Exhibit 10.1
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AGREEMENT OF PURCHASE AND SALE
Between
ELEC COMMUNICATIONS CORP., SELLER
And
BLUEGILL REALTY, LLC, BUYER
Property
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▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
TABLE OF CONTENTS
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Page
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1. AGREEMENT TO PURCHASE AND SELL; DOWN PAYMENT............................1
2. OTHER PROPERTY INCLUDED IN PURCHASE AND SALE............................1
3. BUYER'S INSPECTION OF THE PROPERTY......................................2
4. TITLE...................................................................3
5. FINANCING CONTINGENCY...................................................3
6. SPECIAL CONDITIONS......................................................3
7. REPRESENTATIONS AND WARRANTIES..........................................3
8. CONDITIONS TO CLOSING...................................................7
9. CLOSING.................................................................8
10. PRORATIONS; HOLDBACK....................................................9
11. EXPENSES................................................................9
12. RISK OF LOSS; CASUALTY AND EMINENT DOMAIN..............................10
13. BROKER'S COMMISSIONS...................................................11
14. MANAGEMENT OF THE PROPERTY.............................................11
15. DEFAULTS...............................................................12
16. NOTICES................................................................12
17. ASSIGNMENT.............................................................13
18. ESCROW.................................................................13
19. GENERAL PROVISIONS.....................................................16
EXHIBITS
"A" - Legal Description of the Real Property
"B" - Intentionally Deleted
"C" - Permitted Exceptions
AGREEMENT OF PURCHASE AND SALE
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THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") made as of the 2nd
day of June, 2003, between eLEC Communications Corp., a New York corporation
having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Seller"),
and Bluegill Realty, LLC, a New York limited liability company, having an office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Buyer").
1. Agreement to Purchase and Sell; Down Payment.
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1.1 Agreement to Purchase and Sell. Subject to and upon the terms and
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conditions contained in this Agreement, Seller agrees to sell and convey to
Buyer and Buyer agrees to purchase from Seller the real property described on
Exhibit A attached hereto, together with all buildings and improvements thereon
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(the "Building"; the Building and the real property are, collectively, the
"Property"). For purposes of this Agreement, the improvements included under the
terms of this Agreement shall not include any server room air conditioners or
other equipment which Seller is permitted to remove from the Building prior to
Closing under the terms of Subsection 8.1.1 below. The total purchase price for
the Property under the terms and conditions of this Agreement shall be Two
Million Two Hundred Thousand and 00/100 Dollars ($2,200,000.00) (the "Purchase
Price").
1.2 Down Payment; Payment of Purchase Price. Contemporaneously with the
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execution and delivery of this Agreement, Buyer has paid a good faith deposit in
the amount of One Hundred Eight-Five Thousand and 00/100 Dollars ($185,000.00)
(together with the accrued interest the "Down Payment") to Buyer's attorney,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C. (the "Escrow Agent"), in its capacity as escrow
agent. The Down Payment constitutes a deposit to be applied, subject to the
provisions of this Agreement, toward the payment of the Purchase Price.
Notwithstanding the foregoing, in the event Buyer terminates this Agreement
pursuant to the terms hereof, the Down Payment and all interest earned thereon
shall be returned to Buyer. The Down Payment shall be invested by the Escrow
Agent in an interest-bearing account and all interest earned on the Down Payment
shall be paid to the party entitled to received the Down Payment. Buyer shall
pay Seller by wire transfer of federal funds at the Closing (hereinafter
defined) an amount (the "Closing Payment") equal to (i) the Purchase Price, (ii)
plus or minus net prorations provided for in this Agreement, and (iii) minus the
Down Payment (excluding any interest earned thereon). The Down Payment, less the
Holdback Payment, if applicable, shall be disbursed by the Escrow Agent in
accordance with the provisions of Article 18 of this Agreement.
2. OTHER PROPERTY INCLUDED IN PURCHASE AND SALE.
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In addition to the Property, all right, title and interest of Seller, if
any, in and to the following, to the extent that the same apply to the Property
and are transferable or assignable, shall be included within the term "Property"
and shall be transferred from Seller to Buyer at Closing:
2.1 all easements, rights of way, privileges, licenses, appurtenances
and other rights and benefits running with the Property; and
2.2 all consents, authorizations, variances, licenses, permits and
certificates of occupancy (collectively, the "Permits"), issued by any
governmental authority with respect to the Property.
3. BUYER'S INSPECTION OF THE PROPERTY.
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3.1 Inspection and Examination. During the period extending to and
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including the date that is sixty (60) days after the date hereof (the "Due
Diligence Period"), Buyer and Buyer's agents will be given the right to perform
nondestructive physical tests (except that Buyer may perform minor intrusive
testing to determine the presence of asbestos-containing materials), provided
that all damage resulting therefrom is promptly repaired by Buyer at its sole
expense and (ii) conduct any and all necessary engineering, environmental and
other inspections at the Property including test borings to the concrete slab of
the Building and examine and evaluate all relevant agreements and documents
within the possession of Seller or subject to its control, as Buyer may
reasonably request, provided that all damage resulting therefrom is promptly
repaired by Buyer at its sole expense. No soil and/or ground water sampling
shall be performed unless and until the location, scope and methodology of such
sampling and the environmental consultant selected by Buyer to perform such
sampling have all been approved by Seller, which approval shall not be
unreasonably withheld or delayed. Prior to conducting such sampling, Buyer shall
have a utility ▇▇▇▇-out performed for the Property. Seller acknowledges that
Buyer shall have the right to perform testing of any underground or above ground
storage tanks on or beneath the Property, and, if necessary, perform soil
sampling of adjoining areas in connection therewith. With respect to Buyer's
right to inspect the Property, Buyer agrees that (i) Seller shall receive not
less than forty-eight (48) hours prior notice of each inspection, (ii) each
inspection shall be performed during normal business hours or at such other
times as Seller and Buyer shall mutually agree and (iii) Buyer and Buyer's
agents shall use all reasonable efforts to minimize any disruption to the
tenants, guests, employees, occupants of the Property and the operation thereof.
Buyer or Buyer's agents shall not perform any such inspection or examination
unless accompanied by Seller or its designee. Buyer's repair obligation set
forth in the first sentence of this Section shall survive the termination of
this Agreement.
