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No. .15-.70
Date of Adoptio Marsh 12, 2015
RESOLUTION OF THE BOROUGH OF CARTERET AUTHORIZING
THE SALE AND CONVEYANCE OF PROPERTY TO RJ
HOSPITATLIY GROUP INC
WHEREAS, the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A -1 et
seq., as amended and supplemented (the "Redevelopment Law"), provides a process for
municipalities to participate in the redevelopment and improvement of areas in need of
redevelopment; and
WHEREAS, in accordance with the Redevelopment Law, the Borough of
Carteret (the "Borough ") declared that certain property in and around Minue Street as an
area in need of redevelopment (collectively, the "Redevelopment Area "); and
WHEREAS, the Borough adopted a redevelopment plan for the Redevelopment
Area (the "Redevelopment Plan "), which shall control the redevelopment of the
Redevelopment Area; and
WHEREAS, the Borough has conditionally designated RJ Hospitality Group Inc
(the "Redeveloper ") as the redeveloper for the Property, as such term is defined in the
hereinafter defined Purchase and Sale Agreement; and
WHEREAS, the Borough is the fee title owner of the Property and des to sell
the Property to the Redeveloper pursuant to the terms of that certain Purchase and Sale
Agreement, attached hereto as Exhibit A in substantially final form.
NOW, THEREFORE, BE IT RESOLVED as follows:
Section 1. The Purchase and Sale Agreement is hereby authorized to be
executed and delivered on behalf of the. Borough by either the Mayor, Chief Financial
Officer or Director of Law, in substantially the form attached hereto as Exhibit A with
such changes as the Mayor, Chief Financial Officer or Director of Law (each an
"Authorized Officer "), in their respective sole discretion, after consultation with such
counsel and any advisors to the Borough (collectively, the "Borough Consultants'), as
such Authorized Officer deems necessary, desirable or convenient in such Authorized
Officer's sole discretion. All actions of the Authorized Officers and the Borough
Consultants taken prior to the date of adoption hereof are hereby ratified and approved.
Section 2. The Borough Clerk is hereby authorized and directed, upon the
execution of the Memorandum of Agreement in accordance with the terms of Section 1
hereof, to attest to the Authorized Officer's execution- -of the Purchase and Sale
Agreement and is hereby further authorized and directed to thereupon affix the seal of the
Borough to the Purchase and Sale Agreement.
Section 3. The Authorized Officers are each hereby further authorized to
perform any act, execute or acknowledge and deliver any other document, instrument,
deed or certificate, including without limitation, the Escrow Agreement, as such term is
NO. 1 5 -70
defined in and the form of which is attached to, the Purchase and Sale Agreement, which
the Authorized Officer, after consultation with the Borough Consultants, deems
necessary, desirable or convenient and the Borough Clerk is hereby further authorized
and directed to attest to such execution or acknowledgement and to affix the seal of the
Borough to any such document, instrument or certificate.
Section 4. All actions of the Authorized Officers and the Consultants taken
prior to the date of adoption hereof in connection herewith are hereby ratified and
approved. -
Section 5. This resolution shall take effect at the time and in the manner
prescribed by law.
Section 6. Upon the adoption hereof, the Borough Clerk shall forward
certified copies of this resolution to Matthew C. Karrenberg, Esq., DeCotiis, Fitzpatrick,
& Cole, LLP, Special Redevelopment Comisel to the Borough.
Adopted this 12th day of March, 2015
and certified as a trite copy of d
o riginal on March 13, 2015.
KkI IIM M. BARMY, Mc
Msricipal Clerk
RECORD OF COUNCIL VOTE
COUNCILMAN I
YES
NO
NV
A.n.
COUNCILMAN
YCS
NO
NV
A.6.
X
K[tlM
x
X
T
X
X
X
X - Indicate Vote Art - Absent NV - Not Voting
XOR - Indicate., Vote to Overrule Vedt
Adapted at a meeting of the Municipal Council
M arch 12, M
CLERK 61 1
PURCHASE and SALE AGREEMENT
THIS PURCHASE and SALE AGREEMENT (this " Agreement ") is made this day
of March, 2015, by and between THE BOROUGH OF CARTERET, a municipal corporation of
the State of New Jersey with offices at Carteret Borough Hall, 61 Cooke Avenue, Carteret, New
Jersey 07008 (the "Seller "), and RJ HOSPITALITY GROUP INC., a New Jersey corporation with
offices at 277 Durham Avenue, South Plainfield, New Jersey 07080 and its Permitted Assigns, as
such term is defined herein, (the ` Buyer " and together with the Seller, the " Parties ").
