SALE OF ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
This Agreement of Sale made this 30th day of March, 1998, by and between
Biosearch Medical Products, Inc. a New Jersey Corporation, with its principle
place of business at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ("Seller")
and Hydromer, Inc. a New Jersey Corporation, with its principle place of
business at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ("Purchaser")
WITNESSETH:
WHEREAS, The Seller is the owner of certain real property premises located
in the municipality of Branchburg, County of Somerset, and State of New Jersey;
and
WHEREAS, Purchaser desires to purchase said premises from Seller; and
WHEREAS, the parties hereto desire to set forth their mutual understandings
and agreements with respect to the sale and purchase of said premises.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. AGREEMENT TO SELL: Seller hereby agrees to sell and Purchaser hereby
agrees to purchase those real property premises consisting of approximately 6.2
acres situated in the Township of Branchburg, County of Somerset and State of
New Jersey. The premises are commonly known as ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and are also known as ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, as shown on the
current tax map of the Township of Branchburg. The premises are more
specifically described on Schedule A attached hereto and made a part hereof. All
machinery and trade fixtures are not included in the sale.
2. PURCHASE PRICE: The purchase price for the premises shall be Eight
Hundred Fifty Thousand Dollars ($850,000) and a 3 year lease back of approx
16,500 sq. ft. from Purchaser to Seller beginning on the date of closing said
terms of lease are set forth on Schedule B1 attached hereto, subject to
adjustments as hereinafter provided in Paragraph 8, payable as follows:
(a) Upon execution hereof, the receipt of which is
hereby acknowledged, to be held in escrow by escrow agent
pending closing and pursuant to the provisions of Paragraph
4 $ 85,000
(b) Balance to be paid at closing of title by
certified, bank, cashier's, or attorneys' trust
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account check or pursuant to Seller's wire instructions $ 765,000
(c) A three year fully paid lease of approx. 16,500
square feet, which the parties value at $ 346,500. $ 346,500
Total Purchase Price $1,196,500
3. TITLE:
(a) Title to the premises shall be good, marketable, with title valid of
record, and insurable by a title insurance company of Purchaser's choice
authorized to do business in the State of New Jersey, subject to the following
exceptions which shall be deemed "Permitted Exceptions":
Subject to a mortgage given by seller to the New Jersey Economic Development
Authority which seller will satisfy with part of the Purchase Price.
Subject to all other exceptions of record which would not render title to the
premises unmarketable, nor would materially interfere with the Purchaser's
Intended Use of the premises, or:
(i) Laws, regulations or ordinances of federal, state, county or local
entities or agencies having jurisdiction over the premises, provided same
do not prohibit the use and enjoyment of the premises for Purchaser's
Intended Use, as described in Paragraph 6(a)(i) below.
(ii) Easements, covenants, and restrictions of record, provided the
same have not been violated, would not render title to the premises
unmarketable, nor would materially interfere with the Purchaser's Intended
Use of the premises.
(iii) Such state of facts as would be shown on an accurate survey of
the premises, provided such facts do not render title to the premises
unmarketable, would not materially interfere with Purchaser's Intended Use
of the premises, nor would reveal encroachments onto the premises from
adjoining properties or from the premises onto adjoining properties.
The existence of mortgages on the premises shall not constitute a
non-Permitted Exception, provided the outstanding principal balance and accrued
interest due and owing thereon is less than the balance of the purchase price
described in Paragraph 2(b). In the event the amounts due under such mortgages
are
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less than the balance of the purchase price described in Paragraph 2(c), then
the Purchaser shall be permitted to use a portion of the closing proceeds to
satisfy such amounts.
(b) Within thirty (30) days from the date hereof, Purchaser shall procure a
preliminary certificate of title from a title insurance company of Purchaser's
choice licensed to do business in the State of New Jersey. Purchaser shall
promptly notify Seller, in writing, of any title exceptions set forth in such
preliminary certificate or in any amendments thereto which are not Permitted
Exceptions. Seller shall then have a thirty (30) day period after such notice to
clear or remove the non-Permitted Exceptions to the satisfaction of Purchaser
and Purchaser's title company.
(c) In the event Seller is unable, after due diligence, to remove the
non-Permitted Exceptions and deliver title as required in Paragraph 3(a) above,
Purchaser shall have the right either to accept such title as Seller is able to
convey, without abatement of the purchase price, or to terminate this Agreement.
4. ESCROW AGENT AND DEPOSIT:
(a) The escrow agent referred to in Paragraph 2 above shall be Smith,
Stratton, Wise, Herher & ▇▇▇▇▇▇▇, attorneys at Law, (600 College Road-East,
Princeton, N.J. 08540) (hereinafter referred to as "Escrow Agent"). The Escrow
Agent shall hold the deposit and interest accrued thereon (hereinafter "escrow
funds") pursuant to an ESCROW AGREEMENT, the form being attached to this
AGREEMENT as Schedule C.
(b) Upon closing of title, the Escrow Agent shall deliver the escrow funds
to Seller. Purchaser shall be entitled to a credit against the purchase price
for the deposit but not the interest.
(c) In the event that pursuant to this Agreement or by mutual consent of
Seller and Purchaser this Agreement is terminated, the Escrow Agent shall
deliver the deposit and all interest earned thereon to the Purchaser. In that
event, the Purchaser herein agrees to execute any and all documents necessary to
confirm that Purchaser shall be liable to any taxing authority for taxes with
respect to such interest. The Purchaser's obligation herein shall survive the
termination of this Agreement.
(d) In the event that there is no closing, nor a termination of this
Agreement in accordance with its terms or by mutual consent of Seller and
Purchaser, and/or one party shall allege default or breach by the other party as
the cause, the Escrow Agent shall continue to hold said escrow funds pending an
order from a court of competent jurisdiction or mutual consent of Seller and
Purchaser.