3.2 Right of Termination; Extension of Due Diligence Period. Except as
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otherwise provided herein, Buyer's obligations under this Agreement shall be
contingent, only during the Due Diligence Period, upon Buyer being satisfied in
its sole discretion with the results of its investigation and evaluation of the
Property (the "Due Diligence Condition") and the Special Conditions set forth in
Article 6 hereof. Not later than five (5) business days prior to the expiration
of the Due Diligence Period, Buyer shall deliver a Notice to Seller that (i)
Buyer is not satisfied with the Due Diligence Condition and/or the Special
Conditions and Buyer has elected to terminate this Agreement (a "Termination
Notice"); or (ii) Buyer has elected to extend the Due Diligence Period for a
single thirty (30) day period to conduct further investigations and/or satisfy
the Special Conditions set forth in Article 6 (the "Extension Notice"); provided
however, that Buyer's right to deliver the one-time Extension Notice is subject
to the Extension Fee (as
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hereinafter defined) held by the Escrow Agent as part of the Down payment being
deemed earned by Seller and non-refundable (provided Seller is not in default
under this Agreement). For the purposes hereof, the "Extension Fee" shall be the
sum of $18,000. If Buyer delivers the Termination Notice to Seller prior to the
expiration of the Due Diligence Period, the Down Payment and all interest earned
thereon shall be promptly returned to Buyer, less the Extension Fee which shall
be returned to Seller, and the parties hereto shall be released from all further
obligations and liabilities hereunder, except with respect to the covenants and
indemnities which survive the termination of this Agreement. In the event that
Buyer does not deliver the Extension Notice or the Termination Notice to Seller
prior to the expiration of the Due Diligence Period, Buyer shall be deemed to
have waived the Special Conditions and the Due Diligence Condition and Buyer's
right to terminate this Agreement pursuant to this Section 3.2, Article 5 and
Article 6, and this Agreement shall continue in effect subject to the other
provisions hereof. In the event Buyer has delivered the Extension Notice, the
Due Diligence Period shall be extended for a period of thirty (30) days to
conduct further investigations and/or attempt to fulfill the Special Conditions
and Buyer shall have the right to deliver a Termination Notice) not later than
five (5) business days prior to the expiration of the such extended Due
Diligence Period.
3.3 Inspection Indemnity. Notwithstanding anything to the contrary
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contained in this Agreement, any investigation or examination of the Property,
or materials provided by Seller with respect to the Property performed by Buyer
or Buyer's agents prior to the Closing shall be performed at the sole risk and
expense of Buyer, and Buyer shall be solely responsible for the acts or
omissions of any of Buyer's agents brought on, or to, the Property by Buyer. In
addition, Buyer shall defend, indemnify and hold Seller harmless from and
against all loss, expense (including, but not limited to, reasonable attorneys'
fees and court costs arising from the enforcement of this indemnity), damage and
liability resulting from claims for personal injury, wrongful death or property
damage against Seller or any of the Property arising from or as a result of, any
act or omission of Buyer and Buyer's agents in connection with any inspection or
examination of the Property or the books and records with respect thereto by
Buyer or Buyer's agents. The provisions of this Section 3.3 shall survive the
Closing or the earlier termination of this Agreement.
3.4 Condition. As a material inducement to Seller to execute this
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Agreement, Buyers acknowledges, represents and warrants that, upon the
satisfaction or waiver of the Due Diligence Condition and the Special
Conditions, (i) Buyer will have fully examined and inspected the Property,
including the construction, renovation, operation and leasing of the Property,
together with the review materials and such other documents and materials with
respect to the Property which Buyer deems necessary or appropriate in connection
with its investigation and examination of the Property, (ii) Buyer will have
accepted and will be fully satisfied in all respects with the foregoing and with
the physical condition, value, presence/absence of hazardous or toxic materials,
financing status, use, leasing, operation, tax status, income and expenses of
the Property, (iii) the Property will be purchased by Buyer "AS IS" and "WHERE
IS" and with all faults and, upon Closing, Buyer shall assume responsibility for
the physical and environmental condition of the Property and (iv) Buyer will
have decided to purchase the Property solely on the basis of its own independent
investigation. Except as expressly set forth herein or in any document executed
by Seller and delivered to Buyer at Closing ("Seller's Documents") Seller has
not made, does not make, and has not authorized anyone else to make
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any representation as to the present or future physical condition, value,
presence/absence of hazardous or toxic materials, financing status, leasing,
operation, use, tax status, income and expenses or any other matter or thing
pertaining to the Property, and Buyer acknowledges that no such representation
or warranty has been made and that in entering into this Agreement it does not
rely on any representation or warranty other than those expressly set forth in
this Agreement or in Seller's Documents. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN SELLER'S DOCUMENTS, SELLER MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY. Seller shall not be liable for or
bound by any verbal or written statements, representations, real estate broker's
"setups" or information pertaining to the Property furnished by any real estate
broker, agent, employee, servant or other person unless the same are
specifically set forth in this Agreement or in Seller's Documents. The
provisions of this Section 3.4 shall survive the Closing.
3.5 Vacate Notice. Prior to the expiration of the Due Diligence Period,
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Buyer shall have the right to deliver a 60-day notice to Seller (the "Vacate
Notice), requiring that Seller vacate the Property and place the Property in the
condition required at the Closing (as set forth in Subsection 8.1.1 below)
within 60 days thereafter. Buyer's delivery of the Vacate Notice shall be deemed
waiver by Buyer to terminate this Agreement pursuant to Section 3.2, Article 6
and the financing contingency set forth in Article 5 hereof.
4. Title.
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4.1 Title. Buyer shall cause a nationally recognized title insurance
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company (the "Title Company") to issue to Buyer (with a copy to Seller), within
thirty (30) days after the date hereof, a title insurance commitment for the
Property (the "Title Commitment"). The title insurance policy to be issued at
the Closing by the Title Company pursuant to the Title Commitment (the "Title
Policy") shall be a standard form of owner's ALTA policy insuring Buyer's fee
simple interest in the Property. Seller shall cause the Title Policy to be
issued to Buyer subject only to the Permitted Exceptions (hereinafter defined)
and free and clear of all standard or general exceptions contained in the Title
Commitment which the Title Company is permitted by applicable law to remove or
modify upon delivery of the Survey (hereinafter defined) and standard title
affidavits from Seller.
