MEMBERSHIP PURCHASE AGREEMENT
(MEMORIAL PARKWAY ASSOCIATES, L.L.C.)
THIS AGREEMENT, made this 6th day of April, 2005, by and between:
XXXXX XXXXXXXX, c/o Xxxxxx X. Xxxxxxx, Esq., Aboyoun & Xxxxxx,
L.L.C., 000 Xxxxx 00 Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx
00000 (hereinafter referred to as "X. XXXXXXXX");
AND
XXXXXX XXXXXXXX, XX., c/o Xxxxxx X. Xxxxxxx, Esq., Aboyoun &
Xxxxxx, L.L.C., 000 Xxxxx 00 Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "X. XXXXXXXX");
(The foregoing are hereinafter referred to in the aggregate as
the "SELLERS");
AND
ELITE FLIGHT SOLUTIONS, INC. c/o Xxxxxx Xxxxxxx, Esq.,
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP, 000 Xxxxx
Xxxxxxxx Xxxx. Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "PURCHASER").
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W I T N E S S E T H:
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WHEREAS, the SELLERS are the owners and holders of one hundred percent
(100%) of the membership interests of MEMORIAL PARKWAY ASSOCIATES, L.L.C. (the
"COMPANY"); and
WHEREAS, the specific membership ownership of the SELLERS is as
follows:
X. XXXXXXXX: Fifty (50%) percent
X. XXXXXXXX, XX.: Fifty (50%) percent; and
WHEREAS, COMPANY is the owner of certain real estate situated at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx, and designated as Xxx 0, Xxxxx 0000
(xxx "Premises"); and
WHEREAS, the SELLERS desire to sell, transfer and convey all of their
right, title and interest in and to the membership interests of COMPANY to
PURCHASER, and PURCHASER desires to purchase and acquire said membership
interests from SELLERS; and
WHEREAS, the parties have reached an understanding with respect to the
terms and considerations of the foregoing and are desirous of memorializing the
same herein;
NOW, THEREFORE, in consideration of ONE DOLLAR ($1.00), and other good
and valuable consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, the parties hereto agree as follows:
1. SUBJECT MATTER. SELLERS shall sell, transfer and convey to the
PURCHASER (in the proportions hereinafter set forth), and PURCHASER shall
purchase and acquire from SELLERS one hundred percent (100%) of the membership
interests in COMPANY (the "Acquired Membership Interest"). Said membership unit
conveyance shall be effected by SELLERS' execution and delivery to PURCHASER at
closing of Assignments of Membership interest (in the form reasonably
satisfactory to PURCHASER's legal counsel).
2. PURCHASE PRICE. The purchase price for the Acquired Membership
Interest shall be the sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000.00), to be paid and satisfied as follows:
(a) The sum of ONE HUNDRED FIFTY THOUSAND DOLLARS
($160,000.00) payable to, and to be held in escrow by
the law firm of ABOYOUN & XXXXXX, L.L.C.
("Escrowee"), until closing of title or termination
of this Agreement in accordance with its terms. Said
deposit shall be held in an interest-bearing account
and the accrued interest shall inure to the benefit
of the recipient of the deposit.
(b) A sum equal to the balance (as of the date of
closing) of the Mortgage Note to the order of ANTHONY
PARANEE ("PARANEE")(which SELLERS represent is not in
default, nor will the Note be in default at the time
of closing); and
(c) The balance sum in certified or cashiers funds,
attorney trust check or wire funds at closing.
3. 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 the closing pursuant to the Related Agreements (as defined
in Section 6 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.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. SELLERS represent and
warrant as follows:
(a) Organization and Standing of COMPANY. That COMPANY is a
limited liability company duly organized, validly existing, and in good standing
under the laws of the State of New Jersey; that copies of COMPANY's Certificate
of Formation, and all amendments thereof to date, and COMPANY's operating
agreement, as amended to date, certified as to the validity thereof by COMPANY's
Secretary, and which have been delivered to the PURCHASER are complete and
correct as of the date of this Agreement and will be true, correct and complete
through the date of closing, without amendment thereto;
(b) Valid and Binding Agreement. That this Agreement is a
valid and binding obligation of the SELLERS, and that the SELLERS have the
ability to enter into and consummate this Agreement;
(b) Membership Unit Ownership. That SELLERS are the owners,
free and clear, of any liens, pledges, restrictions and encumbrances of one
hundred percent (100%) of the membership units of COMPANY;
(c) Tax Matters. That there are no pending requested or
threatened tax audits against COMPANY by the Internal Revenue Service, the New
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Jersey Division of Taxation, New Jersey Division of Unemployment, and/or any
other taxing authority having jurisdiction over COMPANY's operations, and that
COMPANY has paid and will have paid through the date of closing all social
security, income, excise, withholding, sales and unemployment taxes to
municipal, county, state and federal governments to date, and has and will have
through the date of closing filed all returns and/or reports due in connection
with same;
(d) Title to Properties. That COMPANY has good and marketable
title to the Premises, subject to no security interests, mortgage, pledge, lien,
encumbrance, or charge, except that certain outstanding mortgage loan held by
PARANEE as evidenced by that certain outstanding Mortgage Note and Mortgage in
favor of PARANEE ("Paranee Loan"), true and correct copies of which are attached
hereto and made a part hereof as EXHIBIT "A" and EXHIBIT "B", respectively. The
COMPANY is not in default in its obligations under the Paranee Loan. The Paranee
Loan may be assumed by PURCHASER;
(e) Contracts. That COMPANY has no contract, lease or
commitment extending beyond the date of closing, or involving payment by COMPANY
of more than ONE THOUSAND DOLLARS($1,000.00). SELLERS have no other real estate
lease agreements with any other third party other than the lease with STATELINE
FORD, which shall be terminated at the time of closing;
(f) Litigation. That there are no judgments, litigation or
proceedings pending, or to SELLERS's knowledge threatened, against or relating
to COMPANY, its properties, or business, nor do SELLERS know or have reasonable
grounds to know of any basis for any such action, or of any governmental
investigations relative to COMPANY, its properties, or business; and
(g) Survival. That all representations, warranties and
covenants of SELLERS set forth in this paragraph and throughout this Agreement,
shall be true and correct as of the day of closing and shall survive closing for
a period of four (4) years.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. PURCHASER warrant and
represent as follows:
(a) That this Agreement is a valid and binding obligation of
PURCHASER, and that PURCHASER have the ability to enter into and consummate this
Agreement; and
(b) That there is no litigation, judgments or insolvency
proceedings threatened or pending against PURCHASER, jointly and severally,
which would impair PURCHASER' right to purchase the subject membership interest.
6. RELATED AGREEMENTS. As an express and prime inducement for the
parties to enter into the this Agreement, separate agreements shall be entered
into (i) by and between PURCHASER and STATELINE REALTY, L.L.C. for the sale of
that certain real estate utilized by SELLERS for the operation of the subject
dealership situated at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx, as
designated by Xxx 0, Xxxxx 0000 ("Xxxxxxxxx Xxxx Xxxxxx Agreement"), and (ii) by
and between PURCHASER and STATELINE FORD, INC. for the sale of that certain
dealership business situated at 630 and 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx
(Xxxxxx County), New Jersey ("Asset Sale Agreement") (the Stateline Real Estate
Agreement and the Asset Sale Agreement shall collectively be referred to herein
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 closing of
title hereunder is contingent upon closing of title under the Related
Agreements. In furtherance of the foregoing, it is expressly understood and
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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.
7. INDEMNIFICATION. SELLERS shall indemnify and hold COMPANY harmless
from and after the date of closing against and in respect of the following:
(a) Undisclosed Liabilities. All liabilities of COMPANY of any
nature, whether accrued, absolute, contingent or otherwise, existing as of the
date of closing, to the extent not expressly reflected or reserved against in
full in COMPANY's Balance Sheet as of that date, including, without limitation,
any tax liabilities, penalties and interest to the extent not so reflected or
reserved against, accrued in respect of, or measured by COMPANY's income for any
period prior to closing, or arising out of transactions entered into, or any
state of facts existing, prior to such date.
(b) Misrepresentations. Any damage, claim, loss or deficiency
resulting from any misrepresentation, breach of warranty, or nonfulfillment of
any agreement on the part of SELLERS, or either of them, under this Agreement.
(c) Incidental Expenses. All actions, suits, proceedings,
demands, assessments, interests, penalties, judgments, costs, attorney's fees,
and expenses incident to any of the foregoing;
(d) Procedure. Upon notification by COMPANY and/or PURCHASER
of the claim, liability or obligation, which is the subject of such indemnity,
SELLERS shall have a period of ten (10) days to defend, satisfy, compromise or
otherwise discharge the same.
8. INDEPENDENT COUNSEL. This Agreement has been prepared by the Law
Offices of ABOYOUN & XXXXXX, L.L.C. ("ABOYOUN"), at the request of SELLERS.
PURCHASER are expressly advised to obtain independent counsel and advice with
respect to the subject matter of this Agreement, and have 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 they have not relied,
directly or indirectly, upon any communication, advice, or consultation with
ABOYOUN but, in fact, have relied solely and exclusively upon their independent
judgment and upon the advice of the respective independent counsel employed by
them.
9. NO BROKER. Each party represents to the other that no agent or
broker has been involved in this transaction or shown PURCHASER the subject
business or Premises or called the subject business or Premises to PURCHASER's
attention. Each party hereby agrees to indemnify and hold harmless the other
against any liability which the other is obligated to discharge to or defend
against any undisclosed agent or broker, whether or not licensed, wholly or
partly because of the indemnifying party's relations with such undisclosed agent
or broker, together with all reasonably legal expenses and costs of the other
necessitated in connection therewith.
10. BINDING EFFECT. Except as otherwise herein provided, 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 heirs,
executors, successors and assigns respectively.
11. NOTICES. All notices, requests or other communications hereunder or
in connection herewith shall be in writing and shall be deemed to have been duly
given if mailed U.S. prepaid certified mail, return receipt requested, to the
following:
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As to SELLERS: 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
17. FURTHER DOCUMENTS. The parties shall execute any and all further
documents necessary and/or appropriate to effectuate the intent and purpose of
the provisions of this Agreement.
18. 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
Environmental Concerns. In the event the cost to remediate the material
Environmental Concerns exceeds the sum of TEN THOUSAND DOLLARS ($10,000.00) and
SELLERS 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 SELLERS of same, in writing, within seven (7) days of
PURCHASER's receipt of SELLERS' intention; provided, however, that in the event
PURCHASER terminates the Agreement and the Related Agreements, then SELLERS
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 SELLERS' 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
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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 SELLERS 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
SELLERS 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 SELLERS within said thirty (30) day period
and provide a copy of its report(s) to SELLERS, and SELLERS 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 SELLERS refuse or fail 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
SELLERS 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 SELLERS 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 SELLERS 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.
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.
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(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.
(e) 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.
[SIGNATURE PAGE ON THE FOLLOWING PAGE]
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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.
WITNESS: SELLERS:
/s/ XXXXX XXXXXXXX
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As To XXXXX XXXXXXXX
/s/ XXXXXX XXXXXXXX, XX.
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As To XXXXXX XXXXXXXX, XX.
ATTEST: PURCHASER:
ELITE FLIGHT SOLUTIONS, INC.
By: /s/ XXXXX XXXXXXX
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XXXXX XXXXXXX, President
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EXHIBIT "A"
PARANEE MORTGAGE NOTE
EXHIBIT "B"
PARANEE MORTGAGE
