ACQUISITION AGREEMENT
THIS AGREEMENT (the "Agreement"), made as of the 20th day of
April, 2005 between DIONICS INC., a Delaware corporation having
an office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (hereinafter
referred to as "Seller") and 65 RUSHMORE REALTY, LLC, a New York
limited liability company with an office at ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of fee title to a certain
parcel of real property and the improvements constructed thereon
located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (Section and
Block 11073, Lot 00250) being more particularly described in
Exhibit "A" annexed hereto and made a part hereof (the
"Property"); and
WHEREAS, Seller wishes to sell to Purchaser all of Seller's
right, title and interest in the Property; and
WHEREAS, upon and subject to the terms and conditions herein
contained (and the Exhibits hereto), Seller agrees to sell and
convey and Purchaser agrees to purchase and acquire the Property.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements herein contained and subject to
the conditions herein set forth, the parties agree as follows:
1. PURCHASE AND SALE. In accordance with and subject to the
terms and conditions of this Agreement, Seller agrees to sell,
convey, transfer, and assign, and Purchaser agrees to purchase,
acquire and assume, as the case may be, the Property;
together with all and every right, title and interest
of Seller in and to the Property except as otherwise provided
herein;
together with all easements, privileges, and
appurtenances, thereunto belonging; and
together with all rights of Seller in and to any and
all leases, licenses, tenancies and occupancies made by Seller or
at any time acquired by Seller in respect of the Property and
except as otherwise provided herein, all rents, issues and
profits arising from or out of such leases, licenses, tenancies
and occupancies, nor existing or, subject to the terms of this
Agreement, or hereafter created in respect of the Property up to
and including the Closing Date (as hereinafter defined).
2. PURCHASE PRICE. The Purchase Price for the Property is Nine
Hundred Ninety ($990,000.00) Dollars, which shall be paid by
Purchaser to Seller, as follows:
a. Forty-Nine Thousand Five Hundred ($49,500.00) Dollars (the
"Deposit"), on the signing of this Agreement, by check subject to
collection, to the order of the Escrow Agent (for purposes of
this Agreement, Seller's attorney, Certilman Balin ▇▇▇▇▇ & ▇▇▇▇▇,
LLP shall be the "Escrow Agent") to be held in escrow in
accordance with the terms of this Agreement; and
b. Nine Hundred Forty Thousand Five Hundred ($940,500.00)
Dollars on the Closing Date, certified funds, wire transfer of
immediately available federal funds to an account or accounts
designated by Seller or as otherwise directed by Seller on not
less than three (3) business days written notice prior to the
Closing Date. Seller shall have the obligation to direct
Purchaser in writing to pay part or all of the Purchase Price due
hereunder to the payment of any liens including mortgages on the
Property and to pay any expense of Seller with respect to this
transaction.
The sale also includes all personal property, plumbing,
heating, air-conditioning systems and all other fixtures and
personal property attached or appurtenant to or used in
connection with the operation of the Property, if any, owned by
Seller presently on the Property, which is appurtenant to or used
in the operation thereof. Notwithstanding the foregoing,
Purchaser acknowledges and agrees that all items of personality
installed by Seller in connection with Seller's business
operations, whether attached to the Property or movable, shall
not be deemed personality included in the sale and shall remain
the personal property of Seller.
3. PERMITTED EXCEPTIONS. Seller shall convey and Purchaser
shall accept title to the Property in accordance with the terms
of this Agreement subject to the following (collectively the
"Permitted Exceptions"):
a. Any state of facts an accurate survey would show of the
Property provided such state of facts (x) does not prohibit the
continued current use of the Property, and (y) does not render
title unmarketable or reduce the value of the Property.
b. The exceptions listed on Exhibit "B" annexed hereto, and
made a part hereof (the "Additional Permitted Exceptions").
4. SERVICE AND EMPLOYMENT AGREEMENTS. Any and all existing
service and employment contracts will remain in the name of
Seller. Any obligations under any and all existing service and
employment contracts will remain the obligation of Seller, with
no obligations whatsoever to Purchaser.
5. VIOLATIONS. Seller, at Seller's sole cost and expense,
shall be obligated to remove all notes or notices of violations
of law or municipal ordinances, orders or requirements noted in
or issued both prior to and subsequent to the date hereof by any
governmental department having authorization as to lands,
housing, buildings, fire, health, labor, zoning and use
conditions affecting all or any portion of the Property. Seller
shall deliver copies of documents evidencing the removal of the
foregoing to Purchaser no less than five (5) days prior to the
Closing Date.
