SALE-PURCHASE AGREEMENT
SALE-PURCHASE AGREEMENT (this "AGREEMENT"), made as of December 4, 2000,
between WELLSFORD CAPITAL PROPERTIES, L.L.C., a Delaware limited liability
company having an address c/o Wellsford Real Properties, Inc., 535 Madison
Avenue, 26th Floor New York, NY 10022 ("SELLER") and CRC COMMUNITIES, INC., a
New Jersey corporation having an office at 634 Stangle Road, Martinsville, New
Jersey 08836 ("PURCHASER").
W I T N E S S E T H:
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Seller and Purchaser, in consideration of the mutual covenants herein
contained, hereby agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS
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For purposes of this Agreement, the following terms shall have the
following meanings:
1.1. "Affiliate" shall mean, with respect to any specified Person, any
other Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with the specified
Person. For purposes of this definition, the term (i) "Person" means an
individual, corporation, limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or subdivision thereof and (ii) the term
"controls"(including, with correlative meanings, the terms "controlled by" and
"under common control with") means the ownership, directly or indirectly, of
more than fifty percent (50%) of the beneficial interests in a Person, together
with the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting stock, by contract or otherwise.
1.2. "Broker" shall mean Trillium and Landmark.
1.3. "Business Day" shall mean any day other than a Saturday, Sunday or any
day upon which banks in the State of New Jersey or the State of New York are
required or authorized by law to be closed.
1.4. "Effective Date" shall mean the date upon which Purchaser receives a
fully executed counterpart of this Agreement. Promptly following the occurrence
of the Effective Date, Purchaser shall execute and deliver to Seller such
instrument as Seller may submit to it to evidence the occurrence of the
Effective Date.
1.5. "Existing Leases" shall mean the leases, licenses and occupancy
agreements set forth in Exhibit B annexed hereto.
1.6. "Existing Service Contracts" shall mean the service contracts,
maintenance agreements, brokerage agreements and other agreements affecting the
Property and set forth in Exhibit C annexed hereto.
1.7. "Invasive Tests" shall mean any physical inspection or testing of the
Premises other than visual examination, and shall include, without limitation,
sampling of soils, limestone, wetlands or other media.
1.8. "Landmark" shall mean Landmark Agency, Inc., Purchaser's broker.
1.9. "Leases" shall mean the Existing Leases and the New Leases in effect
on the Closing Date.
1.10. "Leasing Costs" shall mean, collectively, (i) leasing or brokerage
commissions, (ii) direct payments, tenant improvement allowances, work letters
or free rent and (iii) rent allowances or rent credits, in each case paid or
granted to a tenant under an Existing Lease or a New Lease.
1.11. "New Leases" shall mean any new leases, licenses or occupancy
agreements entered into by Seller in accordance with the terms of this
Agreement.
1.12. "New Service Contracts" shall mean any service contracts,
maintenance agreements, brokerage agreements or other agreements entered into by
Seller in accordance with the terms of this Agreement.
1.13. "Representation Survival Period" shall mean six (6) months.
1.14. "Service Contracts" shall mean the Existing Service Contracts and the
New Service Contracts in effect on the Closing Date.
1.15. "Title Insurer" shall mean a reputable title insurance company
licensed in the State of New Jersey and selected by Purchaser to insure its fee
interest in the Premises.
1.16. "Trillium" shall mean Trillium Realty Agency, Inc., Seller's broker.
ARTICLE 2. SALE-PURCHASE OF PROPERTY
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2.1. Agreement to Sell and Purchase. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, at the Purchase Price and upon the terms
and conditions set forth in this Agreement, the following (collectively, the
"PROPERTY"): (a) the parcel of land more particularly described in Exhibit A
attached hereto (the "LAND"); (b) the building and other structures situated on
the Land, inclusive of all of Seller's right, title and interest in and to the
improvements, fixtures, systems, plant equipment, apparatus and machinery which
form a part of the building or such other structures (collectively, the
"BUILDING") (the Land and the Building are herein collectively called the
"PREMISES"); (c) all right, title and interest of Seller, if any, in and to (i)
the land lying in the bed of any street or highway in front of or adjoining the
Land to the center line thereof and (ii) any appurtenances in and to the
Premises; (d) all right, title and interest of Seller in and to any furniture,
furnishings, moveable equipment and other personal property located at, and used
in connection with, the Premises (herein collectively called the "PERSONAL
PROPERTY"); (e) the landlord's interest in and to the Leases and any security
held thereunder; (f) to the extent assignable, Seller's right, title and
interest in and to the Service Contracts; and (g) to the extent assignable, any
licenses and permits
used or useful in the operation of the Premises (collectively, the "LICENSES AND
PERMITS"). The Premises are located at, and are known as, 501 Hoes Lane,
Piscataway, New Jersey.
2.2. Title to Premises. Seller shall convey, or cause to be conveyed, and
Purchaser shall accept, title to the Premises, on the Closing Date, free of all
Title Exceptions other than the Permitted Exceptions (each as hereinafter
defined).
2.3. Condition of Property. Purchaser shall rely in its due diligence
investigations upon professional consultants to confirm such matters regarding
the Property as Purchaser deems appropriate. Other than the express
representations and warranties of Seller specifically set forth herein,
Purchaser has not relied upon any oral or written information from Seller or its
employees, affiliates, agents, consultants, advisors or representatives,
including, without limitation, any appraisals, projections or evaluations of
credit quality prepared by Seller or any of its employees, affiliates, agents,
consultants, advisors or representatives. Purchaser further acknowledges that no
employee, agent, consultant, advisor or representative of Seller has been
authorized to make, and that Purchaser has not relied upon, any statements or
representations other than those specifically contained in this Agreement.
Without limiting the generality of the foregoing, Purchaser acknowledges and
agrees that, except as expressly set forth herein, Purchaser is purchasing the
Property "as is" and "where is" on the Closing Date, and, except as expressly
set forth herein, Seller is making no representation or warranty, express or
implied, and Purchaser has not relied on any representation or warranty, express
or implied, regarding the Property, including, without limitation, any
representation or warranty with respect to (a) the business or financial
condition of any tenant of the Property, (b) the physical condition of any
Improvement or Personal Property comprising all or a part of any Property, or
its fitness, merchantability or suitability for any use or purpose, (c) the
leases, rents, income or expenses of the Property, (d) the compliance or
non-compliance with any laws, codes, ordinances, rules or regulations of any
governmental authority (including, without limitation, laws pertaining to
hazardous materials) or (e) the current or future use of the Property,
including, but not limited to, any Property's use for commercial, retail,
industrial or other purposes. Seller is not liable or bound in any manner by any
verbal or written statements, representations, real estate brokers' "set-ups",
offering memoranda or information pertaining to the Property furnished by any
real estate broker, advisor, consultant, agent, employee, representative or
other Person.
ARTICLE 3. PURCHASE PRICE
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3.1. Purchase Price. The purchase price (the "PURCHASE PRICE") to be paid
by Purchaser to Seller for the Property is TWO MILLION FIVE HUNDRED FIFTY
THOUSAND and 00/00 ($2,550,000.00), net of adjustments made in accordance with
Article 8 below. The Purchase Price shall be paid by Purchaser as follows:
(a) Fifty Thousand and 00/100 Dollars ($50,000.00) (the "DEPOSIT"),
payable on or before the date which is two (2) Business Days after the
Effective Date either by (i) wire transfer of immediately available funds
to the account of Robinson Silverman Pearce Aronsohn & Berman LLP
("ESCROWEE") set forth in Exhibit A-1 annexed hereto or (ii) Purchaser's
check, subject to collection, drawn to the order of Escrowee; and
(b) Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00) (the "CASH BALANCE"), payable at the Closing by wire
transfer of immediately available funds to an account or accounts
designated by Seller.
3.2. Escrow of Deposit.
The Deposit shall be held, paid over and/or applied, by Escrowee in
accordance with the following provisions:
(a) Escrowee shall hold the Deposit until the Closing or sooner
termination of this Agreement. Any interest earned on the Deposit shall be
paid to the same party entitled to be paid the Deposit hereunder (as and
when such party is entitled to the Deposit), and the party receiving such
interest shall pay any income taxes thereon. For purposes thereof, the tax
identification numbers of the parties are as follows: 13-4027757 (Seller);
and 22-3395502 (Purchaser).
(b) If this Agreement is validly terminated by Purchaser in accordance
with the provisions of Section 4.1 hereof, the Deposit shall be refunded to
Purchaser.
(c) At the Closing the Deposit shall be paid by Escrowee to Seller.
(d) If for any reason the Closing does not occur, Escrowee shall
continue to hold the Deposit until otherwise directed by joint written
instructions from the parties to this Agreement or a final judgment of a
court of competent jurisdiction. Escrowee, however, shall have the right at
any time to deposit the Deposit with the clerk of any federal or state
court sitting in the State of New Jersey. Escrowee shall give written
notice of such deposit to Seller and Purchaser. Upon such deposit, Escrowee
shall be relieved and discharged of all further obligations and
responsibilities hereunder.
(e) The parties acknowledge that Escrowee is acting solely as a
stakeholder at their request and for their convenience, that Escrowee shall
not be deemed to be the agent of either of the parties, and that Escrowee
shall not be liable to either of the parties for any act or omission on its
part unless taken or suffered in bad faith, in willful disregard of this
Agreement or involving gross negligence. Seller and Purchaser shall jointly
and severally indemnify and hold Escrowee harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred
in connection with the performance of Escrowee's duties hereunder, except
with respect to actions or omissions taken or suffered by Escrowee in bad
faith, in willful disregard of this Agreement or involving gross negligence
on the part of Escrowee.
(f) Escrowee shall cause the Deposit to be maintained and invested in
an interest-bearing money market account or accounts with Mellon Bank
through its affiliate, The Boston Safe Deposit and Trust Company, or any
other nationally recognized commercial bank. By executing this Agreement,
Seller and Purchaser agree that the Deposit may be held at The Boston Safe
Deposit and Trust Company, One Boston Place, Boston, Massachusetts 02108.
