CONTRACT OF SALE
|
Premises:
|
000
Xxxxx Xxxxxx
Xxxxxxxxxxx,
Xxx Xxxx 00000
|
Certilman
Balin Xxxxx & Xxxxx, LLP
00
Xxxxxxx Xxxxxx
Xxxx
Xxxxxx, Xxx Xxxx 00000
CONTRACT
dated
as
of January 13, 2006, by and between EMBASSY
INDUSTRIES, INC., a
New
York Corporation, having its principal office at 000 Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxx Xxxx 00000 (“Seller”), and X.
X'XXXXXXX & COMPANY, INC., a
New
York corporation, having its principal office at 000 Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxx Xxxx 00000 (“Purchaser”).
WITNESSETH:
WHEREAS,
Seller
owns a parcel of land with the improvements erected thereon, as
follows:
being
in
Farmingdale, Town of Babylon, County of Suffolk, State of New York; known
by the
street address 000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx; and designated as
District 100; Section 5; Block 1; Lot 11 on the Land and Tax Map of Suffolk
County, as more particularly described on Schedule A annexed hereto (the
“Property”);
WHEREAS,
Seller
desires to sell to Purchaser and Purchaser desires to purchase from Seller,
the
Premises (as hereinafter defined) on the terms and conditions set forth
herein;
NOW,
THEREFORE, in
consideration of these premises and the mutual covenants, the parties hereby
covenant and agree as follows:
SECTION
1
SALE
OF PREMISES AND ACCEPTABLE TITLE
1.1 Seller
shall sell to Purchaser and Purchaser shall purchase from Seller, at the
price
and upon the terms and conditions set forth herein: (a) the Property, (b)
all
buildings (the “Buildings”) and improvements, if any, situated thereon
(collectively, the “Improvements”) (c) all right, title and interest of Seller,
if any, in and to the land lying in the bed of any street or highway in front
of
or adjoining the Property to the center line thereof and to any unpaid award
for
any taking thereof by condemnation, or any damage to the Property by reason
of a
change of grade of any street or highway; (d) the appurtenances, (e) all
right,
title and interest of Seller, if any, in and to the fixtures equipment and
other
personal property attached to the Buildings and/or listed on Schedule B attached
hereto; (f) all right, title and interest of Seller, if any, to all leases,
licenses and other occupancy agreements presently or hereinafter entered
into
covering or affecting the Property together with any security deposit(s)
held by
Seller pursuant thereto; and (g) all licenses, permits certificates and the
like
pertaining to the ownership, use and occupancy of the Property (collectively,
the “Personal Property”). The Property, the Improvements, the Personal Property
and the other interests being sold and purchased as provided in this subsection
1.1 are referred to, collectively, as the “Premises”.
1.2 A.
Seller
shall convey and Purchaser shall accept fee simple title to the Premises
in
accordance with the terms of this Contract, subject only to (a) the matters
(“Permitted Exceptions”) set forth in Schedule C attached to and made a part of
this Contract and such other matters as Purchaser has agreed to take subject
to,
or is deemed to have taken subject to, and (b) such other matters as any
reputable title insurance company licensed to do business in the State of
New
York (the “Title Company”) 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
B. Within
twenty (20) days after the date of this Contract, Purchaser shall deliver
to
Seller’s attorneys, a title commitment (the “Title Commitment”) from the Title
Company. In the event the Title Commitment sets forth exceptions to title
to
which Purchaser objects which are not set forth on Schedule C (a “Title
Defect”), Purchaser shall notify Seller within ten (10) days thereafter of the
Title Defect. Delivery of a title report to Seller shall satisfy Purchaser's
obligations hereunder.
C. Seller
shall be entitled to a reasonable adjournment of the Closing Date up to sixty
(60) days, in order to give Seller an opportunity to remove any Title Defect,
however, Seller shall not be required to bring any action or proceeding or
otherwise incur any expense in excess of $37,500.00 to remove any Title Defect.
The existence of any taxes, liens, or encumbrances, other than the Permitted
Exceptions, shall not be objections to title if properly executed instruments
necessary to satisfy the same are delivered to the Title Company at or before
the Closing, together with recording and filing fees, if any, so that the
Title
Company may omit such taxes, liens, or encumbrances from its schedule of
exceptions to title. If the Premises or any part thereof is subject to any
lien,
the amount of which has not been fixed, the same shall not be a Title Defect
provided the Title Company shall insure Purchaser against collection of such
lien from the Premises or from Purchaser.
D. In
the
event there exists any Title Defect which Seller is unable to cure as described
in paragraph (C) above at the time of Closing, Purchaser shall have the option
of (i) closing title, notwithstanding such Title Defect, without any abatement
of the Purchase Price, or (ii) canceling this Contract by written notice
to
Seller within ten (10) days after Purchaser receives written notice from
Seller
that it will be unable or unwilling to cure such Title Defect. In the event
Purchaser elects to cancel this Contract by reason of the foregoing, the
Downpayment (as hereinafter defined in Section 15) shall be returned promptly
to
Purchaser and neither party under this Contract shall have any further
obligation to the other, except that Purchaser and Seller shall continue
to
remain liable under the provisions of subsection 3.3.D & E, Section 12 and
subsection 16.1 hereof.
1.3 Responsibility
for Violations.
A. Except
as
provided herein, 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 Contract by any governmental department, agency or bureau having
jurisdiction as to conditions affecting the Premises shall be removed by
or
complied with by Seller. If such removal or compliance has not been completed
prior to the Closing, and the reasonable value is less than $25,000.00, 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. All such notes or notices
of
violations noted or issued on or after the date of this Contract shall be
the
sole responsibility of Purchaser.
B. 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.
SECTION
2
PURCHASE
PRICE AND DOWNPAYMENT
2.1 The
purchase price (“Purchase Price”) to be paid by Purchaser to Seller for the
Premises is SIX
MILLION FIVE HUNDRED THOUSAND AND 00/100 ($6,500,000.00)
DOLLARS.
2.2 Upon
execution of this Contract, Purchaser shall pay to Seller SIX
HUNDRED FIFTY THOUSAND AND 00/100 ($650,000.00) DOLLARS, by
check,
subject to collection, payable to the order of, or by wire transfer to,
CERTILMAN BALIN XXXXX & XXXXX, LLP, AS ATTORNEY (the “Escrow Agent”), who
shall hold and disburse the proceeds and interest earned thereon, if any,
(the
“Downpayment”) in accordance with the provisions of Section 15 hereof.
2.3 On
the
Closing Date (as such term is defined herein), Purchaser shall pay to Seller
or
its designees the balance of the Purchase Price, in the amount of FIVE
MILLION EIGHT HUNDRED FIFTY AND 00/100 ($5,850,000.00)
DOLLARS,
after
receiving credit for the Downpayment.
