Exhibit 10.2
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FIRST AMENDMENT OF PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT OF PURCHASE AND SALE AGREEMENT (this "Amendment") is
made as of this 14th day of August, 2003, by and between ELEC COMMUNICATIONS
CORP., a New York corporation having an address at 000 Xxxx Xxxxxx, Xxx
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called "Seller") and BLUEGILL REALTY, LLC,
a New York limited liability company, have an office at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 10001(hereinafter called "Buyer").
W I T N E S S E T H
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WHEREAS:
a. Buyer and Seller have heretofore entered into an Agreement of Purchase
and Sale dated as of June 2, 2003 (the "Contract"), pursuant to which Seller
agreed to sell and Buyer agreed to purchase the building and improvements
located at 000 Xxxx Xxxxxx, Xxx Xxxxxxxx, Xxx Xxxx (the "Property") upon and
subject to all of the terms, covenants and conditions as are more particularly
described in the Contract.
b. Buyer has previously delivered the Extension Notice extending the Due
Diligence Period until August 31, 2003.
c. The parties hereto desire to modify the Contract in certain respects to
provide for, among other things, (i) the creation of a post-closing
Environmental Escrow (as hereinafter defined) for the payment of certain
environmental testing and remediation costs with respect to underground storage
tanks; (ii) the confirmation of the satisfaction of the Due Diligence
Conditions, the Special Conditions and the financing contingency, subject to the
post-closing testing and remediation of the USTs; and (iii) the delivery of the
Vacate Notice.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. All capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed to them in the Contract.
2. Subject to the terms and conditions of this Amendment, Buyer hereby
exercises its right to require Seller to vacate the Property pursuant to the
provisions of Section 3.5 of the Contract (the "Vacate Notice"), and Buyer
acknowledges that all conditions under Sections 3, 5 and 6 of the Contract have
been satisfied or waived. The parties acknowledge that the Closing Date shall
occur on October 8, 2003, or sooner in the event that the parties can agree upon
a mutually acceptable date.
3. Buyer and Seller hereby acknowledge that Seller shall have no obligation
to remove any asbestos-containing material ("ACM") located in the Building and
Buyer shall not be entitled to any adjustment to the Purchase Price by reason of
the presence of any ACM.
4. Buyer and Seller hereby acknowledge that certain testing and remediation
activities as hereinafter described in this Section 4 with respect to the
existing underground storage tank ("UST") located on the Property will be
performed by Buyer prior to or subsequent
to the Closing (the "Tank Removal Activities"). Seller hereby acknowledges that
it shall immediately cease the performance of any testing and/or remediation
activities with respect to the UST. For the purposes hereof, the "Tank Removal
Activities" shall include, but not be limited to the following i)Remove UST(s);
ii) Remove any and all supply and return lines; iii) Remove any and all existing
fill and vent lines; iv) Remove and dispose of contaminated soil associated with
the tank removal; v)Pump and dispose of contaminated ground water associated
with the tank removal; and vi) Test to determine if UST abandoned or any other
USTs in use on-site.
5. In consideration of Buyer's performance of the Tank Removal Activities,
Seller and Buyer hereby direct Escrow Agent to retain the sum of $100,000 (the
"Environmental Escrow") in the escrow account subsequent to the Closing. The
Environmental Escrow shall be held and applied subject to the following terms
and conditions:
(i) Prior to or promptly after the Closing, Buyer shall prepare a bid
package for the performance of the Tank Removal Activities and shall
deliver a copy of same to Seller.
(ii) Buyer shall obtain three (3) bids from qualified licensed contractors
for the performance of the Tank Removal Activities. Seller shall have
the right to designate one licensed contractor who shall be invited to
submit a bid for the performance of the Tank Removal Activities.
(iii)Buyer, at its sole discretion, shall select the winning bidder to
perform the Tank Removal Activities, it being understood that Buyer
shall be under no obligation to select the lowest bidder, and Buyer
shall contract with such bidder for the work.
(iv) Buyer shall be entitled to reimbursement of all costs incurred in
connection with the Tank Removal Activities in an amount equal to the
lesser of the bid accepted by the Buyer or the average of the three
(3) qualified bids received for the Tank Removal Activities (or the
lesser number of bids actually received) plus the cost of any change
orders, provided the aggregate change order costs shall not exceed 20%
of the original contract price.
(v) Buyer shall submit monthly requisitions to Escrow Agent with a copy to
Seller requesting payment of monies due for the Tank Removal
Activities, and Escrow Agent shall promptly reimburse Buyer for such
costs. It is understood that Escrow Agent has no responsibility for
review and approval or verification of any requisitions.
6. In the event that the results of the Tank Removal Activities indicate
that Buyer will be required to install an extraction system as determined by the
applicable governmental agency(ies) having jurisdiction thereof, the Escrow
Agent shall promptly release any unapplied portion of the Environmental Escrow
to Buyer after payment of all unbilled costs and Seller thereupon shall have no
further obligations or liabilities with respect to the Tank Removal Activities
from and after the Closing Date.
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7. In the event the results of the Tank Removal Activities as determined by
Buyer's environmental consultant indicate that no further remediation is
required or recommended under applicable governmental requirements, or in
connection with the construction of the purported improvements, Escrow Agent
upon request from Seller, shall promptly release any unapplied portion of the
Environmental Escrow after payment of unreimbursed costs to Seller, and Seller
shall have no further obligations or liabilities with respect to the Tank
Removal Activities on the Property from and after the Closing Date.
8. Seller agrees to cooperate with Buyer, at the expense of Buyer, in
completing and filing any application permits or other documents as requested by
Buyer prior to Closing to expedite the performance of Buyer's demolition of the
Building and construction of the new multi-family building on the Property,
including, but not limited to, any asbestos abatement, demolition permits or
tank removal permits, provided however, that Seller shall not be required to
take any action that adversely affects the rights, duties, liabilities and
immunities of Seller under the Contract.
In consideration of Seller's agreement to cooperate with Buyer pursuant to
this Section 8, Buyer hereby agrees to indemnify Seller and its agents,
employees, officers, directors and shareholders for, and to hold each of them
harmless against, any loss, liability or expense incurred by any such person
arising out of or in connection with any action taken by Seller at the request
of Buyer pursuant to this Section 8, including the reasonable costs and expenses
of defending itself against any claim or liability in the performance of such
actions.
9. Except as modified by this Amendment, the Contract and all covenants,
agreements, terms and conditions thereof shall remain in full force and effect
and are hereby in all respects ratified and confirmed.
10. The covenants, agreements, terms and conditions contained in this
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors assigns.
11. The Amendment may be executed in counterparts by the parties hereto,
each of which shall be considered an original, and all of which counterparts
together shall constitute one and the same instrument. Facsimile signatures of
this Amendment shall be deemed legal and binding upon the parties hereto.
12. This Amendment may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
ELEC COMMUNICATIONS CORP., Seller
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Chief Executive Officer
Date: August 14, 2003
BLUEGILL REALTY, LLC, Buyer
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Principal
Date: August 14, 2003
The undersigned hereby agrees to be bound by the provisions of Paragraph 5
herein in its capacity as Escrow Agent
XXXXXXXX & XXXXXXXXXX, P.C.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Partner
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