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GREENBAUM, ROWE, SMITH & DAVIS LLP

Metro Corporate Campus One
P.O. Box 5600
Woodbridge, New Jersey 07095
(732) 549-5600
Attorneys for Plaintiff W oodmont Properties, LLC
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F I L
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: .if-
F. MALONE
J"S,C,
WOODMONT PROPERTIES, LLC SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
Plaintiff, UNION COUNTY
v. DOCKET NO. UNN-C- -11
LEHIGH ACQUISITION CORP. and
YORKVILLE ADVISORS, LLC
CIVIL ACTION
Defendants.
Plaintiff Woodmont Properties, LLC by way of Complaint against Defendants Lehigh
Acquisition Corp. andY orkville Advisors, LLC (together the "Defendants"), says:
The Parties
1. Plaintiff Woodmont Properties, LLC ("Woodmont") is a New Jersey Limited
Liability Company with offices located at One Main Street, Second Floor
Chatham, NJ 07928.
2. Defendant Lehigh Acquisition Corp. ("Lehigh") is, upon information and belief, a
Nevada Corporation authorized to conduct business in New Jersey with its principal place of
business'located at 101 Hudson Street, Suite 3700, Jersey City, New Jersey 07302.
3. Defendant Yorkville Advisors, LLC ("Yorkville") is, upon information and belief, a
Delaware Limited Liability Company, with its principal place of business located at 101 Hudson
Street, Suite 3700, Jersey City, New Jersey 07302.
4. Upon information and belief, Yorkville is the majority shareholder of Lehigh.
5. Yorkville had actual and apparent authority to act as agent for Lehigh in all respects
with regard to the transactions at issue and to bind Lehigh with its representations and promises.
6. With respect to the transactions atissue herein more fully described below, Yorkville
acted as the agent of Lehigh, and held itself out as Lehigh's agent when dealing with Woodmont.
Background
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7. On or about July 8, 2009, Woodmont met with Defendants in their Jersey City, New
Jersey office for the purposes of discussing a potential joint venture concerning real estate
located at 555 South Street, Cranford, New Jersey (the "Property'').
8. Upon information and belief, Defendants had financed the purchase of the Property,
and Lehigh took title to the Property when the market declined and Defendants' borrower
provided a deed in lieu of foreclosure.
9. Defendants advised Woodmont that they were seeking a joint venture partner to help
them obtain approvals for development of the Property, as Defendants had limited development
expenence.
10. In late July, 2009, after interviewing several developers that Cushman & Wakefield
introduced to Defendants including Woodmont, Defendants selected Woodmont as their joint
ventUre partner and Woodmont thereafter delivered a joint venture term sheet to Defendants ..
11. Rather than agree to a joint ventUre agreement, the parties after negotiation elected to
form an LLC with the company Operating Agreement defining the parties' rights and
obligations.
12. An initial draft of the Operating Agreement was prepared by Defendants' counsel and
forwarded to Wood.mont on October 7, 2009.
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13. The parties continued to negotiate the terms of the Operating Agreement during the
fall of2009.
14. During these negotiations, Defendants led W oodmont to believe that Woodmont was
their joint venture partner.
15. Similarly, Defendants held Woodmont out to their professionals and others as
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Defendants' joint venture partner.
16. In reliance upon Defendants' commitments and representations that Woodmont was
their joint venture partner, Woodmont provided extensive project management services with
respect to the Property.
17. For example, Woodmont became the lead developer on the project, and in this
capacity, Woodmont:
a. Modified the building plans to remove the structured parking;
b. Directed the retention of new architects with multi-family experience;
c. Worked closely with the COAH attorneys and litigation team who filed a builders
remedy action against Cranford;
d. Attended many meetings with architects and litigation team to refine the plan and
strengthen the litigation arguments;
e. Expended significant amount of funds designing units, the exterior, the parking
and COAH tax credit configurations;
f. Consulted heavily before mediation and Court conferences, and were called upon
for advice and opinion during a mediation session;
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g. Reviewed original redevelopment plan, survey, aerials, market conditions, prior
site and architectural plans, prior town and outside agency reports, and site
constraints;
h. Researched utilities including capacity and applicable connection fees;
1. Reviewed the Land Development Code for the Township of Cranford;
J. Researched comparable parking 'criteria outside of Cranford;
k. Participated in conference calls with architect, engmeer, parking consultant,
planner and attorneys;
1. Reviewed and prepared various proformas and cost benefit analysis;
m. Reviewed and prepared multiple in house concept site plans to separate out the
COAH from the market units;
n. Engaged in extensive work on developing the site layout with architect and
engmeer;
o. Provided assistance in engaging new architect better suited for project;
p. Developed program for building including recommended square footages,
bedroom mix, amenities, etc.