6. CONDITION OF PROPERTY/CERTIFICATE OF OCCUPANCY.
a. Purchaser acknowledges that it has fully examined the
Property and is purchasing the Property in an "as is" condition
"with all faults" and specifically and expressly without any
warranties, representations or guarantees, from or on behalf of
the Seller and its agents, except as otherwise set forth in this
Agreement.
b. It shall be a condition of Closing that a valid and existing
Certificate of Occupancy, or other required certificate of
compliance, or evidence that none was required, covering the
buildings and all of the other improvements located on the
Property authorizing the continued current use of the Property
has been issued by the municipality having jurisdiction over the
Property. Subject to the provisions of Paragraph 7 below, Seller
shall deliver a valid and subsisting Certificate of Occupancy, or
other required certificate of compliance, or evidence that none
was required, covering the buildings and all of the other
improvements located on the Property authorizing the continued
current use of the Property.
c. Purchaser may enter upon the Property at any time or times
during the effectiveness of this Contract for the purpose of
performing environmental tests, including invasive testing to the
soil and the ground water (such environmental tests, together
with such entry upon the premises is as necessary to perform
them, being collectively referred to herein as the "Due
Diligence"), provided the premises is not damaged thereby or, if
damaged, the premises is returned to the condition it was in
prior to such Due Diligence. Notwithstanding anything herein to
the contrary, Purchaser shall have a period of sixty (60) days
from the date of Seller executing this Agreement ("Due Diligence
Period") to conduct the Due Diligence. If purchaser shall find a
Hazardous Condition or violation of any applicable Environmental
Laws as defined below, Purchaser shall have the right, by written
notice to Seller, to cancel this Contract on or before the
expiration of the Due Diligence Period and promptly receive a
return of the Downpayment from the Escrowee subject, however, to
the Seller's right to cure such Hazardous Condition or violation
of any applicable Environmental Laws in which event Purchaser
shall be required to close title, however nothing contained
herein shall require Seller to cure such Hazardous Condition or
violation of any applicable Environmental Laws. In the event
Purchaser does not give such written notice of termination to
Seller on or before the expiration of the Due Diligence Period,
the Purchaser's right to terminate hereunder shall automatically
expire and the parties shall continue to perform their respective
obligations hereunder. Purchaser shall indemnify and save
harmless Seller from and against any and all damages for
liability resulting solely from Purchaser's negligence or willful
misconduct in performing the Due Diligence.
d. Notwithstanding anything to the contrary contained in this
Contract, in the event that the Purchaser's Phase I or Phase II
environmental investigation of the Premises during the Due
Diligence Period discloses (1) the presence of any Hazardous
Substances on or about the Premises or (2) a violation of any
applicable Environmental Laws which require remediation, the
Purchaser shall (i) provide Seller with a copy of its
environmental reports, which environmental reports shall include
recommendations and a cost estimate to remedy such condition, and
(ii) have the option to be exercised by written notice to Seller
given by no later than the date of the expiration of the Due
Diligence Period to terminate this Contract and receive a refund
of the Downpayment made hereunder and in such event, neither
party shall have any further claims against the other by reason
of this Contract except, as expressly set forth in this Contract
as surviving the termination of this Contract. In no event shall
the Purchaser have the right to adjourn the closing date as a
result of such environmental condition nor shall such remediation
be a condition of closing. "Environmental Laws" as used herein
means any federal, state, local or foreign law, treaty judicial
decision, regulation, rule, judgment, order, decree, injunction,
permit, agreement or governmental restriction or requirement,
whether now or hereinafter in effect, relating to human health
and safety, the environment or to pollutants, contaminants,
wastes or chemicals or any toxic, radioactive, ignitable,
corrosive, reactive or otherwise hazardous substance, waste or
material. "Hazardous Substances" as used herein means any
pollutant, contaminant, waste or chemical or any toxic,
radioactive, ignitable, corrosive, reactive or otherwise
hazardous substance, waste or chemical, or any substance, waste
or material having any constituent elements displaying any of the
foregoing characteristics, including, without limitation,
petroleum, its derivatives, by-products and other hydrocarbons,
and any substance, waste or material regulated under
Environmental Laws.
