PURCHASE AND SALE AGREEMENT
by and between
HEMISPHERX BIOPHARMA, INC.,
a Delaware corporation
as Seller
and
ACELLORIES, LLC,
a New Jersey limited liability company
as Purchaser
For the sale and purchase of the following Property:
Block 597.06, Xxx 0
0 Xxxxx Xxxx, Xxx Xxxxxxxxx, Xxx Xxxxxx
Date: September 11, 2017
THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made this 11th day of September, 2017, by and between HEMISPHERX BIOPHARMA, INC., a Delaware corporation (the “Seller”), and ACELLORIES, LLC, a New Jersey limited liability company (the “Purchaser”).
WITNESSETH:
In consideration of the mutual covenants and agreements set forth herein the parties hereto do hereby agree as follows:
ARTICLE I. SALE OF PROPERTY
Seller agrees to sell, transfer and assign and Purchaser agrees to purchase, accept and assume, subject to the terms and conditions stated herein, all of Seller’s right, title and interest in and to the following (herein collectively called the “Property”):
| 1.1 | Real Property. Those certain parcels of real estate located in New Jersey and described in Exhibit A attached hereto and incorporated herein by this reference, together with all buildings, improvements and fixtures located thereon and all rights, privileges and appurtenances pertaining thereto, including all of Seller’s right, title and interest in and to all rights-of-way, open or proposed streets, alleys, easements, strips or gores of land adjacent thereto (herein collectively called the “Real Property”); and |
| 1.2 | Personal Property. All furniture, personal property, machinery, apparatus, and equipment currently used in the operation, repair and maintenance of the Land and Improvements and situated thereon (collectively, the “Personal Property”), listed on the inventory attached hereto as Exhibit B-1 (herein collectively called the “Personal Property”). The Personal Property to be conveyed is subject to depletions, replacements and additions in the ordinary course of Seller’s business; and |
| 1.3 | Other Property Rights. If and to the extent assignable by Seller, (i) all service, supply, maintenance and utility agreements described in Exhibit B-2 attached hereto and incorporated herein by this reference (all of the foregoing being herein collectively called the “Contracts”), and (ii) to the extent that the same have been obtained by Seller prior to the Closing (as defined in Section 5.1), any licenses, permits and other written authorizations necessary for the use, operation or ownership of the Real Property or Personal Property (the rights and interests of Seller described in clauses (a) through (b) hereinabove being herein collectively called the “Other Property Rights”). |
| -1- |
ARTICLE II. PURCHASE PRICE AND DEPOSIT
| 2.1 | The total purchase price to be paid by Purchaser for the purchase of the Property is the sum of ONE MILLION FIFTY THOUSAND AND 00/100 DOLLARS ($1,050,000) (the “Purchase Price”). The Purchase Price, subject to the prorations and adjustments set forth in ARTICLE IV or as otherwise provided under this Agreement, plus any other amounts required to be paid by Purchaser at Closing, less a credit for the Deposit (as defined in Section 2.2) shall be paid to Seller by Purchaser on the Closing Date in immediately available funds by wire transfer as more particularly set forth in Section 5.2. |
| 2.2 | The date both parties have received a fully executed Agreement shall be the “Effective Date”. Purchaser shall deposit with XxXxxxxx & English, LLP (the “Escrow Holder”), at Escrow Holder’s office located at Four Gateway Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, funds in the amount of $63,000, to be delivered by wire transfer simultaneously with Purchaser’s execution and delivery of this Agreement (the “Deposit”). The Deposit shall be held by the Escrow Holder in a non-interest bearing account. Except as otherwise provided in this Agreement, the Deposit shall be paid over by Escrow Holder (i) to Seller after the expiration of the Due Diligence Period; or (ii) to Purchaser upon either a permitted termination of this Agreement as provided herein or upon the demand of Purchaser upon Seller’s default hereunder provided same is not in dispute. |
| 2.3 | Mortgage Contingency. |
| (a) | Purchaser’s obligations under this Agreement are contingent upon Purchaser obtaining a commitment from an institutional lender of Purchaser’s choosing for a mortgage loan in the amount up to $945,000.00 (the “Mortgage Amount”) at the prevailing market interest rate and terms. Purchaser shall submit an application for the mortgage loan within fourteen (14) days of the Effective Date, and shall supply Seller with a true redacted copy of such application no later than three (3) business days after Purchaser has submitted its application. Purchaser shall deliver to Seller a true copy of either the mortgage commitment or the rejection of the mortgage loan within five (5) business days of Purchaser’s receipt of same. | |
| (b) | In the event Purchaser, despite its reasonable efforts, is unable to obtain a mortgage commitment for the Mortgage Amount within sixty-five (65) days of the Effective Date (the “Mortgage Contingency Expiration Date”), Purchaser shall have the right, by written notice given to Seller no later than 5:00 p.m. on or before the Mortgage Contingency Expiration Date, to declare this Agreement null and void, in which event the Escrow Agent shall return to Purchaser the Deposit, and thereupon, neither party shall have any further claim or demand against the other by reason hereof, except for those provisions which expressly survive the termination of this Agreement. In the event Purchaser (i) delivers to Seller a mortgage commitment for the mortgage loan prior to the Mortgage Contingency Expiration Date, or (ii) fails to deliver notice of its termination of this Agreement by 5:00 p.m. on or before the expiration of the Mortgage Contingency Expiration Date, the contingency as provided in Section 2.3 shall be deemed satisfied. |
| -2- |
ARTICLE III. TITLE MATTERS
| 3.1 | Title to the Property. At Closing, Seller shall convey to Purchaser by bargain and sale deed, with covenants against grantor’s acts (the “Deed”), fee simple title to the Property, insurable at regular rates by a title insurance company licensed to do business in the State of New Jersey, subject to the following liens, easements, restrictions, conditions or other encumbrances (hereinafter referred to as the “Permitted Encumbrances”): |
| (a) | Such liens, easements, restrictions, conditions or other encumbrances as are listed in Exhibit C attached hereto and incorporated herein by this reference; | |
| (b) | General real estate taxes for the year of Closing which are not yet due and payable (subject to adjustment provided in Section 4.1); | |
| (c) | Liens for municipal betterments which are assessed after the Effective Date; | |
| (d) | Zoning regulations and municipal building restrictions, and all other laws, ordinances, regulations and restrictions of any duly constituted public authority enacted prior to the Closing Date provided the current use of the Property complies with same; | |
| (e) | Such state of facts as an accurate survey or a physical inspection of the Property may disclose provided such facts do not render title unmarketable; | |
| (f) | Other covenants, easements and restrictions which do not materially and adversely affect the use of the Property as permitted by zoning and related ordinances and laws on the date hereof, as well as grants to utility and/or power companies, the rights of the public in sidewalks and abutting public rights-of-way, and easements given to the public for water course maintenance, slope rights or sight rights; | |
| (g) | Standard exceptions set forth in the form of title insurance policy of the title insurance company selected by Purchaser; and | |
| (h) | Any other matter which would constitute a Title Objection (as defined in Section 3.2) that Purchaser does not waive pursuant to the following subsections, provided that a nationally recognized title insurance company authorized to do business in New Jersey agrees (either at normal rates to be paid by Purchaser or at a special rate to be paid by Seller) that it will insure title free of such Title Objection or with affirmative insurance against the enforcement of such Title Objection against the Property. |
| -3- |
| 3.2 | Title Objections. Purchaser covenants and agrees to promptly obtain a commitment for title insurance (the “Commitment”) from a reputable title insurance company authorized to do business in the State of New Jersey, and shall deliver to Seller within thirty (30) days of the Effective Date a copy of the Commitment. In the event the title company selected by Purchaser to insure its interest in the Property shall report to Purchaser any objection to title other than the Permitted Encumbrances which is unacceptable to Purchaser (a “Title Objection”), Purchaser shall notify Seller of any such Title Objection at the time of Purchaser’s delivery of a copy of the Commitment to Seller. |
| 3.3 | Curing Title Objections. If Purchaser notifies Seller, as herein provided, of a Title Objection, Seller shall elect, upon delivery of written notice to Purchaser within ten (10) business days after receipt of notification from Purchaser of a Title Objection, whether to cure such Title Objection. Seller shall have the right, at its sole election, to adjourn the Closing Date one or more times, for a period or periods not in excess of sixty (60) days in the aggregate, to enable Seller to convey title to the Property without such Title Objection. If Seller does not so elect to cure such Title Objection, or if having elected to cure such Title Objection Seller is unable to convey title subject to and in accordance with the provisions of this Agreement, Purchaser may either (i) terminate this Agreement by written notice to the Seller on or after the latter of the Closing Date or any adjournment by Seller, in which event this Agreement shall become void and of no further effect, the Deposit shall be immediately returned to Purchaser, and thereupon neither party shall have any further obligations of any nature to the other hereunder or by reason hereof, or (ii) upon notice to Seller, accept such title as Seller can convey without reduction of the Purchase Price or any credit or allowance on account thereof. |
| 3.4 | Satisfaction of Liens at Closing. If at the Closing Date there may be any liens or mortgages which Seller has agreed to discharge, Seller shall use all or any portion of the Purchase Price payable at the Closing to satisfy the same. |
ARTICLE IV. ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at Closing:
| 4.1 | Taxes. Real estate, sewer taxes and personal property taxes shall be prorated for the calendar year in which the Closing occurs, regardless of the year for which such taxes are assessed. Such proration shall be calculated based upon the actual number of days in such calendar year, with Seller being responsible for that portion of such calendar year occurring prior to midnight of the day prior to the Closing Date and Purchaser being responsible for that portion of such calendar year occurring after midnight of the day prior to the Closing Date. If the real estate, sewer and/or personal property tax rate and assessments have not been set for the calendar year in which the Closing occurs, then the proration of such taxes shall be based upon the rate and assessments for the preceding calendar year, and such proration shall be adjusted between Seller and Purchaser upon presentation of written evidence that the actual taxes paid for the calendar year in which the Closing occurs differ from the amounts used at Closing and in accordance with the provisions of Section 4.6. Seller shall pay all installments of special assessments due and payable prior to the Closing Date and Purchaser shall pay all installments of special assessments due and payable on and after the Closing Date. |