q. Reviewed and provided comments to conceptual architecture plans, including
initial value engineering;
18. Consistent with Defendants' prior representations and actions, by email dated January
7, 2010, Defendants' attorney acknowledged that a deal had been reached.
19. On February 4, 2010, Defendants advised Woodmont by email that the Operating
Agreement was on the desk of David Gonzalez, Defendants' General Counsel, awaiting
execution.
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20. On February 16, 2010, Defendants again assured Woodmont that the deal was done
and that they were merely waiting for Mr. Gonzalez to return from a vacation in order to execute
the Operating Agreement.
21. While Woodmont was waiting for Defendants to execute the Operating Agreement,
Woodmont was asked by Defendants to assist in the mediation of a builders remedy suit that had
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been filed against Cranford with respect to the Property.
22. In reliance on Defendants' representations and conduct, W oodmont continued to
assist Defendants with the builders remedy litigation, and various approvals it was seeking from
the Township.
23. In May 2010, despite all ofthe material terms having been agreed upon, and a written
agreement having been drafted incorporating those terms, Defendants refused to sign the
Operating Agreement and breached their agreement to make Woodmont their joint venture
partner.
24. Woodmont had provided Defendants extensive project management services relating
to the Property because Defendants had agreed to make W oodmont their joint venture partner.
25. W oodmont threatened to bring claims against Defendants as a result of their breach of
the agreement to make Woodmont their joint venture partner.
26. The broker that was involved in the transaction, David Bernhaut of Cushman &
Wakefield, presented W oodmont with an offer from Defendants to sell the Property to
Woodmont to resolve the dispute.
27. After negotiations with the broker, the resolution of the dispute between Defendants
and Woodmont culminated in a Letter of Intent.
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28. The Letter of Intent constitutes an accord and satisfaction of Woodmont's claims
against Defendants for breach of the agreement to make Woodmont their joint venture partner.
The Letter of Intent
29. On or about November 1, 2010, Lehigh offered, and on November 3, 2010
Woodmont accepted, the terms of a Letter of Intent ("LOI") pursuant to which Woodmont would
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purchase the Property from Lehigh for $4,000,000 subject to certain adjustments. A true copy of
the LO I is attached hereto as Exhibit A.
30. The LOI, inter alia, provided Woodmont with fifty-five (55) days to complete due
diligence.
31. The LOI also required that the parties execute a more formal Purchase and Sale
Agreement within twenty-five (25) days.
32. The LOI obligated Lehigh and Woodmont to negotiate the formal Purchase and Sale
in good faith.
Defendants' Refusal to Sign the Formal Purchase and Sale Agreement
33. Initially, Defendants agreed to have their counsel draft the Purchase and Sale
Agreement, and the parties agreed to split the cost of the drafting.
34. After approximately one week elapsed, Defendants advised Woodmont that they
would not pay for their lawyer to draft the Purchase and Sale Agreement.
35. On or about November 9, 2010, Woodmont drafted a form of Purchase and Sale
Agreement, and sent it to Defendants for review and comment.
36. Defendants refused to issue written comments to the initial draft and refused to
redline any suggested changes insisting that they be provided with a "new" draft.
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3 7. After telephone conferences with Defendants, W oodmont included certain changes to
the draft Purchase and Sale Agreement that had been discussed and agreed upon, and on
November 18,2010, forwarded the revised Purchase and Sale Agreement to Defendants.
38. During the week of November 22, 2010, the parties and counsel conducted
conference calls and discussed a change to the provision concerning the deposit and escrow, and
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an agreement was reached on the issue.