e. Seller represents that, to the best of its knowledge, the
Property is in compliance with any and all applicable codes,
laws, regulations, statutes, ordinances, covenants, conditions or
restrictions and any governmental or quasi-governmental entity or
of any person or entity. Seller represents that the Property is
in compliance with any environmental or occupational protection,
pollution, subdivision or land use laws, rules, regulations,
orders or requirements including but not limited to, those
pertaining to the handling, generating, treating, storing or
disposing of any hazardous waste material or substance.
f. Purchaser acknowledges that Seller is presently occupying
the Property, is the sole occupant and tenant of the Property,
that no other person or entity has any rights to occupy the
Property, and it is a material condition of this Agreement that
Seller shall continue to occupy the Property after Closing in
accordance with the Lease annexed hereto as Exhibit "C" (the
"Lease") which shall be executed by Purchaser and Seller at
Closing. Accordingly, Purchaser acknowledges and agrees that
Seller shall not be obligated to remove any of its personal
property from the Property prior to Closing and the Property will
not be delivered vacant, broom clean and free of all tenancies at
Closing.
7. TITLE INSURANCE REPORT.
a. Purchaser shall promptly order a title insurance commitment
and furnish a copy of such commitment to Seller promptly upon
receipt. If Purchaser does not deliver such commitment to
Seller's attorney within ten (10) days prior to the Closing Date,
then Seller may give Purchaser notice of its failure to provide
such commitment, and if Purchaser does not furnish such
commitment within five (5) days of delivery of such notice to
Purchaser's attorney, then Purchaser shall be deemed to have
accepted any and all such defects which were or would have been
revealed by such title insurance commitment. Purchaser shall not
be barred from raising any title objections which do not appear
of record or which appear of record subsequent to receipt of the
commitment. Upon receipt of Purchaser's title insurance
commitment, Seller shall eliminate all defects which are not
Permitted Exceptions and which Purchaser has not accepted in
writing. In the event Seller is unable to eliminate such defects
by the Closing Date, either party, by giving written notice to
the other party, may elect to adjourn the Closing Date, for a
period not to exceed thirty (30) days from the Closing Date in
the aggregate in order to provide Seller with additional time in
which to eliminate such defects. However, Seller shall not be
required to bring any action or proceeding or otherwise incur any
expense to remove any Title Defect. The existence of any taxes,
liens, or encumbrances, other than the Permitted Exceptions,
shall not be objections to title if properly executed instruments
necessary to satisfy the same are delivered to the Purchaser's
title company (the "Title Company") at or before the Closing,
together with recording and filing fees, if any, so that the
Title Company may omit such taxes, liens, or encumbrances from
its schedule of exceptions to title.
b. If, after the period and undertakings specified in Section
7(a) above, Seller is unable to convey title to the Property on
the Closing Date in accordance with the provisions of this
Agreement (i.e., subject only to the Permitted Exceptions), then
at any time thereafter on or before the Closing Date, Purchaser
may elect to take such title as Seller can convey or transfer and
to deduct from the Purchase Price (i) liens, charges, claims and
encumbrances of a definite of ascertainable amount, and (ii) the
cost of any deletions and changes and any additional title
endorsements provided by the Purchaser's title insurance company.
If Purchaser shall not so elect, Purchaser may elect to terminate
this Agreement, such termination to be effective immediately upon
giving written notice of same to Seller. Upon such termination,
the Purchaser shall be entitled to receive the Deposit, plus
accrued interest earned thereon, from the Escrow Agent and this
Agreement shall be null and void and the parties hereto shall be
relieved of all further obligations and liability except as
otherwise provided herein.
c. Purchaser, at Purchaser's expense, shall promptly order and
furnish to Seller, a survey by a licensed surveyor, acceptable to
Purchaser and the Title Company, of the Property which shall
describe the Property, be dated after the date hereof, and
contain a surveyor's certificate in favor of Purchaser and the
Title Company in form satisfactory for, among other things,
deletion of the standard survey exception from the title
insurance policy and consistent with and as required by the next
succeeding sentence. The survey will show (i) the location of
the perimeter of the land by courses and distances and its square
footage, (ii) the location of all improvements and the
relationship thereof by distances to the perimeter of the land,
the building lines, and the street lines, (iii) any easements and
rights-of-way, (iv) any building lines, (v) the lines of the
streets abutting the land and the width thereof, (vi) any
encroachments and the extent thereof in feet and inches upon the
land, and (vii) any encumbrances of a physical nature (the
"Survey"). Following receipt of the Survey, Purchaser shall have
the same rights to object to facts shown on such survey, and
Seller shall have the same obligations to cure said objections,
as each party has with respect to defects in title as set forth
in Paragraph 7(a) and (b) hereof.
