EXHIBIT 10.32
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AGREEMENT OF PURCHASE
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THIS AGREEMENT, made this day of September, 2003 (hereinafter referred
to as this "Agreement") by and between C.V.N. ASSOCIATES, L.P., a Limited
Partnership having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ (hereinafter referred to as "Seller") and ABLE LABORATORIES, INC.,
having offices at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (hereinafter
referred to as "Purchaser").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the mutual covenants hereinafter contained,
and for other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged:
1. AGREEMENT TO SELL AND PURCHASE. Seller hereby agrees to sell and convey, and
Purchaser hereby agrees to purchase, subject to the conditions set forth herein,
all that certain plot piece or parcel of land, with buildings and improvements
thereon and together with any appurtenances or hereditaments appertaining
thereto (such buildings and improvements to be collectively referred to as the
"Building"), located at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
of Middlesex and State of New Jersey, being Lot 5.03, Block 390 on the tax map
of South Plainfield (collectively the "Property").
2. PURCHASE PRICE. The purchase price of the Property shall be
the sum of Three Million, Eight Hundred Four Thousand Seven
Hundred Twenty and No/100 ($3,804,720) Dollars (hereinafter
referred to as the "Purchase Price") payable at the closing by
Purchaser by wire transfer or certified, cashier's or attorney
trust account check, subject to the adjustments and prorations
described in Paragraph 9 hereof.
3. TITLE.
A. Purchaser, at its expense, shall obtain a title insurance
binder from a recognized title insurance company selected by Purchaser doing
business in the State of New Jersey (hereinafter referred to as the "Title
Company"), insuring "marketable title" (as hereinafter defined) to the Property.
For the purposes of this Agreement, a "marketable title" shall be deemed to be
such title as any recognized title insurance company doing business in the State
of New Jersey shall insure at standard rates and subject only to the usual
printed exceptions and to those title exceptions which Purchaser does not object
to or which Purchaser accepts as hereinafter provided and with an endorsement
insuring access and contiguity to all adjacent roads, highways, streets, alleys
and the like without any strips or gores. Purchaser, within thirty (30) days
after the date hereof, shall forward to Seller a copy of its title insurance
binder and specify in writing any alleged defects as set forth in said binder
and/or the Survey (as hereinafter defined), subject to Purchaser's timely
receipt of the Survey from Seller. Within seven (7) days following receipt of
the Purchaser's notice setting forth the title defect(s) (the "Seller Cure
Period"), Seller shall use its best efforts to cause any such defect(s) to be
removed as title exception(s) or to cause a similarly recognized title company
to insure marketable title over and above any alleged defect(s). Purchaser may,
on written notice to Seller, extend the Seller Cure Period in its sole
discretion. If Seller causes such defect(s) to be removed as aforesaid, or
marketable title to be insured for the Property
within the Seller Cure Period, as it may be extended as provided herein,
Purchaser shall be required to complete the purchase of the Property as herein
provided. If Seller is unable to remove such defect(s) as provided exceptions or
to cause marketable title to be insured for the Property within the Seller Cure
Period despite Seller's best efforts, then Purchaser shall have the right, at
its sole option, to either: (i) accept such title as Seller is able to convey
without any diminution in the Purchase Price and without change in any of the
terms and conditions herein; or (ii) terminate this Agreement. Purchaser shall
make its election to either accept such title as Seller shall be able to convey
or to terminate this Agreement within seven (7) days following the expiration of
the Seller Cure Period. Seller agrees at the Closing, to convey such title as is
described herein or as Purchaser shall be willing to accept in accordance with
the provisions hereof. B. If, at Closing, there are any monetary liens or
encumbrances against the Property (except for liens on the Property which have
been caused by Purchaser), Seller shall use any portion of the cash portion of
the Purchase Price and/or its additional funds necessary to satisfy the same,
and Seller shall simultaneously, either: (i) deliver to Purchaser instruments in
recordable form sufficient to satisfy such liens or encumbrances of record,
together with the cost of recording or filing said Instruments; or (ii) deposit
with the Title Company sufficient monies acceptable to the Title Company to
insure obtaining and recording of such satisfactions and the issuance of title
insurance to Purchaser free of any such liens or encumbrances. C. If a search of
title discloses judgments, bankruptcies or other returns against other persons
having names the same as or similar to that of Seller or partners of Seller,
Seller will on request deliver to Purchaser an affidavit, or such other evidence
as the Title Company may require, showing that such judgments, bankruptcies or
other returns are not against Seller or such partners of Seller.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
A. Seller hereby represents, warrants and covenants the
following, all of which representations, warranties and covenants shall be true
as of the date hereof and as of the Closing, failing which Purchaser may
terminate this Agreement:
(i) Seller has good, clear and marketable title to the
Property. Seller has paid for all labor, architectural services, supplies and
equipment, and utilities serving the Property for which a lien could arise. The
Property and the use thereof are in compliance with any restrictions,
conditions, covenants or agreements applicable to the Property whether contained
in any deed, agreement, order or judgment of any judicial or administrative
authority or otherwise. With the exception of this Agreement, there is no
outstanding option or right to purchase the Property, or any part thereof. To
the best of Seller's knowledge, all buildings, driveways and other improvements
on the Property are within its boundary lines, and no improvements on adjoining
properties extend across the boundary lines on the Property.
