Purchase Agreement dated October 19, 2005 between Wilshire Enterprises, Inc. and Citadel Equity Group, LLC PURCHASE AGREEMENT
Exhibit
10.41
Purchase
Agreement dated October 19, 2005 between Wilshire Enterprises, Inc. and
Citadel
Equity Group, LLC
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Contract
Date:
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October
19, 2005
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Seller:
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Biltmore
Club Apartments, L.L.C.
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C/o
Wilshire Enterprises, Inc.
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▇▇▇▇▇▇,
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Attention:
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▇. ▇▇▇▇▇
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Telephone:
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Facsimile:
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with
a copy to:
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Wilentz,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A
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▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇
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Woodbridge,
New Jersey 07095-0958
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Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq
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Telephone:
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Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
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E-Mail:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
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Buyer:
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Citadel Equity Group, LLC |
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with
a copy to:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
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Epstein,
Fitzsimmons, Brown, Gioia, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Escrow
Agent:
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Wilentz,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇
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Woodbridge,
New Jersey 07095-0958
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Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
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E-Mail:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
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| Real Property: | Forty-one (41) condominium units as listed on the attached | |
| Exhibit “A”. |
THE
TERMS
LISTED IN BOLD ABOVE ARE DEFINED TERMS THAT ARE REFERRED TO THROUGHOUT THIS
PURCHASE AGREEMENT.
ARTICLE
I
AGREEMENT,
PROPERTY, AND PRICE
Section
1.01. Agreement.
Upon
the execution of this Purchase Agreement and the payment by Buyer of the
Initial
▇▇▇▇▇▇▇ Money, this Purchase Agreement (referred to as this “Contract”)
will
constitute a binding and effective agreement of Seller to sell the Property
to
Buyer and will constitute a binding and effective agreement of Buyer to
purchase
the Property from Seller.
Section
1.02. Inclusions in Property.
Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all
of
Seller's interest in the Property upon the terms and conditions of this
Contract. The term "Personalty"
means
Seller's interest in all furnishings (except as identified in Section 1.05
below), furniture, appliances, tools, equipment, machinery, marketing materials,
telephone systems, office equipment, pool and patio furniture, supplies,
inventory, and other tangible personal property owned by Seller that are
located
on and used in connection with the operation of the Property. The term
"Contract
Rights"
means
all Approved Project Contracts (as defined in Section 4.06(d), Tenant Deposits,
prepaid rents (for periods after the Closing Date), tenant leases, tenant
records, tenant files, permits, certificates of occupancy, occupancy and
operations licenses, and all rights, if any, to any telephone numbers used
for
the Property. The term "Improvements"
means
all buildings, improvements, fixtures, pools, parking areas, sidewalks,
landscaping, and similar structures and improvements located on the Real
Property. The term "Other
Rights"
means
Seller's interest in all logos, designs, trade names, trademarks, service
marks,
plans and specifications, warranties, guaranties, all electronic records
applicable to the Property, and all additional rights, easements, and
appurtenances pertaining to the use, ownership, or operation of the
Improvements, including all right, title, and interest of Seller in and
to any
land lying in the bed of any street, road, highway, or alley adjoining
the Real
Property and any strips and gores adjoining the Real Property. The term
"Property"
means
collectively the Real Property, Improvements, Personalty, Contract Rights,
and
Other Rights.
Section
1.03. Definitions.
Capitalized terms used in this Contract, including the terms listed on
the cover
page of this Contract, will have the meanings ascribed in this Contract.
Section
1.04. Contract.
This
Contract consists of the main text and all exhibits to this Contract. All
exhibits supplement this Contract. If there is a conflict between the main
text
of this Contract and the exhibits, the main text controls in all
instances.
Section
1.05. Excluded Assets.
The
Property does not include the assets listed in Exhibit
“B”
("Excluded
Assets")
, all
of which will remain the property of Seller and be removed prior to the
Closing
Date
(as
defined in Section 2.04(c)).
ARTICLE
II
PRICE,
ESCROW, AND PRORATIONS
Section
2.01. Purchase Price.
The
total purchase price (the "Price")
for
the Property is SIX
MILLION NINE HUNDRED FOUR THOUSAND FIVE HUNDRED AND 00/100 ($6,904,500.00)
DOLLARS.
The
Price will be paid by Buyer to Seller as follows:
(a) Concurrent
with the execution of this Contract, Buyer will deposit with the Escrow
Agent in
Good Funds (as defined in Section 2.02) an initial ▇▇▇▇▇▇▇ money deposit
in the
amount of ONE HUNDRED THOUSAND AND 00/100 ($100,000.00) DOLLARS ("Initial
▇▇▇▇▇▇▇ Money").
(b) By
no
later than the date that is 30 days after the Contract Date, and provided
that
this Contract has not been terminated pursuant to Section 3.01, 3.02(b),
3.02(c)
or 3.03(b), Buyer will deposit with Escrow Agent in Good Funds an additional
▇▇▇▇▇▇▇ money deposit of THREE HUNDRED THOUSAND AND 00/100 ($300,000.00)
DOLLARS
("Additional
▇▇▇▇▇▇▇ Money").
(c) On
or
before the Closing Date, all additional amounts ("Closing
Cash")
required of Buyer to pay the Price, after credit for the ▇▇▇▇▇▇▇ Money,
will be
paid by Buyer to Seller in Good Funds.
Section
2.02. ▇▇▇▇▇▇▇ Money.
As used
in this Contract, the term "▇▇▇▇▇▇▇
Money"
means,
to the extent applicable under this Contract, the Initial ▇▇▇▇▇▇▇ Money,
the
Additional ▇▇▇▇▇▇▇ Money, and all interest that may accrue on the Additional
▇▇▇▇▇▇▇ Money from time to time, and the term "Good
Funds"
means
in cash, by confirmed wire transfer, by certified check drawn on any Bank,
or by
cashier's check issued by any Bank representing good, sufficient, and
immediately available U.S. funds. The ▇▇▇▇▇▇▇ Money will be held by Escrow
Agent
in accordance with the terms and conditions of this Contract in a fully
federally insured or federally backed investment or otherwise as approved
by
Buyer and Seller. At the Closing
of Title
(as
defined in Section 2.04(c)), the ▇▇▇▇▇▇▇ Money will be applied by Escrow
Agent
for the benefit of Buyer to the Price and Buyer's share of any closing
costs and
prorations. The Initial ▇▇▇▇▇▇▇ Money is nonrefundable upon expiration
of the
Inspection Period or any permitted extension thereof, except upon a default
by
Seller or a permitted termination of this Contract by Buyer in accordance
with
the terms and conditions set forth in this Contract. The Additional ▇▇▇▇▇▇▇
Money is nonrefundable upon its deposit with Escrow Agent in all instances
except in the case of a Seller default or a permitted termination by Buyer
in
accordance with the terms and conditions set forth in this
Contract.
Section
2.03. Broker's Commission.
Except
Marcus & Millichap ("Employed
Broker"),
Buyer
and Seller represent to each other that neither has dealt with any broker
or any
other person concerning the purchase and sale of the Property in a manner
that
would give rise to a claim for the payment of a commission. Each party
agrees,
on demand, to indemnify, defend, and hold harmless the other party for,
from,
and against any claim, damage, loss, liability, or exposure, (including
attorney
fees in a reasonable amount) arising out of any act or omission of the
party or
its representatives that forms the basis for any claim for a real estate
brokerage commission. As used in this Contract, the term "broker"
means
any real estate broker, salesperson, agent, finder, or any other person
entitled
to a real estate brokerage commission. If and only if title closes in accordance
with the terms of this Contract, Seller will pay to Employed Broker a brokerage
commission in the amount specified in a separate brokerage agreement between
Seller and Employed Broker. The brokerage indemnity described above will
survive
the cancellation or termination of this Contract. If the sale contemplated
by
this Contract is not consummated for any reason whatsoever, no commission
or any
portion of the ▇▇▇▇▇▇▇ Money will be paid to the Employed Broker, and the
consent, approval, or joinder of the Employed Broker is not required to
modify
or cancel this Contract.
Section
2.04. Time Periods, Closing.
(a) This
Contract constitutes an enforceable obligation of Seller to sell and Buyer
to
purchase the Property on the terms and conditions of this Contract when
this
Contract is executed by both Buyer and Seller (the “Contract
Date”).
(b) The
"Inspection Period" will commence on the Contract Date and will expire
on the
date that is thirty (30) days after the Contract Date.