d. The existence of any mortgage, other lien or encumbrance
which Seller is obligated or otherwise agrees to discharge, shall
not be an objection to title, provided that (x) instruments for
the discharge of same are in compliance with Paragraph 7(f)
below, together with recording and/or filing fees, and (y) the
payment of said lien is deducted from the balance of Purchase
Price paid on the Closing Date. Unpaid liens for taxes, water
charges and assessments shall not be objections to title, but the
amount thereof, plus interest and penalties thereon, shall be
deducted from the Purchase Price, and allowed to Purchaser,
subject to the provisions for apportionment of such charges
contained herein.
e. If, on the Closing Date, the Property or any part thereof
shall be or shall have been affected by assessments which are, or
which may become, payable in annual installments, of which the
first installment is then a charge or lien, or has been paid,
then for the purposes of this Agreement all of the unpaid
installments of any such assessments which are, or which may
become, payable in annual installments, of which the first
installment is then a charge or lien, or has been paid, then for
the purposes of this Agreement all of the unpaid installments of
any such assessments, including those which are to become due and
payable after the Closing Date, shall be deemed to be due and
payable and shall be deemed liens upon the Property, and shall be
prorated on the Closing Date.
f. Seller agrees to execute and deliver to the Title Company
any instrument or deposit, including any consents, indemnities or
affidavits, required of Seller to remove or discharge an
objection to title or defect in marketability or to indicate the
terms and reduced amount of any mortgage or other lien on the
Property. Such deliveries shall be in such form, terms,
conditions and amount and be made in such manner as may be
required by the Title Company to insure title and to satisfy said
company sufficiently for them to either certify the said facts
and/or omit any exception to title and/or guarantee to Purchaser
against collection of any item out of the Property. Said
instrument shall also be satisfactory in form to any mortgage
lender procured by Purchaser.
8. APPORTIONMENTS. As Seller will be simultaneously entering
into the Lease on the Closing Date that provides for payment by
Seller, as Tenant, of all expenses in connection with the use and
occupancy of the Premises, there will be no adjustments at
Closing for real estate taxes, water charges, sewer rents, and
fuel. The only adjustments which may be due at Closing are for
sums which are required to be paid by either party to the other
at the Closing pursuant to the provisions of this Agreement. In
addition, Seller shall continue to pay all utilities servicing
the Property so required to obtain final readings for such
utilities.
9. EXISITING LEASES. The parties acknowledge that Seller is
the current and sole occupant of the Property and that Seller has
no lease, license or occupancy agreement for said Property.
Seller shall not be permitted to amend, modify or renew any lease
of all or any portion of the Property and enter into any new
lease for any portion of the Property that may now or hereafter
become vacant without the written consent of the Purchaser.
Seller indemnifies and holds Purchaser harmless from
and against any and all loss, cost, liability, damage and
expense, including reasonable attorneys' fees, arising out of a
breach of the foregoing representation. The foregoing shall
survive the Closing Date.
10. CERTIORARI.
a. Seller represents and Purchaser acknowledges that there is
currently a certiorari proceeding pending for the reduction of
the assessed valuation of the Property and Seller instituted said
proceeding. If there is a proceeding pending, Seller may not
settle such proceedings without Purchaser's written consent,
which shall not be unreasonably withheld. If there is not a
proceeding pending, Seller, at Purchaser's request and expense,
shall institute a tax reduction proceeding for the year in which
the Closing Date occurs.
b. The provisions of this Paragraph 10 shall survive the
Closing Date.
11. CASUALTIES.
a. Seller represents, warrants and covenants as of the date
hereof and the Closing Date that it (x) maintains the insurance
policy on the Property as more fully detailed on Exhibit "D"
hereto (the "Insurance Policy") and (y) shall maintain, and pay
the premiums for, the Insurance Policy for the term of this
Agreement through the Closing Date. The provisions of this
Paragraph 11(a) shall survive the Closing Date.
b. If between the date of this Agreement and the Closing Date,
all or any part of the Property is damaged by fire or other
casualty, then notwithstanding the provisions of any statute to
the contrary, Seller shall give Purchaser written notice of any
fire or casualty occurring prior to the Closing Date within five
(5) business days after Seller has received actual notice of such
occurrence.