3 9. In these negotiations, Defendants agreed to extend the 25 day period within which a
formal Purchase and Sale Agreement was required to be signed pursuant to the LOI provided a
resolution of the deposit issue was reached.
40. A resolution of the deposit issue that had been discussed was reached on or about
November 23,2010.
41. As a result, the 25 day period was extended by agreement.
42. On November 24, 2010, Woodmont asked Defendants to confirm in writing the
extension of the 25 day period within which a formal Purchase and Sale Agreement was required
to be signed pursuant to the LOI.
43. In response, on November 24, 2010, Defendants finally agreed to have their counsel
modify the Purchase and Sale Agreement to incorporate the change to the deposit/escrow
provision to which the parties had agreed during the prior conference calls.
44. On December 2, 2010, Woodmont sent an email to Defendants asking when it could
expect the revision to the Purchase and Sale Agreement, to which Defendants did not respond.
45. On December 3, 2010, Woodmont again requested comments from Lehigh on the
draft Purchase and Sale Agreement, which Defendants had agreed to provide, and Woodmont
again requested that Defendants confirm in writing the extension of the 25 day period.
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46. In response, on December 3, 2010, Defendants advised, inter alia, that the
outstanding issues on the Purchase and Sale Agreement had only been resolved the week before,
and that their counsel who would be making the agreed upon changes to the Purchase and Sale
Agreement was on vacation.
47. Defendants did not respond to Woodmont's request that Lehigh confirm the extension
'of the 25 day deadline in writing.
48. Despite numerous requests by Woodmont for Defendants to make the agreed upon
changes to the draft Purchase and Sale Agreement, Defendants took no action to make the agreed
upon changes despite their undertaking to do so.
49. Instead, on December 20, 2010, Defendants sent Woodmont a letter purporting to
terminate the LOI on the grounds that Lehigh and Woodmont failed to execute a binding
Purchase and Sale Agreement within 25 days of the LOI.
Woodmont's Due Diligence and Assistance to Defendants on Redevelopment
50. After execution of the LOI, Woodmont requested that Defendants provide certain
additional specific due diligence materials relating to the condition of the Property, including
various environmental and engineering reports.
51. A list of the initial due diligence materials W oodmont requested of Defendants was
attached to the LO I.
52. On December 2, 2010, Woodmont requested v1a email certain additional
environmental and geotech reports and other material.
53. On December 8, 2010, Woodmont again requested additional due diligence materials,
and again sought the due diligence covered by its initial due diligence request. This request
included:
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a. April 1996 Draft Preliminary Assessment/Site Investigation Report prepared by
ABB Environmental Services, Inc ("ABB") including attachments/appendices;
b. March 13, 1997 Report by ABB with attachments/appendices;
c. November 13,2000 Remedial Action Plan with attachments/appendices;
d. Information on the sealing/abandoning of old monitoring wells;
e.
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July 17, 2007 addendum 1 to the Subsurface Investigation report by Richard
Kessler with any associated figures;
f. The on street parking plan referenced in Henry Ney' s February 26, 2010 report;
g. NJDEP Authorization to Discharge Stormwater associated with April 19, 2007
Somerset-Union Conservation District;
h. Any other environmental or geotechnical reports, approvals and correspondence
not already provided.
54. Despite Woodmont' s requests, Defendants refused to provide the due diligence
Woodmont requested.
55. During the time the negotiations of the LOI and draft Purchase and Sale Agreement
were taking place, Defendants also were in the process of obtaining approval of a
Redevelopment Plan for the Property.
56. Defendants requested that Woodmont provide comments to the Redevelopment Plan,
which would affect the Property being purchased by Woodmont.
57. On or about November 24, 2010, Woodmont provided comments on and suggested
changes to the Redevelopment Plan to Defendants' counsel in a good faith effort to assist
Defendants and move the Redevelopment Plan forward.
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COUNT I
(Breach of Contract/Specific Performance)
58. Woodmont repeats andre-alleges each and every allegation set forth in the Complaint
above, as if the same were set forth and repeated at length herein.
59. In resolution of Woodmont's claim that Defendants breached the agreement to make
Woodmont their joint venture .Partner, Lehigh agreed to sell the Property to Woodmo:qt.
