Exhibit 10.8
Contract of Sale for New York office, commercial and multi-family residential
premises
Contract of Sale---Office, Commercial and Multi-Family Residential Premises
Table of Contents
Schedule A. Description of premises (to be attached) Section 8. Destruction, damage or condemnation
Schedule B. Permitted exceptions Section 9. Covenants of seller
Schedule C. Purchase price Section 10. Seller's closing obligations
Schedule D. Miscellaneous Section 11. Purchaser's closing obligations
Schedule E. Rent schedule (to be attached) Section 12. Apportionments
Section 1. Sale of premises and acceptable title Section 13. Objections to title, failure of seller or
Section 2. Purchase price, acceptable funds, existing purchaser to perform and
mortgages, purchase money mortgage and Section 14. Broker
escrow of downpayment Section 15. Notices
Section 3. The closing Section 16. Limitations on survival of representations,
Section 4. Representations and warranties of seller warranties, covenants and other
Section 5. Acknowledgments of purchaser obligations
Section 6. Seller's obligations as to leases Section 17. Miscellaneous provisions
Section 7. Responsibility for violations Signatures and receipt by escrowee
CONTRACT dated the , day of December 2007,
Between
HPG REALTY CO., LLC, a New York Limited Liability Company
Address:
000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
("Seller") and
CVD EQUIPMENT Corporation, a New York Corporation
Address:
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
("Purchaser").
Seller and Purchaser hereby covenant and agree as follows:
Schedule A
DESCRIPTION OF PREMISES
The Premises are located at or known as:
Street Address: 000 Xxxxxxx Xxxxxx
City: Ronkonkoma State: New York Zip: 11779
Tax Map Designation: Section: 105.00 Block: 0.300 Lot: 002.001
[X] metes and bounds description attached hereto)
Schedule B
PERMITTED EXCEPTIONS
1. Zoning regulations and ordinances which are not violated by the existing
structures or present use thereof and which do not render title uninsurable.
2. Consents by the Seller or any former owner of the Premises for the
erection of any structure or structures on, under or above any street or streets
on which the Premises may abut.
3. INTENTIONALLY OMITTED.
4. INTENTIONALLY OMITTED.
5. Unpaid installments of assessments not due and payable on or before the
Closing Date.
6. Financing statements, chattel mortgages and liens on personalty filed
more than 5 years prior to the Closing Date and not renewed, or filed against
property or equipment no longer located on the Premises or owned by Tenants.
7. (a) Rights of utility companies to lay, maintain install and repair
pipes, lines, poles, conduits, cable boxes and related equipment on, over and
under the Premises, provided that none of such rights imposes any monetary
obligation on the owner of the Premises.
(b) Encroachments of xxxxxx, areas, cellar steps, trim cornices, lintels,
window xxxxx, awnings, canopies, ledges, fences, xxxxxx, coping and retaining
walls projecting from the Premises over any street or highway or over any
adjoining property and encroachments of similar elements projecting from
adjoining property over the Premises.
(c) Revocability or lack of right to maintain vaults, coal chutes,
excavations or sub-surface equipment beyond the line of the Premises.
(d) Any state of facts that an accurate survey would disclose, provided
that such facts do not render title unmarketable. For the purposes of this
contract, none of the facts shown on the survey, if any, identified below shall
be deemed to render title unmarketable, and Purchaser shall accept title subject
thereto:
Schedule C
PURCHASE PRICE
The Purchase Price shall be paid as follows:
(a) By check subject to collection the proceeds of which are to be held in
escrow pursuant to Article 2.05, the receipt of which is hereby
acknowledged by Seller: $405,000.00
(b) By check or checks delivered to Seller at the Closing in accordance
with the provisions of Section 2.02: $1,610,000.00
(c) INTENTIONALLY OMITTED
(d) INTENTIONALLY OMITTED
INTENTIONALLY OMITTED
Making for a total Purchase Price of: $2,015,000.00
Schedule D
MISCELLANEOUS
1. Title insurer designated by the parties (Section 1.02): Any reputable
Title Insurance Company licensed to due business in New York State and a member
of The Title Insurance Rate Service Association ("TIRSA") (See Paragraph No.
1.02(b))
2. INTENTIONALLY OMITTED
3. INTENTIONALLY OMITTED
4. INTENTIONALLY OMITTED
5. Seller's tax ID Nos (Section 2.05) #1:[INTENTIONALLY OMITTED]#2: #3: #4:
6. Buyer's tax ID Nos (Section 2.05) #1: #2: #3: #4:
7. Scheduled time and date of Closing (Section 3.01): Date: on or about
January 1, 2008 Time:10:00 o'clock.
8. Place of Closing (Section 3.01): Seller's Attorneys Office or place
designated by Purchaser's lender.
9. Assessed valuation of Premises (Section 4.10): 145,000/28,000 taxable
10. Fiscal year and annual real estate taxes on Premises (Section 4.10):
Fiscal Year: 2006/07 Annual Taxes: $5,97.08
11. Tax abatements or exemptions affecting Premises (Section 4.10): 10 year
abatement, 10% of full assessment year 1 and 10% assessment restored annually
until full assessment - year one was 2005/06 fiscal year
12. INTENTIONALLY OMITTED
13. Maximum Amount which Seller must spend to cure violations, etc.
(Section 7.02): $10,000 (including attorney's fees)
14. Maximum Expense of Seller to cure title defects, etc. (Section 13.02):
$10,000.00 (excluding attorney's fees and voluntary liens or liens directly
against Seller, for which tere shall be no limit)
15. Broker, if any (Section 14.01): Sperry Xxx Xxxx/Listing: Lloyd's Realty
Corporation/Selling
16. Party to pay broker's commission (Section 14.01): Seller
17. Address for notices (Section 15.01):
If to Seller: HPG Realty Co., LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
with a copy to: Xxxxxx X. Xxxxxxxxx, Esq.