4.2 Survey. Buyer may obtain a current "as-built" survey of the Building
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situated on the Property (the "Survey") (with a copy to Seller) after the date
hereof certified to Buyer, the Title Company and any other party required by
Buyer.
4.3 Title Defects. Buyer shall give Notice to Seller (the "Defects
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Notice") of any claim, lien or exception materially and adversely affecting
title to the Property and which Buyer is not willing to waive (a "Defect").
Seller shall have the right, but not the obligation, to cure any Defect within
fifteen (15) days after its receipt of the Defects Notice, or in the case of any
Defect which cannot with due diligence be cured within such 15-day period, such
later date
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by which such Defect can reasonably be cured, provided that Seller commences to
cure such Defect within such 15-day period and thereafter continues diligently
and in good faith to cure the Defect. The Closing shall be extended, if
necessary, in order to permit the cure described above, but in no event shall
the date of the Closing be extended for more than sixty (60) days. In the event
that Seller elects not to cure any such Defect, Seller shall notify Buyer of
such election within five (5) business days after its receipt of the Defects
Notice. If Seller elects not to cure any Defect as set forth above or, if by the
expiration of the cure period provided for above, Seller has failed to cure all
Defects, Buyer may, at its option, either (i) proceed to close subject to any
such Defects, with no offset against, or reduction in, the Purchase Price or
(ii) terminate this Agreement by written notice given to Seller within five (5)
business days after the expiration of the cure period or Seller's notice of
election not to cure any Defect, as the case may be. In the event this Agreement
is so terminated by Buyer, the Down payment shall be delivered to Buyer and the
parties shall be released from all further obligations and liabilities
hereunder, except with respect to the covenants and indemnities which expressly
survive the Closing or termination of this Agreement. Notwithstanding anything
to the contrary contained in this Section 4.3, in the event that any Defect(s)
is a mechanic's or materialmen's lien or other encumbrance securing the payment
in the aggregate of a readily ascertainable sum of money of up to $30,000,
Seller shall satisfy such Defect(s) of record or, as an alternative to causing
such Defect(s) to be satisfied of record and provided that the Title Company
agrees to omit such Defect(s) from the Title Policy by (i) bond or cause to be
bonded such Defect(s); (ii) delivering or cause to be delivered to Buyer or the
Title Company, on the date of the Closing, instruments in recordable form and
sufficient to satisfy such Defect(s) of record, together with the appropriate
recording or filing costs; (iii) depositing or cause to be deposited with the
Title Company sufficient monies, acceptable to and reasonably requested by the
Title Company, to assure the obtaining and recording of a satisfaction of the
Defect(s); or (iv) otherwise cause the Title Company to omit such Defect(s) from
the Title Policy.
4.4 Permitted Title Exceptions. All items set forth in the Exhibit C
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annexed hereto and made a part hereof shall be deemed "Permitted Exceptions".
5. FINANCING CONTINGENCY.
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5.1 Mortgage Commitment Contingency. (a) In addition to the satisfaction of
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the Due Diligence Condition and the Special Conditions, the obligation of Buyer
to purchase under this Agreement is conditioned upon issuance, on or before 60
days after the date hereof, subject to an extension for any extension of the Due
Diligence Period (the "Commitment Date"), of a written commitment from an
Institutional Lender pursuant to which such Institutional Lender agrees to make
a first mortgage acquisition and development loan to Buyer, at Buyer's sole cost
and expense, at the prevailing fixed or adjustable rate of interest and on other
customary commitment terms for similar transactions (the "Commitment"). A
commitment conditioned on the Institutional Lender's approval of an appraisal
shall not be deemed a "Commitment" hereunder until an appraisal is approved (and
if that does not occur before the Commitment Date, Buyer may cancel this
Agreement unless the Commitment Date is extended).
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5.2 Buyer shall (i) make prompt application to one or, at Buyer's election,
more than one Institutional Lender for such mortgage loan, (ii) pay all fees,
points and charges required in connection with such application and loan, (iii)
pursue such application with diligence, and (iv) cooperate in good faith with
such Institutional Lender(s) to obtain a Commitment. Buyer shall accept a
Commitment meeting the terms set forth above and shall comply with all
requirements of such Commitment (or any other commitment accepted by Buyer).
Buyer shall furnish Seller with a copy of the Commitment promptly after receipt
thereof.
5.3 If all Institutional Lenders to whom applications were made deny such
applications in writing prior to the Commitment Date, Buyer may cancel this
Agreement.
5.4 If no Commitment is issued by the Institutional Lender on or before the
Commitment Date, then, unless Buyer has accepted a written commitment from an
Institutional Lender that does not conform to the terms set forth herein, Buyer
may cancel this Agreement by giving Notice to Seller within 5 business days
after the Commitment Date.
5.5 If this Agreement is canceled by Buyer neither party shall thereafter
have any further rights against, or obligations or liabilities to, the other by
reason of this Agreement, except that the Down Payment shall be promptly
refunded to Buyer.
5.6 If Buyer fails to give timely notice of cancellation or if Buyer
accepts a written commitment from an Institutional Lender that does not conform
to the terms set forth in herein, then Buyer shall be deemed to have waived
Buyer's right to cancel this Agreement and to receive a refund of the Down
Payment by reason of the financing contingency.
5.7 The attorneys for the parties are hereby authorized to give and receive
on behalf of their clients all Notices and deliveries under this Section.
5.8 For purposes of this Agreement, the term "Institutional Lender" shall
mean any bank, savings bank, private banker, trust company, savings and loan
association, credit union or similar banking institution whether organized under
the laws of this state, the United States or any other state; foreign banking
corporation licensed by the Superintendent of Banks of New York or regulated by
the Comptroller of the Currency to transact business in New York State;
insurance company duly organized or licensed to do business in New York State;
mortgage banker licensed pursuant to Article 12-D of the Banking Law; and any
instrumentality created by the United States or any state with the power to make
mortgage loans.
6. Special Conditions. Buyer contemplates acquiring the Property for the
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construction and development of a 7-story multi-family housing project
containing ground floor retail space and six floors of residential space
comprising not less than 96,000 gross square feet in the aggregate, together
with parking and other appurtenant facilities. Seller acknowledges that the
Property may be of no use to Buyer unless certain conditions precedent to such
use exists, but nothing in this Agreement, by implication or otherwise, shall be
interpreted to require Buyer to construct or operate any improvement on the
Property. Buyer's obligation to close the transaction contemplated herein shall
be conditioned upon Buyer satisfying itself within the Due Diligence Period that
the following contingencies (collectively, the "Special Conditions") are met:
6.1 The construction of the improvements contemplated by Buyer will not
require extraordinary, excessive, or unusually costly construction techniques,
and drainage of both surface and subsurface water can be accomplished by
ordinary construction techniques not involving unusual or excessive costs.