(c) The
completion of the purchase and sale transaction described in this Contract
("Closing
of Title")
will
occur on or before the date that is ninety (90) days from the Contract
Date
("Closing
Date")
on a
date mutually agreed upon by Buyer and Seller at the office of Buyer’s attorney.
Provided twenty(20) days advance written notice is given by Seller to Buyer,
Seller may extend the “Closing
Date”
by
not
more than thirty (30) days. As used in this Contract the term "Closing
Date"
means
the actual date established for closing under this Contract.
Section
2.05. Closing Costs and Prorations.
The
following items will be prorated between Seller and Buyer at Closing of
Title
(and Buyer and Seller agree to pay their respective portions):
(a) Real
property taxes and condominium charges will be prorated between Seller
and Buyer
as of the Closing Date, based upon the actual amount of taxes and condominium
charges that are attributable to the Property for the year in which the
closing
occurs (even if payable, in whole or in part, in the following year) and,
if the
actual amount is not available, an estimate of the taxes based upon the
best
available information. If any pro-rations are based upon estimates, then
repro-rations will be made post-closing when tax bills and invoices from
the
Condominium Association for the year in which the Closing Date occurs are
received. Seller will be responsible for the payment of all real property
taxes
and condominium charges that are attributable to the period of time on
and prior
to the Closing of Title, and Buyer will be responsible for the payment
of all
real property taxes and condominium charges that are attributable to the
period
of time after the Closing of Title.
(b) With
respect to any special assessments, improvement district assessments, municipal
assessment districts, assessments imposed by the Condominium Association
and the
like that are a financial obligation on the Property or an owner of the
Property
(referred to collectively as ''Property
Assessments"),
Buyer
and Seller agree that the Seller will be responsible for the payment of
such
sums in full, regardless of whether any such assessments and charges may
otherwise be payable in installments.
(c)
All
Tenant Deposits will be delivered to Buyer at the Closing of Title. The
"Tenant
Deposits"
consist
of all security deposits made by tenants at the Property as of the Closing
Date
and all security deposits made by future tenants for which there exists
a signed
lease for the Property but whose occupancy does not commence until after
the
Closing Date, whether refundable or nonrefundable and however designated
(such
as, for example, last month's rent, key deposit, redecorating fee, pet
deposit,
etc.) and all interest thereon to which any tenant is entitled. Tenant
Deposits
may be returned to the applicable tenants and/or applied to any lease payments
in the ordinary course of business by Seller.
(d)
All
prepaid rents paid to Seller by tenants of the Property for periods subsequent
to the Closing of Title will be paid by Seller to Buyer at the Closing
of Title
or, alternatively, will be credited toward the payment of the Price. All
rental
payments actually collected for the month in which the Closing Date occurs
will
be prorated as of the Closing of Title. Seller will not be entitled to
any
credit or payment for rents due and unpaid as of the Closing of Title,
and
Seller is not entitled to apply any Tenant Deposits in reduction of any
unpaid
rents in the 30 days prior to the Closing Date. Buyer, after the Closing
of
Title, will use its good faith efforts to collect past due rents and other
damages that are owed to Seller from delinquent tenants as of the Closing
of
Title, but Buyer's good faith efforts will not require it to incur any
expense
to collect past due rents and other damages. If Buyer collects any money
from
tenants who, as of the Closing of Title, have past due rents, Seller agrees
that
the first money received by Buyer from these tenants will be applied to
then-current rents and damages until all such amounts are fully paid, and
subsequently, Buyer agrees to use good-faith efforts to promptly remit
to Seller
any additional amounts collected from these delinquent tenants to tenant
arrearages as of the Closing of Title. Seller acknowledges that Buyer will
not
be required to institute any litigation or eviction proceedings or incur
any
cost to collect any arrearages owed to Seller.
(e) All
operating expenses for the Property during the period of time prior to
and
including the Closing of Title will be paid by Seller. Any bills for operating
expenses that apply to the period of time prior to the Closing of Title
but are
received by Seller or Buyer after the Closing of Title will be paid by
Seller
through the post-closing adjustment mechanism described below. Buyer will
be
responsible for all operating expenses for the Property incurred after
the
Closing Date. All utility deposits posted by Seller will remain the property
of
Seller and will not be prorated. To the extent possible, utility prorations
will
be handled by meter readings on the day immediately preceding the Closing
Date;
otherwise, they will be based on prior months' bills and re-prorated on
receipt
of the actual bills. To the extent not prorated on the Closing Date, all
operating expenses will be prorated and paid (adjusted), if applicable,
under
the post-closing adjustment mechanism established below.
(f) Seller
will pay all lease taxes and sales and use taxes for rents collected by
Seller
on and prior to the Closing of Title and past-due rents collected by Buyer
after
the Closing Date and remitted to Seller, and Buyer will pay all lease taxes
and
sales and use taxes for rents collected ands retained by Buyer subsequent
to the
Closing of Title.
(g) Any
rental or leasing commissions attributable to leases under which the tenant
first took possession (or was first required to pay rent) prior to the
Closing
of Title will be paid by Seller, and any rental or leasing commissions
attributable to leases under which the tenant first was required to pay
rent
after the Closing of Title will be paid by Buyer.
(h) All
prorations will be made through the Closing Date (with the Seller being
deemed
the owner of the Property on Closing Date).
(i) To
the
extent the items established above cannot be accurately prorated on the
Closing
Date, adjustments to the prorations will be made from time to time after
the
Closing of Title by Buyer and Seller directly to take account of final
information as to taxes and other expenses estimated as of the Closing
of Title
or to adjust rents or expenses that were not included in the prorations
done at
the Closing of Title. Buyer or Seller, as applicable, will pay the other
on
demand all amounts as may be appropriate based on the post-closing adjustments,
together with interest at 10% per annum on any amount due from the date
of
written demand if the amount remains unpaid more than 30 days after written
demand. Adjustments to prorations (other than prorations for taxes) must
be
demanded within 90 days after the Closing of Title, and adjustments to
tax
prorations must be demanded within 30 days after tax bills are received
by both
Buyer and Seller (Buyer and Seller each agreeing to provide the other with
a
copy of any property tax ▇▇▇▇ received by it) after the Closing Date.
Adjustments to which either party may be entitled which are not demanded
within
the aforesaid time periods shall be deemed waived. These post-closing adjustment
provisions (and the other provisions to which it applies) will survive
the
Closing.
ARTICLE
III
DUE
DILIGENCE AND BUYER CONTINGENCIES
Section
3.01. Due Diligence Documents.
During
the Inspection Period, Buyer and its designated agents will be permitted
reasonable access to the documents listed on Exhibit
“C”
(collectively, the “Due
Diligence Documents”).
If
Buyer determines that the Property is not satisfactory, then Buyer may
terminate
this Contract by providing Seller with written notice of termination specifying
the matters objected to prior to the expiration of the Inspection Period.
Upon
timely termination of this Contract in accordance with the provisions of
this
Section 3.01, the ▇▇▇▇▇▇▇ Money shall be refunded to Buyer by the Escrow
Agent.
Section
3.02. Title and Survey.
As soon
as reasonably possible after the Contract Date, Buyer will obtain a commitment
for an owner's policy of title insurance (the "Title
Report")
and
copies of all non-standard exceptions to the Title Report. Buyer will obtain
at
its expense prior to the end of the Inspection Period current survey prepared
to
Buyer's specifications if required by Buyer ("Survey").
Buyer
will have until the end of the Inspection Period within which to notify
Seller,
in writing, of Buyer's disapproval ("Title
Objections")
of any
title exceptions or other matters that are contained in the Title Report
or the
Survey. Buyer's failure to make its Title Objections on a timely basis
will be
deemed a waiver of its title contingency under Sections 3.02(a) and (b)
below.
(a) If
Buyer
notifies Seller of any Title Objections on or before the end of the Inspection
Period, Seller may elect, by delivering written notice to Buyer, to: (i)
attempt
to cure all or any of the Title Objections, in which case any Title Objections
cured by Seller will be considered to have been approved by Buyer; or (ii)
not
attempt to cure all or any of the title Objections. Seller may cure the
Title
Objections only by causing the removal of record of the Title Objections,
modifying of record the Title Objections, obtaining a commitment from Buyer’s
title insurer to eliminate the Title Objections. All such cures (other
than
formal removal of record) must be in a form and content reasonably acceptable
to
Buyer. Seller's election under subsection (i) or (ii) above must be made
within
10 days after Seller's receipt of the Title Objections. Seller's failure
to make
a timely election under subsection (i) or (ii) above will be deemed an
election
not to attempt to cure under subsection (ii) above. Seller will have no
obligation or duty to cure the Title Objections or to incur any expense
in
curing the Title Objections, except the Monetary Liens described
below.