Solferino & Solferino, L.L.P.
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Tel.: 000-000-0000 Fax: 000-000-0000
email: xxxxx@xxxxxxxxxxxx.xxx
If to Purchaser: CVD Equipment Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
with a copy to: Xxxxxx X. Xxxxxxxxxx, Esq.
000 Xxxxxx Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Tel.: 000-000-0000 Fax: 000-000-0000
email: xxxxxx@xxxxx.xxx
18. Limitation Date for actions based on Seller's surviving representations
and other obligations (Section 16.01): twelve (12) months from date of Closing
19. Additional Schedules or Riders (Section 17.08): SEE SELLER'S RIDER
ANNEXED HERETO AND MADE A PART HEREOF
Schedule E
RENT SCHEDULE
([ ] if more than four tenants, check, and annex a rent schedule rider hereto;
otherwise, enter information below)
Name Apt. No. Rent Due Security
Section 1. Sale of Premises and Acceptable Title
Section 1.01. Seller shall sell to Purchaser, and Purchaser shall purchase
from Seller, at the price and upon the terms and conditions set forth in this
contract:
(a) the parcel of land more particularly described in Schedule A attached
hereto ("Land");
(b) all buildings and improvement situated on the Land (collectively,
"Building");
(c) all right, title and interest of Seller, if any, in and to the land
Iying in the bed of any street or highway in front of or adjoining the Land to
the center line thereof and to any unpaid award for any taking by condemnation
or any damage to the Land by reason of a change of grade of any street or
highway;
(d) the appurtenances and all the estate and rights of Seller in and to the
Land and Building; and
(e) all right, title and interest of Seller, if any, in and to the
fixtures, equipment and other personal property attached or appurtenant to the
Building (collectively, "Premises"). The Premises are located at or known as
Street Address: 000 Xxxxxxx Xxxxxx
City: Ronkonkoma State: New York Zip: 11779
Tax Map Designation: Section: 105.00 Block: 0.300 Lot: 002.001 District: 0500
Section 1.02. Seller shall convey and Purchaser shall accept fee simple
title to the Premises in accordance with the terms of this contract, subject
only to: *marketable
(a) the matters set forth in Schedule B attached hereto (collectively,
"Permitted Exceptions"); and
(b) such other matters as (i) the title insurer specified in Schedule D
attached hereto (or if none is so specified, then any member of TIRSA shall be
willing, without special premium, to omit as exceptions to coverage or to except
with insurance against collection out of or enforcement against the Premises
INTENTIONALLY OMITTED
Section 2. Purchase Price, Acceptable Funds, Existing Mortgages, Purchase Money
Mortgage and Escrow of Down payment
Section 2.01. The purchase price ("Purchase Price") to be paid by Purchaser
to Seller for the Premises as provided in Schedule C attached hereto is
$2,025,000.00
Section 2.02. All monies payable under this contract, unless otherwise
specified in this contract, shall be paid by:
(a) certified checks of Purchaser or any person making a purchase money
loan to Purchaser drawn on any bank, savings bank, trust company or savings and
loan association having a banking office in the State of New York or
(b) official bank checks drawn by any such banking institution, payable to
the order of Seller, except that uncertified checks of Purchaser payable to the
order of Seller up to the amount of one-half of one percent of the Purchase
Price shall be acceptable for sums payable to Seller at the Closing.
Section 2.03. INTENTIONALLY OMITTED.
Section 2.04. INTENTIONALLY OMITTED.
Section 2.05. (a) If the sum paid under paragraph (a) of Schedule C or any
other sums paid on account of the Purchase Price prior to the Closing
(collectively, "Downpayment") are paid by check or checks drawn to the order of
and delivered to Seller's attorney or another escrow agent ("Escrowee"), the
Escrowee shall hold the proceeds thereof in escrow in a special bank account (or
as otherwise agreed in writing by Seller, Purchaser and Escrowee) until the
Closing or sooner termination of this contract and shall pay over or apply such
proceeds in accordance with the terms of this section. Escrowee need not hold
such proceeds in an interest-bearing account, but if any interest is earned
thereon, such interest shall be paid to the same party entitled to the escrowed
proceeds, and the party receiving such interest shall pay any income taxes
thereon. The tax identification numbers of the parties are either set forth in
Schedule D or shall be furnished to Escrowee upon request. At the Closing, such
proceeds and the interest thereon, if any, shall be paid by Escrowee to Seller.
If for any reason the Closing does not occur and INTENTIONALLY OMITTED. If
Escrowee does receive such written objection within such 10 day period or if for
any other reason Escrowee in good faith shall elect not to make such payment,
Escrowee shall continue to hold such amount until otherwise directed by written
instructions from the parties to this contract or a final judgment of a court.