RECITALS
WHEREAS, the Seller is the owner of certain real property, which is identified as Block
2701, Lots 11 and 12 on the tax map of the Borough of Carteret, County of Middlesex, New Jersey,
as more particularly described on Exhibit A attached hereto ( " Lots 11 & 12 "); and
WHEREAS, the Seller is the owner of certain real property, which is identified as Block
Lot on the tax map of the Borough, a portion of which fronts Lots 11 & 12 (the
" Frontage Property "); and
WHEREAS, the Seller intends to subdivide the Frontage Property such that the portion that
fronts Lots 11 & 12 shall constitute a separate block and lot on the tax map of the Borough as more
particularly described on Exhibit B attached hereto (the " Subdivided Frontage Property "); and
WHEREAS, the Seller has agreed to sell and convey Lots 11 & 12 and the Subdivided
Frontage Property (collectively the "Pro er ") to Purchaser and the Purchaser has agreed to
purchase from the Seller the Property, subject to the terms and conditions set forth in this
Agreement; and
WHEREAS, the Parties seek to set forth their agreement in a comprehensive document
setting forth their mutual understanding,
NOW, THEREFORE, in consideration of the above recitals and the mutual promises,
covenants and undertakings contained herein, and for good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged by the Seller and the Purchaser, the Parties hereby
agree as follows:
1. THE PROPERTY The Seller agrees to sell to Purchaser and Purchaser agrees to
buy from the Seller, the Property together with all of the following, if any (all of which shall be
deemed to be included in the defined term "Property" as same is used herein): all easements, rights
of way or use, licenses, permits and rights to the same belonging to or appurtenant to the Property;
any strips or gores of land adjoining the Property; all mineral, oil, and gas rights and profits, water
rights and sub - terrain rights; all sewer and utility rights allocated to the Property and the
improvements thereon; all right, title, and interest of Seller in and to any roads, streets and ways,
public or private, serving the Property; and appurtenances to the Property; all right, title and interest
of Seller in and to any land lying in the bed of any street, road, avenue, lane or right -of -way in front
of, adjoining or adjacent to the Property whether currently existing or to be obtained by Seller
hereunder, other than any of the right, title or interest set forth herein that the Seller, as a municipal
corporation of the State, may have, or otherwise may be required to hold, preserve, possess, occupy
or maintain, as a matter of law.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price. Purchaser agrees to pay and the Seller agrees to accept, as and
for the total purchase price for the Property the sum of One Million Two Hundred Thousand Dollars
($1,200,000) (the " Purchase Price ") to be paid as follows:
(a) The sum of Three Hundred Thousand Dollars ($300,000) Dollars (the
" Deposit ") shall be paid within seven (7) days of Purchaser's attorney's receipt of a fully
executed Agreement and such amount shall be held in escrow by DeCotiis, FitzPatrick & Cole,
LLP (the " Escrow Agent "), subject to and in accordance with the terms of the Escrow
Agreement, attached hereto and made a part hereof as Exhibit C .
(b) The sum of Nine Hundred Thousand Dollars ($900,000) Dollars in Acceptable
Funds on the Closing Date. As used in this Agreement, the term " Acceptable Funds shall
mean a reference to a credit, via wire transfer, in inunediately available federal funds to the
trust account of the Escrow Agent.
If the transaction contemplated hereby does not close because of a default by the
Purchaser, then the Deposit, together with any and all interest accrued thereon shall be
delivered to the Seller as liquidated damages. If the transaction does not close for any other
reason, the Deposit, exclusive of any interest accrued thereon which shall be delivered to the
Seller, shall be delivered to the Purchaser, except as otherwise expressly provided in this
Agreement or the Escrow Agreement.
In the event the Purchaser fails to pay any amount when due, the Seller shall have the
right, by written notice to the Purchaser and Escrow Agent, to terminate this Agreement for
default by the Purchaser, in which case the Purchaser shall have no further rights hereunder,
and the Seller shall be entitled to retain all sums previously paid by the Purchaser as liquidated
damages.
2.1. No Endorsed Check In no event shall the Seller be required to accept any endorsed
check for any payment required to be made under this Agreement.
2.2. Interest. Interest shall be earned on the Deposit and, subject to Section 2.1 of this
Agreement, shall be delivered to the Seller at Closing, without any setoff or reduction of the Purchase
Price. The Seller's Federal Tax Identification Number is: The Purchaser's Federal Tax
Identification Number is:
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3. RESERVED
4. TITLE Within fourteen (14) days of Purchaser's attorney's receipt of a fully
executed Agreement, Purchaser shall obtain and provide to Seller, a title search (the " Title Report ")
issued by a title company licensed to conduct business in New Jersey. At Closing, title to the
Property shall be good, marketable and insurable at regular rates. Title conveyed by Seller to
Purchaser shall be good and indefeasible fee simple title, free and clear from all liens, claims,
encumbrances and other rights or privileges to use or occupy the Property, or any portion thereof,
other than the Permitted Exceptions, hereinafter defined in Section 4.1 The Deed will contain a
limited right of reverter to the Seller, which the Seller may but is not obligated to exercise in the
event that certain Redevelopment Agreement, by and between the Purchaser and the Carteret
Redevelopment Agency, a "redevelopment agency" established by the Seller, dated as of March _,
2015 (the " Redevelopment Agreement ", a copy of which is attached hereto as Exhibit D ) is
terminated by reason of an Event of Default attributable to Purchaser's acts or omissions thereunder.
Such right of reverter shall be subordinate to any mortgage recorded on the Property.
Notwithstanding anything contained herein to the contrary, the Seller agrees to execute and to the
recordation of an instrument extinguishing such right of reverter as may be necessary to obtain
construction financing for the improvements to be constructed on the Property.
In addition, if there are matters that appear in the Title Report that are not Permitted
Exceptions and would unreasonably interfere with Purchaser's intended use of the Property (the
" Exceptions "), then Purchaser shall give written notice to Seller specifying the Exceptions to which
the Purchaser objects. If, within seven (7) days of Seller's receipt of such notice, Seller does not
provide Purchaser written assurances that it has remedied or agrees to remedy the Exceptions to
which Purchaser objects prior to Closing at Seller's sole cost and expense, then Purchaser shall have
the option, in its sole discretion, to either: (i) accept title to the property subject to the Exceptions;
(ii) terminate this Agreement; or (iii) if the Parties agree, extend the time period within which Seller
may remedy such Exceptions. In the event of termination pursuant to this Section 4 , neither Party
shall have any further obligation to the other with respect to this Agreement, except as to those
obligations of Purchaser which are expressly identified herein as surviving the termination of this
Agreement.
