REAL ESTATE SALE AGREEMENT
THIS AGREEMENT made this 6th day of April, 2005, by and between:
STATELINE REALTY, L.L.C., a New Jersey Limited Liability
Company, with principal place of business situate at 000
Xxxxxxxx Xxxxxxx (Xxxxx 00), Xxxxxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "SELLER");
AND
ELITE FLIGHT SOLUTIONS, INC. c/o Xxxxxx Xxxxxxx, Esq.,
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP, 000 Xxxxx
Xxxxxxxx Xxxx. Xxxxx 0000, Xxxxx, Xxxxxxx (hereinafter
referred to as "PURCHASER").
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W I T N E S S E T H :
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WHEREAS, SELLER is the owner of certain land, buildings and
improvements located at 000 Xxxxxxxx Xxxxxxx (Xxxxx 00), Xxxxxxxxxxxx (Xxxxxx
Xxxxxx), Xxx Xxxxxx, which is designated as Lot 7 in Block 1004 on the Tax Map
of the Town of Phillipsburg (Xxxxxx County), New Jersey (the "Premises"), as the
same is more particularly described and depicted on EXHIBIT "A", attached hereto
and made a part hereof; and
WHEREAS, SELLER desires to sell the Premises to PURCHASER, and
PURCHASER desires to acquire and purchase same from SELLER; and
WHEREAS, the parties desire to memorialize herein their understandings
with respect to said transaction;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and agreements stated in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, the parties hereto agree as follows:
1. CONVEYANCE.
(a) SELLER agrees to sell, transfer and convey all of its
right, title and interest in and to the Premises to PURCHASER free and clear of
all liens, security interests, mortgages and encumbrances, and PURCHASER agrees
to purchase and acquire same from SELLER, upon the terms and conditions
hereinafter set forth. Said conveyance shall be effected at closing by SELLER's
execution and delivery to PURCHASER of the following documents:
i) Bargain and Sale Deed (with Covenants Against
Grantors' Acts) ("Deed");
ii) Affidavit of Title;
iii) Such other documents as reasonably required by
PURCHASER's title company.
(b) Upon closing of title, possession of the Premises shall be given to
PURCHASER free and clear of all leaseholds, tenancies and occupancies.
2. PURCHASE PRICE; PAYMENT.
(a) The purchase price for the Premises shall be the total sum
of ONE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($1,700,000.00) (subject to
adjustments as herein provided), which shall be paid and satisfied as follows:
i) The deposit sum of ONE HUNDRED SEVENTY
THOUSAND DOLLARS ($170,000.00) paid by
PURCHASER concurrently herewith, receipt of
which is hereby acknowledged and held in
escrow by the law firm of ABOYOUN & XXXXXX,
L.L.C., as agent for SELLER ("ESCROWEE"),
until closing, or returned to PURCHASER in
the event the contingencies hereinafter
provided are not satisfied without the
fault, neglect or omission(s) of PURCHASER,
or this Agreement is terminated in
accordance with its terms.
ii) The balance sum in certified or cashier's
funds at closing.
(b) The deposit monies shall be held in an interest bearing
account and the interest thereon shall accrue and be paid to the party
ultimately entitled to the deposit - i.e., to the SELLER in the event closing
occurs, or to PURCHASER in the event this Agreement is terminated in accordance
with its terms.
3. CONDITION OF PREMISES.
(a) SELLER makes no warranties or representations as to the
condition, quality or value of the Premises, or any part thereof. PURCHASER
shall accept the Premises "as is" without any warranty or representation,
subject to PURCHASER's inspection rights under Section 6 below and except as may
be provided for in this Agreement. Until closing of title hereunder, SELLER
shall maintain the Premises in its existing condition, reasonable wear and tear
excepted.