(b) If
Seller
has elected to attempt to cure any of the Title Objections pursuant to
Section
3.02(a)(i) above and does not or cannot cure those objections within 30
days
after the end of the Inspection Period (or otherwise deliver sufficient
evidence
within that time of Seller's ability to cure the matter at the closing),
or if
Seller has elected or is deemed to have elected not to attempt to cure
pursuant
to Section 3.02(a)(ii) above, Buyer, as its sole and exclusive remedy,
may elect
to: (i) waive its Title Objections and complete the purchase of the Property
at
the Price (without any price adjustment and without any right or claim
to
damages, credit, or offset for the Title Objections, except removal of
the
Monetary Liens, which will be paid from Seller's proceeds of sale); or
(ii)
cancel this Contract. Buyer's failure to make the election described in
the
previous sentence within 10 days after the earlier to occur of the expiration
of
Seller's cure period described above or Buyer's receipt (or deemed receipt)
of
Seller's election not to attempt to cure will be deemed a rejection of
title as
described in the Title Report and Survey (except for the items that Buyer’s
title insurer has agreed to delete or modify) and Buyer's election of its
right
to cancel this Contract.
(c) If
Buyer’s title agent, after the expiration of the Inspection Period, updates,
adds to, or amends the Title Report (by endorsement, amendment, or otherwise)
to
include a new title exception resulting from any new matters or facts that
became known or were revealed to Buyer’s title insurer after the Contract Date
and that were not caused by Buyer's acts, Buyer will have until the earlier
of
two days prior to the Closing Date or five business days following Buyer’s
receipt of the amended Title Report (including legible and complete copies
of
all new title exceptions) to notify Seller in writing of its objections
(with
all new objections being considered as “Additional
Title Objections”).
If
Buyer timely objects to any new title exception, the timing and cure provisions
outlined in Sections 3.02(a) and (b) will apply. Notwithstanding the preceding
portions of this Section 3.02(c), the Closing Date will not be extended
as a
result of the application of Sections 3.02(a), (b), and (c) and all decisions
of
Buyer must be made on or prior to the Closing Date.
(d) Notwithstanding
anything to the contrary in this Contract, Seller, at its cost on or before
the
Closing of Title, will discharge, defease, and release the Property from
all
deeds of trust, mortgages, installment land contracts, mechanic's liens,
and
consensual liens applicable to the Property (including the payment of any
so-called prepayment, defeasance, or other fee) (called collectively the
"Monetary
Liens").
Section
3.03. Inspection.
(a)
During
the Inspection Period, Buyer and its designated agents and independent
contractors may access the Property, including meeting with and interviewing
the
tenants and the officers and directors of the Condominium Association,
during
normal business hours to investigate the physical and environmental condition
of
the Property and its major components including heating, plumbing, air
conditioning, electricity, etc. and to conduct all tests that Buyer may
deem
necessary. All investigations and tests must be conducted in a manner that
does
not unreasonably interfere with Seller's maintenance, ownership, or operation
of
the Property or the use and enjoyment of the Property by any tenant or
tenant's
guest. Written notification of the date and time of Buyer's investigations
and
tests must be sent to Seller at least seventy-two (72) hours before entry
on the
Property. All scheduling is to be coordinated among Buyer, Employed Broker
and a
representative of Seller (to be designated for each property).
(b)
In the
event that Buyer is dissatisfied with the results of its inspections or
its
examination of the Due Diligence Documents, Buyer may terminate this Contract
by
providing Seller with written notice of termination prior to the expiration
of
the Inspection Period. Upon termination of this Contract in accordance
with the
provisions of this Section 3.03(b), the ▇▇▇▇▇▇▇ Money shall be refunded
to Buyer
by the Escrow Agent.
(c) Buyer
agrees to indemnify, defend, and hold harmless Seller for, from, and against
all
damages, claims, and liabilities resulting from any tests and inspections
performed on the Property by Buyer or its consultants, including personal
injury
and property damage. Specifically, Buyer agrees to restore the Property
to its
condition immediately prior to any invasive testing. Buyer also agrees
to name
Seller as an additional insured on Buyer's commercial liability insurance
(with
aggregate coverages of at least $1,000,000) insuring against liability
for
Buyer's entry on the Property.
ARTICLE
IV
DEED
AND REPRESENTATIONS
Section
4.01. Deed.
Seller
will convey fee simple title to the Property to Buyer at Closing of Title
by a
Bargain and Sale Deed with Covenants Against Grantor’s Acts (''Deed'')
in the
form that is attached as Exhibit
“D”.
Section
4.02. Seller Representations.
As of
the Contract Date and through and including the Closing Date, the
representations and warranties made by Seller to Buyer as detailed on
Exhibit
“E”
(collectively, the "Seller
Contract Representations")
shall
be true and correct.
Section
4.03. Representation Breach.
(a) Buyer's
obligation to purchase the Property is conditioned upon the truth and accuracy,
in all material respects, of the Seller Contract Representations. If Seller
obtains actual knowledge of a material error in or material breach of any
of the
Seller Contract Representations prior to Closing of Title, Seller promptly
will
give written notice to Buyer. Upon receipt of Seller's notice, Buyer will
have
until the later of the end of the Inspection Period or 15 days after Seller's
notice of error or breach to cancel this Contract and declare Seller in
breach.
If Buyer declares a breach, the Initial ▇▇▇▇▇▇▇ Money shall be returned
to
Buyer, by the Escrow Agent as Buyer's sole remedy. If the breach, however,
is
caused by the intentional, willful, or grossly negligent acts or
misrepresentations of Seller, Buyer will be entitled to exercise its remedies
established under Section 6.03 below. Unless Buyer declares a breach, the
applicable Seller Contract Representation will be deemed amended by Seller's
notice, and Buyer will be deemed to have elected to accept the change and
proceed to close this transaction with no modification of the Price or
claim on
Seller.
(b) If,
after
the Closing of Title, Buyer first discovers a material breach of the Seller
Contract Representations, Buyer will be entitled to bring an action against
Seller for the actual and direct damages incurred by Buyer as a result
of the
breach. Any award of damages will not include punitive damages (except
to the
extent of fraud of Seller) or consequential damages, whether or not
foreseeable.
Section
4.04. Non-Survival.
The
Seller Contract Representations will not survive the Closing of Title but
will
merge with the delivery of the Deed and ▇▇▇▇ of Sale.
Section
4.05. No Other Warranty.
Except
as expressly set forth in this Contract or any of the documents to be executed
pursuant to this Contract ("Additional
Documents"),
Buyer
acknowledges that Seller is selling the Property "AS IS" and that neither
Seller
nor its representatives or agents have made any warranties or representations,
express or implied, oral or written, regarding any matter pertaining to
the
Property or its use including: (i) the physical condition, environmental
condition, zoning, use, valuation, intended use, or other condition of
the
Property; (ii) its merchantability; (iii) its fitness for a particular
purpose;
or (iv) the physical condition, environmental condition, zoning, use, valuation,
intended use, or other condition of any neighboring property.
Section
4.06. Property Condition; Operating Policies.
(a) Between
the Contract Date and the Closing of Title, Seller will use its reasonable
efforts to operate and maintain the Property in substantially the same
manner,
condition, and repair (subject to only ordinary wear and tear and damage
by
insured casualty) as Seller has operated the Property prior to this Contract
Date. Notwithstanding the foregoing, Seller may, with the prior consent
of the
Buyer, renew expiring tenant leases and will not enter into new tenant
leases
for any vacancies as of the Contract Date or for any vacancies arising
after the
Contract Date. Seller acknowledges that Buyer is purchasing the Property
in
order to resell individual condominium units to third parties and, accordingly,
will not
rent any
vacant apartment units without Buyer's consent. During the pendency of
this
Contract, Seller will not sell or otherwise dispose of any of the items
comprising the Property or mortgage or create liens or encumbrances against
the
Property, except the use of regular operating inventory in the ordinary
course
of business and, to the extent Seller would otherwise replace any disposed
of
item in the normal course of its operations, Seller will replace the disposed
of
items.
(b) After
the
Contract Date and except for tenant leases, Seller agrees that it will
not enter
into, terminate, or amend Project Contracts (as defined in Section 4.06(d))
affecting the Property, including those for the furnishing of goods or
services
to or for the benefit of the Property, except for the entering into Project
Contracts that are terminable without penalty upon not more than 30 days
notice
or unless Seller first obtains Buyer's written consent, whose consent will
not
be unreasonably withheld.
