Exhibit 10.92
CONTRACT OF SALE
This Contract of Sale is made as of this _23 day of January, 2004 by
and between WILSHIRE ENTERPRISES, INC. formerly known as WILSHIRE OIL COMPANY OF
TEXAS, a Delaware corporation with its principal office at 921 Bergen Avenue,
Jersey City, New Jersey 07306 ("Seller"), and ECONOMIC PROPERTIES 2004, L.L.C.,
a New Jersey limited liability company, having an address at 11D Harmony Road,
Spring Valley, New York 10977 ("Buyers").
W I T N E S S E T H:
WHEREAS, Buyer desires to acquire and Seller desires to sell certain
properties located in the City of Jersey City, County of Hudson and State of New
Jersey, as more particularly described in Schedule "A" attached hereto and made
a part hereof (the "Property");
NOW, THEREFORE, in consideration of the premises herein set forth and
for the payment of One Dollar ($1.00) and other good and valuable consideration,
the receipt and sufficiency whereof are hereby acknowledged by the undersigned,
the parties hereto agree as follows:
1. Seller agrees to sell, convey and transfer to Buyer and the Buyer
agrees to buy, receive and accept the Property.
2. The purchase price to be paid by Buyer to Seller for the Property
shall be Eleven Million and No/100 Dollars ($11,000,000.00) (the "Purchase
Price"). The Buyer shall pay Two Hundred Thousand and No/100 Dollars
($200,000.00) upon execution of this Contract, which shall be held in escrow by
Seller's attorney in a non-interest bearing attorney trust account until the
closing of title. The balance of the Purchase Price shall be payable by
certified check, bank check, attorney trust account check or wire transfer in
immediately available funds, at closing.
3. The purchase of the Property is not contingent on the Buyer
obtaining financing. The Buyer represents to the Seller that the Buyer has
adequate financial resources, including the ability to obtain financing, to
purchase the Property pursuant to the terms contained in this Agreement.
4. Buyer shall at its expense obtain a survey of the Property including
a metes and bounds description thereof. Such legal description shall be inserted
in the Deed delivered at closing.
5. On the Closing Date (as hereinafter defined), Seller shall execute
and deliver a Bargain and Sale Deed with Covenants against Grantor's Acts (the
"Deed"), and such other documents as shall be reasonably necessary to convey
title to Buyer for the Property.
6. Buyer shall, at its sole cost and expense, obtain a commitment for
an ALTA owner's title insurance policy covering the Property and shall deliver a
copy to Seller no later than thirty (30) days after the date hereof. Title to
the Property shall be free of all liens, encumbrances or other restrictions
which would render title unmarketable or uninsurable at standard rates from a
title insurance company authorized to do business in the State of New Jersey,
except for:
(i) all standard exclusions and printed exceptions set
forth in the standard form of owner's policy of title
insurance;
(ii) the rights of utility companies to maintain pipes,
poles, cables and wires over, on and under the
street, the part of the Property adjacent to the
street or running to any building or other
improvements on such Property;
(iii) easements, covenants and restrictions which limit the
use of the Property, unless the agreements (1) are
presently violated, (2) provide that the Property
would be forfeited if they were violated, or (3)
prohibit the permitted use (pursuant to local zoning
ordinances and regulations) of the Property;
(iv) zoning regulations and municipal building
restrictions, and all other laws, ordinances,
regulations and restrictions of any duly constituted
public authority enacted prior to the closing date;
(v) matters which were or are caused or created by acts
done or suffered by Buyer;
(vi) matters which have been or are accepted by Buyer;
(vii) real estate taxes not yet due and payable and any
possible additional assessments;
(viii) matters shown on a current survey of the Property,
except for overlaps and encroachments which render
the title unmarketable; and,
(ix) unpaid franchise taxes, provided the Seller delivers
to Buyer at closing an indemnification agreement
executed by the Seller agreeing to indemnify and hold
Buyer and its title insurance company harmless
against any loses they may incur as a result of the
State of New Jersey exercising a claim against the
Property provided the Buyer's title insurance company
will omit any exception for franchise taxes, further
provided that if the Buyer's title insurance company
will not omit any exception for franchise taxes,
Buyer will accept a commitment from any title
insurance company licensed to do business in the
State of New Jersey, which will insure at regular
rates without making an exception for franchise
taxes.