4.1 Permitted Exceptions to Title The Property is being sold subject to the
following exceptions to title (the " Permitted Exceptions "): (a) the lien of real estate taxes not yet due
and payable; (b) all existing building, zoning and other city, state, county or federal laws, codes and
regulations affecting the Property; (c) the Redevelopment Agreement; and (d) such other matters set
forth as Permitted Exceptions on Exhibit E attached hereto.
5. PURCHASER'S ENVIRONMENTAL DUE DILIGENCE
5.1 Due Diligence Period. Purchaser shall have a period of thirty (30) days from
and after the date on which a fully executed copy of this Agreement shall have been delivered to
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Purchaser, to conduct any and all Due Diligence (as such term is defined in Section 5.2 hereot) that it
may deem advisable with respect to the Property (the " Due Diligence Period ").
5.2 Due Diligence. During the Due Diligence Period, Purchaser and /or its
agents, contractors, engineers, attorneys, employees, invitees and representatives ( " Due Diligence
Team ") shall have the right to enter the Property during normal business hours to conduct any and
all non - invasive studies or investigations. All such studies and investigations shall be conducted at
Purchaser's sole expense, without risk, cost or liability to Seller. Purchaser shall not disclose the
results of such studies or investigations, to extent permitted, to anyone, except the Due Diligence
Team, unless requested in writing by Seller to do so or as may be required by applicable law or the
order of a Court of competent jurisdiction. All reports obtained or produced during the Due
Diligence Period shall remain the property of the Purchaser. If the Agreement is terminated, the
terms and results of such reports shall not be disclosed by Purchaser any or its representatives.
Purchaser represents that all inspections will be conducted in accordance with all applicable laws,
rules and regulations and that it will promptly pay for all work or cause its consultants to pay for all
work, so that the Property shall remain free and clear of judgments, encumbrances, mechanics or
construction claims or liens.
5.3 Restoration of Property. All work performed on the Property by
Purchaser's Due Diligence Team shall be conducted so as to minimize disturbance of the Property
to the greatest extent possible. Upon completion by Purchaser of any and all sampling or other
work on the Property, Purchaser shall restore the Property to the same condition which existed prior
to Purchaser's entry onto the Property.
5.4 Indemnity. Purchaser agrees to indemnify, defend in the first instance, and
hold harmless the Seller from any claims, liabilities, losses, costs, damages, penalties, and expenses
(including reasonable attorneys' fees) resulting from the acts or omissions of the Purchaser or the
Due Diligence Team while on the Property.
5.5 Insurance. At least three (3) days prior to the initial entry on the Property
by the Due Diligence Team, Purchaser shall notify Seller of its intended entry and furnish to the
Seller a certificate evidencing that Purchaser maintains insurance against claims for personal injury
(including death) and property damage, tinder a policy or policies of comprehensive general public
liability insurance of not less than $2,000,000.00 per occurrence in respect of bodily injury and
$2,000,000.00 per occurrence for property damage. Each such certificate: (i) shall name the Seller
and the Borough as additional named insureds, (ii) shall be on a per occurrence basis; (iii) shall
provide that it shall not be canceled without thirty (30) days prior written notice to the Seller, and
(iv) shall be written by a carrier licensed to do business in New Jersey.
5.6 Continued Access. Provided Purchaser does not exercise its right to
terminate this Agreement pursuant to Section 5.7 or as otherwise permitted pursuant to this
Agreement, Purchaser and the Due Diligence Team shall continue to have the right to enter the
Property, on reasonable prior notice, during normal business hours up to the date of Closing,
provided that after the completion of the Due Diligence Period, Purchaser obtains Seller's consent,
which consent shall not be unreasonably withheld, conditioned or delayed. Such prior notice to
coordinate access to the Property shall be made through the Seller's Director of Law, Robert J.
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Bergen, Esq. Notwithstanding the rights provided by this Section 5.6 upon completion of the Due
Diligence Period or written waiver of Purchaser's right to terminate prior to the end of the Due
Diligence Period, the Purchaser shall no longer have the option to terminate this Agreement.
5.7 Termination If pursuant to the Purchaser's Due Diligence during the Due
Diligence Period, (a) an environmental hazard is disclosed that is required to be remediated in
accordance with applicable law and the cost of such remediation, in the commercially reasonable
judgment of the Purchaser, would exceed $200,000, or (b) it is determined by an independent
geotechnical engineer that the ground constricting the Property is of such poor condition that
Purchaser's intended improvements cannot be constructed thereon, the Purchaser may elect not to
proceed with this transaction and to terminate this Agreement. Upon termination pursuant to the
terms set forth in this Section 5.7 this Agreement shall be void and of no further force and effect and
except as expressly set forth herein to the contrary the Parties shall be free from further liability to
one another. The Purchaser may, in its sole and absolute discretion, waive Purchaser's right to
terminate this Agreement during the Due Diligence Period, in whole or in part. If the Due Diligence
Period expires or Purchaser elects to waive its right to terminate this Agreement within the Due
Diligence Period, then the Purchaser shall no longer have the right to terminate this Agreement
pursuant to this Section 5 .