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(e) Notwithstanding the terms of subparagraphs (c) and (d) above, the
parties hereto agree that the question of which party is entitled to the deposit
and when shall be governed by other paragraphs of this Agreement other than this
Paragraph 4, and that this Paragraph 4 shall determine the procedures by which
the Escrow Agent shall make disbursements. If Seller claims at any time that it
is entitled to the escrow funds on account of any default by Purchaser, Seller
shall notify Escrow Agent, in writing, requesting payment to Seller. If within
ten (10) days of Escrow Agent's receipt of such notice Purchaser has not
objected to the payment thereof to Seller, Escrow Agent shall pay same to
Seller. If Purchaser objects, then subparagraph (d) above shall apply. If on the
date set for closing Purchaser does not object, in writing, to the payment of
the escrow funds to Seller in accordance with Paragraph 4(b), then Escrow Agent
shall pay to Seller such sums. If Purchaser objects, in writing, to such
payment, then subparagraph 4(d) above shall apply. If Purchaser claims at any
time that it is entitled to the return of the escrow funds in accordance with
this Agreement, Purchaser shall notify the Escrow Agent, in writing, of its
claim for same. If within ten (10) days of Escrow Agent's receipt of such notice
Seller has not objected to the payment thereof to Purchaser, Escrow Agent shall
pay same to Purchaser. If Seller objects, then the provisions of subparagraph
4(d) shall apply. Both Seller and Purchaser agree that in connection with any
written notification to be given to the Escrow Agent, a copy of such written
notification shall be served upon the other party and the party giving such
notice shall have the unconditional obligation to provide Escrow Agent with
evidence satisfactory to Escrow Agent that a copy of the written demand has been
delivered to the other party. Each party undertakes the obligation to provide
such notice and provide evidence of such notice to Escrow Agent. Until such
obligation has been satisfied, any time period described in this subparagraph
(e) shall not commence to run.
(f) The Seller and Purchaser acknowledge that the Escrow Agent has
represented both Purchaser and Seller in different matters but such fact shall
not disqualify Escrow Agent from representing the Purchaser in this transaction.
(g) Seller and Purchaser agree that upon Escrow Agent's disbursement of the
escrow funds to Seller or to Purchaser, in accordance with the terms set forth
hereinabove or upon deposit thereof with a court of competent jurisdiction, the
Escrow Agent shall have no further obligation under this Agreement or with
respect of the escrow funds.
5. TERMINATION OF AGREEMENT: If, pursuant to the terms of this Agreement,
this Agreement shall be terminated or canceled then subject to Paragraph 4
hereof, Escrow Agent shall return the escrow funds to Purchaser and neither
Seller nor Purchaser shall have any further liability to the other.
6. PURCHASER'S INTENDED USE: Seller and Purchaser agree that Purchaser is
purchasing the premises for the purpose of utilizing the premises for research
and
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development of polymers and polymer based product, including but not limited the
storage and mixing of chemicals used for, and the coating of medical/industrial
devices subject to all federal state and municipal laws and regulations. Seller
represents that to Seller's best knowledge, the premises can be so used in a
lawful manner provided Buyer meets all legal requirements at its own expense.
7. PURCHASER'S CONTINGENCIES: It is understood and agreed that the
obligation of Purchaser to purchase the premises is expressly contingent upon
the achievement or satisfaction of all of the following conditions, any or all
of which the Purchaser shall have the right to waive, in whole or in part. The
Purchaser shall not have the right to extend any time periods referred to herein
unless such extension is agreed to in writing signed by both Seller and
Purchaser. Said conditions are as follows:
(a) Purchaser obtaining a commitment (the "Commitment") from any bank ("the
Lender") for a mortgage loan (the "Loan") in the amount of not less then
$722,500 with interest at the prevailing rates and terms reasonable to
Purchaser. Purchaser agrees to make immediate application for such Loan and
promptly comply with all of such Lender's reasonable requirements in connection
with such Loan. Purchaser shall proceed with due diligence to obtain such
commitment. In the event Purchaser has not obtained the Commitment from the
Lender within thirty (30) days of the date on which Seller and Purchaser have
both duly executed this Agreement and each has received a fully executed
counterpart thereof (the "Execution Date"), either party may terminate this
Agreement by written notice sent before close of business, May 4, 1998 or this
contingency is waived.
(b) Environmental. Seller will deliver an approval of a negative
declaration issued by the NJ DEP dated January 12, 1998 pursuant to the
Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.). Purchaser will review
and accept this document, subject to a representation by Seller at closing that
there are no material changes and further subject to: 1. acceptance by lender
and 2. no requirement by the NJ DEP for a subsequent filing.
If at any time any seepage, presence of or exposure to any hazardous
substance or chemical, toxic or other waste (collectively "Hazardous
Substances") occurs or exists on the premises, then Purchaser may terminate this
Agreement.
(c) Feasibility Study
(i) The Purchaser shall have a period of thirty (30) days from the
Execution Date ("Feasibility Period") in which to make such zoning, legal,
title, engineering, soil, environmental, geological and other technical studies,
tests, investigations and inquiries as shall deem necessary and appropriate, all
at the Purchaser's sole cost and expense, in order to determine whether the
premises is
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suitable for Purchaser's use.
(ii) In the event that the Purchaser determines, that as a result of the
tests, studies and investigations, that it is unwilling to proceed with the
acquisition of the premises because the premises is not suitable for Purchaser's
purposes, the Purchaser shall have the right, upon written notice to the Seller
delivered on or before the 30th day of the Feasibility Period, to cancel this
Agreement in which event the Deposit heretofore paid by the Purchaser shall be
returned and there shall be no further liability or obligation on the part of
either party hereto.