Each of the foregoing exceptions (i) - (ix) are hereinafter referred to
as "Permitted Exceptions".
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Buyer must within five (5) days from the date of receipt of its title
binder, notify Seller in writing of any objection to title that are not
Permitted Exceptions. If such notice is not received within such time period,
any objections shall be deemed waived. Buyer shall notify Seller of any
objection to title that is not a Permitted Exception within five (5) days of the
Buyer's receipt of any objection not shown in the initial title report. The
Seller shall have ten (10) business days after receipt of notice of any title
objections to cure such title objections (or, if not readily curable within said
ten (10) business day period, then the Seller may have such additional time as
is reasonably necessary to cure the same, in which case, the Closing Date shall
be extended accordingly) (said ten (10) business day period or expansions
thereof, as the same may be extended, being hereinafter referred to as the "Cure
Period"). If some or all of the title objections can only reasonably be cured at
Closing, then Seller may covenant to cure such title objections at Closing,
subject to Buyer's reasonable consent. Should the Seller be unable or unwilling
to cure the title objections within the Cure Period, the Seller shall notify the
Buyer of such fact prior to the expiration of the Cure Period, and the Buyer
shall have the option to: (i) accept the Property subject to the title
objections; or (ii) declare this Agreement to be null and void and of no further
force or effect, in which case, all sums paid or deposited with the Seller shall
be returned to the Buyer. The Buyer shall notify the Seller of its election of
alternative (i) or (ii) above within ten (10) days after receipt from Seller of
notice of Seller's inability to cure the title objections. Seller agrees to not
intentionally take any action which will cause a title objection.
Notwithstanding anything contained herein, Seller will satisfy any lien
encumbering an individual property which can be satisfied with the payment of
money at closing, up to the amount of the Purchase Price allocated to that
individual property, provided that if a mortgage loan encumbers more than one
(1) property, the limitation in this sentence shall not apply to that mortgage
lien.
7. In connection with this Contract and the transactions contemplated
hereby, Seller makes the following representations and warranties: (a) that it
has entered into no other contracts to sell the Property to be conveyed
hereunder; and (b) that the transactions contemplated by this Contract do not
and will not result in a breach of the terms of Seller's articles of
incorporation or its by-laws. If the amount of liens, excluding mortgage liens
encumbering more than one property, exceed the Purchase Price allocated to that
individual property, the Seller in the Seller's sole option, may satisfy that
lien from the closing proceeds, or may withdraw that property from this
Contract, in which event the Purchase Price shall be adjusted accordingly.
8. The Buyer represents and warrants to the Seller that:
(a) Buyer has the requisite authority to enter into this
Contract and to purchase the Property under the terms
and conditions of this Contract and that this
Contract is the valid and binding obligation of
Buyer;
(b) Buyer has the financial capacity to purchase the
Property at the price and under the terms and
conditions of this Contract; and
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(c) Notwithstanding anything else to the contrary in the
Contract of Sale, the Buyer acknowledges that the
Buyer is not relying on any representation or
inducement which was or may have been made or implied
by the Seller or any other party acting on behalf of
the Seller with respect to the Property or any
circumstances or conditions affecting the Property
(including, without limitation, matters relating to
approvals and requirements of governmental
authorities and utility companies). The Buyer is
purchasing the Property in an "AS IS" "WHERE IS"
condition with "ALL FAULTS" as of the date of this
Contract and the Closing Date. The Buyer expressly
acknowledges and agrees that, except as expressly set
forth in this Contract or any rider to this Contract,
no representations or warranties have been made or
are made and no responsibility has been or is assumed
by Seller or by any employee, officer, person, firm,
agent or representative acting or purporting to act
on behalf of Seller as to the condition or repair of
the Property or the value, expenses of operation,
developability or income potential thereof or as to
any other fact or condition which has or might affect
the Property or the condition, repair, value, expense
of operation, developability or income potential
thereof. Buyer acknowledges that Seller has requested
Buyer to inspect fully the Property and all portions
thereof and to rely solely upon the results of
Buyer's own inspections or other information obtained
or otherwise available to Buyer and Buyer waives any
and all actions, causes of action, suits, damages,
and demands, whether at law or equity, that Buyer may
have or could have against Seller with respect to the
condition of the Property. All future, and except as
set forth herein, all current, notices of violations
of federal, state or municipal laws, statutes,
regulations, ordinances, orders or requirements,
whether or not noted or issued by any governmental
authorities having jurisdiction of any type or
character what-so-ever, against or affecting the
Property or any part thereof shall be the sole
responsibility of Buyer, who expressly undertakes the
duty and obligation to investigate the existence of
any such violations, and Seller shall have no
responsibility therefor. Buyer shall be responsible
to obtain a Smoke Detector Certificate, and if
required by the municipality a Certificate of
Occupancy or Continued Occupancy. Seller shall be
obligated to make any repairs necessary to correct
any violations listed on all violation notices issued
on the date of this Contract, or earlier. Buyer
acknowledges that all repairs may not be inspected as
of the date of closing. Buyer shall be responsible to
correct all violations, if any, shown on any
violation notices issued after the date of this
Contract. This paragraph shall survive the Closing.
