Purchase Agreement dated October 6, 2005 between Wilshire Enterprises, Inc. and Jewel Corp. PURCHASE AGREEMENT
Exhibit
10.40
Purchase
Agreement dated October 6, 2005 between Wilshire Enterprises, Inc. and Jewel
Corp.
Contract
Date: October
6, 2005
| Seller: | Wilshire Enterprises, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇
▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
|
| with a copy to: | Wilentz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇, Box 10
Woodbridge,
New Jersey 07095-0958
Attention:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
| Buyer: | Jewel
Corp.
c/o
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇,
Deutsch, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇-▇▇▇.▇▇▇
|
| Escrow Agent: | Wilentz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇, Box 10
Woodbridge,
New Jersey 07095-0958
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
| Real Property: | The property that is legally described 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
AND PROPERTY
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 subject to Due Diligence and other contingencies set
forth in this Contract.
Section
1.02. Inclusions in Property. Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of
Seller's right, title and interest in the Property upon the terms and conditions
of this Contract and subject to the Lease Agreement dated December 31, 2002
by
and between Wilshire Enterprises, Inc., successor by merger to Wilshire Oil
Company of Texas, and Trust Company of New Jersey, predecessor by merger with
North Fork Bank ("Tenant")
attached
hereto as Exhibit
"B" and
made
a part hereof. The term "Contract
Rights" means
all
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, 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, 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.
ARTICLE
II
PRICE,
ESCROW, AND PRORATIONS
Section
2.01. Purchase Price. The
total
purchase price (the "Price")
for
the
Property is ONE
MILLION SIX HUNDRED AND TWO THOUSAND AND FIVE HUNDRED AND 00/100 ($1,602,500.00)
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 FIFTY THOUSAND AND 00/100 ($50,000.00) DOLLARS ("Initial
▇▇▇▇▇▇▇ Money").
2
(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 ONE HUNDRED THOUSAND DOLLARS AND 00/100 ($100,000.00)
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 without notice
of
termination of this Contract by Buyer in accordance with the provisions of
Section 3.01, 3.02(b), 3.02(c) or 3.03(b) in all instances except in the ease
of
a Seller default. The Additional ▇▇▇▇▇▇▇ Money is nonrefundable upon its deposit
with the Escrow Agent in all instances except in the ease of a Seller
default.
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.
3
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 unless otherwise extended
in writing by Buyer and Seller.
(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 sixty (60) days from the Contract Date
("Closing
Date") on
a date
mutually agreed upon by Buyer and Seller at the office of Buyer's attorney
unless otherwise extended in writing by Buyer and Seller. 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 will be prorated between Seller and Buyer as of the Closing
Date,
based upon the actual amount of taxes 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 prorations are
based
upon estimates, then re-prorations will be made post-closing when tax bills
for
the year in which the Closing Date occurs are received. Seller will be
responsible for the payment of all real property taxes 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 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, 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 ,as follows: (i) all Property Assessments that are collected as
part of the real property taxes will be prorated as established above along
with
(and on the same basis as) the real property taxes; and (ii) all Property
Assessments that are collected/paid separate from the real property taxes but
that exist as of the Closing of Title also will be prorated in the same manner
as real estate taxes.
4
(c) (i)
All
Property Assessments for Improvements which have been completed and confirmed
prior to Closing shall be paid by Seller; (ii) all Property Assessments for
Improvements which have been completed but not confirmed prior to Closing shall
be paid by Seller or an amount reasonably calculated to pay the Property
Assessment in full shall be withheld from the proceeds at Closing; and (iii)
any
unconfirmed Property Assessments for Improvements which have not been completed
prior to Closing shall be paid by Buyer.
(d) All
prepaid rents paid to Seller by Tenant 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. Buyer, after the Closing of
Title, will use its good faith efforts to collect any past due rents and other
damages that are owed to Seller from Tenant 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 Tenant if,
as
of the Closing of Title, Tenant has past due rents, Seller agrees that the
first
money received by Buyer from Tenant 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 Tenant 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) All
prorations will be made through the Closing Date (with the Seller being deemed
the owner of the Property on Closing Date).
5
(h) 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 l0% 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, in its sole and absolute discretion and for any reason, that the
Property is not satisfactory, then Buyer may terminate this Contract by
providing Seller with written notice of termination. Upon termination of this
Contract in accordance with the provisions of this Section 3.0 l, 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 a 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, in its sole and absolute discretion,
("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 Section 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) cure
all 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 from the Title Policy, or causing Buyer's title insurer
to
issue an endorsement insuring Buyer against loss or damage from the Title
Objections or to provide other affirmative assurances reasonably satisfactory
to
Buyer with regard to 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.
6
(b) If
Seller
has elected 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 ten (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 an acceptance of title
as described in the Title Report and Survey (except for items that Buyer's
title
insurer has agreed to delete or modify) and a waiver of Buyer's right to cancel
this Contract for a failure of Buyer's title contingency.
