EXHIBIT 10.28
PURCHASE AND SALE AGREEMENT
AMERICAN CYANAMID COMPANY,
Seller
TO
WELLSFORD COMMERCIAL PROPERTIES, L.L.C.
Buyer
DATED: November __, 1996
1
* * * *
The mailing, delivery or negotiation of this Agreement by Seller or
its agent or attorney shall not be deemed an offer by Seller to enter into
any transaction or to enter into any other relationship, whether on the
terms contained herein or on any other terms. This Agreement shall not be
binding upon Seller, nor shall Seller have any obligations or liabilities
or Buyer any rights with respect thereto, or with respect to the Property,
unless and until Seller has executed and delivered this Agreement. Until
such execution and delivery of this Agreement, Seller may terminate all
negotiation and discussion of the subject matter hereof, without cause and
for any reason, without recourse or liability.
* * * *
2
PURCHASE AND SALE AGREEMENT
TABLE OF CONTENTS
Page
RECITALS
ARTICLE 1. DEFINITIONS
Section 1.1. Agreement. . . . . . . . . . . . . . . . 2
Section 1.2. Assumed Permits. . . . . . . . . . . . . 2
Section 1.3. Award. . . . . . . . . . . . . . . . . . 2
Section 1.4. Broker . . . . . . . . . . . . . . . . . 2
Section 1.5. Casualty . . . . . . . . . . . . . . . . 2
Section 1.6. Casualty Insurance . . . . . . . . . . . 2
Section 1.7. Closing. . . . . . . . . . . . . . . . . 2
Section 1.8. Closing Date . . . . . . . . . . . . . . 3
Section 1.9. Complex. . . . . . . . . . . . . . . . . 3
Section 1.10. Complex Records. . . . . . . . . . . . . 3
Section 1.11. Down Payment . . . . . . . . . . . . . . 3
Section 1.12. 1800 Complex . . . . . . . . . . . . . . 3
Section 1.13. Escrow Agent . . . . . . . . . . . . . . 3
Section 1.14 Evaluation Period. . . . . . . . . . . . 3
Section 1.15. Hazardous Substances . . . . . . . . . . 4
Section 1.16. Headquarters Complex . . . . . . . . . . 4
Section 1.17. Indemnify. . . . . . . . . . . . . . . . 4
Section 1.18. Land . . . . . . . . . . . . . . . . . . 5
Section 1.19. Maximum Amount . . . . . . . . . . . . . 5
Section 1.20. Permits. . . . . . . . . . . . . . . . . 5
Section 1.21. Purchase Price . . . . . . . . . . . . . 5
Section 1.22. Purchase Transactions. . . . . . . . . . 5
Section 1.23. Repair . . . . . . . . . . . . . . . . . 5
Section 1.24. Seller's Knowledge . . . . . . . . . . . 5
Section 1.25 1700 Complex . . . . . . . . . . . . . . 6
Section 1.26. Survey . . . . . . . . . . . . . . . . . 6
Section 1.27. Taking . . . . . . . . . . . . . . . . . 6
Section 1.28. Tangible Personal Property . . . . . . . 6
Section 1.29. Title Exceptions . . . . . . . . . . . . 7
Section 1.30. Transferred Assets . . . . . . . . . . . 7
Section 1.31. Violations . . . . . . . . . . . . . . . 7
Section 1.32. Wiring Instructions. . . . . . . . . . . 7
ARTICLE 2. AGREEMENT TO SELL AND PURCHASE
Section 2.1. Agreement to Sell
and Purchase . . . . . . . . . . . . . . 8
ARTICLE 3. PURCHASE PRICE AND ASSUMPTION OF PERMITS
Section 3.1. Purchase Price . . . . . . . . . . . . . 8
Section 3.2. Assumption of Permits. . . . . . . . . .13
ARTICLE 4. CLOSING; CLOSING OBLIGATIONS; CONDITIONS
TO CLOSING
Section 4.1. Closing. . . . . . . . . . . . . . . . 13
3
Section 4.2. Seller's Closing Obligations . . . . . .14
Section 4.3. Buyer's Closing Obligations. . . . . . 16
Section 4.4. Conditions to Buyer's
Obligation to Close. . . . . . . . . . .17
Section 4.5. Conditions to Seller's . . . . . . . . . .
Obligation to Close. . . . . . . . . . 18
Section 4.6. Seller Default . . . . . . . . . . . . .19
ARTICLE 5. [INTENTIONALLY OMITTED]
ARTICLE 6. CONTINGENCIES
Section 6.1. ISRA . . . . . . . . . . . . . . . . . 20
Section 6.2 Due Diligence. . . . . . . . . . . . . .20
Section 6.3 Waiver . . . . . . . . . . . . . . . . 21
ARTICLE 7. TITLE
Section 7.1. Title Report and Survey. . . . . . . . .22
Section 7.2. Seller's Right to Extend . . . . . . . . .
Closing. . . . . . . . . . . . . . . . 23
Section 7.3. Limitation on Seller's . . . . . . . . . .
Title Obligations. . . . . . . . . . . 24
Section 7.4. Buyer's Right to Accept Title. . . . . 24
Section 7.5. Severability . . . . . . . . . . . . . .26
ARTICLE 8. BUYER'S RIGHT OF ACCESS
Section 8.1. Buyer's Access . . . . . . . . . . . . 26
Section 8.2. Buyer's Access to Records. . . . . . . 27
Section 8.3. Buyer's Indemnity. . . . . . . . . . . 28
Section 8.4. Buyer's Insurance. . . . . . . . . . . 28
Section 8.5. Survival of Buyer's Obligations. . . . 29
ARTICLE 9. ENVIRONMENTAL MATTERS
Section 9.1. Fuel Storage Tank. . . . . . . . . . . 29
Section 9.2. Asbestos . . . . . . . . . . . . . . . 30
Section 9.3. Environmental Matters. . . . . . . . . 32
ARTICLE 10. REPRESENTATIONS AND WARRANTIES
Section 10.1. Seller's Representations . . . . . . . 34
Section 10.2. Complex to be Sold "As Is" . . . . . . 39
Section 10.3. Buyer's Representations. . . . . . . . 41
Section 10.4. Survival of Representations. . . . . . . .
and Warranties and No Third
Party Beneficiaries. . . . . . . . . . 42
ARTICLE 11. ADJUSTMENTS AND EXPENSES
Section 11.1. Buyer's Expenses . . . . . . . . . . . .42
Section 11.2. Seller's Expenses. . . . . . . . . . . 43
Section 11.3. Proration Adjustments. . . . . . . . . 43
Section 11.4. Assessments; Tax Adjustment. . . . . . 44
ARTICLE 12. COVENANTS PENDING CLOSING
4
Section 12.1. Covenants Pending Closing. . . . . . . 46
ARTICLE 13. FIRE AND OTHER CASUALTY
Section 13.1. Seller's Obligation to Insure. . . . . .48
Section 13.2. Procedure Upon Casualty. . . . . . . . .48
Section 13.3. Provisions of Article 13 . . . . . . . 51
ARTICLE 14. CONDEMNATION
Section 14.1. Notice to Buyer. . . . . . . . . . . . 51
Section 14.2. Taking and Termination . . . . . . . . .51
Section 14.3. Taking Without Termination . . . . . . 52
ARTICLE 15. BROKER
Section 15.1. Broker . . . . . . . . . . . . . . . . 53
ARTICLE 16. MISCELLANEOUS PROVISIONS
Section 16.1. Access to Books and Records. . . . . . .54
Section 16.2. Time Periods . . . . . . . . . . . . . 55
Section 16.3. Recordation and Assignment . . . . . . 55
Section 16.4. Applicable Law . . . . . . . . . . . . 56
Section 16.5. Entire Agreement . . . . . . . . . . . 56
Section 16.6. All Amendments in Writing. . . . . . . 56
Section 16.7. Invalidity . . . . . . . . . . . . . . 56
Section 16.8. Notices. . . . . . . . . . . . . . . . 57
Section 16.9. Calendar Days. . . . . . . . . . . . . 58
Section 16.10. Like Kind Exchange . . . . . . . . . . .58
Section 16.11. Right of Partial Termination/
Severability . . . . . . . . . . . . . .59
Section 16.12. Seller Indemnity . . . . . . . . . . . .62
EXHIBIT A The Land
EXHIBIT B [Intentionally Left Blank]
EXHIBIT C Permits
EXHIBIT D [Intentionally Left Blank]
EXHIBIT E ▇▇▇▇ of Sale to the Tangible Property
EXHIBIT F Assignment of Permits
EXHIBIT G Tax Bills
5
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of November ___, 1996, by and between
AMERICAN CYANAMID COMPANY, a Maine corporation having an office at Five
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), and WELLSFORD
COMMERCIAL PROPERTIES, L.L.C., a Delaware limited liability company, having
an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Buyer").
WHEREAS, Seller owns the land and improvements commonly known as (i)
the American Cyanamid Headquarters Facility, located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and (ii) the office buildings located at 1700 and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, each consisting of certain lands with
the improvements thereon, as more particularly described in the legal
descriptions attached as Exhibits A-1; A-2 and A-3; and
WHEREAS, Seller desires to sell such land, improvements and other
related assets to Buyer, and Buyer desires to purchase such property and
assets from Seller, on and subject to the terms and conditions of this
Agreement.
ARTICLE 1
DEFINITIONS
In this Agreement, the following terms have the meanings set forth
below:
Section 1.1. "Agreement" means this Purchase and Sale Agreement, as
it may be amended pursuant to the terms hereof.
Section 1.2. "Assumed Permits" has the meaning set forth in Section
3.2 of this Agreement.
Section 1.3. "Award" has the meaning set forth in Section 14.2 of
this Agreement.
Section 1.4. "Broker" shall mean The Garibaldi Group.
Section 1.5. "Casualty" has the meaning set forth in Section 13.2 of
this Agreement.
Section 1.6. "Casualty Insurance" has the meaning set forth in
Section 13.1. of this Agreement.
Section 1.7. "Closing" means the closing of the purchase and sale of
the Transferred Assets contemplated by this Agreement.
Section 1.8. "Closing Date" has the meaning set forth in Section 4.1
of this Agreement.
Section 1.9. "Complex" means the Land and all of the improvements
located thereon including (i) the Headquarters Complex (as defined below),
(ii) the 1700 Complex (as defined below) and (iii) the 1800 Complex (as
defined below).
Section 1.10. "Complex Records" has the meaning set forth in Section
8.2(a) of this Agreement.
Section 1.11. "Down Payment" has the meaning set forth in Section
3.1(a) of this Agreement.
Section 1.12. "1800 Complex" means the Land and improvements known as
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, as described in Exhibit A-3.
Section 1.13. "Escrow Agent" means Chicago Title Insurance Company or
such other entity as may be designated as such by the parties.
Section 1.14. "Evaluation Period" has the meaning set forth in
Section 6.2 of this Agreement.
Section 1.15. "Hazardous Substances" means those substances
identified as "toxic substances", "hazardous substances", or "hazardous
6
wastes" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C., Sec. 9601, et seq.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C., Sec. 6901,
et seq., and the Toxic Substance Control Act of 1976, as amended, 15
U.S.C., Sec. 2601, et seq., and all other applicable federal, state and
local laws and ordinances governing similar matters; and any regulations
adopted and publications promulgated pursuant thereto.
Section 1.16. "Headquarters Complex" means the Land and improvements
located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, as described in Exhibit
A-1.
Section 1.17. "Indemnify" means to defend, indemnify and save
harmless against the particular referenced claims, liabilities,
obligations, losses, damages and penalties, and to pay all costs and
expenses (including reasonable attorneys' fees, reasonable expert witness
fees and consultants' fees and other reasonable costs of defense) incurred
by the particular referenced indemnitee(s).
Section 1.18. "Land" means those certain parcels of land described on
Exhibits A-1; A-2 and A-3 (including all rights, development rights,
privileges, easements and appurtenances thereunto).
Section 1.19 "Maximum Amount" means $1,000,000.