5.8 Reserved
5.9 Effect of Due Diligence Period. Purchaser acknowledges and agrees that,
Seller has not made, does not make and specifically negates and disclaims any representations,
warranties, covenants, or guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or fiiture, of, as to, concerning or with respect to the Property, including
without limitation: (a) the value, nature, quality or condition of the Property; (b) the water, soil,
environmental condition and geology of the Property; (c) the income to be derived from the Property;
(d) the suitability of the Property for any and all activities and uses which Purchaser may conduct
thereon; (e) the compliance of or by the Property or its operation with any laws, rules, ordinances,
regulations of any applicable govermnental authority or body, including without limitation, the
issuance or status of any permits, licenses or approvals; (f) the habitability, merchantability,
marketability, profitability or fitness for a particular purpose of the Property; (g) the manner or
quality of the construction or materials, if any, incorporated into the Property; (h) the manner,
quality, state of repair or lack of repair of the Property; (i) the accuracy or completeness of the Due
Diligence Documents; or 0) any other matter with respect to the Property. Seller has not made, does
not make and specifically disclaims any representations regarding compliance with any
enviromnental protection, pollution or land use laws, rules, regulations, orders or requirements,
including the existence in or on the Property of Hazardous Substances. " Hazardous Substances
shall mean and include any and all chemical, substance, material, waste or component thereof which
is now listed, defined or regulated as hazardous or toxic by or under any present federal, state or local
law, statute, act, rule, regulation, requirement, order, directive, code or ordinance, and all
amendments thereto, pertaining in any way to health, safety and /or the envi omnent. Purchaser
further acknowledges and agrees that it has been given the opporhmity to inspect the Property and
the operations therein. Purchaser shall rely solely on its own investigation of the Property and not on
any information provided or to be provided by Seller. Seller is not liable or bound in any manner by
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any verbal or written statements, representations or information pertaining to the Property, or the
operation thereof furnished by any real estate broker, agent, employee, servant or any other person.
Purchaser further acknowledges and agrees that, to the maximum extent permitted by law, the sale of
the Property as provided for herein is made on an "as is ", "where is" condition and basis "with all
faults ". The provisions of this Section shall survive delivery of the Deed and the Closing of title on
this matter, notwithstanding any other provision, term or condition of this Agreement.
5.10 Release By accepting the Deed and closing the transaction, Buyer, on behalf of itself
and its successors and assigns, shall thereby release Seller from, and waive any and all liabilities
against Seller for, attributable to, or in connection with the Property, whether arising or accruing
before, on or after the Closing and whether attributable to events or circumstances which arise or
occur before, on or after the Closing, including, without limitation, the following: (a) any and all
statements or opinions heretofore or hereafter made, or information furnished, by Seller to Buyer;
and (b) any and all liabilities with respect to the structural, physical, or environmental condition of
the Property, including, without limitation, all liabilities relating to the release, presence, discovery
or removal of any hazardous or regulated substance, chemical, waste or material that may be located
in, at, about or under the Property, or connected with or arising out of any and all claims or causes of
action based upon any and all federal, State, and local laws, statutes, ordinances, regulations, rules,
codes, consent decrees, judicial or administrative orders or decrees, directives or judgments relating
to pollution, damage to or protection of the environment, environmental conditions, or the use,
handling, processing, distribution, generation, treatment, storage, disposal, manufacture or transport
of Hazardous Substances, presently in effect or hereafter amended, modified, or adopted, including
if, as and to the extent applicable, the Comprehensive EnWromnental Response, Compensation and
Liability Act ( " CERCLA ") (42 U.S. C. sect. 9601 - 9675); the Resource Conservation and Recovery
Act of 1976 ( " RCRA ") (42 U.S.C. sect. 6901, et seq.), the Clean Water Act (33 U.S.C. sect. 1251, et
seq.); the New Jersey Spill Compensation and Control Act (the " Spill Ac ") ( N.J.SA. 58:10- 23.11, et
seq.); the Industrial Site Recovery Act, as amended ( " ISRA ") ( NJ.S.A. 13:1K -6, et seq.); the New
Jersey Underground Storage of Hazardous Substances Act ( J. S.A. 58:10A -21, et seq.), the New
Jersey Water Pollution Control Act ( N.J.SA. 58:10A -1 et seq.); the New Jersey Environmental
Rights Act ( N.J.SA. 2A:35A -1, et seq.); and the rules and regulations promulgated thereunder
( " Environmental Liabilities "); and (c) any implied or statutory warranties or guaranties of fitness,
merchantability or any other statutory or implied warranty or guaranty of any kind or nature
regarding or relating to any portion of the Property.
5.11 Assumption of Risk By accepting the Deed and closing the Transaction, Buyer shall
thereby assume and take the risk for the following: (a) any and all liabilities attributable to the
Property to the extent that the same arise or accrue on or after the Closing and are attributable to
events or circumstances which arise or occur on or after the Closing; and (b) any and all liabilities
with respect to the structural, physical or environmental condition of the Property, whether such
liabilities are latent or patent, whether the same arise or accrue before, on or after the Closing, and
whether the same are attributable to events or circumstances which may arise or occur before, on or
after the Closing, including, without limitation, all Environmental Liabilities.
5.12 No Financing Contingency Purchaser represents, warrants and agrees that its
obligation to purchase the Property pursuant to the terms of this Agreement is not contingent upon
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financing and that Purchaser shall have sufficient funds necessary to purchase the Property on the
Closing Date.
5.13 Survival. The provisions of this Article 5 shall survive Closing and termination of
this Agreement for any reason.
6. SELLER'S REPRESENTATIONS AND WARRANTIES
6.1 In addition to all other representations and /or warranties made by Seller
elsewhere in this Agreement, the Seller hereby represents and warrants to Purchaser as follows:
6.1.1 Seller is, and on the Closing Date shall be, duly formed, validly
existing and in good standing under the laws of the State of New Jersey. Seller has the power and
authority to enter into this Agreement, to perform its obligations under this Agreement and to
complete the transaction contemplated by this Agreement. This Agreement and the transaction
contemplated hereunder have been, and will be on the Closing Date, duly authorized and approved
by all necessary action by Seller in accordance with its organizational documents and governing law.