However, Escrowee shall have the right at any time to deposit the escrowed
proceeds and interest thereon, if any, with the clerk of the Supreme Court of
the county in which the Land is located. Escrowee shall give written notice of
such deposit to Seller and Purchaser. Upon such deposit Escrowee shall be
relieved and discharged of all further obligations and responsibilities
hereunder.
(b) The parties acknowledge that Escrowee is acting solely as a stakeholder
at their request and for their convenience, that Escrowee shall not be deemed to
be the agent of either of the parties, and that Escrowee shall not be liable to
either of the parties for any act or omission on its part unless taken or
suffered in bad faith, in willful disregard of this contract or involving gross
negligence. Seller and Purchaser shall jointly and severally indemnify and hold
Escrowee harmless from and against all costs, claims and expenses, including
reasonable attorneys' fees, incurred in connection with the performance of
Escrowee's duties hereunder, except with respect to actions or omissions taken
or suffered by Escrowee in bad faith, in willful disregard of this contract or
involving gross negligence on the part of Escrowee.
(c) Escrowee has acknowledged agreement to these provisions by signing in
the place indicated on the signature page of this contract.
Section 3. The Closing
Section 3.01. Except as otherwise provided in this contract, the closing of
title pursuant to this contract ("Closing") shall take place on* the scheduled
date and time of closing specified in Schedule D (the actual date of the Closing
being herein referred to as "Closing Date") at the place specified in Schedule
D.
*or about
Section 4. Representations and Warranties of Seller
Seller represents and warrants to Purchaser as follows:
Section 4.01. Unless otherwise provided in this contract, Seller is the
sole owner of the Premises.
Section 4.02. INTENTIONALLY OMITTED.
Section 4.03.INTENTIONALLY OMITTED.
Section 4.04. INTENTIONALLY OMITTED.
Section 4.05. INTENTIONALLY OMITTED.
Section 4.06. INTENTIONALLY OMITTED.
Section 4.07. INTENTIONALLY OMITTED.
Section 4.08. INTENTIONALLY OMITTED.
Section 4.09. If a copy of a certificate of occupancy for the Premises has
been exhibited to and initialed by Purchaser or its representative, such copy is
a true copy of the original and such certificate has not been amended, but
Seller makes no representation as to compliance with any such certificate.
Section 4.10. The assessed valuation and real estate taxes set forth in
Schedule D, if any, are the assessed valuation of the Premises and the taxes
paid or payable with respect thereto for the fiscal year indicated in such
schedule. Except as otherwise set forth in Schedule D, there are no tax
abatements or exemptions affecting the Premises.
Section 4.11. INTENTIONALLY OMITTED.
Section 4.12. Seller has no actual knowledge that any incinerator, boiler
or other burning equipment on the Premises is being operated in violation of
applicable law. If copies of a certificate or certificates of operation therefor
have been exhibited to and initialed by Purchaser or its representative, such
copies are true copies of the originals.
Section 4.13. Except as otherwise set forth in Schedule D, Seller has no
actual knowledge of any assessment payable in annual installments, or any part
thereof, which has become a lien on the Premises.
Section 5. Acknowledgments of Purchaser
Purchaser acknowledges that:
Section 5.01. Purchaser has inspected the Premises, is fully familiar with
the physical condition and state of repair thereof, and, subject to the
provisions of Section 7.01, Section 8.01, and Section 9.04, shall accept the
Premises "as is" and in their present condition, subject to reasonable use,
wear, tear and natural deterioration between now and the Closing Date, without
any reduction in the Purchase Price for any change in such condition by reason
thereof subsequent to the date of this contract.
Section 5.02. Before entering into this contract, Purchaser has made such
examination of the Premises, the operation, income and expenses thereof and all
other matters affecting or relating to this transaction as Purchaser deemed
necessary. In entering into this contract, Purchaser has not been induced by and
has not relied upon any representations, warranties or statements, whether
express or implied, made by Seller or any agent, employee or other
representative of Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth in this
contract, whether or not any such representations, warranties or statements were
made in writing or orally.
Section 6. Seller's Obligations as to Leases
Section 6.01. INTENTIONALLY OMITTED.
Section 6.02. *Unless otherwise provided in a schedule attached to this
contract, between the date of this contract and the Closing, Seller shall not
permit occupancy of, or enter into any new lease for, space in the Building
which is presently vacant or which may hereafter become vacant
*Provided Purchaser is not in breach of this Contract,
Section 6.03. INTENTIONALLY OMITTED.
Section 6.04. Seller does not warrant that any particular Lease of Tenancy
will be in force or effect at the Closing or that the tenants will have
performed their obligations thereunder. The termination of any Lease or Tenancy
prior to the Closing by reason of the tenant's default shall not affect the
obligations of Purchaser under this contract in any manner or entitle Purchaser
to an abatement of or credit against the Purchaser Price or give rise to any
other claim on the part of Purchaser.
Section 7. Responsibility for Violations
Section 7.01. Except as provided in Section 7.02 and Section 7.03, all
notes or notices of violations of law or governmental ordinances, orders or
requirements which were noted or issued prior to the date of this closing by any
governmental department, agency or bureau having jurisdiction as to conditions
affecting the Premises and all liens which have attached to the Premises prior
to the Closing shall be removed or complied with by Seller. If such removal or
compliance has not been completed prior to the Closing, Seller shall pay to
Purchaser at the Closing the reasonably estimated unpaid cost to effect or
complete such removal or compliance, and Purchaser shall be required to accept
title to the Premises subject thereto.