2.4 All
sums
which are to be paid to Seller under this Contract shall be paid by unendorsed
certified or cashier’s checks drawn on a bank which is a member of the New York
Clearinghouse, or by wire transfer. Upon two (2) days’ oral notice from Seller,
Purchaser shall deliver separate checks at Closing or make separate wire
transfers in the number and amounts requested by Seller as designated in
such
notice.
SECTION
3
INVESTIGATION
PERIOD AND CLOSING DATE
3.1 A.
Purchaser shall have a period of forty-five (45) days from the date hereof
(the
“Investigation Period”) within which it may conduct investigations and studies
concerning the Premises. (Such investigations and studies are hereinafter
referred to as the “Purchaser’s Investigation Period Permitted Activities”). Any
report prepared by a party other than Purchaser in performing such
investigations shall hereinafter be referred to as a “Report”. Purchaser’s
Investigation Period Permitted Activities shall be performed pursuant to
the
provisions of subsection 3.2 below.
B. During
the Investigation Period, Purchaser shall have the opportunity to thoroughly
inspect the Premises which inspection may include, but shall not be limited
to
(i) an environmental survey and/or assessment to determine the existence
of
pollutants and/or contaminants and/or hazardous and/or toxic substances,
materials and/or chemicals as defined in Environmental Laws (defined in
subsection 16.2) (hereinafter referred to collectively or individually as
“Hazardous Substances”), (ii) inspection of underground storage tanks, (iii)
compliance with all applicable laws, statutes, rules and regulations imposed
by
any relevant governmental authority having jurisdiction over the Premises,
(iv)
storm water drain tests and soil borings; and (v) all other matters reasonably
affecting or reasonably related to the transaction as may be appropriate.
C. If,
at or
prior to the expiration of the Investigation Period, Purchaser shall not
be
fully satisfied, in Purchaser’s reasonable discretion, as to the suitability of
the Premises and all factors concerning same, then, in such event, Purchaser
shall have the right to cancel this Contract by notice to Seller on or before
the last day of the Investigation Period (such date hereinafter referred
to as
the “Investigation Period Notice Date”). In such event, any Report prepared in
connection therewith shall be delivered to Seller. Any notice purporting
to
cancel this Contract pursuant to the provisions of this subsection 3.1C after
the Investigation Period Notice Date shall be void and of no force and effect.
In the event Purchaser cancels this Contract, as provided herein, the sole
liability of Seller shall be to cause the Escrow Agent to refund the Downpayment
within ten (10) days after receipt of Purchaser’s cancellation notice and all
Reports. Upon such reimbursement, this Contract shall be null and void and
the
parties hereto shall be relieved of all further obligations and liabilities
other than any arising under subsection 3.2D and Section 12 hereof.
D. In
the
event Purchaser does not cancel this Contract as provided in subsection 3.1C,
then, in such event, Seller and Purchaser shall proceed with the transaction
contemplated herein in accordance with the terms hereof.
3.2 A.
“Purchaser’s
Investigation Period Permitted Activities” shall be performed and conducted at
Purchaser’s sole cost and expense and in all respects in a commercially
reasonable manner by Purchaser, its employees, agents, and independent
contractors. In connection with the foregoing, and for the purpose of conducting
and performing Purchaser’s Permitted Activities, Purchaser and its employees,
agents, and independent contractors shall have the right and license, during
the
Investigation Period, to enter onto the Premises as described in section
3.2B
below.
B. In
order
to obtain entry to the Premises where necessary to perform Purchaser’s
Investigation Period Permitted Activities, Purchaser and its employees, agents,
and independent contractors and representatives shall notify by telephone,
Xxxxxx Xxxxxxxxx, a representative of Seller, at (000) 000-0000, of the identity
of each of the parties intending to enter the Premises and the approximate
period of time during which they will be located on the Premises. Seller
shall
coordinate each and every entry by Purchaser and/or its agents upon the
Premises. In the event Purchaser's investigation determines that environmental
remediation is required, Seller agrees to pay for remediation in an amount
not
to exceed $25,000.00 or, alternatively, credit Purchaser at closing an amount
not to exceed $25,000.00.
C. Prior
to
any entry upon the Premises to conduct any inspection, Purchaser shall furnish,
or cause its contractors or agents to furnish, to Seller, evidence of insurance
insuring Seller from and against liability resulting from injury to or death
of
any person or persons and damage to or destruction of property, in an amount
not
less than THREE MILLION ($3,000,000.00) DOLLARS, combined single
limits.
D. Purchaser
shall indemnify, protect, save, defend and hold forever harmless Seller from
and
against all liabilities, obligations, claims, damages, judgments, awards,
penalties, costs, and expenses including, without limitation, reasonable
attorney’s fees and court costs at all levels of proceedings, which Seller may
incur, suffer or sustain, or for which Seller may become obligated or liable
by
reason of any act or omission on the part of Purchaser, its employees, agents,
and/or independent contractors in the performance of conduct of Purchaser’s
Investigation Period Permitted Activities or by reason of any injury to or
death
of persons or loss of or damage to property in connection with, or as a result
of, any such entry or entries upon or use of the Premises by Purchaser, its
employees, agents, and/or independent contractors in connection with Purchaser’s
Investigation Period Permitted Activities or as a result of any liens for
labor
or services performed and/or materials furnished by or for the account of
Purchaser in respect of the Premises. In the event this Contract terminates
for
any reason, Purchaser shall also be obligated to restore the Premises to
the
condition in which it existed prior to the commencement of Purchaser’s
activities thereon. The provisions of this subsection 3.2D shall survive
any
termination of this Contract.
3.3 Except
as
otherwise provided in this Contract, the closing of title pursuant to this
Contract (the “Closing”) shall take place at the office of Seller’s counsel or
the office of counsel to Purchaser’s lending institution, if any, on or about
June 1, 2006. (The actual date of the Closing is hereinafter referred to
as the
“Closing Date”).
SECTION
4
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
warrants and represents to Purchaser as of this date and at Closing as
follows:
4.1 Except
with respect to the Lending Agreements, as such term is hereinafter defined,
neither the execution of this Contract nor the consummation by Seller of
the
transactions contemplated by this Contract will (a) conflict with, or result
in
a breach of, the terms, conditions or provisions of, or constitute a default,
or
result in a termination of, any agreement or instrument to which Seller is
a
party, (b) violate any restriction to which Seller is subject, or (c) result
in
the creation of any lien, charge or encumbrance upon the Premises or any
part
thereof.
4.2 Seller
is
a corporation, duly organized, validly existing and in good standing under
the
laws of the State of New York, authorized to conduct business in the State
of
New York, and is the sole owner of the Premises.
