Exhibit 10.1
AGREEMENT OF SALE
THIS AGREEMENT for sale of real estate is made and entered into this
24th day of February 24, 2003, by and between:
YARDVILLE NATIONAL BANK, a National Banking Association
2465 Kuser Road
Hamilton, NJ 08690
hereinafter referred to as "Seller"
- -and-
CHRISTOPHER S. VERNON
c/o Mercer Management & Development Co.
PO Box 5471
Trenton, New Jersey 08638
hereinafter referred to as "Purchaser".
W I T N E S S E T H
WHEREAS, Seller is the owner of a certain parcel of land as more fully
described on Exhibit "A" attached hereto and made a part hereof, together with
the buildings and improvements thereon erected, and known as Lots 3, 4, 5 & 6,
Block 2666, on the current Township of Hamilton Tax Map in Mercer County, New
Jersey, (hereinafter the "Premises").
WHEREAS, Seller desires to sell the Premises and Purchaser desires to
purchase same, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and for other good and valuable consideration and each party
intending to be legally bound hereby, the parties hereto do agree as follows:
1. Sale of Premises. Subject to all of the terms, covenants, conditions
and provisions hereinafter set forth, Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, the Premises.
2. Purchase Price. The Purchase Price for the Premises (the "Purchase
Price") shall be Six Hundred Fifty Thousand Dollars ($650,000.00), and shall be
paid at closing in certified check, cashier's check, or attorney trust account
check.
3. Condition of Title. The sale shall include all the structures and
improvements, if any, and a good and marketable fee simple title to the
Premises, free from all liens and encumbrances, except as follows:
(a) Any state of facts which an accurate survey would show, provided
the same does not render the title unmarketable or reflect any encroachments
over the lot lines.
(b) Zoning requirements and municipal building restrictions and all
other laws, ordinances, regulations or restrictions or other lawful right or
authority now or hereafter adopted which would not prohibit the use of the
premises as an office building.
(c) Other easements, covenants and restrictions of record, if any,
provided the same do not make the title uninsurable or unmarketable or prevent
the lawful use of the premises as at present and as set forth in 3(b) above.
(d) Any assessment or assessments for municipal improvements,
construction of which is commenced after the date of this agreement and
thereafter becoming liens on the said premises. The Seller represents and
warrants that to its knowledge there are no existing or partly constructed
municipal improvements affecting the premises which have not been assessed and
fully paid for nor are there prospective municipal improvements affecting the
premises authorized by any ordinance duly adopted by the governing body of the
municipality in which said premises are situate for which it has received any
formal or informal notices.
(e) The rights of utility companies to maintain poles, wires, cables
and pipes over, on and under the street, the part of the Premises adjoining the
street, or running to any improvements on the Premises so long as same do not
prevent the use of the Premises as an office building.
4. Settlement. Settlement hereunder (the "Settlement") shall take place
on or about April 5, 2003 at the office of the Seller, 2465 Kuser Road,
Hamilton, New Jersey.
5. Provisions with Respect to Settlement. At Settlement, Seller shall
deliver, or cause to be delivered, to Purchaser, at Seller's sole cost and
expense, each of the following:
(a) Deed. A Bargain and Sale Deed with Covenants Against Grantor's Acts
conveying title to the Premises and the non-exclusive right to utilize all
easements needed to service the operation of Buyer's building duly executed and
acknowledged by Seller in proper recordable form.
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(b) Possession. Possession of the Premises, unoccupied and free and
clear of any leases, tenancies claims to or rights of use or possession.
(c) Owner's/Seller's Affidavit. An owner's/seller's affidavit in form
and substance acceptable to the title company which is sufficient to cause the
title company to remove those standard exceptions in the title policy relating
to possession of the Premises, liens and other similar matters.
(d) Resolution. A resolution authorizing the sale on behalf of the
Corporation.
(e) Other Documents. Such other documents as may be reasonably required
by the title company or as may be agreed upon by Seller and Purchaser to
consummate the Settlement.
6. Taxes: Apportionments.
(a) All realty transfer taxes hereunder (if any) imposed on or arising
in connection with this transaction shall be paid by Seller at Settlement.
(b) Real estate taxes, water and sewer, and all other apportionable
charges shall be apportioned as of Settlement on a per diem basis as per normal
Mercer County settlement practice.
7. Condition of Premises. Seller makes no warranties with respect to
the value of the Premises being sold. Purchaser will purchase said Premises "As
Is", and Seller makes no representations or warranties with respect to said
Premises other than as expressly stated herein. Purchaser acknowledges that it
has an opportunity to conduct certain inspections pursuant to this Agreement,
such inspections including engineering, soil, septic and termite, of the
Premises, and has not entered into this Agreement based on any representations
or warranties of Seller regarding engineering, soil, septic or termite matters.
8. Project Inspection.
(a) Purchaser shall have thirty (30) days from receipt of a fully
executed copy of this Agreement (the "Due Diligence Period") to conduct such
engineering, environmental and other studies and inspections of the physical
condition of the Premises as Purchaser, in its absolute discretion, deems
necessary or appropriate. Such studies and inspections shall be at Purchaser's
sole cost and expense.