Escrowee shall not be liable for any losses suffered in connection with any
such investment and shall have no obligation to obtain the best, or
otherwise seek to maximize, the rate of interest earned on any such
investment. Any fees or charges in connection with such investment shall be
paid out of the amounts held in escrow before any other payments shall be
required to be made from such amounts.
(g) Upon any delivery of the amount remaining in escrow as provided in
Sections 3.2(b), (c) or (d) above, Escrowee shall be relieved of all
liability, responsibility or obligation with respect to or arising out of
the escrow or under this Agreement. Escrowee shall not be bound by any
modification to this Section 3.2 unless Escrowee shall have agreed to such
modification in writing.
(h) Escrowee shall be entitled to rely or act upon any notice,
instrument or document believed by Escrowee to be genuine and to be
executed and delivered by the proper person, and shall have no obligation
to verify any statements contained in any notice, instrument or document or
the accuracy or due authorization of the execution of any notice,
instrument or document.
(i) Escrowee shall be entitled to retain attorneys of its choice,
including itself, in connection with this escrow and Escrowee may continue
to represent Seller in connection with this Agreement or any dispute which
may arise hereunder or otherwise.
(j) Escrowee has acknowledged agreement to the foregoing provisions of
this Section 3.2 by signing in the place indicated on the signature page of
this Agreement.
ARTICLE 4. INSPECTION
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4.1. Due Diligence Period; Termination Right. During the period (the "DUE
DILIGENCE PERIOD") commencing on the Effective Date and ending on the date (the
"DUE DILIGENCE EXPIRATION DATE") which is thirty (30) days after the Effective
Date (unless such date is not a Business Day, in which event the Due Diligence
Expiration Date shall be the next occurring Business Day), Purchaser shall have
the right to conduct such due diligence as it deems reasonably necessary or
appropriate in connection with its acquisition of the Property, including
inspections, studies, examinations and investigations of, or with respect to,
the Property, or any portion thereof, and/or any facts, circumstances and
matters relating to the Property, or any portion thereof. If Purchaser, in its
sole discretion, determines that it is unsatisfied with the results of and
matters disclosed by its due diligence, Purchaser shall have the right to
terminate this Agreement by written notice given to Seller prior to 5:00 p.m.
New York time on the Due Diligence Expiration Date (TIME BEING OF THE ESSENCE).
Upon any termination of this Agreement pursuant to this Section 4.1, (i) the
Deposit shall be refunded to Purchaser and (y) neither party hereto shall have
any further obligation to the other, with the exception of those obligations
which expressly survive the termination of this Agreement. If Purchaser shall
fail to terminate this Agreement in the time and manner set forth in this
Section 4.1, Purchaser shall be deemed to have irrevocably waived its right to
terminate this Agreement pursuant to this Section 4.1
4.2. Inspections. Purchaser and its authorized agents, consultants or
representatives shall have the right, upon reasonable prior notice to Seller
(which notice may be by telephone to Mr. William Darrow at 212-812-4903), to
enter upon the Premises from time to time to conduct such physical and other
inspections as Purchaser deems appropriate, provided that Purchaser shall not
perform Invasive Tests or interview tenants of the Premises without first
obtaining Seller's consent, which consent shall not be unreasonably withheld or
delayed. Prior to any entrance upon the Premises for the performance of Invasive
Tests, Purchaser shall deliver to Seller a certificate of insurance evidencing
that Purchaser or the appropriate contractor has procured and maintains in force
and effect commercial general liability insurance covering Purchaser and Seller
against claims for
bodily injury or death or property damage occurring in, upon or about the
Premises in an amount of not less than $2,000,000 (combined single limit),
issued by an insurance company with a rating of "A" or better as established by
Best's Rating Guide, which insurance shall include blanket contractual liability
coverage and shall otherwise be in form reasonably acceptable to Seller.
Following the performance of any Invasive Tests, Purchaser shall restore the
Premises to their condition prior to the performance thereof. Purchaser shall
indemnify and hold harmless Seller and its officers, directors, members,
employees, successors and assigns, from and against any and all damages, losses,
costs, expenses, liabilities and claims that arise out of or in any way relate
to the conduct of the Inspections. The provisions of this Section 4.2 shall
survive the termination of this Agreement.
4.3. Confidentiality. Prior to the Closing, Purchaser shall not disclose to
any other party either the contents of any materials delivered to Purchaser by
Seller with respect to the Property or the results of any reports summarizing
any aspect of Purchaser's due diligence investigations without first obtaining
the prior written consent of Seller. Notwithstanding the foregoing, Purchaser
may, without first obtaining such prior written consent, make such disclosures
as it deems appropriate to its officers, employees, lenders, counsel, lenders'
counsel, appraisers, accountants, insurance advisors, environmental consultants
and similar third-party consultants, provided that such parties are apprised of
the confidential nature of the material disclosed. The provisions of this
Section 4.3 shall survive any termination of this Agreement.
ARTICLE 5. TRANSACTION COSTS
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5.1. Seller's Costs. At the Closing, Seller shall pay all transfer taxes
payable as a result of the conveyance of title to the Property to Purchaser
pursuant to this Agreement. Seller, in addition to its apportionment obligations
hereunder, if any, also shall be responsible for the cost of its legal counsel,
advisors and the other professionals employed by it in connection with the sale
of the Property.
5.2. Purchaser's Costs. Purchaser, in addition to its apportionment and
other payment obligations hereunder, shall be responsible for all costs and
expenses associated with (a) Purchaser's due diligence, (b) Purchaser's legal
counsel, advisors, engineers, consultants and the other professionals employed
by it in connection with Purchaser's due diligence and the purchase of the
Property, (c) title reports or abstracts issued by Title Insurer, as well as all
survey and search costs and updates related thereto, (d) the policy premiums in
respect of any fee title insurance obtained by Purchaser and any mortgage title
insurance required by Purchaser's lender (if any), (e) the recording fees for
the Deed and (f) all costs and expenses of obtaining any financing Purchaser may
elect to obtain.
ARTICLE 6. CLOSING DATE; CONDITIONS TO CLOSING
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6.1. Closing Date. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place on the date which is fifteen (15)
days after the Due Diligence Expiration Date, provided that if such date is not
a Business Day, the Closing shall occur on the next occurring Business Day (such
date, as the same may be adjourned by Seller in accordance with the terms
hereof, being herein called the "CLOSING DATE"). Notwithstanding the foregoing,
Seller shall have the right, upon written notice to Purchaser, to an adjourment
or adjournments of the Closing, not to
exceed thirty (30) days in the aggregate. The Closing shall take place on the
Closing Date at 10:00 a.m. at the offices of Robinson Silverman Pearce Aronsohn
& Berman LLP, 1290 Avenue of the Americas, New York, New York 10104. TIME SHALL
BE OF THE ESSENCE WITH RESPECT TO THE OBLIGATIONS OF PURCHASER TO BE PERFORMED
ON THE CLOSING DATE, SUBJECT TO SEVERE WEATHER CONDITIONS WHICH WOULD RENDER
TRAVEL TO NEW YORK CITY INORDINATELY DIFFICULT.
6.2. Purchaser's Conditions. Purchaser's obligation to purchase the
Property is subject to the satisfaction of the following conditions precedent,
any or all of which may be waived by Purchaser:
(a) Seller shall have delivered to Purchaser Tenant Estoppel
Certificates, dated as of a date not more than forty-five (45) days prior
to the Closing Date, from the holders of the tenants' interest under Leases
which demise not less than 80% of the rentable square footage demised as of
the date hereof under the Leases. If, however, Seller is unable to obtain
Tenant Estoppel Certificates from tenants under Leases demising not less
than 80% of the rentable square footage demised under the Leases as of the
date hereof, Seller may (but shall not be obligated to) satisfy the
foregoing condition by executing and delivering to Purchaser at Closing a
certificate from Seller (the "SELLER'S ESTOPPEL CERTIFICATE") setting forth
the matters which would have been set forth in the Tenant Estoppel
Certificate(s) for any Leases selected by Seller and for which Seller has
been unable to obtain a Tenant Estoppel Certificate, to the extent
necessary to increase to 80% of the rentable square footage demised under
Leases as of the date hereof for which a Tenant Estoppel Certificate has
been obtained. Any Seller's Estoppel Certificate shall state that the
representations made therein shall survive the Closing for a period of six
(6) months or until such earlier date on which the applicable tenant shall
deliver to Purchaser a Tenant Estoppel Certificate. For purposes of this
Agreement, the term "TENANT ESTOPPEL CERTIFICATE" shall mean a certificate
in the form of Exhibit D annexed hereto, provided that if any Lease
prescribes the form or contents of an estoppel certificate to be delivered
by the tenant, "TENANT ESTOPPEL CERTIFICATE" shall mean an estoppel
certificate in such form or containing such contents;
(b) Seller shall have delivered to Purchaser a letter by the New
Jersey Department of Environmental Protection (the "DEP") to the effect
that the New Jersey Industrial Site Recovery Act does not apply to the
Premises (the "ISRA LETTER").
(c) Seller's representations contained in Sections 9.2 and 9.3 hereof
shall be true, complete and correct in all material respects, as made as of
the dates hereof and as of the Closing Date, provided that Seller shall not
be deemed to be in breach of any representation, as made as of the Closing
Date, to the extent that any such representation is rendered untrue by any
state of facts permitted or contemplated by this Agreement; and
(d) (i) this Agreement shall be in full force and effect, (ii) Seller
shall have fully satisfied, or shall therewith fully satisfy, all of its
Closing obligations hereunder, and (iii) there shall not otherwise then
exist any event which would allow Purchaser to terminate this Agreement
pursuant to the express terms hereof.
6.3. Seller's Conditions. Seller's obligation to sell the Property is
subject to the satisfaction of the following conditions precedent, any or all of
which may be waived by Seller:
(a) this Agreement shall be in full force and effect,
(b) Purchaser shall have fully satisfied, or shall therewith fully
satisfy, all of its Closing obligations hereunder,
(c) there shall not otherwise then exist any event which would allow
Seller to terminate this Agreement pursuant to the express terms hereof;
and
(d) Purchaser's representations contained in Section 9.1 hereof shall
be true, complete and correct in all material respects, as made as of the
date hereof and as of the Closing Date.