(ii) Seller owns all fixtures free of any liens and/or
encumbrances.
(iii) Seller has no actual knowledge of, and has received
no notice of any outstanding violation of any governmental law, rule, statute,
ordinance or regulation, including without limitation Environmental Laws, as
hereinafter defined, affecting the Property or any contiguous properties.
(iv) To the best of Seller's knowledge, all permits,
licenses and approvals required for any work performed on, at or to the Property
have been obtained.
(v) There are no actions, suits or proceedings pending or,
to the knowledge of Seller, threatened against or affecting Seller or the
Property, at law or in equity, or
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before any federal, state or municipal governmental or quasi-governmental
department, commission, board, bureau, body, authority, official agency or
instrumentality which, if determined adversely to Seller, would in any way
affect the Property, the operation thereof, or this transaction.
(vi) To the best of Seller's knowledge, the Property is not
located in a designated flood plain/zone.
(vii) Seller has no knowledge or notice of any application
for any zoning change or pending zoning ordinance amendment which would affect
the Property.
(viii) To the best of Seller's knowledge, the Property and
the present use and condition thereof do not violate any zoning regulations
applicable to the Property, as modified by any duly issued variances.
(ix) To the best of Seller's knowledge, no spills,
discharges, releases, storage, disposal, deposits or emplacements of any
Hazardous Substances have occurred on the Property or any contiguous properties.
(x) To the best of Seller's knowledge, there are no
underground tanks located on the Property,
(xi) Seller has full power and authority to own the
Property and the fixtures.
(xii) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated herein, will violate any
law, rule, regulation, writ, judgment, injunction, decree, determination, award
or other order of any court, government, or governmental agency or
instrumentality, domestic or foreign, or conflict with or result in any breach
of any of the terms of, or the creation or imposition of any mortgage, deed of
trust, pledge, lien, security interest or other charge or encumbrance of any
nature pursuant to the terms of any contract or agreement to which Seller is a
party or by who Seller or any of the assets of Seller is bound.
(xiii) Seller has received no notice of any governmental
assessments made against the Property which are unpaid (except any ad valorem
taxes for the current tax year not yet due or payable).
(xiv) No service contracts, employee contracts, union
contracts, maintenance contracts, concession agreement, licenses, agency
agreements, or other agreements affecting the Property or the operation thereof
(collectively, the "Contract-Documents") will be in force at the Closing.
(xv) There are no leases or occupancy agreements affecting
the Property other than the lease between Seller and Purchaser dated November
29, 1984, as amended and/or extended, and no commissions are due now or in the
future in connections with the rental of any space in the Property.
B. Seller's representations contained in this Paragraph 4
shall survive Closing for a period of one (1) year.
C. As used herein, the term Environmental Laws shall mean: any
and all existing federal, state or local statutes, ordinances, regulations,
rules, executive orders, standards and requirements, including the requirements
imposed by common law, concerning or relating to the protection of health and
the environment, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq.; the
New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11b, et seq.;
the New Jersey Underground Storage of Hazardous Substances Act, N.J.S.A.