Section 1.20 "Permits" means the licenses, franchises,
certifications, authorizations, approvals and permits used in or relating
to the ownership or operation of the Complex as listed in Exhibit C annexed
hereto, or any other such permit which is assignable by Seller to Buyer.
Section 1.21. "Purchase Price" has the meaning set forth in Section
3.1 of this Agreement.
Section 1.22. "Purchase Transactions" has the meaning set forth in
Section 15.1 of this Agreement.
Section 1.23. "Repair" has the meaning set forth in Section 13.2 of
this Agreement.
Section 1.24. "Seller's Knowledge" means the actual knowledge without
independent inquiry of the following employees of Seller or its parent
corporation, American Home Products Corporation, who Seller represents are
all of the persons having direct responsibility for the Complex and the
subject matter of this Agreement: ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Section 1.25. "1700 Complex" means the Land and improvements known as
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, as described in Exhibit A-2.
Section 1.26. "Survey" means the current survey of the Property
delivered by Buyer to Seller pursuant to the provisions of Section 7.1.
Section 1.27. "Taking" means any taking by condemnation or by
exercise of the power of eminent domain.
Section 1.28. "Tangible Personal Property" means all carpeting, wall
coverings, kitchen equipment, furniture, fixtures, machinery and other
equipment affixed to or located on the Complex on the date of this
Agreement, but excluding, however, any furniture, furnishings, trade
fixtures, equipment, apparatus, appliances and other articles of personal
property designated by Seller or Buyer by written notice given within
thirty (30) days after the date of this Agreement to be retained by Seller,
which items of personal property shall be removed by Seller from the
Complex prior to Closing. The foregoing notwithstanding, Seller agrees not
to designate for retention any auditorium seats, lighting and audio system,
kitchen equipment, cafeteria furniture, built-in reception desks, floor-to-
ceiling modular walls, light fixtures and bulbs, electrical outlets, tools,
hand carts, spare parts, extra doors or lock sets, duct work, elevator
mats, or other similar parts, supplies or personal property used in the
operation of the Complex, including, but not limited to the items contained
in the marketing materials for the Complex delivered to Buyer by Broker,
7
which shall be conveyed to Buyer as part of the Transferred Assets.
Section 1.29. "Title Exceptions" has the meaning set forth in Section
7.1 of this Agreement.
Section 1.30. "Transferred Assets" has the meaning set forth in
Section 2.1 of this Agreement.
Section 1.31. "Violations" has the meaning set forth in Section
10.1(c)(ii) of this Agreement.
Section 1.32. "Wiring Instructions" shall mean a wire transfer of
federal funds to an account to be designated by Seller at or prior to
Closing.
ARTICLE 2
AGREEMENT TO SELL AND PURCHASE
Section 2.1. Agreement to Sell and Purchase. On the terms and
subject to the conditions set forth in this Agreement, Seller hereby agrees
to sell, assign and convey to Buyer, and Buyer hereby agrees to purchase
from Seller, the following assets (the "Transferred Assets"):
(a) the Complex.
(b) the Tangible Personal Property.
(c) subject to the provisions of Section 3.2, all right, title
and interest of Seller under the Permits.
ARTICLE 3
PURCHASE PRICE AND ASSUMPTION OF PERMITS
Section 3.1. Purchase Price. In consideration of the sale of the
Transferred Assets to Buyer, Buyer shall pay to Seller, subject to the
proration adjustments provided for in Section 11.3, the sum of SIXTEEN
MILLION DOLLARS ($16,000,000.00) (the "Purchase Price"). The Purchase
Price shall be payable as follows:
(a) To secure the performance of Buyer's obligations under this
Agreement, Buyer shall deposit with the Escrow Agent, within ten (10) days
after the execution of this Agreement by both parties, a down payment
against the Purchase Price in the amount of ONE MILLION DOLLARS
($1,000,000.00) (such sum, together with accrued interest thereon is
hereafter referred to as the "Down Payment"). The Down Payment shall be
held by the Escrow Agent in an interest bearing account with a federally
insured banking institution reasonably acceptable to Seller and Buyer.
(b) If, after having failed to terminate this Agreement pursuant
to the provisions of Article 6, and after all of the other preconditions to
Closing have been satisfied or waived, Buyer fails to close title as
required under this Agreement and Seller is not itself in default under
this Agreement, the Escrow Agent shall, upon the written request of Seller
with a copy thereof delivered to Buyer, deliver to Seller the full amount
of the Down Payment made by Buyer. The parties agree that if Buyer fails
to perform this Agreement, Seller's damages would be difficult to estimate.
Therefore, the parties agree that the forfeiture of the Down Payment shall
constitute liquidated damages for Buyer's failure and Buyer shall have no
further liability to Seller beyond such forfeiture, except with respect to
its indemnity and other obligations under Articles 8, 9 and 15; provided,
however, that, if the Down Payment is forfeited to Seller hereunder by
reason of a breach of this Agreement by Buyer, the liability of Buyer under
Articles 8, 9 and 15 shall be limited to the portion of claims or damages
in excess of the amount of the forfeited Down Payment. To the extent not
theretofore applied pursuant to this Section 3.1, the Down Payment will be
(i) credited against the Purchase Price at Closing, or (ii) returned to
Buyer if title fails to close for any reason other than Buyer's failure to
8
perform, as provided above. If Buyer fails to pay the Down Payment to
Escrow Agent within the time period provided in subsection (a) above,
Seller shall have the right to terminate this Agreement on five (5) days
written notice to Buyer, unless Buyer makes such payment within such five
(5) day period. Upon such termination, all rights and obligations
hereunder shall terminate.
(c) An amount at Closing equal to FIFTEEN MILLION DOLLARS
($15,000,000.00), minus the accrued interest on the Down Payment, plus or
minus the net proration adjustment provided for in Section 11.3, to be made
in accordance with the Wiring Instructions.
(d) The parties agree to execute all federal, state and local
transfer declarations consistent with the foregoing. Seller shall apply
such portion of the proceeds of the Purchase Price at Closing as is
necessary to fulfill any obligation of Seller to discharge liens and
charges against any of the Transferred Assets.
(e) The Escrow Agent shall not be liable to any party for any
act or omission, except for bad faith or gross negligence, and the parties
agree to Indemnify the Escrow Agent with respect to its activities under
this Agreement. The parties acknowledge that the Escrow Agent is acting
solely as a stake holder for their mutual convenience. If the Escrow Agent
receives a written notice of a dispute between the parties with respect to
the Down Payment, the Escrow Agent shall not be bound to release and
deliver the Down Payment to either party, but may either (i) continue to
hold the Down Payment until otherwise directed in a writing signed by both
of the parties hereto, or (ii) deposit the Down Payment with the clerk of
any court of competent jurisdiction. Upon such deposit, the Escrow Agent
will be released from all duties and responsibilities hereunder.
(f) The Escrow Agent shall not be required to defend any legal
proceedings which may be instituted against it with respect to the Down
Payment, the Complex or the subject matter of this Agreement, unless
requested to do so by Seller or Buyer and indemnified by the requesting
party to its satisfaction against the cost and expense of such defense.
The Escrow Agent shall not be required to institute legal proceedings of
any kind and shall have no responsibility for the genuineness or validity
of any document or other item deposited with it or the collectibility of
any check delivered in connection with this Agreement. The Escrow Agent
shall be fully protected in acting in accordance with any written
instructions given to it hereunder and believed by it to have been signed
by the proper parties. The fees of the Escrow Agent shall be paid by
Buyer.
Section 3.2. Assumption of Permits. At the Closing, Buyer shall
determine which of the Permits it desires to maintain with respect to the
Complex (the "Assumed Permits"). Seller and Buyer shall thereupon execute
an assignment of such Permits in the form annexed hereto as Exhibit F.
Seller shall Indemnify Buyer against all obligations and liabilities with
respect to the Permits arising prior to the Closing, and Buyer agrees to
Indemnify Seller against all obligations and liabilities with respect to
the Assumed Permits arising on and after Closing. Also, Buyer shall be
responsible at its expense for the transfer of the Assumed Permits to it
and Seller shall cooperate with such transfer, such cooperation to include
the execution of any necessary documentation.
ARTICLE 4
CLOSING; CLOSING OBLIGATIONS; CONDITIONS TO CLOSING
Section 4.1. Closing. The Closing shall take place on the first
business day succeeding the thirtieth (30th) day after the expiration of
the Evaluation Period (the "Closing Date"), or as the same may be extended
9
in accordance with Section 7.2, at 9:30 a.m. at the office of the Seller s
attorneys, Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, or at such other place as Seller and Buyer may mutually agree
upon in writing. Either party may make TIME OF THE ESSENCE for the Closing
by written notice given at least twenty (20) days prior to the stipulated
date in the notice, such notice to be given on or after the Closing Date
specified above, as such Closing Date may have been extended as provided
above.
Section 4.2. Seller's Closing Obligations. At the Closing, and as a
condition to Buyer's payment of the Purchase Price, Seller shall deliver or
cause to be delivered the following:
(a) A bargain and sale deed with covenant against grantor's acts
in the proper form for recording, duly executed by Seller and acknowledged,
so as to convey fee simple absolute title to the Complex to Buyer free and
clear of all liens and encumbrances, except as otherwise provided in
Article 7, below;
(b) such affidavit of title and other customary documents and
instruments as the Buyer's title insurance company may reasonably require
in accordance with customary practice in order to remove preprinted
exceptions from the Buyer's title insurance policy, including a duly
executed affidavit that Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended;
(c) A ▇▇▇▇ of sale to the Tangible Personal Property and the
Complex Records in the form of Exhibit E;
(d) if applicable, an assignment of Seller's right, title and
interest in and to the Permits in the form of Exhibit F;
(e) originals or certified true copies of all documents in the
possession of Seller relating to Permits being assigned to Buyer;
(f) such other documents or instruments as are required by this
Agreement or reasonably requested by Buyer to be delivered by Seller at
Closing;
(g) evidence of Seller's authority to convey the Complex to
Buyer, including a current certified resolution of Seller evidencing its
authority to execute, perform and discharge its obligations under this
Agreement and incumbency certificates with respect to the officers of
Seller executing any document or instrument delivered in connection with
the transaction evidenced by this Agreement; and
(h) possession of the Complex (together with any and all keys
and security codes to the Complex), free and clear of any occupants, with
the improvements in the same condition as existed at the end of the
Evaluation Period, reasonable wear and tear and (to the extent provided in
Article 13, below) casualty damage excepted.
Section 4.3. Buyer's Closing Obligations. At the Closing, as a
condition to the delivery of the deed and the other documents to be
delivered by Seller, Buyer shall deliver or cause to be delivered to Seller
the following:
(a) the Purchase Price, as set forth in Section 3.1;
(b) if applicable, an assignment of Seller's right, title and
interest in and to the Permits, duly executed by Buyer, in the form of
Exhibit F; and
(c) such other documents or instruments as are required by this
Agreement or reasonably requested by Seller to be delivered by Buyer at
Closing.
Section 4.4. Conditions to Buyer's Obligation to Close. Except as
otherwise specifically set forth in this Agreement, the obligation of Buyer
under Section 4.1 to close the transactions contemplated by this Agreement
(including the Exhibits hereto) are subject to the fulfillment, prior to or
at the Closing, of each of the following conditions, any one or more of
10
which may be waived by Buyer either in writing or by Closing:
(a) The representations and warranties of Seller contained in
Section 10.1 of this Agreement shall be reiterated by Seller to the effect
that the same are true at and as of the Closing Date.
(b) Each of the obligations of Seller to be performed on or
before the Closing Date pursuant to the terms of this Agreement shall have
been performed in all material respects.
(c) Title to the Transferred Assets shall be in the condition
required by Article 7 of this Agreement.
(d) The absence of Hazardous Substances on the Complex, in
amounts sufficient to require reporting and remediation in accordance with
applicable laws, and/or to prevent mortgage financing of the Complex on
reasonable and customary terms, unless the existence of such Hazardous
Substances was disclosed to or was otherwise within the actual knowledge of
Buyer by the end of the Evaluation Period.