6.4. Failure of Condition Not a Breach. The parties hereto acknowledge and
agree that the failure to occur of one or more conditions precedent contained in
this Article 6 shall not be deemed to constitute a breach of this Agreement by
either party unless and to the extent that any such party shall have expressly
agreed or covenanted or is otherwise expressly obligated hereunder to take any
action to satisfy or cause the satisfaction of the condition in question.
ARTICLE 7. CLOSING DOCUMENTS AND DELIVERIES
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7.1. Conveyancing Documents and Deliveries.
At the Closing:
(a) Purchaser shall deliver to Seller the Cash Balance and any other
amounts payable by Purchaser to Seller at the Closing pursuant to this
Agreement;
(b) Seller shall execute, acknowledge and deliver a deed with
covenants against grantor's acts in form sufficient to convey the Premises
to Purchaser, subject only to the Permitted Exceptions and such other Title
Exceptions waived (or deemed to have been waived) by Purchaser pursuant to
this Agreement (the "DEED");
(c) Seller shall deliver to Purchaser original counterparts of the
Tenant Estoppel Certificates received by Seller (and, if applicable,
Seller's Estoppel Certificate);
(d) Seller shall deliver to Purchaser an original counterpart of the
ISRA Letter, together with a copy of the application therefor submitted by
Seller to the DEP;
(e) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the Leases;
(f) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the assignable Service
Contracts;
(g) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the assignable Licenses and
Permits;
(h) Seller shall execute and deliver a general bill of sale in the
form of Exhibit E annexed hereto, conveying to Purchaser all of Seller's
right, title and interest in and to the Personal Property;
(i) Seller, as assignor, and Purchaser, as assignee, shall each
execute, acknowledge and deliver an instrument in the form of Exhibit F
annexed hereto providing for the assignment by Seller of the landlord's
interest in the Leases and the assumption by Purchaser of the landlord's
obligations under the Leases which arise or accrue from and after the
Closing Date;
(j) Seller and Purchaser shall mutually execute and deliver to each
other an instrument in the form of Exhibit G annexed hereto providing for
(x) the assignment by Seller to Purchaser of all of Seller's right, title
and interest in and to the Service Contracts and the assignable Licenses
and Permits, and the assumption by Purchaser of Seller's obligations
thereunder which first arise or accrue from and after the Closing Date and
(y) the assumption by Purchaser of Seller's obligations with respect to
post-termination leasing commissions payable in accordance with Exhibit B,
Section 9 of the Leasing Agency Agreement (as defined in Exhibit C annexed
hereto.)
(k) Seller shall furnish Purchaser with evidence of the termination of
the Property Management Agreement (as defined in Exhibit C annexed hereto)
and, subject to the provisions of Section 7.1(j) above, the Leasing Agency
Agreement.
(l) Seller shall deliver to Purchaser an instrument pursuant to which
Seller (i) remakes the representations made by Seller in Sections 9.3(a)
through (e) hereof as of the Closing Date and (ii) advises Purchaser of any
facts or circumstances which would render any such representation untrue,
as of the Closing Date.
(m) Seller and Purchaser shall execute and deliver a letter to each of
the tenants under the Leases and each of the other parties to the
assignable Service Contracts, notifying each such tenant or party of the
sale of the Premises and indicating the new address for notices under the
Leases and Service Contracts;
(n) Seller shall execute and deliver a FIRPTA affidavit required
pursuant to the Treasury Department Regulations promulgated under Section
1445 of the Internal Revenue Code of 1986, as amended, in respect of the
Property. Seller understands that such certification will be retained by
Purchaser and will be made available to the Internal Revenue Service on
request;
(o) Each of Seller and Purchaser shall execute and deliver a closing
statement setting forth with specificity the adjustments made in accordance
with Article 8 hereof.
(p) Seller shall credit against the Cash Balance the security deposits
held by Seller as landlord under the Leases (together with accrued interest
thereon, if any, less Seller's proportionate share of administrative
expenses, to the extent such administrative expenses are allowed by the
applicable Lease or by law). Notwithstanding the foregoing, any tenant
security deposits held in a form other than cash shall be transferred to
Purchaser by way of appropriate instruments of transfer or assignment.
(q) Purchaser shall deliver to Seller evidence reasonably satisfactory
to Seller of the due authorization, execution and delivery of the documents
and instruments to be executed by Purchaser at Closing in accordance with
the terms of this Agreement.
ARTICLE 8. CLOSING ADJUSTMENTS
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The following are to be adjusted and prorated between Seller and Purchaser
as of 11:59 p.m. on the day preceding the Closing Date, based upon a 365 day
year, with Seller deemed to be the owner of the Property on the day preceding
the Closing Date and Purchaser deemed to be the owner of the Property on the
Closing Date.
8.1. Fixed Rents.
(a) Fixed rents (collectively, "FIXED RENTS") paid or payable by
tenants under the Leases in connection with their occupancy of the Premises
shall be adjusted and prorated on an if, as and when collected basis. Any
Fixed Rents collected by Purchaser or Seller after the Closing from any
tenant who owes Fixed Rents for periods prior to the Closing shall be
applied (i) first, in payment of Fixed Rents owed by such tenant for the
month in which the Closing Date occurs, (ii) second, in payment of Fixed
Rents owed by such tenant for the month preceding the month in which the
Closing Date occurs, (iii) third, in payment of Fixed Rents owed by such
tenant for the period following the month in which Closing Date occurs and
(iv) fourth, after Fixed Rents for all current periods have been paid in
full, in payment of Fixed Rents owed by such tenant for the period prior to
the month preceding the month in which the Closing Date occurs. Each such
amount, less any costs of collection (including reasonable counsel fees)
reasonably allocable thereto, shall be adjusted and prorated as provided
above, and the party who receives such amount shall promptly pay over to
the other party the portion thereof to which it is so entitled.
(b) Any payment by a tenant in an amount less than the full amount of
Fixed Rents and Overage Rents then due and payable by such tenant shall be
applied first to Fixed Rents (in the order of priority as to time periods
as is set forth in Section 8.1(a) above) to the extent of all such Fixed
Rents then due and payable by such tenant, and thereafter to Overage Rents
(in the order of priority as to time periods as is set forth in Section
8.2(d) below).
8.2. Overage Rents.
(a) With respect to any Lease that provides for (i) the payment of
additional rent based upon a percentage of the tenant's business during a
specified annual or other period (sometimes referred to as "percentage
rent"), (ii) so-called common area maintenance or "cam" charges or (iii)
so-called "escalation rent" or additional rent based upon increases in real
estate taxes or operating expenses or labor costs or cost of living or
porter's wages or otherwise (such percentage rent, cam charges, escalation
rent and additional rent being collectively called "OVERAGE RENTS"), such
Overage Rents shall be adjusted and prorated on an if, as and when
collected basis.
(b) Overage Rents in respect of the accounting period in which the
Closing Date occurs shall be apportioned between Seller and Purchaser as of
11:59 P.M. of the day preceding the Closing Date, with Seller receiving the
proportion of such Overage Rents (less a like portion of any costs and
expenses (including reasonable counsel fees) incurred in the collection of
such Overage
Rents) that the portion of such accounting period prior to the Closing Date
bears to the entire such accounting period, and Purchaser receiving the
proportion of such Overage Rents (less a like portion of any costs and
expenses (including reasonable counsel fees) incurred in the collection of
such Overage Rents) that the portion of such accounting period from and
after the Closing Date bears to the entire such accounting period. If,
prior to the Closing, Seller shall receive any installments of Overage
Rents attributable to Overage Rents for periods from and after the Closing,
such sum shall be apportioned at the Closing. If, after the Closing,
Purchaser shall receive any installments of Overage Rents attributable to
Overage Rents for periods prior to the Closing, such sum (less any costs
and expenses (including reasonable counsel fees) incurred by Purchaser in
the collection of such Overage Rents) shall be paid by Purchaser to Seller
promptly after Purchaser receives payment thereof.
(c) Any payment by a tenant on account of Overage Rents (to the extent
not applied against Fixed Rents due and payable by such tenant in
accordance with Section 8.1(b) above) shall be applied to Overage Rents
then due and payable in the following order of priority: (i) first, in
payment of Overage Rents for the accounting period preceding the accounting
period in which the Closing Date occurs; and (ii) second, in payment of
Overage Rents for the accounting period in which the Closing Date occurs.
(d) To the extent that any portion of Overage Rents is required to be
paid monthly by tenants on account of estimated amounts for any calendar
year (or, if applicable, any lease year or tax year or any other applicable
accounting period), and at the end of such calendar year (or lease year,
tax year or other applicable accounting period, as the case may be), such
estimated amounts are to be recalculated based upon the actual expenses,
taxes and other relevant factors for that calendar (lease or tax) year or
other applicable accounting period, with the appropriate adjustments being
made with such tenants, then such portion of the Overage Rents shall be
prorated between Seller and Purchaser at the Closing based on such
estimated payments actually paid by tenants (i.e., with Seller entitled to
retain all monthly or other periodic installments of such amounts paid by
tenants with respect to periods prior to the calendar month or other
applicable installment period in which the Closing occurs, Seller to pay to
Purchaser at the Closing all monthly or other periodic installments of such
amounts theretofore received by Seller with respect to periods following
the calendar month or other applicable installment period in which the
Closing occurs and Seller and Purchaser to apportion as of the Closing Date
all monthly or other periodic installments of such amounts paid by tenants
with respect to the calendar month or other applicable installment period
in which the Closing occurs). At the time(s) of final calculation and
collection from (or refund to) each tenant of the amounts in reconciliation
of actual Overage Rents for a period for which estimated amounts paid by
such tenant have been prorated, there shall be a re-proration between
Seller and Purchaser. If, with respect to any tenant, the recalculated
Overage Rents exceeds the estimated amount paid by such tenant, upon
collection from the tenant, (i) the entire excess shall be paid by
Purchaser to Seller, if the accounting period for which such recalculation
was made expired prior to the Closing and (ii) such excess shall be
apportioned between Seller and Purchaser as of the Closing Date (on the
basis described in the first sentence of Section 8.2(c) above), if the
Closing occurred during the accounting period for which such recalculation
was made, with Purchaser paying to Seller the portion of such excess which
Seller is so entitled to receive. If, with respect to any tenant, the
recalculated Overage Rents are less than the estimated amount paid by such
tenant, (1) the entire shortfall shall be paid by Seller to Purchaser (or,
at Seller's option, directly to the tenant in question), if the accounting
period for which such recalculation was made expired prior to the Closing
and (2) such shortfall shall be apportioned
between Seller and Purchaser as of the Closing Date (on the basis described
in the first sentence of Section 8.2(c) above), if the Closing occurred
during the accounting period for which such recalculation was made, with
Seller paying to Purchaser (or, at Seller's option, directly to the tenant
in question) the portion of such shortfall so allocable to Seller.