c. If, as a result of such fire or casualty, the estimated cost
of restoration of the Property is in excess of twenty (20%)
percent of the Purchase Price, Purchaser shall have the right to
cancel this Agreement by written notice to the Seller within a
reasonable amount of time after Purchaser receives the foregoing
notice. The cost of restoring the Property, for the purposes of
this provision, shall be determined by the written estimate of a
reputable contractor mutually agreeable to Seller and Purchaser
which estimate shall be conclusive. In the event of such
cancellation by the Purchaser, the Deposit, plus accrued interest
earned thereon, shall be returned to Purchaser, whereupon neither
party shall have any further liability to the other hereunder.
d. If the Property is damaged by fire or other casualty, prior
to the Closing Date, and the estimated cost of restoring the
Property is equal to or less than twenty (20%) percent of the
Purchase Price, or if the cost of restoration is in excess of
twenty (20%) percent of the Purchase Price and Purchaser does not
terminate this Agreement pursuant to subparagraph (c) hereof,
then this Agreement shall remain in full force and effect and
title shall nevertheless close without any abatement in the
Purchase Price or any liability or obligation on the part of
Seller by reason of such damage or destruction except that the
Purchase Price shall be reduced in an amount equal to the
deductible on the Insurance Policy; and provided further that on
the Closing Date, Seller shall execute and deliver to Purchaser
an assignment of Seller's right to any proceeds of any hazard
insurance policies covering such damage or destruction. In
addition, on the Closing Date, the proceeds (if any) actually
collected and retained by Seller under the provisions of the
hazard insurance policies covering the Property, less costs
actually incurred by Seller in connection therewith, including
but not limited to reasonable legal fees, shall be transferred to
Purchaser.
12. CONDEMNATION.
a. If between the date of this Agreement and the Closing Date,
all or a substantial part of the Property (or any part of the
Property that causes the Property to be uneconomical, in
Purchaser's or Seller's reasonable opinion) is taken in
condemnation or by eminent domain proceeding, or Seller receives
a written notice stating that such a proceeding may occur with
respect to the Property, Purchaser and Seller shall each have the
option to terminate this Agreement and upon such an election by
notice to the other party given in accordance with paragraph 21
herein, and this Agreement shall be deemed terminated and of no
further force and effect and the Deposit, plus accrued interest
earned thereon, shall be returned to Purchaser, whereupon neither
party shall have any further liability to the other hereunder.
The party making such an election shall make such election within
a reasonable amount of time after notice of such proceeding.
Seller must advise Purchaser within three (3) days of any intent
by any governmental agency's intent to condemn the Property or a
portion thereof, to exercise eminent domain or of any notice of
any such or similar proceeding.
b. If the neither party exercises the option to terminate this
Agreement provided in (a) above, there shall be a reduction in
the balance due on the Closing Date to be paid by Purchaser to
Seller on the Closing Date by an amount equal to all awards, if
any, paid to Seller prior to the Closing Date for the taking by
eminent domain, and Seller shall execute and deliver to Purchaser
an assignment of Seller's rights to any other proceeds and awards
for the taking by eminent domain which are made after the Closing
Date.
13. SELLER'S REPRESENTATIONS.
a. In addition to the representations contained elsewhere in
this Agreement, Seller represents that as of the date of this
Agreement and on the Closing Date that:
i. It has the power and authority to enter into this Agreement
and to consummate the transaction provided for herein; (b) this
Agreement is a valid and binding agreement of Seller; (c) the
person executing this Agreement has the authority to do so and
the power to bind Seller thereby; (d) neither the execution of
this Agreement nor consummation of the transaction contemplated
hereunder requires the consent of any other person, firm,
corporation, court, governmental or quasi-governmental authority
nor will either such execution or consummation constitute a
violation or breach by Seller of any agreement to which Seller is
a party or court order or decree;
ii. It has not received any written notice of any condemnation
or eminent domain proceeding with regard to all or any part of
the Property;
iii. No prior tenant or any third party has or had any lease or
agreement conferring any right or estate in all or any portion of
the Property including, without limitation, any option or right
of first refusal to purchase all or any portion of the Property;
iv. There are no tenants at the Property other than Seller and
that no party other than Seller is in possession, or has any
rights to occupy or possess any portion, of the Property.
v. That Seller, as the sole occupant of the Property, has no
security deposit and has no written lease, occupancy or license
or other agreement governing Seller's occupancy of the Property.