(e) The absence of any governmental improvement assessments
levied against the Headquarters Complex in the amount of $1,000,000. or
more (or $100,000. or more in any one year), or levied against the 1700
Complex and/or the 1800 Complex in the amount of $500,000. or more (or
$50,000. or more in any one year).
(f) The failure of either Seller or Buyer to have terminated
this Agreement in accordance with its terms.
Section 4.5. Conditions to Seller's Obligation to Close. Except as
otherwise specifically set forth in this Agreement, the obligation of
Seller under Section 4.1 to close the transactions contemplated by this
Agreement (including the Exhibits hereto) are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions, any one or
more of which may be waived by Seller either in writing or by Closing:
(a) The representations and warranties of Buyer contained in
Section 10.3 of this Agreement shall be reiterated by Buyer to the effect
that the same are true in all material respects at and as of the Closing
Date.
(b) Each of the obligations of Buyer to be performed on or
before the Closing Date pursuant to the terms of this Agreement shall have
been performed in all material respects.
(c) The failure of either Seller or Buyer to have terminated
this Agreement in accordance with its terms.
Section 4.6. Seller Default. If, after all applicable preconditions
to Closing have been satisfied or waived, Seller shall refuse to convey
title to Buyer, or if Seller otherwise defaults under this Agreement (and
notwithstanding any permitted termination of this Agreement by Purchaser or
Seller), Buyer shall have the right to terminate this Agreement, receive a
refund of the Down Payment and/or pursue all rights and remedies against
Seller available at law or in equity, including the right of specific
performance.
ARTICLE 5
[INTENTIONALLY OMITTED]
ARTICLE 6
CONTINGENCIES
Section 6.1. ISRA. This Agreement is contingent upon Seller
obtaining and delivering to Buyer, within forty-five (45) days from the
date of execution and delivery of copies of this Agreement to each party ,
at Seller's expense, a letter of non-applicability, a no-further-action
letter, a letter of full compliance, or the equivalent of any of the
foregoing, from the New Jersey Department of Environmental Protection in
compliance with the Industrial Site Recovery Act, and the regulations
promulgated thereunder. If Seller fails to secure same within such period,
Buyer shall have the right to terminate this Agreement by notice to Seller,
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provided that such right of termination is exercised within thirty (30)
days after the expiration of the Evaluation Period. Upon such termination,
the Down Payment shall be returned to Buyer and all rights and obligations
hereunder shall terminate.
Section 6.2. Due Diligence. Buyer shall have a period of forty-five
(45) days from the date of execution and delivery of copies of this
Agreement to each party (the "Evaluation Period"), within which to conduct
environmental and other physical inspections of the Complex, seek
governmental approvals for its proposed use of the Complex, and otherwise
evaluate the suitability of the Complex for its intended uses. If, on or
before the expiration of the Evaluation Period, Buyer determines in its
sole judgment that the results of its efforts and investigations have not
been favorable, then Buyer shall have the right to terminate this Agreement
by serving written notice thereof upon Seller. Seller agrees to cooperate
with Buyer in any of its applications to governmental authorities and
otherwise to facilitate Buyer's due diligence efforts. Upon a termination
hereunder, the Down Payment shall be refunded to Buyer and all rights and
obligations hereunder shall terminate.
Section 6.3. Waiver. If Buyer fails to terminate this Agreement by
reason of the failure of any of the contingencies described in this Article
prior to the expiration of the Evaluation Period, such contingencies shall
be deemed waived by Buyer and Buyer, subject to the other conditions of
this Agreement, shall be obligated to proceed to the closing of title in
accordance with the provisions of this Agreement.
ARTICLE 7
TITLE
Section 7.1 Title Report and Survey. Buyer agrees to procure at its
own expense within forty-five (45) days of the date hereof a title
commitment for an owner's title insurance policy at regular rates issued by
a title insurance company licensed to transact business in the State of New
Jersey in an amount not greater than the contemplated Purchase Price,
insuring fee simple absolute title to the Complex, and to use reasonable
efforts also to procure within such period a Survey of the Complex. Buyer
shall give written notice to Seller of any objection to title within forty-
five (45) days from the date of this Agreement. Buyer shall not object to
liens for real estate taxes and assessments not due on or before the
Closing Date, and, subject to Section 6.2, zoning ordinances and
regulations of record. Except with regard to liens of an ascertainable
amount which will be paid by Seller at Closing, Buyer shall be deemed to
have waived any liens, encumbrances or survey or title defects ("Title
Exceptions") as to which it does not notify Seller within forty-five (45)
days from the date hereof. This waiver shall not apply to any Title
Exception which first becomes of record (whether or not it relates back to
an earlier date) after the date of Buyer's title report and prior to the
Closing.
Section 7.2. Seller's Right to Extend Closing. In the event of any
Title Exception raised by Buyer, subject to which Buyer is not obligated to
accept title, Seller shall, at its option, be entitled to a period not to
exceed forty-five (45) days to enable Seller to attempt to cure same by
providing to Buyer evidence reasonably satisfactory to Buyer of the removal
of the Title Exception (without charge to Buyer), or, at Buyer's option, by
the procurement of title insurance endorsements, at Seller's expense,
providing coverage to Buyer against loss or damage as a result of such
Title Exception. If such forty-five (45) day period extends beyond the
Closing Date, the Closing Date shall be extended accordingly; provided,
however, that, unless Buyer agrees otherwise, in no event shall the Closing
Date be earlier than thirty (30) days after Seller has notified Buyer that
it has cured the Title Exception. Seller's sole obligation to satisfy any
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title company closing requirement with respect to a general exception
regarding unspecific mechanic's, materialmen's or similar liens shall be to
execute and deliver to the title company an affidavit or mechanic's lien
undertaking in form and substance customarily required by the title company
to cause it to delete such exception.
Section 7.3. Limitation on Seller's Title Obligations. Seller shall
not be required to (i) commence any litigation or (ii) incur any costs or
expenses in excess of the Maximum Amount, to cure or remove any Title
Exception, except that Seller shall be obligated (x) to cure, remove or
provide for the satisfaction of any Title Exception which arises after the
date of this Agreement, and (y) to pay and remove any liens on the Complex
which may be removed or satisfied by the payment of a liquidated sum of
money; provided, however, that in lieu of satisfying a judgment lien,
Seller may deliver to the title company an indemnity bond or other security
or undertaking, covering the amount of the judgment, plus interest, on the
basis of which the title company agrees to remove such lien as an exception
in Buyer's title insurance policy or affirmatively insures Buyer against
collection of such lien out of the Complex.
Section 7.4. Buyer's Right to Accept Title. If Seller advises Buyer
that Seller, consistent with its rights and obligations under this Article
7, is unable or unwilling to remove any title exception which Buyer is not
required to accept under the terms of this Agreement, Buyer as its sole and
exclusive remedy shall have the right and option, exercisable by notice to
Seller given within fifteen (15) days after Buyer's receipt of Seller's
notice that Seller will not or cannot cure, to (i) elect to accept such
title as Seller may be able to convey, and Buyer shall not be entitled to
any abatement, reduction of or any credit or allowance against the Purchase
Price or otherwise by reason thereof, except that Buyer shall be entitled
to a credit equal to the reasonably estimated cost of removing the defect,
but not to exceed the Maximum Amount, and Seller shall have no further
liability with respect thereto, or (ii) to terminate this Agreement. If
Buyer fails to notify Seller of its intention within the time provided,
Buyer shall be deemed to have elected alternative (ii). If Buyer elects
alternative (ii), Seller shall direct the Escrow Agent to return the Down
Payment to Buyer, and Seller shall reimburse Buyer for any reasonable and
documented out-of-pocket expenses which Buyer has incurred in connection
with this transaction in an amount not to exceed $25,000, this Agreement
shall terminate, and neither party hereto shall have any further rights or
obligations under this Agreement as to the other, except with respect to
the reimbursement of expenses and as otherwise expressly reserved in this
Agreement.
Section 7.5. Severability. The provisions of this Article 7 shall be
subject to the severability provisions of Section 16.11, below.
ARTICLE 8
BUYER'S RIGHT OF ACCESS
Section 8.1. Buyer's Access. Subject to Seller's reasonable
requirements for security and the protection of its confidential
information, Buyer and its representatives shall be permitted access to the
Complex upon prior reasonable notice and at mutually convenient times
during normal business hours in order to inspect the Complex and the
Complex Records, as more particularly described in Section 8.2. During
such access, Buyer and its representatives shall not cause any substantial
interference with Seller's operations at the Complex. Seller may require
that persons having such access be accompanied by Seller's representatives
while inside the Complex. Buyer's inspections may include test borings and
other invasive methods, provided that Buyer promptly repairs any resulting
damage and restores the applicable surface to substantially its prior
condition.
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Section 8.2. Buyer's Access to Records.
(a) Seller shall permit Buyer to review and make, at Buyer's
expense, photocopies or other reproductions of, plans and specifications
for the Complex and Complex systems (including any available "as built"
drawings), maintenance records, licenses, reports, certificates, contracts
and such other items relating to the construction or operation of the
Complex as may be in the possession of or readily accessible to Seller at
the time such request is received ("Complex Records").
(b) Except as otherwise provided in this Agreement, Seller makes
no representation or warranty and assumes no liability for the accuracy,
availability, or completeness of any of the Complex Records and Buyer
assumes all risk in connection with the use thereof and releases Seller
from any liability in connection with the use of any of the Complex Records
by Buyer or by any other person acting on behalf of or through Buyer. If
for any reason whatsoever title to the Complex does not pass to Buyer and
no litigation is pending between the parties with respect to this
Agreement, Buyer shall immediately return to Seller all Complex Records,
including any photocopies, reproductions or summaries thereof, which Buyer
or any of its representatives have obtained, without retaining any copies
thereof.
Section 8.3. Buyer's Indemnity. The rights of access granted under
this Agreement shall be at Buyer's sole risk. Buyer shall Indemnify Seller
against any and all claims and liability for injury, including death, to
any person, or damage or loss of any kind to property, including the
Complex and other property of Seller, Buyer or of any third party, that may
occur as a result of Buyer's exercise of any of such rights of access,
including but not limited to the use of the Complex Records, excluding,
however, claims or liability arising from the sole negligence or
intentional acts of Seller.
Section 8.4. Buyer's Insurance. Buyer shall, at all times that it
may be at or upon the Complex pursuant to this Agreement, keep in force
public liability insurance in good and solvent insurance companies with
limits of at least $1,000,000/ $2,000,000 for bodily injury and $1,000,000
for property damage, or a combined single limit of not less than
$2,000,000., covering its liability under this Article 8, including its
contractual liability under Section 8.3. Certificates of such insurance
shall be delivered to Seller prior to such entry. Such certificates shall
provide that they may not be cancelled or modified unless Seller is given
at least thirty (30) days' prior written notice.
Section 8.5. Survival of Buyer's Obligations. Buyer's obligations
under this Article 8 shall survive the Closing or any termination of this
Agreement.
ARTICLE 9
ENVIRONMENTAL MATTERS
Section 9.1. Fuel Storage Tank. Seller has disclosed to Buyer and
Buyer acknowledges that it is aware of a certain subground level storage
tank which is located at the Complex and which is currently in use to store
and supply fuel. To Seller's Knowledge, without independent inquiry, there
are no leaks from such tank. Buyer shall inspect the same and assure
itself that such tank is in a condition which complies with the
requirements of applicable federal, state or local law. Buyer agrees to
file after the Closing, with such federal, state, and local agencies as may
have jurisdiction thereof, such documents as may be necessary to show the
change of ownership of such tank.
Section 9.2. Asbestos.