(e) Purchaser shall have no obligation to collect past due Fixed Rents
or Overage Rents, provided that promptly following Purchaser's receipt of
any such amounts, Purchaser shall pay the same to Seller. Seller reserves
the right to bill tenants who owe Fixed Rents and Overage Rents for periods
prior to the Closing (including any Overage Rents payable with respect to
periods prior to Closing but which are not due and payable until after the
Closing Date) and take such actions as Seller deems appropriate to collect
such amounts, including, without limitation, the prosecution of one or more
lawsuits, but Seller shall not be entitled to evict (by summary proceedings
or otherwise) any such tenants.
8.3. Real Estate Taxes. Real estate taxes shall be adjusted and prorated on
the basis of the fiscal year for which assessed. If the Closing shall occur
before the tax rate or assessed valuation is fixed for the Premises, the
apportionment of real estate taxes for such Premises shall be upon the basis of
the tax rate for the preceding year applied to the most recently applicable
assessed valuation of such Premises, subject to further and final adjustment
when the tax rate and/or assessed valuation for such Premises is fixed for the
year in which the Closing occurs. In the event that the Premises or any part
thereof shall be or shall have been affected by an assessment or assessments,
whether or not the same become payable in annual installments, Seller shall, at
the Closing, be responsible for any installments due prior to the Closing and
Purchaser shall be responsible for any installments due on or after the Closing.
8.4. Utility Charges. Seller shall use reasonable efforts to obtain
readings of meters measuring utility consumption at the Property (other than
utilities which are the responsibility of tenants under Leases) for all periods
through (and including) the date preceding the Closing Date. Seller shall pay,
and be responsible, for all bills rendered on the basis of such readings. If
such readings are not obtained for any metered utility, then, at the Closing,
apportionment shall be made on the basis of the most recent period for which
such readings are available. Upon the taking of subsequent actual readings,
there shall be a recalculation of the applicable utility charges, and Seller or
Purchaser, as the case may be, shall promptly remit to the other party hereto
any amounts to which such party shall be entitled by reason of such
recalculation. Unmetered water charges or sewer rents shall be apportioned on
the basis of the charges therefor for the same period during the previous
calendar year, but applying the current rate thereto. As to any utility charges
or sewer rents payable by tenants, Purchaser shall close title and accept the
delivery of the Deed subject to such unpaid charges and rents and any lien
resulting therefrom, without credit against the Purchase Price or any claim or
right of action against Seller.
8.5. Fuel. Fuel on hand, if any, based on an estimate provided by Seller's
fuel supplier, at Seller's cost valued at the price therefor charged by such
supplier including any applicable taxes.
8.6. Other Adjustments. The following items shall also be adjusted as of
11:59 P.M. on the date preceding the Closing Date: (i) charges and payments
under Service Contracts assigned to Purchaser; (ii) fees and payments, if any,
under Licenses and Permits assigned to Purchaser; (iii) revenues, if any,
arising out of telephone booths, vending machines, or other income-producing
agreements and (iv) maintenance supplies in unopened containers based on
Seller's actual cost therefor, including sales and/or use tax.
Any errors or omissions in computing adjustments at the Closing shall be
promptly corrected, provided that the party seeking to correct such error or
omission shall have notified the other party of such error or omission on or
prior to the date that is one (1) year following the Closing Date. The
provisions of this Article 8 shall survive Closing.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
-----------------------------------------
9.1. Basic Representations of Purchaser.
Purchaser, as of the date hereof, represents and warrants to Seller as
follows:
(a) Purchaser is a corporation, duly organized, validly existing and
in good standing under the laws of the State of New Jersey.
(b) Purchaser has full power and authority to enter into and perform
this Agreement, the documents to be executed and delivered pursuant hereto,
and each and all of the transactions contemplated hereby and thereby in
accordance with the terms hereof and thereof.
(c) The individuals executing this Agreement, and each of the
documents to be executed and delivered in connection herewith on behalf of
Purchaser have full power and authority to do so. This Agreement and each
of the Purchaser Closing Documents are, or will be when executed and
delivered, the legal valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with the terms hereof and
thereof.
(d) Purchaser has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Purchaser.
Purchaser is not insolvent and the consummation of the transactions
contemplated by this Agreement shall not render Purchaser insolvent. No
general assignment of Purchaser's property has been made for the benefit of
creditors, and no receiver, master, liquidator or trustee has been
appointed for Purchaser or any of its property.
(e) There are no actions or proceedings pending or, to Purchaser's
actual knowledge, threatened, against Purchaser which could have a material
adverse affect on Purchaser's ability to perform its obligations hereunder.
9.2. Basic Representations of Seller.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(a) Seller is a limited liability company, duly organized and validly
existing and in good standing under the laws of the State of Delaware.
(b) Seller has full power and authority to enter into and perform this
Agreement and to enter into the documents to be executed and delivered
pursuant hereto, and each and all of the transactions contemplated hereby
and thereby in accordance with the terms hereof and thereof.
(c) The individuals executing this Agreement on behalf of Seller, and
the individuals executing each of the documents to be executed and
delivered in connection herewith, on behalf of Seller, have full power and
authority to do so. This Agreement and each of the Seller Closing Documents
are, or will be when executed and delivered, the legal valid and binding
obligations of Seller, enforceable against Seller in accordance with the
terms hereof and thereof.
(d) Seller has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Seller. Seller is
not insolvent and the consummation of the transactions contemplated by this
Agreement shall not render Seller insolvent. No general assignment of
Seller's property has been made for the benefit of creditors, and no
receiver, master, liquidator or trustee has been appointed for Seller or
any of its property.
(e) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, against Seller which could have a material adverse
affect on Seller's ability to perform its obligations hereunder.
9.3. Representations of Seller Regarding the Property.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(a) There are no leases, licenses or occupancy agreements affecting
the Premises, other than the Existing Leases. The information contained in
the rent roll annexed hereto as Exhibit H is true, complete and correct in
all material respects; provided, however, because Purchaser will have an
opportunity to review each of the Existing Leases and the New Leases during
the Due Diligence Period, in the event that there is any discrepancy
between the information contained in Exhibit H and the terms and provisions
of any of the Existing Leases or New Leases, the terms and provisions of
the Existing Leases and the New Leases shall be effective as against Seller
and Purchaser, and Seller shall not be deemed to have breached the
representation contained in this Section 9.3(a) clause (a) by reason of
such discrepancy. Except as otherwise noted in Exhibit I annexed hereto,
(i) each of the Existing Leases is in full force and effect, (ii) no
written notice of a default on the part of a tenant under any of the
Existing Leases has been sent by Seller, other than a notice setting forth
a default which, as of the date hereof, has been cured and (iii) no written
notice of a default on the part of the landlord under the Existing Leases
has been received by Seller, other than a notice setting forth a default
which, as of the date hereof, has been cured.
(b) Subject to the provisions of Section 15.6 hereof, Seller has paid
(or will on or before Closing pay) all Leasing Costs which pertain to the
current terms of the Leases, other than Leasing Costs payable in connection
with (A) the renewal or extension of an Existing Lease or a New Lease, the
effective date of which shall not yet have occurred on the date hereof, (B)
the leasing of space pursuant to the exercise of a right of first refusal
or first offer or similar right contained in an Existing Lease or a New
Lease, the effective date of which shall not yet have occurred on the date
hereof and (C) the failure timely to exercise any termination right set
forth in an Existing Lease or a New Lease at any time after the date hereof
(any such transaction, a "Contingent Commission Event".)
(c) There are no service contracts, brokerage agreements, maintenance
agreements or other agreements affecting the Premises, other than (i) the
Existing Leases, (ii) the Existing Service Contracts and (iii) any service
contracts which are terminable upon not more than 30 days notice without
penalty or premium.
(d) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, with respect to the Property, which are not covered
by insurance.
(e) There are no pending or, to Seller's knowledge, threatened,
eminent domain or condemnation proceedings with respect to the Property.
(f) The insurance coverages with respect to the Premises described in
Exhibit J annexed hereto are in full force and effect.
The representations of Seller contained in Section 9.3 (a) - (e) hereof
shall survive Closing for the Representation Survival Period.
ARTICLE 10. TITLE
-----------------
10.1. Acceptable Title. Seller shall convey, or cause to be conveyed,
and Purchaser shall accept, title to the Premises, as of the Closing Date,
subject to the Permitted Exceptions. The term "PERMITTED EXCEPTIONS" shall mean,
collectively, (i) the matters set forth in Exhibit K annexed hereto, (ii) Title
Exceptions that Title Insurer shall be willing to omit as exceptions to coverage
with respect to any owner's or lender's mortgage insurance policy obtained by
Purchaser, (iii) the standard exceptions and provisions contained in the form of
insuring agreement employed by Title Insurer and (iv) any exceptions and matters
that are approved, waived or deemed to have been approved or waived by
Purchaser.