vi. It is not now a party to any litigation with respect to the
Property and Seller knows of no litigation affecting the Property
and Seller shall give to Purchaser prompt notice of the
institution or threat of any such litigation prior to the Closing
Date;
vii. It now owns legal and beneficial title to the Property, free
and clear of all liens and encumbrances, except for the Permitted
Exceptions;
viii. It agrees to not suffer any default in the payment of
principal or interest or in the maintenance of the Property or
any other condition which may permit the holder of any mortgage
encumbering the Property to declare the same due and payable; all
existing mortgages are non-participating and there has been no
modifications thereto which have not been exhibited to Purchaser;
ix. It has not transferred or agreed to transfer any development
or air rights pertaining to the Property and has no knowledge of
such transfer or agreement to do so by any former owner of the
Property;
x. It has not received notice of any mechanic's liens, sidewalk
assessments, emergency repair liens or notices to repair
sidewalks; and
xi. It is not a "foreign person", as such term is defined in the
Internal Revenue Code of 1986, as amended (the "Code).
The provisions of this Paragraph 13(a) shall survive
the Closing Date.
b. Between the date of this Agreement and the Closing, Seller
shall continue to operate, maintain and repair the Property in
its usual and customary manner.
14. PURCHASER'S REPRESENTATIONS. Purchaser represents as of the
date of this Agreement and as of the Closing Date that (a) it has
the power and authority to enter into this Agreement and to
consummate the transaction provided for herein; (b) this
Agreement is a valid and binding agreement of Purchaser; (c) the
person executing this Agreement has the authority to do so and
the power to bind Purchaser thereby; (d) neither the execution of
this Agreement nor consummation of the transaction contemplated
hereunder requires the consent of any other person, firm,
corporation, court, governmental or quasi-governmental authority
nor will either such execution or consummation constitute a
violation or breach by Purchaser of any agreement to which
Purchaser is a party or court order or decree.
15. CLOSING DATE. Closing will take place at the offices of
Certilman Balin ▇▇▇▇▇ & ▇▇▇▇▇, LLP, the attorneys for Seller, at
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at
10:00 a.m. on or about May _26, 2005. The location of the
closing is subject to change in the event Purchaser's financing
institution so requires.
16. DOCUMENT DELIVERY.
a. Seller shall, on the Closing Date:
i. Deliver to Purchaser or Purchaser's designee a Bargain and
Sale Deed with covenants, in proper statutory form for recording,
duly executed and acknowledged, with revenue stamps in proper
amount affixed thereto by Seller so as to convey to Purchaser fee
simple title to the Property, free and clear of all liens,
encumbrances and title defects, except for the Permitted
Exceptions;
ii. Deliver to Purchaser or Purchaser's designee a Certification
of Non-foreign Status duly executed and containing such other
information as may be required by Internal Revenue Code Section
1445 and the regulations issues thereunder. Anything herein
contained to the contrary notwithstanding, in the event that
Seller is a "foreign person" (as defined in Internal Revenue Code
Section 1445) or in the event that Seller fails or refuses to
deliver the Certification of Non-foreign Status, as aforesaid, or
in the event that Purchaser receives notice from any Seller-
transferor's agent or Purchaser-transferee's agent (each as
defined in Internal Revenue Code Section 1445 and the regulations
issued thereunder) that, or Purchaser has actual knowledge that,
said Certification is false, Purchaser shall deduct and withhold
from the Purchase Price under this Agreement a tax equal to ten
percent (10%) thereof, as required by Internal Revenue Code
Section 1445. In the event of any withholding, Seller's
obligation to deliver title hereunder shall not be excused or
otherwise affected. Purchaser shall pay over such withheld
amount to the Internal Revenue Service together with filing such
form as may be required thereby and Seller, in the event of any
claimed over-withholding shall be limited solely to an action
against the Internal Revenue Service for a refund, and hereby
waives any right of action against Purchaser on account of such
withholding. The provisions of this Paragraph 16(ii) shall
survive the Closing Date;
iii. Execute and deliver to Purchaser or Purchaser's designee the
Lease;
iv. Deliver to Purchaser or Purchaser's designee a letter
authorizing the Escrow Agent to disburse the Deposit to Seller;
v. Deliver to Purchaser or Purchaser's designee such other
documents as required by this Agreement and such other documents
that are reasonably required by Purchaser, Purchaser's lender, if
any, and the Title Company.
b. Purchaser shall, on the Closing Date:
i. Deliver the balance of the Purchase Price, subject to
adjustment as provided in this Agreement, by immediately
available federal funds transferred by wire to such account(s) in
such bank(s) as Seller shall designate; or by certified or
official bank check(s) to Seller and/or its designees, at
Seller's option;
ii. Execute and deliver the Lease;
iii. Deliver to Seller, a letter authorizing the Escrow Agent to
disburse the Deposit to Seller;
iv. Cause the deed to be recorded, duly complete all required
real property transfer tax returns and cause all such returns and
checks in payment of such taxes to be delivered to the
appropriate officers promptly after the Closing;
v. Deliver to Seller such other documents as are required by
this Agreement to be delivered by Purchaser or as reasonably
requested by Seller and/or the Title Company in order to
effectuate the provisions of this Agreement.