58:10A-21, et seq.; the New Jersey Water Pollution Control Act, N.J.S.A.
58:10A-1, et seq.; and/or the regulations
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promulgated in relation thereto, all as the same may be amended from time to
time. Any terms mentioned in this Agreement which are defined in any
Environmental Laws shall have the meanings ascribed to such terms in said
Environmental Laws; provided however, that if any such laws are amended so as to
broaden any term defined therein, such broader meaning shall apply subsequent to
the effective date of such amendment.
5. DUE DILIGENCE.
A. For sixty (60) days after the date hereof (hereinafter
referred to as the "Feasibility Period"), Purchaser shall have the right to
conduct tests on the soil or other substrate, surface water, groundwater or any
Improvement on the Property, to determine the availability of utility services,
to review all Due Diligence Documents, as hereinafter defined, and to conduct
such other Investigations and inquiries and meet with such governing authorities
as Purchaser deems necessary to determine, in Purchaser's sole and absolute
discretion, the suitability of the Property. Purchaser's Investigation of the
Property may include, without limitation, the availability of such municipal
variances and approvals as may be required by Purchaser and such physical
inspections of the Property as Purchaser shall deem necessary. If Purchaser
determines, during the Feasibility Period, for any, reason, in Purchaser's sole
and absolute discretion, that the Property is not suitable, Purchaser shall give
Seller written notice to that effect, within three (3) days after the expiration
of the Feasibility Period, and on Seller's receipt of such notice, this
Agreement shall automatically terminate. In such event, Purchaser shall
substantially restore the Property to its former condition, whereupon there
shall be no further liability of either party to the other with respect to the
Property pursuant to the terms of this Agreement.
B. (i) During the Feasibility Period, Purchaser and
Purchaser's employees, agents, representatives and contractors shall have the
right to enter upon the Property for purposes of making such surveys,
engineering studies, feasibility studies, environmental assessments, general
inspections and other customary and reasonable studies, inspections and tests as
Purchaser deems necessary.
(ii) All entry shall be at the sole risk and expense of
Purchaser and its employees, agents, representatives and contractors. Purchaser
shall Indemnify and hold harmless from and against any and all claims, costs,
injury or damages of any kind arising out of the performance of Purchaser's due
diligence investigation by Purchaser, Its employees, agents or representatives.
C. As used herein, Due Diligence Documents shall mean the
following:
(i) All plans, as-built plans, engineering plans, designs,
reports or drawings relative to the Building to the extent in possession of
Seller;
(ii) All environmental reports, inspection results or
communications with the New Jersey Department of Environmental Protection
("NJDEP") relative to the Property;
(iii) All appraisal reports relative to the Property;
(iv) An itemization of operating expenses relative to
operation of the Property;
(v) All tax bills relative to the Property within the last
three (3) years;
(vi) All insurance policies relative to the Property within
the last three (3) years;
(vii) All utility bills relative to the Property within the
last three (3) years;
(viii) All public notices relative to the Property of any
special assessments, improvements or any other public project impacting the
Property in any way, received by Seller within the last three (3) years;
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(ix) All notices of any land use or development
applications impacting the Property or otherwise required by the Municipal Land
Use Law, N.J.S.A. 40:55D-1 et seq., received by Seller within the last three (3)
years;
(x) All notices of violation relative to the Property
received by Seller;
(xi) All Certificates of Occupancy relative to the
Property;
(xii) All permits, approvals or certifications relative to
the Property;
(xiii) All service or maintenance agreements in effect
relative to the Property; and
(xiv) Such other documents that may reasonably be requested
by Purchaser.
6. CLOSING. The closing of title (hereinbefore and hereinafter
referred to as the "Closing") shall take place at the office of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, P,C., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, at ten
o'clock in the forenoon on the date that is ninety (90) days after the date
hereof; provided, however, that if such date shall be a Saturday, Sunday or
legal holiday, then the Closing shall take place on the first business day
thereafter (hereinafter referred to as the "Closing Date"). The Closing Date may
be adjourned by Purchaser for a reasonable time to accommodate NJDEP clearance
of this transaction, as provided in Paragraph 14.