| -4- |
| 4.2 | Other Property Operating Expenses. Operating expenses for the Property shall be prorated as of midnight of the day prior to the Closing Date. Seller shall pay all utility charges and other operating expenses attributable to the Property to, but not including the Closing Date and Purchaser shall pay all utility charges and other operating expenses attributable to the Property on or after the Closing Date. To the extent that the amount of actual consumption of any utility services is not determined prior to the Closing Date, a proration shall be made at Closing based on the last available reading and post-closing adjustments between Purchaser and Seller shall be made within twenty (20) days of the date that actual consumption for such pre-closing period is determined, which obligation shall survive the Closing and not be merged therein. Seller shall not assign to Purchaser any deposits which Seller has with any of the utility services or companies servicing the Property. Purchaser shall arrange with such services and companies to have accounts opened in Purchaser’s name beginning at 12:01 a.m. on the Closing Date. |
| 4.3 | [INTENTIONALLY OMITTED] |
| 4.4 | Closing Costs. Seller shall pay the New Jersey realty transfer fee or permit a credit therefor against the Purchase Price (other than the “mansion” tax, or other transfer tax specifically imposed on grantees under N.J.S.A. 46:15-7.2, et. seq., if any, applicable to the Property, which shall be the responsibility of Purchaser), and any recording fees associated with any discharge documents relating to mortgages and/or liens that Seller is a satisfying pursuant to the terms hereof. Except as expressly provided to the contrary in this Agreement, Purchaser shall pay all costs and expenses associated with the transaction contemplated by this Agreement (the “Transaction”), including, without limitation, all costs and expenses for its survey and title policy. The obligations of the parties under this Section 4.4 shall survive the Closing (and not be merged therein) or any earlier termination of this Agreement. |
| 4.5 | Apportionment Credit. In the event the apportionments to be made at the Closing result in a credit balance (a) to Purchaser, such sum shall be paid (at Seller’s option) at the Closing by giving Purchaser a credit against the Purchase Price in the amount of such credit balance, or (b) to Seller, Purchaser shall pay the amount thereof to Seller at the Closing by wire transfer of immediately available funds to the account or accounts to be designated by Seller for the payment of the Purchase Price. Any matters whose proration is not specifically covered in this Agreement shall be prorated in accordance with customary procedure in the county where the Property is located. |
| 4.6 | Delayed Adjustment; Delivery of Operating and Other Financial Statements. If at any time following the Closing Date, the amount of an item listed in any section of this Article IV shall prove to be incorrect (whether as a result in an error in calculation or a lack of complete and accurate information as of the Closing), the party in whose favor the error was made shall promptly pay to the other party the sum necessary to correct such error upon receipt of proof of such error, provided that such proof is delivered to the party from whom payment is requested on or before six (6) months after Closing (such period being referred to herein as the “Post Closing Adjustment Period”). In order to enable Seller to determine whether any such delayed adjustment is necessary, Purchaser shall provide to Seller current operating and financial statements for the Property no later than the date one (1) month prior to the expiration of the Post-Closing Adjustment Period. The provisions of this Section 4.6 shall survive the Closing and not be merged therein. |
| -5- |
ARTICLE V. CLOSING
Purchaser and Seller hereby agree that the Transaction shall be consummated as follows:
| 5.1 | Closing Date. Subject to Purchaser’s right to extend the Closing as provided in this Agreement, the Transaction shall close (the “Closing”) within fifteen (15) days from the later of the (a) expiration of the Due Diligence Period; or (b) satisfaction of the Mortgage Contingency (the “Closing Date”), or such earlier date as the parties may mutually agree. Purchaser and Seller shall conduct a “pre-closing” at 10:00 a.m. Eastern Time on the last business day prior to the Closing Date at the offices of Seller’s attorney in Newark, New Jersey with title transfer and payment of the Purchase Price to be completed on the Closing Date as set forth in Section 5.2. Time is of the essence with respect to the Closing Date. Notwithstanding the foregoing, Purchaser shall have the right to extend the Closing Date for one period not to exceed five (5) business days. In the event Purchaser wishes to extend the Closing Date as provided above, Purchaser shall deliver written notice to Seller on or before the date which is five (5) days prior to the originally scheduled Closing Date which notice shall set forth the new date selected by Purchaser for the Closing (the “New Closing Date”). The New Closing Date must be within five (5) business days of the Closing Date. In the event Purchaser fails to deliver the written notice requesting the extension to the Closing Date as provided above, Purchaser shall be deemed to have waived its right to extend the Closing Date. Time is of the essence with respect to the New Closing Date |
| 5.2 | Title Transfer and Payment of Purchase Price. Provided all conditions precedent to Seller’s obligations hereunder have been satisfied, Seller agrees to convey title to the Real Property to Purchaser upon confirmation of receipt of the Purchase Price as set forth below. Provided all conditions precedent to Purchaser’s obligations hereunder have been satisfied, Purchaser agrees to pay the amount specified in Section 0 by timely delivering the same to Seller no later than 1:00 p.m. Eastern Time on the Closing Date. |
| 5.3 | Seller’s Closing Deliveries. At the Closing, Seller shall deliver or cause to be delivered the following: |
| (a) | Deed. The Deed in the form of Exhibit D attached hereto and incorporated herein by this reference duly executed by Seller. | |
| (b) | Xxxx of Sale. A xxxx of sale in the form of Exhibit E attached hereto and incorporated herein by this reference (the “Xxxx of Sale”) duly executed by Seller. | |
| (c) | [INTENTIONALLY OMITTED] |
| -6- |
| (d) | Assignment of Contracts. An assignment and assumption of the Contracts and the Other Property Rights (to the extent the same are not transferred by the Deed or Xxxx of Sale) in the form of Exhibit G attached hereto and incorporated herein by this reference (the “Assignment of Contracts”) duly executed by Seller. | |
| (e) | Non-Foreign Status Affidavit. A non-foreign status affidavit in the form of Exhibit H attached hereto and incorporated herein by this reference, as required by Section 1445 of the Internal Revenue Code duly executed by Seller. | |
| (f) | Evidence of Authority. Documentation to establish to Purchaser’s reasonable satisfaction the due authorization of Seller’s sale of the Property and Seller’s delivery of the documents required to be delivered by Seller pursuant to this Agreement. | |
| (g) | Other Documents. A “Seller’s Affidavit of Title”, in standard form, and such other documents as may be reasonably required by the Purchaser’s title company or as may be agreed upon by Seller and Purchaser to consummate the Transaction duly executed by Seller. | |
| (h) | Property Documents. (i) To the extent in the possession of Seller or the current manager of the Property, (A) the original (or, if unavailable, a copy) of the existing certificate or certificates of occupancy for the Property, and (B) all original (or, if unavailable, copies of) certificates, licenses, permits, authorizations and approvals issued for or with respect to the Property by governmental and quasi-governmental authorities having jurisdiction; and (ii) all non-proprietary, non-confidential books and records located at the Property or at the office of Seller’s building manager relating to the Property and the ownership and operation thereof (the items described in clauses (i) and (ii) being herein collectively called the “Property Documents”). | |
| (i) | Keys and Original Documents. Keys to all locks on the Real Property in Seller’s or Seller’s building manager’s possession and originals or, if originals are not available, copies, of the Contracts and the Leases. | |
| (j) | ISRA. Evidence that Seller has submitted a Remediation Certification to the NJDEP or has achieved Compliance with ISRA as set forth in Section 9.6 hereof. | |
| (k) | Cancellation of Contracts. Copies of any notices to services providers canceling any contracts which are not to be assumed pursuant to the terms of this Agreement. | |
| (l) | Closing Statement. A counterpart of the closing statement. |
| -7- |
| (m) | Certification of Seller’s Representations. A certificate hereto updating the representations of Seller. |
The items to be delivered by Seller in accordance with the terms of Subsections (a) through (g) and (k) through (m) of this Section 5.3 shall be delivered to the Escrow Holder no later than 5:00 p.m. Eastern Time on the last business day prior to the Closing Date and the items to be delivered by Seller in accordance with the terms of Subsections (h) through (i) of this Section 5.3 shall be delivered outside of escrow and shall be deemed delivered if the same are located at the Property on the Closing Date.
| 5.4 | Purchaser’s Closing Deliveries. At the Closing, Purchaser shall deliver or cause to be delivered to the following: |
| (a) | Purchase Price. The Purchase Price, as adjusted for apportionments and other adjustments required under this Agreement, plus any other amounts required to be paid by Purchaser at Closing. | |
| (b) | Xxxx of Sale. The Xxxx of Sale acknowledged by Purchaser. | |
| (c) | Assignment of Contracts. The Assignment of Contracts executed and acknowledged by Purchaser. | |
| (d) | [INTENTIONALLY OMITTED] | |
| (e) | Evidence of Authority. Documentation to establish to Seller’s reasonable satisfaction the due authorization of Purchaser’s acquisition of the Property and Purchaser’s delivery of the documents required to be delivered by Purchaser pursuant to this Agreement (including, but not limited to, the organizational documents of Purchaser, as they may have been amended from time to time, resolutions of Purchaser and incumbency certificates of Purchaser). | |
| (f) | Other Documents. Such other documents as may be reasonably required by the Title Company or may be agreed upon by Seller and Purchaser to consummate the Transaction. | |
| (g) | Closing Statement. A counterpart of the closing statement. |
The Purchase Price shall be paid in accordance with the terms of Section 5.2 hereof and the items to be delivered by Purchaser in accordance with the terms of Subsections (b) through (e) and (g) of this Section 5.4 shall be delivered to the Escrow Holder no later than 5:00 p.m. Eastern Time on the last business day prior to the Closing Date.