(iii) From and after the date hereof, the Purchaser shall have the right to
enter upon the premises for the purpose of making, at its sole cost and expense,
the various tests, studies and investigations, authorized herein. Additionally,
the Purchaser agrees to indemnify, defend and hold harmless the Seller herein
from and against any claims, damage or losses caused by the Purchaser's entry
upon the premises. This indemnification and hold harmless agreement extends to
any loss occasioned to the premises or the Seller resulting from the conduct or
access of the Purchaser's representative as well as by its contractors,
subcontractors, business invitees and/or licensees.
(iv) The Purchaser agrees to restore the premises promptly following the
completion of the tests herein permitted to the condition of said premises
immediately prior to the Purchaser's entry thereon.
If the contingencies set forth in this Paragraph 7 are not satisfied within
the applicable contingency period and the Agreement is terminated in accordance
with the terms hereof, the Escrow Agent shall refund the Deposit to Purchaser
and neither party shall have any further liability to the other hereunder."
Purchaser agrees to use reasonable diligence and act in good faith in
pursuit of the satisfaction of all contingencies.
In connection with the satisfaction of contingencies, Seller, without
charge to Purchaser but without assuming any financial obligation, agrees to
fully cooperate with Purchaser and execute all applications, confirmations and
other documents necessary to permit Purchaser to satisfy contingencies. In
connection with any contingency, Purchaser shall advise Seller, in writing, by
the date when Purchaser shall have the right to terminate this Agreement for
non-satisfaction of the contingency or shall have satisfied the contingency
whether or not Purchaser (a) has satisfied the contingency, or (b) is
terminating this Agreement for non-satisfaction. If by such date Purchaser has
not so advised Seller, then at any time commencing on the next day thereafter,
Seller shall have the right to terminate this Agreement by written notice to
Purchaser thereof. If neither Seller nor Purchaser has terminated this
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Agreement by reason of non-satisfaction of a contingency, nor Purchaser has
advised Seller that such contingency has been satisfied, then the time period
within which such contingency can be satisfied shall continue until the earlier
of (i) Seller's written notification to Purchaser that this Agreement has been
terminated for non-satisfaction of contingency, (ii) Purchaser's written
notification to Seller that this Agreement has been terminated for
non-satisfaction of contingency, or (iii) Purchaser's notification to Seller
that the contingency has been satisfied or waived. It is the intention of this
paragraph to provide that this Agreement shall not automatically terminate nor
will any contingency be deemed automatically satisfied on any contingency period
termination date unless and until Seller and/or Purchaser, as applicable, shall
have affirmatively advised the other party as to the status of the matter.
8. CLOSING AND DELIVERY OF DOCUMENTS: Closing of title shall take place on
or about June 1, 1998 or within thirty (30) days of the waiver or satisfaction
of all of Purchaser's Contingencies, whichever date shall first occur, at such
time as is convenient for and agreed to by the parties. At the closing which
will take place at the premises, Seller shall deliver a Deed of Bargain and Sale
with Covenant against Grantors Acts, an affidavit of title, a corporate
resolution authorizing the sale, an affidavit that the Seller is not a foreign
person as defined in Section 1445 of the Internal Revenue Code ("FIRPTA
Affidavit") and shall deliver and/or execute such other documents as Purchaser's
title insurance company and/or mortgage lender may reasonably request or
require. Seller agrees that it shall not convey title pursuant to a power of
attorney. In the event Purchaser obtains a survey of the premises from a
surveyor licensed in the State of New Jersey, Seller agrees to use a legal
description in accordance with such survey, provided such survey is certified to
Seller, a copy of which shall be provided to Seller by Purchaser in advance of
closing. Seller and Purchaser agree to exchange copies of the closing documents
not less than five (5) days prior to closing.
9. ADJUSTMENTS AT CLOSING: At the time of closing and delivery of deed,
taxes, water and sewer charges, if applicable, shall be adjusted between Seller
and Purchaser as of the closing date with charges for the day of closing
attributable to the Seller. Seller shall bear the expense of payment of the
realty transfer fee. Real estate taxes shall be apportioned on the basis of the
calendar year for which assessed, except that if the closing date shall occur
before the final tax rate is fixed, the apportionment of taxes shall be
tentative, based upon the parties' best knowledge of the current year's
assessments. At such time as the full year's taxes are known, the parties shall
thereafter adjust as of the date of closing based upon the full year's taxes.
Seller shall pay all roll-back taxes relating to farmland assessment whenever
such assessment may be imposed by the taxing authority. The obligations of this
paragraph with regard to any adjustments or payments subsequent to closing for
real property taxes shall survive closing.
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10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller is the owner of the premises and has the authority to enter into this
transaction.
Seller is a corporation, duly organized, validly existing and in good standing
in the State of New Jersey. Seller has full power and authority to consummate
the sale of the premises as set forth herein, and all requisite actions required
by law to authorize the execution, delivery and performance of this Agreement
have been taken.
Seller has not received any notice of any violation of any federal, state or
municipal laws, ordinances, orders, rules, regulations or requirements affecting
any portion of the premises. In the event of the issuance of any written notice
of violations after the date hereof, but prior to the Closing, Seller agrees to
correct such violations or to allow Purchaser a credit at Closing to make such
corrections.
Seller has received no notice and has no knowledge of any pending improvements,
liens or special assessments to be made against the premises by any governmental
authority.
No portion of the premises is, and the Seller has not received any notice and
has no knowledge that any portion of the premises will be, subject to or
affected by any condemnation of similar proceeding.