(b) There are no tenancies on the Premises, other than that of
STATELINE FORD, INC. ("STATELINE"), which shall terminate concurrent with
closing.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. SELLER represents to
PURCHASER the following:
(a) Except as set forth on EXHIBIT "B", attached hereto and
made a part hereof, SELLER is the owner of the Premises, free and clear of all
liens, encumbrances and rights of others.
(b) SELLER has the full right and authority to execute this
Agreement and consummate all of the transactions hereby contemplated.
(c) There are no actions, suits or proceedings pending, or, to
the best of SELLER'S knowledge, threatened against SELLER affecting any portion
of the Premises, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality.
(d) There are no attachments, executions, assignments for the
benefit of creditors or voluntary or involuntary proceedings in bankruptcy
pending, contemplated or, to the best of SELLER'S knowledge, threatened against
SELLER.
(e) To the best of SELLER's knowledge, there are no existing
or pending condemnations or sales in lieu thereof, contracts of sale, options to
purchase or rights of first refusal with respect to the Premises, or any part
thereof, other than the existing lease with STATELINE, nor have any such
actions, suits, proceedings, claims or other such matters been, to the best of
SELLER'S knowledge and belief, threatened or asserted.
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(f) SELLER has received no notice and has no knowledge of any
pending improvements, liens or special assessments to be made against the
Premises by any governmental authority.
(g) SELLER represents that for as long as it has owned the
Premises, the Premises have been used solely as an automobile dealership.
(h) SELLER is not a foreign person (as the term is defined in
Section 1445 of the Internal Revenue Code as amended by the Foreign Investment
in Real Property Tax Act of 1980 ("FIRPTA") and SELLER shall provide PURCHASER
with an affidavit to that effect in compliance with FIRPTA at closing.
5. MORTGAGE CONTINGENCY. It is expressly understood and agreed between
the parties that this Agreement is expressly contingent upon (unless waived or
modified by PURCHASER in writing) PURCHASER obtaining, within sixty (60) days
next succeeding the date hereof, a written commitment for a first mortgage loan
from an institutional lender ("Lender") in an amount reasonably acceptable to
the BUYER, at the Lender's prevailing interest rate, conditions and terms, with
respect to the Premises, but, in not event, shall the amount be less than One
Million Seven Hundred and Fifty Thousand Dollars ($1,750,000). If and in the
event that PURCHASER is unable to obtain said approval for financing within said
sixty (60) day period, then PURCHASER shall notify SELLER of same in writing
within said sixty (60) day period, and either party shall have the right to
terminate this Agreement and the Related Agreements (as defined in Section 10
below) by notifying the other in writing; provided, however, that, in the event
PURCHASER uses due diligence and exercises good faith in their efforts to
satisfy the foregoing contingency, the PURCHASER shall have the right to request
an extension of said contingency for an additional period not to exceed thirty
(30) days in the aggregate upon written notice to SELLER of same, together with
documentation evidencing due diligence and good faith. In the event of such
termination, the deposit monies paid hereunder and under the Related Agreements
shall be returned to PURCHASER (together with the accrued interest), and there
shall be no further liability between the parties, this Agreement and the
Related Agreements being deemed null, void, and of no further force or effect.
PURCHASER covenants and agrees to exercise due diligence and use good faith and
its best, immediate and bona fide efforts to obtain said financing.