Section 7.02. If the reasonably estimated aggregate cost to remove or
comply with any violations or liens which Seller is required to remove or comply
with pursuant to the provisions of Section 7.01 shall exceed the Maximum Amount
specified in Schedule D (or if none is so specified, the Maximum Amount shall be
one-half of one percent of the Purchase Price), Seller shall have the right to
cancel this contract, in which event the sole liability of Seller shall be as
set forth in Section 13.02, unless Purchaser elects to accept title to the
Premises subject to all such violations or liens, in which event Purchaser shall
be entitled to a credit of an amount equal to the Maximum Amount against the
monies payable at the Closing.
Section 7.03. INTENTIONALLY OMITTED.
Section 7.04. If required, Seller, upon written request by Purchaser, shall
promptly furnish to Purchaser written authorizations to make any necessary
searches for the purposes of determining whether notes or notices of violations
have been noted or issued with respect to the Premises or liens have attached
thereto.
Section 8. Destruction, Damage or Condemnation
Section 8.01. The provisions of Section 5-1311 of the General Obligations
Law shall apply to the sale and purchase provided for in this contract.
Section 9. Covenants of Seller
Seller covenants that between the date of this contract and the Closing:
Section 9.01. The Existing Mortgage(s) shall not be amended or supplemented
or prepaid in whole or in part. Seller shall pay or make, as and when due and
payable, all payments of principal and interest and all deposits required to be
paid or made under the Existing Mortgage(s).
Section 9.02. INTENTIONALLY OMITTED.
Section 9.03. INTENTIONALLY OMITTED.
Section 9.04. No fixtures, equipment or personal property included in this
sale shall be removed from the Premises unless the same are replaced with
similar items of at least equal quality prior to the Closing.
Section 9.05. Seller shall not withdraw, settle or otherwise compromise any
protest or reduction proceeding affecting real estate taxes assessed against the
Premises for any fiscal period in which the Closing is to occur or any
subsequent fiscal period without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld. Real estate tax refunds and credits
received after the Closing Date which are attributable to the fiscal tax year
during which the Closing Date occurs shall be apportioned between Seller and
Purchaser, after deducting the expenses of collection thereof, which obligation
shall survive the Closing.
Section 9.06. Seller shall allow Purchaser or Purchaser's representatives
access to the Premises, the Leases and other documents required to be delivered
under this contract upon reasonable prior notice at reasonable times.
Section 10. Seller's Closing Obligations
At the Closing, Seller shall deliver the following to Purchaser:
Section 10.01. A statutory form of bargain and sale deed without covenant
against grantor's acts, containing the covenant required by Section 13 of the
Lien Law, and properly executed in proper form for recording so as to convey the
title required by this contract.
Section 10.02. INTENTIONALLY OMITTED.
Section 10.03. INTENTIONALLY OMITTED.
Section 10.04. INTENTIONALLY OMITTED.
Section 10.05. INTENTIONALLY OMITTED.
Section 10.06. INTENTIONALLY OMITTED.
Section 10.07. INTENTIONALLY OMITTED.
Section 10.08. INTENTIONALLY OMITTED.
Section 10.09. INTENTIONALLY OMITTED.
Section 10.10. To the extent they are then in Seller's possession and not
posted at the Premises, certificates, licenses, permits, authorizations and
approvals issued for or with respect to the Premises by governmental and
quasigovernmental authorities having jurisdiction.
Section 10.11. Such affidavits as Purchaser's title company shall
reasonably require in order to omit from its title insurance policy all
exceptions for judgments, bankruptcies or other returns against persons or
entities whose names are the same as or similar to Seller's name.
Section 10.12. Checks to the order of the appropriate officers in payment
of all applicable real property transfer taxes and copies of any required tax
returns therefor executed by Seller, which checks shall be certified or official
bank checks if required by the taxing authority, unless Seller elects to have
Purchaser pay any of such taxes and credit Purchaser with the amount thereof.
Section 10.13. INTENTIONALLY OMITTED.
Section 10.14. INTENTIONALLY OMITTED.
Section 10.15. INTENTIONALLY OMITTED.
Section 10.16. If Seller is a corporation and if required by Section 909 of
the Business Corporation Law, a resolution of Seller's board of directors
authorizing the sale and delivery of the deed and a certificate executed by the
secretary or assistant secretary of Seller certifying as to the adoption of such
resolution and setting forth facts showing that the transfer complies with the
requirements of such law. The deed referred to in Section 10.01 shall also
contain a recital sufficient to establish compliance with such law.
Section 10.17. Possession of the Premises in the condition required by this
contract, and keys therefor.
Section 10.18. Any other documents required by this contract to be
delivered by Seller.
Section 11. Purchaser's Closing Obligations
At the Closing, Purchaser shall:
Section 11.01. Deliver to Seller checks in payment of the portion of the
Purchase Price payable at the Closing, as adjusted for apportionments under
Section 12, plus the amount of escrow deposits, if any, assigned pursuant to
Section 10.08.
Section 11.02. INTENTIONALLY OMITTED.
Section 11.03. INTENTIONALLY OMITTED.
Section 11.04. Cause the deed to be recorded, duly complete all required
real property transfer tax returns and cause all such returns and checks in
payment of such taxes to be delivered to the appropriate officers promptly after
the Closing.
Section 11.05. Deliver any other documents required by this contract to be
delivered by Purchaser.