10.2. Inability to Convey Acceptable Title. Purchaser agrees to obtain,
at its expense, a title report with respect to the Premises from Title Insurer
(the "TITLE REPORT"), and an update of the existing survey of the Subject
Premises by a licensed New Jersey surveyor. Purchaser shall furnish a copy of
the Title Report and survey to Seller promptly after Purchaser receives each,
but in no event later than fifteen (15) days following the Effective Date. On or
before the date which is twenty (20) days after the Effective Date ("TIME BEING
OF THE ESSENCE), Purchaser may furnish Seller with a written notice (the "TITLE
OBJECTION NOTICE") of those Title Exceptions noted in the Title Report or the
survey update which are not Permitted Exceptions and as to which Purchaser
objects. In addition, within five (5) days of Purchaser's receipt of any
continuation of the Title Report, Purchaser may furnish Seller with written
notice of Title Exceptions noted therein which are not Permitted Exceptions and
as to which Purchaser objects, provided such Title Exceptions were not noted in
the Title Report (or any prior continuation thereof) or the survey update (any
such notice shall also constitute a "TITLE OBJECTION NOTICE"). Purchaser shall
be deemed to have waived any objection to Title Exceptions set forth in the
Title Report (or any continuation thereof) or the survey update to which timely
objection is not made in a Title Objection Notice. For purposes of this
Agreement, the term "TITLE EXCEPTIONS" shall mean any lien, encumbrance,
security interest, charge, reservation, lease, tenancy, easement, right-of-way,
encroachment, restrictive covenant, condition or limitation affecting the
Property.
10.3. Seller's Rights. Seller shall have the right, in its sole
discretion, upon notice to Purchaser (the "TITLE RESPONSE NOTICE") given within
ten (10) days after Seller's receipt of any Title Objection Notice (TIME BEING
OF THE ESSENCE), to elect to either (i) take such action as Seller deems
advisable to discharge those Title Exceptions which are not Permitted Exceptions
and are set forth in the Title Objection Notice (the "TITLE DEFECTS") or (ii)
terminate this Agreement, whereupon the Deposit shall be refunded to Purchaser
and thereafter neither party hereto shall have any further obligation to the
other party hereto, with the exception of those obligations which expressly
survive the termination of this Agreement. If Seller fails timely to deliver the
Title Response Notice, then Seller shall be deemed to have elected to terminate
this Agreement pursuant to clause (ii) above. If Seller, in its Title Response
Notice, elects to take action to remove, remedy or comply with the Title
Defects, Seller shall be entitled to one or more adjournment(s) of the Closing
for up to 30 days in the aggregate, to discharge the Title Defects. If Seller is
unable to remove, remedy or comply with such Title Defects at the expiration of
such adjournment(s), then this Agreement shall be deemed to be terminated as of
the last adjourned date of Closing. Upon such termination, the Deposit shall be
refunded to Purchaser and neither party hereto shall have any further obligation
to the other party, with the exception of those obligations which expressly
survive the termination of this Agreement. Except as set forth in Section 10.5
hereof, nothing in this Agreement shall be deemed to require Seller to take or
bring any action or proceeding or any other steps to remove any defect in or
objection to title or to expend any moneys therefor, nor shall Purchaser have
any right of action against Seller, at law or in equity, therefor.
10.4. Purchaser's Right to Accept Title. Purchaser may, upon written notice
to Seller at any time on or before the Closing Date (as the same may have been
adjourned by Seller in accordance with the provisions of Section 10.3 hereof),
elect to accept such title as Seller can convey, notwithstanding the existence
of any Title Defects. In such event, (i) this Agreement shall remain in force
and effect, (ii) the parties shall proceed to Closing and (iii) Purchaser shall
not be entitled to any abatement of the Purchase Price, any credit or allowance
of any kind or any claim or right of action against Seller for damages or
otherwise by reason of the Title Defects.
10.5. Seller's Obligation. Notwithstanding anything contained in this
Article 10 the contrary, Seller shall at or prior to Closing discharge any
mortgage affecting the Property and any other Title Defects which are knowingly
and intentionally created by Seller subsequent to the Effective Date or which
may be discharged solely by the payment of a sum of money, not to exceed $50,000
in the aggregate.
10.6. Title Affidavits, Etc.
(a) If requested by Title Insurer, Seller shall deliver (i) one or
more reasonable and customary title affidavits executed by Seller (or an
officer thereof), certifying to factual matters concerning Seller or the
Premises which are within the knowledge of Seller, (including, without
limitation, any reasonable and customary affidavit which may be required in
order to omit from title insurance coverage any exceptions for judgments,
bankruptcies or other returns against persons or
entities, other than Seller, whose names are the same as or similar to
Seller's name), and (ii) documents evidencing Seller's payment of franchise
or unincorporated business taxes, as applicable.
(b) If requested by Title Insurer, Purchaser shall deliver (i) one or
more reasonable and customary title affidavits executed by Purchaser (or an
officer thereof), certifying to factual matters concerning Purchaser or the
Premises which are within the knowledge of Purchaser (or an officer
thereof) (including, without limitation, any reasonable and customary
affidavit which may be required in order to omit from title insurance
coverage any exceptions for judgments, bankruptcies or other returns
against persons or entities, other than Purchaser, whose names are the same
as or similar to Purchaser's name), and (ii) documents evidencing
Purchaser's payment of franchise or unincorporated business taxes, as
applicable, or dissolution taxes.
10.7. Violations. Seller shall have no responsibility to cure, or cause to
be cured, any Violations , whether the same have been noted or issued as of the
date hereof or are first noted or issued after the date hereof, and Purchaser,
in all events, agrees to close title to the Premises subject thereto. As used
herein, the term "Violation(s)" shall mean any violation of any law or municipal
ordinance, order or requirement noted or issued against the Property by any
federal, state or municipal department having jurisdiction over the Property.
ARTICLE 11. CASUALTY AND CONDEMNATION
-------------------------------------
11.1. Casualty.
(a) For purposes of this Article 11, the following terms shall have
the meanings indicated:
"MAJOR CASUALTY" means a fire in or other casualty to the
Building which causes damage or injury to the Premises and results in
Restoration Costs in excess of an amount equal to ten percent (10%) of
the Purchase Price.
"RESTORATION COSTS" means the cost to repair or restore (as
reasonably determined by an architect or engineer selected by Seller
and approved by Purchaser, which approval shall not be unreasonably
withheld, conditioned or delayed) the damage to the Building caused by
a fire or other casualty, exclusive of the cost of any such repair or
restoration for which Seller, as the landlord under any Lease, is not
responsible.
(b) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Building which is not a Major
Casualty, then Purchaser shall have no right to terminate this Agreement
and shall purchase the Premises in its damaged condition without reduction
of or offset against the Purchase Price or any other claim against Seller.
Seller shall assign to Purchaser the right to receive any insurance
proceeds payable to Seller as a result of such fire or other casualty;
provided, however, that Seller shall be entitled to retain (to the extent
theretofore paid to Seller), and shall not be obligated to assign the right
to receive (to the extent not theretofore paid to Seller), an amount of
such insurance proceeds equal to Seller's reasonable, out-of-pocket
expenses, if any, incurred in collecting such proceeds and repairing the
damage caused by fire or other casualty.
(c) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Building which is a Major Casualty,
then Purchaser shall have the option, to be exercised by notice given to
Seller within fifteen (15) days after the date of such casualty, to
terminate this Agreement. If Purchaser shall so elect to terminate this
Agreement, the Deposit shall be refunded to Purchaser, whereupon neither
party hereto shall have any further obligation to the other hereunder),
except for those obligations which expressly survive the termination of
this Agreement. If Purchaser shall not elect to terminate this Agreement as
provided in this subclause (c), then this Agreement shall remain in full
force and effect with respect and the provisions of Section 11.1(b) above
shall apply to such damage and any insurance proceeds payable in connection
therewith.
(d) In no event shall Seller have any obligation to repair any damage
or destruction to the Building, but Seller shall have the right to do so
and utilize insurance proceeds for such purpose.
(e) Seller and Purchaser expressly intend that the provisions of this
Section 11.1 shall govern in the event of a fire or other casualty.
11.2. Condemnation.
(a) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would result in a material
taking, then either Seller or Purchaser may elect to terminate this
Agreement by giving written notice of its election to the other party
within fifteen (15) days after receiving notice of such prospective taking.
If Seller or Purchaser shall so elect to terminate this Agreement, the
Deposit shall be refunded to Purchaser, whereupon neither party hereto
shall have any further obligation to the other hereunder, except for those
obligations which expressly survive the termination of this Agreement. If
neither party so elects to terminate this Agreement, then the parties
hereto shall proceed to the Closing without reduction of or offset against
the Purchase Price and Purchaser shall have no other claim against Seller.
In such event, all of Seller's right, title and interest in and to any
condemnation proceeds paid or payable in connection therewith shall be
assigned to Purchaser. In no event shall Seller have any obligation to
repair or restore the Premises or any portion thereof by reason of any
condemnation..
(b) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would not result in a
material taking, then neither Seller nor Purchaser may terminate this
Agreement and the parties shall proceed to the Closing without reduction of
or offset against the Purchase Price and Purchaser shall have no other
claim against Seller. In such event, all of Seller's right, title and
interest in and to any condemnation proceeds paid or payable in connection
therewith shall be assigned to Purchaser. In no event shall Seller have any
obligation to repair or restore the Premises or any portion thereof by
reason of any condemnation.
(c) For purposes of this Section 11.2, a taking shall be deemed to be
a "material taking" if it would result in a diminution in the value of the
Property which exceeds ten percent (10%) of the Purchase Price, as
reasonably determined by Seller.
ARTICLE 12. DEFAULT AND REMEDIES
--------------------------------
12.1. Default By Purchaser. If Purchaser (i) defaults in its Closing
obligations (i.e., defaults in the payment of the Purchase Price or otherwise in
the performance of any of its obligations hereunder which are to be performed
on, or as of, the Closing Date), or (ii) otherwise materially defaults hereunder
and such other material default is not cured within ten (10) days after notice
thereof from Seller to Purchaser, then, and in any of such events, Seller, as
its sole remedy therefor, may terminate this Agreement by written notice to
Purchaser, whereupon the Deposit shall be paid to Seller as liquidated damages
on account of such default, and, thereafter, neither party shall have any
further rights or obligations hereunder other than those which expressly survive
the termination of this Agreement. Seller and Purchaser agree that the aforesaid
liquidated damages are a fair and reasonable amount to be retained by Seller as
agreed and liquidated damages in light of Seller's removal of the Premises from
the market and the costs incurred by Seller and shall not constitute a penalty
or a forfeiture.