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(b) If during the Due Diligence Period Purchaser discovers any defect
in structure, systems, and fixtures, or any undisclosed environmental hazard, or
any other condition, title or governmental restrictions that would impair the
value of the Premises, or unduly restrict its use or viability as an office
building, then Purchaser shall deliver written notice of Purchaser's election to
cancel this Agreement prior to the end of the Due Diligence Period, in which
case this Agreement shall terminate, the Deposit shall be returned to Purchaser
and thereafter Seller and Purchaser shall have no further obligations or
liabilities one to the other hereunder.
9. Condemnation. Seller covenants and warrants that it has not
heretofore received any notice of any condemnation proceeding or other
proceedings in the nature of eminent domain in connection with the Premises or
any significant portion or portions thereof. In the event of the taking of all
or any portion or portions of the Premises by eminent domain proceedings or the
commencement of any such proceeding, at any time prior to the completion of
Settlement, Purchaser shall have the right, at Purchaser's sole option, to
terminate this Agreement by giving notice to Seller on or before the completion
of Settlement. If Purchaser does not so terminate this Agreement, the Purchase
Price for the Premises shall be reduced by the total of any awards or other
proceeds received or due to by Seller with respect to any taking. In the event
that there is a taking of a minor portion of the Premises with no material
adverse impact on the use of the premises for an office building, Purchaser will
not have the right to terminate this Agreement, but shall close and all
condemnation proceeds shall go to the Purchaser.
10. Risk of Loss. All risk of loss or damage to any part of the
Premises shall be on Seller until closing unless such loss is due to the
Purchaser's acts or omissions.
11. Assessments. Seller shall be responsible to pay for all assessments
levied against the Premises prior to the date of this Agreement, or levied
against the Premises after the date of this Agreement by reason of work ordered,
commenced or completed prior to the date of this Agreement; and, if Settlement
is completed by Purchaser, Purchaser shall be responsible to pay for all
assessments levied against the Premises after the date of this Agreement by
reason of work or improvements ordered after such date.
If at Settlement the Premises, or any portion or portions thereof,
shall be affected by any assessment(s) which is required to be paid by Seller
pursuant to the provisions of this Section 11 and which is or may be payable in
annual or other installments of which the first installment is then a lien or
has been paid, then for the purpose of this Agreement, all of the unpaid
installments of any such assessment(s) including those which would become due
and payable after Settlement shall be deemed to be due and payable and liened-
upon the Premises and shall be paid and discharged by Seller at Settlement.
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12. Seller's Representations and Warranties. Seller represents and
warrants to Purchaser the following:
(a) To Seller's knowledge, there is no present plan, study or
effort by any governmental authority or agency or any private
party or entity which in any way affects or would affect the
continued authorization of the current use and operation of
the Premises.
(b) Except as disclosed herein, there is no pending, or to
Seller's knowledge threatened, litigation which does or would
materially affect the ownership, use, maintenance or operation
of the Premises or Seller's ability to fulfill all of its
obligations under this Agreement.
(c) Seller has no knowledge of receipt of any written notice of a
claim of non-compliance with respect to the Premises as to any
laws, ordinances, rules and regulations, including, but not
limited to, those relating to environmental, zoning, land use
and division, building, fire, health and safety matters of any
governmental or any agency, body or subdivision thereof
relating to the operation, ownership or use of the Premises.
Seller further represents that it is in the process of
removing an underground storage tank on the subject Premises
and agrees to remove the same in accordance with all Federal,
State and municipal rules and regulations. If a No Further
Action Letter is required from the NJ Department of
Environmental Protection, then Seller agrees to take all
actions necessary to obtain the same at its own expense.
(d) Seller has not entered into any, and there are no presently
effective leases relating to any portion of the Premises.
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(e) The execution, delivery and performance of this Agreement by
Seller (I) does not and will not conflict with or result in a
breach of any condition or provision of, or constitute a
default under, or result in the acceleration, creation or
imposition of any lien, charge or encumbrance upon the
Premises by reason of the terms of any contract, mortgage,
lien, agreement, indenture, instrument, decree or judgment to
which the Seller is a party or which is or purports to be
binding upon Seller or which affects or purports to affect the
Premises, and (ii) to the knowledge of Seller, does not and
will not breach any statute or regulation of any governmental
authority, including, but not limited to, applicable zoning
laws and regulations, or any judicial or administrative order
relating to the Premises or to Seller.
(f) Seller has no knowledge of any understanding or agreement with
any taxing or assessing authority respecting the imposition or
deferment of any taxes or assessments respecting the Premises.
To Seller's knowledge, there are no improvement district or
other assessments, special or otherwise, burdening the
Premises, whether or not a lien thereof, nor has Seller
received notice of the establishment of any such district or
assessment. Seller has received no notice and has no knowledge
of any proposed increase in the assessed valuation of the
Premises.