Section 12. Apportionments
Section 12.01. The following apportionments shall be made between the
parties at the Closing as of the close of business on the day prior to the
Closing Date:
(a) INTENTIONALLY OMITTED;
(b) INTENTIONALLY OMITTED;
(c) real estate taxes, water charges, sewer rents and vault charges, if
any, on the basis of the fiscal period for which assessed, except that if there
is a water meter on the Premises, apportionment at the Closing shall be based on
the last available reading, subject to adjustment after the Closing when the
next reading is available;
(d) INTENTIONALLY OMITTED;
(e) value of fuel stored on the Premises, at the price then charged by
Seller's supplier, including any taxes;
(f) INTENTIONALLY OMITTED;
(g) INTENTIONALLY OMITTED;
(h) INTENTIONALLY OMITTED;
(i) INTENTIONALLY OMITTED;
(j) INTENTIONALLY OMITTED; and
(k) any other items listed in Schedule D.
If the Closing shall occur before a new tax rate is fixed, the
apportionment of taxes at the Closing shall be upon the basis of the old tax
rate for the preceding period applied to latest assessed valuation. Promptly
after the new tax rate is fixed, the apportionment of taxes shall be recomputed.
Any discrepancy resulting from such recomputation and any errors or omissions in
computing apportionments at Closing shall be promptly corrected, which
obligations shall survive the Closing.
Section 12.02. INTENTIONALLY OMITTED.
Section 12.03. INTENTIONALLY OMITTED.
Section l3. Objections to Title, Failure of Seller or Purchaser to Perform and
Vendee's Lien
Section 13.01. Purchaser shall promptly order an examination of title and
shall cause a copy of the title report to be forwarded to Seller's attorney upon
receipt. Seller shall be entitled to a reasonable adjournment or adjournments of
the Closing for up to 60 days or until the expiration date of any written
commitment of Purchaser's Institutional Lender delivered to Purchaser prior to
the scheduled date of Closing, whichever occurs first, to remove any defects in
or objections to title noted in such title report and any other defects or
objections which may be disclosed on or prior to the Closing Date.
Section 13.02. If Seller shall be unable to convey title to the Premises at
the Closing in accordance with the provisions of this contract or if Purchaser
shall have any other grounds under this contract for refusing to consummate the
purchase provided for herein, Purchaser, nevertheless, may elect to accept such
title as Seller may be able to convey with a credit against the monies payable
at the Closing equal to the reasonably estimated cost to cure the same (up to
the Maximum Expense described below), but without any other credit or liability
on the part of Seller. If Purchaser shall not so elect, Purchaser may terminate
this contract and the sole liability of Seller shall be to refund the Down
payment to Purchaser and to reimburse Purchaser for the net cost of title
examination, but not to exceed the net amount charged by Purchaser's title
company therefor without issuance of a policy, and the net cost of updating the
existing survey of the Premises or the net cost of a new survey of the Premises
if there was no existing survey or the existing survey was not capable of being
updated and a new survey was required by Purchaser's Institutional Lender. *Upon
such refund and reimbursement, this contract shall be null and void and the
parties hereto shall be relieved of all further obligations and liability other
than any arising under Section 14. Seller shall not be required to bring any
action or proceeding or to incur any expense in excess of the Maximum Expense
specified in Schedule D (or if none is so specified, the Maximum Expense shall
be one-half of one percent of the Purchase Price) to cure any title defect or to
enable Seller otherwise to comply with the provisions of this contract, but the
foregoing shall not permit Seller to refuse to pay off at the Closing, to the
extent of the monies payable at the Closing, mortgages on the Premises, other
than Existing Mortgages, of which Seller has actual knowledge. *and the
non-refundable fees and costs of the instructional lender up to but not
exceeding $15,000.00.
Section 13.03 Any unpaid taxes, assessments, water charges and sewer rents,
together with the interest and penalties thereon to a date not less than two
days following the Closing Date, and any other liens and encumbrances which
Seller is obligated to pay and discharge or which are against corporations,
estates or other persons in the chain of title, together with the cost of
recording or filing any instruments necessary to discharge such liens and
encumbrances of record, may be paid out of the proceeds of the monies payable at
the Closing if Seller delivers to Purchaser on the Closing Date official bills
for such taxes, assessments, water charges, sewer rents, interest and penalties
and instruments in recordable form sufficient to discharge any other liens and
encumbrances of record. Upon request made a reasonable time before the Closing,
Purchaser shall provide at the Closing separate checks for the foregoing payable
to the order of the holder of any such lien, charge or encumbrance and otherwise
complying with Section 2.02. If Purchaser's title insurance company is willing
to insure both Purchaser and Purchaser's Institutional Lender, if any, that such
charges, liens and encumbrances will not be collected out of or enforced against
the Premises, then, unless Purchaser's Institutional Lender reasonably refuses
to accept such insurance in lieu of actual payment and discharge, Seller shall
have the right in lieu of payment and discharge to deposit with the title
insurance company such funds or assurances or to pay such special or additional
premiums as the title insurance company may require in order to so insure. In
such case the charges, liens and encumbrances with respect to which the title
insurance company has agreed so to insure shall not be considered objections to
title.
Section 13.04. If Purchaser shall materially default in the performance of
its obligation under this contract to purchase the Premises, the sole remedy of
Seller shall be to retain the Downpayment as liquidated damages for all loss,
damage and expense suffered by Seller, including without limitation the loss of
its bargain.