7. INSPECTIONS.
(a)(i) Environmental Audit. PURCHASER shall have a right to
conduct whatever environmental investigations, inspections and/or audits
("Investigation") of the Premises to determine whether: (i) the Premises and its
use are in compliance with, and/or not in violation of all environmental,
health, and safety laws of each and every federal, state, county, municipal or
other governmental entity ("applicable law"); (ii) any underground storage
tanks, including whether any hydraulic lift systems (both above and below
ground) located at the Premises have leaked; and (iii) there has occurred any
spillage or contamination of any kind or nature at the Premises (collectively
"Environmental Concerns"). The cost of the Investigation shall be borne solely
by the PURCHASER. PURCHASER shall have sixty (60) days from the date hereof to
conduct the Investigation. In the event the Investigation report(s) discloses
material Environmental Concerns, then, within said (60) days from the date
hereof, PURCHASER shall provide a copy of its report(s) to SELLER, and SELLER
shall have seven (7) days from its receipt of said reports to notify PURCHASER
of its intention to bring the Premises into compliance with applicable law, or
otherwise cure and remediate the Environmental Concerns disclosed in the
Investigation report(s). In the event SELLER refuses or fails to notify
PURCHASER in writing within seven (7) days of its receipt of said report(s) of
its intention to bring the Premises and/or its use into compliance with
applicable law, or otherwise cure and remediate the material Environmental
Concerns disclosed in said report(s), then, within five (5) days of either
PURCHASER's receipt of such refusal or the expiration of the time period that
SELLER could have confirmed its intention to cure, PURCHASER shall elect to
either terminate this Agreement or proceed to closing and assume all liability
and responsibility for bringing the Premises into compliance with applicable law
by notifying SELLER of same in writing. Notwithstanding anything herein
contained to the contrary, in the event the cost required under the
Investigation report(s) to remediate the material Environmental Concerns is TEN
THOUSAND DOLLARS ($10,000.00) or less, then SELLER agrees to contribute, at
closing, an amount that is equal to that cost to remediate the material
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Environmental Concerns. In the event the cost to remediate the material
Environmental Concerns exceeds the sum of TEN THOUSAND DOLLARS ($10,000.00) and
SELLER will not agree to contribute an amount greater than TEN THOUSAND DOLLARS
($10,000.00), then PURCHASER shall have the right to either terminate this
Agreement and the Related Agreements, or assume all liability and responsibility
for bringing the Premises into compliance with applicable law and proceed to
closing by notifying SELLER of same, in writing, within seven (7) days of
PURCHASER's receipt of SELLER's intention; provided, however, that in the event
PURCHASER terminates the Agreement and the Related Agreements, then SELLER shall
have the right, but without any obligation, to notify PURCHASER, in writing,
within seven (7) days of its receipt of PURCHASER's notice of termination, of
its intent to an contribute the amount to fully remediate the material
Environmental Concerns. In such event, PURCHASER's termination notice shall be
deemed rescinded and the parties shall proceed to closing. In that event, an
amount mutually determined by the parties shall be placed in escrow with the
ESCROWEE at closing in order to secure SELLER's obligation to remediate any
outstanding Environmental Concerns subsequent to closing. Said escrow shall be
held pursuant to an Environmental Escrow Agreement in form and substance
reasonably acceptable to the parties and their respective legal counsel. In the
event of termination, the ESCROWEE is authorized to release the deposit monies
paid hereunder and under the Related Agreements to PURCHASER (together with any
accrued interest thereon), and this Agreement and the Related Agreements shall
be deemed null and void and without further force or effect. Except as otherwise
provided herein, in no event shall SELLER be obligated to bring the Premises
and/or its use into compliance with applicable law or otherwise remediate the
material Environmental Concerns. PURCHASER agrees to indemnify, defend, and hold
SELLER harmless from and against any loss, liability, damage or cost or expense
resulting from any act or omission by PURCHASER and/or its agents, servants,
contractors, employees, or invitees on the Premises, which any of such parties
may have caused, with respect to any environmental inspection or audit as herein
provided. A material Environmental Concern shall include an in-ground lift
(hydraulic or otherwise) that has leaked.