(c) Seller
will maintain all existing property, casualty, and liability insurance
on the
Property until the Closing of Title. Prior to the Closing of Title, Seller
will
not market the Property for sale or otherwise accept, solicit or negotiate
any
offers for sale or refinance.
(d) On
or
before the expiration of the Inspection Period, Buyer may give written
notice to
Seller of Buyer's disapproval of any business leases and all project, service,
advertising, locater service, and management contracts affecting the use
or
operation of the Property including laundry, telephone, signage, cable
television, broadband, internet, cell towers, and antennae contracts
(collectively, the "Project
Contracts").
If
Buyer disapproves any of the Project Contracts, Seller, without adjustment
to
the Price, must cause the Project Contracts to be cancelled as of the Closing
Date and, notwithstanding anything to the contrary must cause all recorded
memorandum, security interests, or other written and recorded instruments
evidencing the Project Contracts to be fully released of record. All Project
Contracts not disapproved by Buyer are called "Approved
Project Contracts."
(e) In
the
event that governmental authorities having jurisdiction require repairs
to units
as a condition of issuing any permits required for transfer of title to
such
units, the Seller’s aggregate responsibility for such repairs shall not exceed
$25,000.00. Buyer may assume responsibility for repairs in excess of $25,000.00
in the aggregate or terminate this Contract, in which latter event the
Buyer
shall be refunded the ▇▇▇▇▇▇▇ Money. Closing of Title shall not be delayed
by
reason of the foregoing and, if necessary, Seller shall deposit in escrow
such
amounts as necessary to effectuate repairs for which Seller is responsible
hereunder, but which repairs cannot be completed prior to Closing of Title.
Seller’s obligation to effect such repairs shall survive closing of
title.
ARTICLE
V
CLOSING
DOCUMENTS
Section
5.01. Seller's Closing Documents and Items. At
Closing of Title, Seller will deliver to Buyer the following documents
and items
(all in form reasonably acceptable to Buyer, to the extent not in agreed
form as
an exhibit to this Contract) as to the premises described in Exhibit
“A”
(as and
to the extent applicable):
(a) The
Deed;
(b) A
▇▇▇▇ of
Sale transferring Seller’s interest in the Personalty in the form attached as
Exhibit
“F”;
(c) The
Assignment and Assumption of Contracts, Leases and Other Rights ("Assignment”)
in the form attached as Exhibit
“G”;
(d) The
most
current rent roll for the Property, not dated more than three days prior
to
Closing of Title and certified as true and complete by Seller;
(e) All
keys,
combinations, tenant leases, tenant histories, and the like pertaining
to the
Property that are in Seller's possession;
(f) Authorizations
and resolutions from Seller authorizing the consummation of this
sale;
(g) A
Non-Foreign Affidavit;
(h) Evidence
of termination of all Project Contracts required to be terminated by Seller
pursuant to other provisions of this Contract;
(i) Title
affidavits, undertakings and any and all other documents reasonably required
by
the Buyer’s Title Insurer to issue the Title Policy;
(j) A
letter
jointly signed by Seller and Buyer notifying the tenants that the Property
has
been sold to Buyer, advising the tenants to pay all rent to Buyer and containing
other similar information reasonably required by Buyer;
(k) Letters
to all vendors under agreements to be assigned to Buyer at Closing of Title
advising them of the transfer of the Property to Buyer and containing other
related information reasonably required by Buyer;
(l) Originals
(or certified copies to the extent that originals are unavailable) of all
warranties, guaranties, licenses, permits, leases, service contracts and
other
documents related to the ownership, construction, operation and leasing
of the
Property; and
(m) Any
other
documents that may be reasonably necessary or appropriate to perform and
satisfy
the obligations of Seller under this Contract (including the release, discharge,
and/or defeasance of the Monetary Liens).
(n) The
original leases, to the extent available.
(o) All
Tenant files for the prior three (3) years, to the extent
available.
(p) The
resignation of all of Seller's representatives on the Condominium Board,
as well
as the resignation of any of Seller's representatives holding a Condominium
elective office.
(q) Copies
of
all existing Certificates of Occupancy, to the extent available, and to
the
extent required by the Municipality of Long Branch, any Certificate(s)
of
Occupancy required in connection with the subject sale.
Section
5.02. Buyer's Closing Documents and Items.
At
Closing of Title, Buyer will deliver to Escrow Agent the following documents
and
items:
(a) The
Closing Cash;
(b) If
applicable, appropriate evidence of due authorization and proper formation
of
Buyer; and
(c) Any
other
documents that may be reasonably necessary or appropriate to perform and
satisfy
the obligations of Buyer under this Contract.
Section
5.03. Title Policy; Realty Transfer Fee.
The
cost of the Buyer’s Title Policy and recordation of any Deed will be the
responsibility of Buyer. Seller shall be responsible for the New Jersey
Realty
Transfer Fee and the recording fees required for the discharge or cancellation
of the Monetary Liens.
Section
5.04. Possession.
On the
Closing Date, Seller will deliver exclusive possession of the Property
to Buyer,
subject to those title matters approved by Buyer, the tenant leases, and
the
Approved Project Contracts.
ARTICLE
VI
GENERAL
PROVISIONS
Section
6.01. Indemnity for Entry.
Buyer,
on demand, must indemnify, defend, and hold harmless Seller for, from,
and
against any and all loss, cost, damage, claim, liability, or expense, including
court costs and attorney fees in a reasonable amount, arising out of Buyer's
or
its agent's or its independent contractor's entry on the Property for the
purposes of its inspections and tests; however, Buyer will have no liability
for
any punitive damages or for or with respect to pre-existing conditions.
The
foregoing indemnity includes any repairs necessary to restore the Property
to
its condition prior to the entry and to remove and release any mechanic's
and
materialman's liens.
Section
6.02. Default of Buyer.
If
Buyer breaches this Contract, Seller, as its sole remedy, will be entitled
to
deliver a notice of immediate cancellation to Buyer and Escrow Agent and
be paid
the ▇▇▇▇▇▇▇ Money, as full, liquidated, and agreed-upon damages for Buyer's
breach or default. With the fluctuation in land values, the unpredictable
state
of the economy, the fluctuating money market for real estate loans, and
other
factors that affect the marketability of the Property, Buyer and Seller
agree
that it would be impractical and extremely difficult to estimate the actual
damages that Seller may suffer in the event of a default by Buyer. This
remedy
provision has been agreed-upon after specific negotiation, keeping in mind
the
difficulties in estimating actual damages. Buyer and Seller agree that
the
▇▇▇▇▇▇▇ Money represents a reasonable estimate of the total
damages.
Section
6.03. Default by Seller.
If
Seller breaches this Contract, Buyer, as Buyer's sole and exclusive remedy,
may
elect to: (i) cancel this Contract and receive a refund of its ▇▇▇▇▇▇▇
Money;
(ii) enforce specific performance of this Contract without any right whatsoever
against Seller to any offset or credit against the Price or to any other
equitable or legal remedies or monetary damages; (iii) if specific performance
is not available, commence an action for actual damages; or (iv) elect
to waive
the breach and close the transaction. Buyer's cancellation notice under
subsection (i) above will be deemed effective immediately upon delivery
of
written notice of the cancellation to Seller and Escrow Agent. If Buyer
fails to
institute suit for its remedy of specific performance within 120 days following
the scheduled Closing Date, Buyer will be deemed to have waived its specific
performance remedy.
Section
6.04. Attorney's Fees.
If any
action is brought by either Buyer or Seller regarding its rights under
this
Contract, the prevailing party will be entitled to attorney fees in a reasonable
amount, expenses, and court costs both at trial and on appeal.
Section
6.06. Casualty and Condemnation.
Seller
will promptly provide notice to Buyer of any loss, damage, or taking
("Loss")
prior
to Closing of Title. If the Loss involves the complete taking of access,
parking
or other material benefits, or facilities, then, within 15 days of Buyer's
receipt of Seller's notice of the Loss, Buyer may elect to either: (i)
terminate
this Contract, in which case Buyer will be entitled to a return of all
▇▇▇▇▇▇▇
Money; or (ii) proceed with the purchase of the Property. If Buyer fails
to
timely provide notice of its election or if the Loss does not involve the
complete taking of access, parking, or other material benefits or facilities,
then Buyer and Seller will proceed under subsection (ii). If Buyer and
Seller
proceed, the Price will be adjusted downward by the amount of all awards
and
payments actually paid to Seller by the insurer or the condemning authority
plus
any deductible amounts under any applicable policies of insurance and other
uninsured amounts. If Seller has not actually received the entire award
or
payment from the insurer or the condemning authority at the Closing of
Title,
Seller also will assign to Buyer all of its rights to any further awards
or
payments (including, without limitation, all casualty and rent loss
proceeds).
