AGREEMENT OF PURCHASE AND SALE
THE CITY OF NEW YORK
DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES
0 XXXXXX XXXXXX, 00XX XXXXX XXXXX
XXX XXXX, XXX XXXX 00000
&
NATIONAL MICRONETICS, INC.
00 XXXXX XXXXXX
XXXXXXXX, XXX XXXX 00000
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Premises: 00-00 Xxxxx Xxxxxx
A two-story steel-framed light manufacturing building
of approximately 82,678 square feet
(Section 56.025, Tax Block 4, Lot 39)
and a parking lot,
00-00 Xxxxxxxx Xxxxxx
(section 56.025, Tax Block 4, Lot P/O 45 ) and
00 Xxxxx Xxxxxx
(Section 56.025, Xxx Xxxxx 0, Xxx X/X 00.0)
Xxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx
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*****
NOVEMBER 4, 1998
THIS AGREEMENT, dated as of _______, between National Micronetics, Inc., a
corporation having an address at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Seller") and The City of New York, a municipality acting by and through the
Department of Citywide Administrative Services, having an address at Xxx Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Purchaser").
W I T N E S S E T H:
Seller and Purchaser agree as follows:
1. Premises. Subject to, and in accordance with, all terms and conditions,
and based upon all representations and warranties set forth in this Agreement,
on the Closing Date (hereinafter defined), Seller shall sell and convey to
Purchase, and Purchaser shall purchase from Seller, the following (collectively,
the "Premises"):
(a) the land, more particularly described in Exhibit A and having
the street address of 00-00 Xxxxx Xxxxxx (Section 56.025, Tax Xxxxx 0, Xxx
00), 00-00 Xxxxxxxx Avenue (Section 56.025, Tax Block 4, P/O Lot 45) and
00 Xxxxx Xxxxxx (Section 56.025, Tax Block 4, P/O Lot 48.1) Kingston
(Ulster County), New York (known collectively as the "Land");
(b) all buildings and improvements situate on the Land
(collectively, the "Building");
(c) all right, title and interest of Seller, if any, in and to the
land lying in the bed of any street or highway in front of or adjoining
the Land to the center line thereof and to any unpaid award or any taking
by condemnation for any damage to the Land by reason of a change of grade
of any street or highway;
(d) the appurtenances and all the estate and rights of Seller in and
to the Land and Building; and
(e) all right, title and interest of Seller, if any, in and to the
fixtures and equipment that are attached to or appurtenant to the
Building.
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2. Purchase Price. The purchase price is Two Million Four Hundred Thousand
Dollars ($2,400,000), payable by Purchaser to Seller as follows:
On the Closing Date (as hereinafter defined), by bank check drawn on
a New York Clearing House member bank and payable to the direct
order of such payee or payees as Seller may designate by notice to
Purchaser delivered a reasonable time prior to the date of the
Closing.
3. Conditions Precedent.
a. The obligations of Seller to sell the Premises on the Closing
date shall be subject to the satisfaction, at the time of the Closing, of the
following conditions (any of which may be waived by Seller): that Purchaser
delivers to Seller each of the items required to be delivered by Purchaser and
takes all of the actions required to be taken by Purchaser under Section 6 and
(B) Purchaser shall have performed, observed and complied with all covenants,
agreements and conditions required by this Agreement to be performed, observed
and complied with on its part prior to or as of the Closing Date.
b. The obligations of Purchaser to purchase the Premises on the
Closing Date shall be subject to the satisfaction, at the time of such Closing,
of the following conditions (any of which may be waived by Purchaser): (A) that
the representations and warranties of Seller set forth in Section 8 were true
and correct in all material respects when made and are true and correct in all
material respects on the Closing Date, (B) that Seller delivers to Purchaser
each of the items required to be delivered by Seller and takes all of the
actions required to be taken by Seller under Section 6, and (C) Seller shall
have performed, observed and complied with all covenants, agreements and
conditions required by this Agreement to be performed, observed and complied
with on its part prior to or as of the Closing Date.
4. Title Exceptions. Purchaser shall obtain a title report from a
reputable title insurance company for the Premises and immediately deliver a
copy thereof to Seller within ten (10) days after mutual execution and delivery
of this Agreement. Purchaser waives any objection to and agrees to accept the
Permitted Exceptions set forth in Exhibit B hereto.
a. Upon receipt of such notice, Seller shall have the right, but not
the obligation, to seek to eliminate, cure or correct such exceptions to title.
