PURCHASE AND SALE AGREEMENT
Agreement made this 17th day of December, 1996, by and between TRUSTCO
BANK, NATIONAL ASSOCIATION, a banking corporation organized and existing under
the laws of the United States of America, having an address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Seller"), and IFS INTERNATIONAL, INC., a New
York corporation having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Buyer").
W I T N E S E T H:
WHEREAS, the Seller is the owner of certain a leasehold estate
("Leasehold") pursuant to a Ground Lease between Rensselaer Polytechnic
Institute, as Landlord (the "Landlord"), and PacAmOr Bearings, Inc., as Tenant,
dated May 26, 1983 ("Ground Lease") (the Seller having succeeded to the interest
of the Tenant), together with the improvements thereon ("Improvements"), located
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Technology Park, North Greenbush, New York (the
Leasehold and Improvements being referred to hereinafter as the "Premises"); and
WHEREAS, the Seller desires to sell, and the Buyer desires to purchase, the
Premises upon the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, it is agreed as follows:
1. Sale of Premises. Subject to the terms and conditions set
forth in this Agreement, the Buyer agrees to purchase the Premises
from the Seller and the Seller agrees to sell, transfer and assign
the Premises to the Buyer.
2. Purchase Price. The total purchase price to be paid by
the Buyer to the Seller for the Premises shall be Nine Hundred
Ninety-five Thousand Dollars ($995,000.00) (the "Purchase Price"),
which shall be payable as follows:
(a) $20,000.00 (Initial Deposit) shall be delivered to the Seller
upon the Buyer's execution of this Agreement, which Initial
Deposit shall be non-refundable except as set forth in
Paragraph 9 of this Agreement;
(b) $30,000 (Additional Deposit) shall be delivered to the Seller
on February 28, 1997. Such Additional Deposit shall be
non-refundable except as set forth in Paragraph 9 of this
Agreement.
(c) The balance of the Purchase Price, or $945,000.00 shall be
paid to the Seller at Closing by certified check, bank check
or wire transfer of funds.
3. Closing.
(a) The closing (the "Closing") shall be held on or before March
14, 1996 (the "Closing Date") at the office of McNamee,
Lochner, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, or at such other time and place as may be mutually
agreed upon by the parties.
(b) Upon payment to the Seller of the Initial Deposit, the
Additional Deposit and the balance of the Purchase Price
payable at Closing, the Seller shall transfer the Premises to
the Buyer by means of an Assignment of Lease, in proper form
for recording.
(c) The Seller shall transfer, and the Buyer shall accept the
Premises subject to all covenants, conditions,
restrictions and easements of record and zoning and
environmental protection laws, also subject to any unpaid
installments of street or other improvement assessments
payable after the date of the transfer of the Premises,
and any state of facts which an inspection and/or
accurate survey may show, provided that nothing in this
paragraph renders title to the Leasehold uninsurable.
(d) The Buyer and the Seller agree that they shall prorate, as of
the Closing Date, all real estates taxes and water and sewer
charges.
4. Covenants of the Seller and Buyer.
(a) The Buyer agrees to accept the Improvements on an "as is"
basis and in present condition as of the date hereof, without
representation or warranty from the Seller of any kind,
subject to reasonable wear, tear and natural deterioration
from the date hereof to the date of Closing.
(b) Prior to the Closing Date, the Seller will not encumber the
Premises, either in whole or in part, or enter into any
agreement, sub-lease or transaction or make any commitment
relating to the Premises, without the Buyer's prior written
consent.
5. Representations of Seller. The Seller hereby represents and warrants
to Buyer as follows:
(a) The Seller is duly authorized by all necessary corporate
action to execute, deliver and perform this Agreement;
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(b) Seller has title to the Premises free and clear of all
mortgages and liens, except such mortgages or liens which
shall be discharged or released on or prior to the Closing
Date;
(c) Seller engaged the services of ▇▇▇▇▇▇ Associates as broker in
connection with the transaction contemplated herein, and
Seller agrees to pay any commission due as a result thereof;
(d) Subject to the provisions of this Agreement, the execution and
delivery of this Agreement do not, and, the consummation of
the transactions contemplated hereby will not, violate or
conflict with (i) the Seller's Certificate of Incorporation or
Bylaws; or (ii) any law or regulation or any provision of any
mortgage, note, lien, lease, agreement, instrument, order,
judgment or degree to which the Seller is a party or by which
it is bound;
(e) No portion of the Premises is subject to any pending
condemnation, taking or other similar proceeding by any public
authority, and Seller has no knowledge or grounds to believe
that any such condemnation, taking or similar proceeding is
threatened;
(f) The Premises are vacant and shall remain vacant during the
pendency of this Agreement, unless the Seller and the Buyer
otherwise agree in writing; and
(g) There are no existing agreements affecting the Premises other
than the Ground Lease.
6. Representations of Buyer. The Buyer hereby represents and
warrants to the Seller as follows:
(a) The execution, delivery and performance of this
Agreement, the consummation of the transactions
contemplated hereby and compliance with the provisions of
this Agreement have been duly authorized by all action of
the Buyer and do not and will not (i) require the consent
of any party which has not heretofore been received
(except as otherwise provided in this Agreement) and will
not result in a breach or default under any credit
agreement, indenture, business agreement, mortgage, deed
of trust, commitment, guarantee or any other agreement or
instrument to which the Buyer is a party or by which the
Buyer may be bound or affected; or (ii) conflict with or
violate any existing law, rule, regulation, judgment,
order or decree of any government, governmental
instrumentality, agency or court having jurisdiction over
the Buyer; and
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(b) The transactions contemplated herein were not submitted by the
Buyer to any broker, finder or similar person who is entitled
to commission, fee or like payment thereon, and the actions of
Buyer have not given rise to any claim by any person for a
commission, fee or like payment against Seller.
(c) The Buyer will cooperate with Seller and the Landlord to
obtain the Landlord's consent referred to in Paragraph 8(c)
below and provide any information to Seller and Landlord which
is reasonably necessary to obtain the said consent.
7. Tax Matters.
(a) The Seller shall pay any and all state and local real estate
transfer taxes due and owing in connection with the sale of
the Premises.
8. Contingencies.
(a) The obligations of the Buyer under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of
the following conditions:
(i) All of the representations and warranties made by
Seller as set forth in this Agreement shall be true
and correct as of the Closing Date in all material
respects; and
(ii) The Seller shall have performed, observed and
complied with all covenants, agreements and
conditions required by this Agreement to be performed
by Seller at or prior to the Closing commitment
application.
(b) The obligations of Seller to transfer and assign the Premises
to the Buyer pursuant to this Agreement shall be subject to
the satisfaction, on or before the Closing Date, of the
following conditions:
(i) The representations and warranties of Buyer as set
forth in this Agreement shall be true and correct
in all material respects as of the Closing Date;
(ii) The Buyer shall have duly performed and complied with
all agreements and conditions required by this
Agreement to be performed or complied with by the
Buyer at or before the Closing Date; and
(iii) The Buyer shall have paid the full amount
Purchase Price to Seller on or before the Closing
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Date in accordance with the terms and provisions of
this Agreement.
(c) Notwithstanding anything to the contrary contained in this
Agreement, this Agreement is contingent upon receipt by the
Seller of the Landlord's written consent to the transfer and
assignment to the Buyer of the Premises and the Seller's
interest therein.
9. Remedies.
(a) In the event Seller shall be unable to transfer title to
the Leasehold in accordance with the terms and provisions
of this Agreement, or if any of the conditions set forth
in Paragraph 8(a) and 8(c) above (provided Buyer has
complied with Paragraph 6(c) above) are not satisfied as
of the Closing Date, the Buyer may terminate this
Agreement and neither party shall have any liability to
the other. Under such circumstances the Initial Deposit
and, if applicable, the Additional Deposit shall be
returned to the Buyer, and the Seller shall have no
further liability to the Buyer.
(b) If the Buyer shall fail to comply with its obligations under
this Agreement, the Seller's sole remedy shall be to keep and
retain the Initial Deposit and the Additional Deposit as
liquidated damages, and neither party shall have any further
rights against the other.
10. Title Insurance and Survey. A title insurance policy and current
survey of the Leasehold, if required by the Buyer, shall be obtained at the
Buyer's expense. The Seller shall cooperate in providing any available existing
survey, abstract of title or title insurance policy information it may possess
without cost to the Buyer.
11. Destruction, Damage or Condemnation.
(a) The provisions of Section 5-1311 of the New York General
Obligations Law shall apply to the purchase and sale of the
Premises as contemplated by this Agreement in the event that
the Premises are destroyed or damaged.
(b) If the whole of the Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose
(a "Taking"), then in that event, this Agreement shall
terminate and shall be of no further force or effect.
(c) In the event of a Taking of less than the whole of the
Premises, then, at the Buyer's option, this Agreement shall
(i) terminate and shall be of no further force or
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effect whatsoever; or (ii) cease and expire with respect only
to the portion of the Premises so taken, yet all other terms
and conditions contained herein shall remain in full force and
effect, so long as (x) the Premises may continue to be used in
compliance with applicable zoning laws and regulations; and
(y) the Seller shall assign the proceeds of any condemnation
award to the Buyer.