4.3 Except
with respect to the Lending Agreements as such term is hereinafter defined,
Seller has all requisite power and authority, has taken all actions required
by
its organizational documents and applicable law, and has obtained all consents
which are necessary to authorize or enable it to execute and deliver this
Contract and to consummate the transactions contemplated in this Contract.
The
individual executing this Contract on Seller’s behalf has been duly authorized
and is empowered to bind Seller to this Contract.
4.4 Seller
has not filed for relief as a debtor under any state receivership laws or
federal bankruptcy laws.
4.5 Seller
has no actual knowledge of any assessment payable in annual installments,
or any
part thereof, which has become a lien on the Premises.
4.6 Seller
is
not a "foreign person" as defined in the Internal Revenue Code Withholding
Section.
4.7 Seller
has no actual knowledge of any action or proceeding or governmental
investigation pending or threatened against or relating to Seller or the
Premises.
4.8 Seller
has not received written notice of any condemnation or taking of the Premises
and has no knowledge of any pending or threatened condemnation or
taking.
4.9 To
Seller's knowledge, there are no management, service, equipment, supply,
security, maintenance, concession or other agreements with respect to or
affecting the Premises (herein collectively called "Service Agreements")
which
cannot be cancelled prior to Closing.
4.10 To
the
best of Seller's knowledge, there is (i) no litigation, proceeding or
investigation pending against or affecting Seller or the Premises that might
affect or relate to (a) the validity of this Contract, (b) any action taken
pursuant hereto, or (c) the Premises or any part or the operation thereof,
whether or not fully covered by insurance, (ii) no mechanic's lien against
the
Premises, and no work has been performed or is otherwise in progress on the
Premises by or on behalf of Seller that could result in a mechanic's lien
being
filed against the Premises.
4.11 Seller
and Seller's employees and agents have not entered into any contracts for
improvements to the Premises which will not be fully completed and fully
paid
for prior to Closing.
4.12 Seller
represents that the present real estate taxes are $105,129.02, and that there
is
no exemption or abatement.
4.13 Seller
represents that, to the best of its knowledge, Certificates of Occupancy,
or
their equivalent, have been issued for all structures on the Premises and
that
it has not made any additions or alterations to the Premises that would require
additional Certificates from the municipality.
4.14 Seller
represents that the Premises are serviced by a municipal water
authority.
4.15 Seller
warrants and represents that the septic system will be in working order at
Closing and that they have not experienced any septic backups within the
past
three (3) months.
4.16 Seller
has received no notice from any governmental authority concerning a potential
hazardous environmental condition affecting the Premises.
SECTION
5
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
5.1 Purchaser
warrants and represents to Seller that as of the date hereof and at
Closing:
Neither
the execution of this Contract nor the consummation by Purchaser of the
transaction contemplated by this Contract will (i) conflict with, or result
in a
breach of, the terms, conditions or provisions of, or constitute a default,
or
result in a termination of, any agreement or instrument to which Purchaser
is a
party, (ii) violate any restriction to which Purchaser is subject or (iii)
constitute a violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree or order.
5.2 Purchaser
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of New York.
5.3 Purchaser
has all requisite authority, has taken all actions required by its
organizational documents and applicable law, and has obtained all consents
which
are necessary to authorize or enable it to execute and deliver this Contract
and
to consummate the transactions contemplated in this Contract. The individuals
executing this Contract on Purchaser’s behalf have been duly authorized and are
empowered to bind Purchaser to this Contract.
SECTION
6
INTENTIONALLY
OMITTED
SECTION
7
CONDITIONS
PRECEDENT
7.1 Purchaser’s
obligation to close title pursuant to the terms of this Contract is subject
to
and conditioned upon the following:
A. Each
of
the representations and warranties made by Seller in Section 5 hereof being
true
and complete in all material respects on the Closing Date as if made on and
as
of such date. At the Closing, Seller shall deliver to Purchaser a certification
to this effect; and
B. Seller
shall have performed all obligations which it is required to perform pursuant
to
the provisions of this Contract.
7.2 Seller’s
obligation to consummate the sale of the Premises pursuant to the terms of
this
Contract is subject to and conditioned upon the following:
A. Each
of
the representations and warranties made by Purchaser in Section 5 hereof
being
true and complete on the Closing Date as if made on and as of such date.
At the
Closing, Purchaser shall deliver to Seller a certification to this
effect.
B. Purchaser
shall have performed all obligations which it is required to perform pursuant
to
the provisions of this Contract.
7.3 Seller
covenants that between the end of the Investigation Period and the
Closing:
A. Seller
shall not modify or amend any existing contracts regarding the operation
and
maintenance of the buildings (“Service Contract”) or enter into any new service
contract unless the same is terminable without penalty by the then owner
of the
Premises upon not more than thirty (30) days’ notice. Nothing herein contained
shall impair Seller’s rights to enter into or extend or modify a Service
Contract during the Investigation Period.
B. Seller
shall maintain in full force and effect until the Closing, all insurance
policies on the Premises which exist as of the date of the
Contract.
C. 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
8
SELLER’S
CLOSING OBLIGATIONS
At
the
Closing, Seller shall deliver the following to Purchaser:
8.1 A
statutory form of Bargain and Sale Deed With Covenants, containing the covenant
required by Section 13 of the Lien Law, and properly executed in proper form
for
recording so as to convey to Purchaser fee simple title to the Premises,
subject
only to the Permitted Exceptions.
8.2 A
form
TP-584 duly executed by Seller, a New York State Equalization Form (RP-5217)
executed by Seller, and any other instruments, affidavits and/or tax returns
as
are customarily executed by the seller of an interest in real property in
connection with the recording of a deed.
8.3 The
Service Contracts, which shall be initialed by Purchaser, to the extent same
are
assignable by Seller to Purchaser.
8.4 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 quasi-governmental authorities
having jurisdiction.
8.5 An
assignment to Purchaser, without recourse or warranty, of all of the interest
of
Seller in those Service Contracts, insurance policies, certificates, permits
and
other documents to be delivered to Purchaser at the Closing which are then
in
effect and are assignable by Seller to Purchaser.
8.6 A
Non-foreign affidavit with respect to Seller as required by IRC Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) and the
regulations issued thereunder, and Purchaser shall not deduct or withhold
any
portion of the Purchase Price pursuant to Section 1445 of the Code.
8.7 Such
affidavits as the Title Company may 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 or similar to
Seller’s name; and other documents as the Title Company may reasonably
require.