Section 13.05. Purchaser shall have a vendee's lien against the Premises
for the amount of the Downpayment, but such lien shall not continue after
default by Purchaser under this contract.
Section 14. Broker
Section 14.01. If a broker is specified in Schedule D, Seller and Purchaser
mutually represent and warrant that such broker is the only broker with whom
they have dealt in connection with this contract and that neither Seller nor
Purchaser knows of any other broker who has claimed or may have the right to
claim a commission in connection with this transaction, unless otherwise
indicated in Schedule D. The commission of such broker shall be paid pursuant to
separate agreement by the party specified in Schedule D. If no broker is
specified in Schedule D, the parties acknowledge that this contract was brought
about by direct negotiation between Seller and Purchaser and that neither Seller
nor Purchaser knows of any broker entitled to a commission in connection with
this transaction. Unless otherwise provided in Schedule D, Seller and Purchaser
shall indemnify and defend each other against any costs, claims or expenses,
including attorneys' fees, arising out of the breach on their respective parts
of any representations, warranties or agreements contained in this paragraph.
The representations and obligations under this paragraph shall survive the
Closing or, if the Closing does not occur, the termination of this contract.
Section 15. Notices
Section 15.01. All notices under this contract shall be in writing and
shall be delivered personally or shall be sent by* prepaid registered or
certified mail, addressed as set forth in Schedule D, or as Seller or Purchaser
shall otherwise have given notice as herein provided. *email, fax or overnight
delivery service
Section 16. Limitations on Survival of Representations, Warranties, Covenants
and other Obligations
Section 16.01. Except as otherwise provided in this contract, no
representations, warranties, covenants or other obligations of Seller set forth
in this contract shall survive the Closing, and no action base thereon shall be
commenced after the Closing. The representations, warranties, covenants and
other obligations of Seller set forth in Section 4.03, Section 6.01 and Section
6.02 shall survive until the Limitation Date specified in Scheduled D (or if
none is so specified, the Limitation Date shall be the date which is six months
after the Closing Date), and no action based thereon shall be commenced after
the Limitation Date.
Section 16.02 The delivery of the deed by Seller, and the acceptance
thereof by Purchaser, shall be deemed the full performance and discharge of
every obligation on the part of Seller to be performed hereunder, except those
obligations of Seller which are expressly stated in this contract to survive the
Closing.
Section 17. Miscellaneous Provisions
Section 17.01. If consent of the Existing Mortgagee(s) is required under
Section 2.03(b), Purchaser shall not assign this contract or its rights
hereunder without the prior written consent of Seller. No permitted assignment
of Purchaser's rights under this contract shall be effective against Seller
unless and until an executed counterpart of the instrument of assignment shall
have been delivered to Seller and Seller shall have been furnished with the name
and address of the assignee. The term "Purchaser" shall be deemed to include the
assignee under any such effective assignment.
Section 17.02. This contract embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein and all prior agreements, understandings, representations and statements,
oral or written, are merged into this contract. Neither this contract nor any
provision hereof may be waived, modified, amended, discharged or terminated
except by an instrument signed by the party against whom the enforcement of such
waiver, modification, amendment, discharge or termination is sought, and then
only to the extent set forth in such instrument.
Section 17.03. This contract shall be governed by, and construed in
accordance with, the law of the State of New York.
Section 17.04. The captions in this contract are inserted for convenience
of reference only and in no way define, describe or limit the scope or intent of
this contract or any of the provisions hereof.
Section 17.05. This contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs or successors and
permitted assigns.
Section 17.06. This contract shall not be binding or effective until
properly executed and delivered by Seller and Purchaser.
Section 17.07. As used in this contract, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural shall
include the singular, as the context may require.
Section 17.08. If the provisions of any schedule or rider to this contract
are inconsistent with the provisions of this contract, the provisions of such
schedule or rider shall prevail. Set forth in Schedule D is a list of any and
all schedules and riders which are attached hereto but which are not listed in
the Table of Contents.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Contract as of
the date first above written.
SELLER(S): BUYER(S):
HPG REALTY CO., LLC CVD Equipment Corporation
By:----------------------------- By:--------------------------------
Xxxxxx X. Xxxxxxxxxx, Member Xxxx Xxxxxxx, CFO
-------------------------------- -----------------------------------
Receipt by Escrowee:
The undersigned Escrowee hereby acknowledges receipt of, by check subject to
collection, to be held in escrow pursuant to Section 2.05.
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx, Esq.
Solferino & Solferino, L.L.P.
[SCHEDULES AND EXHIBITS INTENTIONALLY OMITTED.]
RIDER TO AND FORMING PART OF CONTRACT OF SALE
Seller: HPG Realty Co., LLC
Purchaser: CVD Equipment Corporation
Premises: 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
Date: December , 2007
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18. This Rider shall form a part of and modify the terms of the Contract dated
even date herewith by and between the parties and covering the Premises as above
described. If there is any conflict between the terms of this Rider and the
terms of the printed form Contract the terms of this Rider shall govern and be
controlling. However, whenever possible, the terms of this Rider shall be
construed to supplement and not override the terms of the printed form Contract.
All defined terms herein, signified by the initial capitalization thereof~
unless specifically defined herein, shall have the same meaning as contained in
the printed form portion of the Contract.