ARTICLE VI. CONDITIONS TO CLOSING
| 6.1 | Seller’s Obligations. Seller’s obligation to close the Transaction is conditioned on all of the following, any or all of which may be waived by Seller by an express written waiver, at its sole option: |
| -8- |
| (a) | Representations True. All representations and warranties made by Purchaser in this Agreement shall be true and correct in all material respects on and as of the Closing Date, as if made on and as of such date except to the extent they expressly relate to an earlier date; | |
| (b) | Purchaser’s Financial Condition. No petition has been filed by or against Purchaser under the Federal Bankruptcy Code or any similar state or federal Law, whether now or hereafter existing; and | |
| (c) | Purchaser’s Deliveries Complete. Purchaser shall have delivered the funds required hereunder and all of the documents to be executed by Purchaser set forth in Section 5.3 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement, to be performed or complied with by Purchaser at or prior to the Closing. |
| 6.2 | Purchaser’s Obligations. Purchaser’s obligation to close the Transaction is conditioned on all of the following, any or all of which may be expressly waived by Purchaser in writing, at its sole option: |
| (a) | Representations True. Subject to the provisions of Section 15.3, all representations and warranties made by Seller in this Agreement, as the same may be amended as provided in Section 15.3, shall be true and correct in all material respects on and as of the Closing Date, as if made on and as of such date except to the extent that they expressly relate to an earlier date; | |
| (b) | Title Conditions Satisfied. At the time of the Closing, title to the Property shall be as provided in Section 3.1 of this Agreement; and | |
| (c) | Seller’s Deliveries Complete. Seller shall have delivered all of the documents and other items required pursuant to Section 5.3 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement, to be performed or complied with by Seller at or prior to the Closing. |
| 6.3 | Waiver of Failure of Conditions Precedent. At any time or times on or before the date specified for the satisfaction of any condition, Seller or Purchaser may elect in writing to waive the benefit of any such condition set forth in Section 6.1 or Section 6.2, respectively. By closing the Transaction, Purchaser shall be conclusively deemed to have waived the benefit of any remaining unfulfilled conditions set forth in Section 6.2. |
| -9- |
ARTICLE VII. RISK OF LOSS
| 7.1 | The risk of loss or damage to the Property by fire or otherwise until the delivery of the Deed is assumed by Seller. In case the Property shall suffer injury by fire or other casualty, this Agreement shall nevertheless remain in full force and effect, without any abatement whatsoever allowed to Purchaser with respect to the Purchase Price. If the cost of repairing or restoring such damage exceeds ten percent (10%) of the Purchase Price, either party shall have the right to terminate this Agreement by delivering written notice of such election to the other party within fifteen (15) days of the date such party receives notice of any of such injury or fire. In case the Property shall suffer injury by fire or other casualty and the cost of repairing or restoring such damage is equal to or less than ten percent (10%) of the Purchase Price, this Agreement shall nevertheless remain in full force and effect, without any abatement whatsoever allowed to Purchaser with respect to the Purchase Price. In the event of such injury costing equal to or less than ten percent (10%) of the Purchase Price to repair or restore or in the event that neither party elects to terminate the contract as provided above if the cost of repair or restoration exceeds ten percent (10%) of the Purchase Price, Seller shall have the option to either (i) restore or repair such damage by the Closing Date hereunder (such Closing Date to be extended if necessary to accommodate such restoration or repair, which extension shall not exceed ninety (90) days), in which event Seller shall be entitled to receive the proceeds payable under the insurance policies, or (ii) refrain from repairing any such damage, in which event Purchaser shall accept title in such damaged condition, and Seller shall assign and transfer to Purchaser, without recourse or warranty, all of the right, title and interest of Seller in and to the insurance proceeds covering such damage or casualty which Seller may be entitled to receive thereunder. |
ARTICLE VIII. CONDEMNATION
| 8.1 | If between the Effective Date and the Closing Date, all or any portion of the Property whose value exceeds ten percent (10%) of the Purchase Price is taken by any governmental authority (or notice thereof is given of the intention to take the Property or any portion thereof), either party shall have the right to terminate this Agreement by delivering written notice of such election to the other party within fifteen (15) days of the date such party receives notice of any of such taking. In the event of a termination of this Agreement in accordance with this Section 8.1, the Deposit shall be returned to Purchaser by Escrow Holder and this Agreement shall terminate and be null and void. If this Agreement is not terminated as aforesaid, at the Closing, Seller shall assign to Purchaser, without recourse, all of its right, title and interest in and to the entire award to which it may otherwise be entitled in the condemnation proceedings and shall pay to Purchaser at the Closing any portion of the award theretofore received by Seller. |
ARTICLE IX. CONDITION OF THE PROPERTY/ENVIRONMENTAL MATTERS
| 9.1 | AS IS, WHERE IS, WITH ALL FAULTS. Purchaser acknowledges and agrees that, except as expressly set forth herein, Seller has made no representations or warranties, either express or implied, regarding the Property, including, without limitation, its condition (including its environmental condition), its past use, or its suitability for Purchaser’s intended use thereof, and that Purchaser is acquiring the Property on an “AS IS, WHERE IS” basis. Purchaser acknowledges that it has conducted, or by the end of the Due Diligence Period (as defined in Section 10.1) will have conducted such independent inspections, investigations and analyses of the Property as it deems necessary or appropriate in acquiring the Property from Seller (including, without limitation, any and all matters concerning the condition (including the environmental condition), use, development or suitability for development of the Property). Neither Seller nor Seller’s agents has made any express statement, representation or warranty accepting past, present, or future liability arising out of or related to the environmental condition or value of the Property, nor shall Seller have any liability whatsoever to Purchaser with respect to environmental matters of any kind or nature whatsoever respecting the Property, including without limitation the presence of any Hazardous Materials at the Property or any Environmental Conditions on, at, under, emanating from or migrating to the Property, or any violation of or non-compliance with Environmental Laws (as such terms are defined below). |
| -10- |
| 9.2 | Definitions.For the purposes of this Agreement, the following terms shall have the meanings set forth below: |
(i) “Compliance with ISRA” shall mean receipt by the Seller of a Response Action Outcome (“XXX”) issued by a Licensed Site Remediation Professional (“LSRP”) (as such terms are defined below), or any other written determination by the NJDEP or an LSRP that the requirements of ISRA have been satisfied with respect to the Property.
(ii) “Environment” shall mean surface soils, subsurface soils, sediment, surface water, groundwater, wetlands, soil gas, ambient air or land, and all flora and fauna existing therein or thereon.
(iii) “Environmental Conditions” means any contamination or pollution or threatened contamination or pollution of, or the Release or threatened Release of Hazardous Materials into, the Environment, whether known or unknown and regardless of when such conditions first existed or arose.
(iv) “Environmental Laws” means all federal, regional, state, county or local laws, statutes, ordinances, decisional law, rules, regulations, codes, orders, decrees, directives and judgments relating to public health or safety, pollution, damage to or protection of the Environment, Environmental Conditions, Releases or threatened Releases of Hazardous Materials into the Environment or the use, manufacture, processing, distribution, treatment, storage, generation, disposal, transport or handling of Hazardous Materials, as the same are in effect on the Closing Date, together with any amendments to the same and any new enactments adopted, promulgated or enacted after the Closing Date, including, but not limited to, the Federal Water Pollution Control Act, 33 U.S.C. §§ 1231-1387; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6991 (“RCRA”); the Clean Air Act, 42 U.S.C. §§7401-7642; the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601-9675 (“CERCLA”); the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629; the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. (“ISRA”); the Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq, (the “SRRA”); the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the “Spill Act”); the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; the New Jersey Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq.; and the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.; and any and all rules and regulations promulgated thereunder.
| -11- |
(v) “Hazardous Materials” shall mean any substances, materials or wastes, whether liquid, gaseous or solid, and any pollutant or contaminant, that is infectious, toxic, hazardous, explosive, corrosive, flammable or radioactive, or that is regulated under, defined, listed or included in any Environmental Laws, including without limitation, petroleum, polychlorinated biphenyls, asbestos and asbestos containing materials and urea formaldehyde.
(vi) “Licensed Site Remediation Professional” or “LSRP” shall have the same meaning given to such terms under the SRRA.
(vii) “Losses” shall mean all fines, penalties, losses, liabilities, claims, settlements, judgments, fees, damages (including, without limitation, damages on account of personal injury or death, property damage or damage to natural resources) costs or expenses (including, without limitation, sampling, monitoring or remediation costs, attorneys’, consultants’ and engineering fees and disbursements, costs of defense and interest).
(viii) “NJDEP” shall mean the New Jersey Department of Environmental Protection, its divisions, bureaus and subdivisions.
(ix) “Release” shall mean any intentional or unintentional release, discharge, burial, spill, leaking, pumping, pouring, emitting, emptying, injection, disposal or dumping into the Environment.
(x) “Remedial Action Permit” shall have the same meaning given to such term at N.J.A.C. 7:26C-7 et seq.
(xi) “Remedial Actions” means any and all: (i) investigations of Environmental Conditions, including site assessments, site investigations, remedial investigations, soil, groundwater, surface water, sediment sampling or monitoring; or (ii) actions taken to remove, xxxxx or remediate Environmental Conditions, including the use, implementation, application, installation, operation or maintenance of removal actions, in-situ or ex-situ remediation technologies applied to the surface or subsurface soils, encapsulation or stabilization of soils, excavation and off-site treatment or disposal of soils, systems for the recovery and/or treatment of groundwater or free product, Engineering Controls, Institutional Controls, Classification Exception Areas and Well Restriction Areas (as such terms are defined under Environmental Laws, including N.J.S.A. 58:10B-1 et seq.).