6.1.2 This Agreement has been duly executed and delivered by Seller and
constitutes a valid, binding and enforceable obligation of Seller in accordance with its terms, subject
to bankruptcy and other debtor relief laws. The person(s) executing this Agreement have been duly
authorized and empowered to so execute this Agreement and all documents necessary and
appropriate to consummate the transaction contemplated thereunder.
6.1.3 Seller is not a foreign person (as such term is defined in Section 1445
of the Internal Revenue Code as amended by the Foreign Investment in Real Property Tax Act of
1980) and the Seller each shall provide Purchaser with a FIRPTA Affidavit.
6.1.4 To the best of Seller's knowledge, the execution and delivery of this
Agreement and performance of the obligations set forth in this Agreement: (i) shall not be a breach
or violation of any agreement to which the Seller is a party and the Seller shall have obtained the
necessary approvals for the execution and performance of same, and (ii) do not conflict with any
agreement, indenture or other instrument, order, judgment, injunction, award or decree of any
governmental body, administrative agency, court, law, rule or regulation affecting the Seller or by
which the Seller or any of the Seller's assets or properties is or are bound.
6.1.5 During the term of this Agreement, the Seller shall not further sell,
convey, assign or contract to sell, convey, assign, or pledge, all or any part of the Property, nor
restrict the use of all or any part of the Property, nor take or cause to be taken any action in conflict
with this Agreement.
6.1.6 At the time of Closing, Seller shall not have entered or have pending
contracts of sale with respect to the Property or any portion thereof. Seller has not received any
notice of any moratorium, condemnation proceeding or proceedings or agreement in the nature of
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eminent domain or for the dedication of any part of the Property to any public or quasi - public agency
( " Takine ") in connection with the Property; and no such proceeding or agreement is contemplated.
6.1.7 No brokerage or leasing commission or other compensation is or will
be due or payable to any person, firm, corporation or other entity on account of the Property.
7. PURCHASER'S REPRESENTATIONS
7.1 In addition to all other representations and /or warranties made by Purchaser
elsewhere in this Agreement, the Purchaser represents and warrants to Seller as follows:
7.1.1 Purchaser is, and on the Closing Date shall be, duly formed, validly
existing and in good standing under the laws of the State of New Jersey and authorized to conduct
business in the State of New Jersey. Purchaser has the power and authority to enter into this
Agreement, to perform its obligations under this Agreement and to complete the transaction
contemplated by this Agreement. This Agreement and the transaction contemplated hereunder have
been, and will be on the Closing Date, duly authorized and approved by all necessary action by
Purchaser in accordance with its organizational documents and governing law. This Agreement and
all other documents, agreements and instruments executed and /or to be executed by Purchaser in
connection herewith have been duly authorized by all necessary action of the Purchaser and same
shall be duly executed and delivered by Purchaser at Closing.
7.1.2 This Agreement has been duly executed and delivered by Purchaser
and constitutes a valid, binding and enforceable obligation of Purchaser in accordance with its terms,
subject to bankruptcy and other debtor relief laws. The person(s) executing this Agreement have
been duly authorized and empowered to so execute this Agreement and all documents necessary and
appropriate to consummate the transaction contemplated thereunder.
7.1.3 Purchaser is not required to obtain any consent, approval or
authorization from, or to make any filing with, any person (including any governmental authority) in
connection with or as a condition to, the execution and delivery of this Agreement, the performance
of this Agreement by Purchaser of its obligations under this Agreement or the transaction
contemplated by this Agreement.
7.1.4 To the best of Purchaser's knowledge, the execution and delivery of
this Agreement and performance of the obligations set forth in this Agreement: (i) shall not be a
breach or violation of any agreement to which Purchaser is a party, and Purchaser has obtained the
necessary approvals for the execution and performance of same; and (ii) do not conflict with any
agreement, indenture or other instrument, order, judgment, injunction, award or decree of any
governmental body, administrative agency, court, law, rule or regulation affecting Purchaser or by
which Purchaser or any of its assets or properties is or are bound.
7.1.5 The Purchaser has not been served with notice of, and there are no
actions, suits, arbitrations or legal or administrative proceedings pending or threatened in any court,
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tribunal, agency or other forum against or that will affect the Purchaser's ability to consummate the
transactions contemplated by this Agreement.
7.1.6 No bankruptcy, insolvency, rearrangement or similar action or
proceedings, whether voluntary or involuntary, is or are pending or threatened against the Purchaser,
or to the best of Purchaser's knowledge, against any partner, member, affiliate or other related entity,
and the Purchaser has no intention of filing or commencing any such action or proceeding.
8. CONDITIONS PRECEDENT TO THE OBLIGATION TO CLOSE
8.1 Conditions Precedent to Purchaser's Obligation to Close.
Notwithstanding anything contained herein to the contrary, Purchaser's obligation to
consummate its acquisition and to make payment of the Purchase Price shall be subject to the
satisfaction on or before the Closing, each of the following conditions precedent:
8.1.1 The Seller delivering title to the Property in accordance with the
provisions hereof and a final examination of title to the Property shall reveal that no title defects or
exceptions exist other than Permitted Exceptions;
8.1.2 The Seller's warranties and representations herein shall be true and
correct in all material respects as of the date of Closing as if made on and as of that date;
8.1.3 At Closing, there shall be no administrative agency, litigation or
governmental proceeding of any kind whatsoever, pending or threatened against the Seller that would
materially and adversely affect the Property prior to or after Closing; and
8.1.4 The Seller shall not be in default of any material condition of this
Agreement.