The Seller has no knowledge of any existing action, suit or proceeding affecting
the premises or any portion thereof or relating to, or arising out of the
ownership, management or operation of the premises, in any court or before or by
any federal, state, county or municipal department, commission, board, bureau or
agency or other governmental instrumentality other then a suit by the present
Mortgagee, Summit Bank, NA in foreclosure. (Summit Bank v Biosearch Medical
Products, Inc. docket BER-L-10086-97 Bergen County, suit on contract; Summit
Bank v Biosearch Medical Products, Inc. docket F-18439-97 suit on Foreclosure),
it being the intention of Purchaser and Seller to satisfy and discharge the
Mortgage held by Summit Bank at the closing.
No person, firm or other entity has any right of first refusal, option or any
other right of any nature to acquire the premises or any portion thereof or any
interest therein.
Neither the execution and delivery of this Agreement nor the consummation of the
sale provided for herein will constitute a violation or breach by Seller of any
provision of any agreement or other instrument to which Seller is a party or to
which Seller may be subject although not a party, or will result in or
constitute a violation or breach of any judgement, order, writ, injunction or
decree issued against Seller.
There are no tenants or occupants, leases, mortgages or other liens or
encumbrances,
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or other agreements affecting the operation of the premises.
Seller represents that there are no existing contracts for advertising,
janitorial services, maintenance contracts, or purchase contracts or for other
services which would be binding on the Purchaser after Closing or affect the
premises being conveyed. All valid bills and claims for labor performed and
materials furnished to or for the benefit of the premises for all periods prior
to the Closing Date will be paid in full by Seller.
All public utilities required for the operation of the premises either enter the
premises through adjoining public streets, or if they pass through adjoining
private land, do so in accordance with valid irrevocable easements which run to
the benefit of the owner of the premises.
Seller has maintained and will maintain through the Closing Date such insurance
coverage as is adequate to insure the premises at full replacement cost.
To the best of Seller's knowledge, the premises are in full compliance with all
New Jersey and Federal environmental laws, including, without limitation, ISRA,
the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23, et seq.,
and the regulations promulgated thereunder, and all other rules and regulations
of the New Jersey Department of Environmental Protection and Energy ("DEPE") and
its various divisions. Seller has not dumped or disposed of, suffered or
permitted dumping and disposal or, nor cleaned up any "Hazardous Substances", as
such term is defined in N.J.S.A. 13:1 K-8(d) on or upon any portion of the
premises. To the best of Seller's knowledge, the premises has not been used for
any of the aforementioned purposes, or subjected to any such occurrences. Prior
to the Closing Date, Seller shall prevent the dumping or disposal of any
Hazardous Substances on or upon any portion of the premises. Seller hereby
agrees to defend, indemnify, and hold Buyer harmless from and against any and
all claims, losses, judgments, liabilities, damages and expenses (including with
limitation cleanup costs and attorneys' fees arising by reason of any of the
aforesaid or an action against the Seller under this indemnity) arising directly
or indirectly from, out of, or by reason of any breach of this Section or the
release of any Hazardous Substances prior to Closing. If any of the aforesaid
representations are not true at the time of Closing, the Purchaser shall be
permitted to terminate the Agreement and receive the return of the Deposit
together with all accumulated interest.
Survival. The representation, warranties and covenants of the Seller listed
above are true and complete as of the Execution Date and Seller will reaffirm
their truth and completeness as of the Closing Date. All such representations,
warranties and covenants shall survive the Closing.
10A. PRE-CLOSING COVENANTS OF SELLER.
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Seller covenants and agrees that subsequent to the Execution Date and until
the Closing:
Seller shall deliver the premises at the Closing Date in the same condition
as it is on the Execution Date subject to ordinary wear and tear.
Without the prior written consent of Purchaser in each instance, the Seller
shall not enter into, renew, amend or extend any lease or enter into any new
tenancy of any nature.
Seller shall not suffer, cause or permit any change in the condition of the
premises including, without limitation, the duping of any garbage, Hazardous
Substances (as defined in N.J.S.A. 58:10-23.1lb(k), or of any fill or other
materials, or the removal of any fill, soil or vegetation from the premises.
Seller shall not suffer, cause or permit any use or the occupancy of the
premises pending the Closing.
In the event the Seller receives written notice from any governmental
agency of any violation of any governmental rule, statute, ordinance or
regulation affecting any portion of the premises, Seller shall promptly cure
such violation, at its sole cost and expense, prior to the Closing. Seller shall
provide Purchaser with copies of all such notices and any responses thereto.
The risk of loss or damage to the premises by or as a result of any cause
until the Closing Date is assumed by and shall be the responsibility of Seller.
Certificate of Occupancy or other Governmental Approval. In the event that
the Township of Branchburg requires the obtaining of Certificate of Occupancy,
Certificate of Continuing Occupancy or any other type of governmental approval
as a prerequisite for Closing, it shall be the obligation of the Seller to
obtain same at its sole cost and expense. Seller shall make any repairs required
to the premises for the issuance of said certificates or approvals, provided
however, Seller has no duty to repair or modify the premises if said repair or
modification is related to the activity or proposed activity of Purchaser.
11. POSSESSION AND PRECLOSING ENTRY: Purchaser may enter into and upon the
said lands and premises upon delivery of deed and from thence take the rents,
issues and profits for its own use; provided, however, that Purchaser shall have
the right, from time to time, to enter upon the premises prior to the date of
closing hereunder for the purpose of conducting inspections, surveys and tests
related to Purchaser's Intended Use and for satisfying of the Purchaser's
Contingencies. Purchaser shall indemnity and hold Seller harmless from any and
all liability for damage to persons or property arising from such entry prior to
the closing date.