Seller shall notify Purchaser of its election not later than seven (7) days
after receipt of Purchaser's notice. If Seller elects to seek to cure or correct
same, then (1) Seller shall have the right to adjourn
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the Closing Date for the Premises for such period, not to exceed one hundred
twenty (120) days as shall, in Seller's discretion reasonably exercised, be
required in order to cure such exceptions to title, and (2) if such exceptions
to title can only be satisfied by the payment of money, Seller shall be entitled
to apply a portion of the purchase price payable on such Closing Date in order
to cure or correct same. If Seller fails to notify Purchaser of its election to
either seek or not to seek to cure such exceptions to title, Seller shall be
deemed to have elected to cure same.
b. If Seller elects not to cure all exceptions to title on the
Premises, Purchaser may, at its election, (1) proceed with the Closing and take
title to the Premises subject to such exceptions to title provided Purchaser and
Seller have agreed upon a reasonable reduction of the Purchase Price, or (2)
terminate this Agreement by written notice to Seller, in which case neither
party shall have any further obligation to the other under this Agreement.
5. Closing Date. The consummation of the sale of Premises (the "Closing")
shall take place at the offices of the Purchaser at 000 Xxxxxx Xxxxxx, Xxx Xxxx,
XX 00000 at 10:00 A.M. on a day not later than ninety (90) days after mutual
execution of this Agreement on such date as may be determined by mutual
agreement between Seller and Purchaser.
6. Closing Deliveries. At the Closing, the following actions shall be
taken, all of which will be deemed taken simultaneously and no one of which will
be deemed completed until all have been completed:
A. Seller shall deliver to Purchaser:
(i) a bargain and sale deed with covenants against grantor's
acts, including the covenant in the form required by Subdivision 5 of
Section 13 of the Lien Law in proper statutory form for recording, duly
executed and acknowledged by Seller so as to convey title to the Purchaser
in fee simple absolute, free and clear of all liens and encumbrances
except as herein stated;
(ii) a check to the order of Purchaser or the appropriate
recording officers for the amount of the New York State transfer tax
payable by reason of delivery of the deed, together with any required tax
return executed by Seller;
(iii) a certification of Non-Foreign Status under FIRPTA;
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(iv) the originals, to the extent in Seller's possession, of
all agreements affecting the Premises, plans, drawings, surveys,
warranties, licenses and permits;
(v) any and all documents, affidavits and agreements
reasonably required to issue a title policy from a reputable title
insurance company;
(vi) a Certificate of Occupancy valid for the existing use of
the Premises;
(vii) a Subdivision Map of Section 56.025, Tax Block 4, P/O
Lots 45 and 48.1 approved by the City of Kingston and all applicable
governmental authorities (the "Parking Lot"), which lot shall provide
Purchaser with at least one hundred sixty (160) parking spaces as shown on
the schematic plan attached hereto as Exhibit C. Seller acknowledges that
such Subdivision Map must comply with all applicable regulations or
ordinances with respect to the amount of parking spaces allocated to the
Premises. In the event the City of Kingston or applicable governmental
authority makes approval of the Subdivision Map subject to the provision
of additional parking spaces, then Seller shall revise the Subdivision
Map, subject to Purchaser's reasonable approval, to provide the required
additional parking spaces; and
(viii) demolish the passageway between the Premises and the
adjacent structure and repair per the scope of work attached hereto as
Exhibit D.
B. Purchaser shall (i) pay the purchase price and (ii) complete and
execute, to the extent necessary, the returns delivered by Seller and cause the
same, together with the checks delivered by Seller, to be remitted to the
appropriate offices promptly after the Closing.
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C. Purchaser agrees to accept a title such as a reputable title company
will insure, subject only to the exceptions and conditions contained in this
contract, at such title company's regular rates and without special endorsement.
D. Seller and Purchaser shall apportion the following on an accrual basis
as of midnight on the day preceding the Closing:
(a) real estate taxes, water charges and sewer rents; and
(b) utilities and fuel, if any, and vault charges, if any.
Seller shall furnish a reading to a date not more than ten (10) days
prior to the Closing for any water meter on the Premises and the unfixed meter
charge and sewer rent, if any, for the intervening time shall be apportioned on
the basis of such reading.