60. Lehigh signed the LOI, which required it to negotiate a formal Purchase and Sale
Agreement in good faith.
61. Woodmont and Lehigh reached an agreement on the material terms of a Purchase and
Sale Agreement.
62. Defendants agreed to have their counsel incorporate those terms into the draft
Purchase and Sale Agreement that Woodmont had drafted.
63. Defendants delayed making changes to the draft Purchase and Sale Agreement in an
effort to allow the 25 day period within which a Purchase and Sale Agreement was required to be
signed to expire.
64. However, as discussed above, Defendants agreed to extend the 25 day period.
65. Lehigh's refusal to incorporate the material terms that had been agreed upon by
Defendants and Woodmont into the Purchase and Sale Agreement and to proceed with a closing
of the sale of the Property constitutes a breach of contract.
66. All of the material terms of the Purchase and Sale Agreement had been agreed upon
by Defendants and W oodmont.
67. The Property is a unique parcel of real estate.
68. Woodmont is ready, willing and able to complete the purchase of the Property in
accordance with the agreement reached by the parties.
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69. As a result of Lehigh's breach of the LOI and refusal to sell the Property to
Woodmont, Woodmont has suffered and will continue to suffer irreparable harm.
WHEREFORE, Woodmont demands judgment against Lehigh as follows:
a For an award of specific performance, requiring Lehigh to convey the Property to
Woodmont pursuant to the terms of the LOI and draft Purchase and Sale
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Agreement and the parties' agreements;
b. For consequential and compensatory damages;
c. For interest and cost of suit; and
d. For such further and additional relief as the Court may deem equitable and just.
COUNTTI
(Breach of Covenant of Good Faith & Fair Dealing)
70. Woodmont repeats andre-alleges each and every allegation set forth in the Complaint
above, as if the same were set forth and repeated at length herein.
71. Lehigh signed the LOI, which required it to negotiate a formal Purchase and Sale
Agreement in good faith.
72. The LOI contains an express and an implied covenant requiring Lehigh to act in good
faith and to deal with Woodmont fairly.
73. Defendants delayed making changes to the draft Purchase and Sale Agreement in an
effort to allow the 25 day period within which a Purchase and Sale agreement was required to be
signed to expire.
74. All of the material terms ofthe Purchase and Sale Agreement had been agreed upon
by Lehigh and Woodmont.
75. Defendants' refusal to incorporate the additional material terms that had been agreed
upon by Defendants and Woodmont into the Purchase and Sale Agreement and to proceed with a
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closing of the sale of the Property constitutes a breach of the express and implied covenant of
good faith and fair dealing.
76. The Property is a unique parcel of real estate.
77. As a result of Lehigh's breach of the covenant of good faith and fair dealing, and its
refusal to sell the Property to W oodmont, W oodmont has suffered and will continue to suffer
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irreparable harm.
WBEREFORE, Woodmont demands judgment against Lehigh as follows:
a. For an award of specific performance, requiring Lehigh to convey the Property to
Woodmont pursuant to the terms of the LOI and draft Purchase and Sale
Agreement and the parties' agreements;
b. For consequential and compensatory damages;
c. For attorneys' fees, interest and cost of suit; and
d. For such further and additional relief as the Court may deem equitable and just.
COUNT ill
(Promissory Estoppel)
78. Woodmont repeats andre-alleges each and every allegation set forth in the Complaint
above, as if the same were set forth and repeated at length herein.
79. Defendants made promises to Woodmont that Woodmont would be their joint
venture partner on the Property, and later that Lehigh would sell the Property to Woodmont.
80. Defendants made these promises to Woodmont with the expectation that Woodmont
would rely upon its promises.
81. In reasonable reliance upon Defendants' representations and promises, Woodmont
provided Defendants with extensive project management and development services with respect
to the Property.
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82. As a result of the conduct aforesaid, Defendants are estopped from refusing to fulfill
their promise to sell the Property to W oodmont.