8.8 Seller
shall not be required to close title hereunder unless and until Seller and/or
its affiliates receive written approval of the sale from its lenders pursuant
to
the terms of various credit line loans and guarantees (collectively, the
"Lending Agreements"). Seller, and/or its affiliates, shall diligently pursue
such approvals upon execution of this Contract. If Seller and/or its affiliates
is unable to obtain the approvals within thirty (30) days from the date hereof,
this Contract shall automatically terminate and the Downpayment shall be
refunded to Purchaser unless the parties hereto agree to extend Seller's
time
within which to obtain the approvals. In the event this Contract is terminated
by reason of this Section, Seller shall reimburse Purchaser for any
out-of-pocket costs incurred during the Investigation Period, including but
not
limited to net title costs, survey costs and Phase I fee and legal fees up
to
$5,000.00.
8.9 Checks
to
the appropriate officers in payment of all applicable real property transfer
taxes and copies of any required tax returns therefor executed by Seller,
unless
Seller elects to have Purchaser pay any of such taxes and credit Purchaser
with
the amount thereof.
8.10 To
the
extent that they are then in Seller’s possession, copies of current maintenance
and payroll records. Seller shall make all other Building and tenant files
available to Purchaser for copying.
8.11 A
resolution of Seller authorizing the sale and delivery of the deed and setting
forth facts showing that the transfer complies with all applicable law and
delivery of the certification referred to in subsection 7.2(A).
8.12 Letter
authorizing the Escrow Agent to disburse the Downpayment to Seller.
8.13 A
Xxxx of
Sale for the Personal Property.
8.14 All
keys
to any portion of the improvements at the Premises, codes for any alarm systems,
combinations and/or keys to vaults, if any, and all warranties and guaranties,
plans and specifications, and all files (including, without limitation, leasing
files) relation to the Premises in Seller's possession. At Purchaser's request,
Seller shall execute and deliver to Purchaser at Closing an assignment of
all
warranties and guaranties Seller has with respect to the Premises.
8.15 All
plumbing (including water supply and septic systems, if any) heating and
air
conditioning, if any, electric and mechanical systems, equipment and machinery
in the building(s) located on the property being in working order as of the
date
of Closing.
8.16 The
Premises and all building(s) and improvements comprising a part thereof in
broom
clean condition, vacant and free of leases or tenancies and roof free of
leaks.
8.17 A
valid
and subsisting Certificate of Occupancy or other required certificate of
compliance, or evidence that none was required, covering the building and
all
improvements presently located on the property, and authorizing its use as
a
commercial building at the date of Closing.
SECTION
9
PURCHASER’S
CLOSING OBLIGATIONS
At
the
Closing, Purchaser shall:
9.1 Deliver
the balance of the Purchase Price, subject to adjustment as provided in this
Contract, by immediately available federal funds transferred by wire to such
account(s) in such bank(s) as Seller shall designate; or by certified or
official bank check(s) to Seller and/or its designees, at Seller’s
option.
9.2 Deliver
to Seller, a letter authorizing the Escrow Agent to disburse the Downpayment
to
Seller.
9.3 Deliver
to Seller the certification referred to in subsection 7.2A.
9.4 Deliver
to Seller a form 1099B completed by Purchaser.
9.5 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.
9.6 Deliver
to Seller such other documents as are required by this Contract to be delivered
by Purchaser or as reasonably requested by Seller in order to effectuate
the
provisions of this Contract.
9.7 Execute
and deliver to seller an assumption of Service Contracts, if any.
SECTION
10
APPORTIONMENTS
AND OTHER PAYMENTS
10.1 The
following apportionments shall be made between the parties at the Closing
as of
the close of business on the day immediately prior to the Closing
Date:
A.
real
estate taxes, water charges and sewer rents, if any, on the basis of the
lien
period for which assessed, except if there is a water meter on the Premises,
apportionment at Closing shall be based on the last available reading, subject
to adjustment after Closing when the next reading is available;
If
the
Closing shall occur before a new tax rate is fixed, the apportionment of
taxes
at the Closing shall be based upon the tax rate for the immediately preceding
period applied to the latest assessed valuation. Installments for assessments
noted against the Premises prior to Closing shall be the responsibility of
the
Seller;
B. value
of
fuel stored on the Premises, if any, at the price then charged by Seller’s
supplier, including any taxes;
C. charges
under any transferrable Service Contracts;
D. insurance
premiums on transferrable insurance policies which are being assigned to
Purchaser or permitted renewals thereof;
E. any
other
sums required to be paid by either party to the other at the Closing pursuant
to
the provisions of this Contract.
10.2 In
the
event the net apportionment or payment is required to be made by Purchaser,
the
amount due shall be added to the payment due at the Closing and paid either
by
wire transfer or by certified check or official bank check; or, in the event
the
net apportionment or payment is required to be made by Seller, the amount
due
shall be applied, as a credit against the amount due at the
Closing.
10.3 The
parties hereto agree that any errors or omissions in computing apportionments
at
the Closing shall be corrected promptly after discovery, but in no event
later
than six (6) months after the Closing.
10.4 Seller
shall pay the New York State transfer tax on the deed of conveyance. Purchaser
shall pay the following costs: any transfer taxes imposed upon a Purchaser
by
statute, the title insurance premium and the services charged by the Title
Company (if any), the cost of all recording charges in connection with the
Closing other than charges incurred to record documents in connection with
the
clearing of title by Seller pursuant to this Contract (which recording charges
shall be paid by Seller), except as otherwise provided herein.
10.5 To
the
extent that Purchaser requests an assignment to its lender of any existing
mortgage(s) encumbering the Premises, Seller shall receive as a credit from
Purchaser, one half of the saving on the mortgage recording taxes.
Notwithstanding the foregoing, Seller may refuse to permit any such existing
mortgage to be assigned unless Seller and any guarantor is released from
any and
all obligations under the note, mortgage and any other instruments(s) comprising
the loan documents, in form satisfactory to Seller
10.6 The
provisions of this Section 10 shall survive the Closing in accordance with
the
terms
hereof.
SECTION
11
TERMINATION
AND REMEDIES
11.1 A.
In the
event that on the Closing Date or after any permitted adjournment of the
Closing
Date, any of Seller’s representations or warranties contained herein are untrue
in any material respect or if Seller shall have failed to have performed
any
material covenant and/or agreement contained herein which is to be performed
by
Seller, or if any of the conditions precedent to Purchaser’s obligation to
consummate the transactions contemplated hereby shall have failed to occur,
Purchaser may, at its option (i) terminate this Contract by giving written
notice of termination to Seller, in which event Purchaser shall receive a
refund
of the Downpayment and neither party under this Contract shall have any further
obligation to the other, or (ii) close title to the Premises without any
abatement of the Purchase Price, in which event Purchaser shall be deemed
to
have waived any rights it may have had on account of such untruth, failure
to
perform or failure to occur. In the event Seller is unable to convey title
in
accordance with the terms of this Agreement, Seller shall pay Purchaser's
net
cost of examining title and the costs for a survey.