7. Violations. All notes or notices of violations of law or municipal
ordinances, orders or requirements noted in or issued by the Departments of
Housing Preservation and Development, Buildings, Fire, Labor, Health or any
other state or municipal department having jurisdiction against or affecting the
Premises shall be complied with by Seller and the Premises shall be conveyed
free of the same, and this provision shall survive the Closing. Seller shall
furnish Purchaser with any required authorizations to make the necessary
searches therefor. Any violations shall be considered a title exception and
allow Seller or Purchaser the same right to eliminate, cure or correct such
violation as if such violation was a title exception under Section 4.
8. Representations.
8.1 (a) The Seller has full power, authority, legal right and capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement, including, without limitation, all agreements to be
executed in connection herewith by the Seller, have been or by closing will have
been effectively authorized by all necessary action, corporate or otherwise, by
the Seller, including, without limitation, any authorization by the board of
directors and shareholders of the Seller required by state law and constitute,
or upon execution will constitute, legal, valid and binding obligations of the
Seller enforceable in accordance with their respective terms.
(b) True and complete copies of all deeds, title insurance policies,
surveys, mortgages, agreements and other documents granting to Seller title to,
or an interest in, or otherwise affecting the Premises (the "Title Documents")
have been delivered to the Purchasers. With respect to the title Documents, no
breach or event of default on the part
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of Seller, no breach or event of default on the party of any other party thereto
and no event that, with the giving of notice or lapse of time or both, would
constitute such breach or event of default under any term, covenant or condition
of such Title Documents, have occurred and are continuing unremedied.
(c) Seller has good and marketable title in fee simple to the
Premises and to all plants, buildings and improvements thereon, free and clear
of any mortgages, liens, security interests, claims, charges imperfections of
title, encroachments, easements, rights-of-way, squatters' rights, encumbrances,
covenants, conditions or restrictions, except for the Permitted Exceptions or
which are disclosed in the title report and which are Seller's obligation to pay
at or prior to the Closing.
(d) The Premises and buildings and improvements being sold to the
Purchaser, and the operation or maintenance thereof as operated and maintained,
do not (i) contravene any zoning or building law or other administrative
regulation, including, but not limited to, fire, health and safety; or (ii)
violate any covenants or applicable federal, state or local law. All of the
equipment being sold to the Purchaser is in working order.
(e) There is no pending or threatened condemnation or eminent domain
proceeding with respect to, or that could affect, the Premises.
8.2 (a) (i) Seller, nor to best knowledge of Seller, has any previous
owner, tenant, occupant or user of the Premises, engaged in or allowed any
operation or activity upon, or any use or occupancy of, the Premises for the
purpose of, or in any way involving the handling, manufacture, treatment,
storage, use, generation, release, discharge, refining, dumping or disposal of
any Hazardous Materials as defined in Section 8.2(9b) on, under, in or in or
about the Premises, or transported any Hazardous Materials to, from or across
the Premises. No Hazardous Materials currently are produced, constructed,
deposited, stored or otherwise located on, under, in or about any premises.
(ii) No asbestos in any form is constructed, placed, deposited,
stored, disposed of or located on the Premises.
(iii) No Hazardous Materials have migrated or, due to their
location, threaten to migrate, from the Premises upon or beneath other
properties, and no Hazardous Materials have migrated or, due to their location,
threaten to migrate, from other properties upon or beneath the Premises.
(iv) No underground improvement, including, without limitation,
treatment
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or storage tank or water, gas or oil well, is or ever has been located on the
Premises. All inoperable water, gas or oil xxxxx, if any, have been filled
and/or capped in full compliance with all Environmental Requirements (as defined
in Section 8.2(b)). All underground storage tanks, if any, have been exhumed and
disposed of, and all contaminated portions of the Premises, if any, and ground
water have been remediated in full compliance with all Environmental
Requirements to the satisfaction of the appropriate Governmental Authority.
(v) No polychlorinated biphenyl ("PCBs") or transformer,
capacitor, ballast or other equipment containing PCBs at levels in excess of
fifty (50) parts per million or insulating material containing urea formaldehyde
is constructed, placed, deposited, stored, disposed of or located on the
Premises.
(vi) The Premises and all current and, to the best knowledge of
the Seller, past activities thereon, including without limitation, the use,
maintenance and operation of the Premises and all activities and conduct of
business related thereto, currently comply and, to the best knowledge of the
Seller, at all times in the past have complied with all Environmental
Requirements.