(b) Physical. PURCHASER shall have thirty (30) days from the
date hereof in which to conduct any and all reasonable physical and structural
inspections of the Premises, provided, however, that PURCHASER shall not disrupt
the business conducted thereat or the tenancies situate thereat. If the
inspections reveal any material unsatisfactory physical or structural
conditions, PURCHASER shall so notify SELLER within said thirty (30) day period
and provide a copy of its report(s) to SELLER, and SELLER shall have seven (7)
days from its receipt of said notice to confirm its intention to cure said
condition(s) prior to closing. In the event SELLER refuses or fails to notify
PURCHASER in writing within seven (7) days of its receipt of said report(s) of
its intention to cure said conditions then, within five (5) days of either
PURCHASER's receipt of such refusal or the expiration of the time period that
SELLER could have confirmed its intention to cure, PURCHASER shall elect to
either terminate this Agreement or proceed to closing and assume all liability
and responsibility for curing said condition(s), by notifying SELLER of same in
writing. In such event of termination, the ESCROWEE shall promptly return the
deposit monies paid hereunder and under the Related Agreements (together with
accrued interest thereon) to PURCHASER, and this Agreement and the Related
Agreements shall be deemed null, void, and of no further effect. PURCHASER
agrees to indemnify, defend, and hold SELLER harmless from and against any loss,
liability, damage or cost or expense resulting from any act or omission by
PURCHASER and/or its agents, servants, contractors, employees, or invitees on
the Premises, which any of such parties may have caused, with respect to said
physical inspection, as herein provided.
8. TITLE.
(a) State of Title. Title to the Premises shall be marketable,
subject only to utility easements, covenants, and restrictions of record, none
of which are presently violated or prohibit the utilization of the Premises for
its present use, nor do the same render title unmarketable. Marketable title is
defined as title which shall be insurable with the above and all standard
exceptions at regular rates by a title insurance company which is authorized to
transact business in the State of New Jersey. Within fifteen (15) days after the
date of this Agreement, SELLER will, at its sole expense (unless otherwise
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noted), deliver or cause to be delivered to PURCHASER, any of the following, to
the extent in SELLER's possession, (i) title insurance policies, commitments or
preliminary title reports; and (ii) surveys.
(b) Objections to Title. If, upon examination of title,
PURCHASER finds any objections or defects which will prevent SELLER from
conveying title as required in Section 8(a) above, PURCHASER shall give notice
in writing to SELLER within thirty (30) days of the date of this Agreement. The
notice shall describe each objection and each defect and shall be accompanied by
the full title search and all supporting documents. SELLER shall remove all
objections and all defects within thirty (30) days from receipt of the notice
thereof from PURCHASER. In the event that SELLER fails or is unable to remove
all objections and all defects within the said thirty (30) day period, and if
PURCHASER is unwilling to waive, in writing, each unremoved objection and each
unremoved defect, or extend the period of time for SELLER to remove same, then
and in such event this Agreement shall, at the election of either party, be null
and void, provided, however, that SELLER shall have the right to extend said
thirty (30) day period for a reasonable period(s) of time not to exceed
forty-five (45) days in the aggregate. In such event of termination, at
termination, the ESCROWEE shall promptly return the deposit monies paid
hereunder (together with accrued interest thereto) to PURCHASER, and this
Agreement and the Related Agreements shall be deemed null, void, and of no
further effect.
(c) Assessments. If at the time prior to the delivery of the
Deed, the Premises, in whole or in part, shall be or shall have been affected by
an assessment or assessments which are or may become payable in annual
installments, of which the first installment is then due or has been paid, then,
for the purposes of this Agreement, all unpaid installments of each assessment
shall be paid and discharged by SELLER at or before closing of title.
Unconfirmed improvements or assessments, if any, shall be paid, or shall be
allowed by the SELLER on account of the purchase price if the improvement or
work has been completed on or before the date of this Agreement.
9. ADJUSTMENTS. At closing, all real estate taxes, assessments, water,
sewer, utilities, and all other customary adjustments shall be adjusted and/or
apportioned. In addition, SELLER shall allow PURCHASER a credit against the
purchase price for the full amount of the realty transfer fee, which PURCHASER
shall pay on behalf of SELLER when the Deed is recorded.
10. SELLER'S OBLIGATIONS AT CLOSING. At closing, SELLER shall:
(a) Convey to PURCHASER marketable and insurable titled to the
Premises by Bargain and Sale Deed with covenants against Grantor's Acts.