6.2 All utilities, including electricity, telephone, gas, water (fire
and domestic), storm and sanitary sewer, are, or will be at the time of Closing,
available on site or on the Property's side of abutting streets of size and
capacity sufficient to serve the contemplated uses.
6.3 Buyer shall be satisfied with the Due Diligence Conditions.
6.4 Buyer shall have received all necessary governmental approvals for
the site plan for the use and development of the Property (the "Final Site
Plan"), including the granting of any variances or rezoning of the Property and
parking requirements, acceptable to Buyer in Buyer's sole and absolute
discretion, and all time periods for appeal of such approvals have expired
without contest.
6.5 If, in addition to approval of the Final Site Plan, the Property
must be platted, a plat map acceptable to Buyer, in Buyer's sole and absolute
discretion has received all necessary approvals, (the "Plat Plan"). The plat
plan shall not be acceptable to Buyer if it (or any municipal ordinance enacted
in conjunction with the approval of it) contains any conditions to, or
reservation of, approvals necessary for the issuance of building permits or a
certificate of occupancy, other than compliance with applicable building codes.
6.6 All permits, licenses and other governmental and quasi-governmental
authorizations (exclusive of building permits) required or deemed necessary by
Buyer for the development of the Property in accordance with the Final Site Plan
have been issued and are outstanding, (ii) shall not be subject to any
conditions other than the closing of the transaction contemplated by this
Agreement and the obtaining of building permits, and (iii) the time periods for
appeal of issuance of such permits, licenses and other authorizations shall have
expired without contest (collectively, the "Approvals").
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6.7 The City of New ▇▇▇▇▇▇▇▇ industrial development authority (or
similar governmental agency(ies) or authorities providing benefits to promote
housing and economic development) shall have issued its Approvals for the
exemption of the Property from the payment of sales taxes in connection with the
costs of development and an exemption from the payment of mortgage recording tax
in connection with any acquisition and construction financing.
If any of the special conditions set forth in this Article 6 have not been
obtained to the satisfaction of Buyer, in its sole and absolute discretion, then
Buyer may, at its sole option, terminate this Agreement by giving written notice
to Seller at any time on or before the expiration of the Due Diligence Period,
as same may be extended. Upon such termination, both parties shall be released
from all duties and obligations under this Agreement, except as otherwise
provided in this Agreement. The Special Conditions set forth in this Article 6
are for Buyer's sole benefit, and Buyer may, in its sole and absolute
discretion, waive (conditionally or absolutely) the fulfillment of any one or
more of the conditions, or any part thereof.
7. Representations and Warranties.
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7.1 Representations and Warranties of Seller. Seller makes the following
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representations and warranties to Buyer, which representations and warranties
shall be true and correct in all material respects as of the date hereof and as
of the Closing:
7.1.1 Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York.
7.1.2 The execution, delivery and performance of this Agreement and all
other documents, instruments and agreements now or hereafter to be executed and
delivered by Seller pursuant to this Agreement are within the power of Seller
and have been duly authorized by all necessary or proper corporate action.
7.1.3 Seller is not a "foreign person" as defined in Section 1445(f) (3)
of the Internal Revenue Code of 1986, as amended.
7.1.4 As of the date hereof there is no pending suit or action against
Seller which, if adversely decided, would prevent the consummation of the
transaction contemplated by this Agreement. Without limiting the generality of
the foregoing, to the best of Seller's knowledge, as of the date hereof there
are no actual or threatened suits, actions or proceedings with respect to all or
part of the building or the Property (a) for condemnation or (b) alleging any
material violation of any applicable law, regulation, ordinance or code
(collectively, "Laws and Regulations").
7.1.5 Seller has not received any written notice (which remains uncured)
from any governmental authority stating that any of the improvements or the
Property violates any Laws and Regulations in any material respect.
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7.1.6 As of the date hereof and as of the Closing, the improvements
located on the Property are, to the best of Seller's knowledge, in good working
condition, and there are no outstanding repairs or work orders which remain to
be done.
7.1.7 As of the date hereof, there are no lease agreements affecting the
Real Property or any portion thereof.
7.1.8 With respect to the Service Contracts (as hereinafter defined):
(a) As of the date hereof, there are no equipment leases or service,
maintenance or other similar contracts or agreements affecting the Property
or any portion thereof (collectively, the "Service Contracts"); and
(b) As of the Closing Date, Seller shall have terminated all of the
Service Contracts, shall have paid for all the work performed under the
Service Contracts and will not be indebted for labor or materials that
might result in the filing of a mechanic's line against the Sign or the
Property.
7.2 Limitations of Seller's Representations. The representations and
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warranties of Seller contained in Section 7.1 are made as of the date hereof and
shall be true and correct as of the Closing. The representations and warranties
set forth in Subsections 7.1.1, 7.1.2, 7.1.3 and 7.1.4 shall survive the
Closing. The representations and warranties set forth in Subsections 7.1.5,
7.1.7 and 7.1.8 shall survive the Closing to the date (the "Representation
Termination Date") occurring six (6) months after the date of the Closing, at
which time such representations and warranties shall terminate and be of no
further force or effect. All other representations and warranties made by Seller
in this Agreement, unless expressly provided otherwise, shall not survive the
Closing.
7.3 Representations and Warranties of Buyer. Buyer makes the following
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representations and warranties to Seller, which representations and warranties
shall be true and correct in all material respects on the date hereof and as of
the Closing:
7.3.1 Buyer is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of New York.
7.3.2 The execution, delivery and performance of this Agreement and all
other documents, instruments and agreements now or hereafter to be executed and
delivered by Buyer pursuant to this Agreement are within the corporate power of
Buyer and have been duly authorized by all necessary or proper action.
The representations and warranties of Buyer contained in this Section 7.3 shall
survive the Closing.