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(a) Seller has disclosed to Buyer that asbestos containing materials
(ACMs) were used in connection with the construction of buildings and
improvements in the Complex. Except as hereafter provided, Seller shall
have no obligation or liability for any removal, encapsulation or other
remedial action with respect to ACMs at the Complex or otherwise relating
to the presence of any ACMs in or at the Complex. Seller covenants and
represents that any ACMs which were removed by it from the Complex were
removed and disposed of in accordance with all applicable legal
requirements. Seller agrees to Indemnify Buyer with respect to the lack
of compliance by Seller with applicable laws in connection with its removal
and disposal of any ACMs from the Complex, and for asbestos exposure claims
made by any third parties arising out of any alleged contact with ACMs
during the period prior to Buyer's ownership of the Complex. The foregoing
agreements shall survive the Closing.
(b) Prior to the expiration of the Evaluation Period, Buyer shall
enter into a contract (which may be contingent upon the occurrence of the
Closing) in form and with a licensed ACM contractor reasonably approved by
Seller (such contractor to carry insurance coverage for the benefit of
Seller and Buyer in amounts reasonably acceptable to Seller) for the
removal of all ACMs from the main headquarters building at the One Cyanamid
Plaza location (the so-called Serpentine Building containing approximately
370,000 square feet). Buyer agrees to proceed with the performance of such
contract after Closing and subject to force majeure (i.e., causes beyond
Buyer's control), to complete the removal of such ACMs within eighteen (18)
months after the Closing, such Agreement to survive the Closing.
Completion of the contract shall be evidenced by the issuance by the
contractor of a certification to Seller and Buyer that the ACMs have been
disposed of in accordance with applicable laws. If Buyer fails to enter
into such contract during the Evaluation Period, Seller shall have the
right to terminate this Agreement by notice to Buyer, whereupon the Down
Payment shall be refunded to Buyer and all rights and obligations hereunder
shall terminate, except those which by their terms would survive such
termination. This Agreement by Buyer is a material inducement to Seller in
entering into this Agreement. Therefore, if Buyer fails to diligently
pursue to completion the removal of the ACMs from the main headquarters
building after the Closing, and subject to force majeure as aforesaid, to
complete such removal within 18 months thereafter, Seller shall be entitled
to pursue all available legal remedies for such failure against Buyer,
including suits for damages and/or specific performance.
Section 9.3. Environmental Matters.
(a) Buyer understands, agrees and acknowledges that it is purchasing
the Complex in AS IS WHERE IS condition and that Seller has not, except as
specifically contained in this Agreement, made and will not make, either
expressly or impliedly, any other representations or warranties concerning
the environmental condition of the site, and that if Buyer accepts title to
the Complex, it is relying solely upon its own due diligence investigation,
and the specific representations and warranties of Seller in this
Agreement.
(b) Neither Buyer nor any of its employees, contractors, agents,
successors and assigns may, prior to Closing, voluntarily report or
disclose any environmental condition or Hazardous Substances existing at
the Complex to any third party, including, without limitation, any
governmental agency, except with the consent of Seller or as may be
required by law. Notwithstanding the above, (i) Buyer may disclose
environmental conditions or the presence of Hazardous Substances to its
attorneys, engineers, contractors, environmental consultants, insurers,
lenders and business partners, provided that such parties are made aware of
the nondisclosure obligation included herein and agree to be bound by such
15
obligation of nondisclosure, (ii) Buyer may disclose information which is
already public knowledge on the date of this Agreement, and (iii) Buyer
shall not be responsible for the disclosure by any of its agents or
contractors of information which was possessed by such agent or contractor
on the date of this Agreement.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Section 10.1. Seller's Representations. Seller represents and
warrants that the following are true and correct on the date hereof, and
will be true and correct at Closing:
(a) Corporate Organization and Authority. Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Maine, is qualified to do business in the state where
the Complex is located and has all necessary corporate power to execute and
deliver this Agreement, and any other document required by this Agreement
and to perform all of its obligations thereunder, that this Agreement and
any other document required by this Agreement have been duly authorized by
all requisite corporate action on Seller's part, that the consent of no
other party is required for the execution and delivery of same by Seller,
and that each of this Agreement and any other document required by this
Agreement, when such agreement has been executed and delivered by all
parties thereto, will constitute the valid and legally binding obligation
of Seller.
(b) Litigation. There is no litigation or proceeding pending
or, to Seller's Knowledge, threatened which would in Buyer's reasonable
judgment materially adversely affect the Complex or Buyer's intended use
thereof, or prevent Seller from complying with any of its obligations under
this Agreement.
(c) Violations.
(i) No notes or notices of violation of law or municipal
ordinances or of federal, state, county or municipal or governmental agency
regulations, orders or requirements relating to the Land or Complex have
been received by Seller, other than notices which have been fully complied
with and satisfied, and, to Seller's Knowledge, it has no reason to believe
that any such note or notice may or will be entered.
(ii) Except as otherwise provided in Article 9, above, any
written notice of violations of any law, code, ordinance, regulation, rule,
requirement, order or restriction, issued by any municipal, county, state
or federal department or authority having jurisdiction over the Complex
("Violations") received by Seller prior to the Closing Date shall be
disclosed to Buyer and shall be removed or complied with by Seller.
(iii) Seller shall use commercially reasonable efforts to
remove any such Violations prior to Closing, including, if necessary, the
expenditure of funds up to the Maximum Amount. If such removal or
compliance has not been completed prior to Closing, the Closing shall be
adjourned for such period up to forty-five (45) days as is reasonably
necessary in order to secure the removal of the Violation, unless the
parties agree to the contrary.
(iv) Notwithstanding Section 10.1(c)(ii) above, if the
reasonably estimated aggregate cost to remove or comply with any Violations
which Seller is required to remove or comply with pursuant to the
provisions of Section 10.2(c)(iii), based upon a quotation from an
independent third-party contractor in the particular field involved, shall
exceed the Maximum Amount, Seller shall have the right exercisable by
Seller by notice to Buyer prior to Closing to terminate this Agreement,
16
unless Buyer elects to accept title to the Transferred Assets subject to
such Violations, in which event Buyer shall be entitled to a credit against
the Purchase Price equal to the Maximum Amount and Buyer shall Indemnify
Seller against all claims, liabilities, obligations, loss and damages that
may arise as a result of such Violations. All notices of Violations issued
or received after the Closing shall be the sole responsibility of the
Buyer.
(d) Employees. No employees of Seller are being transferred to
Buyer as part of this transaction.
(e) Personal Property. Seller has good and marketable title to
the Tangible Personal Property, and all items of such property have been
fully paid for to the date of this Agreement.
(f) Permits. Seller has not received any notice of default
under any Permit, nor has Seller received any notice from any source to the
effect that there is lacking any Permit needed in connection with the
operation of the Complex, or that any Permit may (or should, based on
factual information known to Seller) be revoked or suspended.
(g) Condemnation. There are no threatened, or to Seller's
Knowledge, pending, condemnation or eminent domain proceedings which would
affect the Complex or any part thereof.
(h) Insurance. There are no outstanding mandatory requirements
for work by the insurance companies which insure the Complex, or by any
board of fire underwriters or body exercising similar functions.
(i) Tax Bills. The tax bills, copies of which are annexed
hereto as Exhibit G, are true and correct copies of all of the current tax
bills for the Land and the Complex.
(j) Disclosure. Seller has disclosed or will disclose to Buyer
prior to the expiration of the Evaluation Period (or thereafter when first
discovered prior to the Closing) all material information with respect to
the environmental condition of the Complex which is within Seller's
Knowledge.
(k) Records. The Complex Records made available to Buyer are
and will be, to Seller's Knowledge, true, complete and unmodified.
(l) Contracts. There are no contracts, service agreements,
leases or other occupancy agreements with respect to the Complex with any
third parties, including governmental authorities, which are not terminable
on notice of thirty (30) days or less.
Section 10.2. Complex to be Sold "As Is". Other than those
representations and warranties which are expressly set forth in this
Agreement, Buyer has not been induced by and has not relied upon any
representations, warranties or statements, whether express or implied,
written or oral, made by Seller or any agent, employee, attorney or other
representative of Seller or by any broker or any other person representing
or purporting to represent Seller, including, without limitation, with
respect to the following: (i) the condition or state of repair of any of
the Transferred Assets or the compliance thereof with any laws, ordinances
or governmental regulations, or the suitability of any of the Transferred
Assets for any intended use or operation by Buyer; (ii) zoning, building
department or environmental requirements which may be applicable to any of
the Transferred Assets or any use or operation thereof, or the impact, if
any, of such requirements on any intended use by Buyer; (iii) the
assignability of licenses or contractual or other rights or permits now
held by or for the benefit of Seller; or (iv) any other matter or thing
affecting the Transferred Assets or any part thereof or any operation or
use thereof. Subject to the rights of Buyer to terminate this Agreement
pursuant to the provisions of Article 6, Buyer will be afforded sufficient
opportunity to conduct inspections of the Transferred Assets and Buyer has
and will be given the opportunity to inspect and fully satisfy itself as to
17
the condition of the Transferred Assets (including, without limitation, the
environmental, structural and engineering condition) and that all such
Transferred Assets are being sold by Seller and purchased by Buyer strictly
"AS IS" and "WHERE IS" as of the date of this Agreement, and that, on the
Closing Date, Buyer shall accept the same so long as the then physical
condition thereof is substantially the same as on the date of the
expiration of the Evaluation Period (ordinary wear and tear excepted and,
subject to the provisions of Article 13, damage due to casualty loss
excepted). Without limiting any of the foregoing provisions of this
Section 10.2, Buyer expressly acknowledges and agrees that Buyer's entering
into this Agreement shall be conclusive evidence that it has not relied
upon any representations or warranties except as are expressly set forth in
this Agreement AND THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY OF THE TRANSFERRED ASSETS ARE EXPRESSLY DISCLAIMED AND
WAIVED BY BUYER, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Nothing contained
in this Section shall affect Seller's liability, if any, arising out of the
breach of, or inaccuracy of, its specific representations and warranties
contained in this Agreement.
Section 10.3. Buyer's Representations. Buyer represents and warrants
that the following are true and correct on the date of this Agreement:
(a) Organization and Authority. Buyer is a limited liability
company duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all necessary power to execute and
deliver this Agreement, and any other document required by this Agreement
and to perform all of its obligations thereunder, that this Agreement and
any other document required by this Agreement have been duly authorized by
all requisite action on Buyer's part, that the consent of no other party is
required for the execution and delivery of same by Buyer, and that each of
this Agreement and any other document required by this Agreement, when such
agreement has been executed and delivered by all parties thereto, will
constitute the valid and legally binding obligation of Buyer.
(b) Litigation. There is no litigation or proceeding pending
which would prevent Buyer from complying with any of its obligations under
this Agreement or any other agreement contemplated herein.
Section 10.4. Survival of Representations and Warranties and No Third
Party Beneficiaries. The representations and warranties of Buyer and
Seller under this Article 10 shall survive the Closing and are personal to
the parties to this Agreement. None of such representations and
warranties, nor any other provisions of this Agreement, shall confer any
rights or remedies on any third parties, nor discharge any obligations of
any third parties nor give any third party any right of subrogation or
action over or against any party to this Agreement.
ARTICLE 11
ADJUSTMENTS AND EXPENSES
Section 11.1. Buyer's Expenses. Buyer shall pay at or prior to
Closing (i) all charges, fees, expenses, taxes, and all other taxes and
fees relating to any Buyer financing for this purchase and sale; (ii) the
cost of any appraisal of the Complex and any inspections of the Complex,
(iii) the cost of the Survey (iv) all of its attorneys' legal expenses in
connection with the purchase and sale, and (v) the cost of title insurance
and deed recording fees.
Section 11.2. Seller's Expenses. Seller shall pay at or prior to
Closing (i) all sales and use taxes incident to this purchase and sale;
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(ii) the brokerage commission of the Broker; (iii) all of its attorneys'
legal expenses in connection with the purchase and sale, and (iv) the cost
of real estate transfer taxes.
Section 11.3. Proration Adjustments. The following items of expense
relating to the Transferred Assets shall be prorated as of the Closing
Date:
(a) Subject to Section 11.4 below, current real estate taxes
shall be determined preliminarily as of the Closing on the basis of the
most recent available tax ▇▇▇▇, and appropriate adjustments shall be made
between the parties when the amount of such taxes are finally determined.