Section
6.07. Governing Law and Exclusive Jurisdiction.
This
Contract is to be governed by and construed and enforced in accordance
with the
laws of the State of New Jersey. Any action brought to interpret enforce,
or
construe any provision of this Contract must be commenced and maintained
in the
Superior Court of the State of New Jersey, or in the United States District
Court for the District of New Jersey. All parties irrevocably consent to
this
jurisdiction and venue and agree not to transfer or remove any action commenced
in accordance with this Contract.
Section
6.08. Construction.
The
terms and provisions of this Contract represent the results of negotiations
between Seller and Buyer, neither of which have acted under any duress
or
compulsion, whether legal, economic, or otherwise. Consequently, the terms
and
provisions of this Contract will be interpreted and construed in accordance
with
their usual and customary meanings, and Seller and Buyer each waive the
application of any rule of law which states that ambiguous or conflicting
terms
or provisions are to be interpreted or construed against the party whose
attorney prepared this Contract or any earlier draft of this
Contract.
Section
6.09. Entire Agreement.
This
Contract constitutes the entire understanding between the parties pertaining
to
the subject matter of this Contract and all prior agreements, representations,
and understandings of the parties, whether oral or written, are superseded
and
merged in this Contract. No supplement, modification, or amendment of this
Contract will be binding unless in writing and executed by the parties.
No
waiver of any of the provisions of this Contract will be deemed or will
constitute a waiver of any other provisions, whether or not similar, nor
will
any waiver be a continuing waiver. No waiver will be binding unless executed
in
writing by the party making the waiver. Time is of the essence in the
performance of each and every term of this Contract
Section
6.10. Miscellaneous Definitions and Standards.
Whenever the terms "sole
discretion",
"sole
and absolute discretion",
or
"sole
option"
are
used, these terms will mean that the act or decision of the party may be
made in
the party's independent and individual choice of judgment without regard
to any
objective or other standard of consideration. Except for those acts or
decisions
that may be made in a party's "sole
discretion"
etc.,
all acts or decisions of any party to this Contract must be exercised with
reasonable discretion. Whenever the phrase "to
Seller's knowledge"
or any
variation of such phrase is used, the phrase will mean that the matter
represented is made based upon the actual knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
without
any duty of investigation or verification of the matter on a current or
ongoing
basis and subject to all information given and disclosures made pursuant
to this
Contract. The term "will"
denotes
a mandatory obligation, and the term "may"
is a
permissive word denoting an option.
Section
6.11. Counterparts.
This
Contract and any amendments may be executed in any number of original or
telecopy counterparts, each of which will be effective on delivery and
all of
which together will constitute one binding agreement of the parties. Any
signature page of this Contract may be detached from any executed counterpart
of
this Contract without impairing the legal effect of any signatures and
may be
attached to another counterpart of this Contract that is identical in form
to
the document signed (but that has attached to it one or more additional
signature pages).
Section
6.12. Severability.
If
anyone or more of the provisions of this Contract or the applicability
of any
provision to a specific situation is held invalid or unenforceable, the
provision will be modified to the minimum extent necessary to make it or
its
application valid and enforceable in a manner consistent with the intent
of this
Contract, and the validity and enforceability of all other provisions of
this
Contract and all other applications of the enforceable provisions will
not be
affected by the invalidity or unenforceability of any provision, so long
as this
Contract may still be enforced in a manner consistent with the intent of
Buyer
and Seller.
Section
6.13. Confidentiality.
Without
the prior written approval of Buyer and Seller, neither Seller, Buyer,
nor
Escrow Agent will make, authorize, or confirm any public announcement of
this
transaction or discuss this transaction or otherwise disclose any portion
of the
Due Diligence Documents (including all operating information) or results
of
environmental reports and assessments performed by Buyer, except as required
by
law or, as for Buyer, with those persons directly involved in the transaction
including attorneys, advisors, partners, investors, consultants, accountants,
and prospective lenders, without the prior written or oral consent of
Seller.
Section
6.14. Tax Deferred Exchange.
Seller
and Buyer agree to cooperate in a commercially reasonable manner with each
other
and any designated exchange intermediary or exchange accommodation titleholder
in order to effectuate a tax deferred exchange of the Property under Section
1031 of the Internal Revenue Code. This obligation to cooperate does not
include
requiring the other party to take title to any other property to complete
the
exchange, to issue any legal opinions, to increase the potential liability
of
the non-exchange party, or to expand legal fees to review exchange documents
in
other than a de
minimus
(less
than $1,000) amount. Seller may transfer title to the Property to a
Seller-affiliated entity incident to effecting said tax deferred exchange.
Such
transfer of title will be subject to the written assignment to, and the
assumption of this Contract by Seller’s affiliated entity.
Section
6.15. Escrow Agent.
Buyer
and Seller will indemnify and hold Harmless Escrow Agent from all costs,
damages, attorney fees, expenses, and liabilities that Escrow Agent may
incur or
sustain in connection with this Contract, including any interpleader action
brought by Escrow Agent, except for those matters arising out of the negligent
acts or omissions, willful misconduct, breach contract, or breach of fiduciary
duty of Escrow Agent.
If
conflicting demands are made upon Escrow Agent concerning this Contract,
Buyer
and Seller agree that Escrow Agent may hold any money and documents deposited
under this Contract until Escrow Agent receives mutual instructions from
Buyer
and Seller or until a civil action has been finally concluded in a court
of
competent jurisdiction determining the rights of Buyer and Seller. In the
alternative and at its discretion, Escrow Agent may commence a civil action
to
interplead any conflicting demands in a court of competent jurisdiction.
Escrow
Agent’s deposit with the court of all documents and funds concerning this Escrow
will relieve Escrow Agent of all further liability and responsibility under
this
Contract, except for those matters arising out of the negligent acts of
omissions of Escrow Agent. Buyer and Seller agree that Escrow Agent may
represent Seller in any litigation, mediation or arbitration between Buyer
and
Seller.
Section
6.16. Time for Performance. The
time
for performance of any obligation or for the taking of any action under
this
Contract will be deemed to expire at 5:00 p.m. (prevailing Eastern Time)
on the
last day of the applicable time period established in this Contract. In
calculating any time period under this Contract that commences upon the
receipt
of any notice, request, demand, or document, or upon the happening of any
event,
the date upon which the notice, request, demand, or document is received
or the
date the event occurs (or is deemed to have occurred) is not included within
the
applicable time period, but the applicable time period will commence on
the day
immediately following. If the time for performance of any obligation or
for
taking any action under this Contract expires on a Saturday, Sunday, legal
holiday, or any date Escrow Agent is not open for business, the time for
performance or for taking such action will be extended to the next succeeding
day which is not a Saturday, Sunday, or legal holiday and during which
Escrow
Agent is open for business.
Section
6.17. Notices. All
notices, requests, demand, and other communications required or permitted
under
this Contract must be in writing and will be deemed to have been delivered,
received, and effective: (i) on the date of service, if served by hand-delivery
or by facsimile telecopy on the party to whom notice is to be given; or
(ii) on
the date that is one business day after deposit of the notice properly
addressed
to the party at the address shown on the cover page to this Contract, if
sent by
national overnight delivery; or (iii) three days after deposit of the notice
properly addressed if sent by U.S. certified mail, return-receipt requested.
The
addresses, telephone numbers, and telecopy numbers shown on the first page
of
this Contract are the places and numbers for delivery of all notices. Any
party
may change the place or number for delivery of notice by notifying all
other
parties.
Section
6.18. Assignment.
Buyer
shall have the right to assign this Contract to any entity in which either
or
both ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are principals. Any assignee to
whom
this Contract is assigned must assume the obligations of Buyer hereunder
and
such assignee shall thereafter be entitled to the same rights and remedies
as
the original Buyer hereunder. Any such assignment shall not operate as
a release
of the obligations of the original Buyer hereunder.
Section
6.19. Protected Tenancies.
The
Seller represents that there are so-called protected tenancies pursuant
to "the
Senior Citizen and Disabled Protected Tenancy Act" (P.L. 1981 CH. 226)
which to
Seller’s knowledge are as set forth on Schedule A.