(xii) “Remediation Standards” means either numeric or narrative standards to which Hazardous Materials in the Environment must be remediated as established pursuant to Environmental Laws by the NJDEP.
(xiii) “Response Action Outcome” or “XXX” shall have the same meaning given to such terms under the SRRA.
| -12- |
9.3 Purchaser’s Waiver and Release of Claims. Except with respect to Seller’s obligations as expressly set forth in Section 9.6 herein, Purchaser hereby (effective from and after the Closing Date and for itself and its successors and assigns) waives and releases and covenants not to xxx Seller with respect to, any claims, rights, remedies or causes of action that Purchaser (or any such successors or assigns) may have now or in the future or that may arise against Seller under Environmental Laws or any other theory of liability with respect to environmental matters of any kind or nature whatsoever respecting the Real Property occurring or existing prior to, on or after the Closing Date, including but not limited to any Environmental Conditions on, at, under or emanating from the Real Property. Purchaser’s obligation to release and waive claims as set forth in this Paragraph 9.3 shall be a covenant running with the Real Property to be memorialized in the Deed and shall be binding on Purchaser’s successors and assigns and on all person’s taking or acquiring any right, title or interest in the Real Property (the “Subsequent Grantees”).
9.4 Purchaser’s Indemnification of Seller. Except with respect to Seller’s obligations as expressly set forth in Section 9.6 herein, Purchaser shall, from and after the Closing Date, defend, indemnify and hold harmless Seller from and against any and all Losses imposed on, incurred by or asserted against Seller or for which Seller may be liable or obligated arising from or relating to any environmental matter of any kind or nature whatsoever respecting the Real Property, including but not limited to any Environmental Conditions on, at, under or emanating from the Real Property, it being the express intention of the Parties that, effective immediately upon the Closing, as between Seller and Purchaser, Purchaser shall assume, undertake and be solely responsible for all liabilities and obligations relating to environmental matters of any kind or nature whatsoever respecting the Real Property, including without limitation, Environmental Conditions on, at, under or emanating from the Real Property (but specifically excluding Seller’s obligations as expressly set forth in Section 9.6 herein).
9.5 Certificate of Occupancy. In the event a certificate of occupancy, or other inspection certificate, or other governmental approvals are required by any federal, state, county, or local governmental authority or agency before the Property may be transferred by Seller to Purchaser, Seller, at Seller’s sole expense, shall have the obligation to secure such certificates or approvals, and Seller shall be responsible for all costs incidental thereto. Seller agrees to indemnify and hold the Purchaser harmless with respect to any such costs or expenses, which indemnification shall include any legal fees, court costs and any liabilities of any nature whatsoever arising in connection with the indemnity. Notwithstanding anything contained herein to the contrary, if the cost of obtaining any required governmental approvals hereunder exceeds $50,000.00, then Seller shall have the right to terminate this Agreement, at which xxxx Xxxxxx shall instruct the Escrow Holder to promptly return the Deposit to Purchaser.
9.6 Industrial Site Recovery Act.
A. Compliance With ISRA. With respect to the Property and the transaction contemplated by this Agreement, promptly following the Effective Date, Seller shall submit to the NJDEP an Application for an ISRA Limited Conveyance (the “L/C Application”) with respect to the Property. In the event Seller does not receive the NJDEP’s written approval of such L/C Application prior to the expiration of the Due Diligence Period, Seller shall have the right to terminate this Agreement and the Purchaser shall be entitled to the return of the Deposit. In the event Seller receives the NJDEP’s written approval of the L/C Application prior to the expiration of the Due Diligence Period, Seller shall, prior to the Closing Date and at its cost and expense, (i) achieve Compliance with ISRA, or (ii) execute and submit to the NJDEP a Remediation Certification (as such term is defined under ISRA) permitting the consummation of the transaction contemplated by this Agreement and, from and after the Closing Date, take all actions required under applicable Environmental Laws in order to achieve Compliance with ISRA with respect to the Property in accordance with the terms and conditions of this Section 9.6.
| -13- |
B. Performance of Remedial Actions. In the event Seller or Seller’s LSRP performs any Remedial Actions at the Property following the Closing Date in order to satisfy any of the obligations set forth in Section 9.6A above, Seller agrees to:
(i) perform, and cause all consultants and contractors, including Seller’s LSRP, to perform, such Remedial Actions in a xxxxxxx-like manner and consistent with applicable Environmental Laws;
(ii) provide Purchaser with at least two (2) days prior notice (or such shorter notice as shall be necessary in order to comply with any order or directive of the NJDEP or requirement of Seller’s LSRP) of the initiation of any Remedial Actions at the Property;
(iii) provide Purchaser with an opportunity to review and copy all documents submitted by Seller or Seller’s LSRP to, or received by Seller or Seller’s LSRP from, the NJDEP in connection with the performance of Remedial Actions at the Property and to have a representative present at the Property during the performance of any Remedial Action; and
(iv) upon the completion of the Remedial Action and consistent with the Remedial Action and the requirements of Environmental Laws, restore the Property to substantially the same condition it was in prior to the performance of the Remedial Action.
C. Purchaser’s Obligations With Respect to Remedial Actions. As to the Remedial Actions that Seller or Seller’s LSRP performs at the Property pursuant to Section 9.6A above, Purchaser consents, covenants and agrees as follows: (i) Seller and Seller’s LSRP shall have the right to exercise the sole authority to select and propose the Remedial Actions necessary to achieve Compliance with ISRA with respect to the Property, and to implement the same at the Property; (ii) Purchaser consents to the use by Seller and Seller’s LSRP of the least stringent Remediation Standards applicable to non-residential properties and any remediation methodology, including Engineering Controls, Institutional Controls and Classification Exception Areas and Well Restriction Areas, provided that the use of such Remediation Standards or remediation methodology does not unreasonably interfere with Purchaser’s day-to-day operations at the Property; (iii) Seller shall exercise the sole authority to conduct any negotiations with the NJDEP and/or Seller’s LSRP concerning the method, scope and pace of the Remedial Action; (iv) Purchaser shall provide, at no cost to Seller or Seller’s LSRP, access to the Property reasonably necessary to enable Seller and Seller’s LSRP (and their respective consultants and contractors) to perform Remedial Actions, use of utilities serving the Property and adequate space on the Property for the installation of any sampling, monitoring or remediation equipment and for the temporary storage of equipment, materials and wastes as requested; (v) Purchaser shall, at its sole cost and expense, inspect, maintain and otherwise comply with any Engineering Control or Institutional Control installed or required in connection with the Remedial Action selected by Seller or Seller’s LSRP (including satisfaction of the biennial certification required under N.J.S.A. 58:10B-13.1(a)(2) and compliance (as the party primarily responsible for permit compliance) with the terms and conditions of any Remedial Action Permit required with respect to the Property); (vi) as requested by Seller, Purchaser shall execute documents required to enable the implementation of the Remedial Actions selected by Seller or Seller’s LSRP, or to otherwise allow Seller to achieve Compliance with ISRA, including permit applications or Deed Notices, provided that Seller shall be solely responsible for all costs and expenses incurred to apply for and obtain such permits and to prepare and record such Deed Notices; and (vii) Purchaser shall obtain all necessary consents or other authorizations from any occupant of the Property required to enable the implementation of any Remedial Action selected by Seller or Seller’s LSRP.