(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").
7
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
Tenant, 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 Tenant. 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,
a representative of Seller (to be designated for each property), and
Tenant.
(b) In
the
event that Buyer, in its sole and absolute discretion, 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.
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.
8
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 10 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.
(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.
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. 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.
9
(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."
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) | The Assignment and Assumption of Contracts, Leases and Other Rights ("Assignment") in the form attached as Exhibit "F"; | |
| (c) | 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; | |
| (d) | All keys, combinations, tenant leases, tenant histories, and the like pertaining to the Property that are in Seller's possession; | |
| (e) | Authorizations and resolutions from Seller authorizing the consummation of this sale; |
10
| (f) | A Non-Foreign Affidavit; | |
| (g) | Evidence of termination of all Project Contracts required to be terminated by Seller pursuant to other provisions of this Contract; | |
| (h) | Title affidavits, undertakings and any and all other documents reasonably required by the Buyer's Title Insurer to issue the Title Policy; | |
| (i) | A letter jointly signed by Seller and Buyer notifying Tenant that the Property has been sold to Buyer, advising Tenant to pay all rent to Buyer and containing other similar information reasonably required by Buyer; | |
| (g) | 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; | |
| (k) | 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 | |
| (l) | 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). |
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.
11
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 ninety (90) 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); or (iii) 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 an 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).
12
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 ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, 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.
13
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 diminimus (less than $1,000) amount.
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.
14
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.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
Executed
as of this Contract Date.
| Jewel Corp. | Wilshire Enterprises, Inc. | |||
| By: | By: | |||
|
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: | ||
|
|
||
16
EXHIBIT
"A"
TO
Legal
Description of the Property
The
Tax
Map Reference of the property conveyed hereby is Borough of ▇▇▇▇▇▇▇▇▇▇, Block
▇▇. ▇▇, ▇▇▇ ▇▇. ▇▇.
ALL
that
tract or parcel of land and premises, situate, lying and being in the Borough
of
▇▇▇▇▇▇▇▇▇▇ in the County of Bergen and State of New Jersey, more particularly
described as follows:
BEGINNING
at the intersection of the southeast line or side of Franklin Place with the
northwest side or line of Park Avenue and running; thence
1.
South
71 degrees 31 minutes West along the northeast side or line of Park Avenue
87.50
feet; thence
2.
North
18 degrees 29 minutes West and at right angles to Park Avenue 139.23 feet;
thence
3.
North
45 degrees 30 minutes East and in a direction at right angles to Franklin Place
17.56 feet to the southwest line or side of Franklin Place; thence
4.
South
44 degrees 30 minutes East and along the southwest side or line of Franklin
Place 163.50 feet to the point or place of BEGINNING.
17
EXHIBIT
"B"
TO
(Lease
Agreement)
18
EXHIBIT
"C"
TO
The
Due
Diligence Documents consist of the following:
(a)
The
Lease Agreement dated December 31, 2002 by and between Wilshire Oil Company
and
Trust Company of New Jersey;
(b)
Most
recent property tax billing;
(c)
Copy
of existing survey with metes and bounds description;
(d)
Copy
of the Owner's Title Insurance Policy; and
(e)
Deed.
19
EXHIBIT
"D"
TO
(Deed)
20
CORP.
TO
IND. OR CORP - Plain Language
Prepared
by:(Print signer's name below signature)
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.
▇▇
▇▇▇
▇▇▇▇▇▇ 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.
|
________________________________
22
EXHIBIT
"E"
TO
Seller's
Contract Representations
E-l
--
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.
23
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 that do not render title unmarketable
or
affect the use of the Property, (ii) monetary liens to be defeased, and (iii)
those matters disclosed by any Existing Survey.
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)
All
rent rolls of the Property delivered to Buyer pursuant to this Contract
accurately set forth the lease status of the Property and all information
established in the rent rolls is true and complete in all material respects
as
of the
respective
dates.
(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.
24
EXHIBIT
"F"
TO
PURCHASE
AGREEMENT
(Assignment
of Leases, Contracts, and Other Rights)
25
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.
26
(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.
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.
27
(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.
28
"Seller"
_______________________________
a______________________________
By:
____________________________
Name:__________________________
Title:___________________________
"Buyer"
_______________________________
a______________________________
By:
____________________________
Name:__________________________
Title:___________________________
29
APPENDIX
ONE
the
ASSIGNMENT
OF LEASES, CONTRACTS, AND RIGHTS
(Rent
Roll)
[TO
BE PROVIDED ON THE CLOSING DATE]
30
APPENDIX
TWO
TO
ASSIGNMENT
OF LEASES, CONTRACTS, AND RIGHTS
(Lease
and Project Contracts)
[TO
BE PROVIDED ON THE CLOSING DATE]
31