Section
6.20 Transfer of Condominium Control. At
closing, Seller shall use reasonable efforts to assist Buyer in transferring
control of the Condominium Association to Buyer. In furtherance thereof,
Seller
shall, if required by Buyer, nominate and cast its votes in accordance
with the
Condominium Association by-laws for a slate of officers and directors chosen
by
the Buyer. Seller shall also tender the written resignations of any officers
and
directors which were appointed by or which are under the control of
Seller.
Executed
as of this Contract Date.
|
CITADEL
EQUITY GROUP, LLC,
a
New
Jersey Limited Liability
L.L.C.,
Company
|
BILTMORE
CLUB APARTMENTS,
a
Delaware
Limited Liability
Company
|
|||
| By: | Biltmore Club Holding,
Inc., a
Delaware
Corporation, its
Managing
Member
|
|||
| By: | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Member/Manager | ||||
| By: | By: |
|
||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Member/Manager |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
|
|||
|
ESCROW
AGENT'S ACCEPTANCE
|
By
its
execution below, Escrow Agent accepts this Contract as its escrow instructions
and acknowledges receipt of this Contract executed by Buyer and
Seller.
| Wilentz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.A. | ||
| |
|
|
| By: | ||
|
|
||
EXHIBIT
“A”
TO
Individual
Units to be Conveyed
|
Unit
#
|
Unit
Type
|
Unit
SF
|
As
of
12/31/04
|
Marketable
Rent
|
Lease
Ending
Date
|
|
101
A-1
|
1BR
|
801
|
$955
|
$1,100
|
3/31/06
|
|
102
A-2
|
1BR
|
801
|
$955
|
$1,100
|
|
|
105
A-5
|
2BR
|
1,015
|
$1,229
|
$1,350
|
9/30/05
|
|
106
A-6
|
2BR
|
1,015
|
$1,170
|
$1,350
|
3/31/06
|
|
108
A-8
|
28R
|
1,015
|
$1,229
|
$1,350
|
8/31/05
|
|
109
A-9
|
1BR
|
801
|
$1,000
|
$1,100
|
3/31/06
|
|
110
A-10
|
18R
|
801
|
$955
|
$1.100
|
|
|
111
A-11
|
18R
|
801
|
$1,000
|
$1,100
|
3/31/06
|
|
112
A-12
|
18R
|
801
|
$1,100
|
$1,100
|
4/30/06
|
|
113
A-13
|
18R
|
801
|
$1,090
|
$1,100
|
4/30/06
|
|
114
A-14
|
18R
|
801
|
$1,100
|
$1,100
|
4/30/06
|
|
116
A-16
|
18R
UPGRADED
|
801
|
$1,000
|
$1,250
|
3/31/06
|
|
118
A-18
|
18R
|
801
|
$1,000
|
$1,100
|
3/31/06
|
|
119
A-19
|
18R
|
801
|
$1,003
|
$1,400
|
7/31/05
|
|
120
A-20
|
1BR
|
801
|
$1,041
|
$1,100
|
4/30/06
|
|
201
B-1
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
202
B-2
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
203
B-3
|
1BR
|
801
|
$1,050
|
$1,100
|
8/31/05
|
|
205
B-5
|
18R
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
206
B-6
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
207
B-7
|
28R
|
1,015
|
$1,400
|
$1,400
|
3/31/06
|
|
210
B-10
|
28R
DELUXE
|
1.390
|
$1,290
|
$1,500
|
12/31/05
|
|
301
C-1
|
2BR
|
1,015
|
$1,275
|
$1,400
|
7/31/05
|
|
303
C-3
|
2BR
|
1,015
|
$1,400
|
$1,400
|
3/31/06
|
|
307
C-7
|
1BR
|
801
|
$955
|
$1,100
|
3/31/06
|
|
308
C-8
|
1BR
|
801
|
$1,000
|
$1,100
|
3/31/06
|
|
309
C-9
|
1BR
|
801
|
$955
|
$1,100
|
3/31/06
|
|
310
C-10
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
311
C-11
|
1BR
|
801
|
$1,050
|
$1,100
|
8/31/05
|
|
315
C-15
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
316
C-16
|
1BR
|
801
|
$1,090
|
$1,100
|
4/30/06
|
|
402
D-2
|
1BR
|
801
|
$1,050
|
$1,100
|
9/30/05
|
|
403
D-3
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
404
D-4
|
1BR
|
801
|
$1,041
|
$1,100
|
7/31/05
|
|
406
D-6
|
1BR
|
801
|
$955
|
$1,100
|
|
|
407
D-7
|
1
BR UPGRADED
|
801
|
$955
|
$1,250
|
|
|
409
D-9
|
2BR
|
1,015
|
$955
|
$1,400
|
|
|
410
D-10
|
2BR
|
1,015
|
$955
|
$1,400
|
3/31/06
|
|
413
D-13
|
2BR
|
1,015
|
$1,175
|
$1,400
|
3/31/06
|
|
414
D-14
|
2BR
|
1,015
|
$1,275
|
$1,400
|
7/31/05
|
|
415
D-15
|
2BR
|
1,015
|
$1,275
|
$1,400
|
7/31/05
|
|
SUBTOTAL
|
35,784
|
$44,215
|
$49,250
|
||
|
41
|
CUMULATIVE
TOTAL
|
35,784
|
$44,215
|
$49,250
|
EXHIBIT
“B”
TO
Excluded
Assets
NONE
EXHIBIT
“C”
TO
Due
Diligence Documents
The
Due
Diligence Documents consist of the following:
| (a) |
July
2005 year-to-date and 2004 operating
statements;
|
| (b) |
Current
rent roll for the Property, as applicable, together with an aged
receivables report and a security deposit
report;
|
| (c) |
Condominium
Financials (year-to-date ending 12/31/2004 and
08/31/2005);
|
| (d) |
Real
estate tax assessment cards for 2004, 2004 Final / 2005 Preliminary
Tax
Bills, and 2005 Final / 2006 Preliminary Tax
Bills;
|
| (e) |
Current
Property Management Agreement, MEB;
|
| (f) |
Copies
of all residential leases on file;
|
| (g) |
Copies
of existing survey;
|
| (h) |
Property
condition assessment (Property Solutions, Inc dated
01/07/03);
|
| (i) |
Phase
1 environmental report (Property Solutions Inc. dated
01/24/03);
|
| (j) |
Lead
report (Property Solutions Inc. dated
01/27/03);
|
| (k) |
Asbestos
report (Property Solutions Inc, dated
01/27/03);
|
| (l) |
Current,
09/08/2001, NJ State DCA Green Card and Certificate of Registration;
|
| (m) |
Copy
of Owner’s Title Insurance Policy for applicable Condominium
units;
|
| (n) |
Copy
of the Condominium Public Offering Statement; Organization papers
received
from New Vistas Condominium Management on
12/11/02;
|
| (o) |
Blanket
deed (please note that some
units have been previously sold - see Exhibit
“A-1”
for list of Wilshire-owned units);
|
| (p) |
Individual
Certificates of Occupancy for leased units;
and
|
| (q) |
Wilshire-held
mortgage and note against condo association- owned unit D1. Dated
May 1,
2005. Payments on time.
|
| (r) |
Copies
of any Notice to Quit given to existing tenants, if
any.
|
EXHIBIT
“D”
TO
(Deed)
DEED
-
BARGAIN AND SALE (Covenant as to Grantor's Acts)
CORP.
TO
IND. OR CORP - Plain Language
below
signature)
Prepared
by:(Print signer's name
DEED By:
This
Deed
is made on
BETWEEN
_______________________________________.,
a
corporation of the State of New Jersey, having its principal office at
_______________________________ referred
to as the
Grantor,
AND
___________________________________________
, whose
address is _____________________________________
referred
to as the Grantee.
The
words
"Grantor" and "Grantee" shall mean all Grantors and all Grantees listed
above.
Transfer
of Ownership.
The
Grantor
AND
NO/100---
($___________________)
DOLLARS.
The Grantor acknowledges receipt of this money.
Tax
Map Reference.
(N.J.S.A. 46:15-2.1) Municipality of
________________________________________
Block
No.
________________ Lot
No. ___________________
Account
No. ______________________
o
No lot
and block or account number is available on the date of this deed. (Check
box if
applicable).
Property.
The
property consists of the land and all the buildings and structures on
the land
in the _____________________,
County
of
and
State
of New Jersey. The legal description is:
PLEASE
SEE ATTACHED LEGAL DESCRIPTION ANNEXED HERETO AND MADE A PART
HEREOF.
Being
the
same premises conveyed to the
Subject
to easements, restrictions, rights of way, if any, and such state of
facts as an
accurate survey may reveal.