| -14- |
9.7 Survival. The provisions of this Article IX shall survive the closing of title and delivery of the Deed.
ARTICLE X. DUE DILIGENCE BY PURCHASER
| 10.1 | Due Diligence Period. Purchaser shall have forty-five (45) calendar days from the Effective Date (the “Due Diligence Period”) to conduct, at its own cost and expense, a due diligence inspection of the Property, including engineering tests, a review of the financial, legal and physical condition of the Property and the like, and a review of all applicable laws, regulations and ordinances, which may include a non-invasive environmental assessment of the Property (“Inspections”). Purchaser shall not conduct or allow any physically intrusive testing of, on or under the Property, or use, consult or engage a LSRP in connection with the performance of any Inspections (or the review of the results thereof) to be performed by Purchaser under this Section 10.1. Purchaser, or Purchaser’s agent, shall maintain at all times during the Due Diligence Period, general liability insurance in an amount not less than $2,000,000 with Seller being named as an “Additional Insured” with respect to the Property, and, upon request of Seller, will provide Seller with written evidence of same. Purchaser shall be responsible for any damage caused as a result of its Inspections. This obligation shall survive termination of this Agreement and the closing. |
| 10.2 | Confidentiality; Inspections; Indemnity. Purchaser agrees (which agreement shall survive closing or earlier termination of this Agreement) that, in making any Inspections, or conducting any testing of, on or under the Property, Purchaser or Purchaser’s agent will not reveal to any employee of Seller or third party not approved by Seller the purpose or results of its inspections or tests, unless ordered by a court of competent jurisdiction or by subpoena, and will restore promptly any physical damage caused by the Inspections. Purchaser shall give Seller reasonable prior written notice of its intention to conduct any Inspections and such Inspections shall not occur without a representative of Seller present. Purchaser agrees to provide Seller with a copy of any Inspection report only upon Seller’s written request. Purchaser agrees (which agreement shall survive closing or earlier termination of this Agreement) to indemnify, defend and hold Seller free and harmless from any loss, injury, damage, claim, lien, cost or expense, including attorneys’ fees and costs, arising out of a breach of the foregoing agreements by Purchaser or any claim or injury arising in connection with Purchaser’s Inspections of the Property. Any Inspections shall be at Purchaser’s sole cost and expense. |
| -15- |
| 10.3 | Termination Notice. If Purchaser is dissatisfied with the results of such Inspections, then in such event Purchaser may elect to terminate this Agreement by giving notice of such election, which notice shall set forth the basis upon which Purchaser has elected to terminate the Agreement (the “Termination Notice”), on or before the expiration of the Due Diligence Period, which date shall be deemed time of the essence. The results of all Inspections including, but not limited to environmental Inspections, shall be deemed confidential in nature, and shall not be disclosed to any third parties by Purchaser without Seller’s express written authorization. In the event of such termination, the Deposit shall be refunded to Purchaser, and this Agreement shall be without any further force, effect or obligation of either party to the other, except for those provisions which expressly survive the termination of this Agreement. If Purchaser has not delivered a Termination Notice within the required time period in accordance with this Section, then Purchaser shall have no further right to terminate this Agreement pursuant to this Article, and this Agreement shall continue in full force and effect. |
ARTICLE XI. BROKER
| 11.1 | Broker. The parties hereto represent that neither party has engaged a broker in connection with this subject sale other than Kislak Commercial Real Estate Services, Inc. and Atlantic Real Estate Associates (collectively, “Brokers”). |
| 11.2 | Purchaser Indemnification. Purchaser warrants and represents to the Seller that there are no other brokerage commissions due to any broker by reason of Purchaser’s acts with respect to the sale of the Property and Purchaser agrees to indemnify and hold the Seller harmless with respect to any judgment, damages, legal fees, court costs and any liabilities of any nature whatsoever arising from breach of its representations. This paragraph shall survive the closing of title and delivery of the Deed. |
| 11.3 | Seller Indemnification. Seller warrants and represents to the Purchaser that there are no other brokerage commissions due to any broker by reason of Seller’s acts with respect to the sale of the Property (other than Brokers) and Seller agrees to indemnify and hold the Purchaser harmless with respect to any judgment, damages, legal fees, court costs and any liabilities of any nature whatsoever arising from breach of its representations. Seller shall be responsible for any commission due and payable to Brokers, to be split by Brokers pursuant to a separate written agreement, and to be paid at Closing. This paragraph shall survive the closing of title and delivery of the Deed. |
| -16- |
ARTICLE XII. ESCROW PROVISIONS
| 12.1 | Indemnification of Escrow Holder. Escrow Holder shall not be liable to any party for any act or omission except for bad faith or gross negligence, and the parties agree to indemnify Escrow Holder and hold Escrow Holder harmless from any claims damages, losses or expenses arising in connection herewith. The parties acknowledge that Escrow Holder is acting solely as a stakeholder for their convenience. Escrow Holder shall not be required to defend any legal proceedings which may be instituted against it with respect to the escrowed funds, the Property or the subject matter of this Agreement unless requested to do so by Seller and Purchaser and indemnified to its satisfaction against the cost and expense of such defense. Escrow Holder shall not be required to institute legal action or proceedings of any kind or nature and shall have no responsibility for the genuineness or validity of any document or other item deposited with it or the collectability of any check delivered in connection with this Agreement. Escrow Holder shall be fully protected in acting in accordance with any written instructions given to it hereunder and believed by it to be signed by the proper parties. |
| 12.2 | Interest on Deposit. All interest accruing on the Deposit shall follow the Deposit. The parties hereto shall provide Escrow Holder with their respective tax identification numbers at the time the Deposit is tendered to Escrow Holder. |
| 12.3 | Release of Deposit from Escrow. Upon receipt of a written notice from either party to disburse the Deposit, Escrow Holder shall give ten (10) days’ notice to both parties before delivering the Deposit to any party (except at Closing) and shall release the Deposit upon the expiration of said ten (10) day period, provided neither party has delivered notice to Escrow Holder in accordance with this Section prior to expiration of said period. |
| 12.4 | Dispute as to Release of Deposit. In the event Escrow Holder receives written notice of an objection to the release of the Deposit, Escrow Holder shall not release or deliver the Deposit to either party but shall either continue to hold the Deposit until otherwise directed in a writing signed by Purchaser and Seller, or by order of a court of competent jurisdiction or shall deposit the Deposit with the clerk of any court of competent jurisdiction in the State of New Jersey. Upon such deposit, Escrow Holder will be released from all duties and responsibilities hereunder. |
| 12.5 | Representation of Seller; Survival. Purchaser acknowledges that Escrow Holder also represents Seller and in the event of any dispute between Seller and Purchaser, Purchaser agrees that Escrow Holder may represent Seller with respect to those disputes. The provisions of this Article XII shall survive the closing of title and delivery of the Deed. |
ARTICLE XIII. RECORDING
| 13.1 | Neither this Agreement, nor a memorandum thereof, shall be recorded in any place of public record by the Purchaser, and any such recording shall be deemed a default by Purchaser hereunder. |
| -17- |
ARTICLE XIV. DEFAULT
| 14.1 | Purchaser’s Default. In the event Purchaser should default in its obligations under this Agreement, Seller may, at its election and as its sole and exclusive remedy at law or in equity, (i) institute and prosecute an action to compel specific performance hereunder by Purchaser, and (ii) seek such other remedy as may be available at law or in equity, including, without limitation, an action for actual and consequential damages (including, without limitation, attorneys’ fees), and, in such case, the Deposit shall continue to be held by Escrow Holder and subsequently applied against any and all damages that may be awarded by a court or other presiding body in connection therewith. |
| 14.2 | Seller’s Default. In the event Seller should willfully default in its obligations under this Agreement, Purchaser’s exclusive remedies shall be to either (i) seek specific performance of Seller’s obligations hereunder, or (ii) terminate this Agreement and receive the return of the Deposit, together with reimbursement by Seller of Purchaser’s reasonable cost of title searches and survey. If, for any reason other than Seller’s willful default, Seller shall be unable to deliver title to the Property in accordance with the provisions hereof, Purchaser’s sole remedy shall be to terminate this Agreement and receive the return of the Deposit. |
ARTICLE XV. REPRESENTATIONS AND WARRANTIES
| 15.1 | Purchaser’s Representations. Purchaser represents and warrants to, and covenants with, Seller as follows: |
| (a) | Purchaser’s Authorization. Purchaser (i) is duly organized (or formed), validly existing and in good standing under the laws of its States of organization/formation and, if applicable, in the State in which the Property is located, (ii) is authorized to consummate the Transaction and fulfill all of its respective obligations hereunder and under all documents contemplated hereunder to be executed by Purchaser, and (c) has all necessary power to execute and deliver this Agreement and all documents contemplated hereunder to be executed by Purchaser, and to perform all of its respective obligations hereunder and thereunder. This Agreement and all documents contemplated hereunder to be executed by Purchaser, have been duly authorized by all requisite partnership, membership or corporate action on the part of Purchaser and are the valid and legally binding obligation of Purchaser, as the case may be, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement and all documents contemplated hereunder to be executed by Purchaser, nor the performance of the obligations of Purchaser hereunder or thereunder will result in the violation of any law or any provision of the agreement of partnership or membership or articles of incorporation and by-laws of Purchaser or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Purchaser is bound. | |
| (b) | Purchaser’s Financial Condition. No attachment, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending against Purchaser. |
| -18- |
| 15.2 | Seller’s Representations. Seller represents and warrants to Purchaser as follows: |
| (a) | Seller’s Authorization. Seller (a) is duly organized, validly existing and in good standing under the laws of its State of organization and, if applicable, the State in which the Property is located, (b) is authorized to consummate the Transaction and fulfill all of its obligations hereunder and under all documents contemplated hereunder to be executed by Seller, and (c) has all necessary power to execute and deliver this Agreement and all documents contemplated hereunder to be executed by Seller and to perform its obligations hereunder and thereunder. This Agreement and all documents contemplated hereunder to be executed by Seller have been duly authorized by all requisite corporate action on the part of Seller and are the valid and legally binding obligation of Seller enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement and all documents contemplated hereunder to be executed by Seller nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the articles of organization or by-laws of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound. | |
| (b) | Other Seller’s Representations. To Seller’s knowledge (as defined in Subsection 15.3(a)): |
(i)
|
Except as listed in Exhibit I attached hereto and incorporated herein by this reference, Seller has not received any written notice of any current or pending or, to Seller’s knowledge, threatened litigation against Seller which would, in the reasonable judgment of Seller, if determined adversely to Seller, adversely affect the Property. | |
| (ii) | Seller has not entered into any lease, service, supply, maintenance, utility or other contracts affecting the Property or to which Seller is a party and which will be binding upon Purchaser after the Closing other than the Contracts listed in Exhibit B-2 attached hereto. | |
| (iii) | Except for defaults cured on or before the date hereof, Seller has not received any written notice of default under the terms of any of the Contracts except as listed in Exhibit I attached hereto. | |
| (iv) | Except for violations cured or remedied on or before the date hereof and except as listed in Exhibit I attached hereto, as of the date of this Agreement, Seller has not received any written notice from any governmental authority of any violation of any zoning, building, fire, or health code, statute, ordinance, rule or regulation applicable to Seller or the use or occupancy of the Property. |