17. TRANSFER TAXES.
a. Seller and Purchaser agree to execute (where applicable) and
to otherwise cooperate with the other in the preparation and
filing of any state or local transfer or gains tax or other
documents or affidavits required to transfer title as
contemplated by this Agreement.
b. On the Closing Date, Seller shall pay the New York State
Real Estate Transfer Tax due and payable in connection with the
payment by Purchaser of the Purchase Price. Purchaser shall pay
the charges necessary to record the deed and for the premium for
any title insurance desired by Purchaser.
c. Seller indemnifies Purchaser against, and holds Purchaser
harmless from, any claim, judgment, loss, liability, cost of
expense (including reasonable attorneys' fees and disbursements,
court costs and litigation expenses) that may be imposed upon,
incurred by or asserted against Purchaser or the Property by
reason of Seller's failure to pay any taxes, interest and/or
penalties required to be paid by Seller in accordance with the
provisions of this Paragraph 17, however, delivery of the
transfer taxes to the Title Company shall be deemed full
compliance by Seller in Seller's obligation to pay such taxes.
d. The provisions of this Paragraph 17 shall survive the
Closing Date.
18. ASSIGNMENT. This Agreement may not be assigned by Seller or
Purchaser without the written consent of the other except as
expressly provided in Paragraph 30 hereof.
19. RECORDATION. Seller and Purchaser hereby agree that each
party shall not record this Agreement.
20. BROKERAGE. Purchaser and Seller warrant and represent to
each other that no broker, person, corporation or entity was in
any way instrumental or had any part in bringing about this
transaction other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Prudential ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Real Estate. Seller shall pay any and all commissions
due to Prudential ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate. Purchaser and
Seller agree that should any claim be made for commissions by any
broker, person, corporation or entity other than specifically
named in this paragraph, arising by, through or on account of any
act of Purchaser or of Purchaser's representatives or of Seller
or Seller's representatives, respectively, each shall indemnify,
defend and hold the other harmless from and against all claims,
liability, expense or damage, including without limitation,
reasonable attorney's fees, in connection therewith. The
provisions of this Paragraph 20 shall not be deemed to be for the
benefit of any third party. The provisions of this Paragraph 20
shall survive the Closing Date or earlier termination of this
Agreement.
21. NOTICES. All notices, demands, requests and elections which
are required or desired to be given shall be in writing, and
shall be sent by personal delivery, facsimile transmission,
Federal Express, Express Mail or by the United States Registered
or Certified Mail, Return Receipt Requested, postage paid,
addressed to Seller at:
DIONICS INC.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Danzig ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Certilman Balin ▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and to Purchaser at:
65 Rushmore Realty LLC
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
All notices shall be deemed given on the earlier of the date
of actual receipt or two (2) days after the date of mailing. Any
notices which either party may be required to give or may desire
to give; any consents by either party under this Agreement; and
any adjournments of the Closing Date may be given or consented to
by the attorney for such party with the same force and effect as
if given or consented to by such party. In order to effectuate a
change of address, the party requesting the change shall send a
notice to all parties required to receive notice pursuant to this
Paragraph 21.
22. TITLES. The titles herein are inserted only as a matter of
convenience and for reference only and in no way define, limit or
describe the scope or intent of this Agreement or any provisions
hereof, nor in any way affect this Agreement and the terms and
provisions hereof.
23. APPLICABLE LAW. The laws of the State of New York shall
govern the validity, performance and enforcement of this
Agreement.
24. BINDING EFFECT. The submission of this Agreement to
Purchaser shall not be construed as an offer, nor shall
Purchaser, or any other person, corporation, or other entity have
any rights with respect thereto, unless and until both Seller and
Purchaser shall have executed this Agreement, and a fully
executed copy is delivered to Purchaser or his attorney. This
Agreement shall be binding upon the parties hereto and their
successors and assigns. The terms and provisions of this
Agreement shall create no right in any person, firm or
corporation other than the parties hereto and their respective
successors and permitted assigns, and no third party shall have
the right to enforce or benefit from the terms hereof.
