
deemed satisfied in full.
3. Testing. The parties hereto have agreed that at Seller's expense SAI in
consultation with CCI, will perform additional soil borings as outlined in the
proposal prepared by SAI and dated February 2, 1999, and prepare a report for
dissemination to both the Buyer and Seller ("SAI Additional Report").
4. Buyer's Obligations. The Buyer hereby agrees that if the results of the
SAI Additional Report indicate that no remediation other than the Dieldrin
Remediation as set forth on the Estimate of Escrow Costs related to Dieldrin
Contamination prepared February 1, 1999 (the "Escrow Estimate"), attached hereto
and made a part hereof is required in order for Seller to obtain an NFA from
NJDEP, that Buyer shall, within five (5) days of written notice from the Seller,
deliver the Purchase Price to Seller and accept delivery of the Deed, as such
term is defined in the Contract, subject only to Seller and Buyer entering into
a Memorandum of Agreement for Seller to obtain an NFA from NJDEP. In addition to
the foregoing, the Buyer agrees that, at closing or at a later date, it will
accept any deed restriction limiting the use of the property to non-residential
use as may be required by the NJDEP and Seller agrees that it will post an
escrow at Closing with the attorney for the Seller for the costs of the Dieldrin
Remediation, in the amount of the Escrow Estimate.
5. Seller's Rights. A) In the event that the results of the CCI Additional
Report indicate that any further investigation and/or clean-up of contaminants
which exceed NJDEP non-residential clean-up criteria other than the Dieldrin
Remediation need to be performed at the Willco-2 Property then and in that
event, Seller may, at Seller's option:
(i) Agree to perform all necessary remediation at its sole cost and
expense in order to obtain an NFA from NJDEP; or
(ii) Cancel this Agreement.
B) In the event that Seller agrees to perform all necessary remediation at
its sole cost and expense in order to obtain an NFA, then and in that event,
Buyer shall, within five (5) days of written notice from Seller, deliver the
Purchase Price to Seller and accept delivery of the Deed, as such term is
defined in the Contract, subject only to Seller and Buyer entering into a
Memorandum of Agreement and Environmental Remediation Agreement for Seller to
obtain an NFA from NJDEP. In addition to the foregoing, the Buyer agrees that it
will accept a deed restriction limiting the use of the property to
non-residential use as may be required by the NJDEP and Seller agrees that it
will post an escrow with the attorney for the Seller for the costs of
remediation as agreed by CCI and SAI.
2
6. Closing Date. Notwithstanding anything to the contrary contained herein,
the parties agree that provided that Seller has agreed to obtain an NFA from
NJDEP, that Seller may, at Seller's option determine whether it wishes to close
and transfer title to the Willco-2 Property either before or after receipt of
the NFA from NJDEP; it being specifically understood that nothing contained
herein shall be construed to relieve Seller of the obligation to obtain an NFA
from NJDEP unless the parties otherwise agree to a credit against the purchase
price in an amount agreeable to the parties in which event upon delivery of the
purchase price and the Deed, as such term is defined in the Contract, neither
party shall have any responsibility to the other after the closing and transfer
of title to the Willco-2 Property.
7. Affirmation. Except as specifically modified herein, the parties hereto
affirm and reaffirm all other terms, conditions and provisions of the Contract.
8. Headings. The paragraph headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Amendment to Agreement of Sale.
9. Successors and Assigns. This Amendment to Agreement of Sale shall be
binding upon the parties hereto and their respective successors and assigns.
10. New Jersey Law Governs. This Agreement shall be construed in accordance
with and governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Buyer and the Seller have caused this Agreement to
be executed and delivered by their respective duly authorized corporate officer,
all as of the day and year first above written.
SELLER:
ATTEST: _____________________ WILLCO ASSOCIATES-2, L.L.C.,
a New Jersey limited liability company
By: _______________________________________
Xxxxxx Xxxxxxx, Member
BUYER:
ATTEST: _____________________ XXXXXXXXXX GRAPHICS INTERNATIONAL, INC.,
a New Jersey Corporation
By: _______________________________________
Xxxxxxx X. Xxxxxxxxxx, President,
Chief Executive Officer
3