B.
If the
Closing does not occur as a result of the default of Seller, Purchaser shall
be
entitled to the right to exercise all of its legal and equitable remedies,
including, without limitation, an action for specific performance and shall
also
be entitled to have the Downpayment and interest thereon deposited in Court,
pending Purchaser's action for specific performance. In the alternative,
Purchaser may elect to have the Downpayment and interest refunded together
with
the cost of Purchaser's survey and title examination and declare this Agreement
null and void.
11.2 If
Purchaser defaults, the entire damages which Seller will thereby sustain
cannot
be exactly determined; therefore, it is agreed that in the event of any default
by Purchaser, all amounts paid by Purchaser as a deposit pursuant to this
Contract shall be considered as liquidated damages for such failure or refusal
of Purchaser to consummate this transaction or for any non-compliance,
non-performance, breach or default by Purchaser, and shall become the exclusive
property of, and be permanently retained by Seller as Seller’s sole remedy and
Purchaser’s sole obligation in any and all events. Provided, however, that
Seller shall provide Purchaser with ten (10) days written notice to cure
any
default or failure to comply with the terms of this Agreement. Seller shall
retain such amounts as liquidated damages and no further rights or causes
of
action shall remain against Purchaser, nor shall Purchaser have any further
rights under this Contract or otherwise, with respect to Seller, except that
Purchaser and Seller shall continue to remain liable under the provisions
of
subsection 3.2D and Section 12 hereof.
SECTION
12
BROKER
12.1 Seller
and Purchaser each represent and warrant to the other that no broker, finder
or
similar persons other than OXFORD
& XXXXXXX REALTY, INC. and XXXXXX & XXXXXXX, INC., (“Broker”)
was involved in or connected with this transaction. Purchaser further represents
that no broker, finder or similar person other than Broker brought the Premises
to the attention of Purchaser. Purchaser and Seller each hereby indemnify
and
agree to defend, save and hold the other harmless of and from all loss, cost,
liability and expense, including, without limitation, reasonable attorneys’
fees, which may be incurred by the other in connection with any claim for
commission or other compensation, whether based on a claim of brokerage,
or
based on a contract, quasi-contract or tort, which may be made by any person,
firm or corporation other than Broker who claims to have dealt with Seller
or
Purchaser, as the case may be, in connection with this transaction. Seller
shall
pay Broker pursuant to a separate agreement between Seller and
Broker.
The
representations and obligations under this Section 12 shall survive the Closing
or, if the Closing does not occur for any reason, shall survive the termination
of this Contract.
SECTION
13
NOTICES
13.1 Any
notice required to be given hereunder shall be given in writing by depositing
such notice in a post-paid wrapper, in an official depository under the
exclusive care and custody of the United States Postal Service within New
York
State, or by Express Mail, Federal Express or messenger service (with proper
receipt therefor), addressed to the party at the address hereinabove set
forth
with a copy of any such notice by a similar method of delivery or by fax
transmission (with proper receipt therefor and a copy sent by mail) to the
attorney for such party as follows:
|
IF
TO SELLER:
|
EMBASSY
INDUSTRIES, INC.
000
Xxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxxxx
Tel.
(000) 000-0000, ext. 168
Fax
(000) 000-0000
E-Mail:
jgiacalone&xxxxx.xxx
|
|
WITH
A COPY:
|
Certilman
Balin Xxxxx & Xxxxx, LLP
00
Xxxxxxx Xxxxxx
Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxxx, Esq.
Tel.
(000) 000-0000
Fax
(000) 000-0000
E-Mail:
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
|
IF
TO PURCHASER:
|
X.
X'XXXXXXX & COMPANY, INC.
Xx.
Xxx Xxxxxx, Chief Financial Officer
XX
Xxx 000
Xxxxxxxxxxx,
Xxx Xxxx 00000
Tel.
(000) 000-0000
Fax
(631)
E-Mail:
xxx.xxxxxx@xxxxxxxx.xxx
|
|
WITH
A COPY:
|
Xxxx
X. Xxxxxxxxxxx, Esq.
000
Xxx Xxxx Xxxxxx
Xxxxxxxxxx,
Xxx Xxxx 00000
Tel.
(000) 000-0000
Fax
(000) 000-0000
E-Mail:
mcuthbertson@cuthbertsonlaw
|
Any
notice hereunder may be given by the attorney for a party and shall have
the
same force and effect as if given by the party. Either party may by notice
change the address at which notices are to be given hereunder. Notices shall
be
deemed given upon receipt or first refusal thereof.
SECTION
14
CONDEMNATION
AND CASUALTY
14.1 In
the
event of condemnation of the Premises or any portion thereof, between the date
hereof and the Closing Date, which would materially interfere with or adversely
affect the Premises, Purchaser shall have the option to terminate this Contract
by written notice to Seller, in which event the sole liability of Seller shall
be to cause the Escrow Agent to refund the Downpayment to Purchaser. Upon such
reimbursement, this Contract shall be null and void and the parties hereto
shall
be relieved of all further obligations and liabilities other than any arising
under subsection 3.2, Section 12 and subsection 16.1 hereof. In the event there
is a condemnation and Purchaser does not elect to terminate this Contract,
Seller shall assign to Purchaser any condemnation award it may be entitled
to
receive and Seller and Purchaser shall proceed with the transaction contemplated
herein in accordance with the terms hereof.
14.2 With
respect to a casualty at the Premises, the provisions of Section 5-1311 of
the
General Obligations Law shall apply to the sale and purchase provided for in
the
Contract.
SECTION
15
ESCROW
OF DOWNPAYMENT
15.1 Escrow
Agent shall hold the proceeds of the checks delivered to Escrow Agent for the
Initial Payment and the Additional Payment, in escrow, in an interest-bearing
account maintained at North Fork Bank, located at 000 Xxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000.
15.2 The
Downpayment shall be held by the Escrow Agent until the Closing or sooner
termination of this Contract and Escrow Agent shall pay over the interest or
income earned thereon, if any, to the party entitled to the Downpayment. The
party receiving such interest or income shall pay any income taxes due thereon.