12.2. Default By Seller. If Seller (i) defaults in its Closing
obligations (i.e., defaults in the performance of any of its obligations
hereunder which are to be performed on, or as of, the Closing Date), or (ii)
otherwise materially defaults hereunder and such material default is not cured
within ten (10) days after notice thereof from Purchaser to Seller, then, and in
either such event, Purchaser may, as its sole remedy therefor, either (x) pursue
an action for specific performance of this Agreement by Seller hereunder,
without abatement, credit against or reduction of the Purchase Price or (y)
terminate this Agreement by written notice to Seller and Escrowee, whereupon the
Deposit shall be refunded to Purchaser; it being understood and agreed that in
no event shall Purchaser be entitled to money damages. If Purchaser shall elect
to so terminate this Agreement, then, upon such election, neither party shall
have any further rights or obligations hereunder other than those which
expressly survive the termination of this Agreement. Except as expressly
provided in this Section 12.2, Purchaser waives any other right or remedy, at
law or in equity, which Purchaser may have or be entitled to as a result of any
default by Seller.
12.3. Post-Closing Breach of Representation. If Purchaser proceeds to
Closing with knowledge of any inaccuracy in a representation of Seller,
Purchaser shall be deemed to have waived objection to such inaccuracy and shall
have no right of action or claim against Seller for damages or otherwise by
reason thereof. If, after the Closing, Purchaser shall first learn of an
inaccuracy in any express representation of Seller (made as of the Closing
Date), which representation expressly survives Closing, then Purchaser (A) shall
have a claim for damages on account thereof and (B) Seller shall indemnify
Purchaser for reasonable attorneys' fees and disbursements incurred by Purchaser
in connection with any third-party actions or proceedings which arise by reason
of such breach of representation, provided that (i) any claim for damages or
indemnification not brought within the Representation Survival Period shall be
deemed waived, (ii) Purchaser hereby waives the right to collect or seek to
collect consequential or punitive damages and (iii) Purchaser reasonably can
demonstrate that the damages sustained by Purchaser as a result of such
inaccuracy exceed $100,000.
ARTICLE 13. BROKER
------------------
13.1. Broker. Seller and Purchaser each represent and warrant to the other
that each has had no conversations or dealings with any broker or finder in
connection with the transactions
contemplated hereby, other than Broker. Purchaser and Seller (each, an
"INDEMNIFYING PARTY") shall indemnify, defend and hold the other harmless from
and against any and all loss, cost or expense (including, without limitation,
reasonable attorneys' fees) arising by reason of a claim for a commission or
other compensation made by a broker or finder (other than Broker) claiming to
have dealt with the Indemnifying Party. Seller shall pay any brokerage
commission due to Trillium pursuant to a separate written agreement. Purchaser
shall pay any commission due to Landmark pursuant to a separate written
agreement. The provisions of this Article 13 shall survive Closing or any
termination of this Agreement.
ARTICLE 14. ASSIGNMENT
----------------------
14.1. No Assignment by Purchaser. Neither this Agreement nor any of the
rights of Purchaser hereunder (nor the benefits of such rights) may be assigned,
transferred or encumbered without Seller's prior written consent (which consent
may be withheld in Seller's sole and absolute discretion) and any purported
assignment, transfer or encumbrance without Seller's prior written consent shall
be void. Purchaser expressly covenants and agrees that (a) if Purchaser is a
corporation, a sale or transfer of more than fifty (50%) percent (at any one
time or, in the aggregate from time to time) of the shares of any class of the
issued and outstanding stock of Purchaser, its successors or assigns, or the
issuance of additional shares of any class of its stock to the extent of more
than fifty (50%) percent (at any one time or, in the aggregate from time to
time) of the number of shares of said class of stock issued and outstanding on
the date hereof, (b) if Purchaser is a partnership, joint venture or limited
liability company, a sale or transfer of more than fifty (50%) percent (at any
one time or, in the aggregate from time to time) of the partnership, joint
venture, membership or other unincorporated association interests of Purchaser,
its successors or assigns, or the issuance of additional partnership, joint
venture or member interests of any class to the extent of more than fifty (50%)
percent (at any one time or, in the aggregate from time to time) of the amount
of partnership, joint venture or member interests issued on the date hereof
shall, in any such case, constitute an assignment of this Agreement. Unless, in
each instance, the prior written consent of Seller has been obtained, any such
assignment shall constitute a material default under this Agreement and shall
entitle Seller to exercise all rights and remedies under this Agreement, at law
or equity, in the case of such a default.
14.2. Permitted Assignment to Affiliate. Notwithstanding the provisions of
Section 14.1 above to the contrary, the named Purchaser in this Agreement shall
have the one-time right to assign its rights and obligations under this
Agreement to an Affiliate of such named Purchaser effective on or prior to the
Closing, provided that on or prior to the effective date of such assignment,
Purchaser delivers to Seller evidence of the ownership of Purchaser and the
proposed assignee so as to permit Seller to verify that such proposed assignee
is an Affiliate of Purchaser and (c) on or prior to the effective date of such
assignment, the Purchaser shall deliver to Seller a written assumption, in form
reasonably satisfactory to Seller and duly executed and acknowledged by the
assignee, in which the assignee agrees to assume all of Purchaser's covenants,
agreements and obligations under this Agreement. As of the date of the
assignment of this Agreement to an Affiliate in accordance with the foregoing
provisions of this Section 14.2, the representations of Purchaser named herein
set forth in Section 9.1 hereof shall be remade as to the Affiliate, as
Purchaser, except that the representations and warranties set forth in Section
9.1(a) hereof shall be modified accordingly. Purchaser named
herein shall remain fully liable for all of Purchaser's covenants, agreements
and obligations under this Agreement notwithstanding any such permitted
assignment pursuant to this Section 14.2.
ARTICLE 15. COVENANTS
---------------------
15.1. Operation of Premises. Between the date hereof and the Closing Date,
Seller shall continue to maintain the Premises in the ordinary course and
substantially in accordance with the practices and procedures customarily
followed by Seller in the maintenance of the Premises prior to the date hereof;
provided, however, that Seller shall have no obligation to make any repairs or
expenditures that are capital in nature.
15.2. Insurance. Between the date hereof and the Closing Date, Seller shall
either (a) maintain in full force and effect the fire and other casualty
insurance coverages described in Exhibit J attached hereto or (b) replace such
insurance policies with other policies providing coverage equivalent thereto.
15.3. Modification of Leases. Between the date hereof and the Closing Date,
Seller shall not modify or amend any of the Existing Leases or any of the New
Leases without Purchaser's prior written consent in each instance, which consent
shall not be unreasonably withheld; provided, however, Seller shall have the
right, without Purchaser's consent, to enter into any modification or amendment
of an Existing Lease or a New Lease if the same is required pursuant to the
terms of the Existing Lease or the New Lease, as the case may be, or if the same
is entered into to effectuate or memorialize the exercise of any right or option
contained in the Existing Lease or the New Lease, as the case may be. If
required, Purchaser's consent shall be deemed granted if not denied by notice
(stating the grounds for denial with reasonable specificity) given to Seller
within five (5) Business Days after request for such consent by Seller.
15.4. Termination of Leases. Between the date hereof and the Closing Date,
Seller shall not cancel, accept the surrender of, or terminate any of the
Existing Leases or New Leases without Purchaser's prior written consent in each
instance, which consent shall not be unreasonably withheld; provided, however,
Seller shall have the right, without Purchaser's consent, to cancel, accept the
surrender of, or terminate an Existing Lease or a New Lease (i) if such
cancellation, surrender or termination is predicated upon a default of the
tenant thereunder or (ii) if such cancellation, surrender or termination is made
by the tenant pursuant to the terms of the Existing Lease or the New Lease, as
the case may be. If required, Purchaser's consent shall be deemed granted if not
denied by notice (stating the grounds for denial with reasonable specificity)
given to Seller within five (5) Business Days after request for such consent by
Seller.
15.5. New Leases. Between the date hereof and the Closing Date, Seller
shall not enter into any New Leases without Purchaser's prior written consent in
each instance, which consent shall not be unreasonably withheld.
15.6. Leasing Costs. Purchaser shall pay and be solely responsible for the
payment of (or, to extent paid by Seller, shall reimburse Seller at the Closing
for), all or a portion of any Leasing Costs paid or payable by the landlord
under the Leases in connection with (i) any New Lease or any modification or
amendment of any New Lease to which Purchaser has consented or to which
Purchaser's consent is not required in accordance with the terms hereof and (ii)
any modification or amendment of an Existing Lease to which Purchaser has
consented or to which Purchaser's consent is not required in accordance with the
terms hereof, including any Leasing Costs which arise by reason of a Contingent
Commission Event.
15.7. Service Contracts. Between the date hereof and the Closing Date,
Seller shall not enter into any New Service Contracts or modify, renew or extend
the term of any of the Existing Service Contracts or New Service Contracts
without Purchaser's prior written consent in each instance, which consent shall
not be unreasonably withheld, conditioned or delayed; provided, however, Seller
shall have the right, without Purchaser's consent, to enter into any New Service
Contracts and modify, renew or extend the term of any Existing Service Contracts
or New Service Contracts (i) if the same is cancelable upon no more than thirty
(30) days' notice without payment by Purchaser of a cancellation fee or (ii) if
the same is required pursuant to the terms of any of the Existing Service
Contracts or New Service Contracts or if the same is entered into to effectuate
or memorialize the exercise of any right or option on the part of the other
party (i.e., the contractor) contained in any of the Existing Service Contracts
or New Service Contracts. If required, Purchaser's consent shall be deemed
granted if not denied by notice (stating the grounds for denial with reasonable
specificity) given to Seller within five (5) Business Days after request for
such consent by Seller. Notwithstanding anything contained in this Section 15.7
to the contrary, Seller shall have the right, without Purchaser's consent, to
terminate any one or more of the Existing Service Contracts and the New Service
Contracts at any time on or prior to the Closing Date.
ARTICLE 16. MISCELLANEOUS
-------------------------
16.1. Notices. (a) All notices, demands, requests and other communications
required hereunder shall be in writing and shall be deemed to have been given:
(i) upon delivery, if personally delivered; (ii) three (3) days after deposit in
the United States Mail when delivered, postage prepaid, by certified or
registered mail; (iii) one (1) Business Day after deposit with a nationally
recognized overnight delivery service marked for delivery on the next Business
Day; or (iv) upon receipt when transmitted by telecopy, provided that notice is
also sent by one of the foregoing three methods, in each case addressed to the
party for whom it is intended at its address hereinafter set forth:
If to Seller:
Wellsford Capital Properties, LLC
c/o Wellsford Real Properties, Inc.