| -19- |
| (v) | Seller has not received any written notice from any governmental agency that any special assessments are pending, noted or levied against the Property. | |
| (vi) | Seller is not a “foreign person” as defined by the Internal Revenue Code, Section 1445. | |
| (vii) | No attachment, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending against Seller. | |
| (viii) | Seller is not currently contesting any real estate taxes or personal property taxes for the Property. |
| 15.3 | General Provisions. |
| (a) | Definition of “Seller’s Knowledge”. All references in this Agreement to “Seller’s knowledge” or words of similar import shall refer only to the actual knowledge of Xxxxx Xxxxxxxxx (the “Designated Officer”) and shall not be construed to refer to the knowledge of any other officer, agent or employee of Seller or any affiliate thereof or to impose or have imposed upon the Designated Officer any duty to investigate the matters to which such knowledge, or the absence thereof, pertains, including, but not limited to, the contents of the files, documents and materials made available to or disclosed to Purchaser or the contents of files maintained by the Designated Officer. There shall be no personal liability on the part of the Designated Officer arising out of any representations or warranties made herein. | |
| (b) | Seller’s Representations Deemed Modified. To the extent that Purchaser knows or is deemed to know prior to the date hereof that Seller’s representations and warranties are inaccurate, untrue or incorrect in any way, such representations and warranties shall be deemed modified to reflect Purchaser’s knowledge or deemed knowledge, as the case may be. For purposes of this Agreement, (i) Purchaser shall be “deemed to know” that a representation or warranty was untrue, inaccurate or incorrect, (A) to the extent that any documents (the “Documents”) which the Seller has provided to Purchaser contain information from which a prudent person should have reasonably determined that such representation or warranty was untrue, inaccurate or incorrect; and (B) to the extent that this Agreement or any written studies, tests, reports, or analyses prepared by or for Purchaser or any of its employees, agents, representatives or attorneys (all of the foregoing being herein collectively called the “Purchaser’s Representatives”) or otherwise obtained by Purchaser or Purchaser’s Representatives contains information which is inconsistent with such representation or warranty; and (ii) Purchaser shall be deemed to know of a fact or circumstance to the extent that such fact or circumstance is disclosed by this Agreement, the Documents, or any written studies, tests, reports, or analyses prepared by or for Purchaser or any of Purchaser’s Representatives. |
| -20- |
ARTICLE XVI. COVENANTS
| 16.1 | Purchaser’s Covenants. Purchaser hereby covenants as follows: |
| (a) | Confidentiality. Purchaser acknowledges that any information heretofore furnished to Purchaser with respect to the Property has been so furnished on the condition that Purchaser shall maintain the confidentiality thereof. Accordingly, Purchaser shall take reasonable efforts (which shall be consistent with the procedures used by Purchaser to protect its own confidential information) to hold and to cause its directors, officers and other personnel and representatives to hold, in strict confidence, and not disclose to any other person (including, without limitation, the employees of Seller or any employees located at the Property) without the prior written consent of Seller until the Closing shall have been consummated, any of the information in respect of the Property delivered to or for the benefit of Purchaser whether by agents, consultants, employees or representatives of Purchaser or by Seller or any of its agents, representatives or employees, including, but not limited to, any information heretofore obtained by Purchaser or any of Purchaser’s Representatives in connection with any studies, inspections, testings or analyses conducted by Purchaser as part of its due diligence. In the event the Closing does not occur or this Agreement is terminated, Purchaser shall promptly return to Seller or destroy all copies of documents containing any of such information without retaining any copy thereof or extract therefrom. Notwithstanding anything to the contrary hereinabove set forth, Purchaser may disclose such information (i) on a need-to-know basis to its employees, members of professional firms serving it or potential lenders or investors, and (ii) as any governmental agency may require in order to comply with applicable municipal, county, state or federal statutes, codes, ordinances, laws, rules or regulations (herein collectively called “Laws”). Purchaser shall not communicate with any employees of Seller or employees working at the Property in connection with Purchaser’s due diligence inspection of the Property. The provisions of this Subsection 16.1(a) shall survive any termination of this Agreement. | |
| (b) | Purchaser’s Indemnity. Purchaser hereby agrees to indemnify, defend, and hold Seller, each of the other Seller Parties free and harmless from and against any and all costs, loss, damages and expenses, of any kind or nature whatsoever (including attorney’s fees and costs) arising out of or resulting from the breach of the terms of Subsection 16.1(a) or the entry and/or the conduct of activities upon the Property by Purchaser or any of Purchaser’s Representatives in connection with the inspections, examinations, testings and investigations of the Property conducted at any time prior to the Closing, which indemnity shall survive the Closing (and not be merged therein) or any earlier termination of this Agreement. |
| -21- |
| 16.2 | Mutual Covenants. |
| (a) | Publicity. Seller and Purchaser each hereby covenant that neither Seller nor Purchaser shall issue any press release or public statement (a “Release”) with respect to the Transaction without the prior reasonable consent of the other, except to the extent required by applicable Law. If either Seller or Purchaser is required by applicable Law to issue a Release, such party shall, at least two (2) business days prior to the issuance of the same, deliver a copy of the proposed Release to the other party for its review. | |
| (b) | Survival. The provisions of this Section 16.2 shall survive the Closing (and not be merged therein) or earlier termination of this Agreement. |
| 16.3 | Seller’s Covenants. Seller hereby covenants as follows: |
| (a) | Seller shall, at all times from the date hereof until the transfer of title to the Property, maintain the Property in its current condition, reasonable wear and tear and casualty excepted. | |
| (b) | Subsequent to the date hereof, Seller shall not enter into any lease agreement whether oral or written, with any party or allow any party to occupy or use the Property without the Purchaser’s written consent. | |
| (c) | Seller shall maintain property casualty insurance for the full replacement value of the Property until the Closing Date. |
ARTICLE XVII. [INTENTIONALLY OMITTED]
ARTICLE XVIII. [INTENTIONALLY OMITTED]
ARTICLE XIX. MISCELLANEOUS
| 19.1 | Purchaser’s Assignment. Purchaser shall not assign this Agreement or its rights hereunder to any individual or entity without the prior written consent of Seller, which consent Seller may grant or withhold in its sole discretion, and any such unpermitted assignment not consented to by Seller shall be null and void. Notwithstanding the foregoing, Purchaser may assign its rights under this Agreement to an affiliate of Purchaser without the prior consent of Seller; provided, however, that no such assignment will relieve Purchaser of its obligations hereunder. |
| 19.2 | Survival/Merger. Except for the provisions of this Agreement which are explicitly stated to survive the Closing, (a) none of the terms of this Agreement shall survive the Closing, and (b) the delivery of the Deed and any other documents and instruments by Seller and the acceptance thereof by Purchaser shall effect a merger, and be deemed the full performance and discharge of every obligation on the part of Purchaser and Seller to be performed hereunder. |
| -22- |
| 19.3 | Integration; Waiver. This Agreement, together with the Exhibits hereto, embodies and constitutes the entire understanding between the parties with respect to the Transaction and all prior agreements, understandings, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. No waiver by either party hereto of any failure or refusal by the other party to comply with its obligations hereunder shall be deemed a waiver of any other or subsequent failure or refusal to so comply. |
| 19.4 | Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of New Jersey. |
| 19.5 | Captions Not Binding; Exhibits. The captions in this Agreement are inserted for reference only and in no way define, describe or limit the scope or intent of this Agreement or of any of the provisions hereof. All Exhibits attached hereto shall be incorporated by reference as if set out herein in full. |
| 19.6 | Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. |
| 19.7 | Severability. If any term or provision of this Agreement or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by Law. |
| 19.8 | Notices. Any notice, request, demand, consent, approval and other communications under this Agreement shall be in writing, and shall be deemed duly given or made at the time and on the date when received by facsimile or electronic mail (provided that the sender of such communication shall orally confirm receipt thereof by the appropriate parties and send a copy of such communication to the appropriate parties within one (1) business day of such facsimile) or when personally delivered as shown on a receipt therefor (which shall include delivery by a nationally recognized overnight delivery service) or three (3) business days after being mailed by prepaid registered or certified mail, return receipt requested, to the address for each party set forth below. Any party, by written notice to the other in the manner herein provided, may designate an address different from that set forth below; |
| -23- |
| If to Purchaser: | |||
| Acellories, LLC | |||
| 00X 00xx Xxxxxx, Xxxx 000 | |||
| Xxxxxxxx, XX 00000 | |||
| Attention: Xxx Xxxxx / Xxxxxx Xxxxx | |||
| Facsimile: (000) 000-0000 | |||
| Email: xxx@xxxxxxxxxx.xxx / xxxxxx@xxxxxxxxxx.xxx. | |||
| With a Copy To: | |||
| Xxxxxxx & Light, P.C. | |||
| 000 Xxxx Xxx X, 00xx Xxxxx | |||
| Xxx Xxxx, Xxx Xxxx, XX 00000 | |||
| Attention: Xxxx Xxxxxxx, Esq. | |||
| Facsimile: (000) 000-0000 | |||
| Email:xxxxxxxx@xxxxxxxxxxxx.xxx | |||
| If to Seller: | |||
| Hemispherx Biopharma, Inc. | |||
| 0000 X.X. Xxxxxxx Xxxxxxxxx, Xxxxx 000 | |||
| Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 | |||
| Attention: Xxxxx Xxxxxxxxx | |||
| Facsimile: (000) 000-0000 | |||
| Email: Xxxxx.Xxxxxxxxx@Xxxxxxxxxx.xxx | |||
| With a Copy To: | |||
| XxXxxxxx & English, LLP | |||
| Four Gateway Center | |||
| 000 Xxxxxxxx Xxxxxx | |||
| Xxxxxx, Xxx Xxxxxx 00000 | |||
| Attention: Xxxx X. Xxxxxxxxx, Esq. | |||
| Facsimile: (000) 000-0000 | |||
| Email: xxxxxxxxxx@xxxxxxxx.xxx | |||
| If to Escrow Holder: | |||
| XxXxxxxx & English, LLP | |||
| Four Gateway Center | |||
| 000 Xxxxxxxx Xxxxxx | |||
| Xxxxxx, Xxx Xxxxxx 00000 | |||
| Attention: Xxxx X. Xxxxxxxxx, Esq. | |||
| Facsimile: (000) 000-0000 | |||
| Email: xxxxxxxxxx@xxxxxxxx.xxx |
| -24- |
| 19.9 | Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement. |
| 19.10 | Additional Agreements; Further Assurances. Subject to the terms and conditions herein provided, each of the parties hereto shall execute and deliver such documents as the other party shall reasonably request in order to consummate and make effective the Transaction; provided, however, that the execution and delivery of such documents by such party shall not result in any additional liability or cost to such party. |
| 19.11 | Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment hereof or Exhibit hereto. |
| 19.12 | Business Day. As used herein, the term “business day” shall mean any day other than a Saturday, Sunday, or any federal or state of New Jersey holiday. If any period expires on a day which is not a business day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a business day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding business day. |
| 19.13 | WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY PROCEEDINGS BROUGHT BY THE OTHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT OF IN ANY WAY CONNECTED WITH THE TRANSACTION, THIS AGREEMENT, THE PROPERTY OR THE RELATIONSHIP OF PURCHASER AND SELLER HEREUNDER. |
| 19.14 | Bulk Sales Act. |
(a) The parties acknowledge that the provisions of the New Jersey Sales and Use Tax Act, N.J.S.A. 54:32B-1 et seq. and N.J.S.A. 54:50-38 (collectively, “Bulk Sales Act”), are applicable to the sale of the Property by Seller. Purchaser shall submit the required Notification of Sale, Transfer or Assignment in Bulk (Form C-9600) (“Bulk Sale Notice”) and all required attachments to the New Jersey Department of the Treasury, Division of Taxation, Bulk Sales Section (“Section”) not later than fifteen (15) Business Days prior to Closing. Such filing shall be made by overnight delivery to the address specified by the Section for such filing by overnight delivery. Seller shall cooperate with the Purchaser in connection with such submission by supplying any other information necessary for Purchaser to file the Bulk Sales Notice.