If for any reason the Closing does not occur pursuant to the provisions of
this
Contract and either party makes a written demand upon Escrow Agent, in the
manner required for notices, for payment of the Downpayment, then Escrow Agent
shall give written notice, in accordance with the provisions of subsection
13.1
to the other party of such demand. If Escrow Agent does not receive a written
objection from the other party to the proposed payment of the Downpayment
pursuant to the aforesaid demand within ten (10) days after the delivery of
such
notice by Escrow Agent, Escrow Agent is hereby authorized to make such payment
in accordance with the aforesaid demand. If Escrow Agent receives written
objection from the other party to the proposed payment of the Downpayment
pursuant to the aforesaid demand within such ten (10) day period or if for
any
other reason Escrow Agent in good faith shall elect not to make such payment,
Escrow Agent shall continue to hold the Downpayment until otherwise directed
by
written instructions from Seller and Purchaser or a final judgment of a court
of
competent jurisdiction. Escrow Agent, however, shall have the right at anytime
to deposit the Downpayment with the Clerk of any Court of competent jurisdiction
in the State of New York, and Escrow Agent shall give written notice of such
deposit to the Seller and the Purchaser, and upon such deposit being made,
Escrow Agent shall be discharged from all obligations and responsibilities
hereunder. The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that Escrow Agent may
act upon any writing believed by it in good faith to be genuine and to be signed
and presented by the proper person and the Escrow Agent shall not be deemed
to
be the agent of either of the parties, and that the Escrow Agent shall not
be
liable to either of the parties for any act or omission on its part unless
taken
or suffered in bad faith, or in willful disregard of this Contact or involving
gross negligence. Seller and Purchaser shall jointly and severally indemnify,
defend and hold Escrow Agent harmless from and against all costs, claims and
expenses, including reasonable attorneys’ fees, incurred in connection with the
performance of Escrow Agent’s duties hereunder, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith, in willful
disregard of this Contract or involving gross negligence. If the Downpayment
shall not earn any interest, or no interest be paid thereon by reason of the
withdrawal of the proceeds, or part thereof, under the provisions of this
Contract or before interest shall be earned or credited, or during any period
of
reasonable delay in opening an account, Escrow Agent shall not be liable by
reason thereof. Notwithstanding anything contained herein to the contrary,
Escrow Agent may represent Seller as Seller’s counsel in any action, suit or
other proceeding between Seller and Purchaser or in which Seller and Purchaser
may be involved. Escrow Agent shall have no duties or responsibilities except
as
set forth herein. Escrow Agent shall not be bound by any modification of the
Contract unless the same is in writing and signed by Purchaser and Seller and,
if Escrow Agent’s duties hereunder are not affected, unless Escrow Agent shall
have given prior written consent thereto. The provisions relating to the
indemnification of Escrow Agent shall survive the Closing or, if the Closing
does not occur for any reason, shall survive the termination of this
Contract.
SECTION
16
DISCLAIMER:
RELEASE OF CLAIMS
16.1 A.
Purchaser agrees to and shall defend, indemnify and hold harmless Seller, its
members, employees, officers, directors, agents, brokers and contractors from
and against any and all claims, demands, causes of action, judgments, losses,
damages, liabilities, costs and expenses (including attorneys’ fees whether suit
is instituted or not), whether known or unknown, liquidated or contingent
(collectively, “Claims”), created by (1) any Hazardous Substances on or from the
Premises, or costs of responding to such a release or threat of release, created
subsequent to Closing; (2) any action under any Environmental Laws for acts
or
conditions created subsequent to Closing; or (3) any action for property damage
or personal injury, including but not limited to actions alleging health effects
from exposure to Hazardous Substances or any other material contained on or
released from the Premises subsequent to Closing.
B. Purchaser
shall defend, indemnify and hold harmless Seller from and against all claims
created from or as a result of the death of a person or any accident, injury,
loss, or damage whatsoever caused by any person or to the property of any person
that shall occur on or adjacent to the Premises to the extent directly or
indirectly caused by any acts done thereon or any errors or omissions of
Purchaser or its agents, brokers, servants, employees, invitees or
contractors.
If
any
claim, action or proceeding is made or brought against Seller by reason of
any
event that is the subject of the indemnity described in this subsection 16.1,
Seller may engage its own attorneys to defend the action or to assist in
Seller’s defense and Purchaser shall pay the reasonable fees and disbursements
of such attorneys.
16.2 Without
limiting the provisions of subsection 16.1, Purchaser, for itself, its heirs,
grantees, successors and assigns, if any, does hereby release, acquit and
forever discharge Seller, any of its affiliates, parent corporations and
predecessors, its present and former officers, employees, agents, brokers,
contractors and attorneys from any and all Claims (whether known or unknown,
contingent or liquidated, in contract or in tort or pursuant to any other
theory) created from or related to any conditions affecting the Premises created
subsequent to Closing or result from acts or omissions of Purchaser during
the
Investigation Period. This release includes but is not limited to all claims,
fines, penalties, demands and causes of action for personal injuries, breach
of
contract, failure of representations and warranties, loss of consortium and
services, damage to real property, damage to personal property, damage to
improvements or fixtures, illness, death, medical expenses, expenses of
monitoring and testing, prejudgment interest, punitive damages, violations
of
Environmental Laws, attorneys’ fees and any and all other losses and damages of
every kind or character that are created subsequent to Closing or resulting
from
acts or omissions of Purchaser during the Investigation Period . The release
set
forth in this subsection 16.2 specifically includes any Claims under any
Environmental Laws. “Environmental Laws” includes the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901, et
seq.), the Comprehensive Environmental Response, Compensation and Liability
Act
of 1980 (42 U.S.C. §§7401 et seq.), the Emergency Planning and Community Right
to Know Act (42 U.S.C. §§ 1101 et seq.), the Clean Air Act (42 U.S.C. §§ 7401 et
seq.), the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the Toxic Substances
Control Act (15 U.S.C. §§ 2601 et seq.), the Hazardous Materials Transportation
Act (49 U.S.C. §§ 1801 et seq.), the Occupational Safety and Health Act (29
U.S.C. §§ 651 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. §§ l36 et seq.), and the Safe Drinking Water Act (42 U.S.C. §§ 3001 et
seq.), as any of the same maybe amended from time to time, and any other federal
law or any state or local law, and any regulations, orders, rules, procedures,
guidelines and the like promulgated in connection therewith, regardless of
whether such laws and/or regulations are in existence at the time this Contract
is executed.
16.3 The
provisions of this Section 16 shall survive the Closing or, if the Closing
does
not occur for any reason, shall survive the termination of this
Contract.
SECTION
17
CONDITION
OF PREMISES
17.1 A.
Purchaser acknowledges that it has fully examined the Premises or will, if
applicable, have fully examined the Premises during the Inspection Period and
is
purchasing the Premises in an “as is” condition and specifically and expressly
without any warranties, representations or guarantees, from or on behalf of
the
Seller and its agents. Purchaser has not relied, and is not relying, upon any
information, document, sales brochures or other literature, maps or sketches,
projection, proforma, statement, representation, guarantee or warranty (whether
express or implied, or oral or written, or material or immaterial) that may
have
been given by or made by or on behalf of the Seller.