The
street address of the Property is:
Promises
by Grantor. The Grantor promises that the Grantor has done no act to
encumber the property. This promise is called a "covenant as to grantor's
acts"
(N.J.S.A. 46:4-6). This promise means that the Grantor has not allowed
anyone
else to obtain any legal rights which affect the property (such as by making
a
mortgage or allowing a judgment to be entered against the Grantor).
Signatures.
This Deed
is signed and attested to by the Grantor’s proper corporate officers as of the
date at the top of the first page. (Print name below each
signature).
Witness:
_______________________
By:___________________________
STATE
OF NEW JERSEY, COUNTY OF SS:
I
CERTIFY
that on ,
2005,
,
personally
came before me and stated to my satisfaction that this person (or if more
than
one, each person):
(a)
was
the maker of the attached Deed;
(b)
was authorized to and did execute
this Deed as_________________ of
_____________________ , the entity
named in this Deed;
(c)
make this Deed for
$ as the full and actual consideration paid or to be paid for
the transfer of title. (Such consideration is defined in N.J.S.A. 46:15-5);
and,
(d)
executed this Deed as the act of the entity.
________________________________
EXHIBIT
“E”
TO
Seller’s
Contract Representations
E-1
-- As to
those matters related to the power and authority of Seller to sell the
Property
to Buyer under this Contract (collectively called the "Seller Authority
Representations"), Seller represents and warrants to Buyer as
follows:
(a) Seller
is
not prohibited from consummating the transaction contemplated by any law,
regulation, agreement, order, or judgment.
(b)
Seller
is
legally capable and properly authorized to perform all of its obligations
as
described in this Contract. No additional shareholder, director, member,
or
partner approvals are required to make this Contract a binding agreement
of
Seller once Seller has signed this Contract and Buyer has deposited the
Initial
▇▇▇▇▇▇▇ Money with the Escrow Agent.
(c) Seller
is
not party to any other current contracts for the sale, exchange, or transfer
of
all or any portion of the Property.
(d)
The
person signing this Contract on behalf of Seller is legally and properly
authorized and empowered to sign this Contract and bind Seller to its terms
and
conditions.
(e)
Any
existing monetary liens on the Property can be defeased, and Seller will
undertake, at its sole cost, all actions necessary to cause the defeasance
to
occur.
E-2
-- As to
those matters with respect to the condition of the Property disclosed or
referred to in third party notices (collectively called the "Notice
Representations"), Seller represents and warrants to Buyer as
follows:
(a) Seller
has no knowledge of any pending or threatened condemnation or similar
proceedings affecting the Property or any portion.
(b) Seller
has no knowledge and has received no notifications from any Governmental
Authorities having jurisdiction over the Property: (i) requiring any work
to be
done on the Property; or (ii) alleging any violation of an applicable ordinance,
rule, regulation, or law with respect to the Property.
(c) Seller
has received no notices by from any tenant claiming that Seller is in material
default of its obligations as landlord.
(d) Seller
has received no notice and has no knowledge of any actual or threatened
claim,
demand, damage, action, cause of action, litigation or other proceedings
affecting the Property other than for rent collection or eviction related
matters that have been disclosed to Buyer in writing.
(e) A
state
inspection certification from the New Jersey Department of Community Affairs
has
been duly issued. A copy of the so-called green card is attached hereto
as
Schedule ______________.
E-3
-- As to
those matters related to the legal or physical condition of the Property
(collectively called the "Physical Condition Representations"), Seller
represents and warrants to Buyer as follows:
(a) Seller
has no knowledge of the existence of any past or present environmental
condition
(including, without limitation, mold, PCBs and other hazardous or toxic
waste or
substance) or hazardous substance on the Property.
(b) Seller
owns marketable fee simple title to the Property subject only to: (i) easements
and restrictions of record, (ii) monetary liens to be defeased, and (iii)
those
matters disclosed by any Existing Survey.
(c) To
the
best of Seller's knowledge, information and belief, there are no buried
fuel
storage tanks located at the Property. To the extent that there were fuel
storage tanks, located at the Property, all such tanks have been removed
in
compliance with applicable laws and regulations.
E-4
-- As to
those matters related to the financial or operational status or condition
of the
Property (collectively called the "Operational Representations"), Seller
represents and warrants to Buyer as follows:
(a) Attached
hereto as Schedule ________and
made
a part hereof is a Rent Schedule for the Property designating: (i) each
apartment unit with the room count thereof and specifying the two separate
retail spaces; (ii) the name of the tenant occupying any designated space;
(iii)
the date of any lease therefore, including the date of any amendment or
modification thereof; (iv) the rent and other charges payable therefore;
and (v)
the amount and designation of any deposit or escrow, with accrued interest
attributable thereto, separately identified, paid by each such tenant.
No tenant
has entered into any Contract or other arrangements with Seller, except
as
indicated by Schedule .
To the
best of Seller's knowledge, information and belief, except as noted in
Schedule
________,
all
leases in full force and effect in accordance with their terms, unmodified,
free
from default, and there are no claims credits or offsets in favor of any
tenant,
except for security deposits in the amount noted in Schedule
________,
if any.
No action or proceeding against Seller by any tenant of the Property is
presently pending. All work required to be performed for tenants has been
performed, as required, paid for in full and accepted by tenant for whom
it was
performed.
(b) To
Seller's knowledge, all Due Diligence Documents provided by Seller to Buyer
are
true and complete copies in all material respects of the Due Diligence
Documents
in Seller's possession.
(c) Other
than tenants in possession as disclosed in the rent roll delivered to Buyer
or
as otherwise disclosed in the Title Report, no one other than Seller is
in
possession of the Property.
(d) There
are
no property agreements or contracts affecting the Property or its use or
operation or to which Seller is a party other than as disclosed in the
Due
Diligence Documents. To Seller's knowledge, there are no material defaults
in
existence with respect to any Project Contracts. There are no locator
agreements, leasing brokerage agreements or other similar agreements affecting
the Property or to which Seller is a party that will be binding on Buyer
after
Closing of Title.
EXHIBIT
“F”
TO
PURCHASE
AGREEMENT
(▇▇▇▇
of
Sale)
▇▇▇▇
OF SALE
________________________,
a(n) _____________________ ("Seller"), for and in consideration
of the payment of a portion of the amounts described in the Purchase Agreement
dated _________________, 2005 (as amended, the "Contract"),
sells and delivers to _____________________ a(n) _____________
("Buyer"), and its successors and assigns, all equipment,
furnishings, appliances, and items of personal property that are located
on or
used in connection with the improved real property known as
''________________________," including, without limitation, those items
described on Appendix One ("Personal
Property").
Seller
represents and warrants to Buyer that: (i) Seller is the sole owner of
all of
the Personal Property; (ii) Seller has all requisite power and authority
to
transfer and convey the Personal Property to Buyer; (iii) to the extent
necessary, Seller has obtained all consents and approvals required to transfer
the Personal Property to Buyer; and (iv) the Personal Property is free
and clear
from all pledges, liens, claims, and encumbrances of any type or nature.
Seller,
at its sole cost and expense, agrees to defend title to the Personal Property
against all claims and demands of any type or nature.
Seller
transfers and assigns to Buyer any and all representations or warranties
(express or implied) and other rights, claims, and causes of action of
Seller
relating to the Personal Property that may be enforceable against manufacturers,
distributors, suppliers, vendors, or servicers of the Personal Property
(collectively, the "Warranties").
Seller,
at its sole cost and expense, agrees to perform, execute, and/or deliver
(or to
cause to be performed, executed, and/or delivered) any additional documents
and/or assurances that Buyer may reasonably request to insure, secure,
or
perfect Buyer's interest in any item transferred to Buyer by this ▇▇▇▇
of Sale
or to otherwise fully and effectively carry out the intent and purpose
of this
▇▇▇▇ of Sale or this Contract.
EXCEPT
FOR THOSE WARRANTIES AND REPRESENTATIONS, IF ANY, MADE BY SELLER IN THIS
▇▇▇▇ OF SALE OR UNDER THIS CONTRACT, SELLER: (I) HAS SOLD AND
DELIVERED THE PERSONAL PROPERTY TO BUYER IN AN "AS-IS" AND
"WHERE-IS" CONDITION, SUBJECT TO ALL FAULTS AND DEFECTS, AND WITHOUT ANY
IMPLIED
WARRANTIES OF ANY NATURE INCLUDING ANY IMPLIED WARRANTIES OF FITNESS OR
MERCHANTABILITY; (II) HAS MADE NO WARRANTIES OR REPRESENTATIONS THAT EXTEND
BEYOND THE DESCRIPTION IN THIS ▇▇▇▇ OF SALE OR THIS CONTRACT; AND (III)
HAS MADE NO REPRESENTATION OR WARRANTY REGARDING THE PHYSICAL OR OPERATING
CONDITION OF THE PERSONAL PROPERTY.