8. ConditionS to Closing.
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8.1 Conditions to Obligations of Buyer. The obligations of Buyer to
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execute and deliver the applicable Buyer's Closing Documents, to pay the
Purchase Price and to perform
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Buyer's other obligations at the Closing under this Agreement are and shall be
subject to the satisfaction of each of the following conditions at or prior to
the Closing:
8.1.1 Seller shall have capped off or otherwise terminated all fiber
optic internet connections or other cabling connections to Seller's business
equipment in the Building and shall have removed all trade fixtures, equipment,
racks, servers, switches, routers, shelving installations, inventory, furniture,
furnishings and all other personal property in the Building and shall deliver
the Property to Buyer at Closing in "broom clean" condition. Seller shall have
the right, on or prior to Closing, to remove any server room air conditioners
and other equipment utilized in Seller's business operations which may be
incorporated into the improvements to the Building and deemed a fixture;
provided Seller repairs any damage caused by such removal and delivers the
Property in "broom clean" condition. Any server room air conditioners and other
equipment incorporated as an improvement to the Building which is not removed on
or prior to Closing shall be deemed abandoned by Seller and may be sold,
disposed or demolished by Buyer, in Buyer's sole discretion.
8.1.2 Seller shall have simultaneously executed (where applicable) and
delivered the Seller's Closing Documents to be executed and delivered by Seller
and delivered to Buyer all other documents and items required of Seller under
this Agreement.
8.1.3 The Title Company shall have delivered to Buyer, upon Buyer's
payment of the premium therefor at its sole cost and expense, a written
commitment to issue a Title Policy insuring Buyer's fee simple interest in the
Property in the amount of the Purchase Price, subject to no title exception,
other than the Permitted Exceptions.
8.1.4 All of the representations and warranties of Seller contained in
this Agreement shall have been true and correct when made, and shall be true and
correct on the Closing Date with the same effect as if made on and as of such
date.
8.1.5 Seller shall have performed, observed, and complied with all
covenants, agreements, and conditions required by this Agreement to be
performed, observed, and complied with on Seller's part prior to or as of the
Closing Date.
8.1.6 All of the Special Conditions have been satisfied or waived in
writing by Buyer.
8.2 Conditions to Obligations of Seller. The obligations of Seller to
-----------------------------------
execute and deliver the applicable Seller's Closing Documents, and to perform
Seller's other obligations at the Closing under this Agreement are and shall be
subject to the satisfaction of each of the following conditions:
8.2.1 Buyer shall have simultaneously executed (where applicable) and
delivered the Buyer's Closing Documents to be executed and delivered by Buyer
and delivered to Seller all other documents and items required of Buyer under
this Agreement.
8.2.2 Buyer shall pay the Purchase Price and all other amounts as
required hereunder. The Purchaser agrees, on reasonable prior notice prior to
Closing, to provide
10
for certified or bank checks out of the proceeds of sale, in the sums provided
by Seller, to be delivered at Closing.
8.2.3 Buyer shall have performed, observed, and complied with all
covenants, agreements, and conditions required by this Agreement to be
performed, observed, and complied with on Buyer's part prior to or as of the
Closing Date.
9. Closing.
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9.1 Time and Place. The closing contemplated by this Agreement (the
--------------
"Closing") shall take place on or before the date which shall be sixty (60) days
(the "Closing Date") after the expiration of the Due Diligence Period, as same
may be extended, at the offices of the Buyer's attorneys or at the offices of
Buyer's purchase money lender ("Lender") or at such other place as the parties
shall mutually agree. Notwithstanding the foregoing, Buyer may elect to
accelerate the Closing Date once the conditions precedent in Articles 3, 5 and 6
have been satisfied or waived by Buyer, provided Seller shall have not less than
60 days in which to vacate the Building and remove its property therefrom.
9.2 Seller's Closing Documentation and Requirements. At the Closing,
-----------------------------------------------
Seller shall deliver the following documents ("Seller's Closing Documents") to
Buyer:
9.2.1 a bargain and sale deed with covenants (the "Deed"), duly executed
and acknowledged and in recordable form, conveying to Buyer fee simple title to
the Property, subject only to the Permitted Exceptions;
9.2.2 (Intentionally Deleted);
9.2.3 an assignment, duly executed and acknowledged, of any other
property included in the purchase and sale of the Property pursuant to the terms
of Article 2 hereof;
9.2.4 an affidavit stating, under penalty of perjury, Seller's United
States taxpayer identification number and that Seller is not a "foreign person"
as defined in Section 1445(f) (3) of the Internal Revenue Code of 1986, as
amended, and otherwise in the form prescribed by the Revenue Service;
9.2.5 executed originals of the Service Contracts, to the extent within
Seller's possession or subject to Seller's control;
9.2.6 a certificate, dated as of the Closing, of the Secretary or an
Assistant Secretary of Seller with respect to (i) the resolutions adopted by the
Board of Directors of the Seller approving this Agreement and the transaction
contemplated hereby and (ii) the incumbency and specimen signature of each
officer of the Seller executing this Agreement and the documents set forth in
this Section 8.2;
9.2.7 a certified good standing of Seller issued by the Secretary of
State of its State of origination within seven (7) business days of the Closing.
11
9.2.8 such other documents and instruments as Buyer may reasonably
request in order to consummate the transaction contemplated hereby.
9.3 Buyer's Closing Documentation and Requirements. At the Closing,
Buyer shall pay the balance of the Purchase Price in accordance with the
provisions of this Agreement and shall deliver the following documents (the
"Buyer's Closing Documents") to Seller:
9.3.1 a certificate, dated as of the Closing, of the Managing Member or
Manager, as applicable, of Buyer with respect to (i) the resolutions adopted by
the members of Buyer approving this Agreement and the transaction contemplated
hereby and (ii) the incumbency and specimen signature of each officer of Buyer
executing this Agreement and the documents set forth in this Section 8.3; and
9.3.2 such other documents and instruments as Seller may reasonably
request in order to consummate the transaction contemplated hereby.
10. PRORATIONS/HOLDBACK.
-------------------
10.1 Prorations. The following shall be prorated between the parties as
----------
of 11:59 p.m. of the day preceding the date of the Closing; real estate taxes
and personal property taxes (if any) for the current fiscal year and such other
items of income and expense, if any, as are customarily prorated in transactions
of this nature.