(d) Buyer acknowledges that, except as expressly set
forth in this Contract or any Rider thereto, neither
Seller nor Seller's agents has made any express
statement, representation or warranty concerning
past, present, or future liability arising out of or
related to the environmental condition of the
Property, and Seller shall have no liability to Buyer
by reason of the presence of any hazardous substances
or wastes within the meaning of the New Jersey Spill
Compensation and Control Act (N.J.S.A. 58:10-23.11 et
seq.) or any other toxic or other hazardous material
as may be defined under applicable environmental
statutes, regulations, rules or ordinances
(collectively, "hazardous substances") on the
Property, or the migration of any hazardous
substances from the Property in, on or under any
adjacent property. This paragraph shall survive the
Closing.
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9. Seller shall pay for any applicable realty transfer fees for the
Property. Real estate taxes, water and sewer charges, rents collected, and any
security deposits paid by tenants shall be adjusted as of the Closing Date along
with such other items of adjustment customary for a transaction of this nature.
Any other costs or charges of closing not specifically mentioned in this
Contract shall be paid by the party who customarily pays such charges or costs
as determined by local custom.
10. Seller and Buyer each represent to the other that it has had no
dealings, negotiations or consultations with any broker, representative,
employee, agent or other intermediary in connection with this Contract or the
sale of the Property except for Gerber/ Somma Associates, Inc. (the "Broker").
The Buyer will pay a commission to the Broker pursuant to a separate agreement
between the Buyer and the Broker. Except for the Broker, each party will
indemnify, defend and hold the other free and harmless from the claims of any
brokers, representatives, employees, agents or other agents or other
intermediaries claiming to have represented it in connection with this Contract
or in connection with the sale of the Property. This paragraph shall survive the
closing of title.
11. Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed to be given three (3) business days after being
mailed, postage prepaid, by U.S. registered or certified mail, return receipt
requested or one (1) business day after being sent by overnight courier service,
in any case, addressed to the parties at their respective addresses first named
in this Contract or to their attorneys.
12. (a) The closing of title (the "Closing") shall take
place on or prior to April 30, 2004 (the "Closing
Date"), time being of the essence, at the offices of
Buyer's Attorney or at the offices of the attorneys
for any Lender, provided the attorney's office is
located in the State of New Jersey, in Middlesex
County, or north. In the event a closing will take
place in any other location in the State of New
Jersey, or in metropolitan New York, the Buyer shall
pay an attendance fee of Five Hundred ($500.00)
Dollars to the Seller's attorney. Notwithstanding
anything contained herein, Seller may, by giving not
less than fifteen (15) days written notice to the
Buyer, designate a date not earlier then March 1,
2004, as the Closing Date. In no event shall any
Closing Date prior to March 15, 2004 be designated as
"time of the essence". Seller may designate such
Closing Date as Time of the Essence. Notwithstanding
the designation of a Closing Date as Time of the
Essence, the Buyer may postpone any such closing date
for a period not to exceed seven (7) days.