(b) Assessments, water and sewer charges, any other applicable
public utility charges, and Assumed Permit charges and fees shall be
appropriately adjusted between the parties. Metered utility charges shall
be adjusted on the basis of meter readings made no more than five (5) days
prior to Closing.
(c) Such other items as are provided for in this Agreement or as
are normally prorated or adjusted on the sale of real estate such as the
Complex.
The provisions of this Section shall survive the Closing. The parties
agree to cooperate in good faith after the Closing to correct any errors
which are made in the calculation and computation of the adjustments
described above.
Section 11.4. Assessments; Tax Adjustment.
(a) If, as of the Closing, the Complex or any part thereof shall
be affected by any improvement assessments that are or may become payable
in installments, then for the purposes of this Agreement, Seller shall be
required to pay only those installments that are due and payable on or
prior to Closing. Seller represents that it is not now paying any such
assessments with respect to the Complex.
(b) Seller has filed a real estate tax appeal for 1996 with
respect to the Headquarters Complex. Seller shall be entitled to the
benefit of any refunds for any full tax years prior to Closing. Seller
shall pay all expenses for any administrative or judicial proceedings which
Seller at any time brings to secure such refunds. Buyer shall execute all
necessary documents and consents required by Seller in any such proceedings
without cost or expense to Seller. After Closing, Buyer shall cooperate
with Seller by allowing reasonable access to the Headquarters Complex and
Complex Records by agents of Seller or ▇▇▇▇▇ Township, as is required by
the pending tax appeal. If Buyer files a tax appeal for the Headquarters
Complex for 1997, it agrees to consolidate such appeal with Seller's 1996
appeal, if required by law. Each party shall reasonably cooperate with the
other in such consolidated appeal and no settlement shall be effected
without the concurrence of both Seller and Buyer.
(c) Any refund, net of the associated expenses of recovering
same, relating to the tax year during which the Closing occurs shall be
apportioned between Buyer and Seller on the basis of the number of days in
such tax year up through the Closing. If a tax appeal is filed for the
year in which the Closing occurs, such appeal shall be controlled by the
party who will own the Complex for the longer period of time during such
tax year. Neither party shall settle any such proceedings without the
consent of the other party, which consent shall not be unreasonably
withheld or delayed. The provisions of this Section shall survive Closing.
ARTICLE 12
COVENANTS PENDING CLOSING
Section 12.1. Covenants Pending Closing. Between the date of this
Agreement and the Closing and except as otherwise consented to or approved
by Buyer in writing or required or permitted by the terms of this
Agreement, Seller agrees that:
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(a) Seller shall not mortgage, pledge, or create any contractual
lien, charge or any other encumbrance (or agree so to do) in respect to any
of the Transferred Assets;
(b) Seller shall not sell or transfer, or agree to sell or
transfer, any of the property constituting the Transferred Assets;
(c) Seller shall not, without Buyer's consent, which shall not
be unreasonably withheld or delayed, (i) enter into any new contract or
lease with respect to the Complex which is not terminable at or prior to
the Closing, or (ii) allow any Permit to expire or be otherwise terminated;
(d) Seller will maintain in full force and effect all Casualty
Insurance which is in effect as of the date of this Agreement with respect
to the Transferred Assets;
(e) All contracts with respect to the maintenance and operation
of the Complex, and any rights of third parties to possession thereof,
shall be terminated as of the Closing, except as otherwise agreed by the
parties or as permitted by the provisions of Article 7 of this Agreement.
(f) Seller shall continue its normal preventative maintenance on
the improvements of the Complex to avoid deterioration beyond ordinary wear
and tear. Seller shall also continue to pay all accruing operating
expenses of the Complex. The provisions of this Section 12.1 shall survive
Closing.
(g) Seller shall not use, dispose of or store any Hazardous
Substances on the Complex, except those which are customarily used in the
operation and maintenance of properties such as the Complex, but any such
materials must be used and maintained in accordance with all applicable
laws.
ARTICLE 13
FIRE AND OTHER CASUALTY
Section 13.1. Seller's Obligation to Insure. From the date hereof
until Closing, Seller shall maintain fire and extended coverage insurance
upon the Complex in an amount not less than the full replacement value (the
"Casualty Insurance").
Section 13.2. Procedure Upon Casualty. In the event of any damage to
the Complex by reason of fire or other casualty occurring prior to the
Closing (a "Casualty"), Seller shall, within thirty (30) days after the
Casualty, obtain from a building contractor of its choice an estimate of
the cost necessary to repair, restore, or replace any such damage in a
manner which is in accordance with the requirements of applicable law (a
"Repair") and the estimated time period to complete such Repair. If the
estimated cost of the Repair is less than $100,000.00 and the estimated
time of completion is less than 120 days, Seller shall so notify Buyer and
Seller shall promptly undertake to complete the Repair. In such case,
Seller shall have the right to adjourn the Closing for a period not to
exceed 120 days to enable Seller to complete the Repair. At Buyer's
option, as more fully set forth in Section 16.11, below, the Closing may be
adjourned as to the entire Complex, or as to the portion of the Complex
affected by such casualty only, or the Closing may take place prior to the
Repair, whereupon Seller's Repair obligation shall survive Closing. If the
estimated cost of the Repair is $100,000.00 or more, or if the estimated
time to complete the Repair is 120 days or more, Seller shall so notify
Buyer, such notice to also indicate whether or not Seller is willing to
make the Repair, and, if Seller is not willing to Repair, Seller's best
estimate of the amount of insurance proceeds which will be available from
20
the Casualty. Buyer shall have the right, within ten (10) business days
after its receipt of Seller's notice, to terminate this Agreement as to the
portion of the Complex affected by such Casualty, as more fully set forth
in Section 16.11 of this Agreement, or as to the entire Complex, by notice
to Seller. Upon such termination, the applicable portion of the Down
Payment shall be refunded to Buyer and all rights and obligations hereunder
with respect to the applicable portion of the Complex shall terminate,
except those which explicitly survive such termination. If Buyer does not
terminate this Agreement within said ten (10) business day period as to the
damaged portion of the Complex, and Seller has indicated that it will not
make the Repair, the Closing shall take place without abatement of the
Purchase Price, but Seller shall at Closing (a) deliver to Buyer the
proceeds of its Casualty Insurance resulting from such Casualty which
Seller may have collected, (b) pay to Buyer any applicable deductible under
the Casualty Insurance maintained by Seller with respect to such Casualty
and (c) guaranty to Buyer the payment of any additional proceeds of its
Casualty Insurance to which it may be entitled. If Buyer does not
terminate this Agreement as to the damaged portion of the Complex, as
aforesaid and Seller does elect to Repair, it shall be obligated to
complete the Repair regardless of whether or not the proceeds of the
Casualty Insurance are adequate to cover the cost of such Repair and Seller
may use any proceeds of its Casualty Insurance for the purpose of the
Repair. After completion of the Repair to Buyer's reasonable satisfaction,
any excess proceeds of the Casualty Insurance shall belong to Seller.
Subject to Section 16.11, Seller shall also have the right to adjourn the
Closing for a period equal to the estimated time to complete the Repair,
unless Buyer elects to close title prior to completion of the Repair,
whereupon Seller's obligation to Repair shall survive the Closing.
Section 13.3. Provisions of this Article 13 Supersede any Allocation
of Rights Established by Applicable State Law. This Article 13 is intended
as an express provision with respect to allocation of risk in the event of
any Casualty and supersedes any law of the state in which the Complex is
located which by its terms allocates such risk in any different manner.
ARTICLE 14
CONDEMNATION
Section 14.1. Notice to Buyer. In the event that prior to the
Closing Seller has Knowledge of any actual or threatened Taking of all or
any part of the Complex, Seller shall give Buyer prompt notice of such
event. Seller represents that it presently has no such Knowledge.
Section 14.2. Taking and Termination. If prior to the Closing a
Taking of all or any part of the Complex shall occur or be threatened in
writing by the applicable governmental authority, Buyer may terminate this
Agreement as to the portion of the Complex affected by such Taking, as more
fully set forth in Section 16.11 of this Agreement, or as to the entire
Complex, by notice to the Seller given prior to the Closing and in any
event not later than ten (10) business days after the date on which Buyer
receives notice of such Taking or threatened Taking. If Buyer so elects to
wholly or partially terminate this Agreement, Seller shall cause the Escrow
Agent to return the applicable portion of Down Payment to Buyer, Seller
shall be entitled to the entire condemnation award (the "Award") and
neither party shall have any further right or liability under this
Agreement as to the applicable portion of the Complex except as expressly
reserved in this Agreement. If the Taking or threatened Taking affects the
21
entire Complex, Seller shall also have the right to terminate this
Agreement as provided in the previous sentence.
Section 14.3. Taking Without Termination. If prior to the Closing a
Taking which does not involve a termination of this Agreement shall occur
or be threatened in writing by the applicable governmental authority, the
Closing shall take place without any abatement of the Purchase Price. At
the Closing, Seller shall assign to the Buyer all of Seller's right to the
Award. In such case, Seller agrees that it will not settle or compromise
any Award without the consent of Buyer, which consent shall not be
unreasonably withheld or delayed.
ARTICLE 15
BROKER
Section 15.1. Broker. Buyer represents and warrants to Seller that
neither Buyer nor any of its affiliates or agents has retained or dealt
with any unaffiliated broker, finder or similar party in connection with
any of the transactions contemplated by this Agreement (collectively, the
"Purchase Transactions"), except for the Broker, whose commission Seller
has agreed to pay pursuant to a separate agreement. Buyer agrees to
Indemnify Seller against any claim or liability for broker's commissions or
against any similar compensation or related damages asserted by or due to
any person or entity claiming to have dealt with Buyer or Buyer's
affiliates or agents in connection with any of the Purchase Transactions,
except for the Broker. Seller represents and warrants that neither Seller
nor any agent of Seller has retained any broker or finder in connection
with any of the Purchase Transactions, except for the Broker. Seller
agrees to Indemnify Buyer against any claim or liability for broker's
commissions or similar compensation or related damages asserted by or due
to any person or entity (including the Broker) claiming to have dealt with
Seller or its agents in connection with any of the Purchase Transactions.
The representations, warranties and covenants set forth in this Article 15
shall survive the Closing or any termination of this Agreement prior to
Closing.
ARTICLE 16
MISCELLANEOUS PROVISIONS
Section 16.1. Access to Books and Records. This sale does not
include the books and records of Seller, but Seller and Buyer agree that
all books, records, files and correspondence pertaining strictly to the
business of the management and operation of the Complex which are in the
possession or control of Seller, including supplier files and other
operating records, will remain available for use by the Buyer at the
Complex for such time as Buyer may desire, provided, however, that (i) the
above shall not include general ledgers, general journals, vouchers,
voucher registers, and other accounting records not pertaining strictly to
the business of the operation and management of the Complex, all of which
may be removed by Seller prior to the Closing Date and (ii) Buyer agrees to
preserve all Complex Records and not to destroy or dispose of the same for
at least two (2) years after Closing, or until Seller's 1996 tax appeal is
concluded (notice of the occurrence of which shall be promptly given by
Seller to Buyer), and representatives of Seller shall have access to such
books, records, files and correspondence at all reasonable times upon
reasonable advance notice.
Section 16.2. Time Periods. All time limits and periods stated in
this Agreement are OF THE ESSENCE, except the Closing Date which may be
made OF THE ESSENCE in accordance with the provisions of Section 4.1.
Section 16.3. Recordation and Assignment. This Agreement shall not
22
be recorded. This Agreement shall not be assigned by Buyer until the
contingencies of Article 6 have been satisfied or waived, and until all
Title Exceptions have been resolved to Buyer's satisfaction under Article
7, except that Buyer may assign this Agreement at any time to an entity
which is controlled by and affiliated by ownership with Buyer. Any
recordation or prohibited assignment of this Agreement shall be null and
void and shall give Seller the option to terminate this Agreement and
retain the Down Payment. If Buyer lawfully assigns this Agreement, Buyer
shall remain liable for the indemnification obligations of Buyer which
arise under this Agreement prior to Closing.