10.2 Real Estate Taxes. If, on the date of the Closing, the real estate
-----------------
tax rate and/or the assessed valuation is not fixed for the then current fiscal
year, real estate taxes shall be apportioned upon the basis of the tax rate
and/or the assessed valuation for the next preceding fiscal year, but such taxes
shall be readjusted at the request of Seller or Buyer as soon as the applicable
rate and assessed valuation are fixed. The provisions of this Section shall
survive the Closing.
10.3 Utilities. Seller shall endeavor to have all meters read and final
---------
bills rendered for all utilities servicing the Property, including, without
limitation, water, sewer, gas and electricity, for the period to and including
the day preceding the Closing, and Seller shall pay such bills. The provisions
of this Section shall survive the Closing.
10.4 Holdback. If Buyer has delivered the Vacate Notice and Seller fails
--------
to vacate the Building and remove all property as required pursuant to
Subsection 8.1.1 hereof within 60 days thereafter, TIME BEING OF THE ESSENCE, or
if Buyer has not delivered the Vacate Notice, and Seller fails to vacate the
Property and remove all property within 60 days after the expiration of the Due
Diligence Period, TIME BEING OF THE ESSENCE, and the Closing shall occur,
provided that an amount equal to $250,000 (the "Holdback Payment") shall be held
by the Escrow Agent from the proceeds otherwise payable at Closing, pending
written direction by both parties to the Escrow Agent that Seller fulfilled its
obligations pursuant to Subsection 8.1.1. Buyer and Seller shall schedule a
walk-through of the Property approximately 10 days prior to the Closing Date and
both parties shall prepare and execute a schedule of items to be removed and/or
work to be performed prior to the Closing.
12
10.5 Errors. If any errors or omissions are made at the Closing
------
regarding adjustments or prorations, the parties shall make the appropriate
corrections promptly after the discovery thereof. The provisions of this Section
shall survive the Closing.
11. Expenses.
--------
11.1 Expenses of Buyer. Buyer shall pay (a) the premium for the Title
-----------------
Policy and the cost of all endorsements and any extended coverage obtained by
Buyer thereunder; and (b) all recording fees on any document recorded pursuant
to this Agreement, and (c) all of its due diligence costs and fees.
11.2 Expenses of Seller. Seller shall pay all applicable transfer taxes
------------------
with respect to the transactions contemplated hereby.
11.3 Attorney's Fees. Each party shall pay its own attorney's fees and
---------------
all of its other expenses, except as otherwise expressly set forth herein.
12. Risk of Loss; Casualty and Eminent Domain.
-----------------------------------------
12.1 Casualty. If, prior to the Closing, the Building or the Property is
--------
damaged by fire, vandalism, acts of God or other casualty or cause, Seller shall
promptly give Buyer notice of any such damage (the "Damage Notice"), together
with Seller's estimate of the cost and period of repair and restoration. In any
such event: (a) in the case of damage to the Building or the Property of less
than $100,000 and from a risk covered by insurance maintained with respect to
the Building or the Property, Buyer shall take the Building or the Property at
the Closing as it is together with any applicable insurance proceeds or the
right to receive the same without reduction in the Purchase Price (provided that
Seller shall perform any repairs to the Building to the extent required under
applicable law); or (b) in the case of either (i) damage to the Building or the
Property of $100,000 or more or (ii) damage to the Building or the Property from
a risk not covered by insurance, Buyer shall have the option of (x) taking the
Property at the Closing in accordance with item (a) above or (y) terminating
this Agreement. If, pursuant to the preceding sentence, Buyer is either
obligated or elects to take the Property as it is together with any applicable
insurance proceeds or the right to receive the same, Seller agrees to cooperate
with Buyer in any loss adjustment negotiations, legal actions and agreements
with the insurance company, and to assign to Buyer at the Closing its rights to
any such insurance proceeds with respect to such claim, less all reasonable
out-of-pocket documented expenses incurred by Seller in connection with the
settlement of insurance claims. Seller will not settle any insurance claims or
legal actions relating thereto without Buyer's prior written consent, which
consent shall not be unreasonably withheld or delayed.
12.2 Eminent Domain. If, prior to the Closing, all or substantially all
--------------
of the Building or the Property is taken by eminent domain, this Agreement shall
be terminated without further act or instrument. If a material part of the
Building or the Property is so taken, Buyer shall have the option, by written
notice given to Seller within fifteen (15) days after receiving notice of such
taking, to terminate this Agreement. If Buyer does not elect to terminate this
Agreement, it shall remain in full force and effect and Seller shall assign,
transfer and set over to
13
Buyer at the Closing all of Seller's right, title and interest in and to any
awards that may be made for such taking. Notwithstanding anything to the
contrary contained herein, if less than a material part of the Property is so
taken, Buyer shall proceed with the Closing and take the Property as affected by
such taking, together with all awards or the right to receive same. For the
purposes of this Section, a part of the Property shall be deemed "material" if
it (i) includes any of the Building or (ii) otherwise (on a permanent basis)
limits or restricts ingress and egress to and from the Property.
12.3 Termination. If this Agreement is terminated pursuant to this
-----------
Section, the Down Payment shall be promptly returned to Buyer and the parties
hereto shall be released from all further obligations and liabilities hereunder,
except with respect to the covenants and indemnities which expressly survive
termination.
12.4 The provisions of this Article 12 are express provisions to the
contrary of the Uniform Vendor and Purchaser Risk Act (Section 5-1311 of the New
York General Obligations Law).
13. Broker's Commissions.
--------------------
Buyer and Seller represent and warrant to each other that neither they nor
their affiliates have dealt with any broker or finder in connection with the
transaction contemplated by this Agreement. Buyer and Seller each agrees to
indemnify, defend and hold the other harmless from and against all loss, expense
(including reasonable attorneys, fees and court costs), damage and liability
resulting from the claims of any broker or finder (including anyone claiming to
be a broker or finder) on account of any services claimed to have been rendered
to the indemnifying party in connection with the transaction contemplated by
this Agreement. The provisions of this Section shall survive the Closing or the
earlier termination of this Agreement.
14. Management of the Property.
--------------------------
14.1 Between the date of this Agreement and the date of the Closing: (i)
Seller shall cause the Property to be operated, maintained and managed in a
manner consistent with the present management of the Property and in
substantially the same manner as the same has been operated by Seller prior to
the execution and delivery of this Agreement; and (ii) Seller shall not enter
into any contract or agreement that would remain binding on the owner of the
Property after the Closing without the prior written consent of Buyer, which
consent shall be determined in Buyer's sole discretion.