(b) On the Closing Date, Buyer shall deliver to Seller
the remaining portion of the Purchase Price for the
Property.
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(c) On the Closing Date, the Seller shall deliver to the
Buyer:
(i) the Deed;
(ii) Seller's affidavit of title;
(iii) corporate resolution authorizing the
conveyance of the Property and all actions
which are required to be taken in connection
therewith;
(iv) Form 1099-S reporting form, if required; and
(v) possession of the Property, subject to the
rights of tenants at the Property.
(d) each party shall deliver such other documents as
shall be necessary to consummate the transactions
contemplated hereby.
13. This Contract shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
14. This Contract shall be governed by and construed in accordance with
the laws of the State of New Jersey. This Contract may not be changed or
modified without the written consent of all parties hereto. The parties
acknowledge that should any provision contained herein be later found to be
unenforceable, void or illegal by a court of competent jurisdiction, such
provisions shall be considered omitted from this Contract, it being the parties'
intent to enter into this Contract notwithstanding the omission of such
unenforceable, void or illegal provision.
15. This Contract and the documents referred to herein represent the
entire agreement between the parties hereto with respect to the transaction
described herein and supersedes all prior negotiations or agreements with
respect thereto. The parties agree that either party's failure to insist upon
complete performance of any right or other provision set forth herein shall not
constitute or effect a waiver of that party's right to so insist on complete
performance of that right or provision in the future.
16. This Contract is made exclusively for the benefit of and solely for
the protection of Seller and Buyer, and no other person or persons shall be
deemed to be third-party beneficiaries hereof or have any rights hereunder; nor
shall any provisions hereof give any third person any right of subrogation or
action over or against any party hereto.
17. If the Seller materially breaches this Contract before the closing,
the sole liability of the Seller shall be (and the remedies of the Buyer shall
be limited to) the return by the Seller to the Buyer of the deposit, and/or a
suit for specific performance and legal fees and neither party shall have any
further liability to the other. If the Buyer materially breaches this Contract
before the closing, the Seller shall be entitled to retain, as liquidated
damages and not as a penalty, an amount equal to five (5%) percent of the
Purchase Price (the parties hereby agreeing that the amount of the actual
damages that would be incurred by the Seller would be difficult of proof, and
subject to collection of the liquidated damages, this Contract shall be
terminated and neither party shall have any further liability to the other.
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18. Risk of loss should remain with Seller until closing. In the event
damage to any one building exceeds an amount equal to $100,000.00 in excess of
the insurance proceeds for damage to that building, or $500,000.00, in the
aggregate, in excess of insurance proceeds to all buildings, Buyer may terminate
this Contract by giving written notice to the Seller.
19. Buyer may not assign its rights hereunder to any party without the
prior written consent of Seller.
20. Each of the parties hereby waive trial by jury in any action,
proceeding or with respect to any counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way
connected with this Contract or the transaction contemplated hereunder. Each of
the parties acknowledge that it has been represented by counsel in connection
with the negotiation of this Contract, the transaction contemplated hereunder
and the provisions of this Section 20 in particular.
21. All municipal special assessments, unpaid by Seller, for work
completed before the Closing Date, shall be the responsibility of Seller. Buyer
shall be responsible for all other special assessments.
22. It is understood and agreed that this Contract must be executed by
the Buyer and returned to Seller by 5:00 p.m. on January 23, 2004 or this
Contract shall be deemed disapproved by Buyer and the unexecuted copies thereof
shall be returned to the Seller.
23. Buyer will not record this Contract. Any recording of this Contract
shall constitute a default hereunder on the part of the Buyer. The Buyer
irrevocably appoints and designates the Seller as its attorney-in-fact to
execute, deliver and/or record a document on behalf of the Buyer in order to
terminate and/or remove any such recordation. Buyer may record one or more
notices of settlement relating to this transaction.
24. This Contract may be executed in one or more counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
25. Buyer hereby acknowledges that it is the intent of the Seller to
complete a tax deferred exchange under IRC Section 1031 which will not delay the
close of the purchase transaction or cause additional expense to the Buyer. The
Seller's rights under this Contract may be assigned to a Qualified Intermediary
of the Seller's choice for the purpose of completing such an exchange. Buyer
agrees to cooperate with the Seller and the Qualified Intermediary in a manner
necessary to complete the exchange at no cost to the Buyer.
