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HomeMy Public PortalAboutr 15-070�Reovf tivu of �Je �Vtog4 of (garterd, �ql J- 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: 2 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 3 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. 4 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 5 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 3 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 7 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, N 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; 10 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 12 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 13 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 14 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 15 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] 16 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: 17 EXHIBIT A LEGAL DESCRIPTION OF LOTS 11 & 12 m lWooli:lyd:I LEGAL DESCRIPTION OF SUBDIVIDED FRONTAGE PROPERTY 19 EXHIBIT C ESCROW AGREEMENT 20 EXHIBIT D REDEVELOPMENT AGREEMENT 21 EXHIBIT E PERMITTED EXCEPTIONS LIST 22 EXHIBIT F BILL OF SALE 23