25. MERGER. It is understood and agreed that all understandings
and agreements heretofore had between the parties hereto are
merged into this Agreement. This Agreement (including the
Exhibits attached hereto) fully and completely expresses the
agreement of the parties hereto relating to the matters
referenced herein, and that the same is entered into after full
investigation, neither party relying upon any representation,
express or implied warranties, guarantees, promises, statement,
"setups", representations or information, not embodied in this
Agreement, made by the other or by any real estate broker, agent,
employee, servant or other person representing or purporting to
represent such party.
26. MODIFICATION. This Agreement may not be modified, changed,
supplemented or terminated, nor may any obligations hereunder be
waived, except by written instrument signed by the party to be
charged.
27. GENDER. Whenever the context shall require, the singular
shall include the plural, the plural shall include the singular
and words of any gender shall be deemed to include words of any
other gender. As used herein, Purchaser shall mean each
individual or other entity signing this Agreement, both
individually and collectively.
28. ESCROW PROVISIONS.
a. Escrow Agent shall hold the proceeds of the check delivered
to Escrow Agent for the Deposit, in escrow, in an interest-
bearing account maintained at Astoria Federal Savings Bank,
located at Bayshore, New York;
b. The Deposit shall be held by the Escrow Agent until the
Closing or sooner termination of this Contract and Escrow Agent
shall pay over the interest or income earned thereon, if any, to
the party entitled to the Deposit. The party receiving such
interest or income shall pay any income taxes due thereon. If
for any reason the Closing does not occur pursuant to the
provisions of this Contract and either party makes a written
demand upon Escrow Agent, in the manner required for notices, for
payment of the Deposit, then Escrow Agent shall give written
notice, in accordance with the provisions of section 21 to the
other party of such demand. If Escrow Agent does not receive a
written objection from the other party to the proposed payment of
the Deposit pursuant to the aforesaid demand within ten (10) days
after the delivery of such notice by Escrow Agent, Escrow Agent
is hereby authorized to make such payment in accordance with the
aforesaid demand. If Escrow Agent receives written objection from
the other party to the proposed payment of the Deposit pursuant
to the aforesaid demand within such ten (10) day period or if for
any other reason Escrow Agent in good faith shall elect not to
make such payment, Escrow Agent shall continue to hold the
Deposit until otherwise directed by written instructions from
Seller and Purchaser or a final judgment of a court of competent
jurisdiction. Escrow Agent, however, shall have the right at
anytime to deposit the Deposit with the Clerk of any Court of
competent jurisdiction in the State of New York, and Escrow Agent
shall give written notice of such deposit to the Seller and the
Purchaser, and upon such deposit being made, Escrow Agent shall
be discharged from all obligations and responsibilities
hereunder. The parties acknowledge that Escrow Agent is acting
solely as a stakeholder at their request and for their benefit.
c. Seller represents that its Federal Employer Identification
Number is ▇▇-▇▇▇▇▇▇▇; and Purchaser represents its Federal
Employer Identification Number is ▇▇-▇▇▇▇▇▇▇.
shall be executed and delivered by Seller and Purchaser on the
Closing Date.
29. REMEDIES/LEGAL FEES/LIQUIDATED DAMAGES. In the event of
default by Seller under the terms of this Agreement, Purchaser
shall have such remedies at law or in equity as Purchaser may
elect including specific performance. In any action commenced
by Purchaser against Seller hereunder, Purchaser may recover its
legal fees and disbursements from Seller. In the event of
default by Purchaser under the terms of this Agreement, the
damages due Seller by reason of such default shall be deemed
liquidated in the amount of the Deposit provided for hereunder.
Except with respect to any indemnities made by Purchaser to
Seller hereunder, receipt of the amount of such Deposit shall be
Seller's sole and complete remedy in the event of a default
hereunder by Purchaser and Seller hereby waives any and all other
remedies.
30. MORTGAGE TAX. Seller agrees that Purchaser may obtain an
assignment of Seller's existing mortgage, if any, for the purpose
of mortgage tax savings provided Seller receives a release of its
liability under the note secured by such mortgage at closing.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first set forth above.
Seller:
DIONICS, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Purchaser:
65 RUSHMORE REALTY, LLC
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Member