8.2 In the event that any of the conditions precedent referred to above are not
fulfilled as of the date of Closing, then, upon written notice by Purchaser, the Seller shall have the
right to cure the condition precedent within a reasonable period of time following its receipt of notice
from Purchaser, not to exceed thirty (30) days. If the Seller cannot cure the defect within the thirty
(30) day period and Parties cannot agree upon fair and equitable resolution to address the unfulfilled
condition precedent and Close, then the Purchaser shall have the option to terminate this Agreement
by written notice to the Seller. Upon such termination this Agreement shall be void and of no further
force and effect and except as expressly set forth herein to the contrary the Parties shall be free from
further liability to one another.
8.3 Conditions Precedent to Seller's Obligation to Close.
Notwithstanding anything contained herein to the contrary, Seller's obligation to
consummate its transfer of title and to deliver Seller's Deliveries (hereinafter defined) shall be
subject to the satisfaction on or before the Closing, each of the following conditions precedent:
8.3.1 The Purchaser's warranties and representations herein shall be true
and correct in all material respects as of the date of Closing as if made on and as of that date;
8.3.2 At Closing, there shall be no administrative agency, litigation or
governmental proceeding or violation of any kind whatsoever, pending or threatened against the
Purchaser, that would materially and adversely affect the Purchaser's ability to Close; and
8.3.3 Purchaser shall not be in default of any material condition of this
Agreement.
8.3.4 Purchaser shall have executed and delivered, and there shall be no
default under, the Redevelopment Agreement or any and all other agreements, documents or
instruments referenced therein.
8.3.5 At Closing, the Redevelopment Agreement shall be filed and recorded
upon the Property in the office of the Middlesex County Registrar.
8.4 In the event that any of the conditions precedent referred to above are not
fulfilled as of the date of Closing, then, upon written notice by Seller, the Purchaser shall have the
right to cure the condition precedent within a reasonable period of time following its receipt of notice
from Seller, not to exceed thirty (30) days. If the Purchaser cannot cure the defect within the thirty
(30) day period and Parties cannot agree upon fair and equitable resolution to address the unfulfilled
condition precedent and close, then the Seller shall have the option to terminate this Agreement by
written notice to the Seller.
9. CLOSING OF TITLE. The closing of title for the Property (the " Closing ") shall
take place at the offices of DeCotiis, FitzPatrick & Cole, LLP, 500 Frank W. Burr Blvd., Teaneck,
New Jersey or such other place as may be designated and agreed by the Parties, including closing by
mail. The Closing shall occur on the date which is forty -five (45) days after the proper publication of
the resolution of the Carteret Planning Board approving the subdivision of the Frontage Property.
Notwithstanding the foregoing, provided Purchaser is able to demonstrate that it is diligently, and in
good faith, proceeding to Closing, then upon written request, Seller shall provide Purchaser with an
extension of the Closing, provided that such extension is for a reasonable period of time, not to
exceed thirty (30) days.
9.1 Seller's Deliveries. At the Closing, the Seller shall execute and /or deliver to
Purchaser the following documents (the " Seller's Conveyance Documents "):
9.1.1 A Bargain and Sale Deed with Covenant Against Grantor's Acts to the
Property in proper statutory form for recording subject only to Permitted Exceptions (the " Deed "),
conveying the Property in fee simple to Purchaser;
9.1.2. A bill of sale in the form of Exhibit F attached hereto, executed by
Seller;
9.1.3 An appropriately prepared, signed and notarized Affidavit of
Consideration for Use by Seller;
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9.1.4 A Seller's Residency Certification/Exemption Form;
9.1.5 An Affidavit of Title in the usual and customary form acceptable to
Purchaser's title company;
9.1.6 A mutually acceptable closing statement, in a form prepared by the
Purchaser's counsel and approved by Seller, setting forth all payments, credits, prorations and
adjustments as provided herein (the " Closing Statement ");
9.1.7 An Affidavit of Non - Foreign Status stating that the Seller is not a
"foreign person" or "foreign entity" within the meaning of Section 1445 of the Internal Revenue
Code of 1986, as amended, (the " FIRPTA Affidavit ");
9.1.8 Documentation reasonably satisfactory to the Purchaser to establish the
due authorization of Seller's consummation of the transaction contemplated by this Agreement;
9.1.9 Such other documents, instruments, and agreements necessary or
appropriate in the reasonable opinion of the Parties to transfer or convey the Property to Purchaser in
accordance with the terms of this Agreement. Seller shall provide (or cause to be provided) such
other documents for Purchaser's review at least five (5) days prior to Closing; and
9.1.10 Possession to the Property.
9.2 Purchaser's Deliveries. At Closing, Purchaser shall deliver to Seller the
following:
9.2.1 The Purchase Price by wire or attorney trust check and the Closing
Statement, subject to the adjustments contemplated by Section 10 hereof.
9.2.2 An appropriately prepared, signed and notarized Affidavit of
Consideration for Use by Buyer; and
9.2.3 Documentation reasonably satisfactory to the Seller to establish the
due authorization of Purchaser's consummation of the transaction contemplated by this Agreement.
9.3 Each Party shall deliver to the other Party such other documents and
instruments as may reasonably be requested by the other party and reasonably necessary to
consummate the transactions contemplated hereunder.
10. CLOSING COSTS
10.1 Purchaser shall pay all of the following closing expenses including, but not
limited to:
10.2.1 Mansion Tax pursuant to NIS.A. 18:12 -2.21 et. seq., to the extent
applicable;
10.2.2 Realty Transfer Taxes pursuant to NIS.A. 46:15 -5 et. seq.; to the
extent applicable;
10.2.3 Any and all costs associated with performing its Due Diligence,
including third party fees;
10.2.4 Title insurance premiums and the cost of recording closing
documents; and
10.3 Real estate taxes, utilities, operating expenses, including but not limited to
water and sewer charges, if applicable, rent and all other customary items shall be prorated between
the parties as of the Closing, with charges, rents and other proration for the day of Closing
attributable to Purchaser. In the event that final, current real estate tax bills are unavailable at
Closing, such taxes shall be prorated on the basis of the taxes for the most recent year for which tax
bills are available.