WHEREFORE, Woodmont demands judgment against Defendants as follows:
a. Requiring Lehigh to convey the Property to Woodmont pursuant to the terms of
the LOI and draft Purchase and Sale Agreement and the parties' agreements;
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b. For consequential, compensatory and punitive damages;
c. For attorneys' fees, interest and cost of suit; and
d. For such further and additional relief as the Court may deem equitable and just.
COUNT IV
(Fraud)
83. Woodmont repeats andre-alleges each and every allegation set forth in the Complaint
above, as if the same were set forth and repeated at length herein.
84. Defendants made representations to Woodmont that Woodmont would be their joint
venture partner on the Property, and after refusing to do so, made additional representations that
Lehigh would sell the Property to Woodmont.
85. The aforesaid representations were made by Defendants to induce Woodmont to
provide development and project management services with respect to the Property.
86. At the time it made these representations, Defendants never intended to make
W oodmont their joint venture partner on the Property or to sell the Property to W oodmont.
87. In reliance upon Defendants' representations and promises, Woodmont provided
Defendants with extensive project management and development services with respect to the
Property.
88. Defendants' representations and promises to Woodmont constitute legal and equitable
fraud.
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89. As a result of Defendants' fraudulent conduct aforesaid, Woodmont has been
significantly damaged in an amount yet to be determined.
WHEREFORE, Woodmont demands judgment against Defendants as follows:
a. For consequential, compensatory and punitive damages;
b. For attorneys' fees, interest and cost of suit; and
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c. For such further and additional relief as the Court may deem equitable and just.
COUNTV
(Unjust Enrichment/Quasi-Contract)
90. Woodmont repeats andre-alleges each and every allegation set forth in the Complaint
above, as if the same were set forth and repeated at length herein.
91. In reasonable reliance on Defendants' representations, promises and assurances that
Woodmont would become a joint venture partner with respect to the project, and subsequently
Defendants' representations that Lehigh would sell the Property to Woodmont, W oodmont
provided extensive project management services, including but not limited to assisting
Defendants in obtaining approvals and prosecuting, mediating and negotiating with Cranford
with respect to the builders remedy action, and with its counsel with respect to the
Redevelopment Plan for the Property.
92. W oodmont was not paid for its services.
93. Woodmont reasonably expected to receive the value of its services when it became
the joint venture partner or the owner of the Property.
94. Defendants received an economic benefit as a result of Woodmont's services, and
have therefore been unjustly enriched.
95. The actions and conduct of the parties created a contract implied by law requiring
Defendants to compensate W oodmont for the services it provided.
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96. Defendants breached this contract implied by law by failing to compensate
Woodmont for the work that it performed with respect to various aspects of the Property and its
development and Redevelopment.
97. As a result of Defendants' breach of the contract implied by law, Woodmont has been
damaged.

WHEREFORE, Woodmont demands judgment against Defendants as follows:
a. For an award of quantum meruit consisting of the reasonable value of
Woodmont's services, and compensatory damages;
b. For the imposition of a constructive trust and/or equitable lien on the Property;
c. For interest and cost of suit; and
d. For such further and additional relief as the Court may deem equitable and just.
Dated: February 3, 2011
GREENBAUM, ROWE, SJ\.flTH & DAVIS LLP
Attorneys for Plaintiff
B ? < f ~ -
PaulA. Rowe
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CERTIFICATION PURSUANT TO RULE 4:5-1
I hereby certify that, to the best of my knowledge and belief, the matter in controversy is
not the subject of any action pending in any other court or of a pending arbitration proceeding,
nor is any other action or arbitration proceeding contemplated. I know of no other parties other
than the parties set forth in this pleading that should be joined in the above action. I recognize the
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continuing obligation of each party to file with the Court and serve on all parties a Certification
if there is a change in the facts stated in the original Certification.
Dated: February 3, 2011
GREENBAUM, ROWE, SMITH & DAVIS LLP
Attorneys for Plaintiff
DESIGNATION OF TRIAL COUNSEL
Plaintiff hereby designates Paul A. Rowe of the fum of Greenbaum, Rowe, Smith &
Davis LLP as trial counsel in this matter.