19. This Contract and the Purchaser's obligations hereunder are not subject to
the Purchaser's ability to obtain mortgage loan financing. The Purchaser has
represented to Seller that it has the funds on hand necessary to complete the
transaction contemplated by this Contract, including without limitation, the
balance of the Purchase Price and all closing costs normally associated with
similar transactions, and such representation was material inducement to Seller
entering into this Contract.
20. Seller represents that the plumbing, HVAC, and electric systems and all
equipment, if any, attached to and used in connection with the Premises and
included in the sale shall be in working order, and the roof free of leaks, on
the day of Closing. There are no leases or rights of occupancy in effect at the
Premises (other than the Lease, as hereinafter defined) and the Seller is the
sole occupant of the Premises. The Premises shall be delivered vacant and broom
clean on the day of Closing. At or prior to Closing the Seller shall deliver to
Purchaser a true, accurate and complete copy of the certificate of occupancy
and/or certificates of completion/compliance for the Premises covering all
structures on the Premises as they currently exist. The representations made by
Seller in this paragraph shall not survive Closing and the delivery of the deed.
21. In the event that the Seller is required to obtain a new survey of the
Premises in connection with the issuance of any certificate of occupancy or
certificate of completion as required by this Contract, then the Purchaser
agrees to pay the cost of said survey, at the time of completion thereof.
22. Notwithstanding any provision of this Contract to the contrary, the
Purchaser acknowledges and represents that Purchaser is fully aware of the
physical condition and state of repair of the Premises and of all other property
included in this sale, based on Purchaser's own inspection and investigation
thereof, and that Purchaser is entering into this Contract based solely upon
such inspection and investigation and not upon any information, data, statements
or representations, written or oral, as to the physical condition, state of
repair, use, cost of operation or any other matter related to the Premises or
the other property included in the sale, given or made by Seller or its
representatives, and shall accept the same "as is" in their present condition
and state of repair, subject to reasonable use, wear, tear and natural
deterioration between the date hereof and the date of Closing, without any
reduction in the purchase price or claim of any kind for any change in such
condition by reason thereof subsequent to the date of this contract. There is
and shall be no obligation on the part of the Seller to alter, restore or repair
the Premises in any manner, whatsoever. Purchaser and its authorized
representative shall have the right, at reasonable times and upon reasonable
notice (by telephone or otherwise) to Seller, to inspect the Premises before
Closing. Seller makes no representation as to the existence or condition of any
personal property or fixtures on the Premises.
23. Purchaser's obligations under this Contract are contingent upon Purchaser's
completion and review of an environmental audit of the Premises, as hereinafter
provided. The Purchaser shall have the right to perform or cause to be
performed, at Purchaser's sole cost and expense, a Phase I environmental audit
("Phase I") of the Premises by any of the environmental engineers on North Fork
Bank's list of approved environmental engineers, a copy of which list is annexed
hereto as Exhibit A and made a part hereof as though fully set forth herein at
length (hereinafter the "Environmental Consultant"). The Environmental
Consultant will certify a new Phase I report to the Purchaser. Such audit and
examination shall be performed, and the results thereof (including without
limitation, any report made in connection therewith) delivered to the Seller
promptly following receipt by Purchaser, but in no event later than thirty (30)
days after a fully executed Contract is delivered to the Purchaser's attorney.
If the Phase I report is not timely delivered to the Seller any objection to
Closing the Purchaser might have raised by reason of the Phase I shall be waived
and null and void, and Purchaser's obligations pursuant to this Contract shall
be non-contingent and absolute as if this paragraph no. 23 had not been included
in this Contract. If the Phase I report indicates that a Phase II environmental
audit is necessary, the Phase II audit shall be performed by the Environmental
Consultant and the cost and expense thereof shall be shared equally by the
Seller and the Purchaser, and may be ordered by either party. In the event the
Phase II report indicates the presence or release of any Hazardous Substances
(as hereinafter defined), and/or recommends remedial action, the Seller shall
have the option to: (i) remove such Hazardous Substances and perform such
remedial action (at Seller's sole cost and expense) or; (ii) cancel this
Contract and return the Downpayment to the Purchaser, upon the return of which
neither party shall have any further right or obligation as to the other. The
Seller agrees to cooperate with the Environmental Consultant and make the
Premises available for inspection. The Purchaser agrees that the audits shall be
performed in the least intrusive and disruptive manner possible, and to restore
the Premises to the condition existing immediately prior to the commencement of
the audits. Further, Purchaser agrees to indemnify and hold the Seller harmless
from and against any and all loss, including without limitation, any damage to
the Premises or any personal property located thereat caused by the performance
of the environmental audits and the acts or omissions of the Purchaser or the
Environmental Consultant or other third party engaged, directly or indirectly,
by the Purchaser to perform or in any way assist in the performance of the
environmental audits. The Downpayment shall be held to secure Purchaser's
obligations and indemnification as provided in this paragraph. In the event a
Phase II is required and/or the Seller chooses to exercise its rights under (i)
above, the Closing date shall be adjourned for a reasonable period of time for
the performance of the Phase II and/or to afford Seller the opportunity to
perform the remedial action, however, in no event shall the Closing be delayed
beyond ninety (90) days without the written consent of the Purchaser. If the
Phase II and/or remedial action is not performed within said ninety (90) day
period and is not extended in writing by the Purchaser, the Purchaser shall have
the right to cancel the Contract and receive a refund of the Downpayment. The
term "Hazardous Substance" as used herein shall include: any "Hazardous
Substance", "Pollutant" or "Contaminant" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act as amended, 42 U.S.C.