(g) To the best of Seller's knowledge, all buildings, driveways
and other improvements on the subject property are within its
boundary and no improvements on adjoining properties extend
across the boundary line of the subject premises.
13. Property Included. All utility systems, fixtures, trees,
shrubbery and plants now attached or appurtenant to or located
on the Premises are represented to be owned by Seller, free
from all liens and encumbrances, and are included in this
sale. Seller shall not remove any of the foregoing items or
change the nature or character of the Premises after the date
of this Agreement pending Settlement, except as rough grading
may require.
14. Maps, Plans, Surveys, etc. Seller shall deliver to Purchaser,
without charge, copies of all plans, maps, surveys,
descriptions, title reports, permits, certifications,
licenses, approvals, and other documentation respecting the
Premises and the use and occupancy thereof which are in the
possession of Seller and which Seller can reasonably locate,
as of the date of this Agreement, which material shall be
returned to Seller by Purchaser if Settlement is not
completed. If Settlement is completed, Seller agrees to assign
to Purchaser at Settlement, without charge, all of Seller's
rights, title and interests in and to all such material.
15. Notices. All notices, statements, demands, requests, consents,
communications and certificates from either party hereto to
the other shall be made in writing and sent by United States
Registered or Certified Mail, return receipt requested,
postage prepaid, delivered to Addresses Only, addressee as
follows:
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(a) If intended for Seller:
----------------------
Yardville National Bank
2465 Kuser Road
Hamilton, NJ 08690
Attn: Daniel J. O'Donnell, SVP/General Counsel
(b) If intended for Purchaser:
-------------------------
Christopher S. Vernon
c/o Mercer Management & Development Co.
PO Box 5471
Trenton, New Jersey 08638
With a copy to:
--------------
or such other addresses or entities either party hereto may
from time to time direct by service of notice on the other party as provided
above. Any such notices, statements, demands, requests, consents, communications
or certificates shall be deemed given three (3) days after the date the same are
mailed in accordance with this Section.
16. Default and Remedies.
(a) Purchaser. If Seller fails to perform any of its material
obligations or agreements contained herein and Purchaser is not then in default
of any of its obligations or agreements contained herein, then Purchaser may
elect one of the following as Purchaser's sole and exclusive remedy: either (i)
to terminate this Agreement by giving written notice of termination and the
reasons therefor to Seller, in which event Purchaser may recover from Seller any
damages for said breach; or (ii) to bring any action available at law or equity,
for damages and/or for specific performance of the terms of this Agreement for
conveyance of the Premises to Purchaser pursuant to which Seller shall convey to
Purchaser such title to the Premises as Seller then holds on the date that
Purchaser completes Purchaser's review of title for the Premises.
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(b) Seller. If Purchaser fails to close (except for permitted
terminations set forth herein), and Seller is not then in default of any of its
material obligations or agreements contained herein, then Seller may elect to
terminate this Agreement and to seek damages and/or any other relief or remedy
available at law or equity.
17. Brokerage. Seller and Purchaser represent and warrant that each has
not dealt with any broker, agent, finder or other intermediary in connection
with the conveyance of the Premises or this Agreement. Seller and Purchaser
agree to indemnify, defend and hold the other harmless of, from and against any
damages, costs, claims, losses or liabilities whatsoever (including attorney's
fees, expenses and court costs) arising from any breach by the other of the
foregoing representation. This Paragraph shall survive delivery of the Deed.
18. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of Seller and Purchaser and their respective successors and assigns.
If there shall be more than one Seller or Purchaser, they all shall be bound
jointly and severally by the terms, covenants, conditions, provisions,
warranties, representations and agreements herein contained, and the words
"Seller" and "Purchaser" shall be deemed and taken to mean each and every person
or party mentioned as a Seller or Purchaser herein.
19. Entire Agreement. This is the entire agreement between the parties
hereto regarding the transaction contemplated hereby and there are no other
terms, covenants, conditions, provisions, warranties, representations or
statements, oral or otherwise, of any kind whatsoever. Any agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of this Agreement in whole or in part unless such agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
20. Headings. The headings incorporated in this Agreement are for
convenience and reference only and are not a part of this Agreement and do not
in any way control, define, limit, or add to the terms and conditions hereof.
21. Governing Law. This Agreement shall be construed, interpreted and
governed by the laws of New Jersey.
22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
23. Lease of Basement Space. This Agreement is contingent on the Seller
and Purchaser entering into a lease of the basement space at terms acceptable to
both Parties.
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24. Assignment. Purchaser represents to Seller that he presently plans
on assigning this Agreement to a limited liability company to be formed by the
Purchaser. Seller consents to said assignment provided Purchaser is one of the
controlling members of said limited liability company.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, under
seal, as of the day and year first above written.
ATTEST/WITNESS: YARDVILLE NATIONAL BANK
A National Banking Association
/s/
- ----------------------------------- By: Patrick M. Ryan
---------------------------
Patrick M. Ryan, President/CEO
/s/
- ----------------------------------- By: Christopher S. Vernon
---------------------------
Christopher S. Vernon
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