Dated: February 3, 2011
GREENBAUM, ROWE, SMITH & DAVIS LLP
Attorneys for Plaintiff
B y : S i ~ - ~
Paul A. Rowe
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CERTIFICATION PURSUANT TOR. 1:38-7
I hereby certify that confidential, personal identifiers have been redacted from documents
now submitted to the Court (if any) and will be redacted from all documents submitted in the
future in accordance with R. 1 :3 8-7.
Dated: February 3, 2011
GREENBAUM, ROWE, SMITH & DAVIS LLP
Attorneys for Plaintiff
B y ~ ~
Paul A. Rowe.
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ExlnBIT A
Lehigh Acquisition Corp.
c/o Yorkville Advisors, LLC
101 Hudson Street, Suite 3700
Jersey City, New Jersey 07302
November 1, 201 0
stephen A. Santo!a
~ e c u t i v e Vice President
General Counsel
Woodmont Properties, LLC
119 Cherry Hill Road, Suite 11 0
Parsippany, New Jersey 07054
Re: Proposed Sale of Premises at
555 South Avenue, Cranford, New Jersey
Dear Mr. Santola:
On behalf of Lehigh Acquisition Corp. {the "Seller"), I am pleased to submit this
non-binding Term Sheet as an offer to sell the above-referenced real property. In this
letter, please find the terms and conditions on which we offer to sell the property.
The following provisions shall form the basis of a formal Real Estate Purchase
and Sale Agreement (the "Purchase Agreemenf') between the Parties:
Real Property
Purchase Price
Deposit
The real property, which will be the subject of the Purchase
Agreement is known as lot 1 in Block 511 on the Official Tax Map
of the Township of Cranford (the "Town"), County of Union, State of
New Jersey (the "Property").
The purchase price for the Property shall be Four Million
($4,000,000.00} Dollars (the "Purchase Price"), subject to
adjustment as set forth herein. At closing, Purchaser shall deliver
to Seller the Purchase Price by wire transfer.
Concurrent with the execution of the proposed Purchase
Agreement, Purchaser shall pay to the Seller a deposit of Two
Hundred Thousand ($200,000.00) Dollars (the "Deposit") which
shall not be refundable, except as hereinafter set forth, but shall be
applied to the Purchase Price. The Deposit shall be refundable
only if (i) the Seller cannot convey marketable tiDe, (ii) after notice
and an opportunity to cure, if applicable, the Seller defaults
pursuant to the Purchase Agreement, {iii) the Purchaser terminates
the Purchase Agreement as a consequence of the occurrence of a
Due Diligence Termination Event (as hereinafter defined) or Re-
Zoning Termination Event (as hereinafter defined) or (iv) the Seiler
tenninates the Purchase Agreement as a consequence of the
Page 2 of 6
November 1 , 201 0
Due Diligence
Termination
occurrence of an Approval Period Termination Event (as hereinafter
defined) or Tolling Period Termination Evant (as hereinafter
defined).
Purchaser shall be permitted to utilize up to $150,000 of the
Deposit to pay reasonable tilird party costs, fees or municipal
escrows necessary to gain the required government approvals to
1
develop the Property (the ,.Approval Cost:sj. Purthaser shall be
permitted to draw against the Deposit by submitting to the Seller
invoices evidencing Approval Costs and Seller shall release to the
Purchaser a portion of the Deposit in an amount equal to such
Approval Costs set forth in such involce{s) (all such amounts
released from the Deposit to pay Approval Costs. in the aggregate.
the "Deposit Reductionsj, provided, however, Deposit Reductions
shall not exceed, in the aggregate, $150,000. The Purchase Price
shall be increased by an amount equal to the Deposit Reductions.
Purchaser shall have fifty-five (55) days from the date of this term
sheet (the "Due Diligence Period") to inspect, or cause to be
inspected, the Property with respect to environmental. engineering,
and land use Issues. The cost of all such inspections shall be the
sole obligation of Purchaser. If the results of the due diligence
inspection of the Property are unsatisfactory to Purchaser, as
Purchaser may in Its reasonable discretion determine, Purchsser
r n a ~ by written notice to Seller to be given on or before the fifty-fifth
(55"1 day following the execution date of this term sheet, terminate
the Purchase Agreement (the "Due Diligence Termination Evenr).
The Purchaser shall expressly waive any further right to undertake
further due diligence of the Property beyond the Due Diligence
Period.