535 Madison Avenue
26th Floor
New York, NY 10022
Attention: William Darrow
Telecopy No: (212) 421-7244
with a copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Dennis M. Sughrue, Esq.
Telecopy No. (212) 541-4630
If to Purchaser:
CRC Communities, Inc.
634 Stangle Road
Martinsville, NJ 08836
Attention: Carl Chechio
Telecopy No. (732) 560-7360
with a copy to:
Archer & Greiner, P.C.
80 Main Street
Flemington, New Jersey 08822
Attention: Raymond B. Drake, Esq.
Telecopy No. (908) 788-7854
If to Escrowee:
Robinson Silverman Pearce Aronsohn & Berman
1290 Avenue of the Americas
New York, New York 10104
Attention: Dennis M. Sughrue, Esq.
Telecopy No. (212) 541-4630.
(b) Any party may designate a change of address by written notice to
the others given in accordance with the provisions of this Section 16.1.
(c) The attorney for any party may send notices on that party's
behalf.
16.2. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey.
16.3. Successors. All of the provisions of this Agreement and of any of the
documents and instruments executed in connection herewith shall apply to and be
binding upon, and inure to the benefit of Seller and Purchaser, their successors
and their permitted assigns.
16.4. No Third Party Beneficiary. This Agreement and each of the provisions
hereof are solely for the benefit of Purchaser and Seller and their permitted
assigns. No provisions of this Agreement or of any of the documents and
instruments executed in connection herewith shall be
construed as creating in any person or entity other than Purchaser and Seller
and their permitted assigns any rights of any nature whatsoever.
16.5. No Personal Liability. Purchaser shall look only to Seller's estate
and interest in the Property for the collection of a judgement (or other
judicial process) requiring the payment of money by Seller in the event that
Purchaser is expressly entitled to a damage claim against Seller pursuant to the
terms of this Agreement, and no other property or assets of Seller or its
partners, members, officers, managers, shareholders or principals, disclosed or
undisclosed, shall be subject to levy, execution, attachment or other
enforcement procedure for the satisfaction of any such damage claim against
Seller under or with respect to this Agreement. The foregoing provisions of this
Section are not intended to, and shall not, limit any express right that
Purchaser might otherwise have to obtain equitable relief (including the remedy
of specific performance where applicable and appropriate) against Seller. The
terms and provisions of this subsection shall survive the Closing or the earlier
termination of this Agreement.
16.6. Entire Agreement. This Agreement, together with the documents and
instruments executed and delivered in connection herewith, set forth the entire
agreement between Purchaser and Seller relating to the transactions contemplated
hereby and all other prior or contemporaneous agreements, understandings,
representations or statements, oral or written, relating directly to the
Property are superseded hereby.
16.7. Severability. If any provision in this Agreement is found by a court
of competent jurisdiction to be in violation of any applicable law, and if such
court should declare such provision of this Agreement to be unlawful, void,
illegal or unenforceable in any respect, the remainder of this Agreement shall
be construed as if such unlawful, void, illegal or unenforceable provision were
not contained therein, and the rights, obligations and interests of the parties
hereto under the remainder of this Agreement shall continue in full force and
effect undisturbed and unmodified in any way.
16.8. Modification. This Agreement and the terms hereof may not be changed,
waived, modified, supplemented, canceled, discharged or terminated orally, but
only by an instrument or instruments in writing executed and delivered by Seller
and Purchaser.
16.9. Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND
UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS OR CERTIFICATES
EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS
OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.
16.10. Venue. Purchaser and Seller each hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of this Agreement or the transactions
contemplated hereby brought in any federal or state court sitting in the State
of New Jersey and hereby further irrevocably waives and claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Seller and Purchaser further hereby expressly submits to the
jurisdiction of all federal and state courts sitting in the State of New Jersey.
16.11. No Recording. Neither this Agreement nor any memorandum hereof shall
be recorded. Each party hereby agrees to indemnify and hold harmless the others
for all liabilities, losses, damages, liens, suits, claims, costs and expenses
(including reasonable attorneys' fees) incurred by the others by reason of a
breach of the foregoing covenant.
16.12. Captions. The captions and table of contents in this Agreement are
inserted for convenience of reference only and in no way define, describe or
limit the scope or intent of this Agreement or any of the provisions hereof.
16.13. Counterparts; Effectiveness of Agreement. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which together will constitute one instrument. This
Agreement shall not be effective unless and until the same has been executed and
delivered by all parties hereto whether in one or more counterparts.
16.14. Merger. The delivery of the Deed to Purchaser and the closing of
title to the Property shall be deemed to constitute full performance and
discharge by Seller of every agreement and obligation on the part of Seller to
be performed hereunder, and no agreement, promise, representation or warranty,
express or implied, on the part of Seller shall survive Closing unless expressly
set forth to the contrary herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Seller:
------
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its sole member
By: /s/ William H. Darrow II
-----------------------------------
Name: William H. Darrow II
Title: Vice President
Purchaser:
---------
CRC COMMUNITIES, INC.
By: /s/ Carl Checchio
-----------------------------------
Name: Carl Checchio
Title: President
Agreed as to Section 3.2 only:
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
By: /s/ Johnathan S. Margolis
-----------------------------------
Name: Johnathan S. Margolis
Partner
Exhibit A
(the Land)
All that certain plot, piece or parcel of land, with buildings and improvements
thereon erected, situate, lying and being in the Township of Piscataway, County
of Middlesex and State of New Jersey being described as follows:
BEGINNING at a point of intersection of the easterly right-of-way line of Hoes
Lane (variable width), with the northerly right-of-way of Lincoln Avenue (50
feet wide), and from said BEGINNING point; thence
(1) North 8 degrees 25 minutes 00 seconds West along the easterly right-of-way
line of Hoes Lane, a distance of 2.67 feet to a point; thence
(2) North 8 degrees 5 minutes 26 seconds West, still along said right-of-way
line, a distance of 272.33 feet to a point; thence
(3) North 81 degrees 37 minutes 00 seconds East along the common line between
Lots 24 and 25 in Block 593, a distance of 454.03 feet to a point; thence
(4) South 8 degrees 26 minutes 23 seconds East along the common line between
Lots 24 and 23 in Block 593, a distance of 275.00 feet to a point in the
northerly right-of-way line of Lincoln Avenue; thence
(5) South 81 degrees 37 minutes 00 seconds West along the northerly right-of-way
line of Lincoln Avenue, a distance of 455.69 feet to a point, said point being
the point and place of BEGINNING.
Exhibit A-1
(Escrowee Account Information)
Boston Safe Deposit and Trust Company
One Boston Place
Boston, Massachusetts 02108
ABA # 011 001 234
Credit to account of: Robinson Silverman Pearce Aronsohn & Berman LLP Attorney
Trust Account
Account Number 229121
Exhibit B
(Existing Leases)
Exhibit C
(Existing Service Contracts)
Exhibit D
(Form of Tenant Estoppel Certificate)
TENANT ESTOPPEL CERTIFICATE
Landlord: Wellsford Capital Properties, L.L.C.
Tenant:
-----------------------------------
Original Lease Date:
-----------------------------------.
The undersigned Tenant under the above-referenced Lease (the "LEASE") hereby
ratifies and certifies to CRC Communities, Inc. or its affiliate ("PURCHASER"),
as the prospective purchaser of the real property commonly known as 501 Hoes
Lane, Piscataway, New Jersey (the "PROPERTY"), of which the premises demised
under the Lease is a part (the "PREMISES"), and to any lender providing
financing to Purchaser in connection with its acquisition of such real property
("LENDER"), as follows:
1. The CURRENT term of the Lease commenced on ____________ and expires on
__________. Tenant has accepted and is in possession of the Premises.
2. The Lease presently calls for monthly installments of fixed or base
rent of $___________.
4. _______ Rent has been paid to and including ____________, 2000, and no
advance rental or other payment has been made in connection with the
Lease, except rental for the current month. Tenant has no defenses or
set-offs to the payment of rent.
5. A security deposit in the amount of $ _________ is being held by
Landlord.
6. _______ There is no existing event of default on the part of the
Landlord or the Tenant in any of the terms and conditions of the
Lease,* and Tenant has no offsets or defenses to the payment of rent
thereunder.
7. The Lease is valid and in full force and effect and represents the
entire agreement between the parties, and the Lease has (check one):
( ) not been amended, modified, supplemented, extended, renewed or
assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
--------------------------------------------------------.
- ----------
* Will accept modified to Tenant's knowledge as to Landlord default.
8. As of the date hereof, Landlord has fully performed all of its
obligations under the Lease and satisfied all commitments made to
induce Tenant to enter into the Lease and Tenant is not entitled
to any rental inducements, "free rent", rent allowance, rent
credits or other concession or economic inducements in connection
with the Lease throughout the remainder of the term except as
follows:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
-------------------.
9. All construction, build-out, improvements, or alterations to the
Premises required under the Lease have been fully completed in
accordance with the plans and specifications described in the
Lease and all contributions required to be made by Landlord
throughout the term of the Lease on account thereof have been
made except as follows:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
---------------.
10. There are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any
state thereof.
11. Tenant has no renewal, extension, cancellation or expansion
rights under the Lease, except to the extent expressly set forth
in the Lease.
12. Tenant has no right of first offer or refusal with respect to, or
other option to purchase, all or any portion of the Premises.
13. Tenant has not assigned, transferred or pledged the Lease or any
interest therein or sublet any portion thereof except as follows:
--------------------------------------------------------------
-- .
This certificate has been given to Purchaser and Lender with the
understanding that Purchaser is acquiring the Property in reliance on this
Tenant Estoppel Certificate and Lender will rely hereon in connection with loans
which will be secured by the Property. The undersigned hereby certifies that he
or she is duly authorized to sign and deliver this Tenant Estoppel Certificate.