(vii) Seller, nor to the best knowledge of the Seller, has any
prior owner or occupant of the Premises, received any notice or other
communication concerning or has any knowledge of (A) any violation or alleged
violation of Environmental Requirements or (B) any liability or alleged
liability for environmental damages in connection with the Premises. No writ,
injunction, decree, order or judgment relating to the foregoing is outstanding.
To the best knowledge of the Seller, there is no lawsuit, claim, proceeding,
citation, directive, summons or investigation, pending or threatened relating to
the ownership, use, maintenance or operation of the Premises, or relating to any
alleged violation of any applicable Environmental Requirements or the presence
on the Premises of any Hazardous Materials.
(b) For the purposes of this Agreement, including without
limitation, all other agreements to be executed in connection herewith by the
Seller:
(i) "Hazardous Materials" means any substance: (A) the
presence of which requires investigation or remediation under any federal, state
or local statute, regulation, ordinance, order, action or policy or common law;
(B) that is or becomes defined as a "hazardous waste" or "hazardous substance"
under any federal, state or local state, regulation or ordinance; (C) that is
toxic, explosive, corrosive, flammable, ignitable, reactive, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board
or
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instrumentality; (D) the presence of which on the Premises causes or threatens
to cause a nuisance upon the Premises or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about the
Premises; (E) the presence of which on adjacent properties could constitute a
trespass by the Seller; (F) that contains gasoline, diesel fuel or other
petroleum hydrocarbons; provided, however, that this definition shall not
include gasoline, diesel fuel or other petroleum hydrocarbons that are used in
the ordinary course of the land user's operations in a manner consistent with
industry practice and in compliance with all Environmental Requirements; or (G)
that contains PCBs, asbestos or urea formaldehyde foam insulation.
(ii) "Environmental Requirements" means all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises and similar items, now
in effect, for all governmental agencies, departments, commissions, boards,
bureaus or instrumen- talities, having jurisdiction and all covenants running
with the land that relate to the existence, handling, manufacture, treatment,
storage, use, generation, release, discharge, refining or disposal of Hazardous
Materials on, under, in or about the Premises.
(iii) "Governmental Authority" means any court, agency,
commission, board or other administrative or governmental body of the United
States.
(c) the Seller has complied in all material respects with all
Environmental Requirements. Following Closing, the Purchaser assumes all
responsibility for Environmental Requirements with respect to Hazardous
Materials brought upon the Premises after such Closing and Seller shall have no
responsibility or liability therefor following Closing.
9. Damages. In the event this Agreement is terminated due to either
party's default in the performance of its obligation hereunder, then, if Seller
is the defaulting party, Purchaser shall be entitled to pursue any and all
remedies available at law or in equity, including, but not limited to, specific
performance. In the event Purchaser is the defaulting party, then the parties
have agreed that three percent (3%) of the purchase price shall be paid to
Seller as agreed upon liquidated damages, it being acknowledged that Seller's
damages from Purchaser's default might be impossible to ascertain, and that this
amount constitutes a fair and reasonable amount for Seller's damages and is not
a penalty. Thereafter, neither party shall have any responsibility or obligation
to the other under or pursuant to this Agreement.
10. Entire Agreement. This Agreement is not to be recorded and may not be
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changed, modified or terminated except by written instrument executed by the
parties hereto. This Agreement, including the Exhibits attached hereto, contains
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior understandings, if any, with respect thereto.
This Agreement may not be modified, changed or supplemented, nor may any
obligations hereunder be waived, except by written instrument signed by the
party to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto. This
provision shall survive the Closing.
11. Governing Law. This Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with the laws of the State of New York.
12. Jurisdiction. The parties hereto irrevocably and unconditionally
submit themselves to the general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
New York, and the appellate courts thereof, in any legal action or proceeding
arising under this Agreement or in any way related hereto.
13. Non-Waiver of Rights. No failure or delay of either party in the
exercise of any right given to such party hereunder shall constitute a waiver
thereof unless the time specified herein for exercise of such right has expired,
nor shall any single or partial exercise of any right preclude other or further
exercise thereof or of any other right. The waiver of any breach hereunder shall
not be deemed to be a waiver of any other or any subsequent breach hereof.
14. Rules of Construction. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted.
15. Exhibits. Each of the Exhibits and Schedules referred to herein and
attached hereto is an integral part of this Agreement and are incorporated
herein by this reference.