Upon termination of the Purchase Agreement, including, without
limitation, upon the occurrence of a Approval Period Termination
Event, Tolling Period Termination Event, Re-Zoning Termination
Event or Due Diligence Termination Event, all rights and obligations
of the Parties thereunder shall become null and void, except for
indemnifications of the Purchaser as a result of the activities of the
Purchaser on the Property. Within fifteen {15) calendar days of the
date on which the Purchase Agreement is terminated, Purchaser
shall deliver to Seller all information relating to the Approvals,
including, without limitation, all documents, instruments
agreemerr\5, memoranda, notes and other analyses developed by
the Purchaser andior its affiliates, officers, directors, employees,
agents, advisors, counsel and auditors collectively, the "'Approval
Materials").
Page 3 of 6
November 1, 2010
Closing Date
Payment for Approvals
If Seller terminates the Purchase Agreement, including, without
limitation, as a consequence of a Approval Period Termination
Event or Tolling Period Termination Event, other than as a
consequence of Purchaser having breached its obligations
thereunder and/or having made material misrepresentations
therein, than, within five (5) calendar days of receipt of the Approval
Materials, Seller sha.ll reimburse Purchaser for all third party costs
expended in obtaining the Approvals (collectively, "Third Party
Approval Costs"}, provided, however, such Third Party Approval
Costs shall not exceed $150,000.
If Purchaser terminates the Purchase Agreement as a
consequence of Seller having breached its obligations thereunder
and/or having made material misrepresentations therein, then,
within five (5) calendar days of receipt of the Approval Materials,
Sellar shall reimburse Purchaser for aU Third Party Approval Costs,
provided, however, such Third Party Approval Costs shall not
exceed $150,000.
No Payment for Approvals
If Purchaser terminates the Purchase Agreement, including, without
limitation, as a consequence of a Due Diligence Termination Event
or Re-Zoning Termination Event, other than as a consequence of
Seller having breached its obligations thereunder and/or having
mads material misrepresentations therein, then, Purchaser shall
deliver to Seller the Approval Materials as set forth above and
Seller shall have no obligation to reimburse Purchaser for Third
Party Approval Costs.
If Sellar terminates the Purchase Agreement as a consequence of
Purchaser having breached its obligations thereunder and/or
having made material misrepresentations therein, then, Purchaser
shall deliver to Seller the Approval Materials as set forth above and
Seller shall have. no obligation to reimburse Purchaser for Third
Party Approval Costs.
If the Purchase Agreement automatically terminates, Purchaser
shall deliver to Seller the Approval Materials as set forth above and
Seller shall have no obligation to reimburse Purchaser for Third
Party Approval Costs.
The closing of .title shall occur no later than seven (7) days after
Purehaser has received the Approvals (as hereinafter defined) to
construct not less than 139 market rate residential units and 24
Page4of6
November 1, 2010
Approvals
Tolling
affordable house units on the Property (163 total units), with
standard conditions.
The Purchaser shall have six (6) months from the date (the
"Approval Period Start Date") 1he town adopts an ordinance or
redevelol)l'TIGnt plan (the "Re-Zoning Planj codifying the terms of
the Settlement Agreement between Seller and Town {the "Approval
Period") to obtain preliminary and final Sta plan approval, county
site plan sol! erosion control permit and such other permits
and approvals necessary to obtain a builcfrng pemnit on the site, (but
not induding developers agreements, foundation or building pennits
and oihar similar approvals and permits) (the "Approvals"). If the
Approval Period Start Date does not occur on or before that date
that is ninety (90) days after the date of Purchase Agreement, the
Seller may terminate the Purchase Agreement (the "Approval
Period Termination Event'}.
Purchaser may terminate the Purchase Agreement if the Re-Zoning
Plan contains terms and conditions that, in the aggregate, are
materially different from the terms and conditions of the Settlement
Agreement and, within five {5) calendar days of the Approval Period
Start Date, Seller receives from Purchaser written notice of
Purchaser's intent to terminate the Purchase Agreement (the "Re-
Zoning Termination Evenf').