Tenant:
Date: By:
---------, ------. --------------------------
Name:
Title:
Exhibit E
(Form of Bill of Sale)
BILL OF SALE
------------
KNOW ALL MEN BY THESE PRESENTS,
That WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at 535 Madison
Avenue, 26th Floor, New York, New York 10022 ("GRANTOR"), for and in
consideration of the sum of Ten Dollars ($10.00), lawful money of the United
States, to it in hand paid, at or before delivery of these presents by CRC
COMMUNITIES, INC., having an office _____________________ ("GRANTEE"), the
receipt of which is hereby acknowledged, by these presents does hereby convey,
without recourse, representation or warranty of any kind, unto Grantee, its
successors and assigns, all right, title and interest of Grantor in and to all
personal property affixed to, located upon or used in connection with the real
property described in Schedule 1 annexed hereto and made a part hereof.
TO HAVE AND TO HOLD the same unto Grantee, its successors and assigns
forever.
This Bill of Sale shall be governed by and construed in accordance with the
laws of the State of New Jersey.
IN WITNESS WHEREOF, Grantor has caused this instrument to be duly executed
as of this ___ day of ------, ----.
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By:
------------------------------------------
Name:
Title:
Schedule 1
----------
All that certain plot, piece or parcel of land, with buildings and improvements
thereon erected, situate, lying and being in the Township of Piscataway, County
of Middlesex and State of New Jersey being described as follows:
BEGINNING at a point of intersection of the easterly right-of-way line of Hoes
Lane (variable width), with the northerly right-of-way of Lincoln Avenue (50
feet wide), and from said BEGINNING point; thence
(1) North 8 degrees 25 minutes 00 seconds West along the easterly right-of-way
line of Hoes Lane, a distance of 2.67 feet to a point; thence
(2) North 8 degrees 5 minutes 26 seconds West, still along said right-of-way
line, a distance of 272.33 feet to a point; thence
(3) North 81 degrees 37 minutes 00 seconds East along the common line between
Lots 24 and 25 in Block 593, a distance of 454.03 feet to a point; thence
(4) South 8 degrees 26 minutes 23 seconds East along the common line between
Lots 24 and 23 in Block 593, a distance of 275.00 feet to a point in the
northerly right-of-way line of Lincoln Avenue; thence
(5) South 81 degrees 37 minutes 00 seconds West along the northerly right-of-way
line of Lincoln Avenue, a distance of 455.69 feet to a point, said point being
the point and place of BEGINNING.
Exhibit F
(Form of Assignment and Assumption of Leases)
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT"), made as of
the ___ day of _______, ____, by and between WELLSFORD CAPITAL PROPERTIES,
L.L.C., having an office at 535 Madison Avenue, 26th Floor, New York, New York
10022 ("ASSIGNOR"),and CRC COMMUNITIES, INC., having an office at
_____________________ ("ASSIGNEE"), for and in consideration of the sum of Ten
Dollars ($10.00),lawful money of the United States, to it in hand paid, at or
before delivery of these presents by Assignee with reference to the following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November __, 2000 (the
"PURCHASE AGREEMENT"), Assignor is conveying to Assignee certain real property
more particularly described therein and commonly known as 501 Hoes Lane,
Piscataway, New Jersey.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
promises, covenants and undertakings contained in the Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
Assignor hereby transfers, and otherwise conveys unto Assignee, without
recourse, representation or warranty of any kind (except as may be expressly set
forth in the Purchase Agreement, and subject to the limitations on survival set
forth therein), all of the rights, title and interest of Assignor, as landlord
under the leases (the "Leases") described in Schedule 1 annexed hereto and
incorporated herein by this reference, including without limitation, all rents,
issues and profits arising therefrom and any security held under the Leases for
the performance of the tenants' obligations thereunder, TO HAVE AND TO HOLD all
and singular subject as aforesaid, unto Assignee.
From and after the date hereof, Assignee assumes and agrees to discharge
and perform all duties, obligations and liabilities arising on or after the date
hereof to be performed by Assignor, as landlord, under the Leases, for the
duration of the respective terms thereof. Without limiting the generality of the
foregoing, the obligations and liabilities assumed by Assignee hereunder shall
include, but shall not be limited to, the obligation to properly apply any
advance rental, security deposit or other deposit under any of the Leases, to
the extent such advance rental, security deposit or other deposit has been
delivered, assigned or credited by Assignor to Assignee concurrently herewith.
This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the successors and assigns of the parties.
This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
This Assignment shall be governed by and construed in accordance with the
laws of the State of New Jersey.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By:
-----------------------------
Name:
Title:
ASSIGNEE:
CRC COMMUNITIES, INC.
By:
-----------------------------
Name:
Title:
Schedule 1
----------
[List of Leases]
Exhibit G
(Form of Assignment and Assumption of Service Contracts, Licenses and Permits)
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS,
-----------------------------------------------
LICENSES AND PERMITS
--------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS
(this "ASSIGNMENT"), made as of the ___ day of _______, ____, by and between
WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at 535 Madison Avenue,
26th Floor, New York, New York 10022 ("ASSIGNOR"),and CRC COMMUNITIES, INC.,
having an office at 634 Stangle Road, Martinsville, New Jersey 08836
("ASSIGNEE"), for and in consideration of the sum of Ten Dollars ($10.00),
lawful money of the United States, to it in hand paid, at or before delivery of
these presents by Assignee with reference to the following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November ___, 2000 (the
"PURCHASE AGREEMENT"), Assignor is conveying certain real property known as 501
Hoes Lane, Piscataway, New Jersey (the "PROPERTY") to Assignee. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Purchase Agreement.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
foregoing promises, covenants and undertakings contained in this Assignment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
1. (a) Assignor hereby assigns to Assignee, without recourse representation
or warranty of any kind, all of its right, title and interest in and to the
assignable Service Contracts and the assignable Licenses and Permits.
(b) Assignee hereby accepts the foregoing assignment and agrees to
assume, keep, perform and fulfill all of the terms, conditions and
obligations which are required to be kept, performed and fulfilled by
Assignor in connection with or arising out of the assignable Service
Contracts and the assignable Licenses and Permits from and after the date
hereof.
(c) Assignee further hereby assumes the obligations of Assignor with
respect to post-termination leasing commissions payable in accordance with
Exhibit B, Section 9 of the Leasing Agency Agreement.
2. This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
3. This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
4. This Assignment shall be governed by and construed in accordance with
the laws of the State of New Jersey.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By:
-------------------------------
Name:
Title:
ASSIGNEE:
CRC COMMUNITIES, INC.
By:
-------------------------------
Name:
Title:
Exhibit H
(Rent Roll)
Exhibit I
(Lease Disclosure Statement)
Notice of default sent by property manager, dated August 31, 2000, to Inventus
Group.
Exhibit J
(Insurance Coverages)
Exhibit K
(Permitted Exceptions)
1. The Leases and the rights of tenants thereunder, including, without
limitation, memoranda of the Leases and non-disturbance agreements recorded
with respect thereto.
2. Zoning and building regulations, ordinances, and requirements adopted by
any governmental or municipal authority having jurisdiction thereof, and
amendments and additions thereto now in force and effect, which relate to
the Premises.
3. Any agreements, financing statements, chattel mortgages, liens or
encumbrances entered into by, or arising from, the acts of any tenant.
4. Conditional bills of sale or Uniform Commercial Code financing statements
which were filed on a day more than five years prior to the Closing.
5. Subject to adjustment as herein provided, real estate taxes, tax liens,
water and sewer charges, assessments and vault charges, and the liens of
any of the foregoing.
6. State of facts disclosed on that certain survey of the Premises as last
redated April 4, 1996 by Ensureplan, Inc., and any additional state of
facts an accurate survey update or visual inspection would disclose.
7. Easements as set forth in Deed Book 1235 Page 274, Deed Book 480 Page 565,
Deed Book 2156 Page 224 and Deed Book 3550 Page 49, Middlesex County
Clerk's Office.
FIRST AMENDMENT
TO SALE-PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO SALE-PURCHASE AGREEMENT (this "AGREEMENT") dated as
of January 4, 2001 between WELLSFORD CAPITAL PROPERTIES, L.L.C., a Delaware
limited liability company having an address c/o Wellsford Real Properties, Inc.,
535 Madison Avenue, 26th Floor, New York, New York 10022 ("SELLER"), and CRC
COMMUNITIES, INC., a New Jersey corporation having an address at 634 Stangle
Road, Martinsville, New Jersey 08836 ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller and Purchaser entered into a Sale-Purchase Agreement dated
as of December 4, 2000 (the "PURCHASE AGREEMENT") with respect to premises known
as 501 Hoes Lane, Piscataway, New Jersey and more particularly described
therein; and
WHEREAS, Seller and Purchaser wish to modify the Purchase Agreement in the
manner hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser hereby agree as follows:
Q. Defined Terms. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Purchase Agreement.
R. Purchase Price. The Purchase Agreement is hereby modified by reducing
the Purchase Price thereunder to $2,400,000. The Cash Balance due at Closing is
accordingly reduced to $2,350,000, net of adjustments.
S. Closing Date. For avoidance of doubt, the parties hereby acknowledge
that the Closing Date under the Purchase Agreement is January 18, 2001.
T. Waiver of Due Diligence Contingency. Purchaser acknowledges that it has
waived the due diligence contingency conferred upon it by Section 4.1 of the
Purchase Agreement and further acknowledges that the Purchase Agreement, as
modified by this Agreement, is in full force and effect, notwithstanding any
prior conditional exercise by Purchaser of its due diligence contingency prior
to the date hereof.
U. General.
(1) This Agreement shall bind, and inure to the benefit of, the
parties hereto and their respective successors and assigns.
(2) This Agreement shall not be modified orally, but only by an
agreement in writing executed by Seller and Purchaser.
(3) This Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey, without giving effect to the
conflict of law principles thereof.
(4) This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which, when taken together, shall
constitute but one and the same agreement.
(5) This Agreement may be executed and delivered by facsimile.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this
Agreement as of the date and year first above written.
SELLER:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its Manager
By:
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William H. Darrow
Vice President
PURCHASER:
CRC COMMUNITIES, INC.
By:
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Name:
Title: