EXHIBIT 2.1
REAL ESTATE SALE AND PURCHASE AGREEMENT
BY AND BETWEEN ▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION
▇▇▇▇▇▇▇-▇▇▇▇▇▇ FLIGHT SYSTEMS, INC. AND
▇▇▇▇ ACHAS LLC
1. PARTIES. This contract is made this 2nd day of August 2001, by and
between ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corporation, a Delaware corporation, and ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Flight Systems, Inc., a Delaware corporation, (collectively "Seller") and ▇▇▇▇
Achas LLC, a New York Limited Liability Company, ("Purchaser").
2. AGREEMENT. The Seller agrees to sell and the Purchaser agrees to buy
the property described according to the terms of this agreement (the
"Agreement").
3. DESCRIPTION. The property which is the subject matter of this
Agreement is known as all the lots, or parcels of land and premises, known as
Lot 1.01 in Block 320 on the tax map of the Borough of Wood-Ridge in the County
of Bergen, New Jersey, which is commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇-▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and is more particularly described on Exhibit A attached
hereto and made a part hereof (the "Property"). The Property shall mean:
(a) all those certain tracts or parcels of land more
particularly described on Exhibit A, together with all and
singular the rights and appurtenances pertaining to such
properties, including, without limitation, any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way and any award to be made in lieu thereof and to
any unpaid award for damage to the Land and Improvements (as
hereinafter defined) by reason of change of grade of any
street occurring after the execution of this Agreement (the
foregoing being sometimes referred to herein individually and
collectively as the "Land"), which shall be conveyed to
Purchaser in accordance with the terms hereof;
(b) the buildings, structures, fixtures and other
improvements, except those fixtures, improvements, equipment
and accessories relating to the Seller's environmental
remediation efforts, on the Land (collectively, the
"Improvements");
(c) all of Seller's right, title and interest in and
to any and all casements, rights of way, privileges, strips,
gores, development rights and income therefrom, declarations,
agreements or instruments affecting or in any way connected to
the Land and/or the Improvements;
(d) all of Seller's right, title and interest in and
to all assignable contracts and agreements (collectively, the
"Operating Agreements"), relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal
Property, which will extend beyond the date of Closing and
which Purchaser elects to assume in its discretion, But
excluding all environmental contracts and agreements relating
to the ongoing remediation of the Property; and
(e) The fixtures, furniture and equipment
specifically identified on Exhibit B to be prepared by the
parties prior to the expiration of the Due Diligence Period.
(f) all of Seller's right, title and interest in and
to all lease agreements with existing tenants (collectively,
the "Lease Agreements"), summarized on Exhibit C attached
hereto.
4. PRICE AND PAYMENT.
(a) The purchase price of the Property is FIFTY ONE MILLION DOLLARS
($51,000,000.00) (the "Purchase Price") which shall be paid subject only to the
adjustments and apportionments provided in this Agreement.
(b) On the execution and delivery of this Agreement for which this is a
receipt, Purchaser shall pay directly to Seller a contract fee in the amount of
FIFTY THOUSAND DOLLARS ($50,000.00) (the "Contract Fee") in non-refundable
funds, subject to the provisions hereinafter set forth, and to ▇▇▇▇▇▇▇ Title
Insurance Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as
escrowee (the "Escrowee") to be held in an interest bearing trust account, the
sum of FOUR HUNDRED FIFTY THOUSAND DOLLARS ($450,000.00)(the "Initial Deposit")
to be held in escrow pursuant to this Agreement. If at any time during the Due
Diligence Period (as hereinafter defined), the Purchaser has notified the Seller
that the Purchaser intends to cancel the Agreement under Section 7, the entire
Initial Deposit plus accrued interest shall be promptly refunded to the
Purchaser and this Agreement shall be void. The Seller shall retain the Contract
Fee. The Purchaser shall thereafter have no further legal or equitable interest
in the property, and the parties hereto shall have no further obligation or
liability under the terms of this Agreement.
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(i) If, however, the Purchaser does not cancel this
Agreement in writing during the Due Diligence Period, the Initial
Deposit shall be deemed non-refundable (the "Due Diligence Payment"),
subject, however, to the terms of this Agreement hereinafter set forth,
and the transfer of such funds by Escrowee into a separate sub-account
established for the benefit of Seller (the "Sub-Account"). The
Purchaser shall be given credit against the Purchase Price at the
closing for the Contract Fee and the Due Diligence Payment. In
addition, the Purchaser shall deposit an additional sum of TWO MILLION
FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00) (the "Second Deposit") on
the expiration of the Due Diligence Period with Escrowee to be held in
escrow pursuant to the terms hereof. If the Purchaser closes title in
accordance with this Agreement, Seller shall be entitled to the
interest on the Initial Deposit and the Second Deposit (collectively
"the Deposit"). The Deposit shall be non-refundable subject, however,
to Article 12 hereof, and unless Seller fails to deliver the Property
in accordance with the requirements hereof or otherwise defaults
hereunder.
(ii) If Purchaser shall not close title for any
reason, other than a breach of this Agreement, the Seller and Purchaser
shall equally share in the accrued interest on the Deposit. If either
party should intentionally breach the terms of this Agreement, the
non-breaching party shall be entitled to all interest on the Deposit.
(c) The parties acknowledge that the Escrowee is holding the Deposit
(and all accrued interest thereon) solely as a stakeholder at their request and
for their convenience, that the Escrowee shall not be deemed to be the agent of
either party in carrying out its role as escrow agent hereunder, and that the
Escrowee shall not be liable to either party for any act or omission on its part
unless taken or suffered in bad faith or in willful disregard of this Agreement
or involving its negligence. Both parties shall indemnify and hold Escrowee
harmless from and against any and all claims, liabilities and expenses
(including reasonable attorneys' fees and disbursements and court costs) which
the Escrowee may incur in connection with the performance of its duties
hereunder, except with respect to actions or omissions taken or suffered by the
Escrowee in bad faith or in willful disregard of this Agreement or involving the
Escrowee's negligence. Purchaser also agrees that any and all costs or fees
incurred by the Escrowee for such services shall be the sole responsibility of
the Purchaser.
(d) The Escrowee may act or not act in its role as escrow agent
hereunder in full reliance upon and with the advice of counsel, which it may
select and shall be fully, protected in so acting or not acting.
(e) The Escrowee has acknowledged its agreement to act as escrow agent
in accordance with this Agreement by signing in the place indicated on the
signature page of this Agreement.
(f) The Escrowee may at any time discharge its duties hereunder by
depositing the Deposit and all accrued interest thereon with any court of
competent jurisdiction located in the State of New Jersey.
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5. DEFAULT. If the Seller willfully and intentionally breaches this
Agreement before the Closing and such breach is not the result of third party
actions, the Purchaser shall be entitled, as its sole and exclusive remedies, at
its option, to (i) bring a suit for the specific performance of this Agreement
or (ii) the return of the Deposit (and all accrued interest) and the Contract
Fee from the Escrowee and the Seller, respectively, and actual documented costs
incurred after the effective date of this Agreement, and this Agreement shall be
terminated upon receipt of the Deposit (and all accrued interest) and the
Contract Fee by the Purchaser, and neither party shall have any further
liability to the other except as expressly set forth herein. If the Purchaser
breaches this Agreement before the Closing, the Seller shall be entitled, as its
sole and exclusive remedy, to retain, as liquidated damages and not as a
penalty, the Deposit and all accrued interest (the parties hereby agree that the
amount of actual damages that would be incurred by the Seller would be difficult
of proof, and that the amount of the Deposit and the accrued interest is a
reasonable estimate thereof), and this Agreement shall be terminated upon the
receipt of the Deposit and the accrued interest by the Seller and neither party
shall have any further liability to the other except as expressly provided
herein.
6. TIME FOR CLOSING. Purchaser shall have until November 30, 2001 to
close under this Agreement and to transfer and accept title to the Property (the
"Closing Date"). Failure to close on or prior to the Closing Date, without an
extension of the Closing Date agreed to in writing, shall be considered a breach
under Section 5 of this Agreement. On the Closing Date, Purchaser shall present
or transfer by cash, certified or bank cashier's check made payable to Seller,
or by wire transfer to Seller in accordance with Seller's written instructions,
the sum of FORTY EIGHT MILLION DOLLARS ($48,000,000.00) (the "Closing Payment")
subject, however, to adjustments or prorations as provided for herein.
Contract Fee: $ 50,000.00
Initial Deposit: $ 450,000.00
Second Deposit: $ 2,500,000.00
Closing Payment: $ 48,000,000.00
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Total: $ 51,000,000.00
===============
7. DUE DILIGENCE CONTINGENCY. The Purchaser's obligation to purchase
the Property is conditioned upon the satisfaction or the Purchaser's written
waiver of the following conditions (the "Closing Conditions"):
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(a) The Purchaser shall have a period, commencing on
the date of final execution of this Agreement and ending on
that date which is thirty (30) days after the date hereof
(such period is referred to herein as the "Due Diligence
Period"), to perform any environmental, structural,
engineering, title, zoning and governmental compliance
studies, tests, inspections, searches or any other tests,
studies, inspections or research that it deems appropriate or
advisable with respect to the Property and the transaction
contemplated by this Agreement, including, without limitation,
the right to inspect the Property, review and approve any and
all agreements related to the Property, obtain a survey of the
Property, conduct environmental investigations and inspect any
buildings or other improvements which may be located on the
Property (the "Feasibility Studies"). Purchaser, or
Purchaser's agents or representatives, shall provide Seller
with evidence of liability insurance insuring any of
Purchaser's agents or representatives prior to the entry onto
the Property by any such agents or representatives.
Purchaser hereby agrees to indemnify, defend and save
Seller harmless from and against any and all claims, actions,
demands, damages, liability and expenses, including reasonable
attorney's and other professional fees, in connection with the
loss of life, personal injury and/or damage to property
arising out of or related to, wholly or in part, directly or
indirectly, to the entry by Purchaser or Purchaser's agents or
representatives upon the Property, except to the extent that
such claims, actions, demands, damages, liability or expenses
relate to Seller's, or its agent's, own negligence or conduct.
(b) If, as a result of the Feasibility Studies, the
Purchaser determines in its sole and absolute discretion that
the Property is not suitable for the Purchaser's intended
purpose, the Purchaser may terminate this Agreement by written
notice sent to the Seller and the Escrowee during the Due
Diligence Period. If the Purchaser provides such termination
notice in accordance with the provisions of this clause (ii),
the Purchaser shall thereupon be entitled to the return of all
of the Deposit plus all accrued interest thereon from the
Escrowee, and the parties shall thereafter be relieved of all
liability to each other except as specifically set forth
herein.
(c) The Seller will permit the Purchaser and its
designated representatives, at any time after the date hereof,
to have full access to the Property, to inspect the Property,
and to conduct Feasibility Studies on and with respect to the
Property. In addition, Seller will deliver and/or make readily
available to Purchaser and its agents for review, inspection
and analysis certified true and correct copies of any and all
documents and information reasonably requested by Purchaser or
required to be delivered by Seller hereunder. If the Purchaser
does not purchase the Property, the Purchaser shall, at its
sole cost and expense, diligently and in good faith restore
the Property substantially to its condition existing
immediately prior to such Feasibility Studies.
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(d) To assist the Purchaser in conducting the
Feasibility Studies, the Seller shall provide the Purchaser
during the Due Diligence Period to access to true and correct
copies in the Seller's possession of the following documents,
if any, pertaining to the Property:
(i) All existing leases, occupancy
agreements, lease termination agreements
(and agreements of similar import) and
brokerage agreements;
(ii) Current ALTA survey for the
Property and all building plans;
(iii) Back title information for the
Property in Seller's possession;
(iv) Environmental reports and studies
for the Property prepared for, on behalf
of or by the Seller or otherwise in its
possession;
(v) Service management and maintenance
agreements, collective bargaining
agreements and other agreements relating
to the operation and management of the
Premises;
(vi) Real estate tax bills; and
(vii) Copies of any and all additional
documents and information pertaining to
the Property reasonably requested by the
Purchaser.
(e) Purchaser is hereby given the option to extend
the Due Diligence Period by an additional 10 days. Upon the
exercise of the extension, the sum of FIFTY THOUSAND
($50,000.00) DOLLARS (the "Extension Payment") shall be paid
on the date of such exercise by cashier's check or wire
transfer to the Seller. The Extension Payment shall be
refundable to the same extent as that of the Contract Fee as
set forth in this Agreement. Purchaser shall not receive a
credit for the Extension Payment against the Purchase Price.
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8. EXPENSES OF APPLICATION, ENGINEERING AND SURVEY.
(a) All charges, costs, expenses and liabilities in connection with the
borings, surveys, studies and tests and the performance of all engineering,
environmental, geological or other work on the Property and the preparation of
all reports, zoning or variance applications, development plans and maps for the
development of the Property including the cost of filing, recording, reviewing
or gaining approval by any governmental agency shall be paid by and be the
expense of the Purchaser. The Purchaser hereby agrees to indemnify and hold the
Seller and the Property harmless from all charges, costs, expenses and
liabilities arising out of any work done by or for the Purchaser with respect to
the Property.
(b) In the event this Agreement is terminated for any reason not the
fault of the Seller, the Purchaser shall repair all damage done to the property
by any boring, engineering, geological, surveying or testing work performed by
or for the Purchaser and restore the property to substantially the same
condition on the date hereof.
9. CONDITION OF TITLE.
(a) Title to the Property conveyed shall be good and marketable, and
insurable at regular rates, free and clear of all liens and encumbrances not
satisfactory to the Purchaser. However, Purchaser agrees to take title subject
to all tenancies and vacancies in existence at that time.
(b) The term "Objection" shall mean any title defect or encumbrance,
other than any easements of record or lien of taxes and assessments not yet due
and payable, which is not acceptable to the Purchaser.
(c) The Purchaser shall order a title report or title commitment from a
title insurance company of Purchaser's choosing which is authorized to do
business in New Jersey. By not later than the last day of the Due Diligence
Period, the Purchaser shall give written notice of any Objections to the Seller,
which notice shall be accompanied by a true and complete copy of the title
report or title commitment (and the relevant underlying title documents).
(d) The Seller shall have the option, in its sole and absolute
discretion, and at its sole cost and expense, to remedy any Objections and
render the title marketable in accordance with the provisions of this paragraph
prior to the Closing. Within seven (7) calendar days after the Purchaser's
notice describing the Objections, the Seller shall notify the Purchaser as to
whether or not the Seller elects to remedy the Objections. In the event the
Seller elects not to remedy the Objections, the Purchaser may either (x)
terminate this Agreement and have the Deposit with all accrued interest and the
Contract Fee disbursed to the Purchaser or (y) elect to proceed to Closing
notwithstanding such Objections and without any abatement in the Purchase Price.
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(e) For the purpose of remedying any Objections, the Seller shall have
the right to one or more adjournments of the Closing Date for an aggregate
period not exceeding thirty (30) days. If the Seller fails to remedy any
Objection prior to the adjourned Closing Date, the provisions of subparagraph
(d) of this Article shall be applicable, and the Seller shall be deemed to have
elected not to remedy the Objection and the Purchaser may either (x) terminate
this Agreement and have the Deposit and all accrued interest disbursed to the
Purchaser or (y) elect to proceed to Closing notwithstanding such Objections and
without any abatement in the Purchase Price.
(f) From and after the date hereof, the Seller will not create nor
voluntarily suffer or permit any lease, occupancy agreement, encumbrance,
restriction or agreement to be placed against the Property which cannot be fully
terminated and discharged at Closing.
(g) Notwithstanding anything hereincontained to the contrary, Seller
shall be obligated to and shall prior to Closing, clear any Objection which can
be cleared by the payment of monies in liquidated sums.
10. CLOSING OF TITLE.
(a) Provided all contingencies contained herein, as well as the
deliveries required from the Seller hereunder are satisfied or otherwise waived,
the closing of title (the "Closing") to the Property shall take place on or
about the Closing Date at the offices of Seller in Lyndhurst, New Jersey or at
the offices of lender's counsel, or any other mutually agreed upon location by
the parties.
(b) The following events shall take place at the Closing:
(i) The Seller shall deliver to the Purchaser the Property in
compliance with the title requirements set forth in this Agreement, together
with the delivery of:
(A) the customary New Jersey form of bargain and sale
deed with covenants, duly executed and acknowledged,
conveying to the Purchaser all of the Seller's right,
title and interest in and to the Property;
(B) the customary New Jersey form of affidavit of
title, identifying the nature of the Seller's right, title
and interest in and to the Property;
(C) an assignment, acceptable in form and substance
to Purchaser, of all fully executed and delivered lease
agreements (or agreements of similar import) pertaining to
any and all tenants or occupants of the Property;
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(D) an assignment, acceptable in form and substance
to Purchaser, of the Promissory Note between the Seller
and American Tissue Corporation ("ATC"), pursuant to which
Seller shall reserve its right to legal and administrative
remedies against ATC, except that Seller shall not
institute any proceeding to dispossess ATC from the
premises it currently occupies without the prior approval
of Purchaser, and Purchaser shall collect all monies due
and owning under such Promissory Note and shall remit all
payments collected thereunder to Seller within 5 days of
receipt;
(E) the originals or certified copies of all service,
management, maintenance, brokerage and related agreements,
if any, relating to the ownership, use and operation of
the Property as set forth in Exhibit D;
(F) assignments or terminations, as determined by
Purchaser, acceptable in form and substance to Purchaser
of all of the agreements referenced in subparagraph (E),
above;
(G) an assignment, acceptable in form and substance
to Purchaser, of all permits, approvals, licenses,
guarantees and warranties relating to the ownership, use
and operation of the Property, to the extent any of the
foregoing are assignable or transferable by Seller to
Purchaser, and where applicable, the originals thereof;
(H) evidence of the existence, organization and
authority of the Seller and the authority of the person(s)
executing documents on behalf of the Seller reasonably
satisfactory to the Purchaser and its title insurer;
(I) a certification that the Seller is not a "Foreign
Person" for purposes of Section 1445 of the Internal
Revenue Code of 1986, as amended;
(J) Internal Revenue Service Form 1099;
(K) letter signed by Seller in form and substance
acceptable to Purchaser addressed to all vendors and
suppliers to the Property advising them of the sale,
assignment and conveyance of the Property to Purchaser;
(L) a ▇▇▇▇ of sale and assignment acceptable in form
and substance to Purchaser of all of Seller's right, title
and interest in and to all personal property located at or
used in connection with the Property which are covered by
this Agreement, if any;
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(M) access to all documents, reports, studies, orders
and other relevant information pertaining to the status of
the Property with regard to the New Jersey Industrial Site
Recovery Act; and
(N) letters of attornment to all tenants including
advice of disposition of security deposits;
(O) tenant estoppel certificates in the form attached
as Exhibit E from American Tissue Corporation, Rose Art
Industries, Inc., ▇▇▇▇▇▇▇▇ Plastics, Inc., Springfield
Precision Instruments, Inc., and Fabrite Laminating
Corporation as well as estoppel certificates from at least
seventy percent (70%) of the remaining tenants currently
occupying the Property;
(P) Seller's estoppel certificate for the period
between the effective date of any tenant estoppel
certificate and the Closing Date;
(Q) an executed Environmental Indemnification
Agreement substantially in the form attached hereto as
Exhibit F;
(R) a letter from the New Jersey Department of
Environmental Protection approving the sale of the
Property without imposing upon Purchaser any financial
obligation but subject to the continuing obligation and
indemnification of Seller as set forth in Exhibits F and
I;
(S) the security deposit accounts and all original
Tenant Letters of Credit, and all documentation necessary
to transfer and assign such Letters of Credit and security
deposits to the Purchaser; and
(T) such other and further documents as may be
reasonably requested by the Purchaser or its title
insurer, as necessary, to effectuate the Closing.
(ii) The Purchaser shall deliver to the Seller:
(A) the balance of the Purchase Price (as adjusted
pursuant to the provisions of this Agreement);
(B) an indemnification agreement, acceptable in form
and substance to Seller, holding the Seller harmless from
claims of tenants regarding security deposits;
(C) a standard lease acceptable in form and substance
to Seller, in the form generally utilized by the Seller in
connection with other tenant leases at the Property, for
the approximately 3,000 square feet of space currently
occupied by the Seller, at a net rent of $1.00 per annum,
for a period of six months; and
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(D) such other and further documents as may be
reasonably requested by the Seller to effectuate the
Closing.
All documents to be delivered by the Seller or the Purchaser
at Closing shall be reasonably acceptable to the Seller and the
Purchaser.
(c) Real estate taxes, sewer charges and water rents, or payment in
lieu of taxes, if applicable and if any, assessed against the Property, shall be
apportioned as of the Closing Date;
(d) The Seller shall pay any and all real property transfer taxes
imposed in connection with the assignment and conveyance of the Property
(including, without limitation, the New Jersey Realty Transfer Fee); and
(e) The Escrowee shall deliver the Deposit with all accrued interest to
the Seller.
(f) Rents and additional charges (including, but not by way of
limitation, CPI or other similar increases, tax, insurance and electricity
charges) shall be apportioned as of the Closing Date. To the extent rents and
additional charges cannot be determined as of the Closing Date, the amount of
such additional charges for the period ending on the Closing Date, and all
accounting showing the calculations thereof, shall be turned over to Seller by
Purchaser (or vice versa, if Seller has been collecting same from tenant on a
monthly basis). Thereafter, (i) if Seller has received greater than its
appropriate portion as so determined by this Article, Seller shall remit the
excess to Purchaser upon receipt of the aforesaid calculations and payment by
tenants or (ii) if Seller has received less than its appropriate portion as so
determined, Purchaser shall remit such shortfall to Seller at the time of the
delivery of such calculations and payment by tenants immediately upon
computation thereof and adjusted between Seller and Purchaser if and when
received, subject to the provisions of the immediately following sentence. At
the Closing, no "Delinquent Rents" (rents or other charges that are due as of
the Closing) shall be prorated in favor of Seller. The parties' respective
obligations to reprorate additional rent shall survive the Closing and shall not
merge into any instrument of conveyance delivered at Closing. Notwithstanding
the foregoing, Purchaser shall use reasonable efforts after the Closing Date to
collect any Delinquent Rents due to the Seller from tenants, but Purchaser shall
not be required to ▇▇▇ any tenants. All rents and other charges received by (or
for the benefit of) Purchaser from any Tenant after the Closing shall be first
applied to rents owing for the month of Closing and then against current and
past due obligations owed to, or for the benefit of, Purchaser (with respect to
those obligations accruing subsequent to the Closing Date), and any excess shall
be delivered to the Seller, but only to the extent of amounts in default and
owed to, and for the benefit of, the Seller for the period prior to the Closing
Date. Seller shall not apply any security deposit against rent or draw down on
any letter of credit for security, unless such tenant vacates the space demised
to it, except with respect to ATC and its letter of credit for security which
letter of credit expires by
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its terms on August 19, 2001. Seller shall not commence any summary proceeding
seeking eviction or lease cancellation against any Tenant of the Premises after
the Closing, but shall have the continuing right to ▇▇▇ the tenants for rent
monies for the period prior to the Closing.
11. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller represents and
covenants to the Purchaser as of the date hereof and as of the Closing Date (all
of which representations and covenants shall survive the Closing) as follows:
(a) The Seller has the right, power and authority to enter
into this Agreement and to cause its right, title and interest in and
to the Property to be sold, assigned and conveyed in accordance with
the terms and conditions hereof, and the person(s) executing this
Agreement on behalf of the Seller is duly authorized and empowered to
act for and to bind the Seller.
(b) The execution and delivery of this Agreement, and the
performance of the transactions contemplated hereby does not require
the consent of any governmental, except for the New Jersey Department
of Environmental Protection or private party or body and do not
constitute a breach by the Seller of any other agreement, law,
judgment, order, injunction, writ or decree to which Seller is a party
or by which the Seller or any of its assets may be bound or subject,
and will not result in a violation of any applicable law, order, rule
or regulation of any Federal or State agency, body or corporation, or
require the approval of any such agency, body or corporation.
(c) Subject to the pending ISRA case, the Seller has not
received notice from any governmental entity having jurisdiction, and
to its actual knowledge is not otherwise aware, that the Property fails
to comply in all respects with all applicable federal, state and local
environmental, health and safety statutes and regulations of every
nature whatsoever including, for example, but without limitation, those
regarding the presence and removal of asbestos-containing materials.
(d) Subject to the pending ISRA case, to the actual knowledge
of the Seller, (i) the Property is not currently being used to
generate, manufacture, refine, produce, store for use or distribution,
handle, transfer, process or transport any hazardous materials other
than in compliance with all applicable laws, and (ii) to the actual
knowledge of the Seller, there are no active underground storage tanks
or surface impoundments in the Property.
(e) The Seller is not a party to any contract or agreement to
sell or otherwise transfer all or any part of its interest in the
Property other than this Agreement.
(f) There are no condemnation proceedings, public takings or
eminent domain proceedings of any kind pending or, to Seller's actual
knowledge, contemplated against the Property or any part thereof.
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(g) The Seller is not a "Foreign Person" within the meaning of
Paragraph 1445 of the Internal Revenue Code of 1986, as amended.
(h) There is no action, suit or proceeding pending or, to
Seller's actual knowledge, threatened against or affecting Seller in
any court, or by or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality which (A) individually or in the aggregate, would
materially and adversely affect the financial position, business or
operations of Seller, taken as a whole, or the performance by Seller of
its obligations hereunder or (B) would affect in any material respect
the consummation or validity of this Agreement or the transactions
contemplated hereby;
(i) Seller is not in default (A) in the payment of any taxes
levied or assessed against it or its assets (including the Property),
or (B) under any statute, rule, order, decree, writ, injunction or
regulation of any governmental body (including any court), in either
case which would have a material adverse effect on its ability to
perform the obligations contemplated by this Agreement;
(j) Neither this Agreement nor the conveyance of the Property
to Purchaser will defraud any of Seller's creditors, or render Seller
insolvent;
(k) Seller will give or cause to give all notices of transfer
to any and all parties as required by any agreements affecting the
Property;
(l) Seller has not received any notice that any default or
breach presently exists under any covenant, condition, restriction,
right-of-way or easement affecting the Property or any portion thereof
which is to be performed or complied with by the owner and which would
have a material and adverse effect on the Property, and Seller has no
actual knowledge of any fact or condition which would constitute such a
default or breach (or event which with notice or lapse of time, or
both, could constitute such a default) under any such agreement;
(m) Subject to the pending ISRA case, Seller represents and
covenants that (1) to its knowledge the Property complies with all laws
applicable to the Property, (2) it shall not permit the use of the
Property for the generation, manufacture, refinement, production, or
processing of any Hazardous Substance or for the storage, handling,
transfer or transportation of any Hazardous Substance (other than in
connection with the operation and maintenance of the Property and in
commercially reasonable quantities by Seller or its tenants, as a
consumer, dealer or retailer thereof and in compliance with all
applicable laws), (3) it shall not install or permit the installation
on the Property of any underground storage tanks, surface impoundments
or asbestos-containing materials and (4) it shall cause any alterations
of the Property to be done in a way so as to not expose the persons
working on or visiting the Property to Hazardous Substances, except in
compliance with law.
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Immediately upon obtaining actual knowledge thereof, Seller
shall give to Purchaser notice of the occurrence of any of the
following events: (1) the failure of the Property to comply with any
law in any manner whatsoever; (2) the issuance to Seller of any notice,
complaint or order of violation or non-compliance of any nature
whatsoever with regard to the Property or the use thereof with respect
to any laws; or (3) any notice of a pending or threatened investigation
that the operations on the Property are not in compliance with any law.
(o) Seller has not filed any voluntary petition in bankruptcy
or been adjudicated a bankrupt or insolvent, or filed any petition or
answer seeking any reorganization, liquidation, dissolution or similar
relief under any federal bankruptcy or insolvency laws, or other relief
for debtors, or sought or consented to or acquiesced in the appointment
of any trustee, receiver, conservator or liquidator of all or any
substantial part of its assets or its interest in the Property. No
court of competent jurisdiction has entered an order, judgment, or
decree approving a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
federal bankruptcy act, and no liquidator of Seller or of all or any
substantial part of its assets or its interest in the Property has been
appointed. Seller has not given notice to any governmental body of
insolvency or pending insolvency, or suspension or pending suspension
of operations;
(p) To the best of the Seller's knowledge, none of the
representations and warranties set forth in this Paragraph contains any
material misstatement of fact or omits to state a material fact or
statement necessary to make the facts or statements contained therein
not misleading.
(q) Seller will not enter into any lease, occupancy agreement
or any other agreement, except as what is ordinary and customary for
the normal maintenance of the Property, whatsoever between the date of
this Agreement and the closing of title (or earlier termination of this
Agreement) with respect to or affecting the Property, without the prior
written consent of Purchaser.
(s) Seller shall continue to maintain the Property and not
defer taking actions or spending its funds, or otherwise manage the
Property differently due to the pending sale of the Property.
(t) At the Closing, Seller will have paid in full any and all
brokerage commissions and related fees and compensation incurred in
connection with sale of the Property.
(u) Seller does not intend to make any capital expenditures
which would materially impact its financial condition between the date
of this Agreement and the Closing Date.
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(v) All leases, tenancies, rents, charges and security
deposits affecting the Property on the date hereof, are accurately
shown on Exhibit C; complete copies of all Leases and all amendments,
guarantees and other documents relating thereto have been delivered to
the Purchaser; all of the Leases are in full force and effect, and
neither landlord nor any of the tenants are in default of any of their
obligations under any of the Leases, except that as of the date hereof
ATC is one month in arrears of base rent; all tenants are in possession
of the space leased by them on a rent paying basis; the rents shown in
Exhibit C are actually being paid by the tenant; no tenant has paid
rent for more than one (1) month in advance; no tenant claims or is
entitled to "free" rent, rent concessions, rebates or rent abatements;
no tenant claims or is entitled to any set-offs against rent; all work
required to be performed by the landlord under the Leases has been
performed in accordance with the terms of the Leases; the Seller has
assigned none of its rights under the Leases; no representation or
covenant has been made by the Seller to any of the tenants under the
Leases except as incorporated in their respective Leases; the Seller
has not assumed or agreed to perform the obligations of any tenant
under any lease or entity related to any tenant under any other lease
for space elsewhere, or other similar agreement to which any tenant or
entity related to any tenant is party.
(w) There are no employees of Seller who work at the Property
or service or maintenance contracts affecting the Property except as
shown on Exhibits G and D attached hereto and made a part hereof,
respectively.
(x) The use being made of the Property at present is in
conformity with the certificate of occupancy issued for the Property;
all required certificates and permits have been issued and are in full
force and effect; the Property and the present use and condition
thereof do not violate any applicable deed restrictions, zoning or
subdivision regulations, urban redevelopment plans, and are not
designated by any governmental agency to be in a flood plain area; the
Property and the tenants use are not in violation of any local, state
or federal environmental laws.
(y) Except for the pending ISRA case, there is no litigation,
proceeding (zoning or otherwise) or governmental investigation pending
or threatened against or relating to the Property or the transaction
contemplated by this Agreement. No notice has been received or is
anticipated of any violation or failure to comply with any law or
municipal ordinance; Seller shall furnish Purchaser with copies of any
violations received by Seller from the date hereof to closing and
Seller shall, at its expense, cure said violations prior to or within a
reasonable time after Closing; alternatively, at Purchaser's option,
Purchaser may accept a credit at Closing to the cash due at Closing in
an amount acceptable to purchaser to cure such violations.
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(z) All existing lease commissions accrued and payable by
Seller or Seller's predecessor in title or of which Seller has
knowledge of, including referral fees with respect to Leases and the
renewal of the leases as of Closing will be paid in full on or before
the Closing Date. There will be no lease commissions or referral fee
obligations on the part of Purchaser other than those that become due
and payable from the date hereof until the Closing Date, which either
apply to extending Leases beyond the Closing Date or accrue and become
payable after the Closing Date, as set forth to Exhibit H.
12. RISK OF LOSS. If prior to the Closing all or a Material part (as
that term is defined in this Article) of the Property is destroyed by fire or
the elements or by any cause beyond either party's control or is taken by
eminent domain (collectively, a "Casualty"), the Purchaser may, by notice to the
Seller given prior to the completion of the Closing, elect to cancel this
Agreement. In the event that the Purchaser shall so elect, both parties shall be
relieved and released of and from any further liability hereunder (except as
otherwise provided herein), and the Escrowee and the Seller shall return all of
the Deposit and one-half (1/2) the accrued interest and the Contract Fee to
Purchaser. Seller shall be entitled to retain one-half (1/2) of the accrued
interest on the Deposit. Unless this Agreement is so cancelled, or if only an
Immaterial part of the Property is destroyed or damaged by fire or other cause
under circumstances in which the entire loss (less than amount of any
deductible) is covered by insurance or is taken by eminent domain, this
Agreement shall remain in full force and effect, and the Seller at the Closing
shall pay to the Purchaser, provided that Purchaser has not requested Seller to
reduce the Purchase Price, any sums of money collected by the Seller under
policies of insurance, after deducting reasonable collection costs, and in
addition the Seller shall assign, transfer and set over to the Purchaser all of
the Seller's right, title and interest in and to such policies and any further
sums payable thereunder and all of the Seller's right, title and interest in and
to any awards by reason of such taking by eminent domain. In such circumstances
the Seller shall file its proof of loss promptly (or authorize and empower the
Purchaser to do so) and cooperate with the Purchaser in the processing and
adjustment of such claim. As used in this Article, "Material" means destruction
or damage, which would prevent or unreasonably hinder, in Purchaser's reasonable
discretion, Purchaser's ability to operate the Property in a similar manner to
its current state of operation. "Immaterial" means destruction or damage, which
is not Material.
Seller will not settle or compromise any claim without Purchaser's
prior consent. Seller maintains and will continue to maintain adequate insurance
against all casualty loss, in amounts sufficient to avoid any co-insurance
exposure, and Seller maintains, and will continue to maintain through the
Closing Date, rent interruption insurance in an amount not less than $4,000,000
per occurrence.
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13. CONDITION OF PREMISES. Subject to the terms of this Agreement, and
in any document delivered to Purchaser in connection with this Agreement or the
Closing, Purchaser hereby acknowledges that it has inspected and examined the
property to its satisfaction and relies upon those inspections and examinations
in entering this Agreement and not upon any oral or written representation or
warranty of the Seller, its agents, servants or employees or any broker except
as may be provided herein. The property is sold "As Is" subject only to the
continued operation of Groundwater Treatment System ("GWTS"), the monitoring
▇▇▇▇▇, and the Soil Vapor Extraction System ("SVES") as described in the Order
of the Commissioner issued on October 8, 1993, in ISRA Case No. 84-205, attached
hereto as Exhibit I. Purchaser hereby acknowledges that all rights, title and
interest to the GWTS and SVES, its accessories, components and any subsequent
modifications thereto, shall remain with the Seller. Seller shall continue to
perform all remedial investigation and remedial action work required by NJDEP to
remediate to a non-residential standard. Seller shall diligently pursue, prior
to and after the closing of title, obtaining a No Further Action letter and
Covenant Not to ▇▇▇ from NJDEP (or final Remedial Action Workplan approval) and
further to diligently pursue the removal of the Classification Exception Area
("CEA") filed for the groundwater at or emanating from the site including all
groundwater monitoring required during the duration of the CEA or to remove the
CEA.
14. INDEMNIFICATION.
(a) Purchaser hereby acknowledges that it has received a copy
of Exhibit I. Purchaser hereby agrees and accepts to take title and possession
of the Property subject to the Seller's continued operation of the GWTS,
monitoring ▇▇▇▇▇, and the SVES. Seller and Purchaser shall cooperate with each
other to assure that the GWTS and the SVES and any monitoring ▇▇▇▇▇, and other
remedial investigation or remedial action equipment at the property do not
unreasonably interfere with the operation and use of the property. Purchaser
acknowledges and understands that GWTS and the SVES shall remain in their
present locations, and cannot be removed, altered, or relocated in any way.
Purchaser shall provide access to Seller for the operation, maintenance,
installation, removal, and closure of the GWTS and the SVES and any monitoring
▇▇▇▇▇ after Closing.
(b) Seller shall defend, indemnify and hold harmless Purchaser
from and against any and all claims, actions, proceedings, notices, demands,
liabilities, expenses and costs (including attorney and expert witness fees)
arising after closing from the gross negligence or intentional misconduct by
Seller or its agents, consultants, contractors or invitees for entering the
property and operating the GWTS and the SVES. Seller shall cause its contractors
or consultants entering the property after the closing to maintain workers
compensation insurance with statutory limits, Commercial General Liability
occurrence type insurance with a combined single limit of $3,000,000 per
occurrence and aggregate for bodily injury and property damage, automobile
liability insurance including owned and hired vehicles with a combined single
limit of $1,000,000 per occurrence and aggregate for bodily injury and property
damage, and professional liability and contractors pollution liability insurance
any amount of $3,000,000.
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(c) Purchaser shall defend, indemnify and hold harmless Seller
from and against any and all claims, actions, proceedings, notices, demands,
liabilities, expenses and costs (including attorney an expert witness fees)
arising from the negligence or misconduct by Purchaser or its agents,
consultants, contractors or invitees which results in any damage to, malfunction
of, or discontinuance in the operation of the GWTS or the SVES, or any further
contamination of the property.
(d) Seller shall cause its contractor to provide Purchaser
with 30 days written notice prior to the cancellation of any insurance coverage
required under Section 14 (b). Further, Seller shall repair any damage caused by
Seller, its agents, contractors or consultants, to the property or improvements
thereon and shall, at the conclusion of the remedial investigation and remedial
action, restore the property, including removing all remediation equipment
including, but not limited to, sealing any monitoring ▇▇▇▇▇ on the property in
accordance with NJDEP regulations and orders.
(e) Purchaser shall repair any damage to the GWTS or the SVES
or monitoring ▇▇▇▇▇ caused by Purchaser, its agents, contractors or consultants.
(f) Notwithstanding anything else in this Agreement to the
contrary, the parties agree that this Section 14 shall survive the closing of
title or earlier termination of this Agreement.
15. COMMISSION. Seller agrees to pay to ▇▇▇▇▇ & ▇▇▇▇▇ Company a
commission in accordance with the listing agreement signed between Seller and
▇▇▇▇▇ & ▇▇▇▇▇. Said commission shall be deemed earned, due and payable upon
closing of title and receipt by Seller of all monies due according to this
Agreement. Each of the parties represents to the other that they were not
introduced to each other by any other broker and that no other broker has a
claim for a commission on this sale. The parties agree to indemnify and hold
each other harmless from all losses for costs including attorney's fees and
claims arising out of a breach of this representation. This indemnification
agreement shall survive the closing.
16. RECORDING OF CONTRACT. The Purchaser shall not record this
Agreement. However, the Purchaser, at its own cost, may record a Memorandum of
Contract with the Bergen County Clerks Office. Recording of any other instrument
other than a Memorandum of Contract by the Purchaser shall be deemed a material
breach for which Seller shall have the option to void the Agreement and retain
the Deposit.
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17. NOTICES. Notices by the parties to each other shall be sent by
facsimile, certified mail, return receipt requested or by overnight courier c/o
the following addresses:
Purchaser:
▇▇▇▇ Achas LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
For the Seller:
▇▇▇▇ ▇▇▇▇▇▇, Director - Corporate Real Estate
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copies shall also be sent to the attorneys for the respective parties
at the following addresses:
Purchaser:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Frenkel, Hershkowitz, & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
For the Seller:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Associate General Counsel
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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18. ASSIGNMENT; MODIFICATION.
(a) This Agreement shall not be assignable by Purchaser without the
prior written consent of the Seller, which shall not be unreasonably withheld;
however, Purchaser may assign without prior consent to any entity to be formed
provided that two of the members in any assignee are ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ or a limited liability company wholly owned by them. Any assignment of
the Agreement, except in the manner as otherwise stated above, by Purchaser,
whether directly or by operation of law, including merger, acquisition, or other
change in ownership, shall, unless cured within 5 days of notice, terminate this
Agreement and Purchaser shall be deemed in default hereunder.
(b) This Agreement may not be modified except by an instrument in
writing signed by both parties.
19. ENTIRE AGREEMENT. This Agreement including all Exhibits attached
hereto constitutes the total agreement between the Seller and Purchaser and
supersedes, replaces and controls all prior written or oral agreements,
representations or communications.
20. NUMBER AND GENDER. If it is required to make sense of this
Agreement, the use of the singular shall encompass the plural and the use of the
masculine shall encompass the feminine and neuter.
21. OBLIGATIONS. This Agreement shall be binding upon the heirs,
successors and assigns of the parties.
22. CONFIDENTIAL INFORMATION. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to such party's consultants, investors, professionals,
advisors, affiliates and others actually or prospectively involved in such
transaction, or as required by law prior to Closing. No party will make any
public disclosure of the specific terms of this Agreement, except as required by
law, prior to Closing. Without limiting the generality of the foregoing, prior
to Closing any press release or other public disclosure regarding this Agreement
or the transactions contemplated herein, and the wording of same, must be
approved in advance by both parties. In connection with the negotiation of this
Agreement and the preparation for the consummation of the transactions
contemplated hereby, each party acknowledges that it will have access to
confidential information relating to the other party. Each party shall treat
such information as confidential, preserve the confidentiality thereof, and not
duplicate or use such information, except to advisors, consultants, investors,
professionals, affiliates and others actually or prospectively involved in such
transaction in connection with the transactions contemplated hereby. The
provisions of this Section will survive the Closing or, if the purchase and sale
is not consummated, any termination of this Agreement.
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IN WITNESS WHEREOF, the parties have hereunto affixed their hands and
seals as of the date appearing herein above.
WITNESS: SELLER: ▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________ By:______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President - Finance
▇▇▇▇▇▇▇-▇▇▇▇▇▇ FLIGHT SYSTEMS, INC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________ By:______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer
WITNESS: PURCHASER: ▇▇▇▇ ACHAS LLC
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_________________________ By:_____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
21