Section 16.4. Applicable Law. This Agreement shall be governed by
the laws of the State of New Jersey.
Section 16.5. Entire Agreement. This Agreement constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior written or oral understandings of the parties, all of
which are merged herein.
Section 16.6. All Amendments in Writing. This Agreement may not be
modified or changed in any respect except in the event of a written
amendment executed by both parties.
Section 16.7. Invalidity. If any of the terms or conditions of this
Agreement are determined to be invalid, void or illegal, such determination
shall in no way affect or invalidate any of the other provisions of this
Agreement.
Section 16.8. Notices. Except as otherwise specified herein, all
notices, demands, requests, consents, approvals and other communications
(collectively, "Notices") required or permitted to be given hereunder must
be in writing, and must be given or made by personal delivery or by mailing
the same by certified, registered or express mail, or express delivery
service, postage prepaid, return receipt requested, addressed to the party
to be so notified, as follows:
If to Seller: c/o AMERICAN HOME PRODUCTS CORPORATION
Five ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
with a copy to:
c/o AMERICAN HOME PRODUCTS CORPORATION
Five ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Senior Corporate Counsel
If to Buyer: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Member
with a copy to:
▇▇▇▇▇▇▇▇▇ & Saas, PC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to Escrow Agent:
23
_______________________
_______________________
_______________________
________________________
Any Notice shall be deemed given on receipt or refusal of delivery. Either
party may change the addresses for Notices to such party by giving a Notice
thereof to the other party, which change shall be deemed effective on
receipt by the other party.
Section 16.9. Calendar Days. Any time frame designated in this
Agreement which refers to "days" shall be deemed to refer to calendar days
and not business days.
Section 16.10. Like Kind Exchange. Buyer acknowledges that Seller
may seek to implement a Like-Kind Exchange of the Complex under Section
1031 of the Internal Revenue Code. Buyer agrees to cooperate with Seller
in effecting such an exchange, including executing and delivering documents
to and in the name of, and delivering the Purchase Price to such other
persons or entities as Seller may designate. Seller shall Indemnify Buyer
with respect to any additional out-of-pocket costs incurred in connection
with such cooperation.
Section 16.11. Right of Partial Termination/ Severability.
Notwithstanding any other provision of this Agreement to the contrary, in
the event of any Casualties, Takings, title defects, environmental
conditions, defaults by Seller or failure of any other precondition to
Buyer's obligation to close title (except under Section 6.2) which give
rise to termination rights pursuant to this Agreement and which affect less
than all of the three portions of the Complex, the provisions of this
Section 16.11 shall apply, as follows:
(a) For purposes of this Section 16.11, (i) the portion of the
Purchase Price allocable to the Headquarters Complex shall be Eleven
Million Dollars ($11,000,000.), the portion of the Purchase Price allocable
to the 1700 Complex shall be Two Million Five Hundred Thousand Dollars
($2,500,000.), and the portion of the Purchase Price allocable to the 1800
Complex shall be Two Million Five Hundred Thousand Dollars ($2,500,000.),
and (ii) the portion of the Down Payment allocable to the Headquarters
Complex shall be Six Hundred Eighty Seven Thousand Five Hundred Dollars
($687,500.), the portion of the Down Payment allocable to the 1700 Complex
shall be One Hundred Fifty Six Thousand Two Hundred Fifty Dollars
($156,250.), and the portion of the Down Payment allocable to the 1800
Complex shall be One Hundred Fifty Six Thousand Two Hundred Fifty Dollars
($156,250.).
(b) Notwithstanding any other provision of this Agreement to the
contrary, to the extent either party is granted a right to terminate this
Agreement by virtue of any Casualty, Taking, title problem, environmental
condition, Seller default or failure of any other precondition to Buyer's
obligation to close title (except under Section 6.2)(any and all of the
foregoing being hereinafter referred to as a "Termination Event"), and such
Termination Event affects less than all three of the portions of the
Complex, Buyer shall have the right, to be exercised at Buyer's sole option
by sending a written notice to Seller within the time period afforded to
Buyer within which to exercise its termination right due to such
Termination Event (or, if applicable, for a period of ten (10) days after
Seller exercises its termination right due to such Termination Event by
written notice to Buyer), to require that this Agreement be terminated only
as to the portion of the Complex so affected (but not less than the
entirety of such portion), or as to the entire Complex; and in the event
Buyer elects to require that this Agreement be terminated only as to the
24
portion of the Complex so affected, then (i) the Purchase Price and Down
Payment shall be reduced by the portion thereof which is allocable to that
portion of the Complex as to which Buyer exercised such partial termination
election, as set forth in Section 16.11(a), above, with the reduced portion
of the Down Payment to be refunded to Purchaser (together with the
allocable portion of interest accrued thereon) within five (5) days after
Buyer's notice of partial termination is delivered to Seller, (ii) this
Agreement shall be terminated with regard to the applicable portion of the
Complex, and all obligations hereunder related to such portion of the
Complex shall terminate, subject to any default remedies or survival rights
set forth herein which may otherwise be applicable, and (iii) this
Agreement shall remain in full force and effect as to the balance of the
Complex, and shall be deemed amended mutatis mutandis to account for such
partial termination.
(c) By way of example, and not of limitation, if a Termination
Event affects only the 1700 Complex, and does not affect either the
Headquarters Complex or the 1800 Complex, then Buyer may elect to terminate
this Agreement in its entirety, or only as the 1700 Complex; and if Buyer
elects to terminate this Agreement only as to the 1700 Complex, the
Purchase Price shall be reduced to $13,500,000. and the Down Payment shall
be reduced to $843,750.
Section 16.12. Seller Indemnity. Seller agrees to Indemnify Buyer
with respect to (a) any claim for personal injury arising out of an
occurrence at or from the Complex which took place prior to Closing, and
(b) any claim under a contract entered into by Seller with respect to the
Complex (except this Agreement) which accrues prior to Closing, unless such
obligations under such contract are assumed by Buyer. This indemnification
shall survive the Closing.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the date first above written.
ATTEST: AMERICAN CYANAMID COMPANY
_____________________________ By____________________________
Secretary Name:
Title:
Dated:____________, 1996
WITNESS: WELLSFORD COMMERCIAL
PROPERTIES, L.L.C.
_____________________________ By____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
Dated:____________, 1996
The undersigned joins in this Agreement for the purpose of agreeing to
convey to the Buyer in accordance with the terms of this Agreement the
property known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (including joinder as
to all representations, warranties and covenants of Seller with respect
thereto).
25
ATTEST: NORTH AMERICAN MEDICAL
RESEARCH CORPORATION
_____________________________ By____________________________
Secretary Name:
Title:
Dated:____________, 1996
26
EXHIBIT A
The Land
27
EXHIBIT B
[Intentionally Left Blank]
28
EXHIBIT C
Permits
29
EXHIBIT D
[Intentionally Left Blank]
30
EXHIBIT E
▇▇▇▇ of Sale to the Tangible Property
See attached document.
31
▇▇▇▇ OF SALE
AMERICAN CYANAMID COMPANY, a Maine corporation, having an office at
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), in consideration of
the premises and the consideration of the amount expressed in the Purchase
and Sale Agreement (the "Agreement), dated , 1996, by and
between Seller and , a
having a principal place of business located at
("Buyer"), does hereby sell, transfer,
convey, assign, and set over to Buyer all of Seller's right, title and
interest in and to the Tangible Personal Property and Complex Records (in
their then "as is" condition, WITH BUYER HEREBY EXPRESSLY DISCLAIMING AND
WAIVING ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), described on
Schedule A annexed hereto;
TO HAVE AND TO HOLD unto Buyer and its successors and assigns forever.
Seller hereby represents and warrants to Buyer that said property is
free and clear of all liens, charges, and encumbrances, and that Seller has
the full right, power and authority to sell said property and to make the
▇▇▇▇ of Sale.
IN WITNESS THEREOF, Seller has signed and sealed this ▇▇▇▇ of Sale at
, this day of , 1996.
AMERICAN CYANAMID COMPANY
BY:
32
EXHIBIT F
Assignment of Permits
See attached document.
33
ASSIGNMENT OF SELLER
THIS AGREEMENT, is made as of the day of , 1996 by and
between AMERICAN CYANAMID COMPANY, a Maine corporation, having an office at
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("ACC") and
, a having its principal place of business
located at
("Buyer").
WHEREAS, ACC and Buyer are parties to a certain Purchase and Sale
Agreement (the "Agreement"), providing for the sale to Buyer of the land
and improvements commonly known as the ACC Headquarters Facility located at
One Cyanamid Plaza, Wayne, New Jersey (the "Property"); and
WHEREAS, under the terms of the Agreement, Buyer has agreed to assume
certain liabilities of ACC; and
WHEREAS, concurrently with the execution and delivery hereof, ACC is
selling, transferring, assigning and delivering all of the Transferred
Assets to Buyer under the terms of the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings set forth, the parties agree as follows:
1. Each term used but not defined herein shall have the meaning
assigned to such term in the Agreement.
2. ACC hereby sells, assigns, and sets over to Buyer all of its
right, title and interest in the assignable Permits outstanding on the
Closing Date relating to the Property.
3. Buyer agrees to indemnify, defend and hold harmless ACC from and
against any and all claims, liabilities, losses, damages, costs and
expenses (including, without limitation, reasonable attorney's fees and
other costs of defense of an attorney of ACC's choosing) arising out of or
in any way connected with the assignable Permits and accruing on and after
the Closing Date, but not relating to events occurring prior to Closing.
4. ACC agrees to indemnify, defend and hold harmless Buyer from and
against any and all claims, liabilities, losses, damages, costs and
expenses (including, without limitation, reasonable attorney's fees and
other costs of defense of an attorney of Buyer's choosing) arising out of
or in any way connected with the assignable Permits and accruing prior to
the Closing Date.
5. Nothing contained herein shall be deemed to waive any of the
rights of either party under the Agreement or to relieve either party of
any of their respective obligations, duties or liabilities described in or
arising under any provision or the Agreement.
6. This Assignment Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
7. This Assignment Agreement may not be amended, modified or changed
except by an instrument in writing signed by all of the parties hereto.
8. This Assignment Agreement shall be construed under and in
accordance with the laws of the State of New Jersey without giving effect
to principles of conflict of laws.
34
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be duly executed as of the day and year first above written.
AMERICAN CYANAMID COMPANY
BY:_____________________________
[ ]
BY:____________________________
35
EXHIBIT G
Tax Bills
36
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Amendment") is
entered into as of the 13th day of January, 1997 between AMERICAN CYANAMID
COMPANY ("Seller") and WELLSFORD COMMERCIAL PROPERTIES, L.L.C. ("Buyer").
INTRODUCTORY STATEMENTS:
A. By Purchase and Sale Agreement dated November 21, 1996 (the
"Agreement"), Seller agreed to sell and Buyer agreed to by certain land and
premises in Wayne, New Jersey.
B. The parties desire to amend the Agreement in certain respects.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby
agree that the Agreement is amended as follows:
1. Section 6.2 is amended to provide that the Evaluation Period
shall expire at 5:00 p.m. on Monday, January 13, 1997. Buyer hereby
confirms that it is not electing to terminate the Agreement pursuant to
Section 6.2 of the Agreement.
2. Section 4.l is amended to provide that the Closing Date shall be
February 28, 1997, provided all prorations to be made pursuant to Section
11.3 of the Agreement shall be calculated as if the Closing Date had been
February 5, 1997.
3. Section 9.2(b) is amended to provide that Buyer must enter into
the ACM removal contract no later than February 14, 1997 and that a copy of
such contract shall be delivered to Seller immediately upon its execution.
4. Pursuant to Section 1.28, the following items of Tangible
Personal Property shall be removed by Seller from the Complex prior to
Closing:
a. The orange carpeting in the cafeteria area of the so-called
Serpentine Building of the Headquarters Complex;
b. All loose furniture, office and computer equipment and
office ▇▇▇▇▇▇▇, but specially excluding any millwork;
c. All low wall movable partitions in the Serpentine Building;
d. All signage, except signage required by code;
e. All display cases and retail-type tenant improvements and
furnishings;
f. All cafeteria furniture;
g. All open shelving, including, without limitation, the
shelving system in the basement of the Serpentine Building and the West
Building, except as Buyer may otherwise designate prior to removal;
h. All planters;
i. All modular furniture;
37
j. All rotary file systems;
k. All carpeting in the fifth and sixth floor lobbies of the
West Building;
l. All carpeting in the sixth floor conference room of the West
Building; and
m. All art work.
5. Section 7.1 of the Agreement is amended to provide that Buyer's
notice of objections to title shall be due no later than January 13, 1997,
and Seller acknowledges its receipt of such notice in a timely fashion.
6. This Amendment may be executed in counterparts, each of which
shall be deemed an original and all of which, when assembled, shall
constitute but one and the same original. This Amendment may be executed
and delivered by facsimile transmission, and each party shall accept such
facsimile as a duly executed counterpart original.
7. Except and as amended hereby, the Agreement remains in full force
and effect.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as
of the date first above written.
ATTEST: AMERICAN CYANAMID COMPANY
__________________________ By:___________________________
, Secretary
ATTEST: WELLSFORD COMMERCIAL
PROPERTIES, L.L.C.
___________________________ By: _________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Managing Member
[Signatures Continue on the Following Page]
38
The undersigned hereby agrees to the foregoing Amendment:
ATTEST: NORTH AMERICAN MEDICAL
RESEARCH CORPORATION
__________________________ By: _________________________
, Secretary
39
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Second
Amendment") is entered into as of the 13th day of February 1997 between
AMERICAN CYANAMID COMPANY ("Seller") and WELLSFORD COMMERCIAL PROPERTIES,
L.L.C. ("Buyer").
INTRODUCTORY STATEMENTS:
A. By Purchase and Sale Agreement dated November 21, 1996, and
amended by Amendment to Purchase and Sale Agreement dated January 13, 1997
(as amended, the "Agreement"), Seller agreed to sell and Buyer agreed to
buy certain property in Wayne, New Jersey.
B. The parties desire to further amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby
agree that the Agreement is amended as follows:
1. Section 9.2(b) is amended to provide that Buyer must enter into
the ACM removal contract no later than February 21, 1997 and that a copy of
such contract shall be delivered to Seller immediately upon its execution.
In addition, if Seller has any objections to the ACM removal contract, it
will promptly notify Buyer of such objections in writing, and Seller shall
not have the right to terminate the Agreement if Buyer addresses such
objections to Seller's reasonable satisfaction within five (5) business
days after its receipt thereof from Seller.
2. This Second Amendment may be executed in counterparts, each of
which shall be deemed an original and all of which, when assembled, shall
constitute but one and the same original. This Second Amendment may be
executed and delivered by facsimile transmission, and each party shall
accept such facsimile as a duly executed counterpart original.
3. Except as amended hereby, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as
of the date first above written.
ATTEST: AMERICAN CYANAMID COMPANY
__________________________ By: _______________________
, Secretary
ATTEST: WELLSFORD COMMERCIAL
PROPERTIES, L.L.C.
__________________________ By: _________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing
Member
The undersigned hereby agrees to the foregoing Amendment:
40
ATTEST: NORTH AMERICAN MEDICAL
RESEARCH CORPORATION
____________________________ By: ____________________________
, Secretary
41
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Third
Amendment") is entered into as of the 28th day of February 1997 between
AMERICAN CYANAMID COMPANY ("Seller") and WELLSFORD ▇▇▇▇▇ CORP., (as
"Buyer") as assignee of WELLSFORD COMMERCIAL PROPERTIES, L.L.C.
("Wellsford").
INTRODUCTORY STATEMENTS
10 By Purchase and Sale Agreement dated November 21, 1996, and
amended by Amendment to Purchase and Sale Agreement dated January 13, 1997
and by Second Amendment to Purchase and Sale Agreement dated February 13,
1997 (as amended, the "Agreement"), Seller agreed to sell and Wellsford
agreed to buy certain property in Wayne, New Jersey.
11 By Assignment and Assumption of Purchase and Sale Agreement,
Wellsford assigned to Buyer all of its right, title and interest in and to
the Agreement.
12 The parties desire to further amend the Agreement.
13 Capitalized terms not defined herein shall have the meanings given
to them in the Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby
agree that the Agreement is amended as follows:
14 The Purchase Price shall be increased to $16,320,000. In lieu of
Buyer accepting a conveyance of the 1700 Complex from North American
Medical Research Corporation ("North American"), Seller agrees to transfer
and Buyer agrees to accept all of the issued and outstanding capital stock
of North American. Such transfer shall be for a consideration of
$1,000,000. In consideration of this transaction, Seller shall execute and
deliver to Buyer at Closing the Indemnification and Stock Transfer
Agreement which is annexed hereto as Schedule A.
15 In accordance with Section 4.2 of the Agreement, Seller shall
convey the remainder of the Complex (the "Headquarters Complex and the 1800
Complex") to Buyer for a consideration of $15,320,000. All of the other
Transferred Assets not owned by North American shall be conveyed to Buyer
in accordance with the terms of the Agreement. Buyer agrees to be
responsible for the portion of the Realty Transfer Tax attributable to the
$320,000. increase in the Purchase Price.
16 Section 11.3 of the Agreement is amended to provide that the
proration of real estate taxes with respect to the Headquarters Complex
shall be calculated as if the Closing Date had been December 31, 1996. All
other prorations shall be made as of February 5, 1997, in accordance with
the terms of the Agreement.
17 Seller agrees to pay at Closing an additional brokerage commission
of $80,000. to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and a closing fee of $240,000. to Wellsford
Groups, Inc.
18 This Third Amendment may be executed in counterparts, each of
42
which shall be deemed an original and all of which, when assembled, shall
constitute but one and the same original. This Third Amendment may be
executed and delivered by facsimile transmission, and each party shall
accept such facsimile as a duly executed counterpart original.
19 Except as amended hereby, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as
of the date first above written.
ATTEST: AMERICAN CYANAMID COMPANY
_______________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice
Secretary President
WITNESS: WELLSFORD WAYNE CORP.
_______________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice
President
The undersigned hereby agrees to the foregoing Amendment:
ATTEST: NORTH AMERICAN MEDICAL
RESEARCH CORPORATION
_______________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice
Secretary President
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INDEMNIFICATION AND STOCK TRANSFER AGREEMENT
THIS INDEMNIFICATION AND STOCK TRANSFER AGREEMENT (this "Agreement")
is made as of the 28th day of February 1997 between AMERICAN CYANAMID
COMPANY, a Maine corporation ("Seller") and WELLSFORD WAYNE CORP., a New
Jersey corporation as permitted assignee of WELLSFORD COMMERCIAL
PROPERTIES, L.L.C. ("Buyer").
INTRODUCTORY STATEMENTS:
A. By Purchase and Sale Agreement dated November 21, 1996, and
amended by Amendment to Purchase and Sale Agreement dated January 13, 1997,
Second Amendment to Purchase and Sale Agreement dated February 13, 1997 and
Third Amendment to Purchase and Sale Agreement ("Third Amendment") of even
date herewith (as amended, the "Sale Contract"), Seller agreed to sell to
Wellsford Commercial Properties, L.L.C. ("Wellsford") and Wellsford agreed
to buy from Seller certain property in Wayne, New Jersey. All capitalized
terms herein shall have the same meaning as was ascribed to such terms in
the Sale Contract, unless otherwise indicated.
B. North American Medical Research Corporation, a wholly owned
subsidiary of Seller (hereinafter, "NAMRC"), owns one of the three
properties to be conveyed by Seller to Buyer pursuant to the Sale Contract,
to wit, that certain parcel of real property together with improvements
constructed thereupon known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and
more particularly described in Exhibit A attached hereto and made a part
hereof (collectively, the "1700 Property").
C. Pursuant to an Assignment of Purchase and Sale Agreement dated as
of February 27, 1997, the rights of Wellsford under the Sale Contract were
assigned to Buyer. Pursuant to the Third Amendment, Buyer agreed to
acquire title to the 1700 Property by accepting a transfer of all of the
ownership interests of NAMRC, in lieu of the acceptance of a Deed to the
1700 Property by NAMRC or Seller, provided, inter alia, Seller delivers
this Agreement to Buyer at settlement under the Sale Contract.
NOW, THEREFORE, in consideration of the matters set forth in the
foregoing recitals, which shall constitute a substantive part of this
Agreement, the parties hereby agree as follows:
1. Representations and Warranties. Seller hereby makes the
following representations and warranties to Buyer, each of which (i) is
true, correct and complete in all material respects as of the date hereof,
(ii) is material to Buyer, (iii) will be relied upon by Buyer in acquiring
the ownership of NAMRC in lieu of a deed to the 1700 Property, and (iv)
will survive the transfer of ownership of NAMRC from Seller to Buyer at
Closing on the Closing Date to the extent (and subject to the limitations)
set forth in Section 3.D, below:
A. Due Organization.. NAMRC is a corporation duly organized,
validly existing and in good standing under the laws of the State of New
Jersey. NAMRC owns the entire fee simple title to the 1700 Property (legal
and equitable). NAMRC has all necessary power and authority to own its
properties and other assets and to carry on its business as it is now being
conducted.
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B. Organizational Documents. Attached hereto as Exhibit B
hereto are true, correct and complete copies of the Certificate of
Incorporation and Bylaws of NAMRC, as each has been amended to date. Such
Certificate of Incorporation and Bylaws, as so amended, are in full force
and effect as of the date hereof, without further amendment.
C. Capitalization. NAMRC has an authorized capitalization
consisting solely of _____________ shares of Common Stock, $_____ par
value. As of the date hereof there are issued and outstanding
____________ shares of such Common Stock (the "Subject Stock"), which
represents and constitutes 100% of the issued and outstanding capital stock
of NAMRC. Each issued and outstanding share of NAMRC's Common Stock has
been duly authorized, validly issued, is fully paid and non-assessable and
is not subject to preemptive rights of any kind. Seller owns unrestricted
title to 100% of the Subject Stock, free and clear from all claims, liens,
demands and encumbrances of any kind. Seller has not pledged,
hypothecated, assigned or otherwise transferred the Subject Stock, or any
part of Seller's right, title and interest therein, to any person or entity
for any purpose.
D. Options, Warrants, Etc. No person or entity has any right,
subscription, warrant, call, option or other agreement of any kind to
purchase or otherwise receive or to be issued any of the outstanding or
authorized but unissued shares of NAMRC's capital stock or any securities
or obligations of any kind convertible into shares of NAMRC's capital
stock.
E. Dividends and Distributions. NAMRC has not declared any
dividend, distribution or other payment to the holders of its equity that
has not been paid, nor is NAMRC obligated to make any such dividend,
distribution or payment. NAMRC has not entered into any agreement or
commitment pursuant to which it is required to redeem, repurchase or
otherwise acquire its equity.
F. Title to 1700 Property. NAMRC is the owner of good and
indefeasible fee simple title to the 1700 Property, and the 1700 Property
is held free and clear of all deeds of trust, liens, encumbrances and other
claims of any kind except as set forth in Exhibit D attached hereto. The
Company owns no real property or real property interests other than the
1700 Property (and the rights, hereditaments, appurtenances and benefits
pertaining thereto).
G. Other Property Owned and Business Conducted by NAMRC. Other
than the 1700 Property, and any personal property owned by the Company
which is physically located within the 1700 Property, NAMRC owns no other
real or personal property of any kind. NAMRC has no employees, and is not
engaged in any business other than the ownership and operation of the 1700
Property.