(b) Deliver to PURCHASER actual and exclusive possession of
the Premises.
(c) Execute an affidavit of title in such forms as may be
reasonably required by the Title Company.
(d) The FIRPTA Affidavit as set forth in Section 4(h) above.
11. RISK OF LOSS. The risk of loss and/or damage to the Premises, and
the subject matter of this Agreement by casualty and liability for personal
injury, property and leasehold improvement damage shall be borne by SELLER until
closing of title. In the event of casualty damage, SELLER shall notify PURCHASER
within five (5) days of same. PURCHASER shall be excused from proceeding with
closing on account of any casualty loss and PURCHASER shall have the right to
terminate this Agreement with no penalty. SELLER shall maintain its insurance
coverage in full force and effect insuring the Premises and the subject matter
of this Agreement until the date of closing.
12. CONDEMNATION. SELLER represents that it has neither knowledge nor
notice of any condemnation or eminent domain proceeding, either existing or
contemplated, against the Premises. If, prior to closing, SELLER learns or
receives notice of any condemnation proceeding, or if a Declaration of Taking is
filed, or if any other action is filed in furtherance of a condemnation or
eminent domain proceeding, then and in such event, PURCHASER shall either (a)
accept an assignment of the condemnation rights and proceeds and shall close
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title without a reduction of the purchase price; or (b) terminate this Agreement
and the Related Agreements, and receive a return of the deposit monies paid
hereunder and thereunder (together with accrued interest), whereupon this
Agreement and the Related Agreements shall be null, void, and of no further
effect.
13. CLOSING. Closing of title shall take place at the law offices of
ABOYOUN & XXXXXX, L.L.C., 000 Xxxxx 00 Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx,
simultaneously with closing pursuant to the Related Agreements (as defined in
Section 18 below), provided, however, that all of the contingencies as set forth
in this Agreement and the Related Agreements shall be satisfied. It is
understood and agreed that the parties intend that this Agreement and the
Related Agreements be fully and simultaneously consummated, and that in the
absence of a contemplation by each party to each Agreement that same would be
consummated simultaneously, neither this Agreement nor the Related Agreements
would be executed.
14. NO BROKER. Each party warrants and represents to the other that no
agent or broker has been involved in this transaction or shown the PURCHASER the
subject Premises or called the subject Premises to the PURCHASER's attention.
Each party hereby indemnifies and holds harmless the other against any liability
which the other is obligated to discharge or defend against any agent or real
estate and/or business broker, whether or not licensed, wholly or partly because
of the indemnifying party's relations with such agent or broker, together with
all reasonable legal expenses and costs of the other necessitated in connection
therewith.
15. INDEPENDENT COUNSEL. This Agreement has been prepared by the Law
Offices ABOYOUN & XXXXXX, L.L.C. ("ABOYOUN"), at the request of SELLER.
PURCHASER is expressly advised to obtain independent counsel and advice with
respect to the subject matter of this Agreement, and has been afforded an ample
period of time so to do. In this regard, PURCHASER represents that they have
retained the services of XXXXXXXXXXX & XXXXXXXX XXXXXXXXX XXXXXX LLP in
connection herewith. PURCHASER further confirms that it has not relied, directly
or indirectly, upon any communication, advice, or consultation with ABOYOUN but,
in fact, has relied solely and exclusively upon its independent judgment and
upon the advice of the independent counsel employed by it.
16. ASSIGNMENT. This Agreement may not be assigned by PURCHASER, except
to an entity formed by PURCHASER for the purpose of consummating this Agreement
and in which PURCHASER holds an equity interest of not less than sixty-six and
two-thirds (66 2/3%) percent. In the event of such assignment, the PURCHASER
shall be relieved of personal liability hereunder.