7. CLOSING REQUIREMENTS.
A. At the Closing, Seller shall execute and deliver to
Purchaser at Seller's sole cost:
(i) a bargain and sale deed with covenants against grantors
acts as herein provided (hereinafter referred to as the "Deed");
(ii) an affidavit of title, the form and substance of which
shall be subject to the reasonable approval of the Title Company;
(iii) a certification of non-foreign status in accordance
with Section 1445 of the Internal Revenue Code of 1986, as amended;
(iv) Seller's certification that the representations and
warranties herein are true and accurate as of the Closing in material respects;
(v) originals of the Due Diligence Documents and all other
documents and records relating to the Property as are in the possession of
Seller and kept in the normal course of business;
(vi) a ▇▇▇▇ of sale, dated as of the Closing, in form and
substance satisfactory to Purchaser, conveying all fixtures to Purchaser free
and clear of any liens, charges or encumbrances;
(vii) keys to the Property (if any);
(viii) a certificate of occupancy for the Property, if
required by the Borough of South Plainfield;
(ix) an assignment to Purchaser of the current lease
between Seller and Able Laboratories, Inc.;
(x) an assignment to Purchaser of those service and
maintenance agreements relative to the Property which Purchaser has elected in
writing to assume, such other agreements to be cancelled by Seller prior to or
as of Closing; and
(xi) such other instruments as may be reasonably required
by Purchaser's attorney or the Title Company to effectuate the within
transaction.
B. At the Closing, Purchaser shall execute and deliver to
Seller:
(i) The Purchase Price in accordance with Paragraph 2
hereof;
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(ii) such other documents and/or instruments as may be
reasonably required by Seller's attorney or the Title Company to effectuate the
within transaction.
C. Seller shall deliver drafts of the closing documents set
forth in section A above at least three (3) days prior to the Closing Date.
8. POSSESSION AND LEASES. Seller shall deliver to Purchaser, and
Purchaser shall accept possession of the Property from Seller at the time of the
Closing free and clear of any rights of tenants or other occupants and
thereafter, Purchaser shall be entitled to take any rents, issues and profits of
the Property to its own use.
9. CLOSING ADJUSTMENTS. Real estate taxes, assessments and sewer
rents, if any, on the basis of the fiscal year for which assessed, the cost of
fuel based upon the last invoice, electricity, gas, water charges and other
similar expenses shall be apportioned and adjusted as of 11:59 p.m. on the day
before the Closing. In addition to the above, the Purchaser shall be responsible
for $10,000.00 of the real estate transfer fee which amount shall be adjusted on
the date of closing.
10. ASSESSMENTS. If, prior to the Closing, the Property or any
part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in annual installments of which the
first installment is then a charge or lien, or has been paid, then for the
purpose of this Agreement all the unpaid installments of any such assessment
shall be deemed to be due and payable and to be liens upon the Property affected
hereby and shall be paid and discharged by Seller upon delivery of the Deed.
Seller, at Seller's sole cost and expense, shall comply with the requirements of
any and all notices relating to the Property which may be issued by municipal or
other public authorities up to the date of the Closing and shall pay for all
work and improvements done or ordered to be done up to the Closing by any such
authority which may result in the imposition of a lien against the Property,
Seller hereby agrees to give to Purchaser a copy of any notice received by
Seller in respect of any threatened or actual requirement or assessment against
the Property. Seller hereby agrees that it will not file a tax appeal after the
date hereof.
11. RISK OF LOSS AND CONDEMNATION.
A. Seller assumes the risk of loss or damage to the Property
beyond ordinary wear and tear until delivery of the Deed to Purchaser at the
Closing. In the event of any insured casualty, Seller shall, at the sole option
of Purchaser, either: (i) repair the damage to the Property prior to the
Closing; or (ii) assign the entire proceeds (including the right to receive
proceeds) to Purchaser at the Closing and pay any deductible to Purchaser at the
Closing. If however, there is any damage or injury caused to the Property,
beyond normal wear and tear, for which there is no insurance coverage, or the
damage or injury is insured but it is such that the cost of restoration is
reasonably estimated by Purchaser to exceed fifteen (15%) percent of the
Purchase Price, then, in either event, Purchaser may terminate this Agreement by
written notice to Seller given within thirty (30) days after the damage occurs
unless such damage was caused by or arose out of the occupancy of the Buyer. If
this Agreement is so terminated, there shall be no further obligations
hereunder.