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IN WITNESS WHEREOF, the undersigned have executed this Contract of Sale
as of the date first written above.
ATTEST OR WITNESS: WILSHIRE ENTERPRISES INC., formerly
known as WILSHIRE OIL COMPANY OF TEXAS
______________________ By:________________________________
Philip Kupperman, President
ATTEST OR WITNESS: ECONOMIC PROPERTIES 2004, L.L.C.
___________________________ By:_________________________________
Name:
Title:
___________________________ By:_________________________________
Name:
Title:
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SCHEDULE A
Property Address Number of Units Block Lot
- ---------------- --------------- ----- ---
14-16 Berkeley Place 9 616 25, 26, 27 and 28
317-319 Fairmount Avenue 26 1826 13, 14 and 15
320 Fairmount Avenue 57 1830 F10
321 Fairmount Avenue 34 1826 16A and 17A
343 Fairmount Avenue 22 1826 25, 26 and 27
444 Jersey Avenue 14 270 T
62-64 Kensington Avenue 15 1820 44B
665 Newark Avenue Office Building & Retail Space 525.1 13E
198-200 Ocean Avenue 14 and 1 Store 1425 B and C
620 Pavonia Avenue 40 584 19 Apt # 20K
42 Vroom Street 21 1884 6C
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RIDER TO CONTRACT
This is a Rider to Contract for the sale of real estate made this
_________ day of January, 2004, by and between WILSHIRE ENTERPRISES, INC.
("Seller") and ECONOMIC PROPERTIES 2004, LLC ("Buyer") for the properties
identified on Schedule "A" attached hereto (collectively the "Property")
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree to amend the Contract as
follows:
1. Buyer shall have the right to perform any environmental tests of the
Property which Buyer deems appropriate within thirty (30) days of the date
hereof. Buyer shall provide a copy of any report to the Seller within the thirty
(30) day period. If Buyer's inspection reveals material adverse environmental
conditions which are unacceptable to Buyer, Buyer may cancel the Contract within
the thirty (30) day period and receive a return of the deposit. Notwithstanding
anything in the previous sentence, the Seller may agree to remediate any
environmental condition shown in the Buyer's environmental report by giving
written notice to the Buyer within ten (10) days of the Seller's receipt of
Buyer's environmental report. The remediation shall be completed within a
reasonable period of time. If the Seller agrees to remediate any environmental
condition shown in Buyer's report, Buyer's notice to terminate this Contract
shall be null and void. In the event remediation is not completed prior to
closing, Seller shall escrow with Seller's attorney, an amount equal to one
hundred twenty (120%) percent of the cost of remediation not completed prior to
closing.
2. Seller shall obtain from the New Jersey Department of Environmental
Protection, prior to closing, a letter of non-applicability for the Industrial
Site Recovery Act.
3. Buyer shall have the right to assign this Contract, upon
notification to Seller, to a partnership, corporation or limited liability
company. Buyer can assign its rights under the Contract to one or more entities,
with the right to designate different buyers for different Properties. The Buyer
shall pay to the Seller's attorney any incremental costs associated with
multiple buyers of the Property. The price allocation for each Property shall be
selected by Buyer. Notwithstanding any assignment of this Contract, the Buyer
named herein shall remain liable to perform all of the obligations of the Buyer
hereunder.
4. The closing shall take place at the offices of Feinstein, Raiss,
Kelin & Booker, L.L.C., 100 Executive Drive, Suite 210, West Orange, New Jersey
or at the offices of the attorney for the new mortgage lender, provided same is
located in the State of New Jersey, Middlesex County and north. If the closing
takes place in any other location in the State of New Jersey, or takes place in
metropolitan New York, Buyer shall pay an attendance fee of Five Hundred
($500.00) Dollars to Seller's attorney.
5. At the closing, the Seller shall deliver to Buyer the following
documents:
(a) A Bill of Sale covering all personal property located at the
Property, all of which are to be free and clear of all liens.