B. Purchaser
hereby acknowledges that it shall not be entitled to, and should not, rely
on
Seller or its agents as to: (i) the quality, nature, adequacy or physical
condition of the Premises including, but not limited to, the structural
elements, foundation, roof, appurtenances, access, landscaping, parking
facilities or the electrical, mechanical, HVAC, plumbing, sewerage or utility
systems, facilities or appliances at the Premises, if any (except as otherwise
set forth in Sections 8.15 and 8.16); (ii) the quality, existence, nature,
adequacy or physical condition of soils, sub-surface support or ground water
at
the Premises; (iii) the existence, quality, nature, adequacy or physical
condition of any utilities serving the Premises; (iv) the existence, quality,
nature or adequacy of any ability to access utilities, including, but not
limited to, electricity, natural gas, water and sewer; (v) the existence,
quality, nature, adequacy, physical condition, or ability to access any rights
of way or roads of any kind; (vi) the development potential of the Premises,
its
habitability, merchantability or fitness, suitability or adequacy of the
Premises for any particular purpose; (vii) the zoning classification, use or
other legal status of the Premises; (viii) the existence, applicability, quality
or nature of any setback requirements; (ix) the Premises’ or its operations’
compliance with any applicable codes, laws, regulations, statutes, ordinances,
covenants, conditions or restrictions or any governmental or quasi-governmental
entity or of any other person or entity; (x) the quality of any labor or
materials relating in any way to the Premises; or (xi) compliance with any
environmental or occupational protection, pollution, subdivision or land use
laws, rules, regulations, orders or requirements including, but not limited
to,
those pertaining to the handling, generating, treating, storing or disposing
of
any hazardous waste, material or substance. The provisions of this paragraph
shall survive the closing.
SECTION
18
ASSIGNMENT
OF CONTRACT
18.1 Purchaser
shall not assign this Contract or the rights and obligations hereunder without
the prior written consent of Seller, which consent shall not be unreasonably
withheld. Provided such consent is given, no such assignment of Purchaser’s
interest in this Contract, however, shall be valid or binding upon Seller unless
and until (a) a duplicate original thereof, in form satisfactory to Seller,
assigning to the assignee all of Purchaser’s right, title and interest in this
Contract, including the Downpayment, shall be delivered to Seller and (b) an
agreement, in form satisfactory to Seller, in which the assignee shall assume
and agree to perform and be bound by all of the terms, covenants and conditions
of this Contract, shall be delivered to Seller. The aforesaid documents shall
be
delivered to Seller within three (3) days of such assignment. Notwithstanding
the aforesaid assignment, the obligations of Purchaser named herein under this
Contract shall not be discharged, released or impaired by such assignment.
For
purposes of this paragraph, any transfer of a majority of the beneficial
ownership of the Purchaser entity shall be deemed an assignment prohibited
hereunder.
Notwithstanding
the foregoing, Purchaser shall have the right to assign this Contract to another
entity with the same principal(s) as Purchaser or another entity in which
Purchaser has a 51% or greater ownership interest.
SECTION
19
TAX
DEFERRED EXCHANGE
19.1 Seller
may desire to exchange, for other property of like kind and qualifying use
within the meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended and the Regulations promulgated thereunder, fee title in the property
which is the subject of this Contract. Seller expressly reserves the right
to
assign its rights, but not its obligations, hereunder to a Qualified
Intermediary as provided in IRC Reg. 1.1031(k)-1(g)(4) on or before the Closing
Date.
SECTION
20
MISCELLANEOUS
20.1 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.
20.2 The
Section headings 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.
20.3 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 provisions 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.
20.4 The
acceptance of a deed by Purchaser shall be deemed to be a full performance
and
discharge of every agreement and obligation on the part of Seller to be
performed pursuant to the provisions of this Contract, except those, if any,
which are herein specifically stated to survive the Closing. No representation,
warranty or obligation of either party to this Contract shall survive the
delivery of such deed except as otherwise expressly set forth in this
Contract.
20.5 This
Contract and the terms and provisions hereof shall inure to the benefit of
and
be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors and permitted assigns.
20.6 This
Contract shall not be binding or effective until properly executed and delivered
by Seller and Purchaser to each other.
20.7 In
the
event of any dispute with respect to the reasonableness of any failure or
refusal of Seller to grant its consent or approval or to act reasonably in
connection with any provisions of this Contract where Seller has agreed not
to
unreasonably withhold its consent or approval or has agreed to act in a
reasonable manner, Purchaser may, as its exclusive remedy, seek specific
performance of such consent or approval or act. In no event, however, will
Seller be liable for money damages whatsoever by reason of such
actions.
20.8
Seller
represents that its Federal Employer Identification Number is _________________;
and Purchaser represents that its Federal Employer Identification Number is
________________.
20.9 In
the
event any portion of this Contract shall be declared by any court of competent
jurisdiction to be invalid, illegal or unenforceable, such portion shall be
deemed severed from this Contract and the remaining parts hereof shall remain
in
full force and effect, as fully as though such invalid, illegal or unenforceable
portion had never been part of this Contract.
20.10 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.
20.11 The
parties agree that this Contract shall be governed by, and construed in
accordance with the laws of the State of New York.
20.12 This
Contract may be executed in any number of counterparts which together shall
constitute the agreement of the parties.
20.13 Purchaser
shall have a vendee’s lien against the Premises for the amount of the
Downpayment, but such lien shall not continue after an uncured default by
Purchaser under this Contract. Purchaser agrees that it shall not record this
Contract or any memorandum or assignment thereof. Should Purchaser violate
the
provisions of the foregoing sentence, this Contract, at Seller’s option, shall
become null and void, whereupon all rights of the Purchaser shall cease and
terminate and Seller shall have the right to retain the Downpayment as and
for
liquidated damages on account of such default by Purchaser.
20.14 Purchaser
and Seller hereby waive trial by jury in any action, proceeding or counterclaim
arising out of this Contract, provided such waiver is not prohibited by any
laws
of the State of New York. Any action or proceeding brought by either party
hereto against the other, directly or indirectly, arising out of this Contract,
shall be instituted in a court in Suffolk County and all motions in any such
action shall be made in Suffolk County. This paragraph shall survive the
delivery of the Deed.
20.15 Purchaser
shall accept unacknowledged receipts, checks, letters, statements or other
proof
as to the amount of any liens on the property in the event that said liens
are
less than the record amounts and similar proof will be acceptable as to the
payment of such liens, provided that the Title Company omits any exception
as to
such liens from Purchaser’s title policy.