B. In the event that, prior to the Closing, all or
substantially all of the Property shall be condemned or taken as the result of
the exercise of the power of eminent domain, then and In such event, this
Agreement shall be deemed terminated without further liability on the part of
either party. In the event that, prior to the Closing, less than all or
substantially all of the Property
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shall be condemned or taken as the result of the exercise of the power of
eminent domain, and Purchaser in its sole discretion shall determine that: (i)
the remaining portion of the Property is not suitable for its intended business
operations on the Property, then Purchaser may terminate this Agreement without
further liability hereunder on the part of either party; or (ii) the remaining
portion of the Property is suitable for its intended business operations on the
Property, then Purchaser and Seller shall have the right to participate jointly
in the condemnation proceedings and the proceeds thereof shall belong to Seller,
but Purchaser shall be entitled to a credit against the Purchase Price in an
amount equal to said proceeds unless such partial condemnation proceedings shall
be pending on the Closing Date, in which event there shall be no such credit
and, at the Closing, Seller shall assign all of its rights and interest in said
proceedings to Purchaser.
12. ASSIGNMENT. This Agreement may not be assigned by Purchaser
without the consent of Seller, except to an entity controlled by Purchaser.
13. BROKERAGE. Each party represents and warrants to the other
that it dealt with no broker or other person entitled to claim fees, commissions
or other compensation for such services in connection with the negotiations,
execution and delivery of this Agreement. Based upon the aforesaid warranty and
representation, each party agrees to defend, indemnify and hold the other party
harmless from and against any and all claims for finders' fees or brokerage
commissions or other compensation which may at any time be asserted against the
indemnified party founded upon a claim that the substance of the aforesaid
representation of the indemnifying party is untrue, or incurred by the
indemnified party in connection with this indemnification provision.
14. ENVIRONMENTAL MATTERS.
A. Purchaser, at its sole cost and expense, shall be
responsible for obtaining a Negative Declaration from the NJDEP. If the NJDEP
determines that a clean-up plan be proposed and that a clean-up be undertaken
because of spills or discharges of hazardous substances or wastes at the
premises which occurred during the Purchaser's occupancy of the Property, then
Purchaser shall, at its own expense, prepare and submit the required plans and
carry out the approved plans. Seller shall cooperate with Purchaser's efforts to
obtain NJDEP clearance for this transaction.
B. Survival.
The representations, warrants, covenants and other
obligations contained in paragraph 14 hereof shall survive closing.
D. Conflict.
In the event of any conflict between the terms of this
paragraph 14 and any other terms of this Agreement, the terms of this paragraph
14 shall control.
15. WAIVER OF CONDITIONS.
A. Purchaser and Seller each shall have the right, in the
sole and absolute exercise of their respective discretion, to waive any of the
terms or conditions of this Agreement which are strictly for their respective
benefits and to complete the closing in accordance with the terms and conditions
of this Agreement which have not been so waived, unless otherwise specifically
provided herein, any such waiver shall be effective and binding only if made in
writing and delivered at or prior to Closing.
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B. No waiver by either party of any failure or refusal by the
other party to comply with its obligations hereunder shall be deemed a waiver of
any other or subsequent failure or refusal by the other party so to comply.
16. ENTIRE AGREEMENT. This Agreement contains the final and
entire agreement between the parties hereto and they shall not be bound by any
terms, conditions, statements, warranties or representations, oral or written,
not contained herein. All understandings and agreements heretofore made between
the parties are merged in this Agreement, which alone fully and completely
expresses the agreement of the parties and which may not be changed, modified or
terminated except by a written instrument signed by the parties, or their
respective counsel.
17. CHOICE OF LAW. This Agreement shall be interpreted in
accordance with the laws of the State of New Jersey.
18. EXECUTION BY BOTH PARTIES. This Agreement shall not become
effective and binding until fully executed by both Purchaser and Seller. The
"date of execution" of this Agreement and the "date hereof' shall mean the date
upon which the later of Purchaser's or Seller's signature was affixed hereto and
each party has received a fully executed copy of this Agreement.