17. NOTICES. Any notice, communication, request, reply or advice or
other notice pertaining to this Agreement to be given, made or accepted by
either party to the other must be in writing and shall be given or be served
only by dispatching the same by Federal Express (or any other established
overnight courier delivery service) and such notice so dispatched shall become
effective on the date of receipt, or by United States Certified Mail and
addressed to the party to be notified, with return receipt requested, and
receipted by the postal authority, and such notice so dispatched shall be
effective five (5) days after the date it is dispatched. For purposes thereof,
the addresses of the parties hereto are as follows:
If to SELLER: XXXXXX X. XXXXXXX, ESQ.
Aboyoun & Xxxxxx, L.L.C.
000 Xxxxx 00 Xxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
If to PURCHASER: XXXXXX XXXXXXX, ESQ.
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
18. RELATED AGREEMENTS. As an express and prime inducement for the
parties to enter into the within Agreement, separate agreements shall be entered
into (i) by and between PURCHASER and STATELINE for the sale of that certain
dealership business ("Asset Sale Agreement"), and (ii) by and among PURCHASER,
XXXXX XXXXXXXX AND XXXXXX XXXXXXXX, XX., and MEMORIAL PARKWAY ASSOCIATES, L.L.C.
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("MPA") for the transfer sale and conveyance of all right, title and interest in
an to all of the membership units in MPA with respect to premises situate at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx (Lot 6, Block 1004) utilized by
SELLER for the operation of the dealership business ("Memorial Agreement"), all
executed concurrently herewith (the Asset Sale Agreement and the Memorial
Agreement shall collectively be referred to as the "Related Agreements"). In the
absence of the execution of the Related Agreements and their continuing effect,
this Agreement shall be deemed null, void and of no further effect, it being
understood and agreed that the closing of title hereunder is contingent upon
closing of title under the Related Agreements. In furtherance of the foregoing,
it is expressly understood and agreed that the termination of this Agreement in
accordance with its terms shall entitle either of the contracting parties under
the Related Agreements to terminate all of the Agreements. In addition, closing
of title under all of the Agreements shall occur simultaneously.
19. MISCELLANEOUS PROVISIONS.
(a) This Agreement shall be construed in accordance with the
laws of the State of New Jersey.
(b) This Agreement, the Related Agreements, and all related
documents executed concurrently herewith represent the complete understandings
between the parties and supersede all previous negotiations or representations
as to all matters whether described in said Agreements or not. This Agreement,
the Related Agreements, and all related documents executed concurrently herewith
may be amended only by written instrument signed by both parties and making
express reference to the respective document to be amended.
(c) No requirement, obligation, remedy or provision of this
Agreement shall be deemed to have been waived, unless so waived expressly in
writing. The waiver of any such provision in one or more instances shall not be
considered a waiver of the right to enforce such provision thereafter.
(d) All of the terms, covenants and conditions herein
contained shall be for and shall inure to the benefit of and shall bind the
respective parties hereto and their successors and assigns respectively.
(e) This Agreement may be executed in more than one
counterpart, each copy of which shall serve as an original for all purposes, but
all copies shall constitute but one and the same Agreement.
(f) The "headings" contained in this Agreement are for the
purposes of expediency and are not intended to otherwise bind the parties or
interpret the content of the paragraph language they precede.
(g) As used herein, the masculine shall include the feminine;
the singular shall include the plural; the neuter shall include the masculine
and feminine; and vice versa.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and to be deemed effective and binding as of the Agreement date first
stated above.
ATTEST: SELLER:
STATELINE REALTY, L.L.C.
/s/ XXXXXX XXXXXXXX, XX. By: /s/ XXXXX XXXXXXXX
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XXXXXX XXXXXXXX, XX. XXXXX XXXXXXXX
Secretary Operating Manager
ATTEST: PURCHASER:
ELITE FLIGHT SOLUTIONS, INC.
By: /s/ XXXXX XXXXXXX
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XXXXX XXXXXXX, President
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EXHIBIT "A"
DESCRIPTION OF PREMISES