This
▇▇▇▇
of Sale will be effective as to the transfer of all of the above-described
Personal Property as of _______________, 20_____.
a(n)
By:
___________________________
Its:
___________________________
EXHIBIT
“G”
TO
PURCHASE
AGREEMENT
(Assignment
of Leases, Contracts, and Other Rights)
ASSIGNMENT
OF LEASES, CONTRACTS, AND RIGHTS
This
Assignment of Leases, Contracts, and Rights, ("Assignment")
is
executed and delivered as of [insert
Closing Date], 20___
("Effective
Date") by
____________________, a _________________________ ("Seller")
to
____________________ ("Buyer").
BACKGROUND
A. Seller,
by Bargain and Sale Deed with Covenants Against Grantor’s Acts ("Deed")
executed
concurrently with this Assignment, has sold and conveyed to Buyer the
____________________ complex ("Project")
commonly known as "_______________________________," located at ______________,
in the City of ___________, County of ____________, State of New Jersey,
as more
particularly described in the Deed.
B. The
terms
and provisions of this Contracts and agreements in effect between Seller
and
Buyer relating to the sale/purchase of the Project (collectively, the
"Purchase
Contract")
require, among other things, that Seller execute this Assignment transferring
and assigning to Buyer Seller's rights in this Contract Rights (including
all
tenant leases) and Other Rights (collectively, the "Assigned
Items").
C. Capitalized
terms that are used in this Assignment but are not defined specifically
in this
Assignment will be ascribed the meanings contained in the Purchase
Contract.
TRANSFER
AND ASSIGNMENT
In
consideration of the closing of the purchase of the Project by Buyer and
for
other good and valuable consideration, the receipt and sufficiency of which
are
acknowledged, Seller makes the following assignments to Buyer:
1. Assignment
of Rents, Tenant Leases, and Contracts.
(a)
Seller
transfers, assigns, and conveys to Buyer, and its successors and assigns,
all of
the right, title, interest, powers, and privileges of Seller in and under
all
tenant leases applicable to the Project ("Tenant
Leases"),
all of
which are referred to in the Rent Roll attached as Appendix
One
("Rent
Roll").
This
assignment of Tenant Leases includes the right of Buyer to collect all
rents due
or payable under the Tenant Leases for periods commencing on or following
the
Effective Date of this Assignment
(b)
Seller
certifies that the information shown on the Rent Roll is true and correct
as of
the date of this Assignment, and there is no rent or other concessions
given to
any occupant of an apartment unit in the Project, except as accurately
reflected
in the Rent Roll.
(c)
Seller
further represents and warrants to Buyer that: (i) Seller is the lawful
owner of
all of the Tenant Leases; (ii) all Tenant Leases are in full force and
effect
and, after the date of this Assignment, will be enforceable by Buyer in
accordance with their terms; (iii) except as otherwise disclosed to Buyer
in
writing, there are no defaults by Seller (or its agents or representatives)
or
any tenant under the Tenant Leases; and (iv) all future rights and obligations
assumed by Buyer under the Tenant Leases are accurately established in
the
Tenant Leases, true, correct, and complete copies of which were previously
furnished by Seller to Buyer.
2. Assignment
of Security Deposits. Seller
transfers and assigns to Buyer all Tenant Deposits. [Seller
represents and warrants to Buyer that the aggregate sum of the Tenant Deposits
is $_.]
3. Assignment
of Project Contracts.
(a) Seller
transfers and assigns to Buyer, and its successors and assigns, all of
the
right, title, interest, powers, and privileges of Seller under only the
Project
Contracts listed on Appendix
Two
to this
Assignment. No other Project Contracts are transferred or assigned to
Buyer.
(b) Seller
represents and warrants to Buyer that: (i) all right, title, interest,
powers,
and privileges being assigned to and assumed by Buyer and all rights and
options
of third parties relating to the Approved Project Contracts are accurately
established in their entirety in the Approved Project Contracts attached
as
Appendix
Two;
and
(ii) no contracts or agreements relating to management, maintenance, ownership,
or operation of the Project, other than those listed on Appendix
Two,
have
been entered by Seller which will remain in effect or become effective
after the
Effective Date of this Assignment.
4. Assignment
of Miscellaneous Items. Without
limitation of Section I above, Seller transfers, assigns, and conveys to
Buyer,
its successors and assigns, all Contract Rights and Other Rights owned
by Seller
and located on the Project that have not otherwise been conveyed by a
concurrently executed ▇▇▇▇ of Sale from Seller to Buyer.
5. Assignment
of Warranties, Claims and Causes of Action. Seller
transfers and assigns to Buyer, and its successors and assigns, all of
Seller's
right, title, and interest in all representations or warranties (express
or
implied) and all other rights, causes of action, or all claims of any kind
(collectively, the "Warranties")
arising
out of the Assigned Items. Without intending to limit the generality of
the
foregoing, Seller assign to Buyer all rights, claims, and causes of action
which
Seller may have against any contractor, materialman, supplier, distributor,
or
vendor relating to any work, materials, or equipment furnished for the
Project
prior to the date of this Assignment.
6. Miscellaneous.
(a)
Seller agrees, at its sole cost and expense, to perform, execute, and/or
deliver
(or to cause to be performed, executed, and/or delivered) any additional
documents and/or assurances as Buyer may reasonably request to insure,
secure,
or perfect Buyer's interest in any of the items assigned to Buyer by this
Assignment or to otherwise fully and effectively carry out the intent and
purpose of this Assignment or this Contract.
(b) Seller
warrants and represents to Buyer that the rights and interests of Seller
intended to be assigned under this Assignment are not subject to any prior
assignment, pledge, or encumbrance.
(c) Seller
and Buyer warrant and represent to each other that they have the requisite
power
and authority to enter this Assignment and have performed all acts and
secured
all approvals necessary to make this Assignment effective and legally binding
on
such party in accordance with its terms. Each person executing this instrument
on behalf of either party, as agent or otherwise, personally warrants that
he or
she is duly authorized and empowered to do so and that all signatures and
approvals of persons with an ownership interest in such party have been
obtained
so as to make this Assignment legally enforceable and effective against
such
party.
(d) This
Assignment is binding upon the successors and assigns of Seller and will
inure
to the benefit of the successors and assigns of Buyer, and all warranties
and
representations of Seller contained in this Assignment shall survive the
Effective Date of this Assignment, the recordation of the Deed, and the
delivery
of this Assignment.
(e)
This
Assignment shall be governed by and interpreted under the laws of the State
of
New Jersey.
(f)
Seller,
on demand, agrees to indemnify and hold harmless Buyer for, from, and against
any and all loss, cost, damage, claim, liability, or expense (including
court
costs and attorney fees in a reasonable amount) arising out of the acts
or
omissions of Seller or its agents prior to the Effective Date with respect
to
the Assigned Items. Buyer, on demand, agrees to indemnify and hold harmless
Seller for, from, and against any and all loss, cost, damage, claim, liability,
or expense (including court costs and attorney fees in a reasonable amount)
arising out of the acts or omissions of Seller or its agents after the
Effective
Date with respect to the Assigned Items. The foregoing indemnities include
loss,
cost, damage, claim, liability, or expense from any injury or damage of
any kind
whatsoever (including death) to persons or property. The indemnity described
in
this Assignment is intended to be separate and distinct from any obligations
of
the Seller or the Buyer under the terms of the Purchase Contract
This
Assignment has been executed and delivered as of the Effective
Date.
"Seller"
_______________________________
a______________________________
By:
____________________________
Name:__________________________
Title:___________________________
"Buyer"
_______________________________
a______________________________
By:
____________________________
Name:__________________________
Title:___________________________
APPENDIX
ONE
TO
ASSIGNMENT
OF LEASES, CONTRACTS, AND RIGHTS
(Rent
Roll)
[TO
BE PROVIDED ON THE CLOSING DATE]
APPENDIX
TWO
TO
ASSIGNMENT
OF LEASES, CONTRACTS, AND RIGHTS
(list
and
copies of approved Business Leases and Project Contracts)
[TO
BE PROVIDED ON THE CLOSING DATE]
SCHEDULE
“A”
PROTECTED
TENANCIES