19. SEVERABILITY. If any clause or provision of this Agreement is
held to be illegal, invalid or unenforceable, or the application thereof to any
person or circumstance shall to any extent be illegal, invalid or enforceable,
under present or future laws effective during the term hereof or of any
provisions hereof which survive the Closing, then and in any such event, unless
such invalidity, illegality or unenforceability results in a failure of
consideration to either party hereto, it is the express intention of the parties
hereto that the remainder of this Agreement, or the application of such clause
or provision other than to those as to which it is held illegal, invalid or
unenforceable, shall not be affected thereby, and each clause or provision of
this Agreement and the application thereof shall be legal, valid and enforceable
to the fullest extent permitted by law.
20. GENDER. As used in this Agreement, the masculine gender shall
include the feminine or neuter genders and the neuter gender shall include the
masculine or feminine genders, the singular shall include the plural and the
plural shall include the singular, wherever appropriate to the context.
21. BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of Seller and Purchaser and their respective heirs,
administrators, successor and assigns, except as otherwise provided herein.
22. FURTHER ASSURANCES. Each party agrees that, at any time or
from time to time, either at or following the Closing, upon written request of
the other party, it shall execute and deliver all such further documents and do
all such other acts and things as reasonably may be required to confirm or
consummate the within transaction, including, but not limited to, the
preparation, execution and delivery of documents and the furnishing of all
information required pursuant to the Internal Revenue Code and/or any rules,
regulations or requirements thereunder, relating to the transaction contemplated
hereunder.
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23. CAPTIONS. The captions preceding the Paragraphs of this
Agreement are intended only as a matter of convenience and for reference and in
no way define, limit or describe the scope of this Agreement or the intent of
any provisions hereof.
24. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be either (i) personally
delivered; (ii) mailed in a United States Post Office depository, certified or
registered mall, return receipt requested, postage prepaid; or (iii) delivered
by an overnight courier delivery service, with a receipt provided therefor and
charges prepaid addressed to the parties at the addresses set forth above and to
the attention of the undersigned, with copies as follows;
A. If to Purchaser, to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., c/o ▇▇▇▇▇▇▇
▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
B. If to Seller, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., c/▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, P.C., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
Either party may designate a different person or address by notice to the other
party given in the manner aforesaid.
25. PREPARATION OF AGREEMENT. This Agreement shall not be
construed more strongly against either party regardless of who is responsible
for its preparation.
26. JOINT OBLIGATIONS. All obligations and liabilities of Seller
and Purchaser set forth herein shall be joint and several if more than one
Seller or Purchaser, as the case may be, is named herein.
27. SURVIVAL. Except as expressly set forth herein to the
contrary, all covenants, conditions and representations contained in this
Agreement, which by their nature, impliedly or expressly, involve performance,
in any particular, after the Closing, or which cannot be ascertained to have
been fully performed until after the Closing, shall survive the Closing. This
provision shall be effective as to all such covenants, conditions and
representations, notwithstanding that as to some of them, it may be expressly
stated that they survive.
28. MORTGAGE CONTINGENCY. This Agreement and all of Purchaser's
obligations hereunder are contingent upon Purchaser arranging and obtaining at
it sole cost and expense a mortgage loan commitment (hereinafter referred to as
the "Loan Commitment") in the principal amount of $3,600,000.00 secured by a
first mortgage on the Property. Seller shall cooperate in furnishing any
information which may be reasonably requested by Purchaser, any mortgage broker
representing Purchaser, or any entity considering a loan application of
Purchaser with respect to its application for the Loan Commitment. In the event
Purchaser shall not have obtained the Loan Commitment within ninety (90) days
from the date hereof, then Purchaser may thereafter terminate this Agreement by
notice to Seller given within (10) days after the expiration of the aforesaid
ninety (90) day period. Upon receipt of said notice of termination, this
Agreement shall cease and terminate, and neither party shall have any further
rights or obligations to the other hereunder.
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Witness: C.V.N. ASSOCIATES, L.P.
By:
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Witness: ABLE LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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10