15. Defaults.
--------
15.1 By Buyer. If, prior to the Closing, Buyer is in default with
--------
respect to, or breaches or fails to perform one or more of the representations,
covenants, warranties or other terms of this Agreement, and such default, breach
or failure is not cured or remedied within ten (10) business days after receipt
of written notice thereof given by Seller to Buyer, Seller may terminate this
Agreement and, as its sole remedy, receive the Down Payment from the Escrow
Agent, as liquidated damages, in which event this Agreement shall be deemed null
and void and the parties shall be released from all further obligations and
liabilities under this Agreement,
14
except with respect to the covenants and indemnities which expressly survive
Closing or other termination. It is recognized by Seller and Buyer that the
damages Seller will sustain by reason of Buyer's default, breach or failure will
be substantial, but difficult, if not impossible, to ascertain. The Down Payment
has been determined by the parties as a reasonable sum for damages.
15.2 By Seller. If, prior to the Closing, Seller is in default with
---------
respect to, or breaches, or fails to perform one or more of the representations,
covenants, warranties or other terms of this Agreement, and such default, breach
or failure is not cured or remedied within ten (10) business days after receipt
of written notice thereof given by Buyer to Seller, Buyer may either (a)
terminate this Agreement, in which event the Down payment and all interest
earned thereon shall be returned by the Escrow Agent to Buyer and the parties
shall be released from all further obligations and liabilities under this
Agreement, except with respect to the covenants and indemnities which expressly
survive termination, or (b) ▇▇▇ for specific performance. The remedies set forth
above shall be Buyer's sole remedies arising from a default, breach or failure
to perform by Seller prior to the Closing.
16. Notices.
-------
Any notice, demand, consent, authorization or other communication
(collectively, a "Notice") which either party is required or may desire to give
to or make upon the other party pursuant to this Agreement shall be effective
and valid only if in writing, signed by the party giving such Notice, and
delivered to the other party by express courier or delivery service or by
registered or certified mail of the United States Postal Service, return receipt
requested, and addressed to the other party as follows (or to such other address
or person as either party or person entitled to notice may by Notice to the
other specify) or sent by facsimile transmission to the fax number shown below
(provided reasonable evidence of delivery is obtainable):
To Seller: ▇▇▇▇ ▇. ▇▇▇▇, President
eLEC Communications Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Buyer: Bluegill Realty, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Principal
15
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
15
Unless otherwise specified, notices shall be deemed given when received,
but if delivery is not accepted, on the earlier of the date delivery is refused
or the third day after the same is deposited with the United States Postal
Service.
17. Assignment.
----------
This Agreement and all rights of Buyer arising hereunder shall not be
assigned, sold, pledged or otherwise transferred by Buyer in whole or in part,
without the prior written consent of Seller, except to an entity affiliated with
the Buyer named herein.
18. ESCROW.
------
18.1 Seller and Buyer hereby designate the Escrow Agent to receive and
hold subject to the provisions of this Section 18, the Down Payment delivered
herewith by Buyer in accordance with Section 1.2 hereof and the Escrow Agent
hereby acknowledges receipt of the Down Payment and agrees to act as such escrow
agent in accordance with and subject to the provisions of this Section 18.
18.2 The Down Payment shall be held by the Escrow Agent in an interest
bearing account selected by the Escrow Agent. All interest accruing on the Down
Payment shall be paid to the party entitled to the Down Payment as and when the
Down Payment is paid in accordance with the terms of this Agreement.
18.3 The Escrow Agent shall deliver the Down Payment to Seller or to
Buyer, as the case may be, in accordance with the following conditions:
(i) At the Closing, upon consummation of the transaction
contemplated herein, the Escrow Agent shall pay the Down Payment to
Seller or as otherwise directed by Seller, and the Down Payment shall
be credited against the Purchase Price.
(ii) If the Escrow Agent shall receive a written demand from
Seller for the Down Payment, stating that Buyer has defaulted in the
performance of its obligations hereunder and stating the facts and
circumstances constituting
16
such default; the Escrow Agent shall pay the Down Payment to Seller,
provided, however, that the Escrow Agent shall not honor such demand
until ten (10) business days after the Escrow Agent has mailed a copy
of such demand to the Buyer, nor thereafter if the Escrow Agent shall
have received a written notice of objection from Buyer in accordance
with the provisions of Section16.4 below.
(iii) If the Escrow Agent shall receive a written demand from
Buyer for the Down Payment stating that this Agreement has been
terminated in accordance with the provisions hereof and that Buyer is
entitled to a return of the Down Payment, or that Seller has defaulted
in the performance of its obligations hereunder, and stating the facts
and circumstances constituting such default; the Escrow Agent shall
pay the Down Payment to Buyer, provided, however, that the Escrow
Agent shall not honor such demand until ten (10) business days after
the Escrow Agent has mailed a copy of such demand to Seller, nor
thereafter if the Escrow Agent shall have received written notice of
objection from Seller in accordance with the provisions of Section
18.4 below.
18.4 Upon receipt of written demand (the "Demand Notice") for the Down
Payment from Buyer or Seller (the "Claiming Party") pursuant to [Section
18.3(ii) or (iii)] above, the Escrow Agent shall promptly give notice to the
other party (the "Recipient Party"). The Recipient Party shall have the right to
object to the release of the Down Payment by the Escrow Agent by written notice
to the Escrow Agent of such objection (the "Notice of Objection") at any time
prior to the expiration of ten (10) business days after the Escrow Agent has
mailed a copy of the Demand Notice to the Recipient Party. For purposes of this
Section 18 any Notice of Objection sent to the Escrow Agent by any Recipient
Party shall be deemed received by the Escrow Agent on the date actually received
by the Escrow Agent. Notwithstanding the foregoing, as an accommodation, the
Escrow Agent may provide the Recipient Party with an advance copy of the Demand
Notice by personal delivery and/or telecopier, but such advance notice shall not
affect the notice period provided for herein. Any Notice of Objection shall set
forth the basis for objections to the release of the Down Payment by the Escrow
Agent. Upon receipt of such Notice of Objection, the Escrow Agent shall promptly
mail a copy thereof to the Claiming Party.
18.5 The description and veracity of the facts and circumstances of any
alleged default as set forth in any Demand Notice, and the statement of the
basis of any objection raised in any Notice of Objections, shall not be
considered by the Escrow Agent in the performance of its duties hereunder, but
are only for the information of the other party.