The Purchaser may elect, and Seller shall agree, to emend the
Approval Period by no more than two (2) three (3) month periods if,
with respect to each three (3) month extension, (i) Purchaser is
diligently pursuing the Approvals and the Purchaser has filed all
applications for Approvals appropriate at that time and (ii) Purchaser
pays to the Seller an fee in an amount equal to $25,000
(the ''Extension Feej. The Extension Faa shall not be crecflted to the
Purchase Price. If the Purchaser has not received all Approvals by
the end of the Approval Period, as extended, the Purchase
Agreement shall automatically terminate and neither party shall have
any further obligation to the other party. The Purchaser shall use its
best efforts to file and prosecute applications for Approvals and shalf
promptly comply with all instructions and requests of the appropriate
board, authority, agency and/or hearing officer with regard to the
process to obtain Approvals.
In the event any Approval following the re-zoning of the Property is
appealed, the Purchaser shall defend the Approval at its own cost
and expense. The Approval Period shall be tolled during the
pendency of such an appeal, provided, however, with respect to all
such appeals, 1ha Approval Period shall not toll, in the aggregate,
more than ninety (90) days (the "Tolling Periodj. If the Tolling
Page 5of 6
November 1, 2010
Conditions
Precad&nt
to Closing
Title
Condition of
Property
Period exceeds ninety (90) days, the Seller may terminate the
Purchase Agreement (the "Tolling Period Tennination Event'') and,
within fifteen ( 15) calendar days of the date on which the Purchase
Agreement is terminated, Purchaser shall assign to Seller any and
all appeals.
As a condition precedent to Purchaser's obligations to purchase the
Property, on or before the Closing Date: (i) The Purchaser shall be
in receipt of all Approvals; and (li) the Purchaser shall deliver the
Purchase Price to the Seller.
Title shall be insurable at regular rates by a title insurance company
licensed to do business in the State of New Jersey at regular rates.
The Property is being sold "as is" "where is" with no warranties or
representations, including implied warranties of fitness for a
particular purpose. Purchaser shall indemnify the Seller for any
claims asserted against the Seller as a result of any condition
existing on the Property, including environmental conditions.
Risk of Loss Remains with Seller until closing.
Sellers Consent Seller agrees to execute at the time of signing of Purchase
Agreement, or any time thereafter, at no cost or expense to the
Seller, any necessary consents to allow the Purchaser to prosecute
applications for preliminary site plan approval.
The purpose of this non-binding Letter of lntent is to set forth the key provisions
under which the Seller makes an offer to sell the Property. The Parties recognize and
understand that a formal Purchase Agreement is intended to be drafted and executed
within twenty-five (25) days from the date this Letter of Intent is fully executed. If a
binding Purchase Agreement has not been executed within twenty-five (25) days,
neither party shall have any further obligation to the other party. By executing this
letter of Intent, the Parties shall be obligated to negotiate in good faith. The terms
contained herein shall not be binding until such time a formal, written Purchase
Agreement is negotiated and executed by the parties.
Should the provisions outlined herein be acceptable, please sign and return one
copy of this letter to my attention. Upon receipt, a Purchase Agreement shall be
prepared and forvvarded to the Purchaser's counsel for his/her review within 7 days of
receipt.
ACKNOWlEDGED AND AGREED
Woodmont Properties, LLC
l f./3/lr>
Name: &-tc__ wtf-r.-.c.nct-f
Title: /Vtttf
Very truly yours,
Lehigh Acquisition Corp.
Name: E.dLAJcrcl S<-h;"--(.
. Title: lfe.c.Sure.r
Due Diligence Items
1) All municipal approvals including the latest site plans, resolutions or related
agreements and comment letters from municipal professionals
2) All county, state and outside agency approvals, including approvals from the
NJDEP, Soil Conservation, NJDOT and NJDCA including copies of plans,
reports and the applications to such approvals and comment letters
from county and state professionals;
3) All geotechnical information including any data, reports, maps and plans;
4) All environmental studies conducted on or in relation to the Property including
any Phase I and II reports, preliminary and site assessments, remedial
investigations, remedial action workplans, maps, data, conclusions and
approvals
5) All surveys of the Property
6) All utility infrastructure and provider information including can and will serve
letters