20.16 No
failure or delay of either party in the exercise of any right given to such
party hereunder or the waiver by any party of any condition hereunder for its
benefit (unless the time specified herein for exercise of such right, or
satisfaction of such condition, has expired) shall constitute a waiver of any
other or further right nor shall any single or partial exercise of any right
preclude other or further exercise thereof or any other right. The waiver of
any
breach hereunder shall not be deemed to be a waiver of any other or any
subsequent breach hereof.
20.17 This
Contract is completely non-recourse as to Seller, and as such, only Seller’s
interest in the Premises shall be subject to execution, attachment or any other
claim or proceeding on account of any obligation of Seller
hereunder.
20.18 The
personal property referred to in this Contract shall be deemed conveyed by
the
Deed, and no part of the Purchase Price shall be deemed allocated to such
personal property.
20.19 This
Contract is subject to and conditioned upon the adoption by the Town of Babylon
Industrial Development Agency of an Inducement Resolution evidencing the
provisions of financial assistance by the Town of Babylon Industrial Development
Agency with respect to the property to be acquired under this Contract.
Purchaser shall promptly submit its application for the Inducement Resolution
and diligently pursue same during the Investigation Period. In the event
Purchaser has not received the Inducement Resolution by the last day of the
Investigation Period, Purchaser may terminate this Contract by notifying Seller
of same before the Investigation Period Notice Date, time being "of the
essence". In such event, the sole liability of Seller shall be to cause the
Escrow Agent to refund the Downpayment within ten (10) days after receipt of
Purchaser's cancellation notice. Upon reimbursement, this Contract shall be
null
and void and the parties shall be relieved of all further obligations and
liabilities, other than any arising under Subsection 3.2D and Section 12
hereof.
BALANCE
OF PAGE INTENTIONALLY LEFT BLANK
IN
WITNESS WHEREOF, the
parties hereto have executed this Contract as of the date first above
written.
|
|
||
|
SELLER:
EMBASSY
INDUSTRIES, INC.
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxx, Pres. | |
|
Name: Xxxxxxx Xxxxxxxx |
||
|
Title:
President
Date: 1/13/06
|
||
|
PURCHASER:
X.
X'XXXXXXX & COMPANY, INC.
|
||
| |
||
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
|
Title:
Chief
Financial Officer
Date:
1/10/06
|
||
Read
and
Agreed:
For
Purposes of §§ 2.2, 2.3 and 15
| CERTILMAN BALIN XXXXX & XXXXX, LLP | ||
| |
||
|
By: /s/
Xxxx X. Xxxxxxx
|
||
|
Escrow
Agent
|
||
SCHEDULE
A
LEGAL
DESCRIPTION
ALL
THAT
CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEIGN AT PINELAWN,
EAST FARMINGDALE, TOWN OF BABYLON, XXXXXX XX XXXXXXX XXX XXXXX XX XXX XXXX,
XX
THE EASTERLY SIDE OF XXXXX STREET AND MORE PARTICULARLY BOUNDED AND DESCRIBED
AS
FOLLOWS:
BEGINNING
AT A POINT ON THE EASTERLY SIDE OF XXXXX STREET, DISTANT 788.25 FEET
NORTHEASTERLY AS MEASURED ALONG THE SOUTHERLY AND THEN EASTERLY SIDE OF XXXXX
STREET FROM THE EXTREME NORTHEASTERLY END OF A LINE HAVING LENGTH OF 28.28
FEET,
WHICH SAID LINE CONNECTS THE SOUTHERLY SIDE OF XXXXX STREET AND THE EASTERLY
SIDE OF NEW HIGHWAY, WHICH SAID POINT OF BEGINNING IS ALSO THE SOUTHWESTERLY
CORNER OF THE PREMISES HEREIN DESCRIBED;
RUNNING
THENCE ALONG THE SAID EASTERLY SIDE OF XXXXX STREET IN AN NORTHERLY DIRECTION
AND ALONG A CURVE BEARING TO THE LEFT HAVING A RADIUS OF 110 FEET AN ARC
DISTANCE OF 63.04 FEET TO A POINT;
THENCE
STILL ALONG THE EASTERLY SIDE OF XXXXX STREET, NORTH 4 DEGREES 54 MINUTES
30
SECONDS EAST, 240.49 FEET TO A POINT;
THENCE
SOUTH 85 DEGREES 05 MINUTES 30 SECONDS EAST, 575.83 FEET TO A
POINT;
THENCE
SOUTH 37 DEGREES 12 MINUTES 05 SECONDS WEST, 169.81 FEET TO A
POINT;
THENCE
SOUTH 02 DEGREES 08 MINUTES 10 SECONDS WEST, 200.18 FEET TO A
POINT;
THENCE
NORTH 85 DEGREES 27 MINUTES WEST, 434.90 FEET TO A POINT;
THENCE
NORTH 54 DEGREES 20 MINUTES 56 SECONDS WEST, 90.14 FEET TO A POINT IN THE
EASTERLY SIDE OF XXXXX STREET, THE POINT OR PLACE OF BEGINNING.
FOR
INFORMATION ONLY: DISTRICT 0100 SECTION 005.00 BLOCK 01.00 LOT
011.000
SCHEDULE B
PERSONAL
PROPERTY
NONE
SCHEDULE
C
PERMITTED
EXCEPTIONS
|
a.
|
Zoning
and subdivision laws, regulations and ordinances and landmark, historic
or
wetlands designation.
|
|
b.
|
State
of facts shown on the survey of the Premises made by Xxxxxx X.
Xxxxxxxxxxx, dated March 27, 1996 and updated December 27, 2002,
and any
additional facts as would be shown by an updated survey or which
a
personal inspection may show provided title is not rendered unmarketable
at regular rates.
|
|
c.
|
General
real estate taxes and special assessments, water and sewer charges
and all
other liens and charges of every description which are a lien but
are not
then due and payable or delinquent or are the subject of apportionment
pursuant to Section 10 of this
Contract.
|
|
d.
|
Standard
printed exceptions contained in the form of fee title policy then
issued
by the title insurance company insuring the fee title with regard
to taxes
or assessments which are not shown as existing liens by the records
of any
taxing authority that levies taxes or assessments on real property
or by
the public records.
|
|
e.
|
Variations
between fences, walls, xxxxxx and the record lines of the
Premises.
|
|
f.
|
Rights
of utilities, if any, to maintain and operate lines, wires, cables,
poles
and distribution boxes in, over and upon said
Premises.
|
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g.
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Covenants,
easements, agreements, declarations, licenses and reservations of
record,
if any, provided the same do not prohibit the present use and maintenance
of existing structures on the
Premises.
|