10.4 The obligation of this Section 10 with regard to any adjustments or payments
subsequent to Closing for real estate taxes shall survive Closing for a period of up to thirty (30) days
so that the Parties may undertake a post - closing "true -up" to the extent that same is necessary for
such items that may have been estimated at closing.
11. ASSESSMENTS If at the date of Closing, the Property, or any part thereof, shall
be or shall have been affected by a special governmental assessment or assessments which are or
may become payable in annual installments for: (i) improvements that have been completed prior to
Closing; or (ii) for which the first installment is then due or has been paid, then any such installment
shall be paid and discharged by Seller prior to or at Closing.
12. ASSIGNMENT The Purchaser shall not assign this Agreement other than to an
entity established by the Redeveloper and which the Redeveloper maintains a minimum of fifty -one
percent (51 %) ownership or controlling interest ( " Permitted Assigns "). Other than as set forth herein,
the rights granted in this Agreement are personal to the Purchaser and this Agreement is non -
assignable and any attempt to assign this Agreement without the prior written consent of the Seller
will terminate all privileges granted to the Purchaser. Any assignment contrary to this Agreement
shall be void, the assignee shall acquire no rights herein and the Seller shall not recognize any such
assignment.
13. REMEDIES
13.1 Seller's Default. In the event the Seller is unable or otherwise fails to
perform, or otherwise materially breaches this Agreement or any of its representations, warranties or
covenants set forth in this Agreement, or the Seller materially misrepresents any fact or circumstance
and Purchaser has provided written notice to Seller and Seller has not provided notice to Purchaser
that the default would be cured within a reasonable period of time, not to exceed thirty (30) days,
then Purchaser shall be entitled to either: (i) terminate this Agreement; or (ii) waive the default or
breach and proceed to Closing. Upon termination this Agreement shall be void and of no further
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force and effect and except as expressly set forth herein to the contrary the Parties shall be free from
further liability to one another.
13.2 Purchaser's Default. In the event Purchaser is unable or otherwise fails to
perform any of its obligations under this Agreement, or materially breaches or fails to close the
transaction described in this Agreement in accordance with its terms and conditions and Seller has
provided written notice to Purchaser and Purchaser has not provided notice to Seller that the default
would be cured within a reasonable period of time, not to exceed thirty (30) days, then the Seller
shall be entitled to terminate this Agreement, in which event Seller shall be entitled to any and all
actual and verifiable out of pocket expenses, including attorney's fees incurred by Seller in
connection with preparing the Property to be sold pursuant to the terms of this Agreement.
13.3 Notice. A failure by either party to perform any act required by it under this
Agreement, other than the requirement to close if all conditions have been met, shall not be deemed a
default under this Agreement until such party has received written notice from the other party setting
forth the alleged failure, and such failure has not been cured within the time frames set forth in this
Agreement. In the instance where no time frame is set, then the time frame shall be within five (5)
business days of receipt of such notice.
14. CONDEMNATION AND CASUALTY.
14.1 Casualty. Prior to the Closing, Seller shall bear all risks of loss to the
Property and all liabilities arising from the Property. In the event of any damage to or destruction of
the Property due to fire or any other cause or hazard, Seller shall promptly give notice thereof to
Purchaser describing such damage and indicating the estimated cost and time period required for
restoration to substantially the same condition as existed prior to the damage. Purchaser shall have
the right to terminate this Agreement upon notice to Seller within ten (10) days of Purchaser's receipt
of Seller's notice of damage or destruction of the Property if. (i) the period of time required to restore
the Property to its condition immediately preceding such damage is estimated by Seller to be in
excess of thirty (30) days, (ii) the cost of restoration as estimated by Seller exceeds $250,000.00, or
(ii) in Seller's reasonable judgment, insurance proceeds are not sufficient to complete the restoration
or the fire or casualty is not insured. In any event, if notice is not given to Seller within ten (10) days
of notice of damage or destruction of the Property, then this Agreement shall remain in full force and
effect. In the event of any casualty and this Agreement is not terminated pursuant to this Section
14. 1, Seller shall assign all insurance proceeds to Purchaser at Closing less the deductible paid by
Seller. hr the event this Agreement is terminated pursuant to this Section 14 1 , this Agreement and
all rights and obligations of the parties hereunder shall be null and void.
14.2 Condemnation. The Seller represents and warrants to the Purchaser that
the Seller has not heretofore received any notice of any condemnation proceeding or other action or
proceeding, either contemplated or pending, in the nature of eminent domain ( " Condemnation
Proceedings ") in connection with the Property; nor does the Seller have knowledge of any
Condemnation Proceedings. If the Seller becomes aware of or receives, at or prior to the Closing,
any notice of Condemnation Proceedings it will inunediately advise the Purchaser of the
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Condemmation Proceedings, in writing and provide a copy of any such notice of Condemnation
Proceedings to the Purchaser. Seller shall retain the right to negotiate for and to agree to or contest
all offers and awards. If all or any portion of the Property has been or is taken by condenmation or
eminent domain, prior to the Closing, the Purchase Price shall be reduced by the total of any award
of damages actually received by the Seller. If a Condemnation Proceeding has commenced or notice
thereof has been received prior to the Closing, the Seller shall assign to the Purchaser all of the
Seller's rights, title and interest in and to any awards or damages to which the Seller may have
become entitled or may thereafter be entitled by reason of any exercise of the power of eminent
domain or condemnation with respect to or for the taking of the Property or any portion thereof.