ss.~ 9601 et ~ or the regulations, promulgated thereunder ("CERCLA"); any
Hazardous Waste as the term is defined in applicable state or local law; any
substance containing petroleum, as the term is defined in ss.9001(8) of the
Resource Conservation and Recovery Act, as amended, 42 U. S. C. ss.6991(8) or in
40 C.F.R. 280.1; or any other substance for which any governmental entity with
jurisdiction over the Premises requires special handling in its generation,
handling, use, collection, storage, treatment, or disposal. The term "release"
as used herein shall have the meaning given it in CERCLA. If the Phase I report
does not recommend further action in the form of a Phase II audit, or if the
Seller completes remediation as recommended by a Phase II report, all of
Seller's obligations pursuant to this paragraph no. 23 shall have been fulfilled
and Purchaser shall be required to proceed to Closing as otherwise obligated by
the terms of this Contract. Seller makes no representation or warranty as to the
results of any environmental audit, including, without limitation, the Phase I
or Phase II reports, or as to the presence or release of Hazardous Substances at
the Premises either before or after the performance by Seller of any remediation
recommended by the Environmental Consultant.
24. The parties acknowledge that the Seller is not the fee owner of the
Premises, and that the actual fee owner is the Town of Islip Industrial
Development Agency (the "Islip XXX"). The Seller occupies the Premises, as
lessee, under a lease with the Islip XXX, as lessor, dated as of February 1,
2004 (the "Lease"). A copy of the Lease is annexed hereto as Exhibit B and made
a part hereof as though fully set forth herein at length. Together with and upon
the making of the Lease, the Seller, the Islip XXX and Tn-Start Electronics,
Inc. ("Tn-Start") entered into a Payment-in-Lieu-of Tax Agreement dated as of
February 1, 2004 (the "PILOT Agreement"). A copy of the PILOT Agreement is
annexed hereto as Exhibit C and made a part hereof as though fully set forth
herein at length. Pursuant to the terms of the Lease and the PILOT Agreement the
Seller would be permitted to occupy or sublease the Premises to Tn-Start during
the terms of the Lease and benefit from and schedule of
payments-in-lieu-of-taxes that were lower than the taxes that would have been
due in the event of full assessment and payment of all real estate taxes.
Whenever this Contract refer to the transfer of fee title to the Premises it
shall mean and refer to the transfer, assignment and/or assumption of all of the
Seller's right, title and interest in and to the Premises pursuant to the Lease
by Seller to Purchaser. The parties acknowledge that the continuation of the
Lease and the PILOT Agreement are important to the Purchaser and are a
significant inducement to Purchaser entering into this Contract. Accordingly,
this Contract shall be subject to the Islip IDA's approval of the assumption
and/or assignment of the Lease and the PILOT Agreement by the Purchaser and the
continuation of the payments-in-lieu-of-taxes as provided in the PILOT
Agreement, and the release of Seller and any personal obligations of the
Principals of Seller under the Lease and the PILOT Agreement. Purchaser agrees
to make prompt application to the Islip XXX for the assumption and/or assignment
of the Lease and PILOT Agreement, and to diligently pursue same, in good faith,
and to timely comply with any and all reasonable requests of the Islip XXX made
in connection therewith, at Purchaser's sole cost and expense. The assumption
and/or assignment of the Lease and PILOT Agreement shall be free and clear of
any and all encumbrances except for the Permitted Encumbrances as provided in
Schedule B, shall be clear and marketable as otherwise provided in this Contract
when referring to the quality of fee title, and must be acceptable to the title
company designated in Schedule D(l) so that it is willing to insure same under
its standard policy of title insurance without unusual endorsement or premium.
If upon and after a timely, diligent and good faith application made by the
Purchaser the Islip XXX does not approve the assignment and/or assumption of the
Lease and PILOT Agreement by the Purchaser, including a release of the Seller
and any and all personal obligations of the principals of the Seller, either
party may cancel this Contract, and upon written notice of which and a return of
the Downpayment made hereunder, this Contract shall be cancelled and null and
void, and neither party shall have any further right or remedy as to the other.
25. Notwithstanding any provision of this Contract to the contrary, the
Purchaser shall have the option to request that the existing mortgages
encumbering the Premises be assigned to Purchaser's lender rather than satisfied
of record, provided such assignment shall also include a release of the Seller
and any and all personal obligations of the principals of the Seller. If
Purchaser elects to have the existing mortgage(s) assigned Purchaser shall
notify Seller's attorney at least twenty (20) days prior to Closing. Seller
shall cooperate with any reasonable request to complete such assignment. The
Purchaser shall pay at the time of Closing any and all cost and expense of
completing the assignment of mortgage(s), including, without limitation,
reasonable attorneys fees.
26. Annexed hereto as Exhibit D and made a part hereof is a list of the personal
property included in the sale.
IN WITNESS WHEREOF, the parties have executed this rider as of the date
first above written.
HPG Realty Co, LLC
By:--------------------------------
Xxxxxx X. Xxxxxxxxxx, Member Seller
CVD Equipment Corporation By:--------------------------------
Xxxx Xxxxxxx, CFO Purchaser