16. Pronouns; Joint and Several Liability. All pronouns and any variation
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the parties may require. If the Purchaser consists
of two or more parties, the liability of such parties shall be joint and
several.
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17. Further Assurances. Seller and Purchaser each agree to do such further
acts and things and to execute and deliver such additional agreements and
instruments as the other may reasonably require to consummate, evidence or
confirm the sale or any other agreement contained herein in the manner
contemplated hereby.
18. No Assignment. Purchaser shall have no right to assign this Agreement
or its rights hereunder without the express written consent of Seller.
19. Notices. Any notice required to be given shall be in writing and shall
be sent by facsimile and certified mail return receipt requested, or by
facsimile and nationally recognized overnight carrier, and addressed to
Purchaser or to Seller at the addresses set forth below:
Assistant Commissioner for Acquisitions
Department of Citywide Administrative Services
Division of Real Estate Services
0 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
and
Xxxxxxx Xxx, Ph.D.
National Micronetics, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
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Either party may change its address as set forth herein by notice to the other
in the manner provided for herein. Notice shall be deemed given as of the day of
mailing or, if by facsimile, then as of the time stamp confirmation of the
sending machine.
20. Attorney's Fees. Should either party institute any action or
proceeding to enforce this Agreement or any provision hereof, or for damages by
reason of any alleged default under or breach of this Agreement or of any
provision hereof, or for a declaration of rights hereunder, then, each party
shall bear the responsibility for its own fees and costs, including legal fees
incurred in any such action.
21. Titles and Headings. Titles and headings of Articles and Sections of
this Agreement are for convenience of reference only and shall not affect the
construction of any provision of this Agreement.
22. Binding Effect. This Agreement shall bind and inure to the benefit of
the parties and their respective successors and assigns.
23. Brokerage Fees. Seller represents to Purchaser that it has not dealt
with any broker in connection with this Agreement other than Xxxxxx X. Xxxxxxx,
Inc., and Xx Xxxxxxxx Realty (collectively, the "Brokers"). Seller shall pay any
commission owing to the Brokers pursuant to separate written agreements. Seller
hereby indemnifies and holds Purchaser harmless against all loss, damage,
liability, cost and expense of any nature (including reasonable attorney's fees
and disbursements) based on any claim by any party other than the Brokers with
whom Seller or its agent or representative have dealt for a commission or other
compensation in connection with this Agreement which is based on the actions of
Seller or its agents or representatives. The indemnified party shall (i)
cooperate with the indemnifying party in any defense and (ii) not settle a
claim, liability or action for which the indemnifying party has the obligation
to defend or indemnify without the indemnifying party's consent. The foregoing
indemnifications shall survive any expiration or termination of this Agreement.
24. Acknowledgements of Purchaser Re Inspection of Premises. Purchaser
acknowledges that: Purchaser has inspected the Premises, is fully familiar with
the physical condition and state of repair thereof and, subject to the
provisions of Section 7 and Section 8, shall accept the Premises "AS IS" and in
their present condition, except as set forth in Exhibit "D" and subject to
reasonable use, wear, tear and natural deterioration between now and the Closing
date, without any reduction in the Purchase Price for any change in such
condition by reason thereof subsequent to the date of this Agreement. Seller
shall bear risk
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of loss due to fire, flood or other casualty, and, in the event of such loss or
damage, Purchaser shall have the right to cancel the sale.
25. Limitation on Survival of Representations, Warranties, Covenants and
Other Obligations.
(a) Except as otherwise provided in this Agreement, no
representations, warranties, covenants or other obligations of Seller set forth
in this Agreement shall survive the Closing and no action based thereon shall be
commenced after the Closing.
(b) The delivery of the deed by Seller and the acceptance thereof by
Purchaser shall be deemed the full performance and discharge of every obligation
on the part of Seller to be performed hereunder, except those obligations of
Seller which are expressly stated in this Agreement to survive the Closing.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
on the date first above written.
SELLER: NATIONAL MICRONETICS, INC.
By:
---------------------------------
Name: Xxxxxxx Xxx
Title: Vice President and Chief
Operations Officer
PURCHASER: THE CITY OF NEW YORK
By:
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Deputy Commissioner
Department of Citywide
Administrative Services
APPROVED AS TO FORM:
--------------------------
Acting Corporation Counsel
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