18.6 In the event the Escrow Agent shall have received the Notice of
Objection provided for in Section 18.4 above within the time period therein
prescribed, the Escrow Agent shall continue to hold the Down Payment until (i)
the Escrow Agent receives written notice signed by both Seller and Buyer
directing the delivery of the Down Payment, in which case the Escrow Agent shall
then deliver the Down Payment in accordance with such direction, or (ii) in the
event of litigation between Seller and Buyer, the Escrow Agent deposits the Down
Payment with the Clerk of the Court in which such litigation is pending, or
(iii) the Escrow Agent takes affirmative steps as the Escrow Agent may, at the
Escrow Agent's option, elect in order to
17
terminate the Escrow Agent's duties, including without limitation, depositing
the Down Payment in court in an action for interpleader.
18.7 The Escrow Agent may act upon any instrument or other writing
believed by it in good faith to be genuine and to be executed and presented by
the proper party, and shall not be liable in connection with the performance of
any duty imposed upon the Escrow Agent pursuant to the terms of this Agreement,
except for the Escrow Agent's own gross negligence or willful misconduct. The
Escrow Agent shall have no duties or responsibilities other than as expressly
set forth herein.
18.8 Upon delivery of the Down Payment to either Buyer, Seller or a
court of competent jurisdiction under and pursuant to the provisions of this
Paragraph 18, the Escrow Agent shall be relieved of all further liability,
responsibility or obligation with respect to or arising out of the Down Payment
and any and all of its obligations arising thereafter.
18.9 Seller and Buyer hereby jointly and severally agree to indemnify
the Escrow Agent for, and hold the Escrow Agent harmless against, any loss,
liability or expense incurred without willful misconduct or gross negligence on
the part of the Escrow Agent, arising out of or in connection with its
acceptance of, or the performance of, its duties and obligations under this
Section 18 (including, but not limited to, attorneys' costs, fees, disbursements
and court costs), as well as the costs and expenses of defending against any
claim or liability arising out of or relating to this Agreement.
18.10 The Escrow Agent is the counsel to Buyer, and both parties agree
that the Escrow Agent may represent Buyer in any litigation arising under or by
virtue of this Agreement.
18.11 The Escrow Agent may resign and be discharged from its duties or
obligations hereunder by giving notice in writing to Buyer and Seller of such
resignation specifying a date when such resignation shall take effect, provided
that upon such resignation the Escrow Agent shall either turn over the Down
Payment to a successor agreed to by Seller and Buyer, or in the alternative
shall file an interpleader action and/or deposit the Down Payment with a court
as set forth in Section 18.6 above.
18.12 Notwithstanding anything contained herein to the contrary, the
Escrow Agent shall not be required to deposit the Down Payment into an interest
bearing account or to disburse the Down Payment to either party until the Escrow
Agent has received an Internal Revenue Service Form W- 9 from Buyer and Seller.
18.13 The provisions of this Section 18 shall survive the Closing.
19. General Provisions.
------------------
19.1 Successors and Assigns. This Agreement shall bind and inure to the
----------------------
benefit of the respective successors and permitted assigns of the parties
hereto.
18
19.2 Gender and Number. Whenever the context so requires, the singular
-----------------
number shall include the plural and the plural the singular, and the use of any
gender shall include all genders.
19.3 Entire Agreement. This Agreement contains the complete and entire
----------------
agreement between the parties respecting the transaction contemplated herein and
supersedes all prior negotiations, agreements, representations and
understandings, if any, between the parties respecting such matters.
19.4 Counterparts. This Agreement may be executed in any number of
------------
original counterparts, all of which evidence only one agreement and only one of
which need be produced for any purpose.
19.5 Modifications. This Agreement may not be modified, discharged or
-------------
changed in any respect whatsoever, except by a further agreement in writing duly
executed by Buyer and Seller. However, any consent, waiver, approval or
authorization shall be effective if signed by the party granting or making such
consent, waiver, approval or authorization.
19.6 Exhibits. All exhibits referred to in this Agreement are
--------
incorporated herein by reference and shall be deemed part of this Agreement for
all purposes as if set forth at length herein.
19.7 Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of New York.
19.8 Recordation. Upon the execution of this Agreement, Buyer shall have
-----------
the right to record this Agreement or a memorandum of this Agreement and Seller
agrees to execute such documents or instruments requested by Buyer in connection
with such recordation. In the event this Agreement is terminated in accordance
with the provisions herein prior to Closing, Buyer agrees to execute a written
termination notice, in recordable form, prepared by Seller.
19.9 Captions. The captions of this Agreement are for convenience and
--------
reference only and in no way define, describe, extend or limit the scope,
meaning or intent of this Agreement.
19.10 Severability. The invalidation or unenforceability in any
------------
particular circumstance of any of the provisions of this Agreement shall in no
way affect any of the other provisions hereof, which shall remain in full force
and effect.
19.11 No Joint Venture. This Agreement shall not be construed as in any
----------------
way establishing a partnership, joint venture, express or implied agency, or
employer-employee relationship between Buyer and Seller.
19.12 No Third Party Beneficiaries. This Agreement is for the sole
----------------------------
benefit of the parties hereto, their respective successors and permitted
assigns, and no other person or entity shall be entitled to rely upon or receive
any benefit from this Agreement or any term hereof.
19
19.13 Survival. Except as otherwise expressly set forth herein, the
--------
covenants, warranties, representations and indemnities of Seller and Buyer
contained in this Agreement shall not survive the Closing.
19.14 Execution. The submission of this Agreement for examination does
---------
not constitute an offer by or to either party. This Agreement shall be effective
and binding only after due execution and delivery by the parties hereto.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
as of the date first above written.
SELLER:
eLEC COMMMUNICATIONS CORp.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
BUYER:
BLUEGILL REALTY, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
ESCROW PROVISIONS AGREED TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Partner
20
Exhibit A
---------
Legal Description of the Real Property
Exhibit B
---------
Intentionally Deleted
---------------------
Exhibit C
---------
Permitted Exceptions
--------------------
(i) General real estate taxes and/or assessments and water and sewer
charges, if any, not yet due and payable.
(ii) All covenants, restrictions, easements, reservations, liens,
encumbrances and agreements which may affect the Building or the Property
other than those objected to by Buyer in the Defect Notice.