15. BROKER CLAUSE Each of the parties warrants and represents that it has not
dealt with any real estate agent, broker or salesperson and that each of the parties covenants to
indemnify the other against claims of any such third party. Each of the parties' obligations hereunder
shall survive the closing.
16. NOTICES Any demand, notice or other communication required or permitted to
be given hereunder shall be in writing, and shall be delivered personally, by recognized overnight
national courier service (such as Federal Express) for next business day delivery, by telecopy (with a
hard copy and a transmission confirmation sent by a recognized overnight national courier service),
or by certified mail, return receipt requested, first -class postage prepaid to the parties at the addresses
set forth below (or to such other addresses as the parties may specify by due notice to the other):
Copies of all Notices shall be sent as follows:
If to the Seller:
Borough of Carteret
Municipal Building
61 Cooke Avenue
Carteret, New Jersey 07008
Attn: Executive Director
with copy to:
Matthew C. Karrenberg, Esq.
DeCotiis, FitzPatrick & Cole, LLP
500 Frank W. Burr Blvd.
Teaneck, New Jersey 07666
If to the Purchaser:
RJ Hospitality Group Inc
277 Durham Avenue
South Plainfield, New Jersey 07080
Attn: Rajesh Bhagia
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with copy to:
Steven Mairella, Esq.
Sills, Cummis & Gross, P.C.
One Riverfront Plaza
Newark, New Jersey 07102
Any notice delivered to a party's designated address by (a) personal delivery, (b) recognized
overnight national courier service, or (c) certified mail, return receipt requested, shall be deemed to
have been received by such party at the time the notice is delivered to such party. Any notice sent by
fax to the party's designated fax number shall be effective upon receipt, provided receipt occurs
before 5:00 PM on a business day in the State of New Jersey. Confirmation by the courier delivering
any notice given pursuant to this Agreement shall be conclusive evidence of receipt of such notice.
Each party hereby agrees that it will not refuse or reject delivery of any notice given hereunder, that it
will acknowledge, in writing, receipt of the same upon request by any other party and that any notice
rejected or refused by it shall be deemed for all purposes of this Agreement to have been received by
the rejecting party on the date so refused or rejected, as conclusively established by the records of the
U.S. Postal Service or the courier service. Any notice given by an attorney for a party shall be
effective for all purposes.
17. FURTHER ASSURANCES Each of the Parties hereby agrees to execute,
acknowledge and deliver such other documents or instruments as the other may reasonably require
from time to time to carry out the purposes of this Agreement.
18. MISCELLANEOUS PROVISIONS The Parties further agree as follows:
18.1 Reserved
18.2 Entire Agreement This Agreement contains the entire agreement between
the Parties regarding the Property and supersedes all prior agreements, and may not be modified or
changed except by an agreement in writing executed by the Parties hereto.
18.3 Interpretation This Agreement has been prepared or reviewed, or both, by
counsel for Seller and Purchaser, the Parties agree that the Agreement shall be construed reasonably
to carry out its intent without presumption against or in favor of either Party.
18.4 Counterparts This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall constitute one and the same
Agreement.
18.5 Governing Law This Agreement shall be governed by the laws of the State
of New Jersey.
18.6 Attorney Fees In the event any action or proceeding is commenced by a
Party to obtain a declaration of rights hereunder, to enforce any provision of this Agreement, or to
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seek rescission of this Agreement for default under this Agreement, whether legal or equitable, each
Party shall be responsible to pay its own legal fees and costs.
18.7 Invalid Terms If any term or provision of this Agreement or the application
thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby, and each of the remaining terms shall remain as valid and enforceable to the fullest
extent permitted by law.
18.8 Counting Days Whenever used herein, unless expressly provided otherwise,
the term "days" shall mean consecutive calendar days, except that if the expiration of any time period
measured in days occurs on a Saturday, Sunday, legal holiday of the State of New Jersey, such
expiration shall automatically be extended to the next day which is not a Saturday, Sunday, or legal
holiday.
18.9 Recitals Incorporated The Recitals of this Agreement are incorporated into
and made a part of the terms of this Agreement.
18.10 Headings. All paragraph headings or captions contained in this Agreement
shall be for convenience of reference only and shall not affect the construction or interpretation of
any provision of this Agreement.
18.11 Time of the Essence If the Closing does not take place within the time frame
set forth in Section 9 , then the Seller shall have the option to make Time of the Essence with respect
to the Closing, which date shall be ten (10) business days after the Seller has deemed Time of the
Essence.
18.12 Party Cooperation Up to the date of Closing, the Parties agree that they
shall reasonably cooperate with one another in furtherance of their efforts to consummate the
transaction contemplated by this Agreement.
18.13 Bulk Sale Seller and Purchaser each acknowledge and agree that in the event
the transaction contemplated herein is subject to the provisions of N.J.S.A. 54:50 -38 (the " Bulk Sale
Act'), Purchaser shall have the right to comply with N.J.S.A 54:3213-22(c) and N.J.S.A 54:50 -38
and Seller shall cooperate in connection with such compliance.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as
of the day and year first above written.
ATTEST:
ATTEST:
[SEAL]
RJ HOSPITALITY GROUP INC.,
AS PURCHASER
BOROUGH OF CARTERET,
ASSELLER
By:
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EXHIBIT A
LEGAL DESCRIPTION OF LOTS 11 & 12
m
lWooli:lyd:I
LEGAL DESCRIPTION OF
SUBDIVIDED FRONTAGE PROPERTY
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EXHIBIT C
ESCROW AGREEMENT
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EXHIBIT D
REDEVELOPMENT AGREEMENT
21
EXHIBIT E
PERMITTED EXCEPTIONS LIST
22
EXHIBIT F
BILL OF SALE
23