(b) An assignment of the Seller's interest in the leases and
tenancies then in effect at the Property, in the form attached hereto as Exhibit
"A". [Need Form]
(c) An agreement with respect to security deposits in the form
attached hereto as Exhibit "B". [Need Form]
(d) A notice to the tenants, in a form reasonably satisfactory to
the Buyer, advising of the sale of the Property to the Buyer. [Need Form]
(e) An updated rent roll as of the date of closing for all
tenancies at the Property.
(f) A then current employee list.
(g) A certificate that to the Seller's knowledge, the
representations set forth in the Contract and in this Rider are true and correct
as of the closing date.
(h) All original, complete tenant files to the extent they are in
the possession of the Seller.
(i) Seller shall obtain estoppel certificates (in a reasonable
form) from not less than eighty (80%) percent of the commercial tenants at the
Property, and shall use reasonable efforts to obtain subordination agreements
(in form reasonably requested by Buyer's Lender) for any commercial tenant.
Seller shall provide a Seller's estoppel certificate for any commercial tenant
which Seller has not been successful in obtaining an estoppel certificate.
6. Seller hereby states:
(a) Attached hereto as Exhibit "C" is a complete list of all of
Seller's employees engaged in the operation and maintenance at the Property,
including all wages, free rent, if any, and any other benefit allowed to the
employee. As of the date of closing, the employee shall be paid in full and have
been compensated for any vacation time.
(b) Except as to 444 Jersey Avenue, there are no current tax
appeals pending concerning the Property. Seller agrees that it will not settle
any tax appeal without the prior written consent of Buyer, which consent shall
not be unreasonably withheld. Seller and Buyer will apportion any tax savings
and any expenses, including legal fees, based upon the Closing Date.
(c) Subject to the rights and approval of tenants, the Buyer shall
have the right to inspect the Property at any reasonable time after execution of
this Contract, upon 24 hours notice to the Seller, subject to the reasonable
availability of Seller's representative. If an inspection is scheduled with
Seller, and Seller's representative is not present, subject to the provisions of
this paragraph, Buyer may proceed with its inspection. Prior to entering the
Property for any invasive inspections or testing, Buyer shall provide Seller a
certificate showing proof of liability insurance in amounts not less than
$1,000,000.00 per occurrence, naming the Seller as certificate holder. Buyer
shall repair any damage caused by inspections, and shall indemnify and hold the
Seller harmless for any losses, damage or injuries as a result of any activities
of the Buyer, its agents, employees or contractors on the Property.
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(d) Attached hereto as Exhibit "D" is a complete and accurate rent
roll for the Property as of the date of this Contract setting forth the name of
the tenant, the starting date for current lease for each tenancy, the amount of
rent, the apartment number and the amount of security deposit.
(e) Except as shown on the current rent roll, no tenant has prepaid
rent for more than the current month.
(f) There are no union contracts in effect for the Property and
none shall be in effect at the time of closing.
(g) There are no service, maintenance or other contracts effecting
the Property, except as set forth on Exhibit "F" attached hereto, and there
shall be none at the time of closing, except those already in effect as shown on
Exhibit "F" and for any other contract to which the Buyer may consent. Buyer
shall assume all contracts shown on Exhibit F at closing.
(h) To Seller's knowledge there are no assessments, either levied,
threatened or pending against any or all part of the Property and there are no
intended assessments.
(i) To Seller's knowledge there are no threatened or pending
condemnation or similar proceedings against the Property.
(j) To Seller's knowledge, Seller has received no notices of
violations of law or municipal ordinances; codes, orders or requirements noted
or issued by any authority having jurisdiction against or affecting the
Property. In the event any violations are issued prior to the date of the
Contract , Seller shall abate same.
(k) There are no outstanding commissions respecting the rental or
lease of any apartments at the Property and there will be none at closing.
(l) As of the date of this Contract, Seller has not received any
notices of complaints of any tenants regarding any violation of any rent control
or similar law which have not been resolved. There is no concerted rent strike
at the Property.
(m) Seller agrees to notify Buyer in writing of any eviction
proceedings proposed or commenced after the date of this Contract.
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(n) The Property (except for the office building) is registered
with the New Jersey Department of Community Affairs. Attached hereto as Exhibit
"G" are copies of Yellow Cards in Seller's possession.
(o) To Seller's knowledge, there are no civil, administrative,
arbitration or other actions, suits or proceedings pending or threatened against
or affecting the Property or tenancies of the Property.
(p) To Seller's knowledge, there are no claims, litigation,
administrative proceedings, actual or threatened or judgments or orders, or any
notices, relating to any hazardous substances or any environmental condition
concerning the Property. No hazardous substances or wastes, as defined by law,
have been introduced into the Property by Seller, except hazardous substances
used in the maintenance or operating of the Property.
(q) To Seller's knowledge, the underground storage tanks do not
leak and there are no abandoned oil tanks at the Property. Any oil tank which is
required to be registered with the State of New Jersey has been or will be
properly registered.
7. The representations contained in Paragraph 6(a), 6(b), 6(d), 6(g),
6(i), 6(j) and 6(l) (the "Surviving Representation(s)") shall survive the
closing for a period of six (6) months of the date of closing. In the event the
Buyer believes that it has a claim against the Seller for a misrepresentation of
a Surviving Representation, the Buyer shall give written notice of a claim,
including the basis of the belief of the buyer that the Surviving Representation
was incorrect. The Buyer shall commence suit for any claim within one (1) year
of the closing provided a notice was provided to Seller within the six (6) month
period.
8. All adjustments shall be made as of midnight of the day preceding
the closing. At the closing, the parties shall adjust real estate taxes,
collected rents, wages, water, and sewer. Any rents collected after the closing
shall be adjusted when, and if, collected, and shall be applied first to current
rents and then to arrearages. All arrearages collected shall be remitted to the
Seller within fifteen (15) days of the Buyer's receipt of same. Seller shall
give Buyer a credit for all tenant security deposits which tenants have paid,
including interest. Seller shall not deduct or appropriate any tenant security
deposits for any tenant still in possession. Seller has not made a deduction
from a security deposit for any current tenant, and will not make a deduction
for any tenant in occupancy on the date of closing.
9. Any vacant apartments at the time of the closing shall be delivered
in a clean painted and otherwise rentable condition in accordance with the
Seller's standard practices. Seller shall not be responsible to clean, paint or
otherwise repair any unit which becomes vacant within thirty (30) days of the
closing..
10. Seller shall not enter into, or modify or extend, any commercial
leases prior to the closing, unless Buyer gives its prior written consent to
same, which consent shall not be unreasonably withheld. Seller shall not grant
any rent credits for any time period beyond the closing. Seller shall not enter
into any other agreements affecting the Property, without the Buyer's prior
written consent. Seller shall not enter into any residential lease for a rent
less than the prior rent for the unit, increased by the amount allowed pursuant
to the Rent Contract Ordinance. Pending the closing, Seller shall operate the
Property in accordance with its standard practices.
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11. Prior to the closing, Seller shall maintain the Property in its
current condition, reasonable wear and tear excepted.
12. In the event of any conflict between the terms of the Rider and the
terms of the Contract, the terms of this Rider shall govern.
IN WITNESS WHEREOF, the parties have executed this Rider to Contract on
the date and year set forth above.
WITNESS OR ATTEST:
WILSHIRE ENTERPRISES, INC., Seller
_________________________________ By:_________________________________
Philip Kupperman, President
ECONOMIC PROPERTIES 2004, LLC
("Buyer")
_________________________________ By:_________________________________
The undersigned agrees to be responsible for the performance of the
Buyer pursuant to the terms of the Contract of Sale and the Rider to Contract.
This Guaranty shall expire upon closing of title.
J.S. MANAGEMENT, L.L.C.
_________________________________ By:_________________________________
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LIST OF EXHIBTS
EXHIBIT "A" ASSIGNMENT OF LEASES
EXHIBIT "B" SECURITY DEPOSIT AGREEMENT
EXHIBIT NOTICE TO TENANTS
EXHIBIT "C" LIST OF EMPLOYEES
EXHIBIT "D" RENT ROLL
EXHIBIT "E" SERVICE/MAINTENANCE CONTRACTS
EXHIBIT "G" YELLOW CARDS
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