(b) In the event that the New Jersey Division of Taxation requires that a portion of the Purchase Price be held in escrow for potential tax liabilities of Seller, Seller authorizes Purchaser to comply with such requirement and the Escrow Holder shall hold such amount, in escrow, and is authorized to disburse same upon receipt of authorizations, and in accordance with directions, from the Division of Taxation, and the balance of the escrow, if any, shall be paid to Seller. This paragraph shall survive the Closing.
| -25- |
| 19.15 | 1031 Exchange. Purchaser acknowledges that Seller may wish to sell the Property as part of a like-kind exchange pursuant to §1031 of the Internal Revenue Code, as amended, and the regulations promulgated thereunder. Purchaser shall cooperate with Seller in effectuating such exchange, provided, however, that Purchaser shall not be liable to Seller in the event the like kind exchange is not properly or timely consummated unless said failure is due to Purchaser ‘s willful act or omission, and Purchaser shall not be obligated to take title to any real property other than the Property. Seller may sell the Property through the use of a “qualified intermediary” within the meaning of Treasury Regulations §1.1031(k)-1(g)(4) (a “Qualified Intermediary”), as shall be selected by Seller. Purchaser shall take such actions and execute such documents as may be reasonably necessary to assist Seller in this regard, except that in no event shall Purchaser be required to (i) make any warranties or representations in addition to those contained herein, or (ii) assume any costs, liabilities or obligations in addition to those set forth herein. Purchaser further agrees to (x) permit Seller to assign its interest (but not its obligations, to the extent the same survive Closing in accordance with the terms of this Contract) to a Qualified Intermediary, as provided in Treasury Regulations §1.1031(k)-1(g)(4) on or before the Closing, and (y) remit payment of the Purchase Price to such Qualified Intermediary. |
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
| -26- |
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed on its behalf on the day and year first above written.
| SELLER: | ||
| HEMISPHERX BIOPHARMA, INC., | ||
| a Delaware corporation | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Vice President, Operations | |
Date: September _8__, 2017
| PURCHASER: | ||
| ACELLORIES, LLC, a New Jersey limited liability company | ||
| By: | /s/ Xxx Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Member | |
Date: September _11__, 2017
| ESCROW HOLDER: | |
| XxXXXXXX & ENGLISH, LLP | |
| /s/ XxXXXXXX & ENGLISH, LLP |
Date: September _11__, 2017
| -27- |
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B-1
INVENTORY OF PERSONAL PROPERTY
NONE
EXHIBIT X-0
XXXX XX XXXXXXXXX
XXXX
XXXXXXX X-0
[INTENTIONALLY OMITTED]
EXHIBIT C
TITLE EXCEPTIONS
EXHIBIT D
FORM OF DEED
D E E D
This Deed is made as of the ______ day of ______________, 2017
BETWEEN
_________________________, a ________________ __________________
whose address is ________________ , referred to as the Grantor.
AND
_________________________, a ________________ __________________,
whose address is ________________ , referred to as the Grantee.
The words “Grantor” and “Grantee” shall mean all Grantors and all Grantees listed above.
“Transfer of Ownership”. The Grantor grants and conveys (transfers ownership of) the property described below to the Grantee. This transfer is made for the sum of One Million Fifty Thousand and 00/100 ($1,050,000.00) Dollars. The Grantor acknowledges receipt of this money.
Tax Map Reference. (N.J.S.A. 46:15-2.1) Borough of East Newark
| Block No. 597.06 | Lot No. 3 | Qualifier No. | Account No. |
| [ ] | No Property tax identification number is available on the date of this deed. (Check box if applicable). |
| (a) | Property. The property consists of the land and all the buildings and structures on the land in the City of New Brunswick, County of Middlesex and State of New Jersey. The legal description is more particularly described as follows: |
Prepared By and Return To:
Xxxx X. Xxxxxxxxx
XxXxxxxx & English, LLP
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
See SCHEDULE “A” attached hereto and made a part hereof.
Being commonly known and designated as 0 Xxxxx Xxxx, Xxx Xxxxxxxxx, Xxx Xxxxxx.
Being the same premises conveyed to Grantor by Deed from _______________________________, dated ____________ ___, ______, recorded _____________ ____, _____, in the Clerk’s Office of the County of Xxxxxx, New Jersey, as __________________________________.
This conveyance is made subject to any and all mortgages, covenants, easements and restrictions of record affecting said premises, subsurface conditions, all governmental laws, ordinances and regulations regarding the use of said premises, and any state of facts which an accurate survey might show.
Promises by Grantor. The Grantor promises that the Grantor has done no act to encumber the property. This promise is called a “covenant as to grantor’s acts” (N.J.S.A. 46:4-6). This promise means that the Grantor has not allowed anyone else to obtain any legal rights which affect the property (such as by making a mortgage or allowing a judgment to be entered against the Grantor).
Promises by Grantee.
(a) Definitions. For the purposes of this Deed, the following terms shall have the meanings set forth below.
(i) “Environment” shall mean surface soils, subsurface soils, sediment, surface water, groundwater, wetlands, soil gas, ambient air or land, and all flora and fauna existing therein or thereon.
(ii) “Environmental Conditions” means any contamination or pollution or threatened contamination or pollution of, or the Release or threatened Release of Hazardous Materials into, the Environment, whether known or unknown and regardless of when such conditions first existed or arose.
(iii) “Environmental Laws” means all federal, regional, state, county or local laws, statutes, ordinances, decisional law, rules, regulations, codes, orders, decrees, directives and judgments relating to public health or safety, pollution, damage to or protection of the Environment, Environmental Conditions, Releases or threatened Releases of Hazardous Materials into the Environment or the use, manufacture, processing, distribution, treatment, storage, generation, disposal, transport or handling of Hazardous Materials, as the same are in effect on the date hereof, together with any amendments to the same and any new enactments adopted, promulgated or enacted after the date hereof, including, but not limited to, the Federal Water Pollution Control Act, 33 U.S.C. §§ 1231-1387; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6991 (“RCRA”); the Clean Air Act, 42 U.S.C. §§7401-7642; the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601-9675 (“CERCLA”); the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629; the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. (“ISRA”); the Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq, (the “SRRA”); the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the “Spill Act”); the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; the New Jersey Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq.; and the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.; and any and all rules and regulations promulgated thereunder.
(iv) “Hazardous Materials” shall mean any substances, materials or wastes, whether liquid, gaseous or solid, and any pollutant or contaminant, that is infectious, toxic, hazardous, explosive, corrosive, flammable or radioactive, or that is regulated under, defined, listed or included in any Environmental Laws, including without limitation, petroleum, polychlorinated biphenyls, asbestos and asbestos containing materials and urea formaldehyde.
(v) “Release” shall mean any intentional or unintentional release, discharge, burial, spill, leaking, pumping, pouring, emitting, emptying, injection, disposal or dumping into the Environment.
(b) Waiver and Release of Claims. Grantee shall, and shall cause its successors and assigns to, from and after the date hereof, waive and release and covenant not to xxx Grantor or any of Grantor’s officers, directors, employees, parents, subsidiaries, affiliates, agents, representatives, successors or assigns (the “Grantor Parties”) with respect to, any claims, rights, remedies or causes of action that Grantee or any of the Grantee Parties may have now or in the future or that may arise against Grantor or any of the Grantor Parties under Environmental Laws or any other theory of liability with respect to environmental matters of any kind or nature whatsoever respecting the property occurring or existing prior to, on or after the date hereof, including but not limited to any Environmental Conditions on, at, under or emanating from the property.
(c) Grantee’s Acknowledgment. Grantee acknowledges for itself and its successors and assigns and all future assignees, purchasers, transferees, grantees, operators, lessees and other persons taking any property right or interest in the property (the “Subsequent Grantees”) that (i) the covenants, releases and waivers set forth herein are for the benefit of Grantor and the Grantor Parties, and (ii) neither this Deed, nor any of the terms and conditions set forth herein, shall be extinguished, terminated, withdrawn, removed, amended or modified in any way without the prior written consent of Grantor.