H. Taxes.
(i) NAMRC has properly made all material filings, reports
and returns (collectively "Returns") required to be filed by it with
respect to all federal, state, local and foreign taxes of any kind or
nature whatever, including without limitation any and all interest and
penalties relating thereto and any estimated taxes (collectively "Taxes"),
and has paid all Taxes shown or required to be shown on such Returns as
well as all other Taxes which have become due since the filing thereof
45
through and including December 31, 1996. NAMRC shall have no liability for
any Taxes of any member of an affiliated group of which NAMRC is a member
pursuant to Treasury Regulation 1.1502-6 or any analogous state or local
tax provision. All material Taxes which NAMRC is required by law to
withhold and collect have been duly withheld and collected, and have been
paid over, in a timely manner, to the proper governmental authorities to
the extent required. There are no transactions or matters, or any other
basis, which might or could result in additional taxes of any nature to
NAMRC.
(ii) The information shown on the federal and state income
tax returns of NAMRC for calendar years 1993, 1994 and 1995 (true, correct
and complete copies of which have been furnished by Seller to Buyer) and
the tax basis and other tax attribute information of NAMRC provided to the
Buyer by Seller or its accountants or other agents contemporaneous with the
execution of this Agreement, are true, correct and complete, and fairly and
accurately reflect the information purported to be shown.
(iii) As of January 1, 1997, NAMRC's "book basis" in the
1700 Valley Property was $9,606,759.00 and NAMRC's "tax basis" in the 1700
Valley Property was $9,767,876.89.
(iv) NAMRC had no income between January 1, 1997 and the
date upon which Closing occurs. NAMRC shall provide Buyer, within thirty
(30) days after Closing, a true, correct and complete schedule of all
expenses incurred by NAMRC between January 1, 1997 and the date of Closing,
and shall, upon Buyer's request, provide all backup documentation for such
expenses in order to facilitate the preparation of NAMRC's 1997 federal,
state. and local tax returns.
I. No Material Adverse Change. There has been no material
adverse change in the financial condition of NAMRC, or the 1700 Property,
since the date of NAMRC's most recent financial statement, a true, correct
and complete copy of which is attached hereto as Exhibit ▇.
▇. Litigation; Defaults.
(i) Except as set forth on Exhibit F attached hereto, there
is no action, suit, proceeding or investigation involving NAMRC pending
before any court, governmental commission, agency or instrumentality or
before any arbitration board or tribunal, and, to Seller's knowledge, no
such action, suit, proceeding or investigation has been threatened against
Seller by any person, entity or governmental authority.
(ii) NAMRC is not subject to any judgment, order, injunction
or ruling of any court or governmental commission, agency, authority or
instrumentality.
K. Agreement in Compliance. The execution and delivery of this
Agreement and any documents transferring ownership of NAMRC from Seller to
Buyer (the "Transfer Documents"), and the consummation of the transactions
contemplated herein and therein, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any agreements to which Seller or NAMRC is bound, or result in the creation
or imposition of, any lien, charge or encumbrance upon any of the property
or assets of NAMRC, nor will such action result in a violation of the
provisions of the charter or the by-laws of the NAMRC or any other
agreements by which it is now governed or any statute or any order, rule or
46
regulation of any court or governmental agency or body having jurisdiction
over NAMRC.
L. Contractual Obligations and Liabilities. Except as set
forth in Exhibit G, there is no bond, debenture, note or other evidence of
indebtedness, nor any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument under or pursuant to which any evidence of
indebtedness has been issued to NAMRC, nor is there any other agreement or
instrument of any kind to which NAMRC is currently a party or by which
NAMRC is bound or affected, and other than the liabilities specifically
referenced in Exhibit G attached hereto, NAMRC has no liabilities of any
kind, contingent or non-contingent.
M. Present Compliance with Laws. NAMRC is not in violation
of any laws, ordinances or governmental rules or regulations to which it is
subject, the violation of which would in any way affect the business,
prospects, profits, or condition (financial or other) of NAMRC, or which
would in any way affect the ability of NAMRC to perform its obligations
under this Agreement and the Transfer Documents, provided that with respect
to the conformity of the 1700 Property with laws, ordinances or
governmental rules or regulations to which it is subject, the provisions of
Section 10.1(c) of the Sale Contract shall supersede the foregoing
representation.
N. ERISA. There is no "employee benefit plan," "employee
pension benefit plan," "defined benefit plan," or "multiemployer plan,"
which NAMRC has established or maintained or to which NAMRC is required to
contribute. As used in this Section 1.N., the terms "employee benefit
plan," "employee pension benefit plan," "defined benefit plan," and
"multiemployer plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA. In addition, there are no collective
bargaining agreements or union contracts to which NAMRC is a party, or to
which it is bound.
O. FIRPTA. Seller is not a "foreign person" within the
meaning of the Foreign Investment in Real Property Act, as amended (the
"Act"). At the time of Closing, Seller shall execute such instruments,
certifications, and/or affidavits as Buyer or its title insurance company
may deem necessary in order to comply with the Act (including a FIRPTA
affidavit).
2. Stock Transfer. Seller shall deliver to the Buyer, simultaneous
with the execution and delivery of this Agreement, stock certificates
representing all of the capital stock of NAMRC (the "Subject Stock"),
accompanied by duly executed stock assignments, bills of sale, assignments
and other instruments of transfer in accordance with the provisions hereof,
transferring to Buyer all of Seller's right, title and interest in and to
the Subject Stock and NAMRC. In addition, Seller shall deliver to Buyer
such other documents and instruments as Buyer may reasonably require in
order to evidence the stock transfer contemplated hereby.
3. Indemnity; Survival of Representations and Warranties.
A. Except as hereafter provided, Seller shall, and hereby does,
indemnify and hold harmless the Buyer and its successors and assigns, from
and against any and all damages, claims, losses, liabilities and expenses,
including without limitation reasonable legal expenses incurred by Buyer in
connection therewith (collectively, "Losses"), which may arise out of (i)
47
any breach of or the inaccuracy of any of the representations, warranties
or covenants made in this Agreement by Seller; (ii) any claim or action
asserted by any third party against NAMRC or Buyer after Closing to the
extent arising out of or in connection with any event, occurrence, act or
omission occurring in connection with the business and activities of NAMRC
prior to the Closing Date; and (iii) any and all liability of NAMRC for
Taxes accruing, or otherwise attributable to periods ending, on or before
December 31, 1996. It is the intent of the parties that this
indemnification place Buyer in the same (but no better) position viz a viz
liability to third parties for the obligations of NAMRC arising in
connection with the period prior to the Closing Date that Buyer would have
been in had it acquired title to the 1700 Property by deed from NAMRC or
Seller pursuant to the terms of the Sale Contract. Seller shall not be
entitled to seek contribution from NAMRC in connection with its obligations
under this Section 3.
B. Within thirty (30) days after obtaining knowledge thereof,
Buyer shall notify (or cause NAMRC to notify) Seller in writing of any
claim which has been asserted in writing against Buyer or NAMRC which is
within the scope of this indemnity. Such notice shall specify in reasonable
detail the nature and estimated amount of such claim, to the extent the
same can be estimated, the basis on which such claim purports to have been
asserted, whether it appears such claim is covered by insurance, and
whether any rights of indemnification may exist against any third party
with respect to such claim. Within thirty (30) days after the receipt by
Seller of such notice, Seller shall satisfy its obligations under this
Section 3 or shall advise Buyer that, in good faith, Seller disputes the
claim.
C. The failure of Buyer to notify Seller in accordance with
Section 3.B, above, shall not preclude Buyer from seeking indemnification
hereunder unless (and solely to the extent) such failure has materially
prejudiced the ability of Seller to defend such claim. Seller shall
promptly defend such claim by counsel of its own choosing and reasonably
acceptable to Buyer, and Buyer shall cooperate reasonably with Seller in
the defense of such claim, including the settlement of the matter on any
basis proposed by Seller and consented to by Buyer, which consent shall not
be unreasonably withheld (provided that Seller shall in all events be
responsible for all costs and expenses of any such settlement), and
including full access, at any reasonable time, to such information relating
to NAMRC possessed by Buyer (and its successors) as shall reasonably be
necessary for Seller to conduct such defense. If Seller fails, within a
reasonable time after receiving notice of such a claim, to defend Buyer,
Buyer shall be entitled to undertake the defense, compromise or settlement
of such claim at the expense and risk of, and for the account of, the
Seller.
D. Other than the Seller's representations in Section 2.H,
above, which shall survive the execution and delivery of this Agreement and
the Transfer Documents on the Closing Date without limitation other than
the applicable statute of limitations, the warranties and representations
of Seller contained in this Agreement, or in any certificate, document,
instrument or agreement delivered pursuant to this Agreement, shall survive
the execution and delivery of this Agreement and the Transfer Documents on
the Closing Date for a period of one (1) year, and shall, subject to such
limitation, inure to the benefit of Buyer and its legal representatives,
heirs, successors or assigns; provided, however, that any intentional
misrepresentation by Seller contained herein shall not be subject to such
48
one (1) year limitation on survival. Any claim brought by Buyer against
Seller for breach or inaccuracy of any warranties and representations which
are subject to the foregoing one (1) year survival limitation shall be
valid if Buyer notifies Seller thereof in writing prior to the expiration
of such one (1) year period, and a formal legal action is brought by Buyer
in connection therewith no later than ninety (90) days after the expiration
of such one (1) year period. The foregoing survival limitation shall not
apply to the Seller's indemnification under Section 3.A above, except and
solely to the extent such indemnification arises pursuant to clause (i) of
Section 3.A. In addition, to the extent any warranty or representation
set forth herein corresponds to a representation of Seller set forth in the
Sale Contract with regard to the 1700 Property and/or NAMRC which survives
closing under the Sale Contract without limitation, the applicable survival
provisions of the Sale Contract shall supersede the foregoing one (1) year
survival limitation.
E. The indemnification set forth in this Section 3 shall
constitute Buyer's exclusive remedy against Seller in connection with (i)
any breach of this Agreement, (ii) the inaccuracy of any warranty or
representation set forth herein, (iii) any claim or action asserted by any
third party against NAMRC or Buyer after Closing to the extent arising out
of or in connection with any event, occurrence, act or omission occurring
in connection with the business and activities of NAMRC prior to the
Closing Date, and (iv) any liability of NAMRC for Taxes accruing, or
otherwise attributable to periods ending, on or before December 31, 1996,
except and solely to the extent that the Sale Contract provides for any
additional or more expansive remedy in connection with the same matter.
4. Miscellaneous Provisions.
A. Taxes, Fees and Expenses. Seller shall be responsible for
all sales, transfer, gains or income taxes due or payable by Seller in
connection with the stock transfer transaction contemplated hereby. Seller
shall cooperate with Buyer with regard to the filing of NAMRC's federal,
state and local tax returns for the period ending on the Closing Date.
B. Amendment, Modification and Severability. No term,
condition or provision of this Agreement may be amended, modified or waived
except by a written agreement signed by all of the parties hereto. A
waiver of any term or condition of this Agreement shall not be deemed to be
a further or continuing waiver of any other breach of such term or
condition. If any provision of this Agreement shall be invalid,
inoperative or unenforceable, this Agreement shall be reformed and
construed as if such invalid, inoperative or unenforceable provision had
never been contained herein and such provision were reformed so that it
would be valid, operative and enforceable to the maximum extent permitted.
C. Notices. All notices, requests or other communications
required or permitted hereunder shall be given in the same manner as is
prescribed for the giving of notices in the Sale Contract, as if Section
16.8 of the Sale Contract were fully restated herein.
D. Miscellaneous. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement,
including the Exhibits hereto and other documents referred to herein which
49
form a part hereof, embody the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein.
E. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey, without
giving effect to principles of conflicts of laws.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the date first above written.
WITNESS/ATTEST: AMERICAN CYANAMID COMPANY
__________________________ By: _________________________
Name:_________________________
Title:________________________
WITNESS/ATTEST: WELLSFORD WAYNE CORP.
__________________________ By: _________________________
Name:_________________________
Title:________________________
50