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12. ASSESSMENTS: If at the time for the delivery of the deed the premises,
or any part thereof, shall be or shall have been affected by a special
governmental assessment or assessments which are or may become payable in annual
installments of which the first installment is then due or has been paid, then
for the purpose of this Agreement, all of the unpaid installments of any such
assessment, including those which are to become due and payable after the
delivery of the deed, shall be deemed to be due and payable and to be liens upon
the premises affected thereby and shall be paid and discharged by Seller upon
delivery of the deed. Unconfirmed improvements or assessments, if any, shall be
paid and allowed by Seller on account of the purchase price if the improvement
or work has been commenced on or before the date hereof. Seller represents to
the best of its knowledge that there are no unconfirmed improvements or
assessments for improvements contemplated for the premises.
13. REAL ESTATE BROKERAGE COMMISSION: Seller and Purchaser mutually
represent and warrant to each other that there are no real estate brokers that
either have dealt in connection with the negotiation of this Agreement.
The parties hereto agree to save each other harmless and indemnify each
other from any losses, damages, judgments and costs, including legal fees, which
a party may suffer if the other party breaches its obligations hereunder or if
the representation of the other party contained herein proves untrue or if the
claim is made against the indemnifying party.
14. RISK OF LOSS: Risk of loss, by reason of fire or other casualty, shall
remain with Seller until the time of closing. In the event of fire or other
casualty to the premises, Seller shall advise Purchaser within ten (10) days
thereof If all or a material part of the premises is destroyed by fire or other
casualty, Purchaser shall have the right to terminate this Agreement. For
purposes hereof, a material damage shall be damage, the restoration or repair
cost of which shall, as estimated by Seller's insurance company, exceed
$200,000. In connection with any non-material casualty, Seller shall cause all
repairs to be made on or before closing. In connection with any material
casualty which does not result in Purchaser's termination of this Agreement,
Purchaser shall have the right to require Seller to repair the premises, in
which case the time for closing shall be extended as required to allow for such
repair, or to purchase the premises in accordance herewith, without abatement of
purchase price, and receive an assignment of proceeds of such insurance.
15. CONDEMNATION: In the event condemnation or eminent domain proceedings
shall be commenced by any governmental or quasi-governmental authority having
jurisdiction therefor against all or any part of the premises, Seller shall
promptly notify Purchaser and provide Purchaser with all information concerning
such proceedings. Purchaser may, at its option, by giving written notice to
Seller within forty-five (45) days after its receipt of the notice of such
proceedings,
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terminate this Agreement.
In the event Purchaser does not elect to terminate this Agreement, then any
award in condemnation and/or unpaid claims and rights in connection with such
condemnation shall be assigned to Purchaser at closing, or if paid to Seller
prior thereof, shall be credited against the unpaid balance of the purchase
price due at closing. If Purchaser determines not to terminate this Agreement,
Seller shall not adjust or settle any condemnation awards without the prior
written approval of Purchaser and shall allow Purchaser to participate in all
proceedings.
16. FLOOD HAZARD AREA: If the premises are within a flood hazard area,
Purchaser shall have the right to terminate this Agreement. Purchaser agrees to
obtain a flood hazard certification within 30 days from the date hereof.
17. BOUNDARY LINES: Seller represents that there are no encroachments from
the premises onto adjoining properties or from adjoining properties onto the
premises.
18. NOTICES: All notices, demands or communications hereunder shall be sent
by registered or certified mail, postage prepaid, return receipt requested, to
the following addresses first appearing.
19. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
between the parties hereto. No amendment or modification hereof shall have any
force or effect unless in writing and executed by all parties.
20. BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective legal representatives, their
heirs, executors, administrators, successors and assigns.
21. GOVERNING LAW: This Agreement shall be construed in accordance with the
laws of the State of New Jersey.
22. HEADINGS: The article headings contained in this Agreement are for
reference only for the convenience of the parties. They shall not be deemed to
constitute a part of this Agreement nor shall they alter or supersede the
contents of the paragraphs themselves.
23. SURVIVAL: Whenever the context of this Agreement allows, expressly
provides, or reasonably implies a continuing obligation, such continuing
obligation shall survive the closing of title and delivery of the deed and shall
not merge therein.
24. RECORDING OF AGREEMENT: Seller and Purchaser agree that this Agreement
will not be recorded.
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25. LIENS AGAINST THE PREMISES: All sums paid by Purchaser pursuant to the
terms of this Agreement shall be returned to Purchaser upon Purchaser's
termination of this Agreement and the same shall constitute liens against the
premises.
26. LOAN OF DOCUMENTS: Purchaser agrees that it will make available copies
of its title insurance policy, present deed, proposed deed, ▇▇▇▇ ▇▇▇▇ submission
and Resolution by the Board of Directors of Seller, authorizing the sale. Seller
shall also make available to Purchaser plans and specifications utilized by
Seller in connection with any applications made by Seller for any governmental
approvals or in connection with the construction of any improvements on the
premises.
27. CALCULATION OF TIME PERIODS: With respect to any time periods set forth
herein which are calculated from the date of this Agreement, it is understood
and agreed that such time period commences from the date of final execution of
this Agreement by all parties hereto, including execution of any riders or
amendments hereto. The date of this Agreement shall be the date the last
signatory executes this Agreement and any such riders or amendments.
28. DEFAULT BY PURCHASER/LIOUIDATED DAMAGES: The parties hereto agree that
in the event Purchaser shall default under this Agreement, the actual damages
which Seller would suffer would be mathematically difficult to calculate. The
parties hereto agree in good faith to estimate the amount of such damages which
would reasonably compensate the Seller for such a default. Such amount is equal
to $85,000. Accordingly, in the event of any default by Purchaser, Seller shall
be entitled to liquidated damages in the sum of $85,000. The balance of the
deposit, if any, together with interest, shall be returned to Purchaser.
29. COUNTERPARTS: This Agreement will be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
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IN WITNESS WHEREOF, the undersigned have set their hands and seals the day
and year first above written.
Biosearch Medical Products. Inc., Seller
by: __________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Hydromer, Inc., Purchaser
by: __________________________
▇▇▇ ▇▇▇▇▇, Vice President
Date: ________________________
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Schedule A
LEGAL DESCRIPTION:
BEGINNING at the most northerly corner of Lot 3D, as shown on "Plan of Major
Subdivision-Final Plat: Industrial Property of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Readington Road,
situated in Branchburg Twp., Somerset County" dated September 1965, revised
April 1967, which map was filed in the Somerset County Clerks's Office as Map
No. 1139 and from said Beginning point running; (1) South 66 degrees, 06
minutes, 44 seconds East, 531 .87 feet along the southerly property line of the
Central Railroad Company of New Jersey to a point and corner of Lot 3A as shown
on the map herein referred to; thence (2) South 24 degrees, 15 minutes West,
493.73 feet along ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; thence (3)
North 65 degrees, 45 minutes West, 658.13 feet along the center line of
Industrial Parkway; thence (4) North 38 degrees, 41 minutes, 12 seconds East,
506.36 feet to the point and place of BEGINNING. Containing 6.2 aces more or
less.
The above description includes all of Lot 3D as shown on "Plan of Major
Subdivision-Final Plat: Industrial Property of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Readington Road,
situated in Branchburg Twp., Somerset County" dated September 1965, revised
April 1967, which map is filed in the Somerset County Clerk's Office as Map No.
1139.
Being the same premises conveyed to Fabri-Kal Corporation by deed of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his wife, dated July 16, 1970, and recorded in the
Somerset County Clerk's Office in Deed Book 1229 at page 848.
Together with all rights of Fabri-Kal Corporation under deed dated December 29,
1972, to the Township of Branchburg and recorded in the Somerset County Clerk's
Office in Deed Book 1274 at page 591.
Also being the same premises conveyed to Biosearch Medical Products, Inc. by
deed of Fabri-Kal Corporation, dated September 9, 1980, and recorded in the
Somerset County Clerk's Office in Deed Book 1427 at page 620.
Further being made subject to agreements, covenants, easements and restrictions
of record and such facts as an inspection and accurate survey would disclose.
Lease
HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
Premises-35 Industrial Parkway, Somerville, NJ
36 Months
Lease
HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
Premises-35 Industrial Parkway, Somerville, NJ
36 Months
THIS LEASE is made as of the twelfth day of June, 1998, between Hydromer,
Inc. (hereinafter referred to as "Landlord") and Biosearch Medical Products,
Inc. (hereinafter referred to as "Tenant").
SECTION 1
DEMISE AND BASIC RENT
Landlord hereby rents to Tenant and Tenant hereby rents from Landlord,
approx. 1 6,500 sq. ft. in the east side of the building, commonly known as ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, the east side being identified as Schedule A
attached hereto, (hereinafter referred to as the "Premises"), in its "As Is"
condition, for the term of beginning on the day of that the real estate
containing the premises is conveyed by Tenant to Landlord and ending on 36
months later, at seven Dollars ($7.00) per sq ft. per year, the amount of three
hundred and forty six thousand five hundred dollars ($346,500) ("Prepaid Rent")
being acknowledged as received by Landlord from Tenant as part of the sale of
the real estate in which the Premises is part and parcel therein to be utilized
by Tenant at the rate of $9,625 per month (herein the "Basic Rent").
SECTION 2
ADDITIONAL RENT, TAXES, ASSESSMENTS, ETC.
If the premises is separately metered for utilities, Tenant will pay such
bills else Tenant will pay 65% of all utility bills for the entire building. All
other costs of operation (such as but not limited to taxes, building insurance,
grounds upkeep, snow removal and other like costs) are to be shared equally
("Additional rent").
SECTiON 3
AFFIRMATIVE COVENANTS OF TENANT
Tenant, jointly and severally if more than one, hereby covenants with
Landlord as follows:
(A) to pay any Additional Rent within Ten (10) days of date of invoice
therefor;
(B) to keep the Premises in good order; and
(C) to surrender the peaceful and quiet possession of the Premises at
the end of the term or any shorter period, broom clean and in as good
condition as when received (normal wear and tear and damage from
insured events excepted).
SECTION 3A
ADDITIONAL TERMS
1. Landlord shall pay for the cost of construction of interior demising walls
which shall be finished on both sides together with the doors to be located
therein. All other interior modifications shall be
LEASE - HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
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36 months
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the responsibility of the Tenant.
2. Landlord will reimburse Tenant for any electricity or utilities used by
Landlord on Tenant's meters.
3. Landlord will grant Tenant access to the loading dock to load trucks.
4. Landlord recognizes there is a security system covering the entire premises
and Tenant will disconnect the sensors in the non-leasehold from the system.
5. Tenant has the right to park up to 3 trailers and 2 refuse containers in the
rear parking lot for storage, provided no municipal ordinances are violated. At
the end of the lease these trailers and containers shall promptly removed.
SECTION 4
NEGATIVE COVENANTS OF TENANT
Tenant hereby covenants that Tenant will not do, suffer or permit any of
the following:
(A) anything to be done in or about the Premises which will contravene
any policy of insurance against loss by fire;
(B) violate the Certificate of Occupancy for the Premises or use, or
permit to be used, the Premises for the purposes other than those
allowed by the zoning ordinances of the Township of Branchburg;
SECTION 5
QUIET ENJOYMENT
The Landlord covenants that he shall do nothing to affect the Tenant's
right to peaceably and quietly have, hold and enjoy the Premises for the term
herein mentioned, subject to the provisions of this Lease and to any mortgage or
deed of trust to which this Lease shall be subordinate.
SECTION 6
ALTERATIONS
Tenant shall not make any alterations or additions to the Premises without
the prior written consent of Landlord. Any alterations, additions or repairs the
Tenant shall be permitted to make shall be done at Tenant's own expense.
Landlord shall make all alteration to secure the Premises from the other
parts of the building, including installing separate meters to insure Tenant
does not pay for any part of the non-leasehold.
SECTION 7
EXPIRATION OF LEASE
Upon expiration of this Lease Tenant shall deliver as soon afterwards as a
received from the state of New Jersey, an approval of a negative declaration
regarding the premises pursuant to the
LEASE - HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
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36 months
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Industrial Site Recovery Act (N.J.S.A. 13:1 K-6 et seq.) (hereinafter, ISRA).
In the event Tenant does not surrender the premises to Landlord upon the
expiration of this Lease, Tenant shall pay a holdover rent of $19,250 for each
month of holdover. This is not an election of remedies and Landlord may take any
other action to remove Tenant allowed by law or equity.
SECT1ON 8
EFFECT OF DESTRUCTION
If the Premises shall be destroyed or rendered untenantable by fire or
unavoidable accident, or if the building in which the Premises are located is so
damaged that Landlord shall elect to demolish it or rebuild it, the tenancy
hereby created shall be thereby terminated, and, provided Tenant is not in
default at the time of such destruction, Landlord shall refund the unused
portion of the Prepaid Rent, payable in 4 equal installments over a 4 month
period. Landlord at its own expense shall purchase insurance if available to
insure this obligation and add it to any insurance policy as a rider if
available. Such refund obligation may be set off against any obligation of
Tenant to Landlord under section 1 2, below.
SECTION 9
INSURANCE
Tenant shall provide and keep in force during the term of this Lease
general liability insurance for injury or damage to persons or property in or
upon the Premises during the term of this Lease. The said policy shall be with
limits not less than one million Dollars ($1,000,000) in respect of any one
person, in respect of any one accident and in respect of property damage and
shall also contain an endorsement protecting the Landlord for water damage and
sprinkler damage liability with respect to property other than the Landlord's.
Landlord shall insure the building including the premises as Landlord deems
fit. Tenant shall have the right to purchase any additional insurance to cover
losses of Tenant.
Tenant shall also furnish insurance for such other hazards and in such
amounts as Landlord may reasonably require. Landlord reserves the right at any
time and from time to time to require the limits for any of the insurance under
this Section to be increased to limits which Landlord deems reasonable. Tenant
shall provide a certificate evidencing such insurance to Landlord. Landlord
shall be a named insured on any such policy. No such policy may be canceled
without ten days prior notice to Landlord.
SECTION 10
REPAIRS
Tenant shall keep the Premises in good condition and repair and shall
redecorate, paint and renovate the Premises as may be necessary to keep them in
good condition and repair and good appearance and in compliance with the laws
and regulations applicable to Tenant's business.
SECTION 11
SUBORDINATION
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36 months
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This Lease is and shall be subject and subordinate to all present and
future mortgages, deeds of trust or underlying leases affecting the Premises.
Tenant shall execute any instrument which may be deemed necessary or desirable
by Landlord to further effect or to evidence the subordination of this Lease to
any such mortgage, deed of trust or underlying lease.
SECTION 12
INDEMNIFICATION
Tenant agrees to indemnify and hold harmless the Landlord, each mortgagee,
ground or underlying lessor of the Premises from and against any and all
liabilities, damages, claims, losses, judgments, causes of action, costs and
expenses (including reasonable counsel fees and legal expenses) which may be
incurred by Landlord or any such mortgagee or underlying lessor relating to or
arising out of any breach by Tenant of (i) its obligations to be performed under
this Lease, or (ii) the carelessness, negligence or improper conduct of Tenant,
its agents, contractors, employees, invitees or licensees, or (iii) arising out
of the use and occupancy of the Premises or any work or thing whatsoever done or
any condition created in or about the Premises during the term of this Lease. In
case any action or proceeding be brought against Landlord by reason of any such
claim, Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding. Tenant shall be entitled to a credit against such indemnification in
the amount of any unused, pre-paid basic rent in the event that the Premises are
destroyed or rendered untenantable by Tenant's act or omission hereunder.
SECTION 13
EXCULPATION
The term "Landlord" as used in this Lease means only the holder, for the
time being, of the Landlord's interest under this Lease so that in the event of
any transfer of title to the Premises, the Landlord shall be and hereby is
entirely free and relieved of all obligations of Landlord hereunder accruing
after such transfer. Tenant acknowledges that there is absolutely no personal
liability on the part of the Landlord, its successor or assigns with respect to
any of the terms, covenants and conditions of this Lease, and that Tenant shall
look solely to the equity of Landlord in the Building for the satisfaction of
each and every remedy of Tenant in the event of any breach by Landlord of any of
the terms, covenants and conditions of this Lease to be performed by Landlord.
SECTION 14
BINDING EFFECT
This Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their personal representatives, successors and assigns, and
sub-tenants.
SECTION 15
ASSIGNMENT/SUBLET
Provided Tenant is not in default, Tenant shall have the unrestricted right
to assign this prepaid lease or sub-let the premises provided the assignee or
sub-tenant as the case may be agrees to be bound by the provisions of this
lease, provided however, Landlord shall have the: (i) option of exercising a
right of first refusal to prevent such sub-lease or assignment by the payment of
a monthly rate of $9,625 times the number of months left in this pre-paid lease,
provided further such right shall be exercised, within 10 days of the receipt of
a written notice by Tenant to Landlord.
LEASE - HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. page-5
36 months
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This payment shall be made in 4 equal installments over a 4 month period or (ii)
in the event the Basic Rent paid by such assignee/subtenant exceeds $7.00/sq.
ft. per year, Landlord may elect not to exercise its option of first refusal in
consideration for payment of 50% of the monthly amount by which
assignee/subtenant's Basic Rent exceeds a rate of $7.00 per square foot per
year.
SECTION 16
APPLICABLE LAW
The Lease shall be interpreted and construed in accordance with the laws of
the State of New Jersey (excluding New Jersey conflict of laws) and by the state
courts of New Jersey.
SECTION 17
CAPTIONS
The captions appearing in this Lease are inserted only as a matter of
convenience and do not define, limit, construe or describe the scope or intent
of the Sections of this Lease nor in any way affect this Lease.
SECTION 18
TENANT'S DEFAULT
A default under this lease by Tenant shall exist if any of the following
occurs:
(a) If Tenant fails to pay Additional Rent or any other sum required
to be paid hereunder within ten (10) days of when due; or
(b) If Tenant fails to perform any term, covenant or condition of this
Lease except those requiring the payment of money, and Tenant fails to
cure such breach within thirty (30) days after written notice from
Landlord where such breach could be reasonably cured within
such thirty (30) day period; provided, however, where such failure
could not reasonably be cured within the thirty (30) day period, that
Tenant shall not be in default if it commences such performance within
the thirty (30) day period and diligently thereafter prosecutes the
same to completion; or
(c) If Tenant shall have abandoned or vacated the Premises for more
than ten (10) consecutive days except by reason of fire or other
casualty pursuant to Section 8 of this Lease.
SECTION 19
REMEDIES
Upon a default, Landlord shall have the following remedies, in addition to
all other rights and remedies provided by law or otherwise provided in this
Lease, to which Landlord may resort cumulatively or in the alternative:
(a) Landlord may continue this Lease in full force and effect, and
this Lease shall continue in full force and effect as long as Landlord
does not terminate this Lease, and Landlord shall have the right to
collect Additional Rent and other charges when due or at the
Landlord's option to set off against the Prepaid Rent.
LEASE - HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
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36 months
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In addition, for the period of any default, any unpaid Additional Rent
shall accrue interest at the annualized rate equal to the Prime Rate
in the Wall Street Journal plus 2% compounded monthly.
(b) Landlord may terminate Tenant's right to possession of the
premises at any time by given written notice to that effect, and relet
the Premises or any part thereof. On giving the notice, all of
Tenant's rights in the Premises, shall terminate. Upon such
termination, Tenant shall surrender and vacate Premises, and Landlord
may re-enter and take possession of the Premises and all remaining
improvements or property and eject Tenant or any of Tenant's
sub-tenants, assignees or other person or persons claiming any right
under or through Tenant. This Lease may also be terminated by a
judgement specifically providing for termination. Any termination
under this Article shall not release Tenant from the payment of any
sum then due Landlord or from any claim for damages or Additional Rent
or other sum previously accrued or then accruing against Tenant. Upon
such termination Tenant shall be liable immediately to Landlord for
all costs Landlord incurs in reletting the Premises or any part
thereof, including, without limitation, legal fees and expenses,
broker's commissions, expenses of cleaning and restoration, repair or
redecorating the Premises required by reletting and like costs which
at Landlord's option may be set off against the unused Prepaid Rent.
Provided, however, upon such termination, Tenant shall be entitled to
a credit in the amount of any unused prepaid Basic Rent, which credit
if any shall be paid in 4 equal monthly installments.
Reletting may be for a period shorter or longer then the remaining
term of this Lease. Acts of maintenance, efforts to relet the Premises
or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a
termination or interfere of or with Tenant's right to possession.
In the event Landlord terminates Tenant's right to possession under
this section and occupies the premises, Tenant shall immediately be
entitled to a credit in the amount of any unused Prepaid Rent, which
credit if any shall be paid in 4 equal monthly installments.
(c) In the event of a breach by Tenant of any of the terms hereof,
Landlord shall have the right of injunction to restrain the same.
(d) Landlord and Tenant hereby mutually, knowingly, irrevocably,
voluntarily and intentionally waive trial by jury in any action,
proceeding or counterclaim brought by either party hereto against the
other in any way connected with this Lease. Each party further
warrants and represents that it has reviewed this waiver with legal
counsel and that each waived its jury trial rights following
consultation with legal counsel. This waiver shall apply to any and
all subsequent amendments and any other agreements relating to the
subject matter hereof. In the event of litigation, this lease may be
filed as a written consent to a trial by court, sitting without jury.
SECTION 20
NO WAIVER
The failure of either party to insist, in any one instances, upon strict
performance of any covenants of this Lease, or to exercise any options herein
contained, shall not be construed as a waiver or relinquishment for the future,
of such covenant or option, but the same shall continue and remain in
LEASE - HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
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36 months
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full force and effect. Even though Landlord has consented that this Lease may be
assigned or the premises sublet, any assignee may not further assign or any
sub-tenant may not sublet without express consent in writing by Landlord.
WITNESS the hands and seals of the parties hereto as of the day and year
first above written.
ATTEST/WITNESS: LANDLORD-Hydromer, Inc.
__________________________ BY: _______________________(SEAL)
ATTEST/WITNESS: TENANT-Biosearch Medical Products, Inc.
__________________________ BY: _______________________(SEAL)
LEASE - HYDROMER, Inc. to BIOSEARCH MEDICAL PRODUCTS, Inc.
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Schedule A
Partition of premises into 16,500 sq ft leasehold.
******INSERT DRAWING HERE*****
Schedule A
[GRAPHIC OMITTED]
Graphical Presentation of ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
[GRAPHIC OMITTED]
Graphical Presentation of Parking Plan for Hydromer & Biosearch