(d) Binding Effect on Successors, Assigns and Subsequent Grantees. Grantee hereby notifies its successors and assigns and all Subsequent Grantees that the property is subject to the foregoing releases, waivers and covenants which shall run with, and shall be deemed to touch and concern, the property, and shall constitute obligations of, and conditions on the ownership or use of the property by, the Grantee and its successors and assigns and all Subsequent Grantees and, by receipt, acceptance and taking of any property right or interest in the property by a successor, assign or a Subsequent Grantee, such successor, assign and Subsequent Grantee shall have agreed to be subject to, and to comply with and abide by, all of the releases, waivers and covenants set forth herein and to satisfy the obligations of the Grantee under this Deed.
Signatures. The Grantor signs this Deed as of the date at the top of the first page.
| Witnessed by: | |||
| By: | |||
| Name: | |||
| Title: |
STATE OF NEW JERSEY, COUNTY OF _________________
BE IT REMEMBERED, that on this ____ day of _______________, 2017, before me, the subscriber, personally appeared _______________________ who, I am satisfied, is the person who signed the within instrument as _______________________ of __________________________, the limited liability company named therein and this person thereupon acknowledged that he/she is authorized to sign the within instrument on behalf of the limited partnership and that the said instrument made by the limited liability company was signed, sealed and delivered by this person as such _______________ and is the voluntary act and deed of the limited liability company, made by virtue of authority from its members.
| Notary Public/Attorney at Law | |
| State of New Jersey |
(i) D E E D
|
DATED: _______________ ___, 2017 |
_________________________, a ________________ __________________,
Grantor
- TO -
_________________________, a ________________ __________________,
Grantee
|
RECORD & RETURN TO:
|
SCHEDULE “A”
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT E
FORM OF XXXX OF SALE
THIS XXXX OF SALE (“Xxxx of Sale”), is made as of the ____ day of ____, ______ 201_ by and between _________________________, a ________________ __________________ (the “Seller”) and _________________________, a ________________ __________________ (the “Purchaser”).
WITNESSETH:
WHEREAS, by that certain Purchase and Sale Agreement (the “Sale Agreement”) dated as of ________ _____, ______, by and between Seller and Purchaser, Seller agreed to sell to Purchaser certain real property, and the improvements located thereon as more particularly described in Exhibit A attached hereto and incorporated herein by this reference, together with all improvements located thereon (the “Real Property”); and
WHEREAS, by deed of even date herewith, Seller conveyed the Real Property to Purchaser; and
WHEREAS, in connection with the above described conveyance Seller desires to sell, transfer and convey to Purchaser certain items of tangible personal property as hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration paid in hand by Purchaser to Seller, the receipt and sufficiency of which are hereby acknowledged, Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET OVER and DELIVERED and by these presents does hereby GRANT, SELL, TRANSFER, SET OVER and DELIVER to Purchaser, its legal representatives, successors and assigns, all of its right, title and interest in and to all tangible personal property owned by Seller (excluding any computer software which either (a) is licensed to Seller, or (b) Seller deems proprietary), located on the Real Property and used in the ownership, operation and maintenance of the Real Property as expressly set forth Exhibit A attached hereto, and all non-confidential books, records and files (excluding any appraisals, budgets, strategic plans for the Real Property, internal analyses, marketing information, submissions relating to Seller’s obtaining of corporate authorization, attorney and accountant work product, attorney-client privileged documents, or other information in the possession or control of Seller or Seller’s property manager which Seller deems proprietary) relating to the Real Property (herein collectively called the “Personal Property”), to have and to hold, all and singular, the Personal Property unto Purchaser forever. The Personal Property is being conveyed hereunder free from all liens.
This Xxxx of Sale is made without any covenant, warranty or representation by, or recourse against, Seller, as more expressly set forth in the Sale Agreement and the documents executed in connection therewith. By acceptance of this Xxxx of Sale, Purchaser specifically acknowledges that, except for Seller’s representations and warranties set forth in Section 15.2 of the Sale Agreement, Purchaser is not relying on (and Seller, for itself and for its counsel, its sales agents, each partner, member, officer, director, employee, agent and attorney of Seller, its counsel, and its sales agents, and any other party related in any way to any of the foregoing (all of which parties are herein collectively called the “Seller Parties”), does hereby disclaim and renounce) any representations or warranties of any kind or nature whatsoever, whether oral or written, express, implied, statutory or otherwise, from Seller or any other Seller Parties, including, without limitation, any covenant, representation or warranty regarding or relating to (a) the operation of the Personal Property or uses or merchantability or fitness of any portion of the Personal Property for a particular purpose; or (b) the physical condition of the Personal Property or the condition or safety of the Personal Property or suitability of the Personal Property for a particular purpose. Seller hereby disclaims and, by its acceptance of this Xxxx of Sale Purchaser hereby waives and releases, any implied or statutory warranties or guaranties of fitness, merchantability or any other statutory or implied warranty or guaranty of any kind or nature regarding or relating to the Personal Property. Purchaser acknowledges and agrees that the provisions of this paragraph were a material factor in Seller’s agreement to convey the Personal Property to Purchaser and Seller would not have conveyed the Personal Property to Purchaser unless Seller and the other Seller Parties are expressly released and Purchaser waives the rights as set forth in this paragraph.
This Xxxx of Sale may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK – SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the undersigned have executed this Xxxx of Sale as of the date first set forth hereinabove.
| _________________________, | ||
| a ________________ __________________ | ||
| By: | ______________________________________ | |
| Name: | ||
| Title: | ||
| ACCEPTED: | ||
| _________________________, | ||
| a ________________ __________________ | ||
| By: | ______________________________________ | |
| Name: | ||
| Title: | ||
EXHIBIT A
INVENTORY OF PERSONAL PROPERTY
NONE
EXHIBIT F
[INTENTIONALLY OMITTED]
EXHIBIT G
FORM OF ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT OF CONTRACTS (“Assignment”) is made as of the ____ day of ______, 2017 by and between _________________________, a ________________ __________________ (the “Assignor”) and _________________________, a ________________ __________________ (the “Assignee”).
WITNESSETH:
WHEREAS, by Purchaser and Sale Agreement (the “Sale Agreement”) dated as of ____ ______, _______, by and between Assignor and Assignee, Assignor agreed to sell to Assignee certain real property, and the improvements located thereon (the “Property”) as more particularly described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that Assignor shall assign to Assignee rights to certain intangible property and that Assignee shall assume all of the obligations of Assignor under such intangible property from and after the date of such assignment, and that Assignor and Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto hereby agree as follows:
| 1. | Assignment of Contracts, Licenses and Permits. Assignor hereby assigns, sets over and transfers to Assignee all of its right, title and interest in, to and under if and to the extent assignable by Assignor without expense to Assignor, (a) all service, supply, maintenance, utility and commission agreements, all equipment leases, and all contracts, subcontracts and agreements relating to the construction of any unfinished tenant improvements described in Exhibit A attached hereto and incorporated herein by this reference (herein collectively called the “Contracts”), and (b) to the extent that the same have been obtained by Assignor prior to the date hereof, any licenses, permits and other written authorizations necessary for the use, operation or ownership of the Property (herein collectively called the “Licenses and Permits”). Assignee hereby assumes and takes responsibility for all losses, costs, claims, liabilities, expenses, demands and obligations of any kind or nature whatsoever attributable to the Contracts and the Licenses and Permits arising or accruing after the date hereof attributable to events or circumstances which may occur on or after the date hereof. Assignor shall remain liable for all losses, costs, claims, liabilities, expenses, demands and obligations of any kind or nature whatsoever attributable to the Contracts and the Licenses and Permits arising or accruing prior to the date hereof. |
| 2. | Assignment of Warranties and Guarantees. Assignor hereby assigns, sets over and transfers to Assignee all of its right, title and interest in, to, and under those certain warranties and guarantees set forth in Exhibit B attached hereto and incorporated herein by this reference, to the extent assignable. |
| 3. | Miscellaneous. This Assignment and the obligations of the parties hereunder shall survive the closing of the transaction referred to in the Sale Agreement and shall not be merged therein, shall be binding upon and inure to the benefit of the parties hereto, their respective legal representatives, successors and assigns, shall be governed by and construed in accordance with the laws of the State of New Jersey applicable to agreements made and to be wholly performed within said State and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith. |
| 4. | Counterparts. This Assignment may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement. |
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the date first set forth hereinabove.
| ASSIGNOR: | ||
| _________________________, | ||
| a ________________ __________________ | ||
| By: | ______________________________________ | |
| Name: | ||
| Title: | ||
| ASSIGNEE: | ||
| _________________________, | ||
| a ________________ __________________ | ||
| By: | ______________________________________ | |
| Name: | ||
| Title: | ||
EXHIBIT H
FORM OF FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a United States real property interest by _________________________, a ________________ __________________ (the “Seller”), the undersigned hereby certify the following on behalf of Seller:
| 1. | Seller is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); and |
| 2. | Seller’s U.S. employer tax identification number is ________________; and |
| 3. | Seller’s office address is _________________________________________________. |
Seller understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
The undersigned officers of the Seller declare that they have examined this certification and to the best of their knowledge and belief it is true, correct and complete, and they further declare that they have authority to sign this document on behalf of Seller.
Dated: _______ _____, 2017
| _________________________, | ||
| a ________________ __________________ | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT I
LITIGATION NOTICES, CONTRACT DEFAULTS
AND GOVERNMENTAL VIOLATIONS
NONE
EXHIBIT J
[INTENTIONALLY OMITTED]