12. Condition of Premises. The Buyer does hereby acknowledge,
represent, warrant and covenant for the benefit of the Seller that:
12.1. Disclaimers.
(a) The Buyer is expressly purchasing the Premises in its
existing condition "AS IS, WHERE IS AND WITH ALL FAULTS";
(b) The Seller shall have no obligation to repair or correct
any conditions or defects or to compensate the Buyer for
the same;
(c) The Buyer hereby assumes all responsibility to inspect
and investigate the Premises and of all risk of adverse
conditions;
(d) The Buyer has undertaken all the physical inspections and
examinations of the Premises and all permits and
approvals, if any, related thereto, as the Buyer deems
necessary or appropriate, and has evaluated the
suitability of the Premises for the Buyer's intended use;
the Buyer is relying solely upon such inspections and
examinations and the advice and counsel of its own
agents, legal counsel and consultants;
(e) The Seller is not making and has not made any warranty or
representation, either express or implied, with respect
to the validity or accuracy of the materials or other
data provided to the Buyer, the physical condition of the
Premises, the existence or nonexistence of any permits or
approvals or any other aspect of all or any part of the
Premises, either as an inducement to the Buyer to
purchase the Premises or for any other purpose, and the
Buyer will independently verify the accuracy and
reliability of all such matters and items;
(f) The Buyer has received a complete copy of the Project Summary
and Proposed Investigation Work Plan concerning the Premises
dated November 7, 1996, prepared by C.T. Male Associates, P.C.
The Seller makes no acknowledgment, representation, warranty
or agreement of any kind regarding any hazardous substances or
materials, including, but not limited to, whether there has
been or
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there will be escapage, seepage, leakage, spillage,
discharge, emission or release on, in, at or under the
Premises;
(g) The Buyer has independently determined that the
Purchase Price is fair; and
(h) By reason of all the foregoing, the Buyer shall assume the
full risk of any loss or damage occasioned by any fact,
circumstance, condition or defect pertaining to the condition
of the Premises.
Without limiting the generality of the foregoing, the Buyer
acknowledges that it has had adequate opportunity to become
fully acquainted with the nature and condition, in all
respects, of the Premises, the existence or availability of
all permits and approvals from governmental authorities, and
the condition and state of repair of any improvements situated
on the Premises.
12.2 Hazardous Materials. The Seller has made no representations and
shall have no liability to the Buyer with respect to the condition of the soil,
the existence of nonexistence of hazardous substances or materials or
contamination, or any past use of the Premises. Notwithstanding that the Seller
has provided the Buyer with the environmental report referred to in paragraph
"13.1" of this Agreement, the Buyer has conducted or will conduct such
investigations and inspections as Buyer deems necessary and appropriate. The
Buyer acknowledges that Seller is not in any manner responsible for the presence
of hazardous substances or materials at, on, in, under or relating to the
Premises. The Buyer hereby specifically releases Seller, its shareholders,
officers, directors, employees, agents and personal representatives, their
respective heirs, successors and assigns, from any and all claims, losses,
liabilities, fines, charges, damages, injuries, penalties, response costs and
expenses of any and every kind whatsoever (whether known or unknown) relating to
the presence on, in, at or under, or the escape, seepage, leakage, spillage,
discharge, emission or release of any hazardous substances or material on, in or
at the Premises, whether occurring prior to or following the Closing. This
release shall survive the Closing.
13. Notices. All notices to be given hereunder shall be in
writing and shall be personally delivered or sent by certified or
registered mail, return receipt requested, postmarked before the
required date, addressed as follows:
To Seller: Trustco Bank New York
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
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(▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:McNamee, Lochner, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇
To Buyer: IFS International, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a Copy to:▇▇▇▇▇▇, Beach & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(▇▇▇) ▇▇▇-▇▇▇▇
14. Entire Agreement. This Agreement supersedes all prior oral or
written understandings among the parties with respect to the subject matter
herein, and contains the entire agreement among the parties. Neither this
Agreement nor any provision thereof may be changed, waived, modified or amended
orally, but only by a written instrument signed by the party against whom the
enforcement of such change, waiver, modification or amendment is sought.
15. Binding Effect and Assignment. This Agreement is binding and shall
inure to the benefit of the parties hereto, their personal representatives,
successors and assigns; provided, however, that this Agreement may not be
assigned by the Buyer without the Seller's prior written consent, and no such
assignment shall relieve the Buyer of its obligations hereunder.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SELLER:
TRUSTCO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
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BUYER:
IFS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO and
Chairman of the Board
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